b'Criminal Law\n\n\x0cCriminal Law\n[Author removed at request of original publisher]\nUNIVERSITY OF MINNESOTA LIBRARIES PUBLISHING EDITION, 2015. THIS EDITION ADAPTED\nFROM A WORK ORIGINALLY PRODUCED IN 2010 BY A PUBLISHER WHO HAS REQUESTED THAT IT\nNOT RECEIVE ATTRIBUTION.\nMINNEAPOLIS, MN\n\n\x0cCriminal Law by University of Minnesota is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International\nLicense, except where otherwise noted.\n\n\x0c\x0cContents\n\nPublisher Information\n\nviii\n\nChapter 1: Introduction to Criminal Law\n1.1 Introduction\n1.2 Criminal Law and Criminal Procedure\n1.3 The Difference between Civil and Criminal Law\n1.4 Classification of Crimes\n1.5 The Purposes of Punishment\n\n2\n4\n6\n13\n16\n\n1.6 Sources of Law\n1.7 End-of-Chapter Material\n\n19\n30\n\nChapter 2: The Legal System in the United States\n2.1 Federalism\n2.2 The Branches of Government\n2.3 The Court System\n2.4 The Burden of Proof\n2.5 End-of-Chapter Material\n\n36\n43\n49\n54\n61\n\nChapter 3: Constitutional Protections\n3.1 Applicability of the Constitution\n3.2 The Due Process and Equal Protection Clauses\n3.3 Freedom of Speech\n3.4 The Right to Privacy\n3.5 The Right to Bear Arms\n3.6 Excessive Punishment\n3.7 End-of-Chapter Material\n\n67\n74\n80\n88\n92\n95\n106\n\nChapter 4: The Elements of a Crime\n4.1 Criminal Elements\n4.2 Criminal Intent\n4.3 Causation and Harm\n4.4 End-of-Chapter Material\n\n113\n125\n139\n146\n\n\x0cChapter 5: Criminal Defenses, Part 1\n5.1 Criminal Defenses\n5.2 Self-Defense\n5.3 Other Use-of-Force Defenses\n5.4 Defenses Based on Choice\n5.5 Consent\n5.6 End-of-Chapter Material\n\n152\n158\n167\n177\n182\n186\n\nChapter 6: Criminal Defenses, Part 2\n6.1 The Insanity Defense\n6.2 Infancy, Intoxication, Ignorance, and Mistake\n6.3 Entrapment\n\n193\n211\n218\n\n6.4 End-of-Chapter Material\n\n222\n\nChapter 7: Parties to Crime\n7.1 Parties to Crime\n7.2 Vicarious Liability\n7.3 Accessory\n7.4 End-of-Chapter Material\n\n228\n236\n240\n246\n\nChapter 8: Inchoate Offenses\n8.1 Attempt\n8.2 Conspiracy\n8.3 Solicitation\n8.4 End-of-Chapter Material\n\n253\n266\n278\n282\n\nChapter 9: Criminal Homicide\n9.1 Homicide\n9.2 Murder\n9.3 First-Degree Murder\n9.4 Felony Murder\n9.5 Second-Degree Murder\n9.6 Manslaughter\n9.7 End-of-Chapter Material\n\n288\n293\n299\n305\n312\n315\n323\n\nChapter 10: Sex Offenses and Crimes Involving Force, Fear, and Physical Restraint\n10.1 Sex Offenses\n\n330\n\n\x0c10.2 Assault and Battery\n10.3 Domestic Violence and Stalking\n10.4 Kidnapping and False Imprisonment\n10.5 End-of-Chapter Material\n\n348\n360\n368\n376\n\nChapter 11: Crimes against Property\n11.1 Nonviolent Theft Crimes\n11.2 Extortion, Robbery, and Receiving Stolen Property\n11.3 Crimes That Invade or Damage Property\n11.4 End-of-Chapter Material\n\n383\n397\n414\n427\n\nChapter 12: Crimes against the Public\n12.1 Quality-of-Life Crimes\n12.2 Crimes Targeting Group Conduct\n12.3 Vice Crimes\n12.4 End-of-Chapter Material\n\n433\n441\n455\n466\n\nChapter 13: Crimes against the Government\n13.1 Crimes Involving National Security\n13.2 Crimes Involving Terrorism\n13.3 Perjury, Bribery, and Obstruction of Justice\n13.4 End-of-Chapter Material\nChapter 14: Appendix A: Case Listings\n\n472\n482\n487\n502\n\n\x0cPublisher Information\n\nCriminal Law is adapted from a work\nproduced and distributed under a\nCreative Commons license (CC BYNC-SA) in 2012 by a publisher who\nhas requested that they and the original\nauthor not receive attribution. This\nadapted edition is produced by the\nUniversity of Minnesota Libraries Publishing through the eLearning Support Initiative.\nThis adaptation has reformatted the original text, and replaced some images and figures to make the resulting\nwhole more shareable. This adaptation has not significantly altered or updated the original 2012 text. This work\nis made available under the terms of a Creative Commons Attribution-NonCommercial-ShareAlike license.\nFor questions about this textbook please contact textbookuse@umn.edu\n\nviii\n\n\x0cChapter 1: Introduction to Criminal Law\n\nRoadsidepictures \xe2\x80\x93 1st. Dodge Charger With A Police Package \xe2\x80\x93 CC BY-NC 2.0.\n\nElementary notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair\nnotice not only of the conduct that will subject him to punishment but also of the severity of the penalty that a\nState may impose.\n\xe2\x80\x94BMW of North America, Inc. v. Gore, cited in Section 1 \xe2\x80\x9cDamages\xe2\x80\x9d\n\n1\n\n\x0c1.1 Introduction\n\nLearning Objective\n1.\n\nDefine a crime.\n\nThis textbook introduces you to our legal system in the United States, the basic elements of a crime, the\nspecific elements of commonly encountered crimes, and most criminal defenses. Criminal law always involves\nthe government and government action, so you will also review the pertinent sections of the United States\nConstitution and its principles as they apply to criminal law. By the end of the book, you will be comfortable with\nthe legal framework that governs the careers of criminal justice professionals.\n\nDefinition of a Crime\nLet\xe2\x80\x99s begin at the beginning by defining a crime. The most basic definition of a crime is \xe2\x80\x9can act committed in\nviolation of a law prohibiting it, or omitted in violation of a law ordering it\xe2\x80\x9d (Yourdictionary.com, 2010). You\nlearn about criminal act and omission to act in Chapter 4 \xe2\x80\x9cThe Elements of a Crime\xe2\x80\x9d. For now, it is important to\nunderstand that criminal act, omission to act, and criminal intent are elements or parts of every crime. Illegality\nis also an element of every crime. Generally, the government must enact a criminal law specifying a crime and\nits elements before it can punish an individual for criminal behavior. Criminal laws are the primary focus of this\nbook. As you slowly start to build your knowledge and understanding of criminal law, you will notice some unique\ncharacteristics of the United States\xe2\x80\x99 legal system.\nLaws differ significantly from state to state. Throughout the United States, each state and the federal\ngovernment criminalize different behaviors. Although this plethora of laws makes American legal studies more\ncomplicated for teachers and students, the size, cultural makeup, and geographic variety of our country demand\nthis type of legal system.\nLaws in a democratic society, unlike laws of nature, are created by people and are founded in religious, cultural,\nand historical value systems. People from varying backgrounds live in different regions of this country. Thus you\nwill see that different people enact distinct laws that best suit their needs. This book is intended for use in all\nstates. However, the bulk of any criminal law overview is an examination of different crimes and their elements.\nTo be accurate and representative, this book focuses on general principles that many states follow and provides\nfrequent references to specific state laws for illustrative purposes. Always check the most current version of your\nstate\xe2\x80\x99s law because it may vary from the law presented in this book.\nLaws are not static. As society changes, so do the laws that govern behavior. Evolving value systems naturally\nlead to new laws and regulations supporting modern beliefs. Although a certain stability is essential to the\nenforcement of rules, occasionally the rules must change.\nTry to maintain an open mind when reviewing the different and often contradictory laws set forth in this book.\n2\n\n\x0c1.1 Introduction 3\n\nLaw is not exact, like science or math. Also try to become comfortable with the gray area, rather than viewing\nsituations as black or white.\n\nKey Takeaway\n\xe2\x80\xa2\n\nA crime is an act committed in violation of a law prohibiting it or omitted in violation of a law ordering it.\nIn general, the criminal law must be enacted before the crime is committed.\n\nExercise\nAnswer the following question. Check your answer using the answer key at the end of the chapter.\n1.\n\nRead Gonzales v. Oregon, 546 U.S. 243 (2006). Did the US Supreme Court preserve Oregon\xe2\x80\x99s right to\nlegalize physician-assisted suicide? The case is available at this link: http://www.law.cornell.edu/supct/html/\n04-623.ZS.html.\n\nReferences\nYourdictionary.com, \xe2\x80\x9cDefinition of Crime,\xe2\x80\x9d accessed August 15, 2010, http://www.yourdictionary.com/crime.\n\n\x0c1.2 Criminal Law and Criminal Procedure\n\nLearning Objective\n1.\n\nCompare criminal law and criminal procedure.\n\nThis book focuses on criminal law, but it occasionally touches on issues of criminal procedure, so it is important\nto differentiate between the two.\nCriminal law generally defines the rights and obligations of individuals in society. Some common issues in\ncriminal law are the elements of specific crimes and the elements of various criminal defenses. Criminal procedure\ngenerally concerns the enforcement of individuals\xe2\x80\x99 rights during the criminal process. Examples of procedural\nissues are individuals\xe2\x80\x99 rights during law enforcement investigation, arrest, filing of charges, trial, and appeal.\n\nExample of Criminal Law Issues\nClara and Linda go on a shopping spree. Linda insists that they browse an expensive department store. Moments\nafter they enter the lingerie department, Linda surreptitiously places a bra in her purse. Clara watches, horrified,\nbut does not say anything, even though a security guard is standing nearby. This example illustrates two issues\nof criminal law: (1) Which crime did Linda commit when she shoplifted the bra? (2) Did Clara commit a crime\nwhen she failed to alert the security guard to Linda\xe2\x80\x99s shoplifting? You learn the answer to issue (1) in Chapter\n11 \xe2\x80\x9cCrimes against Property\xe2\x80\x9d and issue (2) in Chapter 4 \xe2\x80\x9cThe Elements of a Crime\xe2\x80\x9d and Chapter 7 \xe2\x80\x9cParties to\nCrime\xe2\x80\x9d.\n\nExample of Criminal Procedure Issues\nReview the example in Section 1.2.1 \xe2\x80\x9cExample of Criminal Law Issues\xe2\x80\x9d. Assume that Linda and Clara attempt\nto leave the store and an alarm is activated. Linda begins sprinting down the street. Colin, a police officer, just\nhappens to be driving by with the window of his patrol car open. He hears the store alarm, sees Linda running,\nand begins shooting at Linda from the car. Linda is shot in the leg and collapses. Linda is treated at the hospital for\nher injury, and when she is released, Colin arrests her and transports her to the police station. He brings her to an\nisolated room and leaves her there alone. Twelve hours later, he reenters the room and begins questioning Linda.\nLinda immediately requests an attorney. Colin ignores this request and continues to question Linda about the\nreason the department store alarm went off. Whether Colin properly arrested and interrogated Linda are criminal\nprocedure issues beyond the scope of this book. However, this example does illustrate one criminal law issue: did\n\n4\n\n\x0c1.2 Criminal Law and Criminal Procedure 5\n\nColin commit a crime when he shot Linda in the leg? You learn the answer to this question in Chapter 5 \xe2\x80\x9cCriminal\nDefenses, Part 1\xe2\x80\x9d.\nFigure 1.1 Criminal Law and Criminal Procedure\n\nKey Takeaway\n\xe2\x80\xa2\n\nCriminal law generally defines the rights and obligations of individuals in society. Criminal\nprocedure generally concerns the enforcement of individuals\xe2\x80\x99 rights during the criminal process.\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nPaul, a law enforcement officer, arrests Barney for creating a disturbance at a subway station. While\nBarney is handcuffed facedown on the ground, Paul shoots and kills him. Paul claims that he accidentally\ngrabbed his gun instead of his Taser. Is this an issue of criminal law or criminal procedure?\n\n2.\n\nRead Payton v. New York, 445 U.S. 573 (1980). In Payton, the US Supreme Court held a New York\nstatute unconstitutional under the Fourth Amendment. Did the Payton ruling focus on criminal law or\ncriminal procedure? The case is available at this link: http://supreme.justia.com/us/445/573.\n\n\x0c1.3 The Difference between Civil and Criminal Law\n\nLearning Objectives\n1.\n\nCompare civil and criminal law.\n\n2.\n\nAscertain the primary differences between civil litigation and a criminal prosecution.\n\nLaw can be classified in a variety of ways. One of the most general classifications divides law into civil and\ncriminal. A basic definition of civil law is \xe2\x80\x9cthe body of law having to do with the private rights of individuals\xe2\x80\x9d\n(Yourdictionary.com, 2010). As this definition indicates, civil law is between individuals, not the government.\nCriminal law involves regulations enacted and enforced by government action, while civil law provides a remedy\nfor individuals who need to enforce private rights against other individuals. Some examples of civil law are family\nlaw, wills and trusts, and contract law. If individuals need to resolve a civil dispute, this is called civil litigation,\nor a civil lawsuit. When the type of civil litigation involves an injury, the injury action is called a tort.\n\nCharacteristics of Civil Litigation\nIt is important to distinguish between civil litigation and criminal prosecution. Civil and criminal cases share the\nsame courts, but they have very different goals, purposes, and results. Sometimes, one set of facts gives way to a\ncivil lawsuit and a criminal prosecution. This does not violate double jeopardy and is actually quite common.\n\nParties in Civil Litigation\nIn civil litigation, an injured party sues to receive a court-ordered remedy, such as money, property, or some sort\nof performance. Anyone who is injured\xe2\x80\x94an individual, corporation, or other business entity\xe2\x80\x94can sue civilly. In\na civil litigation matter, the injured party that is suing is called the plaintiff. A plaintiff must hire and pay for an\nattorney or represent himself or herself. Hiring an attorney is one of the many costs of litigation and should be\ncarefully contemplated before jumping into a lawsuit.\nThe alleged wrongdoer and the person or entity being sued are called the defendant. While the term plaintiff is\nalways associated with civil litigation, the wrongdoer is called a defendant in both civil litigation and a criminal\nprosecution, so this can be confusing. The defendant can be any person or thing that has caused harm, including\nan individual, corporation, or other business entity. A defendant in a civil litigation matter must hire and pay for\nan attorney even if that defendant did nothing wrong. The right to a free attorney does not apply in civil litigation,\nso a defendant who cannot afford an attorney must represent himself or herself.\n\n6\n\n\x0c1.3 The Difference between Civil and Criminal Law 7\n\nGoal of Civil Litigation\nThe goal of civil litigation is to compensate the plaintiff for any injuries and to put the plaintiff back in the position\nthat person held before the injury occurred. This goal produces interesting results. It occasionally creates liability\nor an obligation to pay when there is no fault on behalf of the defendant. The goal is to make the plaintiff whole,\nnot to punish, so fault is not really an issue. If the defendant has the resources to pay, sometimes the law requires\nthe defendant to pay so that society does not bear the cost of the plaintiff\xe2\x80\x99s injury.\nA defendant may be liable without fault in two situations. First, the law that the defendant violated may not\nrequire fault. Usually, this is referred to as strict liability. Strict liability torts do not require fault because they do\nnot include an intent component. Strict liability and other intent issues are discussed in detail in Chapter 4 \xe2\x80\x9cThe\nElements of a Crime\xe2\x80\x9d. Another situation where the defendant may be liable without fault is if the defendant did not\nactually commit any act but is associated with the acting defendant through a special relationship. The policy of\nholding a separate entity or individual liable for the defendant\xe2\x80\x99s action is called vicarious liability. An example of\nvicarious liability is employer-employee liability, also referred to as respondeat superior. If an employee injures\na plaintiff while on the job, the employer may be liable for the plaintiff\xe2\x80\x99s injuries, whether or not the employer is\nat fault. Clearly, between the employer and the employee, the employer generally has the better ability to pay.\n\nExample of Respondeat Superior\nChris begins the first day at his new job as a cashier at a local McDonald\xe2\x80\x99s restaurant. Chris attempts to multitask\nand pour hot coffee while simultaneously handing out change. He loses his grip on the coffee pot and spills\nsteaming-hot coffee on his customer Geoff\xe2\x80\x99s hand. In this case, Geoff can sue McDonald\xe2\x80\x99s and Chris if he\nsustains injuries. McDonald\xe2\x80\x99s is not technically at fault, but it may be liable for Geoff\xe2\x80\x99s injuries under a theory of\nrespondeat superior.\n\nHarm Requirement\nThe goal of civil litigation is to compensate the plaintiff for injuries, so the plaintiff must be a bona fide victim\nthat can prove harm. If there is no evidence of harm, the plaintiff has no basis for the civil litigation matter. An\nexample would be when a defendant rear-ends a plaintiff in an automobile accident without causing damage to\nthe vehicle (property damage) or physical injury. Even if the defendant is at fault for the automobile accident, the\nplaintiff cannot sue because the plaintiff does not need compensation for any injuries or losses.\n\nDamages\nOften the plaintiff sues the defendant for money rather than a different, performance-oriented remedy. In a civil\nlitigation matter, any money the court awards to the plaintiff is called damages. Several kinds of damages may be\nappropriate. The plaintiff can sue for compensatory damages, which compensate for injuries, costs, which repay\n\n\x0c8 Criminal Law\n\nthe lawsuit expenses, and in some cases, punitive damages. Punitive damages, also referred to as exemplary\ndamages, are not designed to compensate the plaintiff but instead focus on punishing the defendant for causing\nthe injury (BMW of North America, Inc., 1996).\n\nCharacteristics of a Criminal Prosecution\nA criminal prosecution takes place after a defendant violates a federal or state criminal statute, or in some\njurisdictions, after a defendant commits a common-law crime. Statutes and common-law crimes are discussed in\nSection 1.6 \xe2\x80\x9cSources of Law\xe2\x80\x9d.\n\nParties in a Criminal Prosecution\nThe government institutes the criminal prosecution, rather than an individual plaintiff. If the defendant commits a\nfederal crime, the United States of America pursues the criminal prosecution. If the defendant commits a state\ncrime, the state government, often called the People of the State pursues the criminal prosecution. As in a civil\nlawsuit, the alleged wrongdoer is called the defendant and can be an individual, corporation, or other business\nentity.\nThe attorney who represents the government controls the criminal prosecution. In a federal criminal\nprosecution, this is the United States Attorney (United States Department of Justice, 2010). In a state criminal\nprosecution, this is generally a state prosecutor or a district attorney (Galaxy.com, 2010). A state prosecutor\nworks for the state but is typically an elected official who represents the county where the defendant allegedly\ncommitted the crime.\n\nApplicability of the Constitution in a Criminal Prosecution\nThe defendant in a criminal prosecution can be represented by a private attorney or a free attorney paid for by\nthe state or federal government if he or she is unable to afford attorney\xe2\x80\x99s fees and facing incarceration (Alabama\nv. Shelton, 2001). Attorneys provided by the government are called public defenders (18 U.S.C., 2010). This\nis a significant difference from a civil litigation matter, where both the plaintiff and the defendant must hire and\npay for their own private attorneys. The court appoints a free attorney to represent the defendant in a criminal\nprosecution because the Constitution is in effect in any criminal proceeding. The Constitution provides for the\nassistance of counsel in the Sixth Amendment, so every criminal defendant facing incarceration has the right to\nlegal representation, regardless of wealth.\nThe presence of the Constitution at every phase of a criminal prosecution changes the proceedings significantly\nfrom the civil lawsuit. The criminal defendant receives many constitutional protections, including the right to\nremain silent, the right to due process of law, the freedom from double jeopardy, and the right to a jury trial,\namong others.\n\n\x0c1.3 The Difference between Civil and Criminal Law 9\n\nGoal of a Criminal Prosecution\nAnother substantial difference between civil litigation and criminal prosecution is the goal. Recall that the goal of\ncivil litigation is to compensate the plaintiff for injuries. In contrast, the goal of a criminal prosecution is to punish\nthe defendant.\nOne consequence of the goal of punishment in a criminal prosecution is that fault is almost always an element\nin any criminal proceeding. This is unlike civil litigation, where the ability to pay is a priority consideration.\nClearly, it is unfair to punish a defendant who did nothing wrong. This makes criminal law justice oriented and\nvery satisfying for most students.\nInjury and a victim are not necessary components of a criminal prosecution because punishment is the\nobjective, and there is no plaintiff. Thus behavior can be criminal even if it is essentially harmless. Society does\nnot condone or pardon conduct simply because it fails to produce a tangible loss.\n\nExamples of Victimless and Harmless Crimes\nSteven is angry because his friend Bob broke his skateboard. Steven gets his gun, which has a silencer on it, and\nputs it in the glove compartment of his car. He then begins driving to Bob\xe2\x80\x99s house. While Steven is driving, he\nexceeds the speed limit on three different occasions. Steven arrives at Bob\xe2\x80\x99s house and then he hides in the bushes\nby the mailbox and waits. After an hour, Bob opens the front door and walks to the mailbox. Bob gets his mail,\nturns around, and begins walking back to the house. Steven shoots at Bob three different times but misses, and the\nbullets end up landing in the dirt. Bob does not notice the shots because of the silencer.\nIn this example, Steven has committed several crimes: (1) If Steven does not have a special permit to carry\na concealed weapon, putting the gun in his glove compartment is probably a crime in most states. (2) If Steven\ndoes not have a special permit to own a silencer for his gun, this is probably a crime in most states. (3) If Steven\ndoes not put the gun in a locked container when he transports it, this is probably a crime in most states. (4)\nSteven committed a crime each time he exceeded the speed limit. (5) Each time Steven shot at Bob and missed,\nhe probably committed the crime of attempted murder or assault with a deadly weapon in most states. Notice that\nnone of the crimes Steven committed caused any discernible harm. However, common sense dictates that Steven\nshould be punished so he does not commit a criminal act in the future that may result in harm.\nTable 1.1 Comparison of Criminal Prosecution and Civil Litigation\n\nFeature\n\nCriminal Prosecution\n\nCivil Litigation\n\nVictim\n\nNo\n\nYes. This is the plaintiff.\n\nHarm\n\nNo\n\nYes. This is the basis for damages.\n\nInitiator of lawsuit\n\nFederal or state government\n\nPlaintiff\n\nAttorney for the initiator\n\nUS Attorney or state prosecutor\n\nPrivate attorney\n\nAttorney for the defendant Private attorney or public defender Private attorney\nConstitutional protections\n\nYes\n\nNo\n\n\x0c10 Criminal Law\n\nFigure 1.2 Crack the Code\n\nLaw and Ethics: The O. J. Simpson Case\nTwo Different Trials\xe2\x80\x94Two Different Results\nO. J. Simpson was prosecuted criminally and sued civilly for the murder and wrongful death of victims Ron Goldman\nand his ex-wife, Nicole Brown Simpson. In the criminal prosecution, which came first, the US Constitution provided O.\nJ. Simpson with the right to a fair trial (due process) and the right to remain silent (privilege against self-incrimination).\nThus the burden of proof was beyond a reasonable doubt, and O. J. Simpson did not have to testify. O. J. Simpson was\nacquitted, or found not guilty, in the criminal trial (Linder, D., 2010).\nIn the subsequent civil lawsuit, the burden of proof was preponderance of evidence, which is 51\xe2\x80\x9349 percent, and O. J.\n\n\x0c1.3 The Difference between Civil and Criminal Law 11\n\nSimpson was forced to testify. O. J. Simpson was found liable in the civil lawsuit. The jury awarded $8.5 million in\ncompensatory damages to Fred Goldman (Ron Goldman\xe2\x80\x99s father) and his ex-wife Sharon Rufo. A few days later, the\njury awarded punitive damages of $25 million to be shared between Nicole Brown Simpson\xe2\x80\x99s children and Fred\nGoldman (Jones, T. L., 2010).\n1.\n\nDo you think it is ethical to give criminal defendants more legal protection than civil defendants? Why or\nwhy not?\n\n2.\n\nWhy do you think the criminal trial of O. J. Simpson took place before the civil trial? Check your answers\nto both questions using the answer key at the end of the chapter.\n\nJohnny Cochran Video\nJohnny Cochran: If the Gloves Don\xe2\x80\x99t Fit\xe2\x80\xa6\nThis video presents defense attorney Johnny Cochran\xe2\x80\x99s closing argument in the O. J. Simpson criminal prosecution:\n" href="http://www.youtube.com/watch?v=jRth45yU_2Q" class="replaced-iframe" onclick="return\nreplaceIframe(this)" data-url="http://www.youtube.com/watch?v=jRth45yU_2Q">(click to see video)\n\nKey Takeaways\n\xe2\x80\xa2\n\nCivil law regulates the private rights of individuals. Criminal law regulates individuals\xe2\x80\x99 conduct to protect\nthe public.\n\n\xe2\x80\xa2\n\nCivil litigation is a legal action between individuals to resolve a civil dispute. Criminal prosecution is\nwhen the government prosecutes a defendant to punish illegal conduct.\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nJerry, a law enforcement officer, pulls Juanita over for speeding. When Jerry begins writing Juanita\xe2\x80\x99s\ntraffic ticket, she starts to berate him and accuse him of racial profiling. Jerry surreptitiously reaches into his\npocket and activates a tape recorder. Juanita later calls the highway patrol where Jerry works and files a\nfalse complaint against Jerry. Jerry sues Juanita for $500 in small claims court for filing the false report. He\nuses the tape recording as evidence. Is this a civil litigation matter or a criminal prosecution?\n\n2.\n\nRead Johnson v. Pearce, 148 N.C.App. 199 (2001). In this case, the plaintiff sued the defendant for\ncriminal conversation. Is this a civil litigation matter or a criminal prosecution? The case is available at\nthis link: http://scholar.google.com/scholar_case?case=10159013992593966605&q=\nJohnson+v.+Pearce&hl=en&as_sdt=2,5.\n\n\x0c12 Criminal Law\n\nReferences\nAlabama v. Shelton, 535 U.S. 654 (2002), accessed August 16, 2010, http://www.law.cornell.edu/supct/html/\n00-1214.ZO.html.\nBMW of North America, Inc. v. Gore, 517 U.S. 559 (1996), accessed February 13, 2010,\nhttp://www.law.cornell.edu/supct/html/94-896.ZO.html.\nGalaxy.com website, \xe2\x80\x9cUnited States\xe2\x80\x99 Prosecuting Attorneys,\xe2\x80\x9d accessed February 15, 2010,\nhttp://www.galaxy.com/dir968533/United_States.htm.\nJones, T. L., \xe2\x80\x9cJustice for the Dead,\xe2\x80\x9d TruTV website, accessed August 18, 2010, http://www.trutv.com/library/\ncrime/notorious_murders/famous/simpson/dead_16.html.\nLinder, D., \xe2\x80\x9cThe Trial of Orenthal James Simpson,\xe2\x80\x9d UMKC website, accessed August 18, 2010,\nhttp://www.law.umkc.edu/faculty/projects/ftrials/Simpson/Simpsonaccount.htm.\nUnited States Department of Justice, \xe2\x80\x9cUnited States Attorneys,\xe2\x80\x9d accessed February 15, 2010,\nhttp://www.justice.gov/usao.\nYourdictionary.com, \xe2\x80\x9cDefinition of Civil Law,\xe2\x80\x9d accessed August 16, 2010, http://www.yourdictionary.com/\ncivil-law.\n18 U.S.C. \xc2\xa7 3006A, accessed February 15, 2010, http://www.law.cornell.edu/uscode/18/3006A.html.\n\n\x0c1.4 Classification of Crimes\n\nLearning Objectives\n1.\n\nAscertain the basis for grading.\n\n2.\n\nCompare malum in se and malum prohibitum crimes.\n\n3.\n\nCompare the punishment options for felonies, misdemeanors, felony-misdemeanors, and infractions.\n\n4.\n\nCompare jail and prison.\n\nCrimes can be classified in many ways. Crimes also can be grouped by subject matter. For example, a crime\nlike assault, battery, or rape tends to injure another person\xe2\x80\x99s body, so it can be classified as a \xe2\x80\x9ccrime against the\nperson.\xe2\x80\x9d If a crime tends to injure a person by depriving him or her of property or by damaging property, it can be\nclassified as a \xe2\x80\x9ccrime against property.\xe2\x80\x9d These classifications are basically for convenience and are not imperative\nto the study of criminal law.\nMore important and substantive is the classification of crimes according to the severity of punishment.\nThis is called grading. Crimes are generally graded into four categories: felonies, misdemeanors, felonymisdemeanors, and infractions. Often the criminal intent element affects a crime\xe2\x80\x99s grading. Malum in se crimes,\nmurder, for example, are evil in their nature and are generally graded higher than malum prohibitum crimes,\nwhich are regulatory, like a failure to pay income taxes.\n\nFelonies\nFelonies are the most serious crimes. They are either supported by a heinous intent, like the intent to kill, or\naccompanied by an extremely serious result, such as loss of life, grievous injury, or destruction of property.\nFelonies are serious, so they are graded the highest, and all sentencing options are available. Depending on the\njurisdiction and the crime, the sentence could be execution, prison time, a fine, or alternative sentencing such as\nprobation, rehabilitation, and home confinement. Potential consequences of a felony conviction also include the\ninability to vote, own a weapon, or even participate in certain careers.\n\nMisdemeanors\nMisdemeanors are less serious than felonies, either because the intent requirement is of a lower level or because\nthe result is less extreme. Misdemeanors are usually punishable by jail time of one year or less per misdemeanor,\na fine, or alternative sentencing like probation, rehabilitation, or community service. Note that incarceration for\na misdemeanor is in jail rather than prison. The difference between jail and prison is that cities and counties\n13\n\n\x0c14 Criminal Law\n\noperate jails, and the state or federal government operates prisons, depending on the crime. The restrictive nature\nof the confinement also differs between jail and prison. Jails are for defendants who have committed less serious\noffenses, so they are generally less restrictive than prisons.\n\nFelony-Misdemeanors\nFelony-misdemeanors are crimes that the government can prosecute and punish as either a felony or a\nmisdemeanor, depending on the particular circumstances accompanying the offense. The discretion whether to\nprosecute the crime as a felony or misdemeanor usually belongs to the judge, but in some instances the prosecutor\ncan make the decision.\n\nInfractions\nInfractions, which can also be called violations, are the least serious crimes and include minor offenses such as\njaywalking and motor vehicle offenses that result in a simple traffic ticket. Infractions are generally punishable by\na fine or alternative sentencing such as traffic school.\nFigure 1.3 Diagram of Grading\nMost Serious\nLess Serious\nLess Serious\nLeast Serious\n\nKey Takeaways\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\n\xe2\x80\xa2\n\nGrading is based on the severity of punishment.\nMalum in se crimes are evil in their nature, like murder. Malum prohibitum crimes are regulatory, like a\nfailure to pay income taxes.\nFelonies are graded the highest. Punishment options for felonies include the following:\n\xe2\x97\xa6\n\nExecution\n\n\xe2\x97\xa6\n\nPrison time\n\n\xe2\x97\xa6\n\nFines\n\n\xe2\x97\xa6\n\nAlternative sentencing such as probation, rehabilitation, and home confinement\n\nMisdemeanors are graded lower than felonies. Punishment options for misdemeanors include the\nfollowing:\n\n\x0c1.4 Classification of Crimes 15\n\n\xe2\x80\xa2\n\xe2\x80\xa2\n\n\xe2\x80\xa2\n\n\xe2\x97\xa6\n\nJail time of one year or less per misdemeanor\n\n\xe2\x97\xa6\n\nFines\n\n\xe2\x97\xa6\n\nAlternative sentencing such as probation, rehabilitation, and community service\n\nFelony-misdemeanors are punished as either a felony or a misdemeanor.\nInfractions, also called violations, are graded lower than misdemeanors and have less severe punishment\noptions:\n\xe2\x97\xa6\n\nFines\n\n\xe2\x97\xa6\n\nAlternative sentencing, such as traffic school\n\nOne difference between jail and prison is that cities and counties operate jails, and the state or federal\ngovernment operates prisons, depending on the crime. The restrictive nature of the confinement is another\ndifference. Jails are for defendants who have committed less serious offenses, so they are generally less\nrestrictive than prisons.\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nHarrison kills Calista and is prosecuted and sentenced to one year in jail. Did Harrison commit a felony or\na misdemeanor?\n\n2.\n\nRead State v. Gillison, 766 N.W. 2d 649 (2009). In Gillison, why did the Iowa Court of Appeals rule that\nthe defendant\xe2\x80\x99s prior convictions were felony convictions? What impact did this ruling have on the\ndefendant\xe2\x80\x99s sentence? The case is available at this link: http://scholar.google.com/\nscholar_case?case=8913791129507413362&q= State+v.+Gillison&hl=en&as_sdt=2,5&as_vis=1.\n\n\x0c1.5 The Purposes of Punishment\n\nLearning Objective\n1.\n\nAscertain the effects of specific and general deterrence, incapacitation, rehabilitation, retribution, and\nrestitution.\n\nPunishment has five recognized purposes: deterrence, incapacitation, rehabilitation, retribution, and restitution.\n\nSpecific and General Deterrence\nDeterrence prevents future crime by frightening the defendant or the public. The two types of deterrence are\nspecific and general deterrence. Specific deterrence applies to an individual defendant. When the government\npunishes an individual defendant, he or she is theoretically less likely to commit another crime because of fear of\nanother similar or worse punishment. General deterrence applies to the public at large. When the public learns of\nan individual defendant\xe2\x80\x99s punishment, the public is theoretically less likely to commit a crime because of fear of\nthe punishment the defendant experienced. When the public learns, for example, that an individual defendant was\nseverely punished by a sentence of life in prison or the death penalty, this knowledge can inspire a deep fear of\ncriminal prosecution.\n\nIncapacitation\nIncapacitation prevents future crime by removing the defendant from society. Examples of incapacitation are\nincarceration, house arrest, or execution pursuant to the death penalty.\n\nRehabilitation\nRehabilitation prevents future crime by altering a defendant\xe2\x80\x99s behavior. Examples of rehabilitation include\neducational and vocational programs, treatment center placement, and counseling. The court can combine\nrehabilitation with incarceration or with probation or parole. In some states, for example, nonviolent drug\noffenders must participate in rehabilitation in combination with probation, rather than submitting to incarceration\n(Ariz. Rev. Stat., 2010). This lightens the load of jails and prisons while lowering recidivism, which means\nreoffending.\n\n16\n\n\x0c1.5 The Purposes of Punishment 17\n\nRetribution\nRetribution prevents future crime by removing the desire for personal avengement (in the form of assault,\nbattery, and criminal homicide, for example) against the defendant. When victims or society discover that the\ndefendant has been adequately punished for a crime, they achieve a certain satisfaction that our criminal procedure\nis working effectively, which enhances faith in law enforcement and our government.\n\nRestitution\nRestitution prevents future crime by punishing the defendant financially. Restitution is when the court orders the\ncriminal defendant to pay the victim for any harm and resembles a civil litigation damages award. Restitution can\nbe for physical injuries, loss of property or money, and rarely, emotional distress. It can also be a fine that covers\nsome of the costs of the criminal prosecution and punishment.\nFigure 1.4 Different Punishments and Their Purpose\n\nKey Takeaways\n\xe2\x80\xa2\n\xe2\x80\xa2\n\nSpecific deterrence prevents crime by frightening an individual defendant with punishment. General\ndeterrence prevents crime by frightening the public with the punishment of an individual defendant.\nIncapacitation prevents crime by removing a defendant from society.\n\n\x0c18 Criminal Law\n\n\xe2\x80\xa2\n\nRehabilitation prevents crime by altering a defendant\xe2\x80\x99s behavior.\n\n\xe2\x80\xa2\n\nRetribution prevents crime by giving victims or society a feeling of avengement.\n\n\xe2\x80\xa2\n\nRestitution prevents crime by punishing the defendant financially.\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n2.\n\nWhat is one difference between criminal victims\xe2\x80\x99 restitution and civil damages?\nRead Campbell v. State, 5 S.W.3d 693 (1999). Why did the defendant in this case claim that the restitution\naward was too high? Did the Texas Court of Criminal Appeals agree with the defendant\xe2\x80\x99s claim? The case is\navailable at this link: http://scholar.google.com/\nscholar_case?case=11316909200521760089&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\nReferences\nAriz. Rev. Stat. \xc2\xa713-901.01, accessed February 15, 2010, http://law.justia.com/arizona/codes/title13/\n00901-01.html.\n\n\x0c1.6 Sources of Law\n\nLearning Objectives\n1.\n\nIdentify the three sources of law.\n\n2.\n\nRank the three sources of law, from highest to lowest.\n\n3.\n\nAscertain the purpose of the US and state constitutions.\n\n4.\n\nAscertain one purpose of statutory law.\n\n5.\n\nAscertain the purpose of case law.\n\n6.\n\nDefine judicial review.\n\n7.\n\nDiagram and explain the components of a case brief.\n\nLaw comes from three places, which are referred to as the sources of law.\n\nConstitutional Law\nThe first source of law is constitutional law. Two constitutions are applicable in every state: the federal or US\nConstitution, which is in force throughout the United States of America, and the state\xe2\x80\x99s constitution. The US\nConstitution created our legal system, as is discussed in Chapter 2 \xe2\x80\x9cThe Legal System in the United States\xe2\x80\x9d.\nStates\xe2\x80\x99 constitutions typically focus on issues of local concern.\nThe purpose of federal and state constitutions is to regulate government action. Private individuals are protected\nby the Constitution, but they do not have to follow it themselves.\n\nExample of Government and Private Action\nCora stands on a public sidewalk and criticizes President Obama\xe2\x80\x99s health-care plan. Although other individuals\nmay be annoyed by Cora\xe2\x80\x99s words, the government cannot arrest or criminally prosecute Cora for her speech\nbecause the First Amendment of the US Constitution guarantees each individual the right to speak freely. On the\nother hand, if Cora walks into a Macy\xe2\x80\x99s department store and criticizes the owner of Macy\xe2\x80\x99s, Macy\xe2\x80\x99s could eject\nCora immediately. Macy\xe2\x80\x99s and its personnel are private, not government, and they do not have to abide by the\nConstitution.\n\n19\n\n\x0c20 Criminal Law\n\nExceptions to the Constitution\nThe federal and state constitutions are both written with words that can be subject to more than one interpretation.\nThus there are many exceptions to any constitution\xe2\x80\x99s protections. Constitutional protections and exceptions are\ndiscussed in detail in Chapter 3 \xe2\x80\x9cConstitutional Protections\xe2\x80\x9d.\nFor safety and security reasons, we see more exceptions to constitutional protections in public schools and\nprisons. For example, public schools and prisons can mandate a certain style of dress for the purpose of ensuring\nsafety. Technically, forcing an individual to dress a specific way could violate the right to self-expression, which\nthe First Amendment guarantees. However, if wearing a uniform can lower gang-related conflicts in school and\nprevent prisoners from successfully escaping, the government can constitutionally suppress free speech in these\nlocations.\n\nSuperiority of the Constitution\nOf the three sources of law, constitutional law is considered the highest and should not be supplanted by either\nof the other two sources of law. Pursuant to principles of federal supremacy, the federal or US Constitution is\nthe most preeminent source of law, and state constitutions cannot supersede it. Federal constitutional protections\nand federal supremacy are discussed in Chapter 2 \xe2\x80\x9cThe Legal System in the United States\xe2\x80\x9d and Chapter 3\n\xe2\x80\x9cConstitutional Protections\xe2\x80\x9d.\n\nStatutory Law\nThe second source of law is statutory law. While the Constitution applies to government action, statutes apply\nto and regulate individual or private action. A statute is a written (and published) law that can be enacted in\none of two ways. Most statutes are written and voted into law by the legislative branch of government. This is\nsimply a group of individuals elected for this purpose. The US legislative branch is called Congress, and Congress\nvotes federal statutes into law. Every state has a legislative branch as well, called a state legislature, and a state\nlegislature votes state statutes into law. Often, states codify their criminal statutes into a penal code.\nState citizens can also vote state statutes into law. Although a state legislature adopts most state statutes, citizens\nvoting on a ballot can enact some very important statutes. For example, a majority of California\xe2\x80\x99s citizens voted\nto enact California\xe2\x80\x99s medicinal marijuana law (California Compassionate Use Act of 1996, 2010). California\xe2\x80\x99s\nthree-strikes law was voted into law by both the state legislature and California\xe2\x80\x99s citizens and actually appears in\nthe California Penal Code in two separate places (Brown, B., and Jolivette, G., 2010).\n\nStatutory Law\xe2\x80\x99s Inferiority\nStatutory law is inferior to constitutional law, which means that a statute cannot conflict with or attempt to\nsupersede constitutional rights. If a conflict exists between constitutional and statutory law, the courts must resolve\n\n\x0c1.6 Sources of Law 21\n\nthe conflict. Courts can invalidate unconstitutional statutes pursuant to their power of judicial review, which is\ndiscussed in an upcoming section.\n\nAdministrative Laws and Ordinances\nOther written and published laws that apply to individuals are administrative laws and ordinances.\nAdministrative laws and ordinances should not supersede or conflict with statutory law.\nAdministrative laws are enacted by administrative agencies, which are governmental agencies designed to\nregulate in specific areas. Administrative agencies can be federal or state and contain not only a legislative branch\nbut also an executive (enforcement) branch and judicial (court) branch. The Food and Drug Administration (FDA)\nis an example of a federal administrative agency. The FDA regulates any food products or drugs produced and\nmarketed in the United States.\nOrdinances are similar to statutes, except that cities and counties vote them into law, rather than a state\xe2\x80\x99s\nlegislature or a state\xe2\x80\x99s citizens. Ordinances usually relate to health, safety, or welfare, and violations of them are\ntypically classified as infractions or misdemeanors, rather than felonies. A written law prohibiting jaywalking\nwithin a city\xe2\x80\x99s or county\xe2\x80\x99s limits is an example of an ordinance.\n\nModel Penal Code\nState criminal laws differ significantly, so in the early 1960s a group of legal scholars, lawyers, and judges who\nwere members of the American Law Institute drafted a set of suggested criminal statutes called the Model Penal\nCode. The intent of the Model Penal Code was to provide a standardized set of criminal statutes that all states\ncould adopt, thus simplifying the diversity effect of the United States\xe2\x80\x99 legal system. While the Model Penal Code\nhas not been universally adopted, a majority of the states have incorporated portions of it into their penal codes,\nand the Model Penal Code survives as a guideline and focal point for discussion when state legislatures modify\ntheir criminal statutes.\n\nCase Law\nThe third source of law is case law. When judges rule on the facts of a particular case, they create case law.\nFederal case law comes from federal courts, and state case law comes from state courts. Case law has its origins\nin English common law.\n\nEnglish Common Law\nIn Old England, before the settlement of the United States, case law was the most prevalent source of law. This\nwas in contrast to countries that followed the Roman Law system, which primarily relied on written codes of\nconduct enacted by legislature. Case law in England was mired in tradition and local customs. Societal principles\n\n\x0c22 Criminal Law\n\nof law and equity were the guidelines when courts issued their rulings. In an effort to be consistent, English judges\nmade it a policy to follow previous judicial decisions, thereby creating a uniform system of laws throughout\nthe country for the first time. Case law was named common law because it was common to the entire nation\n(Duhaime, L., 2010).\nThe English system of jurisprudence made its way to the United States with the original colonists. Initially, the\nthirteen colonies unanimously adopted common law as the law of the land. All crimes were common-law crimes,\nand cases determined criminal elements, defenses, and punishment schemes. Gradually, after the Revolutionary\nWar, hostility toward England and modern reform led to the erosion of common-law crimes and a movement\ntoward codification. States began replacing common-law crimes with statutes enacted by state legislatures. Oxford\nprofessor Sir William Blackstone\xe2\x80\x99s Commentaries on the Law of England, which interpreted and summarized\nEnglish common law, became an essential reference as the nation began the process of converting common-law\nprinciples into written statutes, ordinances, and penal codes (Duhaime, L., 2010).\n\nLimitations on Common-Law Crimes\nIn modern society, in many states and the federal government (United States v. Hudson & Goodwin, 2010), judges\ncannot create crimes. This violates notions of fairness. Making up a new crime and punishing the defendant for\nit does not provide consistency or predictability to our legal system. It also violates the principle of legality, a\ncore concept of American criminal justice embodied in this phrase: \xe2\x80\x9cNullum crimen sine lege, nulla poena sine\ncrimen\xe2\x80\x9d (No crime without law, no punishment without crime).\nIn states that do not allow common-law crimes, statutes must define criminal conduct. If no statute exists\nto criminalize the defendant\xe2\x80\x99s behavior, the defendant cannot be criminally prosecuted, even if the behavior is\nabhorrent. As the Model Penal Code states, \xe2\x80\x9c[n]o conduct constitutes an offense unless it is a crime or violation\nunder this Code or another statute of this State\xe2\x80\x9d (Model Penal Code \xc2\xa7 1.05(1)).\nThe common law still plays an important role in criminal lawmaking, even though most crimes are now\nembodied in statutes. Classification of crimes as felonies and misdemeanors is a reflection of English common\nlaw. Legislatures often create statutes out of former common-law crimes. Judges look to the common law when\ndefining statutory terms, establishing criminal procedure, and creating defenses to crimes. The United States is\nconsidered a common-law country. Every state except Louisiana, which is based on the French Civil Code, adopts\nthe common law as the law of the state except where a statute provides otherwise (Legal Definition, 2010).\n\nExample of a Court\xe2\x80\x99s Refusal to Create a Common-Law Crime\nRead Keeler v. Superior Court, 470 P.2d 617 (1970). In Keeler, the defendant attacked his pregnant ex-wife, and\nher baby was thereafter stillborn. The California Supreme Court disallowed a murder charge against Keeler under\nCalifornia Penal Code \xc2\xa7 187 because the statute criminalized only the malicious killing of a \xe2\x80\x9chuman being.\xe2\x80\x9d The\ncourt reached its decision after examining the common-law definition of human being and determining that the\ndefinition did not include a fetus. The court reasoned that it could not create a new crime without violating the\ndue process clause, separation of powers, and California Penal Code \xc2\xa7 6, which prohibits the creation of commonlaw crimes. After the Keeler decision, the California Legislature changed Penal Code \xc2\xa7 187 to include a fetus,\nexcepting abortion (Cal. Penal Code, 2010).\n\n\x0c1.6 Sources of Law 23\n\nPowerful Nature of Case Law\nGenerally, if there is a statute on an issue, the statute is superior to case law, just as the Constitution is superior\nto statutory law. However, judges interpret constitutional and statutory law, making case law a powerful source\nof law. A judge can interpret a constitution in a way that adds or creates exceptions to its protections. A judge\ncan also interpret a statute in a way that makes it unconstitutional and unenforceable. This is called the power of\njudicial review (Marbury v. Madison, 2010).\n\nExample of Judicial Review\nAn example of judicial review is set forth in Texas v. Johnson, 491 U.S. 397 (1989). In Johnson, the US Supreme\nCourt ruled that burning a flag is protected self-expression under the First Amendment to the US Constitution.\nThus the Court reversed the defendant\xe2\x80\x99s conviction under a Texas statute that criminalized the desecration of a\nvenerated object. Note how Johnson not only invalidates a state statute as being inferior to the US Constitution\nbut also changes the US Constitution by adding flag burning to the First Amendment\xe2\x80\x99s protection of speech.\nFigure 1.5 Diagram and Hierarchy of the Sources of Law\n\n\x0c24 Criminal Law\n\nStare Decisis and Precedent\nCases are diverse, and case law is not really law until the judge rules on the case, so there must be a way to\nensure case law\xe2\x80\x99s predictability. It would not be fair to punish someone for conduct that is not yet illegal. Thus\njudges adhere to a policy called stare decisis. Stare decisis is derived from English common law and compels\njudges to follow rulings in previous cases. A previous case is called precedent. Once judges have issued a ruling\non a particular case, the public can be assured that the resulting precedent will continue to be followed by other\njudges. Stare decisis is not absolute; judges can deviate from it to update the law to conform to society\xe2\x80\x99s modern\nexpectations.\n\nRules of Stare Decisis and Use of Precedent\nCase precedent is generally an appeal rather than a trial. There is often more than one level of appeal, so some\nappeals come from higher courts than others. This book discusses the court system, including the appellate courts,\nin Chapter 2 \xe2\x80\x9cThe Legal System in the United States\xe2\x80\x9d.\nMany complex rules govern the use of precedent. Lawyers primarily use precedent in their arguments, rather\nthan statutes or the Constitution, because it is so specific. With proper research, lawyers can usually find\nprecedent that matches or comes very close to matching the facts of any particular case. In the most general sense,\njudges tend to follow precedent that is newer, from a high court, and from the same court system, either federal or\nstate.\n\nExample of Stare Decisis and Use of Precedent\nGeoffrey is a defense attorney for Conrad, who is on trial for first-degree murder. The murder prosecution is taking\nplace in New Mexico. Geoffrey finds case precedent from a New York Court of Appeals, dated 1999, indicating\nthat Conrad should have been prosecuted for voluntary manslaughter, not first-degree murder. Brandon, the\nprosecuting attorney, finds case precedent from the New Mexico Supreme Court, dated 2008, indicating that a\nfirst-degree murder prosecution is appropriate. The trial court will probably follow the precedent submitted by\nBrandon because it is newer, from a higher court, and from the same court system as the trial.\n\nCase Citation\nCases must be published to become case law. A published case is also called a judicial opinion. This book\nexposes you to many judicial opinions that you have the option of reading on the Internet. It is essential to\nunderstand the meaning of the case citation. The case citation is the series of numbers and letters after the title\nof the case and it denotes the case\xe2\x80\x99s published location. For example, let\xe2\x80\x99s analyze the case citation for Keeler v.\nSuperior Court, 470 P.2d 617 (1970).\nFigure 1.6 Keeler Case Citation\n\n\x0c1.6 Sources of Law 25\n\nAs you can see from the diagram, the number 470 is the volume number of the book that published the Keeler\ncase. The name of that book is \xe2\x80\x9cP.2d\xe2\x80\x9d (this is an abbreviation for Pacific Reports, 2d Series). The number 617 is\nthe page number of the Keeler case. The date (1970) is the date the California Supreme Court ruled on the case.\n\nCase Briefing\nIt is useful to condense judicial opinions into case brief format. The Keeler case brief is shown in Figure 1.7\n\xe2\x80\x9cKeeler Case Brief\xe2\x80\x9d.\nFigure 1.7 Keeler Case Brief\n\n\x0c26 Criminal Law\n\nRead\nthis\ncase\nat\nthe\nfollowing\nlink:\nhttp://scholar.google.com/\nscholar_case?case=2140632244672927312&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\nPublished judicial opinions are written by judges and can be lengthy. They can also contain more than one case\nlaw, depending on the number of issues addressed. Case briefs reduce a judicial opinion to its essentials and can\nbe instrumental in understanding the most important aspects of the case. Standard case brief formats can differ,\nbut one format that attorneys and paralegals commonly use is explained in the following paragraph.\nReview the Keeler case brief. The case brief should begin with the title of the case, including the citation. The\nnext component of the case brief should be the procedural facts. The procedural facts should include two pieces\nof information: who is appealing and which court the case is in. As you can see from the Keeler case brief, Keeler\nbrought an application for a writ of prohibition, and the court is the California Supreme Court. Following the\nprocedural facts are the substantive facts, which should be a short description of the facts that instigated the court\ntrial and appeal. The procedural and substantive facts are followed by the issue. The issue is the question the court\nis examining, which is usually the grounds for appeal. The case brief should phrase the issue as a question. Cases\nusually have more than one issue. The case brief can state all the issues or only the issue that is most important.\nThe substantive holding comes after the issue, is actually the case law, and answers the issue question. If more\nthan one issue is presented in the case brief, a substantive holding should address each issue.\nFigure 1.8 Example of a Substantive Holding\n\n\x0c1.6 Sources of Law 27\n\nMarbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), http://www.law.cornell.edu/supct/html/historics/\nUSSC_CR_0005_0137_ZS.html.\nA procedural holding should follow the substantive holding. The procedural holding discusses what the court\ndid procedurally with the case. This could include reversing the lower court\xe2\x80\x99s ruling, affirming the lower court\xe2\x80\x99s\nruling, or adjusting a sentence issued by the lower court. This book discusses court procedure in detail in Chapter\n2 \xe2\x80\x9cThe Legal System in the United States\xe2\x80\x9d. Last, but still vital to the case brief, is the rationale. The rationale\ndiscusses the reasoning of the judges when ruling on the case. Rationales can set policy, which is not technically\ncase law but can still be used as precedent in certain instances.\nOne judge writes the judicial opinion. Judges vote how to rule, and not all cases are supported by a unanimous\nruling. Occasionally, other judges will want to add to the judicial opinion. If a judge agrees with the judicial\nopinion, the judge could write a concurring opinion, which explains why the judge agrees. If a judge disagrees\nwith the judicial opinion, the judge could write a dissenting opinion explaining why the judge disagrees. The\ndissenting opinion will not change the judicial opinion, but it may also be used as precedent in a future case if\nthere are grounds for changing the law.\n\nKey Takeaways\n\xe2\x80\xa2\n\xe2\x80\xa2\n\nThe three sources of law are constitutional, statutory, and case law.\nThe sources of law are ranked as follows: first, constitutional; second, statutory; and third, case law.\nAlthough it is technically ranked the lowest, judicial review makes case law an extremely powerful source\nof law.\n\n\xe2\x80\xa2\n\nThe purpose of the US and state constitutions is to regulate government action.\n\n\xe2\x80\xa2\n\nOne purpose of statutory law is to regulate individual or private action.\n\n\xe2\x80\xa2\n\xe2\x80\xa2\n\nThe purpose of case law is to supplement the law when there is no statute on point and also to interpret\nstatutes and the constitution(s).\nThe court\xe2\x80\x99s power to invalidate statutes as unconstitutional is called judicial review.\n\n\x0c28 Criminal Law\n\n\xe2\x80\xa2\n\nThe components of a case brief are the following:\n\xe2\x97\xa6\n\xe2\x97\xa6\n\nThe title, plus citation. The citation indicates where to find the case.\nThe procedural facts of the case. The procedural facts discuss who is appealing and in which\ncourt the case is located.\n\n\xe2\x97\xa6\n\nThe substantive facts. The substantive facts discuss what happened to instigate the case.\n\n\xe2\x97\xa6\n\nThe issue. The issue is the question the court is examining.\n\n\xe2\x97\xa6\n\nThe substantive holding. The substantive holding answers the issue question and is the case\nlaw.\n\n\xe2\x97\xa6\n\nThe procedural holding. The procedural holding discusses what the court did procedurally\nwith the case.\n\n\xe2\x97\xa6\n\nThe rationale. The rationale is the reason the court held the way it did.\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nHal invents a new drug that creates a state of euphoria when ingested. Can Hal be criminally prosecuted\nfor ingesting his new drug?\n\n2.\n\nRead Shaw v. Murphy, 532 U.S. 223 (2001). Did the US Supreme Court allow prison inmates the First\nAmendment right to give other inmates legal advice? Why or why not? The case is available at this link:\nhttp://scholar.google.com/\nscholar_case?case=9536800826824133166&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\n3.\n\nRead Justice Scalia\xe2\x80\x99s dissenting opinion in Lawrence v. Texas, 539 U.S. 558 (2003). What is the primary\nreason Justice Scalia dissented to the US Supreme Court\xe2\x80\x99s opinion in Lawrence? The dissenting opinion is\navailable at this link: http://www.law.cornell.edu/supct/html/02-102.ZD.html. The judicial opinion in\nLawrence v. Texas is available at this link: http://www.law.cornell.edu/supct/html/02-102.ZS.html.\n\nReferences\nBrown, B., and Jolivette, G., \xe2\x80\x9cA Primer: Three Strikes\xe2\x80\x94The Impact after More Than a Decade,\xe2\x80\x9d Legislative\nAnalyst\xe2\x80\x99s Office website, accessed February 15, 2010, http://www.lao.ca.gov/2005/3_strikes/\n3_strikes_102005.htm.\nCal. Penal Code \xc2\xa7 187, accessed August 23, 2010, http://codes.lp.findlaw.com/cacode/PEN/3/1/8/1/s187.\nCalifornia Compassionate Use Act of 1996, Cal. Health and Safety Code \xc2\xa7 11362.5, accessed February 15,\n2010, http://www.cdph.ca.gov/programs/mmp/Pages/Medical%20Marijuana%20Program.aspx.\nDuhaime, L., \xe2\x80\x9cCommon Law Definition,\xe2\x80\x9d Duhaime.org website, accessed September 26, 2010,\nhttp://www.duhaime.org/LegalDictionary/C/CommonLaw.aspx.\nLegal Definition, \xe2\x80\x9cCommon Law,\xe2\x80\x9d Lectlaw.com website, accessed September 26, 2010,\nhttp://www.lectlaw.com/def/c070.htm.\n\n\x0c1.6 Sources of Law 29\n\nMarbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), accessed February 15, 2010, http://www.law.cornell.edu/\nsupct/html/historics/USSC_CR_0005_0137_ZS.html.\nUnited States v. Hudson & Goodwin, 11 U.S. 32 (1812), accessed September 24, 2010, http://openjurist.org/11/\nus/32/the-united-states-v-hudson-and-goodwin.\n\n\x0c1.7 End-of-Chapter Material\n\nSummary\nA crime is action or inaction in violation of a criminal law. Criminal laws vary from state to state and from state to\nfederal.\nThe study of criminal law defines crimes and defenses to crimes. The study of criminal procedure focuses on the\nenforcement of rights by individuals while submitting to government investigation, arrest, interrogation, trial, and\nappeal.\nA civil lawsuit or civil litigation matter resolves a dispute between individuals, called a plaintiff (the injured party)\nand defendant (the alleged wrongdoer). Every civil litigation matter includes a victim (the plaintiff), which has suffered\nharm. The goal of the civil litigation matter is to compensate the plaintiff for injury. The court can compensate the\nplaintiff by awarding money, which is called damages. Both parties in a civil litigation matter must represent themselves\nor hire private attorneys.\nA criminal prosecution takes place when the government, represented by a prosecutor, takes legal action against the\ndefendant (the alleged wrongdoer) for committing a crime. Some criminal prosecutions do not include a victim, or\nharm, because the goal of the criminal prosecution is punishment, not compensation. Every criminal prosecution\ninvolves the government, so the US and state constitutions provide the criminal defendant with extra protections not\npresent in a civil lawsuit, such as free counsel when the defendant is indigent and facing incarceration.\nCrimes can be classified according to the severity of punishment. The most serious crimes with the entire range of\nsentencing options available are felonies. Misdemeanors are less serious than felonies and have less severe sentencing\noptions. Felony-misdemeanors can be prosecuted and punished as a felony or a misdemeanor, depending on the\ncircumstances. Infractions, also called violations, are the least serious crimes and generally do not involve incarceration.\nThe purposes of punishing a criminal defendant are both specific and general deterrence, incapacitation, rehabilitation,\nretribution, and restitution.\nLaw comes from three sources: the Constitution, a statute, or a case. The Constitution is the highest source of law but\nis only applicable when there is government action. Statutory law applies to individuals but is inferior to constitutional\nlaw. Case law is law made by judges when they rule on the facts of a case. Although case law is technically inferior to\nstatutory law, judges must interpret statutes and the Constitution, so case law can be the most powerful source of law.\nWhen a case invalidates a statute as unconstitutional, this action is called judicial review. Case law stays consistent\nbecause judges follow previous court decisions, called precedent. This policy, called stare decisis, lends predictability to\ncase law but is not absolute, and courts can deviate from it to update the law.\n\nYou Be the Lawyer\nRead the prompt, review the case, and then decide whether you would accept or reject the case if you were the\nlawyer. Check your answers using the answer key at the end of the chapter.\n1.\n\nYou are an expert in criminal law, not civil litigation. Would you accept or reject this case? Read\nCetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004). The case is available at this link:\nhttp://scholar.google.com/\nscholar_case?case=14748284771413043760&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\n30\n\n\x0c1.7 End-of-Chapter Material 31\n\n2.\n\nYou are an expert in criminal law, not criminal procedure. Would you accept or reject this case? Read\nPeople v. Wrotten, 2010 N.Y. Slip Op 04501 (2010). The case is available at this link: http://law.justia.com/\ncases/new-york/appellate-division-first-department/2010/2010-04501.html\n\n3.\n\nYou are an expert in constitutional law. Would you accept or reject this case? Read Wilson v. Layne, 526\nU.S. 603 (1999). The case is available at this link: http://www.law.cornell.edu/supct/html/98-83.ZS.html.\n\n4.\n\nReread question 3. Change your expertise to constitutional law as it applies to criminal prosecutions.\nWould you accept or reject the Wilson case?\n\nCases of Interest\n\xe2\x80\xa2\n\nPadilla v. Gonzales, 397 F.3d 1016 (2005), discusses malum in se and malum prohibitum crimes:\nhttp://scholar.google.com/scholar_case?case=5187582705718052419&q= malum+in+se+\nmalum+in+prohibitum&hl=en&as_sdt=2,5&as_ylo=2004&as_vis=1.\n\n\xe2\x80\xa2\n\nRogers v. Tennessee, 532 U.S. 451 (2001), discusses a state\xe2\x80\x99s ability to create a common-law crime:\nhttp://www.law.cornell.edu/supct/html/99-6218.ZS.html.\n\n\xe2\x80\xa2\n\nRoe v. Wade, 410 U.S. 113 (1973), is the case in which the US Supreme Court invalidates a state statute\ncriminalizing abortion: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0410_0113_ZO.html.\n\nArticles of Interest\n\xe2\x80\xa2\n\nModel Penal Code: http://legal-dictionary.thefreedictionary.com/Model+Penal+Code\n\n\xe2\x80\xa2\n\nStare decisis: http://civilliberty.about.com/od/historyprofiles/g/stare_decisis.htm\n\nWebsites of Interest\n\xe2\x80\xa2\n\nFederal criminal statutes: http://www.law.cornell.edu/uscode/18\n\n\xe2\x80\xa2\n\nState criminal statutes: http://www.legallawhelp.com/state_law/\n\n\xe2\x80\xa2\n\nGovernment agencies in alphabetical order: https://www.usa.gov/federal-agencies/a\n\n\xe2\x80\xa2\n\nComplete federal Constitution: http://topics.law.cornell.edu/constitution\n\n\xe2\x80\xa2\n\nState constitutions: http://www.thegreenpapers.com/slg/links.phtml\n\nStatistics of Interest\n\xe2\x80\xa2\n\nState prosecutors in the United States: http://bjs.ojp.usdoj.gov/index.cfm?ty=pbse&sid=9\n\n\x0c32 Criminal Law\n\n\xe2\x80\xa2\n\xe2\x80\xa2\n\nFelony convictions in the US state courts: http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=2152\nEstimated crime statistics in the United States: http://www.ucrdatatool.gov/Search/Crime/State/\nRunCrimeStatebyState.cfm\n\nAnswer to Exercise\nFrom Section 1.1 \xe2\x80\x9cIntroduction\xe2\x80\x9d\n1.\n\nThe US Supreme Court held that the attorney general cannot criminalize the use of drugs under Oregon\xe2\x80\x99s\nDeath With Dignity Act by enforcing the Controlled Substances Act. The Controlled Substances Act is\ntargeted at preventing recreational drug use, and, therefore, the Court upheld Oregon\xe2\x80\x99s ability to legalize\nassisted suicide.\n\nAnswers to Exercises\nFrom Section 1.2 \xe2\x80\x9cCriminal Law and Criminal Procedure\xe2\x80\x9d\n1.\n\nThis is an issue of criminal law. Although Paul is a law enforcement officer, when he shoots Barney\nwhile he is facedown in handcuffs, he may be committing a crime. The question in this case is not whether\nthe arrest was executed properly, but whether a crime was committed after the arrest.\n\n2.\n\nPayton reviews a New York statute allowing law enforcement to arrest a defendant in the home without a\nwarrant. This case focuses on law enforcement arrest, so it examines an issue of criminal procedure.\n\nAnswers to Exercises\nFrom Section 1.3 \xe2\x80\x9cThe Difference between Civil and Criminal Law\xe2\x80\x9d\n1.\n\nThis is a civil litigation matter. Although the incident involves Jerry, who is a law enforcement officer,\nand it takes place while Jerry is writing a traffic ticket, Jerry is suing Juanita for damages. Thus this is civil\nlitigation, not criminal prosecution. If Juanita is prosecuted for the crime of filing a false police report, then\nthis would be a criminal prosecution.\n\n2.\n\nThe Johnson case reviews an award of damages and is thus a civil litigation matter. Criminal conversation\nis the tort of adultery in North Carolina.\n\nAnswers to Exercises\nFrom Section 1.4 \xe2\x80\x9cClassification of Crimes\xe2\x80\x9d\n\n\x0c1.7 End-of-Chapter Material 33\n\n1.\n\nThis crime is probably a misdemeanor because Harrison was sentenced to one year in jail, rather than\nprison. Although the result, Calista\xe2\x80\x99s death, is very serious, the method of killing may have been accidental.\nCriminal homicide is discussed in Chapter 9 \xe2\x80\x9cCriminal Homicide\xe2\x80\x9d.\n\n2.\n\nThe Iowa Court of Appeals based its ruling on New Jersey law. Although New Jersey named the offenses\n\xe2\x80\x9chigh misdemeanors,\xe2\x80\x9d New Jersey case law indicates that any offense with a sentence of one year or more\nincarceration is a common-law felony. This triggered a sentencing enhancement increasing the defendant\xe2\x80\x99s\nsentence to an indeterminate sentence of incarceration not to exceed fifteen years.\n\nAnswers to Exercises\nFrom Section 1.5 \xe2\x80\x9cThe Purposes of Punishment\xe2\x80\x9d\n1.\n\nThe court awards criminal restitution to the victim after a state or federal prosecutor is successful in a\ncriminal trial. Thus the victim receives the restitution award without paying for a private attorney. A plaintiff\nthat receives damages has to pay a private attorney to win the civil litigation matter.\n\n2.\n\nIn Campbell, the defendant entered a plea agreement specifying that he had committed theft in an amount\nunder $100,000. The trial court determined that the defendant had actually stolen $100,000 and awarded\nrestitution of $100,000 to various victims. The defendant claimed that this amount was excessive because it\nexceeded the parameters of the theft statute he was convicted of violating. The Texas Court of Criminal\nAppeals disagreed and held that the discretion of how much restitution to award belongs to the judge. As\nlong as the judge properly ascertained this amount based on the facts, restitution could exceed the amount\nspecified in the criminal statute the defendant was convicted of violating.\n\nAnswers to Exercises\nFrom Section 1.6 \xe2\x80\x9cSources of Law\xe2\x80\x9d\n1.\n\nHal can be prosecuted for ingesting his new drug only if he is in a state that allows for common-law\ncrimes. The drug is new, so the state legislature will probably not have criminalized it by enacting a statute.\n\n2.\n\nThe US Supreme Court held that inmates do not have the First Amendment right to give other inmates\nlegal advice. The Court based its ruling on the prison\xe2\x80\x99s interest in ensuring prison order, security, and inmate\nrehabilitation. The Court stated, \xe2\x80\x9cWe nonetheless have maintained that the constitutional rights that\nprisoners possess are more limited in scope than the constitutional rights held by individuals in society at\nlarge\xe2\x80\x9d (Shaw v. Murphy, 2010).\n\n3.\n\nJustice Scalia criticized the US Supreme Court majority for not adhering to stare decisis. According to\nJustice Scalia, the Court did not follow a recent (seventeen-year-old) precedent set in Bowers v. Hardwick.\n\nAnswers to Law and Ethics Questions\n1.\n\nThe reason criminal defendants get special protections not extended to civil litigation defendants is the\n\n\x0c34 Criminal Law\n\nharshness of the punishment and the inequality of the criminal prosecution itself. Criminal defendants may\nlose their life or their liberty. Civil litigation defendants risk only a loss of money. In addition, criminal\ndefendants face the intimidating prospect of fighting the government and all its vast resources. Civil\nlitigation defendants are squaring off against another individual. As a society, we believe that there is\nnothing as unjust as punishing an innocent person. Thus we give criminal defendants special protections to\nlevel the playing field.\n2.\n\nThe criminal trial took place first because O. J. Simpson was a criminal defendant and therefore had the\nbenefit of the Sixth Amendment right to a speedy trial. Constitutional protections are discussed in Chapter 3\n\xe2\x80\x9cConstitutional Protections\xe2\x80\x9d.\n\nAnswers to You Be the Lawyer\n1.\n\nIn this case, the plaintiffs are seeking an injunction. The plaintiffs are not the government; they are a\ngroup of fish. They are not suing for the goal of punishment, but rather to compel the president of the United\nStates and the secretary of defense to review the use of certain naval equipment. Thus this is a civil litigation\nmatter and you should reject the case.\n\n2.\n\nThe Court is reviewing the Sixth Amendment right to confront accusers. In this case, a witness who was\ntoo ill to travel was permitted to testify via live, two-way video instead of testifying in the courtroom in\nfront of the defendant. The New York Supreme Court held that under the circumstances, this testimony\ncomplied with the Sixth Amendment. This case focuses on the defendant\xe2\x80\x99s constitutional rights during his\ncriminal trial, so this is a criminal procedure issue and you should reject the case.\n\n3.\n\nThe US Supreme Court held that it is unconstitutional under the Fourth Amendment when law\nenforcement brings media along while executing a search. Thus this is a federal constitutional issue and you\nshould accept the case.\n\n4.\n\nIn Wilson, the Court decided that the plaintiff was not entitled to damages when suing law enforcement\nunder 42 U.S.C. \xc2\xa7 1983. Thus although this case involves the Fourth Amendment, it is essentially a civil\nlitigation matter, and you should reject the case.\n\nReferences\nShaw v. Murphy, 532 U.S. 223, 229 (2001), accessed October 4, 2010, http://scholar.google.com/\nscholar_case?case=9536800826824133166&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\n\x0cChapter 2: The Legal System in the United States\n\nBrent Moore \xe2\x80\x93 Gordon County Courthouse \xe2\x80\x93 Calhoun, GA \xe2\x80\x93 CC BY-NC 2.0.\n\nThe requirement of proof beyond a reasonable doubt has this vital role in our criminal procedure for cogent\nreasons. The accused, during a criminal prosecution, has at stake interests of immense importance, both because\nof the possibility that he may lose his liberty upon conviction and because of the certainty that he would be\nstigmatized by the conviction.\n\xe2\x80\x94In re: Winship, cited in Section 2 \xe2\x80\x9cBurden of Proof in a Criminal Prosecution\xe2\x80\x9d\n\n35\n\n\x0c2.1 Federalism\n\nLearning Objectives\n1.\n\nDefine federalism.\n\n2.\n\nAscertain the sections of the Constitution that give Congress regulatory authority.\n\n3.\n\nAscertain the basis for Congress\xe2\x80\x99s authority to enact criminal laws.\n\n4.\n\nCompare federal regulatory authority with state regulatory authority.\n\n5.\n\nCompare federal criminal laws with state criminal laws.\n\n6.\n\nDefine federal supremacy.\n\nThe United States\xe2\x80\x99 system of government is called federalism. Federalism, as set forth in the US Constitution,\ndivides governmental power between the federal government and each of the states. This prevents a concentrated\nsource of governmental power in one individual or small group of individuals. Because of federalism, the United\nStates has one federal legal system, and each state has its own state legal system. Thus in the United States, a\nplethora of legal systems all operate harmoniously at the same time.\n\nThe Scope of Federal Law\nThe government\xe2\x80\x99s power to regulate comes from the US Constitution. The federal government derives its\nauthority to create law from Article I, \xc2\xa7 8, which discusses federal Congress\xe2\x80\x99s exclusive or delegated powers.\nThese include the power to regulate currency and coin, establish a post office, promote science and art by\nregulating the rights to discoveries and writings, declare war and raise armies, conduct foreign affairs, regulate\ninterstate and foreign commerce, and make laws necessary and proper to execute other powers expressly granted\nin the Constitution. Courts have interpreted the last two powers mentioned in the commerce clause and the\nnecessary and proper clause to be the broadest sources of federal regulatory authority.\nTo simplify and summarize precedent defining federal regulatory authority, federal laws are meant to regulate\nin two areas. First, federal laws regulate issues that concern the country, rather than just one city, county, or state.\nThe federal government regulates in the area of foreign affairs, for example, because this affects the United States\nof America, not just one particular region. Second, federal laws regulate commerce, which is economic activity,\nthat crosses from state to state. Some common examples are television broadcasts, the Internet, and any form of\ntransportation such as the airlines.\n\n36\n\n\x0c2.1 Federalism 37\n\nFederal Criminal Laws\nThe original intent was for the federal government to be a limited government, with the bulk of regulatory\nauthority residing in the states. The only crimes Congress is specifically authorized to punish are piracies\nand felonies on the high seas, counterfeiting, and treason; however, case precedent has expanded the federal\ngovernment\xe2\x80\x99s power to enact criminal laws based on the commerce clause and the necessary and proper clause\n(McCulloch v. Maryland, 2010). Still, there must be some connection to an issue of national character and\ninterstate commerce, or the federal government will overstep its authority. In general, federal criminal laws target\nconduct that occurs on federal property or conduct involving federal employees, currency, coin, treason, national\nsecurity, rights secured by the Constitution, or commerce that crosses state lines. Currently, over five hundred\ncrimes are listed in Part I, Title 18 of the United States Code, which codifies criminal laws for the federal\ngovernment.\nFigure 2.1 Diagram of Federal Laws\n\nThe Scope of State Law\nThe US Constitution designates the states as the primary regulatory authority. This is clarified in the Tenth\nAmendment, which reads, \xe2\x80\x9cThe powers not delegated to the United States by the Constitution, nor prohibited to\nit by the States, are reserved to the States respectively, or the people.\xe2\x80\x9d State laws are also supposed to regulate\nin two areas. First, state laws regulate issues of a local character or concern. A state may regulate, for example,\n\n\x0c38 Criminal Law\n\nits water ownership and use because water can be scarce and is not generally provided to other states. Second,\nstate laws regulate issues or things that remain within a state\xe2\x80\x99s border. A state generally regulates, for example,\nthe operation of a small business whose products are only sold locally and not shipped out of the state.\nFederal laws are the same in every state, but state laws differ from state to state. Something that is legal in one\nstate may be illegal in another state. This inconsistency makes our system of federalism complicated for students\n(and lawyers). However, with a country as large and varied as the United States, it is sensible to allow each state\nto choose for itself which laws will be most suitable.\n\nState Criminal Laws\nThe power to enact criminal laws belongs almost exclusively to the states. This is because of the Tenth\nAmendment, which vests in states a police power to provide for the health, safety, and welfare of state citizens.\nApproximately 90 percent of all criminal laws are state, rather than federal. Often, federal crimes are also state\ncrimes and can be prosecuted and punished by both the state and federal government without violating the\nprinciple of double jeopardy.\n\nExample of the Diversity of State Laws\nIn Nevada, prostitution is legal under certain circumstances (N.R.S., 2010). An individual who engages in\nprostitution inside a licensed \xe2\x80\x9chouse of prostitution\xe2\x80\x9d in Nevada is not exposed to criminal liability. However, if\nthe same individual engages in prostitution in a different state, he or she may be subject to a criminal prosecution.\nProstitution will be discussed in detail in Chapter 12 \xe2\x80\x9cCrimes against the Public\xe2\x80\x9d.\nFigure 2.2 Crack the Code\n\n\x0c2.1 Federalism 39\n\nFederal Supremacy\nOur legal system is divided up to conform to the principle of federalism, so a potential exists for conflict between\nfederal law and state law. A federal law may make something illegal; a state law may insist that it is legal.\nWhenever a conflict occurs between federal and state law, courts must follow the federal law. This is called\nfederal supremacy. As the Supremacy Clause of Article VI of the federal Constitution states, \xe2\x80\x9cThis Constitution,\nand the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall\nbe made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every\nState shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.\xe2\x80\x9d\n\nExample of Federal Supremacy\nIn Washington and several other states, an individual may possess and use marijuana for medicinal purposes\nwith a prescription (Washington State Medicinal Marijuana Act, 2010; ProCon.org, 2010). Federal law prohibits\npossession and use of marijuana under any circumstances (21 U.S.C., 2010). Technically, this could be a\nconflict that violates federal supremacy. Until the courts address the federal supremacy issue, however, medical\nmarijuana statutes can continue to stay in effect. Read about a recent ruling regarding the constitutionality of\nMichigan\xe2\x80\x99s medicinal marijuana law under the Supremacy Clause: http://www.pressandguide.com/articles/2011/\n04/09/news/doc4d9f557b8ab37805648033.txt.\nFigure 2.3 Diagram of State Laws\n\n\x0c40 Criminal Law\n\nLaw and Ethics: The Arizona Immigration Law\nCan a State Regulate Immigration?\nArizona passed a comprehensive immigration law designed to seek out and deport illegal immigrants. This law\ncreated a national furor, and its detractors insisted it would lead to unethical racial profiling. The federal government\nattacked the law in Federal District Court (Archibold, R. C., 2010). Judge Susan Bolton issued a preliminary injunction\nthat stopped enforcement of the sections of the law that required state law enforcement to check an immigrant\xe2\x80\x99s status\nwhile enforcing other laws and that required immigrants to prove they were in the country legally or risk state charges\n(Archibold, R. C., 2010). Read the District Court\xe2\x80\x99s preliminary injunction ruling, which is available at this link:\nhttp://graphics8.nytimes.com/packages/pdf/national/20100729_ARIZONA_DOC.pdf.\n1.\n\nWhat is the basis for Judge Bolton\xe2\x80\x99s decision? Check your answer using the answer key at the end of the\nchapter.\n\nRead about the most recent ruling on Arizona\xe2\x80\x99s immigration law by the US Court of Appeals for the Ninth Circuit:\nhttp://latindispatch.com/2011/05/10/arizonas-jan-brewer-to-appeal-immigration-law-to-u-s-supreme-court/.\nRead about Utah\xe2\x80\x99s immigration law: http://www.cnn.com/2011/POLITICS/05/11/utah.immigration.bill/.\nRead about Alabama\xe2\x80\x99s immigration law: http://www.reuters.com/article/2011/06/10/\ntagblogsfindlawcom2011-freeenterprise-idUS123058502120110610.\n\n\x0c2.1 Federalism 41\n\nU.S. v. State of Arizona Video\n10-16645 U.S. v. State of Arizona\nThis video is the Arizona governor\xe2\x80\x99s appeal of the district court preliminary injunction:\n" href="http://www.youtube.com/watch?v=ClSk_OrHSIM" class="replaced-iframe" onclick="return\nreplaceIframe(this)" data-url="http://www.youtube.com/watch?v=ClSk_OrHSIM">(click to see video)\n\nKey Takeaways\n\xe2\x80\xa2\n\nFederalism is a system of government in which power is divided between one national, federal\ngovernment and several independent state governments.\n\n\xe2\x80\xa2\n\nCongress gets its regulatory authority from Article I \xc2\xa7 8 of the federal Constitution. This includes several\ndelegated powers, the commerce clause, and the necessary and proper clause.\n\xe2\x97\xa6\n\xe2\x97\xa6\n\nThe commerce clause gives Congress the power to regulate commerce that crosses state lines.\nThe necessary and proper clause gives Congress the power to regulate if necessary to carry\nout all other powers listed in the Constitution.\n\n\xe2\x80\xa2\n\nThe Constitution specifically authorizes Congress to punish piracies and felonies on the high seas,\ncounterfeiting, and treason. Case precedent has also expanded the federal government\xe2\x80\x99s power to enact\ncriminal laws based on the commerce clause and the necessary and proper clause.\n\n\xe2\x80\xa2\n\nThe federal government is intended to be limited, with the bulk of regulatory authority residing in the\nstates. The federal government is restricted to regulating in the areas designated in Article I \xc2\xa7 8 of the\nfederal Constitution. The states can regulate for the health, safety, and welfare of citizens pursuant to their\npolice power, which is set forth in the Tenth Amendment of the federal Constitution.\n\n\xe2\x80\xa2\n\nFederal criminal laws criminalize conduct that occurs on federal property or involves federal employees,\ncurrency, coin, treason, national security, rights secured by the Constitution, or commerce that crosses state\nlines. State criminal laws make up 90 percent of all criminal laws, are designed to protect state citizens\xe2\x80\x99\nhealth, safety, and welfare, and often criminalize the same conduct as federal criminal laws.\n\n\xe2\x80\xa2\n\nFederal supremacy, which is set forth in the Supremacy Clause of the federal Constitution, requires courts\nto follow federal laws if there is a conflict between a federal and state law.\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nCongress passes a law criminalizing the posting of child pornography on the Internet. Where does\nCongress get the authority to pass this criminal law? If a state has a criminal law criminalizing the same\nconduct, can both the state and federal government prosecute a defendant for one act of downloading child\npornography?\n\n2.\n\nRead U.S. v. Morrison, 529 U.S. 518 (2000). Which part(s) of the Constitution did the US Supreme Court\nrely on when it held that 42 U.S.C. \xc2\xa7 13981 is unconstitutional? The case is available at this link:\n\n\x0c42 Criminal Law\n\nhttp://www.law.cornell.edu/supct/html/99-5.ZS.html.\n3.\n\nRead Pennsylvania v. Nelson, 350 U.S. 497 (1956). Why did the US Supreme Court invalidate the\nPennsylvania Sedition Act? The case is available at this link: http://supreme.justia.com/us/350/497/\ncase.html.\n\nReferences\nArchibold, R. C., \xe2\x80\x9cJudge Blocks Arizona\xe2\x80\x99s Immigration Law,\xe2\x80\x9d The New York Times website, accessed October 1,\n2010, http://www.nytimes.com/2010/07/29/us/29arizona.html.\nMcCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), accessed August 28, 2010, http://www.law.cornell.edu/\nsupct/html/historics/USSC_CR_0017_0316_ZS.html.\nN.R.S.\n\xc2\xa7 201.354,\naccessed\nSeptember\n24,\n2010,\nhttp://www.leg.state.nv.us/nrs/\nNRS-201.html#NRS201Sec354.\nWashington State Medicinal Marijuana Act, Chapter 69.51A RCW, accessed August 28, 2010,\nhttp://apps.leg.wa.gov/RCW/default.aspx?cite=69.51a&full=true.\nProCon.org website, see all states that legalize medicinal marijuana: \xe2\x80\x9c16 Legal Medical Marijuana States and\nDC,\xe2\x80\x9d accessed August 28, 2010, http://medicalmarijuana.procon.org/view.resource.php?resourceID=000881.\n21 U.S.C. Ch. 13 \xc2\xa7 801 et. seq., accessed October 1, 2010, http://www.deadiversion.usdoj.gov/21cfr/21usc/\nindex.html.\n\n\x0c2.2 The Branches of Government\n\nLearning Objectives\n1.\n\nIdentify the three branches of government.\n\n2.\n\nAscertain the head of the federal and state legislative branches of government.\n\n3.\n\nCompare the Senate and the House of Representatives.\n\n4.\n\nAscertain the head of the federal and state executive branches of government.\n\n5.\n\nAscertain the head of the federal and state judicial branches of government.\n\nThe federal Constitution was written to ensure that government power is distributed and never concentrated in\none or more areas. This philosophy is served by federalism, where the federal government shares power with\nthe states. It is also further served by dividing the government into three branches, all responsible for different\ngovernment duties and all checking and balancing each other. The three branches of government are detailed in\nArticles I\xe2\x80\x93III of the federal Constitution and are the legislative branch, the executive branch, and the judicial\nbranch. While the federal Constitution identifies only the federal branches of government, the principle of checks\nand balances applies to the states as well. Most states identify the three state branches of government in their state\nconstitution.\nEach branch of government has a distinct authority. When one branch encroaches on the duties of another, this\nis called a violation of separation of powers. The courts decide whether a government branch has overstepped\nits boundaries because courts interpret the Constitution, which describes each branch\xe2\x80\x99s sphere of influence. Thus\nthe judicial branch, which consists of all the courts, retains the balance of power.\n\nThe Legislative Branch\nThe legislative branch is responsible for creating statutory laws. Citizens of a state can vote for some state\nstatutes by ballot, but the federal legislative branch enacts all federal statutes. In the federal government, the\nlegislative branch is headed by Congress. States\xe2\x80\x99 legislative branches are headed by a state legislature. Congress\nis bicameral, which means it is made up of two houses. This system provides equal representation among the\nseveral states and by citizens of the United States. States are represented by the Senate. Every state, no matter\nhow large or small, gets two senators. Citizens are represented by the House of Representatives. Membership\nin the House of Representatives is based on population. A heavily populated state, like California, has more\nrepresentatives than a sparsely populated state, like Alaska. States\xe2\x80\x99 legislatures are generally bicameral and have\na similar structure to the federal system.\nFigure 2.4 Diagram of the Legislative Branch\n43\n\n\x0c44 Criminal Law\n\nExamples of Legislative Branch Checks and Balances\nThe legislative branch can check and balance both the executive branch and the judicial branch. Congress can\nimpeach the president of the United States, which is the first step toward removal from office. Congress can\nalso enact statutes that supersede judicial opinions, as discussed in Chapter 1 \xe2\x80\x9cIntroduction to Criminal Law\xe2\x80\x9d.\nSimilarly, state legislature can also impeach a governor or enact a state statute that supersedes a state case law.\n\nThe Executive Branch\nThe executive branch is responsible for enforcing the statutes enacted by the legislative branch. In the federal\ngovernment, the executive branch is headed by the president of the United States. States\xe2\x80\x99 executive branches are\nheaded by the governor of the state.\nFigure 2.5 Diagram of the Executive Branch\n\n\x0c2.2 The Branches of Government 45\n\nExamples of Executive Branch Checks and Balances\nThe executive branch can check and balance both the legislative branch and the judicial branch. The president of\nthe United States can veto statutes proposed by Congress. The president also has the authority to nominate federal\njustices and judges, who thereafter serve for life. State executive branches have similar check and balancing\nauthority; a governor can generally veto statutes proposed by state legislature and can appoint some state justices\nand judges.\n\nThe Judicial Branch\nThe judicial branch is responsible for interpreting all laws, including statutes, codes, ordinances, and the federal\nand state constitutions. This power is all encompassing and is the basis for judicial review, referenced in Chapter\n1 \xe2\x80\x9cIntroduction to Criminal Law\xe2\x80\x9d. It allows the judicial branch to invalidate any unconstitutional law in the\nstatutory source of law and also to change the federal and state constitutions by interpretation. For example, when\na court creates an exception to an amendment to the constitution, it has made an informal change without the\nnecessity of a national or state consensus. The federal judicial branch is headed by the US Supreme Court. Each\nstate\xe2\x80\x99s judicial branch is headed by the highest-level state appellate court. Members of the judicial branch include\nall judges and justices of every federal and state court in the court system, which is discussed shortly.\nFigure 2.6 Diagram of the Judicial Branch\n\n\x0c46 Criminal Law\n\nExamples of Judicial Branch Checks and Balances\nThe judicial branch can check and balance both the legislative branch and the executive branch. The US Supreme\nCourt can invalidate statutes enacted by Congress if they conflict with the Constitution. The US Supreme Court\ncan also prevent the president from taking action if that action violates separation of powers. The state courts can\nlikewise nullify unconstitutional statutes passed by the state legislature and void other executive branch actions\nthat are unconstitutional.\nTable 2.1 The Most Prominent Checks and Balances between the Branches\n\n\x0c2.2 The Branches of Government 47\n\nGovernment\nDuty or Authority\nBranch\n\nCheck and Balance\n\nGovernment Branch\nChecking and Balancing\n\nLegislative\n\nCreate statutes\n\nPresident can veto\n\nExecutive\n\nExecutive\n\nEnforce statutes\n\nCongress can override presidential veto by 2/3\nmajority\n\nLegislative\n\nJudicial\n\nInterpret statutes\nand Constitution\n\nPresident nominates federal judges and justices\n\nExecutive\n\nExecutive\n\nEnforce statutes\n\nSenate can confirm or reject presidential\nnomination of federal judges and justices\n\nLegislative\n\nExecutive\n\nEnforce statutes\n\nCongress can impeach the president\n\nLegislative\n\nLegislative\n\nCreate statutes\n\nCourts can invalidate unconstitutional statutes\n\nJudicial\n\nExecutive\n\nEnforce statutes\n\nCourts can invalidate unconstitutional executive\naction\n\nJudicial\n\nJudicial\n\nInterpret statutes\nand Constitution\n\nStatutes can supersede case law\n\nLegislative\n\nKey Takeaways\n\xe2\x80\xa2\n\nThe three branches of government are the legislative branch, the executive branch, and the judicial\nbranch.\n\n\xe2\x80\xa2\n\nThe head of the federal legislative branch of government is Congress. The head of the state legislative\nbranch of government is the state legislature.\n\n\xe2\x80\xa2\n\nThe Senate represents every state equally because each state has two senators. The House of\nRepresentatives represents each citizen equally because states are assigned representatives based on their\npopulation.\n\n\xe2\x80\xa2\n\nThe head of the federal executive branch of government is the president. The head of each state executive\nbranch of government is the governor.\n\n\xe2\x80\xa2\n\nThe head of the federal judicial branch of government is the US Supreme Court. The head of each state\njudicial branch of government is the highest-level state appellate court.\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nA mayor enacts a policy that prohibits police officers in his city from enforcing a state law prohibiting the\npossession and use of marijuana. The mayor\xe2\x80\x99s policy specifically states that within the city limits, marijuana\nis legal to possess and use. Which constitutional principle is the mayor violating? Which branch of\ngovernment should check and balance the mayor\xe2\x80\x99s behavior in this matter?\n\n2.\n\nRead Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). In Youngstown, President Truman\nseized control of steel mills to avert a strike, using his authority as commander in chief of the armed forces.\n\n\x0c48 Criminal Law\n\nPresident Truman wanted to ensure steel production during the Korean War. Did the US Supreme Court\nuphold President Truman\xe2\x80\x99s action? Why or why not? The case is available at this link:\nhttp://supreme.justia.com/us/343/579/.\n3.\n\nRead Hamdi v. Rumsfeld, 542 U.S. 507 (2004). In Hamdi, the US Supreme Court reviewed the US Court\nof Appeals for the Fourth Circuit\xe2\x80\x99s decision prohibiting the release of a US citizen who was held as an\nenemy combatant in Virginia during the Afghanistan War. The citizen\xe2\x80\x99s detention was based on a federal\nstatute that deprived him of the opportunity to consult with an attorney or have a trial. Did the US Supreme\nCourt defer to the federal statute? Why or why not? The case is available at this link:\nhttp://scholar.google.com/\nscholar_case?case=6173897153146757813&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\n\x0c2.3 The Court System\n\nLearning Objectives\n1.\n\nCompare federal and state courts.\n\n2.\n\nDefine jurisdiction.\n\n3.\n\nCompare original and appellate jurisdiction.\n\n4.\n\nIdentify the federal courts and determine each court\xe2\x80\x99s jurisdiction.\n\n5.\n\nIdentify the state courts and determine each court\xe2\x80\x99s jurisdiction.\n\nEvery state has two court systems: the federal court system, which is the same in all fifty states, and the state\ncourt system, which varies slightly in each state. Federal courts are fewer in number than state courts. Because of\nthe Tenth Amendment, discussed earlier in Section 2.1.2 \xe2\x80\x9cThe Scope of State Law\xe2\x80\x9d, most laws are state laws and\ntherefore most legal disputes go through the state court system.\nFederal courts are exclusive; they adjudicate only federal matters. This means that a case can go through the\nfederal court system only if it is based on a federal statute or the federal Constitution. One exception is called\ndiversity of citizenship (28 U.S.C. \xc2\xa7 1332, 2010).If citizens from different states are involved in a civil lawsuit\nand the amount in controversy exceeds $75,000, the lawsuit can take place in federal court. All federal criminal\nprosecutions take place in federal courts.\nState courts are nonexclusive; they can adjudicate state or federal matters. Thus an individual who wants to sue\ncivilly for a federal matter has the option of proceeding in state or federal court. In addition, someone involved in\na lawsuit based on a federal statute or the federal Constitution can remove a lawsuit filed in state court to federal\ncourt (28 U.S.C. \xc2\xa7 1441, 2010). All state criminal prosecutions take place in state courts.\n\nJurisdiction\nDetermining which court is appropriate for a particular lawsuit depends on the concept of jurisdiction.\nJurisdiction has two meanings. A court\xe2\x80\x99s jurisdiction is the power or authority to hear the case in front of it. If a\ncourt does not have jurisdiction, it cannot hear the case. Jurisdiction can also be a geographic area over which the\ncourt\xe2\x80\x99s authority extends.\nThere are two prominent types of court jurisdiction. Original jurisdiction means that the court has the power\nto hear a trial. Usually, only one opportunity exists for a trial, although some actions result in both a criminal\nand a civil trial, discussed previously in Chapter 1 \xe2\x80\x9cIntroduction to Criminal Law\xe2\x80\x9d. During the trial, evidence is\npresented to a trier of fact, which can be either a judge or a jury. The trier of fact determines the facts of a dispute\nand decides which party prevails at trial by applying the law to those facts. Once the trial has concluded, the next\n49\n\n\x0c50 Criminal Law\n\nstep is an appeal. During an appeal, no evidence is presented; the appellate court simply reviews what took place\nat trial and determines whether or not any major errors occurred.\nThe power to hear an appeal is called appellate jurisdiction. Courts that have appellate jurisdiction review the\ntrial record for error. The trial record includes a court reporter\xe2\x80\x99s transcript, which is typed notes of the words\nspoken during the trial and pretrial hearings. In general, with exceptions, appellate courts cannot review a trial\nrecord until the trial has ended with a final judgment. Once the appellate court has made its review, it has the\nability to take three actions. If it finds no compelling or prejudicial errors, it can affirm the judgment of the trial\ncourt, which means that the judgment remains the same. If it finds a significant error, it can reverse the judgment\nof the trial court, which means that the judgment becomes the opposite (the winner loses, the loser wins). It can\nalso remand, which means send the case back to the trial court, with instructions. After remand, the trial court\ncan take action that the appellate court cannot, such as adjust a sentence or order a new trial.\nSome courts have only original jurisdiction, but most courts have a little of original and appellate jurisdiction.\nThe US Supreme Court, for example, is primarily an appellate court with appellate jurisdiction. However, it\nalso has original jurisdiction in some cases, as stated in the Constitution, Article III, \xc2\xa7 2, clause 2: \xe2\x80\x9cIn all Cases\naffecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme\nCourt shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have\nappellate jurisdiction.\xe2\x80\x9d\n\nExample of Original and Appellate Jurisdiction\nPaulina is prosecuted for the attempted murder of Ariana. Paulina is represented by public defender Pedro. At\nPaulina\xe2\x80\x99s trial, in spite of Pedro\xe2\x80\x99s objections, the judge rules that Paulina\xe2\x80\x99s polygraph examination results are\nadmissible, but prohibits the admission of certain witness testimony. Paulina is found guilty and appeals, based on\nthe judge\xe2\x80\x99s evidentiary rulings. While Pedro is writing the appellate brief, he discovers case precedent barring the\nadmission of polygraph examination results. Pedro can include the case precedent in his appellate brief but not\nthe prohibited witness testimony. The appellate court has the jurisdiction to hold that the objection was improperly\noverruled by the trial court, but is limited to reviewing the trial record for error. The appellate court lacks the\njurisdiction to admit new evidence not included in the trial record.\n\nThe Federal Courts\nFor the purpose of this book, the focus is the federal trial court and the intermediate and highest level appellate\ncourts because these courts are most frequently encountered in a criminal prosecution. Other federal specialty\ncourts do exist but are not discussed, such as bankruptcy court, tax court, and the court of military appeals.\nThe federal trial court is called the United States District Court. Large states like California have more than\none district court, while smaller states may have only one. District courts hear all the federal trials, including civil\nand criminal trials. As stated previously, a dispute that involves only state law, or a state criminal trial, cannot\nproceed in district court. The exception to this rule is the diversity of citizenship exception for civil lawsuits.\nAfter a trial in district court, the loser gets one appeal of right. This means that the intermediate appellate\nfederal court must hear an appeal of the district court trial if there are sufficient grounds. The intermediate\nappellate court in the federal system is the United States Court of Appeals. There is less federal law than state\n\n\x0c2.3 The Court System 51\n\nlaw, so only thirteen US Courts of Appeals exist for all fifty states. The US Courts of Appeals are spread out over\nthirteen judicial circuits and are also referred to as Circuit Courts.\nCircuit Courts have appellate jurisdiction and can review the district court criminal and civil trials for error.\nThe Circuit Court reviews only trials that are federal in nature, with the exception of civil lawsuits brought to the\ndistrict court under diversity of citizenship. As noted in Chapter 1 \xe2\x80\x9cIntroduction to Criminal Law\xe2\x80\x9d, the federal\nConstitution governs criminal trials, so only a guilty defendant can appeal. In general, with exceptions, appeal of\na not-guilty verdict (also called an acquittal) violates a defendant\xe2\x80\x99s double jeopardy protection.\nAfter a Circuit Court appeal, the loser has one more opportunity to appeal to the highest-level federal appellate\ncourt, which is the United States Supreme Court. The US Supreme Court is the highest court in the country and\nis located in Washington, DC, the nation\xe2\x80\x99s capital. The US Supreme Court has eight associate justices and one\nchief justice: all serve a lifetime appointment.\nThe US Supreme Court is a discretionary court, meaning it does not have to hear appeals. Unlike the Circuit\nCourts, the US Supreme Court can pick and choose which appeals it wants to review. The method of applying for\nreview with the US Supreme Court is called filing a petition for a writ of certiorari.\nAny case from a Circuit Court, or a case with a federal matter at issue from a state\xe2\x80\x99s highest-level appellate\ncourt, can petition for a writ of certiorari. If the writ is granted, the US Supreme Court reviews the appeal. If\nthe writ is denied, which it is the majority of the time, the ruling of the Circuit Court or state high court is the\nfinal ruling. For this reason, the US Supreme Court reverses many cases that are accepted for review. If the US\nSupreme Court wants to \xe2\x80\x9caffirm\xe2\x80\x9d the intermediate appellate court ruling, all it has to do is deny the petition and\nlet the lower court ruling stand.\n\nThe State Courts\nFor the purpose of this book, a representative state court system is reviewed. Slight variations in this system may\noccur from state to state.\nMost states offer their citizens a \xe2\x80\x9cpeople\xe2\x80\x99s court,\xe2\x80\x9d typically called small claims court. Small claims court is\na civil court designed to provide state citizens with a low-cost option to resolve disputes where the amount in\ncontroversy is minimal. A traditional small claims court only has the jurisdiction to award money damages. This\nmeans that it cannot adjudicate criminal matters or family court matters such as granting a petition for divorce.\nSmall claims courts also limit the amount of money damages available, typically less than $10,000.\nSmall claims court has special rules that make it amenable to the average individual. Attorneys cannot represent\nclients in small claims court, although they certainly can represent themselves just like any other individual. Small\nclaims court proceedings are generally informal, and usually no court reporter types what is said. Therefore, no\ncourt record exits for appeal. Small claims court appeals are the exception to the general rule and are usually new\ntrials where evidence is accepted.\nStates generally have a state trial court that can also be the appellate court for small claims court appeals.\nThis trial court is usually called superior court, circuit court, or county court. State trial courts are generally\nall-purpose and hear civil litigation matters, state criminal trials, and nonlitigation cases including family law,\nwills and probate, foreclosures, and juvenile adjudications. States can, however, create \xe2\x80\x9cspecialty courts\xe2\x80\x9d to\nhear special matters and free up the trial courts for basic criminal prosecutions and civil litigation trials. Some\nstates divide their trial courts into lower and higher levels. The lower-level trial court adjudicates infractions\n\n\x0c52 Criminal Law\n\nand misdemeanors, along with civil lawsuits with a smaller amount in controversy. The higher-level trial court\nadjudicates felonies and civil lawsuits with a higher amount in controversy.\nThe intermediate appellate court for the state court system is usually called the state court of appeals, although\nsome smaller or low-population states may have only one appellate court called the state supreme court. The\nstate courts of appeal provide appeals of right, meaning they must hear an appeal coming from the state\xe2\x80\x99s trial\ncourt if adequate grounds are present. Appeals can be of any case adjudicated in the state trial court. In state\ncriminal prosecutions, as stated earlier in the discussion of federal appeals, only a guilty defendant can appeal\nwithout violating the protection against double jeopardy. At the appellate level, the state court of appeal simply\nreviews the trial court record for error and does not have the jurisdiction to hear new trials or accept evidence.\nThe highest appellate court for the state court system is usually called the state supreme court. In states that\nhave both intermediate and high-level appellate courts, the state supreme court is a discretionary court that gets\nto select the appeals it hears, very similar to the US Supreme Court. The state supreme court generally grants a\npetition for writ of certiorari, or a petition for review, if it decides to hear a civil or criminal case coming out\nof the state court of appeal. If review is denied, the state court of appeal ruling is the final ruling on the case. If\nreview is granted and the state supreme court rules on the case, the loser has one more chance to appeal, if there\nis a federal matter, to the US Supreme Court.\nFigure 2.7 Diagram of the Court System\n\nKey Takeaways\n\xe2\x80\xa2\n\nFederal courts are exclusive and hear only federal matters or cases involving diversity of citizenship.\nState courts are nonexclusive and can hear state and federal matters. All federal criminal prosecutions take\n\n\x0c2.3 The Court System 53\n\nplace in federal court, and all state criminal prosecutions take place in state court.\n\xe2\x80\xa2\n\nJurisdiction is either the court\xe2\x80\x99s power to hear a matter or a geographic area over which a court has\nauthority.\n\n\xe2\x80\xa2\n\nOriginal jurisdiction is a court\xe2\x80\x99s power to hear a trial and accept evidence. Appellate jurisdiction is a\ncourt\xe2\x80\x99s power to hear an appeal and review the trial for error.\n\n\xe2\x80\xa2\n\nThree federal courts adjudicate criminal matters: the trial court, which is called the United States District\nCourt; the intermediate court of appeal, which is called the United States Court of Appeals or Circuit Court;\nand the high court of appeal, which is called the United States Supreme Court. The district court has original\njurisdiction; the Circuit Court and US Supreme Court have primarily appellate jurisdiction.\n\n\xe2\x80\xa2\n\nState courts are usually limited to four, and only three adjudicate criminal matters. Small claims court is a\n\xe2\x80\x9cpeople\xe2\x80\x99s court\xe2\x80\x9d and hears only civil matters with a low threshold of damages. The state trial court, often\ncalled superior, circuit, or county court, is the trial court for the state system. Some states have an\nintermediate court of appeal, which is generally called the state court of appeals. Some states have a high\ncourt of appeal, which is generally called the state supreme court. The trial court has original jurisdiction;\nthe state court of appeal and state supreme court primarily have appellate jurisdiction.\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nJenna sues Max for $25,000, based on a car accident that occurs in Indiana. Jenna loses at trial and\nappeals to the highest state appellate court in Indiana, where she loses again. Can Jenna appeal her case to\nthe US Supreme Court? Why or why not?\n\n2.\n\nRead United States v. P.H.E., Inc., 965 F.2d 848 (1992). In P.H.E., Inc., the defendant never went to trial\nbut was indicted. The defendant challenged the indictment, which was upheld by the trial court. The\ngovernment claimed that the Court of Appeals for the Tenth Circuit could not hear an appeal of the trial\ncourt\xe2\x80\x99s decision, because there was never a \xe2\x80\x9cfinal judgment.\xe2\x80\x9d Did the Circuit Court agree? Why or why not?\nThe case is available at this link: http://scholar.google.com/\nscholar_case?case=16482877108359401771&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\n3.\n\nRead Hertz Corp. v. Friend, 130 S. Ct. 1181 (2010). How did the US Supreme Court determine\ncitizenship of a corporation for the purpose of diversity jurisdiction? The case is available at this link:\nhttp://scholar.google.com/\nscholar_case?case=11481058059843290042&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\nReferences\n28 U.S.C. \xc2\xa7 1332, accessed August 30, 2010, http://www.law.cornell.edu/uscode/28/1332.html.\n28 U.S.C. \xc2\xa7 1441 et. seq., accessed August 30, 2010, http://www.law.cornell.edu/uscode/28/1441.html.\n\n\x0c2.4 The Burden of Proof\n\nLearning Objectives\n1.\n\nDefine the burden of proof.\n\n2.\n\nDistinguish between the burden of production and the burden of persuasion.\n\n3.\n\nCompare the civil and criminal burden of proof.\n\n4.\n\nCompare inference and presumption.\n\n5.\n\nCompare circumstantial and direct evidence.\n\nThe key to the success of a civil or criminal trial is meeting the burden of proof. A failure to meet the burden\nof proof is also a common ground for appeal. In this section, you learn the burden of proof for the plaintiff,\nprosecution, and defendant. You also are introduced to different classifications of evidence and evidentiary rules\nthat can change the outcome of the trial.\n\nDefinition of the Burden of Proof\nThe burden of proof is a party\xe2\x80\x99s responsibility to prove a disputed charge, allegation, or defense\n(Yourdictionary.com, 2010). The burden of proof has two components: the burden of production and the burden\nof persuasion. The burden of production is the obligation to present evidence to the judge or jury. The burden of\npersuasion is the duty to convince the judge or jury to a certain standard, such as beyond a reasonable doubt,\nwhich is defined shortly. This standard is simply a measuring point and is determined by examining the quantity\nand quality of the evidence presented. \xe2\x80\x9cMeeting the burden of proof\xe2\x80\x9d means that a party has introduced enough\ncompelling evidence to reach the standard defined in the burden of persuasion.\nThe plaintiff or prosecutor generally has the burden of proving the case, including every element of it. The\ndefendant often has the burden of proving any defense. The trier of fact determines whether a party met the burden\nof proof at trial. The trier of fact would be a judge in a nonjury or bench trial. In a criminal case, the trier of fact\nis almost always a jury because of the right to a jury trial in the Sixth Amendment. Jurors are not legal experts, so\nthe judge explains the burden of proof in jury instructions, which are a common source of appeal.\n\nBurden of Proof in a Civil Case\nBurdens of proof vary, depending on the type of case being tried. The plaintiff\xe2\x80\x99s burden of proof in a civil case is\ncalled preponderance of evidence. Preponderance of evidence requires the plaintiff to introduce slightly more or\nslightly better evidence than the defense. This can be as low as 51 percent plaintiff to 49 percent defendant. When\n54\n\n\x0c2.4 The Burden of Proof 55\n\npreponderance of evidence is the burden of proof, the judge or jury must be convinced that it is \xe2\x80\x9cmore likely than\nnot\xe2\x80\x9d that the defendant is liable for the plaintiff\xe2\x80\x99s injuries. Preponderance of evidence is a fairly low standard,\nbut the plaintiff must still produce more and better evidence than the defense. If the plaintiff offers evidence of\nquestionable quality, the judge or jury can find that the burden of proof is not met and the plaintiff loses the case.\nThe defendant\xe2\x80\x99s burden of proof when proving a defense in a civil case is also preponderance of evidence. For\nexample, in the O. J. Simpson civil case discussed in Chapter 1 \xe2\x80\x9cIntroduction to Criminal Law\xe2\x80\x9d, O. J. Simpson\nfailed to meet the burden of proving the defense of alibi. The defendant does not always have to prove a defense\nin a civil case. If the plaintiff does not meet the burden of proof, the defendant is victorious without having to\npresent any evidence at all.\n\nBurden of Proof in a Criminal Prosecution\nThe prosecution\xe2\x80\x99s burden of proof in a criminal case is the most challenging burden of proof in law; it is beyond a\nreasonable doubt. Judges have struggled with a definition for this burden of proof. As Chief Justice Shaw stated\nnearly a century ago,\n[w]hat is reasonable doubt? It is a term often used, probably pretty well understood, but not easily defined.\nIt is not mere possible doubt; because every thing relating to human affairs, and depending on moral evidence,\nis open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and\nconsideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an\nabiding conviction, to a moral certainty, of the truth of the charge (Commonwealth v. Webster, 2010).\nIn general, the prosecution\xe2\x80\x99s evidence must overcome the defendant\xe2\x80\x99s presumption of innocence, which\nthe Constitution guarantees as due process of law (In re Winship, 2010). This fulfills the policy of criminal\nprosecutions, which is to punish the guilty, not the innocent. If even a slight chance exists that the defendant\nis innocent, the case most likely lacks convincing and credible evidence, and the trier of fact should acquit the\ndefendant.\nStates vary as to their requirements for the defendant\xe2\x80\x99s burden of proof when asserting a defense in a criminal\nprosecution (Findlaw.com, 2010). Different defenses also have different burdens of proof, as is discussed in\ndetail in Chapter 5 \xe2\x80\x9cCriminal Defenses, Part 1\xe2\x80\x9d and Chapter 6 \xe2\x80\x9cCriminal Defenses, Part 2\xe2\x80\x9d. Some states require\nthe defendant to meet the burden of production, but require the prosecution to thereafter meet the burden of\npersuasion, disproving the defense to a preponderance of evidence or, in some states, beyond a reasonable doubt.\nOther states require the defendant to meet the burden of production and the burden of persuasion. In these states,\nthe defendant\xe2\x80\x99s standard is typically preponderance of evidence, not beyond a reasonable doubt. The defendant\ndoes not always have to prove a defense in a criminal prosecution. If the prosecution does not meet the burden of\nproof, the defendant is acquitted without having to present any evidence at all.\n\nExample of a Failure to Meet the Burden of Proof\nAnn is on trial for first-degree murder. The only key piece of evidence in Ann\xe2\x80\x99s trial is the murder weapon, which\nwas discovered in Ann\xe2\x80\x99s dresser drawer during a law enforcement search. Before Ann\xe2\x80\x99s trial, the defense makes\na motion to suppress the murder weapon evidence because the search warrant in Ann\xe2\x80\x99s case was signed by a\n\n\x0c56 Criminal Law\n\njudge who was inebriated and mentally incompetent. The defense is successful with this motion, and the judge\nrules that the murder weapon is inadmissible at trial. The prosecution decides to proceed anyway. If there is no\nother convincing and credible evidence of Ann\xe2\x80\x99s guilt, Ann does not need to put on a defense in this case. The\nprosecution will fail to meet the burden of proof and Ann will be acquitted.\nFigure 2.8 Diagram of the Criminal Burden of Proof\n\nInference and Presumption\nParties can use two tools to help meet the burden of proof: inference and presumption. Jury instructions can\ninclude inferences and presumptions and are often instrumental in the successful outcome of a case.\nAn inference is a conclusion that the judge or jury may make under the circumstances. An inference is never\nmandatory but is a choice. For example, if the prosecution proves that the defendant punched the victim in the\nface after screaming, \xe2\x80\x9cI hate you!\xe2\x80\x9d the judge or jury can infer that the punch was thrown intentionally.\nA presumption is a conclusion that the judge or jury must make under the circumstances. As stated previously,\n\n\x0c2.4 The Burden of Proof 57\n\nall criminal defendants are presumed innocent. Thus the judge or jury must begin any criminal trial concluding\nthat the defendant is not guilty.\nPresumptions can be rebuttable or irrebuttable. A party can disprove a rebuttable presumption. The\nprosecution can rebut the presumption of innocence with evidence proving beyond a reasonable doubt that the\ndefendant is guilty. An irrebuttable presumption is irrefutable and cannot be disproved. In some jurisdictions, it is\nan irrebuttable presumption that children under the age of seven are incapable of forming criminal intent. Thus in\nthese jurisdictions children under the age of seven cannot be criminally prosecuted (although they may be subject\nto a juvenile adjudication proceeding).\n\nCircumstantial and Direct Evidence\nTwo primary classifications are used for evidence: circumstantial evidence or direct evidence.\nCircumstantial evidence indirectly proves a fact. Fingerprint evidence is usually circumstantial. A defendant\xe2\x80\x99s\nfingerprint at the scene of the crime directly proves that the defendant placed a finger at that location. It\nindirectly proves that because the defendant was present at the scene and placed a finger there, the defendant\ncommitted the crime. Common examples of circumstantial evidence are fingerprint evidence, DNA evidence, and\nblood evidence. Criminal cases relying on circumstantial evidence are more difficult for the prosecution because\ncircumstantial evidence leaves room for doubt in a judge\xe2\x80\x99s or juror\xe2\x80\x99s mind. However, circumstantial evidence such\nas DNA evidence can be very reliable and compelling, so the prosecution can and often does meet the burden of\nproof using only circumstantial evidence.\nDirect evidence directly proves a fact. For example, eyewitness testimony is often direct evidence. An\neyewitness testifying that he or she saw the defendant commit the crime directly proves that the defendant\ncommitted the crime. Common examples of direct evidence are eyewitness testimony, a defendant\xe2\x80\x99s confession,\nor a video or photograph of the defendant committing the crime. Criminal cases relying on direct evidence are\neasier to prove because there is less potential for reasonable doubt. However, direct evidence can be unreliable\nand is not necessarily preferable to circumstantial evidence. If an eyewitness is impeached, which means he or\nshe loses credibility, the witness\xe2\x80\x99s testimony lacks the evidentiary value of reliable circumstantial evidence such\nas DNA evidence.\nTable 2.2 Comparison of Circumstantial and Direct Evidence in a Burglary Case\n\n\x0c58 Criminal Law\n\nEvidence\n\nCircumstantial Direct\n\nFiber from the defendant\xe2\x80\x99s coat found in a\nresidence that has been burglarized\n\nYes\n\nNo\xe2\x80\x94directly proves presence at the scene, not that\nthe defendant committed burglary\n\nGPS evidence indicating the defendant drove to\nthe burglarized residence\n\nYes\n\nNo\xe2\x80\x94same explanation as fiber evidence\n\nTestimony from an eyewitness that she saw the\ndefendant go into the backyard of the\nburglarized residence\n\nYes\n\nNo\xe2\x80\x94could prove trespassing because it directly\nproves presence at the scene, but it does not directly\nprove burglary\n\nSurveillance camera footage of the defendant\npurchasing burglar tools\n\nYes\n\nNo\xe2\x80\x94does not directly prove they were used on the\nresidence\n\nCell phone photograph of the defendant\nburglarizing the residence\n\nNo\n\nYes\xe2\x80\x94directly proves that the defendant committed\nthe crime\n\nWitness testimony that the defendant confessed\nto burglarizing the residence\n\nNo\n\nYes\xe2\x80\x94directly proves that the defendant committed\nthe crime\n\nPawn shop receipt found in the defendant\xe2\x80\x99s\npocket for items stolen from the residence\n\nYes\n\nNo\xe2\x80\x94directly proves that the items were pawned, not\nstolen\n\nCasey Anthony Trial Video\nCasey Anthony Verdict: Found Not Guilty of Murder\nIn this video, the jury foreperson in the Casey Anthony trial reads the trial verdict. Casey Anthony was acquitted of\nmurder, manslaughter, and child abuse of her daughter, Caylee Anthony. The evidence in the case was all\ncircumstantial, and the coroner did not determine the cause of the victim\xe2\x80\x99s death (Lohr, D., 2011).\n" href="http://www.youtube.com/watch?v=3H6YxAEVJdY" class="replaced-iframe" onclick="return\nreplaceIframe(this)" data-url="http://www.youtube.com/watch?v=3H6YxAEVJdY">(click to see video)\n\nKey Takeaways\n\xe2\x80\xa2\n\nThe burden of proof is a party\xe2\x80\x99s obligation to prove a charge, allegation, or defense.\n\n\xe2\x80\xa2\n\nThe burden of production is the duty to present evidence to the trier of fact. The burden of persuasion is\nthe duty to convince the trier of fact to a certain standard, such as preponderance of evidence or beyond a\nreasonable doubt.\n\n\xe2\x80\xa2\n\nThe civil burden of proof is preponderance of evidence, for both the plaintiff and the defendant. The\ncriminal burden of proof for the prosecution is beyond a reasonable doubt.\n\xe2\x97\xa6\n\nThe criminal burden of proof for the defense is generally preponderance of evidence. States\nvary on whether they require the criminal defendant to meet both the burden of production and\npersuasion or just the burden of production. Different defenses also require different burdens of\nproof.\n\n\xe2\x97\xa6\n\nIn states that require the defendant to meet only the burden of production, the prosecution\nmust disprove the defense to a preponderance of evidence or beyond a reasonable doubt,\n\n\x0c2.4 The Burden of Proof 59\n\ndepending on the state and on the defense.\n\xe2\x80\xa2\n\nAn inference is a conclusion the trier of fact may make, if it chooses to. A presumption is a conclusion the\ntrier of fact must make. A rebuttable presumption can be disproved; an irrebuttable presumption cannot.\n\n\xe2\x80\xa2\n\nCircumstantial evidence indirectly proves a fact. A fingerprint at the scene of the crime, for example,\nindirectly proves that because the defendant was present at the scene, the defendant committed the crime.\nDirect evidence directly proves a fact. If the defendant confesses to a crime, for example, this is direct\nevidence that the defendant committed the crime.\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nBria is asserting the insanity defense in her criminal prosecution for murder. In Bria\xe2\x80\x99s state, defendants\nhave the burden of production and persuasion to a preponderance of evidence when proving the insanity\ndefense. Bria offers her own testimony that she is insane and incapable of forming criminal intent. Will Bria\nbe successful with her defense? Why or why not?\n\n2.\n\nRead Patterson v. New York, 432 U.S. 197 (1977). In Patterson, the defendant was on trial for murder.\nNew York law reduced murder to manslaughter if the defendant proved extreme emotional disturbance to a\npreponderance of evidence. Did the US Supreme Court hold that it is constitutional to put this burden on\nthe defense, rather than forcing the prosecution to disprove extreme emotional disturbance beyond a\nreasonable doubt? Which part of the Constitution did the Court analyze to justify its holding? The case is\navailable at this link: http://supreme.justia.com/us/432/197/case.html.\n\n3.\n\nRead Sullivan v. Louisiana, 508 U.S. 275 (1993). In Sullivan, the jury was given a constitutionally\ndeficient jury instruction on beyond a reasonable doubt. Did the US Supreme Court hold that this was a\nprejudicial error requiring reversal of the defendant\xe2\x80\x99s conviction for murder? Which part of the Constitution\ndid the Court rely on in its holding? The case is available at this link: http://scholar.google.com/\nscholar_case?case=1069192289025184531&hl=en&as_sdt=2002&as_vis=1.\n\nReferences\nCommonwealth v. Webster, 59 Mass. 295, 320 (1850), accessed September 26, 2010, http://masscases.com/cases/\nsjc/59/59mass295.html.\nFindlaw.com, \xe2\x80\x9cThe Insanity Defense among the States,\xe2\x80\x9d findlaw.com website, accessed October 1, 2010,\nhttp://criminal.findlaw.com/crimes/more-criminal-topics/insanity-defense/the-insanity-defense-among-thestates.html.\nIn re Winship, 397 U.S. 358 (1970), accessed September 26, 2010, http://www.law.cornell.edu/supct/html/\nhistorics/USSC_CR_0397_0358_ZO.html.\nLohr, D., \xe2\x80\x9cCasey Anthony Verdict: NOT GUILTY of First-Degree Murder,\xe2\x80\x9d Huffingtonpost.com website,\naccessed\nAugust\n24,\n2011,\nhttp://www.huffingtonpost.com/2011/07/05/casey-anthony-trialverdict_n_890173.html#s303265&title=Casey_Anthony_Verdict.\n\n\x0c60 Criminal Law\n\nYourdictionary.com, \xe2\x80\x9cDefinition of Burden\nhttp://www.yourdictionary.com/burden-of-proof.\n\nof\n\nProof,\xe2\x80\x9d\n\naccessed\n\nSeptember\n\n26,\n\n2010,\n\n\x0c2.5 End-of-Chapter Material\n\nSummary\nThe United States\xe2\x80\x99 system of government is called federalism and consists of one federal government regulating\nissues of a national concern and separate state governments regulating local issues. The bulk of criminal lawmaking\nresides with the states because of the police power granted to the states in the Tenth Amendment. Ninety percent of all\ncriminal laws are state laws. Many federal crimes are also state crimes, and a defendant can be prosecuted federally and\nby a state without triggering double jeopardy protection. If a federal statute exists on an issue, a state statute cannot\nconflict with it because of the Constitution\xe2\x80\x99s Supremacy Clause.\nThe Constitution sets forth three branches of government. The legislative branch consists of Congress and has the\nauthority to create laws. The executive branch is headed by the president of the United States and has the authority to\nenforce the laws created by the legislative branch. The judicial branch is headed by the US Supreme Court and has the\nauthority to interpret laws and the Constitution. Each branch checks and balances each other, and the judicial branch\nensures that no branch oversteps its authority and violates separation of powers. State governments mimic the federal\nbranches of government at the state level and set forth authorities in each state\xe2\x80\x99s constitution.\nThe federal court system exclusively adjudicates federal matters and consists primarily of the US District Court, the\nUS Court of Appeals or Circuit Court, and the US Supreme Court. Each state has its own court system consisting\nprimarily of a trial court, intermediate court of appeal, and possibly a high court of appeal. Trial courts have original\njurisdiction and can accept evidence. Appellate courts have appellate jurisdiction and are limited to reviewing the trial\ncourts\xe2\x80\x99 decisions for error.\nEach party in a civil or criminal trial must meet a burden of proof, which consists of a burden of producing evidence\nand a burden of persuading the trier of fact. The burden of proof for a civil plaintiff or defendant is preponderance of\nevidence, which means that the trier of fact must be convinced it is more likely than not that a party should prevail. The\nburden of proof for the prosecution in a criminal case is beyond a reasonable doubt, which is a stricter standard than\npreponderance of evidence and consists of enough compelling evidence to rebut the defendant\xe2\x80\x99s presumption of\ninnocence. The burden of proof for a criminal defense varies but is often preponderance of evidence. Inferences, which\nare conclusions the trier of fact may make, and presumptions, which are conclusions the trier of fact must make, can\nhelp meet the burden of proof. The evidence presented to meet the burden of proof can be circumstantial, which\nindirectly proves a fact, or direct, which directly proves a fact. Circumstantial evidence leaves room for reasonable\ndoubt, but it can be reliable and the basis of a successful criminal prosecution.\n\nYou Be the Juror\nRead the prompt, review the case, and then decide whether enough evidence exists to meet the burden of proof.\nCheck your answers using the answer key at the end of the chapter.\n1.\n\nThe defendant was convicted of possession of a handgun with an altered serial number. The defendant\ncontended that he did not know the serial number had been altered. The prosecution offered evidence that\nthe gun was \xe2\x80\x9cshiny\xe2\x80\x9d in the location of the serial number. The prosecution also proved that the defendant was\nin possession of the handgun for a week. Is this sufficient evidence to prove beyond a reasonable doubt that\nthe defendant knew the serial number had been altered? Read Robles v. State, 758 N.E.2d 581 (2001). The\n\n61\n\n\x0c62 Criminal Law\n\ncase is available at this link: http://scholar.google.com/scholar_case?case=7369971752262973607&q=\nIndiana+2001+%22Robles+v.+State%22&hl=en&as_sdt=2,5.\n2.\n\nThe defendant was convicted of attempted first-degree murder of a peace officer when he shot a sheriff.\nThe defendant contended that he did not know the victim was a peace officer. The sheriff was in a vehicle\nwith a whip antenna, was armed, and was well known as a sheriff in Angola Prison, where the defendant\nwas incarcerated previous to the shooting incident. However, the sheriff was in an unmarked car with the red\nlight covered, out of uniform, and his badge was obscured. Is this sufficient evidence to prove beyond a\nreasonable doubt that the defendant knew the victim was a peace officer? Read Donahue v. Burl Cain, 231\nF.3d 1000 (2000). The case is available at this link: http://openjurist.org/231/f3d/1000/larry-donahue-v-burlcain.\n\n3.\n\nThe defendant was convicted of third-degree robbery, which requires a threat of immediate use of\nphysical force. The defendant entered a McDonald\xe2\x80\x99s restaurant twenty minutes before closing dressed in\nsunglasses, a leather jacket, and a bandana that covered his hair. The defendant beckoned the clerk and\nthereafter demanded that she put money from different cash register drawers into his bag. The defendant did\nnot appear armed, nor did he raise his voice or verbally threaten the clerk. Is this sufficient evidence to\nprove beyond a reasonable doubt that the defendant threatened immediate use of physical force? Read State\nv. Hall, 966 P.2d 208 (1998). The case is available at this link: http://www.publications.ojd.state.or.us/docs/\nS44712.htm.\n\n4.\n\nThe defendant was convicted of possession of cocaine with intent to sell. The defendant possessed seven\nindividual packages of white powdery substance, but only one package was tested (and it tested positive for\ncocaine). Is this sufficient evidence to prove beyond a reasonable doubt that the defendant possessed\ncocaine with intent to sell? Read Richards v. Florida, No. 4008-4216 (2010). The case is available at this\nlink: http://www.4dca.org/opinions/June%202010/06-09-10/4D08-4216.op.w-dissent.pdf.\n\nCases of Interest\n\xe2\x80\xa2\n\nClinton v. Jones, 520 U.S. 681 (1997), discusses separation of powers: http://scholar.google.com/\nscholar_case?case=1768307810279741111&q= Clinton+v.+Jones&hl=en&as_sdt=2,5.\n\n\xe2\x80\xa2\n\nGonzales v. Raich, 545 U.S. 1 (2005), discusses the reach of the commerce clause:\nhttp://scholar.google.com/scholar_case?case=15669334228411787012&q=\n%22criminal+burden+of+proof%22&hl=en&as_sdt=2,5&as_ylo=2000.\n\n\xe2\x80\xa2\n\nSabri v. United States, 541 U.S. 600 (2004), discusses the federal government\xe2\x80\x99s ability to criminalize\nbribery of a local government official: http://www.law.cornell.edu/supct/html/03-44.ZS.html.\n\n\xe2\x80\xa2\n\nU.S. v. Comstock, 627 F.3d 513 (2010), discusses criminal and civil burdens of proof:\nhttp://scholar.google.com/scholar_case?case=15669334228411787012&q=\n%22criminal+burden+of+proof%22&hl=en&as_sdt=2,5&as_ylo=2000.\n\nArticles of Interest\n\xe2\x80\xa2\n\nConnections between federalism and homeland security: https://www.hsaj.org/articles/163\n\n\xe2\x80\xa2\n\nVideo court: http://www.businessweek.com/ap/financialnews/D9N3D24G0.htm\n\n\xe2\x80\xa2\n\nBurden of proof: http://law.jrank.org/pages/4927/Burden-Proof.html\n\n\x0c2.5 End-of-Chapter Material 63\n\n\xe2\x80\xa2\n\nFederal and state court systems: http://www.uscourts.gov/about-federal-courts/court-role-and-structure/\ncomparing-federal-state-courts\n\nWebsites of Interest\n\xe2\x80\xa2\n\nUS Supreme Court: http://www.supremecourt.gov\n\n\xe2\x80\xa2\n\nFederal courts: http://www.uscourts.gov/\n\n\xe2\x80\xa2\n\nCivic participation: http://www.congress.org\n\nStatistics of Interest\n\xe2\x80\xa2\n\nUS Supreme Court: http://www.allcountries.org/uscensus/356_u_s_supreme_court_cases_filed.html\n\nAnswers to Exercises\nFrom Section 2.1 \xe2\x80\x9cFederalism\xe2\x80\x9d\n1.\n\nCongress gets the authority to criminalize conduct involving the Internet from the commerce clause\nbecause the Internet includes economic activity and crosses state lines. Both the federal and state\ngovernment can prosecute the defendant under federal and state criminal statutes for one act without\nviolating double jeopardy.\n\n2.\n\nThe US Supreme Court relied on the commerce clause and the Fourteenth Amendment. Specifically, the\nCourt ruled that gender-motivated crimes of violence are not economic activity and do not have a national\neffect, so the commerce clause does not support federal legislation in this area. Furthermore, the Court held\nthat the Fourteenth Amendment due process clause is targeted at state government action, not individual\ndefendants, so it is likewise inapplicable.\n\n3.\n\nThe US Supreme Court held that the Pennsylvania Sedition Act is superseded by the Smith Act, 18\nU.S.C. \xc2\xa7 2385. Specifically, the Court referenced the supremacy of federal law on the same topic, thereby\npreempting the state statute.\n\nAnswers to Exercises\nFrom Section 2.2 \xe2\x80\x9cThe Branches of Government\xe2\x80\x9d\n1.\n\nThe mayor is violating separation of powers because members of the executive branch cannot invalidate\nor supersede laws passed by the legislative branch; only the judicial branch is entitled to do this via judicial\n\n\x0c64 Criminal Law\n\nreview. The judicial branch should check and balance this action, if someone attacks the mayor\xe2\x80\x99s policy in\ncourt.\n2.\n\nThe US Supreme Court did not uphold President Truman\xe2\x80\x99s action and ruled that he was violating\nseparation of powers. A statute on point already disallowed the president\xe2\x80\x99s action (the Taft-Hartley Act).\nThe president cannot supersede Congress\xe2\x80\x99s authority by ignoring a constitutional statute that Congress\nenacted, even during wartime.\n\n3.\n\nThe US Supreme Court reversed the US Court of Appeals for the Fourth Circuit. The Court held that the\njudicial branch is not required to allow unconstitutional federal statutes to remain in effect during wartime\nbecause of separation of powers. The Court determined that the detainee\xe2\x80\x99s constitutional right to due\nprocess allowed him access to an attorney and a court trial, in spite of the federal statute.\n\nAnswers to Exercises\nFrom Section 2.3 \xe2\x80\x9cThe Court System\xe2\x80\x9d\n1.\n\nJenna cannot appeal to the US Supreme Court because she does not appear to have a federal issue. Parties\ncan appeal from a state\xe2\x80\x99s highest level appellate court directly into the US Supreme Court, but the US\nSupreme Court is a federal court and only has the jurisdiction to hear federal matters. Jenna cannot meet the\ncriteria of diversity jurisdiction or diversity of citizenship because even if she and Max are citizens of\ndifferent states, the amount in controversy is too low (it needs to be at least $75,000).\n\n2.\n\nThe US Court of Appeals for the Tenth Circuit held that there was jurisdiction, in spite of the absence of a\ntrial. The court also held that the extraordinary circumstances compelled a reversal of the district court order\ndenying a motion to dismiss the defendants\xe2\x80\x99 indictment. The court essentially ruled that the defendants had\na right not to be tried.\n\n3.\n\nThe US Supreme Court held that a corporation is a citizen of its state of incorporation and the state in\nwhich its principal place of business is located. The principal place of business is the \xe2\x80\x9cnerve center state,\xe2\x80\x9d\nwhich is the state that houses the corporate headquarters.\n\nAnswers to Exercises\nFrom Section 2.4 \xe2\x80\x9cThe Burden of Proof\xe2\x80\x9d\n1.\n\nBria will not be successful with the insanity defense because she cannot meet the burden of proof, which\nis preponderance of evidence. Preponderance of evidence is a fairly low standard, but Bria must still\nconvince the trier of fact that it is more likely than not she is insane. She cannot do this with her testimony,\nstanding alone. Clearly, Bria has an important self-interest in eliminating her criminal responsibility in this\ncase. Thus her subjective testimony regarding her own mental state is not compelling enough to meet the 51\npercent to 49 percent standard.\n\n2.\n\nThe US Supreme Court held that it is constitutional to put the burden of proving extreme emotional\ndisturbance on the defendant, reducing murder to manslaughter. The Court held that this did not relieve the\nprosecution of the burden of proving every element of murder beyond a reasonable doubt and thus was in\ncompliance with the due process clause of the Constitution.\n\n3.\n\nThe US Supreme Court held that a constitutionally deficient jury instruction on the definition of beyond a\n\n\x0c2.5 End-of-Chapter Material 65\n\nreasonable doubt was a prejudicial error and required a reversal of the defendant\xe2\x80\x99s conviction for murder.\nThe Court determined that the improper jury instruction deprived the defendant of his Sixth Amendment\nright to a jury trial.\n\nAnswer to Law and Ethics Question\n1.\n\nThe federal judge Susan Bolton based her decision on federal preemption and an impermissible state\nburden on legal resident aliens. The judge reasoned that federal authority to make law in the area of\nimmigration has been confirmed by the US Supreme Court, based on enumerated and implied powers, and\nthe designated sections of the Arizona law conflicted with this authority and are thus preempted (Order,\n2010). The judge further held that enforcement of the enjoined sections of the Arizona law would divert\nfederal resources (Order, 2010) and also impermissibly burden legal resident aliens by restricting their\nliberty while their status is checked (Order, 2010).\n\nAnswers to You Be the Juror\n1.\n\nThe Indiana Court of Appeals held that there was sufficient evidence to prove beyond a reasonable doubt\nthat the defendant knew the serial numbers on the gun had been altered. The appearance of the gun and the\ndefendant\xe2\x80\x99s week-long possession were enough for a reasonable juror to infer knowledge.\n\n2.\n\nThe US Court of Appeals for the Fifth Circuit held that there was insufficient evidence to prove beyond a\nreasonable doubt that the defendant knew the victim was a peace officer. The court held that a reasonable\njuror could not infer knowledge from the whip antennae and the victim\xe2\x80\x99s job at Angola prison.\n\n3.\n\nThe Supreme Court of Oregon held that there was sufficient evidence to prove beyond a reasonable doubt\nthat the defendant threatened immediate use of physical force. The court held that the defendant\xe2\x80\x99s\nappearance, combined with the lateness of the hour and the demands for money, could be an implicit threat\nunder the circumstances.\n\n4.\n\nThe District Court of Appeal of Florida held that there was sufficient evidence to prove beyond a\nreasonable doubt that the defendant possessed cocaine with the intent to sell. The court pointed out that the\ncriminal statute at issue did not require a specified quantity of cocaine. The court also reasoned that a jury\ncould infer from the packaging and expert testimony that the other packages also contained cocaine.\n\nReferences\nOrder, U.S. v. Arizona, No. CV 10-1413-PHX-SRB, U.S. District Court, accessed October 1, 2010,\nhttp://graphics8.nytimes.com/packages/pdf/national/20100729_ARIZONA_DOC.pdf.\n\n\x0cChapter 3: Constitutional Protections\n\narbyreed \xe2\x80\x93 Mountain Flag \xe2\x80\x93 CC BY-NC 2.0.\n\nThose who wrote our constitutions knew from history and experience that it was necessary to protect against\nunfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of\nhigher authority.\n\xe2\x80\x94Duncan v. Louisiana, cited in Section 3.2 \xe2\x80\x9cThe Due Process and Equal Protection Clauses\xe2\x80\x9d\n\n66\n\n\x0c3.1 Applicability of the Constitution\n\nLearning Objectives\n1.\n\nDistinguish between the two types of constitutional protections.\n\n2.\n\nCompare unconstitutional on its face with unconstitutional as applied.\n\n3.\n\nDistinguish among different standards of judicial review.\n\n4.\n\nCompare bill of attainder with ex post facto laws.\n\n5.\n\nAscertain the three types of ex post facto laws.\n\nIn addition to statutory and common-law defenses, a criminal defendant has extensive protections that are set\nforth in the United States Constitution. As stated earlier in this book, the federal Constitution is applicable in all\ncriminal cases because the government is prosecuting. State constitutions typically mirror the federal Constitution\nbecause it sets the minimum standard of protection that is guaranteed to all citizens. States can and often do\nprovide more constitutional protections to criminal defendants than the federal Constitution, as long as those state\nprotections do not violate notions of federal supremacy. In this chapter, the federal Constitution is analyzed with\nreference to state constitutional protections when relevant.\n\nConstitutional Protections\nGenerally, two types of constitutional protections exist. First, a defendant can challenge the constitutionality of\na criminal statute or ordinance (from this point forward, the term statute includes ordinances unless otherwise\nnoted). Recall from Chapter 1 \xe2\x80\x9cIntroduction to Criminal Law\xe2\x80\x9d that these codified laws cannot conflict with or\nattempt to supersede the Constitution. An attack on the constitutionality of a statute can be a claim that the\nstatute is unconstitutional on its face, is unconstitutional as applied, or both. A statute is unconstitutional on\nits face when its wording is unconstitutional. A statute is unconstitutional as applied when its enforcement is\nunconstitutional. The difference between the two is significant. If a statute is unconstitutional on its face, it is\ninvalid under any circumstances. If the statute is unconstitutional as applied, it is only unconstitutional under\ncertain circumstances.\nA second type of constitutional protection is procedural. The defendant can protest an unconstitutional\nprocedure that occurs during prosecution. Procedure during prosecution includes, but is not limited to, arrest,\ninterrogation, search, filing of charges, trial, and appeal. The defendant can make a motion to dismiss the charges,\nsuppress evidence, or declare a mistrial. The defendant can also appeal and seek to reverse a conviction, among\nother remedies.\nThis book concentrates on criminal law rather than criminal procedure, so the bulk of this chapter is devoted\n\n67\n\n\x0c68 Criminal Law\n\nto unconstitutional criminal statutes, rather than unconstitutional procedures. The exception is the right to a jury\ntrial, which is discussed shortly.\n\nExample of Constitutional Protections\nBill is on trial for obstructing a public sidewalk. Bill was arrested for standing in front of a restaurant\xe2\x80\x99s entrance\nwith a sign stating \xe2\x80\x9cwill eat any and all leftovers.\xe2\x80\x9d The city ordinance Bill violated makes it a misdemeanor to\n\xe2\x80\x9cstand or sit on a public sidewalk with a sign.\xe2\x80\x9d To save money, the judge presiding over Bill\xe2\x80\x99s trial declares\nthat Bill will have a bench trial, rather than a jury trial. In this example, Bill can constitutionally attack the city\nordinance for violating his freedom of speech because it prohibits holding a sign. The city ordinance appears\nunconstitutional on its face and as applied to Bill. Bill can also constitutionally attack his bench trial because he\nhas the right to a jury trial. He could do this by making a motion to declare a mistrial, by petitioning an appellate\ncourt to halt the trial, or by appeal after a judgment of conviction.\nFigure 3.1 Constitutional Protections\n\nJudicial Review\nAs stated previously in this book, courts review statutes to ensure that they conform to the Constitution pursuant to\ntheir power of judicial review. Courts generally use different standards of review when constitutional protections\nare at stake. Typically, a court balances the government\xe2\x80\x99s interest in regulating certain conduct against an\nindividual\xe2\x80\x99s interest in a constitutionally protected right. This balancing of interests varies depending on the right\nat stake. If a constitutional right is fundamental, the court uses strict scrutiny to analyze the statute at issue. A\nstatute that violates or inhibits fundamental constitutional protections is presumptively invalid and can be upheld\nonly if it uses the least restrictive means possible. The government also must prove the statute is supported by a\ncompelling government interest. When the challenge is based on discrimination under the equal protection clause,\nthe court may use a lower standard, called the rational basis test. The rational basis test allows a statute to\ndiscriminate if the statute is rationally related to a legitimate government interest. Most constitutional rights are\nconsidered fundamental and trigger the strict scrutiny of the courts.\n\n\x0c3.1 Applicability of the Constitution 69\n\nExample of Strict Scrutiny\nReview the example regarding Bill, who was arrested essentially for standing and holding a sign. The US Supreme\nCourt has held that freedom of speech is a fundamental right. Thus a court reviewing the ordinance in Bill\xe2\x80\x99s case\nwill hold the ordinance presumptively invalid, unless the government can demonstrate a compelling interest in\nenacting it, and that it used the least restrictive means possible. The ordinance is broadly written to include all\nsigns, and preventing individuals from holding signs does not serve a compelling government interest, so this\ndifficult standard will probably result in the court holding the ordinance unconstitutional.\n\nThe Legislative Branch\xe2\x80\x99s Prohibited Powers\nThe legislative branch cannot punish defendants without a trial or enact retroactive criminal statutes pursuant to\nthe Constitution\xe2\x80\x99s prohibition against bill of attainder and ex post facto laws. Article 1, \xc2\xa7 9, clause 3 states, in\npertinent part, \xe2\x80\x9cNo Bill of Attainder or ex post facto Law shall be passed.\xe2\x80\x9d The prohibition on bill of attainder and\nex post facto laws is extended to the states in Article 1, \xc2\xa7 10, clause 1: \xe2\x80\x9cNo State shall\xe2\x80\xa6pass any Bill of Attainder,\nex post facto Law.\xe2\x80\x9d Many state constitutions also prohibit ex post facto legislative action, mirroring the federal\nConstitution (Indiana Constitution, 2010).\n\nBill of Attainder\nBill of attainder is when the legislative branch of government punishes the defendant without a trial. The drafters\nof the Constitution wanted to ensure that criminal defendants have a full and fair adjudication of their rights\nbefore the government imposes punishment. Bill of attainder is usually accomplished by a statute that targets an\nindividual or group of individuals for some type of government sanction. Bill of attainder protection enforces\nseparation of powers by eliminating the ability of the legislature to impose criminal punishment without a trial\nconducted by the judicial branch (U.S. v. Brown, 2010).\n\nExample of Bill of Attainder\nBrianne is a member of the Communist party. Brianne applies for a job as a teacher at her local elementary\nschool and is refused, based on this statute: \xe2\x80\x9cMembers of any subversive group, including the Communist party,\ncannot hold public office nor teach for a public institution.\xe2\x80\x9d Brianne could attack this statute as a bill of attainder.\nIts provisions, targeting members of the Communist party or any other subversive group, punish by eliminating\ncareer opportunities. The members targeted are punished without a trial or any adjudication of their rights. Thus\nthis statute allows the legislature to impose a sanction without a trial in violation of the Constitution\xe2\x80\x99s prohibited\npowers.\n\n\x0c70 Criminal Law\n\nEx Post Facto\nAn ex post facto law punishes an individual retroactively, and severely encroaches on notions of fairness. There\nare three types of ex post facto laws. First, a law is ex post facto if it punishes behavior that occurred before the\nlaw was in effect. Second, ex post facto laws may increase the punishment for the offense after the crime occurred.\nThird, a law can be ex post facto if it increases the possibility of conviction after the crime occurred.\n\nExample of an Ex Post Facto Law Punishing Behavior Retroactively\nA state murder statute defines murder as the killing of a human being, born alive. The state legislature amends\nthis statute to include the killing of a fetus, with the exception of abortion. The amendment extends the application\nof the statute to all criminal fetus killings that occurred before the statute was changed. This language punishes\ndefendants for behavior that was legal when committed. If the state attempts to include this language, a court can\nstrike the statute for violating the prohibition against ex post facto laws.\n\nExample of an Ex Post Facto Law Increasing Punishment\nRetroactively\nIn the preceding example about amending the murder statute, the state also amends the statute to increase the\npenalty for murder to the death penalty. Before the amendment, the penalty for murder was life in prison without\nthe possibility of parole. The state cannot give the death penalty to defendants who committed murder before the\nstatute was amended. This is considered ex post facto because it increases the punishment for the offense after the\ncrime is committed.\n\nExample of an Ex Post Facto Law Increasing the Possibility of\nConviction Retroactively\nIn the preceding example, the state amends the murder statute to remove the statute of limitations, which is\nthe time limit on prosecution. Before the amendment, the statute of limitations was fifty years. The state cannot\nprosecute defendants who committed murder more than fifty years ago, pursuant to the amendment. This is\nconsidered ex post facto because it increases the chance of conviction after the crime is committed.\n\nChanges That Benefit a Defendant Retroactively\nChanges that benefit a criminal defendant are not considered ex post facto and may be applied retroactively.\nIn the preceding example, if the state amended the murder statute to shorten the statute of limitations, this\n\n\x0c3.1 Applicability of the Constitution 71\n\nchange actually benefits defendants by making it more difficult to convict them. Thus this amendment would be\nconstitutional.\n\nEx Post Facto Applies Only to Criminal Laws\nEx post facto protection applies only to criminal laws. Laws that raise fees or taxes after payment are civil\nrather than criminal in nature. Thus these retroactive increases do not exceed governmental authority and are\nconstitutional.\nFigure 3.2 The Constitution\xe2\x80\x99s Prohibited Powers\n\n\x0c72 Criminal Law\n\nKey Takeaways\n\xe2\x80\xa2\n\nThe Constitution protects individuals from certain statutes and certain governmental procedures.\n\n\xe2\x80\xa2\n\nA statute is unconstitutional on its face when its wording is unconstitutional. A statute is unconstitutional\nas applied when its enforcement is unconstitutional.\n\n\xe2\x80\xa2\n\nA court reviews a statute for constitutionality using strict scrutiny if the statute inhibits a fundamental\nconstitutional right. Strict scrutiny means that the statute is presumptively invalid, and the government must\n\n\x0c3.1 Applicability of the Constitution 73\n\nprove it is supported by a compelling government interest and uses the least restrictive means. Occasionally,\na court reviews a statute for constitutionality under the equal protection clause using the rational basis test,\nwhich means that the statute is constitutional if rationally related to a legitimate government interest.\n\xe2\x80\xa2\n\nA bill of attainder is when the legislative branch punishes a defendant without a trial. Ex post facto laws\npunish criminal defendants retroactively.\n\n\xe2\x80\xa2\n\nEx post facto laws punish defendants for acts that were not criminal when committed, increase the\npunishment for a crime retroactively, or increase the chance of criminal conviction retroactively.\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nA public university raises tuition in the middle of the semester after students have already paid and sends\nall registered students a bill for \xe2\x80\x9cfees past due.\xe2\x80\x9d Does this violate the prohibition on ex post facto laws? Why\nor why not?\n\n2.\n\nRead Smith v. Doe, 538 U.S. 84 (2003). Why did the US Supreme Court hold that Alaska\xe2\x80\x99s Megan\xe2\x80\x99s Law\nis constitutional? The case is available at this link: http://scholar.google.com/\nscholar_case?case=14879258853492825339&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\n3.\n\nRead Stogner v. California, 539 U.S. 607 (2003). Why did the US Supreme Court hold that California\xe2\x80\x99s\nSex Offender statute of limitations was unconstitutional? The case is available at this link:\nhttp://supreme.justia.com/us/539/607.\n\nReferences\nIndiana Constitution, art. I, \xc2\xa7 24, accessed October 4, 2010, http://www.law.indiana.edu/uslawdocs/inconst/\nart-1.html.\nU.S. v. Brown, 381 U.S. 437 (1965), accessed October 2, 2010, http://supreme.justia.com/us/381/437/case.html.\n\n\x0c3.2 The Due Process and Equal Protection Clauses\n\nLearning Objectives\n1.\n\nDefine the Bill of Rights.\n\n2.\n\nDefine the principle of selective incorporation.\n\n3.\n\nDistinguish between substantive and procedural due process.\n\n4.\n\nCompare void for vagueness and overbreadth.\n\n5.\n\nAscertain the purpose of the equal protection clause as it applies to criminal laws.\n\nAlthough the legislative branch\xe2\x80\x99s prohibited powers are in Article I of the Constitution, the Bill of Rights\ncontains most of the constitutional protections afforded to criminal defendants. The Bill of Rights is the first ten\namendments to the Constitution. In addition, the Fourteenth Amendment, which was added to the Constitution\nafter the Civil War, has a plethora of protections for criminal defendants in the due process and equal protection\nclauses.\nThe Bill of Rights was originally written to apply to the federal government. However, US Supreme Court\nprecedent has held that any constitutional amendment that is implicit to due process\xe2\x80\x99s concept of ordered liberty\nmust be incorporated into the Fourteenth Amendment\xe2\x80\x99s protections and applied to the states (Duncan v. Louisiana,\n2010). This doctrine is called selective incorporation, and it includes virtually all the constitutional protections\nin the Bill of Rights. Thus although the original focus of the Bill of Rights may have been limiting the federal\ngovernment, modern interpretations of the Constitution ensure that its protections also extend to all levels of state\nand local government.\n\nThe Meaning of Due Process of Law\nThe due process clause states, \xe2\x80\x9cNo person shall\xe2\x80\xa6be deprived of life, liberty, or property, without due process of\nlaw.\xe2\x80\x9d The due process clause in the Fifth Amendment applies to federal crimes and federal criminal prosecutions.\nThe federal due process clause is mirrored in the Fourteenth Amendment, which guarantees due process of law\nin state criminal prosecutions. Most states have a similar provision in their constitutions (Missouri Constitution,\n2010).\nSubstantive due process protects individuals from an unreasonable loss of substantive rights, such as the\nright to speak freely and the right to privacy. Procedural due process protects individuals from being criminally\npunished without notice and an opportunity to be heard. Both substantive and procedural due processes ensure\nthat individuals are not denied their life (capital punishment), liberty (incarceration), or property (forfeiture)\narbitrarily.\n\n74\n\n\x0c3.2 The Due Process and Equal Protection Clauses 75\n\nVoid for Vagueness\nVoid for vagueness challenges the wording of a statute under the due process clause. A statute is void for\nvagueness if it uses words that are indefinite or ambiguous. Statutes that are not precisely drafted do not provide\nnotice to the public of exactly what kind of behavior is criminal. In addition, and more important, they give too\nmuch discretion to law enforcement and are unevenly enforced (U.S. v. White, 2010). With a void for vagueness\nchallenge, the statute must be so unclear that \xe2\x80\x9cmen of common intelligence must guess at its meaning,\xe2\x80\x9d (Connally\nv. General Construction Co., 2010) which is an objective standard.\n\nExample of a Statute That Is Void for Vagueness\nA state legislature enacts a statute that criminalizes \xe2\x80\x9cinappropriate attire on public beaches.\xe2\x80\x9d Larry, a law\nenforcement officer, arrests Kathy for wearing a two-piece bathing suit at the beach because in his belief, women\nshould wear one-piece bathing suits. Two days later, Burt, another law enforcement officer, arrests Sarah for\nwearing a one-piece bathing suit at the beach because in his belief, women should not be seen in public in\nbathing suits. Kathy and Sarah can attack the statute on its face and as applied as void for vagueness. The term\n\xe2\x80\x9cinappropriate\xe2\x80\x9d is unclear and can mean different things to different people. Thus it gives too much discretion to\nlaw enforcement, is subject to uneven application, and does not give Kathy, Sarah, or the public adequate notice\nof what behavior is criminal.\n\nOverbreadth\nA statute is overbroad if it criminalizes both constitutionally protected and constitutionally unprotected conduct.\nThis challenge is different from void for vagueness, although certain statutes can be attacked on both grounds.\nAn overbroad statute criminalizes too much and needs to be revised to target only conduct that is outside the\nConstitution\xe2\x80\x99s parameters.\n\nExample of an Overbroad Statute\nA state legislature enacts a statute that makes it criminal to photograph \xe2\x80\x9cnude individuals who are under the\nage of eighteen.\xe2\x80\x9d This statute is probably overbroad and violates due process. While it prohibits constitutionally\nunprotected conduct, such as taking obscene photographs of minors, it also criminalizes First Amendment\nprotected conduct, such as photographing a nude baby.\nFigure 3.3 The Due Process Clause\n\n\x0c76 Criminal Law\n\nThe Equal Protection Clause\nThe Fourteenth Amendment states in relevant part, \xe2\x80\x9cnor shall any State\xe2\x80\xa6deny to any person within its jurisdiction\nthe equal protection of the laws.\xe2\x80\x9d The equal protection clause applies to the state government. State constitutions\ngenerally have a similar provision (California Constitution, 2010). The equal protection clause prevents the state\ngovernment from enacting criminal laws that discriminate in an unreasonable and unjustified manner. The Fifth\nAmendment due process clause prohibits the federal government from discrimination if the discrimination is so\nunjustifiable that it violates due process of law (Bolling v. Sharpe, 2010).\n\n\x0c3.2 The Due Process and Equal Protection Clauses 77\n\nThe prohibition on governmental discrimination is not absolute; it depends on the class of persons targeted\nfor special treatment. In general, court scrutiny is heightened according to a sliding scale when the subject\nof discrimination is an arbitrary classification. Arbitrary means random and often includes characteristics an\nindividual is born with, such as race or national origin. The most arbitrary classifications demand strict scrutiny,\nwhich means the criminal statute must be supported by a compelling government interest. Statutes containing\nclassifications that are not arbitrary must have a rational basis and be supported by a legitimate government\ninterest.\nCriminal statutes that classify individuals based on their race must be given strict scrutiny because race is an\narbitrary classification that cannot be justified. Modern courts do not uphold criminal statutes that classify based\non race because there is no government interest in treating citizens of a different race more or less harshly (Loving\nv. Virginia, 2010).\nCriminal statutes that have a rational basis for discrimination and are supported by a legitimate government\ninterest can discriminate, and frequently do. Criminal statutes that punish felons more severely when they have\na history of criminal behavior, for example, three-strikes statutes, are supported by the legitimate government\ninterests of specific and general deterrence and incapacitation. Note that the basis of the discrimination, a\ncriminal defendant\xe2\x80\x99s status as a convicted felon, is rational, not arbitrary like race. Thus although these statutes\ndiscriminate, they are constitutional pursuant to the equal protection clause.\nFigure 3.4 The Equal Protection Clause\n\n\x0c78 Criminal Law\n\nKey Takeaways\n\xe2\x80\xa2\n\nThe Bill of Rights is the first ten amendments to the Constitution and contains many protections for\ncriminal defendants.\n\n\xe2\x80\xa2\n\nSelective incorporation applies most of the constitutional protections in the Bill of Rights to the states.\n\n\xe2\x80\xa2\n\nSubstantive due process protects criminal defendants from unreasonable government intrusion on their\nsubstantive constitutional rights. Procedural due process provides criminal defendants with notice and an\nopportunity to be heard before imposition of a criminal punishment.\n\n\xe2\x80\xa2\n\nA statute that is void for vagueness is so imprecisely worded that it gives too much discretion to law\nenforcement, is unevenly applied, and does not provide notice of what is criminal. A statute that is\noverbroad includes constitutionally protected conduct and therefore unreasonably encroaches upon\nindividual rights.\n\n\xe2\x80\xa2\n\nThe equal protection clause prevents the state government from enacting criminal laws that arbitrarily\ndiscriminate. The Fifth Amendment due process clause extends this prohibition to the federal government if\nthe discrimination violates due process of law.\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nA local ordinance makes it a misdemeanor to dress in \xe2\x80\x9cgang attire.\xe2\x80\x9d Is this ordinance constitutional? Why\nor why not?\n\n2.\n\nRead Smith v. Goguen, 415 U.S. 566 (1974). Why did the US Supreme Court strike down the\nMassachusetts flag misuse statute? The case is available at this link: http://scholar.google.com/\nscholar_case?case=14723025391522670978&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\n3.\n\nRead Grayned v. City of Rockford, 408 U.S. 104 (1972). In Grayned, the US Supreme Court analyzed an\nordinance prohibiting individuals from willfully making a noise or disturbance on grounds adjacent to a\nschool building that disturbs the peace or good order of the school session. Did the Court hold that this\nordinance was constitutional? Why or why not? The case is available at this link: http://supreme.justia.com/\nus/408/104/case.html.\n\n4.\n\nRead Justice Sandra Day O\xe2\x80\x99Connor\xe2\x80\x99s concurring opinion in Lawrence v. Texas, 539 U.S. 558 (2003).\nWhy did Justice O\xe2\x80\x99Conner feel that Texas\xe2\x80\x99s sodomy law was unconstitutional? The case is available at this\nlink: http://www.law.cornell.edu/supct/html/02-102.ZC.html.\n\nReferences\nBolling v. Sharpe, 347 U.S. 497 (1954), accessed October 4, 2010, http://scholar.google.com/\nscholar_case?case=16234924501041992561&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\nCalifornia Constitution, art. I, \xc2\xa7 7, accessed October 4, 2010, http://www.leginfo.ca.gov/.const/.article_1.\nConnally v. General Construction Co., 269 U.S. 385 (1926), accessed October 3, 2010,\nhttp://supreme.justia.com/us/269/385/case.html.\n\n\x0c3.2 The Due Process and Equal Protection Clauses 79\n\nDuncan v. Louisiana, 391 U.S. 145 (1968), accessed October 20, 2010, http://caselaw.lp.findlaw.com/scripts/\ngetcase.pl?court=us&vol=391&invol=145.\nLoving v. Virginia, 388 U.S. 1 (1967), accessed October 4, 2010, http://www.law.cornell.edu/supct/html/\nhistorics/USSC_CR_0388_0001_ZO.html.\nMissouri Constitution, art. I, \xc2\xa7 10, accessed October 10, 2010, http://www.sos.mo.gov/pubs/\nmissouri_constitution.pdf.\nU.S. v. White, 882 F.2d 250 (1989), accessed October 6, 2010, http://scholar.google.com/\nscholar_case?case=12667022335593752485&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\n\x0c3.3 Freedom of Speech\n\nLearning Objectives\n1.\n\nDefine speech under the First Amendment.\n\n2.\n\nIdentify five types of speech that can be governmentally regulated in spite of the First Amendment.\n\n3.\n\nAscertain the constitutional parameters for statutes that criminalize speech.\n\nThe First Amendment states, in relevant part, \xe2\x80\x9cCongress shall make no law\xe2\x80\xa6abridging the freedom of speech.\xe2\x80\x9d\nAlthough this language specifically targets federal Congress, the First Amendment has been held applicable to\nthe states by virtue of selective incorporation (Gitlow v. New York, 2010). Most state constitutions have a similar\nprovision protecting freedom of speech (Illinois Constitution, 2010).\nFreedom of speech has been the focus of countless judicial opinions. To summarize US Supreme Court\nprecedent, the word speech has been interpreted to cover virtually any form of expression, including verbal\nand written words, pictures, photographs, videos, and songs. First Amendment speech also includes expressive\nconduct such as dressing a certain way (Tinker v. Des Moines Independent Community School District, 2011),\nflag burning (Texas v. Johnson, 2010), and cross burning (R.A.V. v. St. Paul, 2010).\n\nExceptions to the First Amendment\xe2\x80\x99s Protection of Free Speech\nIn general, courts have examined the history of the Constitution and the policy supporting freedom of speech when\ncreating exceptions to its coverage. Modern decisions afford freedom of speech the strictest level of scrutiny;\nonly a compelling government interest can justify an exception, which must use the least restrictive means\npossible (Sable Communis. of California, Inc. v. FCC, 2010). For the purpose of brevity, this book reviews the\nconstitutional exceptions to free speech in statutes criminalizing fighting words, incitement to riot, hate crimes,\nand obscenity.\nFigure 3.5 The First Amendment\n\n80\n\n\x0c3.3 Freedom of Speech 81\n\nFighting Words\nAlthough the First Amendment protects peaceful speech and assembly, if speech creates a clear and present\ndanger to the public, it can be regulated (Schenck v. U.S., 2010). This includes fighting words, \xe2\x80\x9cthose which\nby their very utterance inflict injury or tend to incite an immediate breach of the peace\xe2\x80\x9d (Chaplinsky v. New\nHampshire, 2010).\nAny criminal statute prohibiting fighting words must be narrowly tailored and focus on imminent rather\nthan future harm. Modern US Supreme Court decisions indicate a tendency to favor freedom of speech over\nthe government\xe2\x80\x99s interest in regulating fighting words, and many fighting words statutes have been deemed\nunconstitutional under the First Amendment or void for vagueness and overbreadth under the Fifth Amendment\nand Fourteenth Amendment due process clause (Lewis v. City of New Orleans, 2010).\n\n\x0c82 Criminal Law\n\nExample of an Unconstitutional Fighting Words Statute\nGeorgia enacted the following criminal statute: \xe2\x80\x9cAny person who shall, without provocation, use to or of another,\nand in his presence\xe2\x80\xa6opprobrious words or abusive language, tending to cause a breach of the peace\xe2\x80\xa6shall\nbe guilty of a misdemeanor\xe2\x80\x9d (Ga. Code \xc2\xa7 26-6303). The US Supreme Court determined that this statute was\noverbroad, void for vagueness, and unconstitutional under the First Amendment (Gooding v. Wilson, 2010).\nThe Court held that the dictionary definitions of \xe2\x80\x9copprobrious\xe2\x80\x9d and \xe2\x80\x9cabusive\xe2\x80\x9d give them greater reach than\nfighting words. Thus the statute is overbroad and does not restrict its prohibition to imminent harm. Opprobrious\nand abusive have various meanings, so the statute is also subject to uneven enforcement and is void for vagueness.\nAs the Court stated, this language \xe2\x80\x9clicenses the jury to create its own standard in each case\xe2\x80\x9d (Gooding v. Wilson,\n1972; Herndon v. Lowry, 2010).\n\nIncitement to Riot\nIncitement to riot can also be regulated under the clear and present danger exception. Similar to fighting words, an\nincitement to riot statute must prohibit imminent lawless action (Brandenburg v. Ohio, 2010).Statutes that prohibit\nsimple advocacy with no imminent threat or harm cannot withstand the First Amendment\xe2\x80\x99s heightened scrutiny.\n\nExample of an Unconstitutional Incitement to Riot Statute\nOhio enacted a statute that criminalized \xe2\x80\x9cadvocat[ing]\xe2\x80\xa6the duty, necessity, or propriety of crime, sabotage,\nviolence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform\xe2\x80\x9d and\n\xe2\x80\x9cvoluntarily assembl[ing] with any society, group or assemblage of persons formed to teach or advocate the\ndoctrines of criminal syndicalism\xe2\x80\x9d (Ohio Rev. Code Ann. \xc2\xa7 2923.13). A Ku Klux Klan leader was convicted\nunder the statute after the media broadcast films of him leading a KKK meeting. The US Supreme Court held,\n\xe2\x80\x9cAccordingly, we are here confronted with a statute which, by its own words and as applied, purports to punish\nmere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the\ndescribed type of action. Such a statute falls within the condemnation of the First and Fourteenth Amendments\xe2\x80\x9d\n(Brandenburg v. Ohio, 2010).\n\nHate Crimes\nMany states and the federal government have enacted hate crimes statutes. When hate crimes statutes criminalize\nspeech, including expressive conduct, a First Amendment analysis is appropriate. When hate crimes statutes\nenhance a penalty for criminal conduct that is not expressive, the First Amendment is not applicable (Wisconsin\nv. Mitchell, 2010).\nHate crimes statutes punish conduct that is targeted at specific classifications of people. These classifications\nare listed in the statute and can include race, ethnicity, gender, sexual orientation, or religion. Hate crimes statutes\n\n\x0c3.3 Freedom of Speech 83\n\nthat criminalize speech can be constitutional under the clear and present danger exception if they are tailored to\napply only to speech or expressive conduct that is supported by the intent to intimidate (Virginia v. Black, 2010).\nThis can include speech and expressive conduct such as threats of imminent bodily injury, death, or cross burning.\nHate crimes statutes must be narrowly drafted, and cannot be void for vagueness or overbroad.\nHate crimes statutes that criminalize the content of speech, like a prejudicial opinion about a certain race,\nethnicity, gender, sexual orientation, or religion are unconstitutional under the First Amendment (R.A.V. v. St.\nPaul, 2010). Statutes of this nature have been held to have a \xe2\x80\x9cchilling effect\xe2\x80\x9d on free expression by deterring\nindividuals from expressing unpopular views, which is the essence of free speech protection. Although this type\nof speech can stir up anger, resentment, and possibly trigger a violent situation, the First Amendment protects\ncontent-based speech from governmental regulation without strict scrutiny exposing a compelling government\ninterest.\n\nExample of an Unconstitutional Statute Prohibiting Cross Burning\nSt. Paul, Minnesota, enacted the Bias-Motivated Crime Ordinance, which prohibited the display of a symbol\nthat a person knows or has reason to know \xe2\x80\x9carouses anger, alarm or resentment in others on the basis of race,\ncolor, creed, religion or gender\xe2\x80\x9d (Ordinance, St. Paul, Minn., Legis. Code \xc2\xa7 292.02 (1990)). In R.A.V. v. St. Paul,\n505 U.S. 377 (1992), the US Supreme Court held that this ordinance was unconstitutional on its face because\nregulation was based on the content of speech, with no additional requirement for imminent lawless action. The\nCourt held that the ordinance did not proscribe the use of fighting words (the display of a symbol) toward specific\ngroups of individuals, which would be an equal protection clause challenge. Instead, the Court determined that\nthe statute prohibited the use of specific types of fighting words, for example, words that promote racial hatred,\nand this is impermissible as viewpoint-based censorship. As the Court stated, \xe2\x80\x9c[c]ontent-based regulations are\npresumptively invalid\xe2\x80\x9d (R.A.V. v. St. Paul, 2010).\n\nExample of a Constitutional Statute Prohibiting Cross Burning\nVirginia enacted a statute that makes it criminal \xe2\x80\x9cfor any person\xe2\x80\xa6, with the intent of intimidating any person\nor group\xe2\x80\xa6, to burn\xe2\x80\xa6a cross on the property of another, a highway or other public place\xe2\x80\x9d (Va. Code Ann.\n\xc2\xa7 18.2-423). The US Supreme Court held this statute constitutional under the First Amendment because it did not\nsingle out cross burning indicating racial hatred, as the Minnesota cross-burning ordinance did. The Court stated,\n\xe2\x80\x9cUnlike the statute at issue in R. A. V., the Virginia statute does not single out for opprobrium only that speech\ndirected toward \xe2\x80\x98one of the specified disfavored topics.\xe2\x80\x99 Id., at 391.\xe2\x80\x9d It does not matter whether an individual\nburns a cross with intent to intimidate because of the victim\xe2\x80\x99s race, gender, or religion, or because of the victim\xe2\x80\x99s\n\xe2\x80\x9cpolitical affiliation, union membership, or homosexuality\xe2\x80\x9d (Virginia v. Black, 2010).\n\nObscenity\nAnother exception to free speech is obscenity. Obscenity is usually conveyed by speech, such as words, pictures,\n\n\x0c84 Criminal Law\n\nphotographs, songs, videos, and live performances. However, obscenity is not protected speech under the First\nAmendment (Roth v. United States, 2010).\nIn Miller v. California, 413 U.S. 15 (1973), the US Supreme Court devised a three-part test to ascertain if speech\nis obscene and subject to government regulation. Generally, speech is obscene if (1) the average person, applying\ncontemporary community standards would find that the work, taken as a whole, appeals to the prurient interest in\nsex; (2) it depicts sexual conduct specifically defined by the applicable state law in a patently offensive way; and\n(3) it lacks serious literary, artistic, political, or scientific value (Miller v. California, 2010).\n\nExample of Speech That Is Not Obscene\nIn Jenkins v. Georgia, 418 U.S. 153 (1974), the US Supreme Court viewed the film Carnal Knowledge to\ndetermine whether the defendant could be constitutionally convicted under an obscenity statute for showing it at\na local theater. The Court concluded that most of the film\xe2\x80\x99s sexual content was suggestive rather than explicit,\nand the only direct portrayal of nudity was a woman\xe2\x80\x99s bare midriff. Thus although a jury convicted the defendant\nafter viewing the film, the Court reversed the conviction, stating that the film does not constitute the hard-core\npornography that the three-part test for obscenity isolates from the First Amendment\xe2\x80\x99s protection. The Court\nstated, \xe2\x80\x9cAppellant\xe2\x80\x99s showing of the film \xe2\x80\x98Carnal Knowledge\xe2\x80\x99 is simply not the \xe2\x80\x98public portrayal of hard core\nsexual conduct for its own sake, and for the ensuing commercial gain\xe2\x80\x99 which we said was punishable in Miller,\nId., at 35\xe2\x80\x9d (Jenkins v. Georgia, 2010).\n\nNude Dancing\nStatutes that regulate nude dancing have also been attacked under the First Amendment. Although the US\nSupreme Court has ruled that nude dancing is constitutionally protected expression, it has also upheld reasonable\nrestrictions on nudity, such as requirements that nude dancers wear pasties and a g-string (City of Erie et al v.\nPap\xe2\x80\x99s A.M., 2010).\nTable 3.1 Statutes Prohibiting Speech under a First Amendment Exception\n\n\x0c3.3 Freedom of Speech 85\n\nPotential\nConduct\nConstitutional\nProhibited\nChallenge\n\nNecessary Statutory Requirements\n\nFighting\nwords\n\nFirst Amendment,\nvague, overbreadth\n\nMust proscribe imminent lawless action, be narrowly drafted, precise\n\nIncitement\nto riot\n\nFirst Amendment,\nvague, overbreadth\n\nMust proscribe imminent lawless action, be narrowly drafted, precise; cannot prohibit\nsimple advocacy\n\nHate\nspeech\n\nFirst Amendment,\nvague, overbreadth\n\nMust be narrowly drafted, precise; must target speech supported by the intent to\nintimidate; cannot be content based without a compelling government interest\n\nObscenity\n\nFirst Amendment,\nvague, overbreadth\n\nMust be narrowly drafted, precise; must target speech that appeals to a prurient interest\nin sex, depicts sex in a patently offensive way, lacks serious social value\n\nNude\ndancing\n\nFirst Amendment,\nvague, overbreadth\n\nCan be reasonably restricted\n\nLaw and Ethics\nShould Depictions of Animal Cruelty Be Protected by the First Amendment?\nCongress enacted 18 U.S.C. \xc2\xa7 48, which criminalizes commercial creation, sale, or possession of a visual or auditory\ndepiction in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if that conduct\nviolates federal or state law where the creation, sale, or possession takes place. In United States v. Stevens, 552 U.S. 442\n(2010), the US Supreme Court held that this statute is facially overbroad and violative of the First Amendment.\nSpecifically, the Court held that depictions of animal cruelty are entitled to First Amendment protection, and the statute\nis presumptively invalid because it is content based. In addition, the Court stated that the government\xe2\x80\x99s interest in\ncensoring this type of material is not compelling enough to outweigh the prohibition on protected speech and that the\nstatute on its face included material that may have redeeming social value. The Court\xe2\x80\x99s opinion is available at this link:\nhttp://www.law.cornell.edu/supct/html/08-769.ZO.html.\n1.\n\nDo you think the First Amendment should protect material depicting animal cruelty? Why or why not?\n\n2.\n\nWhat are some possible consequences of criminalizing this type of speech?\n\nCheck your answers to both questions using the answer key at the end of the chapter.\n\nU.S. v. Stevens Video\nAmerican Civil Liberties Union (ACLU) Explains the U.S. v. Stevens Case\nThis video of ACLU legal director Steven R. Shapiro analyzes the U.S. v. Stevens case:\n" href="http://www.youtube.com/watch?v=a4xUyviw6zY" class="replaced-iframe" onclick="return\nreplaceIframe(this)" data-url="http://www.youtube.com/watch?v=a4xUyviw6zY">(click to see video)\n\n\x0c86 Criminal Law\n\nKey Takeaways\n\xe2\x80\xa2\n\nSpeech under the First Amendment is any form of expression, such as verbal or written words, pictures,\nvideos, and songs. Expressive conduct, such as dressing a certain way, flag burning, and cross burning, is\nalso considered First Amendment speech.\n\n\xe2\x80\xa2\n\nFive types of speech that can be governmentally regulated are fighting words, incitement to riot, hate\nspeech, obscenity, and nude dancing.\n\n\xe2\x80\xa2\n\nStatutes that prohibit fighting words and incitement to riot must be narrowly drafted to include only\nspeech that incites imminent unlawful action, not future harm or general advocacy. Statutes that prohibit\nhate speech must be narrowly drafted to include only speech that is supported by the intent to intimidate.\nStatutes that prohibit obscenity must target speech that appeals to a prurient interest in sex, depicts sexual\nconduct in a patently offensive way, and has little or no literary, artistic, political, or scientific value. Nude\ndancing can be regulated as long as the regulation is reasonable, such as requiring dancers to wear pasties\nand a g-string.\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nA state statute enhances the penalty for battery if the crime is committed \xe2\x80\x9cbecause of the victim\xe2\x80\x99s race.\xe2\x80\x9d\nTo prove race-biased intent, it is frequently necessary to admit evidence of the defendant\xe2\x80\x99s statements\nindicating racial hatred and intolerance. Does this statute violate the First Amendment\xe2\x80\x99s free speech\nprotection? Why or why not? Read the case on which this question is based, Wisconsin v. Mitchell, 508 U.S.\n47 (1993). The case is available at this link: http://www.law.cornell.edu/supct/html/92-515.ZO.html.\n\n2.\n\nRead Reno v. American Civ. Liberties Union, 521 U.S. 844 (1997). This case reviews the constitutionality\nof a federal statute regulating Internet activity to protect minors. Why did the US Supreme Court hold that\ncertain provisions of the federal Communications Decency Act of 1996 were unconstitutional? The case is\navailable at this link: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=96-511.\n\n3.\n\nRead Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010). Did the US Supreme Court uphold a\nfederal statute prohibiting aid to terrorist groups? Why or why not? The case is available at this link:\nhttp://scholar.google.com/\nscholar_case?case=3116082426854631219&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\nReferences\nBrandenburg v. Ohio, 395 U.S. 444 (1969), accessed October 6, 2010, http://supreme.justia.com/us/395/444/\ncase.html.\nChaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942), accessed October 6, 2010,\nhttp://caselaw.lp.findlaw.com/cgi-bin/\ngetcase.pl?friend=wisbar&navby=case&court=us&vol=315&invol=568&pageno=574.\nCity of Erie et al v. Pap\xe2\x80\x99s A.M., 529 U.S. 277 (2000), accessed October 11, 2010, http://caselaw.lp.findlaw.com/\nscripts/getcase.pl?court=us&vol=000&invol=98-1161.\n\n\x0c3.3 Freedom of Speech 87\n\nGitlow v. New York, 268 U.S. 652 (1925), accessed October 5, 2010, http://supreme.justia.com/us/268/652/\ncase.html.\nGooding v. Wilson, 405 U.S. 518 (1972), accessed October 7, 2010, http://scholar.google.com/\nscholar_case?case=3138831397470557431&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\nHerndon v. Lowry, 301 U.S. 242, 263 (1937), accessed October 7, 2010, http://scholar.google.com/\nscholar_case?case=3138831397470557431&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\nIllinois Constitution, art. I, \xc2\xa7 4, accessed October 9, 2010, http://www.ilga.gov/commission/lrb/con1.htm.\nJenkins v. Georgia, 418 U.S. 153, 161 (1974), accessed October 7, 2010, http://caselaw.lp.findlaw.com/scripts/\ngetcase.pl?navby=case&court=us&vol=418&invol=153.\nLewis v. City of New Orleans, 415 U.S. 130 (1974), accessed October 7, 2010, http://caselaw.lp.findlaw.com/\nscripts/getcase.pl?navby=case&court=us&vol=415&invol=130.\nMiller v. California, 413 U.S. 15 (1973), accessed October 7, 2010, http://scholar.google.com/\nscholar_case?case=287180442152313659&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\nR.A.V. v. St. Paul, 505 U.S. 377 (1992), accessed October 5, 2010, http://caselaw.lp.findlaw.com/scripts/\ngetcase.pl?court=us&vol=505&invol=377.\nRoth v. United States, 354 U.S. 476 (1957), accessed October 7, 2010, http://supreme.justia.com/us/354/476/\ncase.html.\nSable Communis. of California, Inc. v. FCC, 492 U.S. 115 (1989), accessed October 5, 2010,\nhttp://supreme.justia.com/us/492/115/case.html.\nSchenck v. U.S., 249 U.S. 47 (1919), accessed October 5, 2010, http://supreme.justia.com/us/249/47/case.html.\nTexas v. Johnson, 491 U.S. 397 (1989), accessed October 5, 2010, http://caselaw.lp.findlaw.com/scripts/\ngetcase.pl?court=us&vol=491&invol=397.\nTinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), accessed October 8, 2011,\nhttp://supreme.justia.com/us/393/503/case.html.\nVirginia v. Black, 535 U.S. 343 (2003), accessed October 5, 2010, http://caselaw.lp.findlaw.com/scripts/\ngetcase.pl?court=us&vol=000&invol=01-1107.\nWisconsin v. Mitchell, 508 U.S. 47 (1993), accessed October 7, 2010, http://www.law.cornell.edu/supct/html/\n92-515.ZO.html.\n\n\x0c3.4 The Right to Privacy\n\nLearning Objectives\n1.\n\nAscertain the constitutional amendments that support a right to privacy.\n\n2.\n\nAscertain three constitutionally protected individual interests that are included in the right to privacy.\n\nThe federal Constitution does not explicitly protect privacy. However, several of the amendments in the Bill\nof Rights ensure and protect individual decision making and autonomy from governmental intrusion. Thus\nmodern interpretations of the Constitution by the US Supreme Court have created a right to privacy (Griswold\nv. Connecticut, 2010). This right is considered fundamental and subject to strict scrutiny; only a compelling\ngovernment interest can justify a statute encroaching on its protections. Many states include an explicit right to\nprivacy in their state constitutions (Hawaii Consitution, 2010).\n\nThe Constitutional Amendments Protecting Privacy\nUS Supreme Court precedent has held that the right to privacy comes from the First, Third, Fourth, Fifth, Ninth,\nand Fourteenth Amendments. The First Amendment protects the right to speak freely, assemble peacefully, and\nworship according to individual choice. The Third Amendment prohibits the government from forcing individuals\nto quarter, house, or feed soldiers. The Fourth Amendment prevents the government from unreasonably searching\nor seizing an individual or an individual\xe2\x80\x99s property. The Fifth and Fourteenth Amendments provide due process of\nlaw before the government can deprive an individual of life, liberty, or property. The Ninth Amendment states that\nrights not explicitly set forth in the Constitution may still exist. Taken together, these amendments indicate that the\nConstitution was written to erect a barrier between individuals and an overly intrusive and regulatory government.\nIn modern society, this right to privacy guarantees the right to use birth control, the right to an abortion, and the\nright to participate in consensual sexual relations.\n\nThe Right to Use Birth Control\nThe right to privacy was first established in the US Supreme Court case of Griswold v. Connecticut, 381 U.S. 479\n(1965). In Griswold, the defendants, Planned Parenthood employees, were convicted of prescribing birth control\nas accessories under two Connecticut statutes that criminalized the use of birth control. The Court found the\nstatutes unconstitutional, holding that the First, Third, Fourth, Fifth, and Ninth Amendments created a \xe2\x80\x9cpenumbra\xe2\x80\x9d\nof unenumerated constitutional rights, including zones of privacy (Griswold v. Connecticut, 2010). The Court\nstated that marital privacy, especially, deserved the utmost protection from governmental intrusion. The Griswold\n88\n\n\x0c3.4 The Right to Privacy 89\n\ncase set the stage for other fundamental privacy rights related to intimacy, including the right to an abortion and\nthe right to consensual sexual relations.\n\nThe Right to an Abortion\nThe right to an abortion was set forth in the seminal US Supreme Court case of Roe v. Wade, 410 U.S. 113 (1973).\nIn Roe, which examined a Texas statute criminalizing abortion, the Court held that every woman has the right to a\nlegal abortion through the first trimester of pregnancy. In the aftermath of the Roe decision, more than half of the\nnation\xe2\x80\x99s state laws criminalizing abortion became unconstitutional and unenforceable. The Court held that state\ngovernment has a legitimate interest in protecting a pregnant woman and her fetus from harm, which becomes\na compelling interest when she has reached full term. However, during the first trimester, health concerns from\nabortion do not justify the erosion of a woman\xe2\x80\x99s right to make the abortion decision (Roe v. Wade, 2010). The\nCourt thereafter struck down the Texas antiabortion statute as overbroad under the Fourteenth Amendment due\nprocess clause. Specifically, the Court held that during the first trimester of pregnancy, the abortion decision must\nbe left to the pregnant woman and her attending physician (Roe v. Wade, 2010). In a recent decision post-Roe,\nthe Court upheld a federal statute criminalizing partial-birth abortion, on the grounds that it was not void for\nvagueness or overbroad under the Fifth Amendment due process clause (Gonzales v. Carhat, 2010).\n\nThe Right to Consensual Sexual Relations\nEven in the aftermath of Roe v. Wade, courts were reluctant to interfere with states\xe2\x80\x99 interests in enacting and\nenforcing statutes that criminalized sexual conduct. In Bowers v. Hardwick, 478 U.S. 186 (1986), the US Supreme\nCourt upheld a Georgia statute that made it a crime to engage in consensual sodomy (Bowers v. Hardwick, 2010).\nThe Court stated that there is no fundamental right to engage in sodomy and that the history of protecting marriage\nand family relationships should not be extended in this fashion (Bowers v. Hardwick, 2010). Many years later, the\nCourt changed its stance and overruled Bowers in Lawrence v. Texas, 539 U.S. 558 (2003). In Lawrence, a Texas\nstatute criminalizing homosexual sodomy was attacked on its face and as applied to two men who were discovered\nengaging in sex in their bedroom during a law enforcement search for weapons. The Lawrence decision rested on\nthe due process clause of the Fourteenth Amendment. The Court held that intimate choices are a form of liberty\nprotected by the due process clause, whether or not consenting individuals are married. The Court thereafter struck\ndown the Texas sodomy statute because it was not justified by a sufficient government interest (Lawrence v.\nTexas, 2010).\n\nExample of a Right to Privacy Analysis\nMost states have statutes criminalizing consensual incest, which is sexual intercourse between family members\nwho cannot legally marry. If an individual attacks a consensual incest statute as unconstitutional under the right\nto privacy, the court will balance the state\xe2\x80\x99s interest in preventing harm to an infant, such as birth defects, with\nan individual\xe2\x80\x99s interest in having consensual sexual intercourse with a family member, using strict scrutiny. If\n\n\x0c90 Criminal Law\n\nthe court finds that the government interest is compelling, it can uphold the statute as long as it is not vague or\noverbroad.\nFigure 3.6 The Right to Privacy\n\nKey Takeaways\n\xe2\x80\xa2\n\nThe constitutional amendments supporting the right to privacy are the First, Third, Fourth, Fifth, Ninth,\nand Fourteenth Amendments.\n\n\xe2\x80\xa2\n\nThe right to privacy in the Constitution protects an individual\xe2\x80\x99s right to use contraceptives, to receive an\nabortion through the first trimester, and to engage in consensual sexual relations.\n\n\x0c3.4 The Right to Privacy 91\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nA state statute prohibits inmates in state prison from engaging in consensual sodomy. An inmate is\nprosecuted under the statute. How will a court determine whether this statute is constitutional? Read the\nstatute on which this exercise is based: California Penal Code \xc2\xa7 286(e), http://law.onecle.com/california/\npenal/286.html.\n\n2.\n\nRead Planned Parenthood v. Casey, 505 U.S. 833 (1992). In Casey, Pennsylvania modified its abortion\nstatute to include a twenty-four-hour waiting period and informed consent for minors. Did the US Supreme\nCourt uphold the Pennsylvania abortion statute? The case is available at this link:\nhttp://www.law.cornell.edu/supct/html/91-744.ZS.html.\n\nReferences\nBowers v. Hardwick, 478 U.S. 186 (1986), accessed October 11, 2010, http://caselaw.lp.findlaw.com/scripts/\ngetcase.pl?court=us&vol=478&invol=186.\nGonzales v. Carhart, 127 S. Ct. 1610 (2007), accessed October 11, 2010, http://scholar.google.com/\nscholar_case?case=7079370668659431881&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\nGriswold v. Connecticut, 381 U.S. 479 (1965), accessed October 9, 2010, http://caselaw.lp.findlaw.com/scripts/\ngetcase.pl?court=us&vol=381&invol=479.\nHawaii Constitution, art. I, \xc2\xa7 6, accessed October 9, 2010, http://hawaii.gov/lrb/con/conart1.html.\nLawrence v. Texas, 539 U.S. 558 (2003), accessed October 11, 2010, http://caselaw.lp.findlaw.com/scripts/\ngetcase.pl?court=us&vol=000&invol=02-102.\nRoe v. Wade, 410 U.S. 113, 162 (1973), accessed October 10, 2010, http://www.law.cornell.edu/supct/html/\nhistorics/USSC_CR_0410_0113_ZO.html.\n\n\x0c3.5 The Right to Bear Arms\n\nLearning Objective\n1.\n\nAscertain the constitutional parameters of an individual\xe2\x80\x99s right to possess a handgun under the Second\nAmendment.\n\nAlthough the federal Constitution specifically references a right to bear arms in the Second Amendment, the US\nSupreme Court has not interpreted this amendment in a significant fashion until recently. The Second Amendment\nprovides \xe2\x80\x9c[a] well regulated Militia, being necessary to the security of a free state, the right of the people to keep\nand bear Arms, shall not be infringed.\xe2\x80\x9d Many state constitutions have a similar provision (Volokh, E., 2010). In\n2008, the US Supreme Court explored the Second Amendment and its effect on weapons possession in a case\nattacking Washington, DC, firearms legislation (District of Columbia v. Heller, 2010).\nIn District of Columbia v. Heller, 128 S. Ct. 2783 (2008), the Court affirmed the Court of Appeals for the D.C.\nCircuit in striking provisions of the Firearms Control Regulations Act of 1975. The Court struck the portions\nof this act that banned the possession of handguns and mandated that all legal firearms must be kept unloaded\nand disassembled while in the home. Although the District Court held that the Second Amendment applies only\nto the militia, the US Supreme Court emphasized that the Second Amendment is exercised individually and\nbelongs to all Americans. The Court also expanded previous interpretations of the Second Amendment to cover an\nindividual\xe2\x80\x99s right to possess a usable handgun in the home for self-defense. The Heller case is unprecedented and\nis the first to address individual handgun possession under the Second Amendment. However, the Heller ruling\nis narrow and specifically excludes firearms restrictions on felons, the mentally ill, firearm possession in or near\nschools or government buildings, and the commercial sale of firearms. The Heller decision also fails to extend the\nSecond Amendment\xe2\x80\x99s protections to the states because Washington, DC, is a federal enclave.\nIn McDonald v. Chicago, 130 S.Ct. 3020 (2010), the US Supreme Court revisited the gun possession issue by\nreviewing and rejecting as unconstitutional a handgun ban in the city of Chicago, Illinois. In McDonald, the Court\ntook the extra step of extending the Heller ruling to the states, holding that the Second Amendment applies to the\nstates via its selective incorporation into the due process clause. However, McDonald did not expand the ruling\nin Heller in other ways and reemphasized the Heller exceptions of firearms restrictions on felons, the mentally ill,\nfirearm possession in or near schools or government buildings, and the commercial sale of firearms.\n\nExample of an Appropriate Restriction on Firearms\nDirk is a public middle-school janitor. Occasionally, with the permission of the principal, Dirk stays overnight in\nan outbuilding on campus when he works a particularly late shift. Dirk wants to keep a handgun in the outbuilding,\nfor protection. If Dirk\xe2\x80\x99s state has a statute prohibiting the possession of a handgun within one mile of any public\nschool, Dirk cannot keep a handgun in the outbuilding for self-defense. Modern US Supreme Court precedent\n92\n\n\x0c3.5 The Right to Bear Arms 93\n\nholds that the Second Amendment protects an individual\xe2\x80\x99s right to possess a handgun in the home for self-defense.\nHowever, this precedent specifically exempts firearm possession near schools. Unless newer precedent expands\nthe ruling to include firearm possession near schools, the statute in Dirk\xe2\x80\x99s state is constitutional.\nFigure 3.7 The Second Amendment\n\nKey Takeaway\n\xe2\x80\xa2\n\nPursuant to recent US Supreme Court precedent, the Second Amendment protects an individual\xe2\x80\x99s right to\npossess a usable handgun in the home for self-defense. This protection does not cover felons, the mentally\nill, firearm possession near schools and government buildings, or the commercial sale of firearms.\n\n\x0c94 Criminal Law\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nA state court order forbids the defendant from possessing a handgun while on probation. This makes it\nimpossible for the defendant to resume his career as a police officer. How will this court order be analyzed\nunder recent US Supreme Court precedent interpreting the Second Amendment?\n\n2.\n\nRead Lewis v. U.S., 445 U.S. 55 (1980). In Lewis, the defendant, a felon, was convicted under a federal\nstatute for possession of a firearm by a convicted felon. The defendant claimed that this was\nunconstitutional because he was not represented by counsel during his trial on the original felony. The\ndefendant never sought a pardon or reversal of his conviction for the original felony on appeal. Did the US\nSupreme Court uphold the defendant\xe2\x80\x99s conviction for possession of a firearm by a convicted felon? The case\nis available at this link: http://scholar.google.com/\nscholar_case?case=1988023855177829800&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\n3.\n\nRead U.S. v. Lopez, 514 U.S. 549 (1995). In Lopez, the US Supreme Court held that a federal statute\nprohibiting firearms near schools was unconstitutional because it regulated conduct that had no effect on\ninterstate commerce and thus exceeded Congress\xe2\x80\x99s authority under the commerce clause. If a state enacts a\nsimilar statute, would this be constitutional under the Second Amendment? The case is available at this link:\nhttp://scholar.google.com/\nscholar_case?case=18310045251039502778&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\nReferences\nDistrict of Columbia v. Heller, 128 S. Ct. 2783 (2008), accessed October 13, 2010, http://www.law.cornell.edu/\nsupct/html/07-290.ZO.html.\nVolokh, E., \xe2\x80\x9cState Constitutional Right to Keep and Bear Arms Provisions,\xe2\x80\x9d UCLA website, accessed October\n22, 2010, http://www.law.ucla.edu/volokh/beararms/statecon.htm.\n\n\x0c3.6 Excessive Punishment\n\nLearning Objectives\n1.\n\nCompare an inhumane procedure with disproportionate punishment under the Eighth Amendment.\n\n2.\n\nIdentify the most prevalent method of execution pursuant to the death penalty.\n\n3.\n\nAscertain crime(s) that merit capital punishment.\n\n4.\n\nIdentify three classifications of criminal defendants who cannot be constitutionally punished by\nexecution.\n\n5.\n\nDefine three-strikes laws, and ascertain if they constitute cruel and unusual punishment pursuant to the\nEighth Amendment.\n\n6.\n\nAscertain the constitutionality of sentencing enhancements under the Sixth Amendment right to a jury\ntrial.\n\nThe prohibition against cruel and unusual punishment comes from the Eighth Amendment, which states,\n\xe2\x80\x9cExcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.\xe2\x80\x9d\nState constitutions often have similar provisions (Texas Constitution, 2010). Although the ban on cruel and\nunusual punishment relates directly to sentencing, which is a criminal procedure issue, criminal statutes\nmandating various penalties can be held unconstitutional under the Eighth Amendment just like statutes offending\nthe due process clause, so a brief discussion is relevant to this chapter. Another facet of excessive punishment is\na criminal sentencing enhancement that is based on facts not found beyond a reasonable doubt by a jury. This has\nbeen held to violate the Sixth Amendment, which states, \xe2\x80\x9cIn all criminal prosecutions, the accused shall enjoy\nthe right to a\xe2\x80\xa6trial, by an impartial jury of the State and district wherein the crime shall have been committed.\xe2\x80\x9d\nIn this section, three issues are analyzed and discussed: the infliction of cruel punishment, a criminal sentence\nthat is too severe, and a criminal sentence that is invalid under the right to a jury trial.\n\nInfliction of Cruel Punishment\nIn general, the government must refrain from inflicting cruel or barbaric punishments on criminal defendants in\nviolation of the Eighth Amendment. In particular, cases asserting that a criminal punishment is inhumane often\nfocus on capital punishment, which is the death penalty.\n\nSynopsis of the History of Capital Punishment\nThe death penalty has been used as a criminal punishment since the eighteenth century BC. American death\npenalty law is influenced by the British because the colonists brought English common-law principles, including\n95\n\n\x0c96 Criminal Law\n\ncapital punishment, with them to the New World. The first execution in America took place in 1608, for spying\n(Death Penalty Information Center, 2010). Methods of execution and capital crimes varied from colony to colony.\nIn the late 1700s, a movement to abolish the death penalty began, and in 1846 Michigan was the first state to\neliminate the death penalty for all crimes except treason (Death Penalty Information Center, 2010). Throughout\nthe nineteenth and twentieth centuries, the United States fluctuated in its attitude toward capital punishment.\nExecutions were at an all-time high in the 1930s (Death Penalty Information Center, 2010). However, in 1972,\nin the landmark decision of Furman v. Georgia, 408 U.S. 238 (1972), the US Supreme Court held that Georgia\xe2\x80\x99s\ndeath penalty statute, which gave the jury complete discretion to sentence a criminal defendant to death, was\narbitrary and therefore authorized cruel and unusual punishment in violation of the Eighth Amendment. This\ndecision invalidated death penalty statutes in forty states. Later, in 1976, the US Supreme Court case of Gregg\nv. Georgia, 428 U.S. 153 (1976), affirmed the procedure of a bifurcated trial, separating the guilt phase from the\npenalty phase for death penalty cases. Gregg also affirmed the death penalty\xe2\x80\x99s constitutionality under the Eighth\nAmendment. Currently, thirty-four states and the federal government authorize the death penalty, while sixteen\nstates and the District of Columbia do not (Death Penalty Information Center, 2010).\n\nInhumane Capital Punishment\nA claim that capital punishment is inhumane and therefore unconstitutional under the Eighth Amendment focuses\non the method of execution. Throughout the history of the death penalty, many methods of execution have been\nemployed, including shooting, hanging, electrocution, the gas chamber, and lethal injection. At the time of this\nwriting, the law is in a state of flux as to which methods of execution are constitutional because many state and\nfederal decisions have stricken virtually every method available. The current focus of the courts is lethal injection\nbecause it is one of the few methods that has not been condemned as unconstitutional. Most states that authorize\nthe death penalty use lethal injection as the primary method of execution. In a recent statement on this issue,\nthe US Supreme Court in Baze v. Rees, 128 S. Ct. 1520 (2008), held that Kentucky\xe2\x80\x99s four-drug lethal injection\nprocedure was not cruel and unusual punishment under the Eighth Amendment. In other states, including Missouri\nand Tennessee, federal courts using different facts have ruled the multidrug procedure unconstitutional (Death\nPenalty Information Center, 2010). It is impossible to predict the future of death penalty methodology under the\nEighth Amendment because each case will be decided based on the circumstances presented. However, it is clear\nthat the law in this area is ripe for a definitive statement of constitutionality under the Eighth Amendment\xe2\x80\x99s cruel\nand unusual punishment clause.\n\nDisproportionate Punishment\nDisproportionate punishment is a different issue than inhumane punishment, but it is still within the parameters\nof the Eighth Amendment. Disproportionate punishment asserts that a criminal punishment is too severe for the\ncrime. Two criminal punishments garner many disproportionate punishment claims: capital punishment and\npunishment pursuant to three-strikes statutes.\n\n\x0c3.6 Excessive Punishment 97\n\nCapital Punishment as Disproportionate\nCapital punishment can be disproportionate because it is too severe for the crime or because it is too severe for\nthe criminal defendant.\n\nExamples of Capital Punishment That Is Disproportionate to the\nCrime\nDeath is the ultimate punishment, so it must be equivalent to the crime the defendant committed. Although the\nstates and the federal government have designated many capital crimes that may not result in death, for example,\ntreason that does not lead to death, the US Supreme Court has confirmed that the death penalty is too severe for\nmost crimes. In Coker v. Georgia, 433 U.S. 584 (1977), the Court held that capital punishment is disproportionate\nfor the crime of raping an adult woman. Many years later in Kennedy v. Louisiana, 128 S. Ct. 2641 (2008), the\nCourt extended the disproportionality principle to invalidate the death penalty for child rape. Kennedy maintained\nthe distinction between crimes committed against individuals and crimes committed against the government, like\ntreason. The only crime against an individual that currently merits the death penalty is criminal homicide, which\nis the unlawful killing of one human being by another. Criminal homicide is discussed in detail in Chapter 9\n\xe2\x80\x9cCriminal Homicide\xe2\x80\x9d.\nFigure 3.8 Crack the Code\n\n\x0c98 Criminal Law\n\n\x0c3.6 Excessive Punishment 99\n\nExamples of Capital Punishment That Are Disproportionate to the\nCriminal Defendant\nRecent US Supreme Court precedent has targeted specific classifications of criminal defendants for whom capital\npunishment is overly severe. Recent cases hold that the death penalty is cruel and unusual punishment for a\ncriminal defendant who was a juvenile when the crime was committed (Roper v. Simmons, 2010), who is mentally\nill (Ford v. Wainwright, 2010), or has an intellectual disability (Atkins v. Virginia, 2010) at the time of the\nscheduled execution. Although states vary in their classifications of juveniles (discussed in detail in Chapter\n6 \xe2\x80\x9cCriminal Defenses, Part 2\xe2\x80\x9d), the Eighth Amendment prohibits capital punishment for an individual who\nwas under eighteen years of age when he or she committed criminal homicide. Mental illness could cover a\nvariety of disorders, but the US Supreme Court has held that a criminal defendant has a constitutional right to a\ndetermination of sanity before execution (Ford v. Wainwright, 2010). Intellectual disability is distinct from mental\nillness and is defined by the US Supreme Court as a substantial intellectual impairment that impacts everyday life,\nand was present at the defendant\xe2\x80\x99s birth or during childhood (Atkins v. Virginia, 2010). However, this standard is\nbroad, so states vary in their legislative definitions of this classification (Death Penalty Information Center, 2010).\n\nExample of Capital Punishment That Is Inhumane and\nDisproportionate to the Crime and the Criminal Defendant\nJerry is sentenced to death for rape. The state death penalty statute specifies death by decapitation. While on\ndeath row, Jerry begins to hear voices and is diagnosed as schizophrenic by the prison psychiatrist. The state\nschedules the execution anyway. In this example, the state death penalty statute is inhumane because death by\ndecapitation is too severe a punishment for any crime. The death penalty statute is also disproportionate to the\ncrime because execution is not a constitutional punishment for the crime of rape. Lastly, the death penalty statute\nis disproportionate to Jerry, the criminal defendant, because it is cruel and unusual to execute someone who is\nmentally ill.\n\nDisproportionate Punishment Pursuant to Three-Strikes Laws\nCalifornia was the first state to enact a \xe2\x80\x9cthree strikes and you\xe2\x80\x99re out\xe2\x80\x9d law (Cal. Penal Code \xc2\xa7 667, 2010).\nGenerally, three-strikes statutes punish habitual offenders more harshly when they commit a second or third felony\nafter an initial serious or violent felony (Cal. Penal Code \xc2\xa7 667, 2010). To date, California\xe2\x80\x99s three-strikes law is\nthe toughest in the nation; it mandates a minimum twenty-five-year- to life sentence for felons convicted of a third\nstrike. California enacted its three-strikes legislation after the kidnapping, rape, and murder of Polly Klaas by a\nhabitual offender. Twenty-four states followed, indicating public support for the incapacitation of career criminals\n(Three Strikes and You\xe2\x80\x99re Out, 2010).\nThree-strikes statutes vary, but those most likely to be attacked as disproportionate count any felony as a strike\nafter an initial serious or violent felony. Counting any felony might levy a sentence of life in prison against a\ncriminal defendant who commits a nonviolent felony. However, the US Supreme Court has upheld lengthy prison\n\n\x0c100 Criminal Law\n\nsentences under three-strikes statutes for relatively minor second or third offenses, holding that they are not cruel\nand unusual punishment under the Eighth Amendment (Ewing v. California, 2010).\nFigure 3.9 The Eighth Amendment\n\nSentencing that Violates the Right to a Jury Trial\nModern US Supreme Court precedent has expanded the jury\xe2\x80\x99s role in sentencing pursuant to the Sixth\nAmendment. Although a detailed discussion of sentencing procedure is beyond the scope of this book, a brief\noverview of sentencing and the roles of the judge and jury is necessary to a fundamental understanding of this\nimportant trial right, as is set forth in the following section.\n\nThe Role of the Judge and Jury in Sentencing Fact-Finding\nAs stated in Chapter 2 \xe2\x80\x9cThe Legal System in the United States\xe2\x80\x9d, the trier of fact decides the facts and renders a\ndecision on innocence or guilt using beyond a reasonable doubt as the standard for the burden of proof. The trier\nof fact in a criminal prosecution is almost always a jury because of the right to a jury trial in the Sixth Amendment.\n\n\x0c3.6 Excessive Punishment 101\n\nOccasionally, the defendant waives the right to a jury trial and has a bench trial with a judge playing the role of\ntrier of fact. Although the jury determines innocence or guilt during a jury trial, the verdict defines the end of their\nrole as the trier of fact, and the judge sets the sentence. The death penalty is an exception to the jury\xe2\x80\x99s limited role\nin sentencing; a jury must decide whether to sentence the defendant to death at a separate hearing after the trial\nhas concluded.\nGenerally, criminal sentencing takes place after the trial. Although the sentencing procedure varies from state\nto state and from state to federal, a sentencing hearing is typically held after guilt has been determined at trial\nor after a guilty plea. For many years, judges have had almost exclusive control of sentencing. Although judges\nare restricted by the fact-finding done at trial, they can receive new evidence at sentencing if it is relevant. For\nexample, a judge is bound by a jury determination that the defendant used a weapon when committing an armed\nrobbery. However, the judge can accept new evidence at sentencing that reveals the defendant had two prior\nconvictions for armed robbery and can enhance the sentence under a habitual offender or three-strikes statute.\n\nSentencing Enhancement by Judges\nUntil recently, judges could use evidence received at the sentencing hearing to enhance a sentence beyond the\nstatutory maximum by making a determination of the new facts to a preponderance of evidence. However, in\nApprendi v. New Jersey, 530 U.S. 466 (2000), the US Supreme Court held that the right to a jury trial prohibits\njudges from enhancing criminal sentences beyond the statutory maximum based on facts not determined by a\njury beyond a reasonable doubt. In Apprendi, the trial court enhanced the defendant\xe2\x80\x99s sentence beyond the\nstatutory maximum for possession of a firearm with an unlawful purpose under New Jersey\xe2\x80\x99s hate crimes statute.\nAlthough the jury did not determine that the defendant\xe2\x80\x99s crime was a hate crime, the judge accepted new evidence\nat sentencing that indicated the defendant\xe2\x80\x99s shooting into a residence was racially motivated. The US Supreme\nCourt reversed the New Jersey Supreme Court, which upheld the sentencing procedure. The Court held that other\nthan evidence of a prior conviction, a judge cannot enhance a defendant\xe2\x80\x99s sentence beyond the statutory maximum\nunless there has been a factual determination by a jury beyond a reasonable doubt of the facts supporting the\nsentencing enhancement. The Court based its holding on the Sixth Amendment right to a jury trial as incorporated\nand applied to the states through the Fourteenth Amendment due process clause.\nPost-Apprendi, this holding was extended to federal sentencing guidelines in U.S. v. Booker, 543 U.S. 220\n(2005). In Booker, a federal judge enhanced a sentence following mandatory US Sentencing Guidelines, which\npermitted judges to find the sentencing enhancement facts using the preponderance of evidence standard. The US\nSupreme Court ruled that the enhancement was invalid under the Sixth Amendment right to a jury trial and held\nthat the US Sentencing Guidelines would be advisory only, never mandatory. Booker was based on Blakely v.\nWashington, 542 U.S. 296 (2004), which invalidated a similar Washington State sentencing procedure.\nPursuant to Apprendi, Booker, and Blakely, a criminal defendant\xe2\x80\x99s sentence is unconstitutional under the Sixth\nAmendment right to a jury trial if it is enhanced beyond the statutory maximum by facts that were not determined\nby a jury beyond a reasonable doubt. This premise applies in federal and state courts and also to guilty pleas rather\nthan jury verdicts (Blakely v. Washington, 2010).\n\n\x0c102 Criminal Law\n\nExample of an Unconstitutional Sentence Enhancement\nRoss is tried and convicted by a jury of simple kidnapping. The maximum sentence for simple kidnapping is five\nyears. At Ross\xe2\x80\x99s sentencing hearing, the judge hears testimony from Ross\xe2\x80\x99s kidnapping victim about the physical\nand mental torture Ross inflicted during the kidnapping. The victim did not testify at trial. The judge finds that\nthe victim\xe2\x80\x99s testimony is credible and rules that Ross used cruelty during the kidnapping by a preponderance\nof evidence. The judge thereafter enhances Ross\xe2\x80\x99s sentence to eight years, based on a statutory sentencing\nenhancement of three years for \xe2\x80\x9cdeliberate cruelty inflicted during the commission of a crime.\xe2\x80\x9d The three-year\nsentencing enhancement is most likely unconstitutional. Under the Sixth Amendment right to a jury trial, the jury\nmust find deliberate cruelty beyond a reasonable doubt. A court can strike the enhancement of three years on\nappeal, and on remand, the trial court cannot increase the sentence beyond the five-year maximum.\nFigure 3.10 The Sixth Amendment\n\nFigure 3.11 Diagram of Constitutional Defenses\n\n\x0c3.6 Excessive Punishment 103\n\n\x0c104 Criminal Law\n\nKey Takeaways\n\xe2\x80\xa2\n\nAn inhumane procedure punishes a defendant too severely for any crime. A disproportionate punishment\npunishes a defendant too severely for the crime he or she committed.\n\n\xe2\x80\xa2\n\nLethal injection is the most prevalent method of execution pursuant to the death penalty.\n\n\xe2\x80\xa2\n\nCriminal homicide is the only crime against an individual that merits capital punishment.\n\n\xe2\x80\xa2\n\nCriminal defendants who were juveniles when the crime was committed, are mentally incompetent, or\nhave an intellectual disability cannot be subjected to capital punishment.\n\n\xe2\x80\xa2\n\nThree-strikes laws punish criminal defendants more severely for committing a felony after they have\ncommitted one or two serious or violent felonies. Three-strikes laws have been held constitutional under the\nEighth Amendment, even when they levy long prison sentences for relatively minor felonies.\n\n\xe2\x80\xa2\n\nSentencing enhancements beyond the statutory maximum are unconstitutional unless they are based on\nfacts determined by a jury beyond a reasonable doubt under the Sixth Amendment right to a jury trial.\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nAndrew is sentenced to death for torture. In Andrew\xe2\x80\x99s state, there is an \xe2\x80\x9ceye-for-an-eye\xe2\x80\x9d statute that\nmandates punishment that mimics the crime the defendant committed. Pursuant to this statute, Andrew will\nbe tortured to death. Is the state\xe2\x80\x99s eye-for-an-eye statute constitutional under the Eighth Amendment? Why\nor why not?\n\n2.\n\nRead Lockyer v. Andrade, 538 U.S. 63 (2003). What was the defendant\xe2\x80\x99s sentence in Lockyer? What was\nthe defendant\xe2\x80\x99s crime? Did the US Supreme Court hold that the defendant\xe2\x80\x99s sentence was constitutional\nunder the Eighth Amendment? The case is available at this link: http://scholar.google.com/\nscholar_case?case=1810564739536423477&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\n3.\n\nRead Fierro v. Gomez, 77 F.3d 301 (1996). Did the US Court of Appeals for the Ninth Circuit hold that\nthe gas chamber procedure in California was constitutional under the Eighth Amendment? The case is\navailable at this link: http://scholar.google.com/\nscholar_case?case=26906922262871934&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\n4.\n\nRead Gall v. U.S., 128 S. Ct. 586 (2007). In Gall, the federal judge departed from the US Sentencing\nGuidelines and imposed a sentence of probation because the defendant had reformed and rejected his\ncriminal lifestyle. Did the US Supreme Court uphold this sentence? Why or why not? The case is available\nat this link: http://scholar.google.com/scholar_case?case=5158806596650877502&q=\nGall+v.+U.S.&hl=en&as_sdt=2,5&as_vis=1.\n\nReferences\nAtkins v. Virginia, 536 U.S. 304 (2002), accessed October 15, 2010, http://scholar.google.com/\nscholar_case?case=2043469055777796288&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\n\x0c3.6 Excessive Punishment 105\n\nBlakely v. Washington, 542 U.S. 296 (2004), accessed October 18, 2010, http://www.law.cornell.edu/supct/\nhtml/02-1632.ZO.html.\nCal. Penal Code \xc2\xa7 667, accessed October 15, 2010, http://www.threestrikes.org/tslaw.html.\nDeath Penalty Information Center, \xe2\x80\x9cIntroduction to the Death Penalty,\xe2\x80\x9d deathpenaltyinfo.org website, accessed\nOctober 17, 2010, http://www.deathpenaltyinfo.org/part-i-history-death-penalty.\nDeath Penalty Information Center, \xe2\x80\x9cLethal Injection: Constitutional Issue,\xe2\x80\x9d deathpenaltyinfo.org website,\naccessed October 14, 2010, http://www.deathpenaltyinfo.org/lethal-injection-constitutional-issue.\nDeath Penalty Information Center, \xe2\x80\x9cState Statutes Prohibiting the Death Penalty for People with Mental\nRetardation,\xe2\x80\x9d deathpenaltyinfo.org website, accessed October 14, 2010, http://www.deathpenaltyinfo.org/statestatutes-prohibiting-death-penalty-people-mental-retardation.\nDeath Penalty Information Center, \xe2\x80\x9cStates with and without the Death Penalty,\xe2\x80\x9d deathpenaltyinfo.org website,\naccessed October 14, 2010, http://www.deathpenaltyinfo.org/states-and-without-death-penalty.\nEwing v. California, 538 U.S. 11 (2003), accessed October 15, 2010, http://caselaw.lp.findlaw.com/scripts/\ngetcase.pl?court=us&vol=000&invol=01-6978.\nFord v. Wainwright, 477 U.S. 399 (1986), accessed October 15, 2010, http://scholar.google.com/\nscholar_case?case=7904262174469084060&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\nRoper v. Simmons, 543 U.S. 551 (2005), accessed October 15, 2010, http://scholar.google.com/\nscholar_case?case=16987406842050815187&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\nTexas Constitution, art. I, \xc2\xa7 13, accessed October 22, 2010, http://www.statutes.legis.state.tx.us/SOTWDocs/\nCN/htm/CN.1.htm.\nThree Strikes and You\xe2\x80\x99re Out, \xe2\x80\x9cStates That Have Three Strikes Laws,\xe2\x80\x9d threestrikes.org website, accessed\nOctober 15, 2010, http://www.threestrikes.org/3strikestates.html.\n\n\x0c3.7 End-of-Chapter Material\n\nSummary\nThe US Constitution protects criminal defendants from certain statutes and procedures. State constitutions usually\nmirror the federal and occasionally provide more protection to criminal defendants than the federal Constitution, as long\nas the state constitutions do not violate federal supremacy. Statutes can be unconstitutional as written or as enforced and\nmust be supported by a sufficient government interest. Statutes that punish without a trial (bills of attainder) or criminal\nstatutes that are applied retroactively (ex post facto) are unconstitutional under Article 1 \xc2\xa7\xc2\xa7 9 and 10. Other\nconstitutional protections are in the Bill of Rights, which is the first ten amendments, and the Fourteenth Amendment,\nwhich contains the due process clause and the equal protection clause.\nThe due process clause prohibits the government from taking an individual\xe2\x80\x99s life, liberty, or property arbitrarily,\nwithout notice and an opportunity to be heard. Statutes that are vague or criminalize constitutionally protected conduct\n(overbroad) violate due process. The Fifth Amendment due process clause applies to the federal government, and the\nFourteenth Amendment due process clause applies to the states. The Fourteenth Amendment due process clause also\nselectively incorporates fundamental rights from the Bill of Rights and applies them to the states. Rights incorporated\nand applied to the states are the right to free speech, the right to privacy, the right to bear arms, the right to be free from\ncruel and unusual punishment, and the right to a jury trial. The Fourteenth Amendment also contains the equal\nprotection clause, which prevents the government from enacting statutes that discriminate without a sufficient\ngovernment interest.\nThe First Amendment protects speech, expression, and expressive conduct from being criminalized without a\ncompelling government interest and a statute that uses the least restrictive means possible. Some exceptions to the First\nAmendment are precise statutes targeting fighting words, incitement to riot, hate crimes, obscenity, and nude dancing.\nThe First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments also create a right to privacy that prevents the\ngovernment from criminalizing the use of birth control, abortion, or consensual sexual relations.\nThe Second Amendment protects an individual\xe2\x80\x99s right to possess a usable handgun in the home for self-defense. This\nright is not extended to convicted felons, the mentally ill, commercial sale of firearms, and firearm possession near\nschools and government buildings. The Eighth Amendment protects criminal defendants from inhumane and excessive\npunishments. The Sixth Amendment ensures that all facts used to extend a criminal defendant\xe2\x80\x99s sentencing beyond the\nstatutory maximum must be determined by a jury beyond a reasonable doubt.\n\nYou Be the Legislative Analyst\nYou are an expert on constitutional law. Your state\xe2\x80\x99s legislature has hired you to analyze some proposed statutes to\nensure that they are constitutional. Read each proposed statute and determine the following: (1) which part of the\nconstitution is relevant, (2) whether the statute is constitutional, and (3) your reasoning. Check your answers using the\nanswer key at the end of the chapter.\n1.\n\nThe proposed statute increases penalties for overdue state income tax retroactively. Is the proposed\nstatute constitutional?\n\n2.\n\nThe proposed statute makes it a misdemeanor to display nude art in a public place. Is the proposed\nstatute constitutional?\n\n106\n\n\x0c3.7 End-of-Chapter Material 107\n\n3.\n\nThe proposed statute enhances the sentence for rape by three years of imprisonment if the defendant is\ninfected with AIDS. Is the proposed statute constitutional?\n\n4.\n\nThe proposed statute prohibits a defendant with a conviction for any crime involving alcohol to possess a\nhandgun in the home. Is the proposed statute constitutional?\n\n5.\n\nThe proposed statute mandates fifteen years of solitary confinement in prison if the defendant is\nconvicted of forcible rape. Is the proposed statute constitutional?\n\nCases of Interest\n\xe2\x80\xa2\n\nSouth Dakota v. Asmussen, 668 N.W.2d 725 (2003), discusses void for vagueness and overbreadth:\nhttp://caselaw.findlaw.com/sd-supreme-court/1080212.html.\n\n\xe2\x80\xa2\n\nChristian Legal Society v. Martinez, 130 S. Ct. 2971 (2010), discusses the First Amendment:\nhttp://scholar.google.com/scholar_case?case=10772194664096336702&q=\nChristian+Legal+Society+v.+Martinez&hl=en&as_sdt=2,5.\n\n\xe2\x80\xa2\n\nU.S. v. Alvarez, 617 F.3d 1198 (2010), discusses freedom of speech: http://scholar.google.com/\nscholar_case?case=3332503989513069132&q= U.S.+v.+Alvarez&hl=en&as_sdt=2,5&as_ylo=2010.\n\n\xe2\x80\xa2\n\nSnyder v. Phelps, No. 09-751 (2011), discusses the First Amendment: http://www.law.cornell.edu/supct/\nhtml/09-751.ZO.html.\n\n\xe2\x80\xa2\n\nRobinson v. California, 370 U.S. 660 (1962), discusses cruel and unusual punishment:\nhttp://caselaw.findlaw.com/us-supreme-court/370/660.html.\n\nArticles of Interest\n\xe2\x80\xa2\n\nSelective incorporation: http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/incorp.htm\n\n\xe2\x80\xa2\n\nViolent video games and the First Amendment: http://www.huffingtonpost.com/2011/06/27/supremecourt-violent-video-games_n_884991.html\n\n\xe2\x80\xa2\n\nOhio abortion bill: http://abcnews.go.com/Politics/ohio-heartbeat-bill-abortion-paves-roe-wade\n-challenge/story?id=12876224\n\n\xe2\x80\xa2\n\xe2\x80\xa2\n\nSecond Amendment and gun control: http://usgovinfo.about.com/od/guncontrol/\nRecent US Supreme Court case on three strikes and its application to juveniles:\nhttp://www.correctionsone.com/juvenile-offenders/articles/2050079-High-Court-Calif-can-apply-3-strikeslaw-to-juveniles\n\nWebsites of Interest\n\xe2\x80\xa2\n\nFirst Amendment information: http://www.firstamendmentcenter.org/\n\n\xe2\x80\xa2\n\nHate crimes: http://www.fbi.gov/about-us/investigate/civilrights/hate_crimes/hate_crimes\n\n\x0c108 Criminal Law\n\n\xe2\x80\xa2\n\nDeath penalty information: http://www.deathpenaltyinfo.org\n\nStatistics of Interest\n\xe2\x80\xa2\n\xe2\x80\xa2\n\nHate crimes in the United States: http://www2.fbi.gov/ucr/hc2009/index.html\nUS executions pursuant to the death penalty: http://www.deathpenaltyinfo.org/number-executions -stateand-region-1976\n\nAnswers to Exercises\nFrom Section 3.1 \xe2\x80\x9cApplicability of the Constitution\xe2\x80\x9d\n1.\n\nThe public university can impose a retroactive tuition because this is not a criminal statute or procedure\nand does not violate the prohibition against ex post facto laws.\n\n2.\n\nIn Smith, the US Supreme Court held that Alaska\xe2\x80\x99s Megan\xe2\x80\x99s Law statute was not criminal, but part of a\ncivil regulatory scheme, and thus did not violate the prohibition against ex post facto laws.\n\n3.\n\nIn Stogner, the US Supreme Court held that California cannot eliminate a statute of limitations and\nthereafter prosecute defendants who would have been time-barred from prosecution because this action\nviolates the prohibition against ex post facto laws. The Court held that this statute increased the chances of\nconviction retroactively.\n\nAnswers to Exercises\nFrom Section 3.2 \xe2\x80\x9cThe Due Process and Equal Protection Clauses\xe2\x80\x9d\n1.\n\nThe ordinance is void for vagueness and overbroad, violating the First Amendment and the Fourteenth\nAmendment due process clause. The term gang attire is void for vagueness because it is imprecise, can\nmean different things to different people, fails to give notice of what is criminal, and gives too much\ndiscretion to law enforcement. The ordinance is overbroad because prohibiting all individuals from wearing\ngang attire probably includes First Amendment constitutionally protected conduct, such as wearing a gangrelated Halloween costume or wearing a costume to act in a play or movie.\n\n2.\n\nIn Smith, the US Supreme Court held that the flag misuse statute was void for vagueness. The Court\nstated,\nid=\xe2\x80\x9dstorm_1.0-ch03_s07_bl01\xe2\x80\xb3>\nBut there is no comparable reason for committing broad discretion to law enforcement officials in the\narea of flag contempt. Indeed, because display of the flag is so common and takes so many forms, changing\nfrom one generation to another and often difficult to distinguish in principle, a legislature should define with\nsome care the flag behavior it intends to outlaw (Smith v. Goguen, 2010).\n\n\x0c3.7 End-of-Chapter Material 109\n\n3.\n\nIn Grayned, the US Supreme Court held that the ordinance was not void for vagueness because, with fair\nwarning, it criminalized actual or imminent and willful interference with school activity. The Court also\nheld that the statute was not overbroad because it prohibited only acts that \xe2\x80\x9cmaterially interfered with\nschoolwork,\xe2\x80\x9d which is not protected by the First Amendment.\n\n4.\n\nJustice O\xe2\x80\x99Connor said that the Texas sodomy statute was unconstitutional pursuant to the equal\nprotection clause. The statute only criminalized sodomy between persons of the same sex, so it targeted gay\ncouples without a rational basis.\n\nAnswers to Exercises\nFrom Section 3.3 \xe2\x80\x9cFreedom of Speech\xe2\x80\x9d\n1.\n\nThe statute does not violate the First Amendment\xe2\x80\x99s free speech protection because battery is not speech\nand is not covered by the First Amendment.\n\n2.\n\nThe US Supreme Court held that the provisions were unconstitutional under the First Amendment\nbecause they were vague and content based. The Act did not specifically define \xe2\x80\x9cindecent\xe2\x80\x9d communications,\nor demonstrate that offensive material lacks any value under the three-part test for obscenity set forth in\nMiller.\n\n3.\n\nThe US Supreme Court upheld 18 U.S.C. \xc2\xa7 2339B (a) (1) as applied. The Court ruled that the federal\ngovernment can prohibit aid to terrorist groups, even if it consists of training and advice on legal activities,\nwithout violating the First Amendment.\n\nAnswers to Exercises\nFrom Section 3.4 \xe2\x80\x9cThe Right to Privacy\xe2\x80\x9d\n1.\n\nThe court will probably analyze whether the statute is constitutional under the right to privacy and the\nequal protection clause. The right to privacy analysis will use strict scrutiny because the right to privacy is\nfundamental. The state must demonstrate a compelling state interest in regulating sex in prison. The state\xe2\x80\x99s\narguments will probably focus on maintaining integrity, safety, and security in the institution. Under the\nequal protection clause analysis, the state has to show a legitimate state interest pursuant to the rational basis\ntest because the category targeted\xe2\x80\x94inmates in prison\xe2\x80\x94is rational, not arbitrary.\n\n2.\n\nThe Court upheld the statute, even though this case was post-Roe v. Wade. The Court reaffirmed Roe, but\nimposed a new standard for abortion laws. The new standard analyzes whether a state abortion law places an\nundue burden on a woman seeking an abortion. The Court held that the twenty-four-hour waiting period and\ninformed consent for minors do not place such a burden. The Court did strike a separate requirement, which\nmandated husband notification before an abortion could take place.\n\n\x0c110 Criminal Law\n\nAnswers to Exercises\nFrom Section 3.5 \xe2\x80\x9cThe Right to Bear Arms\xe2\x80\x9d\n1.\n\nThe court will uphold the order under the Second Amendment if the defendant was convicted of a felony.\nThe recent US Supreme Court precedent in Heller and McDonald both exclude convicted felons from their\nholdings. However, if the defendant was convicted of a misdemeanor, the court has to determine whether\nHeller and McDonald extend the Second Amendment\xe2\x80\x99s right to possess a usable handgun in the home for\nself-defense to a convicted police officer who wants to resume his career.\n\n2.\n\nThe US Supreme Court upheld the conviction, stating that a defendant convicted unconstitutionally can\nand should challenge that conviction before owning or possessing a firearm.\n\n3.\n\nA state could criminalize firearm possession near schools because two recent US Supreme Court rulings\n(Heller and McDonald) both exempt firearms near schools from their protection of individual gun\nownership and possession.\n\nAnswers to Exercises\nFrom Section 3.6 \xe2\x80\x9cExcessive Punishment\xe2\x80\x9d\n1.\n\nThe eye-for-an-eye statute is unconstitutional because it mandates an inhumane punishment under the\nEighth Amendment. Torture is too severe a punishment for any crime.\n\n2.\n\nThe defendant\xe2\x80\x99s sentence was two consecutive terms of twenty-five years to life in prison under\nCalifornia\xe2\x80\x99s three-strikes statute. The defendant\xe2\x80\x99s crime(s) were stealing five videotapes from Kmart worth\n$84.70 on one occasion and stealing four videotapes from Kmart worth $68.84 on another, with two\nprevious strikes. The US Supreme Court upheld the sentence and denied the defendant\xe2\x80\x99s petition for habeas\ncorpus.\n\n3.\n\nThe US Court of Appeals for the Ninth Circuit held that the gas chamber under California\xe2\x80\x99s protocol was\ncruel and unusual punishment in violation of the Eighth Amendment.\n\n4.\n\nThe US Supreme Court reversed the US Court of Appeals for the Eighth Circuit, which held that the\nsentence was unreasonable according to the US Sentencing Guidelines. The Court reaffirmed that the\nGuidelines were advisory, but stated that the trial court has great discretion in setting the sentence, as long\nas the basis of the sentence is explained on the record.\n\nAnswers to Law and Ethics Questions\n1.\n\nThe categorization of some speech as outside the First Amendment\xe2\x80\x99s protection generally focuses on\nspeech that can produce immediate or imminent harm or lawless action, like fighting words, or speech that\nis devoid of social value, like obscenity. Depictions of animal cruelty probably fall within the second\ncategory. Whether you believe depictions of animal cruelty should be criminalized depends on whether you\nfeel another category should be added to the list. The US Supreme Court was reluctant to expand\ncategorization, indicating that First Amendment protections far exceed government interests in contentbased regulations.\n\n2.\n\nSome possible consequences of expanding categorization are the increase of government censorship into\n\n\x0c3.7 End-of-Chapter Material 111\n\nareas that may have value, either literary, artistic, political, or scientific. Any time case precedent limits the\nFirst Amendment, individual rights of expression are likewise inhibited, and the government\xe2\x80\x99s power to\nregulate and enact laws encroaching upon individual freedoms is enhanced.\n\nAnswers to You Be the Legislative Analyst\n1.\n\n(1) The ex post facto clause is relevant. (2) The statute is most likely constitutional. (3) Even though the\nstatute is retroactive, the statute is not a criminal law, but a tax increase, so there is no violation of the ex\npost facto clause.\n\n2.\n\n(1) The First Amendment and the due process clause in the Fourteenth Amendment are relevant. (2)\nThe proposed statute is most likely unconstitutional. (3) The statute is probably void for vagueness and\noverbroad. The word \xe2\x80\x9cart\xe2\x80\x9d can be interpreted differently by different people, so it leads to uneven\napplication by law enforcement. The statute also fails to give the public notice of what is criminal. In\naddition, because the statute criminalizes the display of \xe2\x80\x9cart,\xe2\x80\x9d it is overbroad and includes expressive works\nthat may have artistic value and are protected under the First Amendment pursuant to the Miller test of\nobscenity.\n\n3.\n\n(1) The equal protection clause of the Fourteenth Amendment is relevant. (2) The proposed statute is\nmost likely constitutional. (3) The statute discriminates against criminal defendants infected with the AIDS\nvirus. However, this classification has a rational basis and is not arbitrary. The state government has an\ninterest in preventing the spread of AIDS, so the statute will probably be upheld under the equal protection\nclause, even though it is discriminatory.\n\n4.\n\n(1) The Second Amendment and the due process clause in the Fourteenth Amendment are relevant. (2)\nThe proposed statute is most likely unconstitutional. (3) The US Supreme Court has held that the Second\nAmendment, as applied to the states through the Fourteenth Amendment, protects an individual\xe2\x80\x99s right to\npossess a usable handgun in the home for self-defense. Although the Court held that an exception could be\nmade for convicted felons, the proposed statute covers any crime that involves alcohol, including\nmisdemeanors (such as misdemeanor DUI). Thus it is overbroad and encroaches on the Second\nAmendment\xe2\x80\x99s guarantee of the right to bear arms.\n\n5.\n\n(1) The Eighth Amendment and the due process clause in the Fourteenth Amendment are relevant. (2)\nThe proposed statute is most likely unconstitutional. (3) The proposed statute appears to be inhumane and\nexcessive for the crime, which makes it cruel and unusual punishment.\n\nReferences\nSmith v. Goguen, 415 U.S. 566, 582 (1974), accessed October 3, 2010, http://scholar.google.com/\nscholar_case?case=14723025391522670978&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\n\x0cChapter 4: The Elements of a Crime\n\nWikimedia Commons \xe2\x80\x93 public domain.\n\nThus, an Olympic swimmer may be deemed by the community as a shameful coward, or worse, for not rescuing a\ndrowning child in the neighbor\xe2\x80\x99s pool, but she is not a criminal.\n\xe2\x80\x94State ex rel. Kuntz v. Thirteenth Jud. Dist., cited in Section 4 \xe2\x80\x9cDuty to Act Based on a Special\nRelationship\xe2\x80\x9d\n\n112\n\n\x0c4.1 Criminal Elements\n\nLearning Objectives\n1.\n\nList the elements of a crime.\n\n2.\n\nDefine the criminal act element.\n\n3.\n\nIdentify three requirements of criminal act.\n\n4.\n\nDescribe an exception to the criminal act element.\n\n5.\n\nAscertain three situations where an omission to act could be criminal.\n\n6.\n\nDistinguish between actual and constructive possession.\n\n7.\n\nIdentify the criminal intent element required when possession is the criminal act.\n\nCrimes can be broken down into elements, which the prosecution must prove beyond a reasonable doubt.\nCriminal elements are set forth in criminal statutes, or cases in jurisdictions that allow for common-law crimes.\nWith exceptions, every crime has at least three elements: a criminal act, also called actus reus; a criminal intent,\nalso called mens rea; and concurrence of the two. The term conduct is often used to reflect the criminal act and\nintent elements. As the Model Penal Code explains, \xe2\x80\x9c\xe2\x80\x98conduct\xe2\x80\x99 means an action or omission and its accompanying\nstate of mind\xe2\x80\x9d (Model Penal Code \xc2\xa7 1.13(5)).\nFigure 4.1 Criminal Code of Georgia\n\n113\n\n\x0c114 Criminal Law\n\nRecall from Chapter 1 \xe2\x80\x9cIntroduction to Criminal Law\xe2\x80\x9d that not all crimes require a bad result. If a crime does\nrequire a bad result, the prosecution must also prove the additional elements of causation and harm.\nAnother requirement of some crimes is attendant circumstances. Attendant circumstances are specified\nfactors that must be present when the crime is committed. These could include the crime\xe2\x80\x99s methodology, location\nor setting, and victim characteristics, among others.\nThis chapter analyzes the elements of every crime. Chapter 7 \xe2\x80\x9cParties to Crime\xe2\x80\x9d through Chapter 13 \xe2\x80\x9cCrimes\nagainst the Government\xe2\x80\x9d analyze the elements of specific crimes, using a general overview of most states\xe2\x80\x99 laws,\nthe Model Penal Code, and federal law when appropriate.\n\nExample of a Crime That Has Only Three Elements\nJanine gets into a fight with her boyfriend Conrad after the senior prom. She grabs Conrad\xe2\x80\x99s car keys out of his\nhand, jumps into his car, and locks all the doors. When Conrad strides over to the car, she starts the engine, puts the\ncar into drive, and tries to run him down. It is dark and difficult for Janine to see, so Conrad easily gets out of her\nway and is unharmed. However, Janine is thereafter arrested and charged with attempted murder. In this case, the\nprosecution has to prove the elements of criminal act, criminal intent, and concurrence for attempted murder.\nThe prosecution does not have to prove causation or that Conrad was harmed because attempt crimes, including\nattempted murder, do not have a bad result requirement. Attempt and other incomplete or inchoate crimes are\ndiscussed in Chapter 8 \xe2\x80\x9cInchoate Offenses\xe2\x80\x9d.\n\n\x0c4.1 Criminal Elements 115\n\nCriminal Act\nCriminal act, or actus reus, is generally defined as an unlawful bodily movement (N.Y. Penal Law, 2010). The\ncriminal statute, or case in jurisdictions that allow common-law crimes, describes the criminal act element.\nFigure 4.2 Alabama Criminal Code\n\nThe Requirement of Voluntariness\nOne requirement of criminal act is that the defendant perform it voluntarily. In other words, the defendant must\n\n\x0c116 Criminal Law\n\ncontrol the act. It would not serve the policy of specific deterrence to punish the defendant for irrepressible acts.\nThe Model Penal Code gives the following examples of acts that are not voluntary and, therefore, not criminal:\nreflexes, convulsions, bodily movements during unconsciousness or sleep, conduct during hypnosis or resulting\nfrom hypnotic suggestion, or a bodily movement that otherwise is not a product of the effort or determination of\nthe actor, either conscious or habitual (Model Penal Code \xc2\xa7 2.01 (2)). One voluntary act is enough to fulfill the\nvoluntary act requirement. Thus if a voluntary act is followed by an involuntary one, the court may still impose\ncriminal liability depending on the circumstances (Govt. of Virgin Islands v. Smith, 2010).\n\nExample of an Involuntary and Noncriminal Act\nPerry is hypnotized at the local county fair. The hypnotist directs Perry to smash a banana cream pie into his\ngirlfriend Shelley\xe2\x80\x99s face. Smashing a pie into a person\xe2\x80\x99s face is probably battery in most states, but Perry did\nnot commit the act voluntarily, so he should not be convicted of a crime. Punishing Perry for battery would\nnot specifically deter Perry from performing the act again while hypnotized because he is not in control of his\nbehavior when experiencing this mental state.\n\nExample of a Voluntary Act Followed by a Nonvoluntary Act\nTimothy attends a party at a friend\xe2\x80\x99s house and consumes several glasses of red wine. Timothy then attempts\nto drive his vehicle home. While driving, Timothy passes out at the wheel and hits another vehicle, killing its\noccupant. Timothy can probably be convicted of one or more crimes in this situation. Timothy\xe2\x80\x99s acts of drinking\nseveral glasses of wine and then driving a vehicle are voluntary. Thus even though Timothy got into a car\naccident while unconscious, his involuntary act was preceded by conscious, controllable, and voluntary action. A\npunishment in this instance could specifically deter Timothy from drinking and driving on another occasion and\nis appropriate based on the circumstances.\n\nStatus as a Criminal Act\nGenerally, a defendant\xe2\x80\x99s status in society is not a criminal act. Status is who the defendant is, not what the\ndefendant does. Similar to punishment for an involuntary act, when the government punishes an individual\nfor status, it is essentially targeting that individual for circumstances that are outside his or her control. This\npunishment may be cruel and unusual pursuant to the Eighth Amendment if it is disproportionate to the\ndefendant\xe2\x80\x99s behavior.\nIn Robinson v. California, 370 U.S. 660 (1962), the US Supreme Court held that it is unconstitutional as cruel\nand unusual punishment pursuant to the Eighth Amendment to punish an individual for the status of being a drug\naddict\xe2\x80\x94even if the drugs to which the defendant is addicted are illegal. The Court compared drug addiction to an\nillness, such as leprosy or venereal disease. Punishing a defendant for being sick not only is inhumane but also\ndoes not specifically deter, similar to a punishment for an involuntary act.\nIf the defendant can control the actions at issue in spite of his or her status, the defendant\xe2\x80\x99s conduct can be\n\n\x0c4.1 Criminal Elements 117\n\nconstitutionally criminalized and punished pursuant to the Eighth Amendment. In Powell v. Texas, 392 U.S. 514\n(1968), the US Supreme Court upheld the defendant\xe2\x80\x99s conviction for \xe2\x80\x9cdrunk in public,\xe2\x80\x9d in spite of the defendant\xe2\x80\x99s\nstatus as an alcoholic. The Court held that it is difficult but not impossible for an alcoholic to resist the urge\nto drink, so the behavior the statute criminalized was voluntary. Also, the Court ruled that the state has an\ninterest in treating alcoholism and preventing alcohol-related crimes that could injure the defendant and others.\nPursuant to Powell, statutes that criminalize voluntary acts that arise from status are constitutional under the\nEighth Amendment.\n\nExample of a Constitutional Statute Related to Status\nRefer to the example in Section 4 \xe2\x80\x9cExample of a Voluntary Act Followed by a Nonvoluntary Act\xe2\x80\x9d, where Timothy\ndrives under the influence of alcohol and kills another. A state statute that criminalizes killing another person\nwhile driving under the influence is constitutional as applied to Timothy, even if Timothy is an alcoholic. The\nstate has an interest in treating alcoholism and preventing alcohol-related crimes that could injure or kill Timothy\nor another person. Timothy\xe2\x80\x99s act of driving while intoxicated is voluntary, even if his status as an alcoholic\nmakes it more difficult for Timothy to control his drinking. Thus Timothy and other alcoholic defendants can be\nprosecuted and punished for killing another person while driving under the influence without violating the Eighth\nAmendment.\n\nThoughts as Criminal Acts\nThoughts are a part of criminal intent, not criminal act. Thoughts cannot be criminalized.\n\nExample of Noncriminal Thoughts\nBrianna, a housecleaner, fantasizes about killing her elderly client Phoebe and stealing all her jewelry. Brianna\nwrites her thoughts in a diary, documenting how she intends to rig the gas line so that gas is pumped into the house\nall night while Phoebe is sleeping. Brianna includes the date that she wants to kill Phoebe in her most recent diary\nentry. As Brianna leaves Phoebe\xe2\x80\x99s house, her diary accidentally falls out of her purse. Later, Phoebe finds the diary\non the floor and reads it. Phoebe calls the police, gives them Brianna\xe2\x80\x99s diary, and insists they arrest Brianna for\nattempted murder. Although Brianna\xe2\x80\x99s murder plot is sinister and is documented in her diary, an arrest is improper\nin this case. Brianna cannot be punished for her thoughts alone. If Brianna took substantial steps toward killing\nPhoebe, an attempted murder charge might be appropriate. However, at this stage, Brianna is only planning a\ncrime, not committing a crime. Phoebe may be able to go to court and get a restraining order against Brianna to\nprevent her from carrying out her murder plot, but Brianna cannot be incapacitated by arrest and prosecution for\nattempted murder in this case.\n\n\x0c118 Criminal Law\n\nOmission to Act\nAn exception to the requirement of a criminal act element is omission to act. Criminal prosecution for a failure to\nact is rare because the government is reluctant to compel individuals to put themselves in harm\xe2\x80\x99s way. However,\nunder certain specific circumstances, omission to act can be criminalized.\nAn omission to act can only be criminal when the law imposes a duty to act (N.Y. Penal Law, 2010). This legal\nduty to act becomes an element of the crime, and the prosecution must prove it beyond a reasonable doubt, along\nwith proving the defendant\xe2\x80\x99s inaction under the circumstances. Failure or omission to act is only criminal in three\nsituations: (1) when there is a statute that creates a legal duty to act, (2) when there is a contract that creates a\nlegal duty to act, or (3) when there is a special relationship between the parties that creates a legal duty to act.\nLegal duties to act vary from state to state and from state to federal.\n\nDuty to Act Based on a Statute\nWhen a duty to act is statutory, it usually concerns a government interest that is paramount. Some common\nexamples of statutory duties to act are the duty to file state or federal tax returns (26 U.S.C., 2010), the duty of\nhealth-care personnel to report gunshot wounds (Fla. Stat. Ann., 2010), and the duty to report child abuse (Ky.\nRev. Stat. Ann., 2010).\nFigure 4.3 Kentucky Revised Statutes\n\n\x0c4.1 Criminal Elements 119\n\nAt common law, it was not criminal to stand by and refuse to help someone in danger. Some states supersede\nthe common law by enacting Good Samaritan statutes that create a duty to assist those involved in an accident\nor emergency situation. Good Samaritan statutes typically contain provisions that insulate the actor from liability\nexposure when providing assistance (Minnesota Code, 2010).\nFigure 4.4 Minnesota Good Samaritan Law\n\n\x0c120 Criminal Law\n\nGood Samaritan Law Video\nGood Samaritan Sued after Rescuing Woman in an Accident\nThis video is a news story on a California Supreme Court case regarding the civil liability of a Good Samaritan:\n" href="http://www.youtube.com/watch?v=prXU9Ejm36Q" class="replaced-iframe" onclick="return\nreplaceIframe(this)" data-url="http://www.youtube.com/watch?v=prXU9Ejm36Q">(click to see video)\n\nDuty to Act Based on a Contract\nA duty to act can be based on a contract between the defendant and another party. The most prevalent examples\nwould be a physician\xe2\x80\x99s contractual duty to help a patient or a lifeguard\xe2\x80\x99s duty to save someone who is drowning.\n\n\x0c4.1 Criminal Elements 121\n\nKeep in mind that experts who are not contractually bound can ignore an individual\xe2\x80\x99s pleas for help without\ncommitting a crime, no matter how morally abhorrent that may seem. For example, an expert swimmer can watch\nsomeone drown if there is no statute, contract, or special relationship that creates a legal duty to act.\n\nDuty to Act Based on a Special Relationship\nA special relationship may also be the basis of a legal duty to act. The most common special relationships are\nparent-child, spouse-spouse, and employer-employee. Often, the rationale for creating a legal duty to act when\npeople are in a special relationship is the dependence of one individual on another. A parent has the obligation by\nlaw to provide food, clothing, shelter, and medical care for his or her children, because children are dependent on\ntheir parents and do not have the ability to procure these items themselves. In addition, if someone puts another\nperson in peril, there may be a duty to rescue that person (State ex rel. Kuntz v. Thirteenth Jud. Dist., 2010).\nAlthough this is not exactly a special relationship, the victim may be dependent on the person who created the\ndangerous situation because he or she may be the only one present and able to render aid. On a related note, some\njurisdictions also impose a duty to continue to provide aid, once aid or assistance has started (Jones v. U.S., 2010).\nSimilar to the duty to rescue a victim the defendant has put in peril, the duty to continue to provide aid is rooted\nin the victim\xe2\x80\x99s dependence on the defendant and the unlikely chance that another person may come along to help\nonce the defendant has begun providing assistance.\n\nExample of a Failure to Act That Is Noncriminal\nRecall the example from Chapter 1 \xe2\x80\x9cIntroduction to Criminal Law\xe2\x80\x9d, Section 1.2.1 \xe2\x80\x9cExample of Criminal Law\nIssues\xe2\x80\x9d, where Clara and Linda are shopping together and Clara stands by and watches as Linda shoplifts a bra.\nIn this example, Clara does not have a duty to report Linda for shoplifting. Clara does not have a contractual duty\nto report a crime in this situation because she is not a law enforcement officer or security guard obligated by an\nemployment contract. Nor does she have a special relationship with the store mandating such a report. Unless a\nstatute or ordinance exists to force individuals to report crimes committed in their presence, which is extremely\nunlikely, Clara can legally observe Linda\xe2\x80\x99s shoplifting without reporting it. Of course, if Clara assists Linda with\nthe shoplifting, she has then performed a criminal act or actus reus, and a criminal prosecution is appropriate.\n\nExample of a Failure to Act That Is Criminal\nPenelope stands on the shore at a public beach and watches as a child drowns. If Penelope\xe2\x80\x99s state has a Good\nSamaritan law, she may have a duty to help the child based on a statute. If Penelope is the lifeguard, she may have\na duty to save the child based on a contract. If Penelope is the child\xe2\x80\x99s mother, she may have a duty to provide\nassistance based on their special relationship. If Penelope threw the child in the ocean, she may have a duty to\nrescue the child she put in peril. If Penelope is just a bystander, and no Good Samaritan law is in force, she has no\nduty to act and cannot be criminally prosecuted if the child suffers harm or drowns.\n\n\x0c122 Criminal Law\n\nPossession as a Criminal Act\nAlthough it is passive rather than active, possession is still considered a criminal act. The most common objects\nthat are criminal to possess are illegal contraband, drugs, and weapons. There are two types of possession: actual\npossession and constructive possession. Actual possession indicates that the defendant has the item on or very\nnear his or her person. Constructive possession indicates that the item is not on the defendant\xe2\x80\x99s person, but is\nwithin the defendant\xe2\x80\x99s area of control, such as inside a house or automobile with the defendant (State v. Davis,\n2011). More than one defendant can be in possession of an object, although this would clearly be a constructive\npossession for at least one of them.\nBecause it is passive, possession should be knowing, meaning the defendant is aware that he or she possesses\nthe item (Connecticut Jury Instructions No. 2.11-1, 2011). As the Model Penal Code states in \xc2\xa7 2.01(4),\n\xe2\x80\x9c[p]ossession is an act, within the meaning of this Section, if the possessor knowingly procured or received the\nthing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his\npossession.\xe2\x80\x9d In the vast majority of states, a statute permitting a conviction for possession without this knowledge\nor awareness lacks the criminal intent element and would be unenforceable.\n\nExample of an Unenforceable Possession Statute\nA state has a criminal statute that prohibits \xe2\x80\x9cbeing within 100 feet of any quantity of marijuana.\xe2\x80\x9d Ricardo sits\nnext to Jean on the subway. A law enforcement officer smells marijuana and does a pat-down search of Jean. He\ndiscovers that Jean has a large baggie of marijuana in his jacket pocket and arrests Jean and Ricardo for marijuana\npossession. Ricardo was within one hundred feet of marijuana as prohibited by the statute, but Ricardo should not\nbe prosecuted for marijuana possession. No evidence exists to indicate that Ricardo knew Jean, or knew that Jean\npossessed marijuana. Thus Ricardo does not have the criminal intent or mens rea for possession, and the state\xe2\x80\x99s\npossession statute should not be enforced against him.\n\nKey Takeaways\n\xe2\x80\xa2\n\nThe elements of a crime are criminal act, criminal intent, concurrence, causation, harm, and attendant\ncircumstances. Only crimes that specify a bad result have the elements of causation and harm.\n\n\xe2\x80\xa2\n\nCriminal act is usually an unlawful bodily movement that is defined in a statute, or a case in jurisdictions\nthat allow common-law crimes.\n\n\xe2\x80\xa2\n\nThe criminal act must be voluntary and cannot be based solely on the status of the defendant or the\ndefendant\xe2\x80\x99s thoughts.\n\n\xe2\x80\xa2\n\nAn exception to the criminal act element is omission to act.\n\n\xe2\x80\xa2\n\nOmission to act could be criminal if there is a statute, contract, or special relationship that creates a legal\nduty to act in the defendant\xe2\x80\x99s situation.\n\n\xe2\x80\xa2\n\nActual possession means that the item is on or very near the defendant\xe2\x80\x99s person. Constructive possession\nmeans that the item is within the defendant\xe2\x80\x99s control, such as inside a house or vehicle with the defendant.\n\n\xe2\x80\xa2\n\nIn most states, the defendant must be aware that he or she possesses the item to be convicted of\n\n\x0c4.1 Criminal Elements 123\n\npossession.\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nJacqueline is diagnosed with epilepsy two years after receiving her driver\xe2\x80\x99s license. While driving to a\nconcert, Jacqueline suffers an epileptic seizure and crashes into another vehicle, injuring both of its\noccupants. Can Jacqueline be convicted of a crime in this situation? Why or why not?\n\n2.\n\nRead Oler v. State, 998 S.W.2d 363 (1999). In Oler, the defendant was convicted of possession of a\ncontrolled substance by misrepresentation. The defendant solicited and received prescriptions for Dilaudid,\na controlled substance, from four different physicians without informing them that he already had a\nprescription for Dilaudid. The defendant appealed, arguing that he had no legal duty to disclose his previous\nreceipt of the drug to the physicians, and was therefore unlawfully punished for an omission to act. Did the\nTexas Court of Appeals uphold the defendant\xe2\x80\x99s conviction? Why or why not? The case is available at this\nlink: http://scholar.google.com/scholar_case?case=460187562193844690&q=\n998+S.W.2d+363&hl=en&as_sdt=10000000000002.\n\n3.\n\nRead Staples v. U.S., 511 U.S. 600 (1994). In Staples, the defendant was convicted of possession of an\nunregistered automatic weapon in violation of the National Firearms Act. The defendant claimed the\nconviction was improper because the prosecution did not prove that he knew the weapon was automatic, and\nthe prosecution must prove this knowledge to convict under the statute. Did the US Supreme Court reverse\nthe defendant\xe2\x80\x99s conviction? Why or why not? The case is available at this link: http://www.law.cornell.edu/\nsupct/html/92-1441.ZO.html.\n\nReferences\nConnecticut Jury Instructions No. 2.11-1, accessed February 13, 2011, http://www.jud.ct.gov/ji/criminal/part2/\n2.11-1.htm.\nFla. Stat. Ann. \xc2\xa7 790.24, accessed October 25, 2010, http://law.onecle.com/florida/crimes/790.24.html.\nGovt. of Virgin Islands v. Smith, 278 F.2d 169 (1960), accessed October 26, 2010, http://openjurist.org/278/f2d/\n169/government-of-the-virgin-islands-v-smith.\nJones v. U.S., 308 F.2d 307 (1962), accessed October 25, 2010, http://scholar.google.com/\nscholar_case?case=14703438613582917232&hl=en&as_sdt=2002&as_vis=1.\nKy. Rev. Stat. Ann. \xc2\xa7 620.030, accessed October 25, 2010, http://www.lrc.ky.gov/krs/620-00/030.pdf.\nMinnesota Code \xc2\xa7 604A.01, accessed October 25, 2010, http://law.justia.com/minnesota/codes/2005/595/604as01.html.\nN.Y. Penal Law \xc2\xa7 15.00, accessed October 25, 2010, http://law.onecle.com/new-york/penal/\nPEN015.00_15.00.html.\nState ex rel. Kuntz v. Thirteenth Jud. Dist., 995 P.2d 951 (2000), accessed October 25, 2010,\nhttp://caselaw.findlaw.com/mt-supreme-court/1434948.html.\n\n\x0c124 Criminal Law\n\nState v. Davis, 84 Conn. App. 505 (2004), accessed February 13, 2011, http://scholar.google.com/\nscholar_case?case=12496216636522596448&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n26\nU.S.C.\n\xc2\xa7 7203,\naccessed\nOctober\n25,\n2010,\nhttp://www.law.cornell.edu/uscode/26/\nusc_sec_26_00007203\xe2\x80\x94-000-.html.\n\n\x0c4.2 Criminal Intent\n\nLearning Objectives\n1.\n\nDescribe one important function of criminal intent.\n\n2.\n\nList the three common-law criminal intents, ranking them in order of culpability.\n\n3.\n\nCompare specific and general intent.\n\n4.\n\nDescribe an inference that makes it easier for the prosecution to prove a general intent crime.\n\n5.\n\nDifferentiate between motive and criminal intent.\n\n6.\n\nList and define the Model Penal Code mental states, ranking them in order of culpability.\n\n7.\n\nIdentify an exception to the requirement that every crime contain a criminal intent element.\n\n8.\n\nExplain how transferred intent promotes justice.\n\n9.\n\nDescribe the circumstances that give rise to vicarious criminal liability.\n\n10.\n\nDefine concurrence of criminal act and intent.\n\nAlthough there are exceptions that are discussed shortly, criminal intent or mens rea is an essential element\nof most crimes. Under the common law, all crimes consisted of an act carried out with a guilty mind. In\nmodern society, criminal intent can be the basis for fault, and punishment according to intent is a core premise\nof criminal justice. As stated in Chapter 1 \xe2\x80\x9cIntroduction to Criminal Law\xe2\x80\x9d, grading is often related to the\ncriminal intent element. Crimes that have an \xe2\x80\x9cevil\xe2\x80\x9d intent are malum in se and subject the defendant to the most\nsevere punishment. Crimes that lack the intent element are less common and are usually graded lower, as either\nmisdemeanors or infractions.\nFigure 4.5 New York Penal Law\n\n125\n\n\x0c126 Criminal Law\n\nStates and the federal government vary in their approach to defining criminal intent, and each jurisdiction\ndescribes the criminal intent element in a criminal statute, or case, in jurisdictions that allow common-law crimes.\nIn this section, common-law definitions of criminal intent are explored, along with definitions of the criminal\nmental states in the Model Penal Code.\n\nCommon-Law Criminal Intent\nThe common-law criminal intents ranked in order of culpability are malice aforethought, specific intent, and\ngeneral intent. Statutes and cases use different words to indicate the appropriate level of intent for the criminal\noffense, so what follows is a basic description of the intent definitions adopted by many jurisdictions.\n\nMalice Aforethought\nMalice aforethought is a special common-law intent designated for only one crime: murder. The definition of\nmalice aforethought is \xe2\x80\x9cintent to kill.\xe2\x80\x9d Society considers intent to kill the most evil of all intents, so malice\naforethought crimes such as first- and second-degree murder generally mandate the most severe of punishments,\n\n\x0c4.2 Criminal Intent 127\n\nincluding the death penalty in jurisdictions that allow for it. Malice aforethought and criminal homicide are\ndiscussed in detail in Chapter 9 \xe2\x80\x9cCriminal Homicide\xe2\x80\x9d.\n\nSpecific Intent\nSpecific intent is the intent with the highest level of culpability for crimes other than murder. Unfortunately,\ncriminal statutes rarely describe their intent element as \xe2\x80\x9cspecific\xe2\x80\x9d or \xe2\x80\x9cgeneral,\xe2\x80\x9d and a judge may be required to\ndefine the level of intent using the common law or a dictionary to explain a word\xe2\x80\x99s ordinary meaning. Typically,\nspecific intent means that the defendant acts with a more sophisticated level of awareness (Connecticut Jury\nInstructions No. 2.3-1, 2011). Crimes that require specific intent usually fall into one of three categories: either\nthe defendant intends to cause a certain bad result, the defendant intends to do something more than commit the\ncriminal act, or the defendant acts with knowledge that his or her conduct is illegal, which is called scienter.\n\nExample of Specific Intent to Bring about a Bad Result\nA state statute defines mayhem as \xe2\x80\x9cphysical contact with another, inflicted with the intent to maim, disfigure, or\nscar.\xe2\x80\x9d This statute describes a specific intent crime. To be guilty of mayhem under the statute, the defendant must\ninflict the physical contact with the intent of causing the bad result of maiming, disfigurement, or scarring. If the\nprosecution cannot prove this high-level intent, the defendant may be acquitted (or charged and convicted of a\nlower-level intent crime like battery).\nSo if Pauline says, \xe2\x80\x9cIt\xe2\x80\x99s time to permanently mess up that pretty face,\xe2\x80\x9d and thereafter takes out a razor and slices\nPeter\xe2\x80\x99s cheek with it, Pauline might be found guilty of mayhem. On the other hand, if Pauline slaps Peter while\nhe is shaving without making the comment, and the razor bites into his cheek, it is more challenging to prove that\nshe intended a scarring, and Pauline might be found guilty only of battery.\n\nExample of Specific Intent to Do More than the Criminal Act\nA state statute defines theft as \xe2\x80\x9ca permanent taking of property belonging to another.\xe2\x80\x9d This statute describes a\nspecific intent crime. To be guilty of theft under the statute, the defendant must intend to do more than \xe2\x80\x9ctake the\nproperty of another,\xe2\x80\x9d which is the criminal act. The defendant must also intend to keep the property permanently.\nSo if Pauline borrows Peter\xe2\x80\x99s razor to shave her legs, she has \xe2\x80\x9ctaken the property of another,\xe2\x80\x9d but she has not\ncommitted theft for the simple reason that she intends to return the property after use.\n\nExample of Scienter\nAlthough the terms mens rea and scienter are sometimes used interchangeably, many jurisdictions define scienter\nas knowledge that an act is illegal. Scienter can be the basis of specific intent in some statutes. So a statute that\nmakes it a crime to \xe2\x80\x9cwillfully file a false tax return\xe2\x80\x9d may require knowledge that the tax return includes false\n\n\x0c128 Criminal Law\n\ninformation and that it will be unlawful to file it (U.S. v. Pompanio, 2010). If the prosecution fails to prove beyond\na reasonable doubt that the defendant knew his or her conduct was illegal, this could nullify scienter, and the\nprosecution cannot prove specific intent.\n\nGeneral Intent\nGeneral intent is less sophisticated than specific intent. Thus general intent crimes are easier to prove and can also\nresult in a less severe punishment. A basic definition of general intent is the intent to perform the criminal act or\nactus reus. If the defendant acts intentionally but without the additional desire to bring about a certain result, or do\nanything other than the criminal act itself, the defendant has acted with general intent (People v. McDaniel, 2011).\n\nInference of General Intent\nIntent is a notoriously difficult element to prove because it is locked inside the defendant\xe2\x80\x99s mind. Ordinarily, the\nonly direct evidence of intent is a defendant\xe2\x80\x99s confession, which the government cannot forcibly obtain because\nof the Fifth Amendment privilege against self-incrimination. Witnesses who hear the defendant express intent\nare often unable to testify about it because of evidentiary rules prohibiting hearsay. However, many jurisdictions\nallow an inference of general intent based on the criminal act (Commonwealth v. Ely, 2011). In essence, if the\njury accepts the inference, the prosecution does not have the burden of proving intent for a general intent crime.\n\nExample of a General Intent Crime and an Inference of Intent\nA state statute defines battery as \xe2\x80\x9cintentional harmful or offensive physical contact with another.\xe2\x80\x9d This statute\ndescribes a general intent crime. To be guilty of battery under the statute, the defendant must only intend the\nharmful or offensive contact. The defendant does not have to desire that the contact produces a specific result,\nsuch as scarring, or death; nor does the defendant need scienter, or awareness that the physical contact is illegal.\nIf Addie balls up her fist and punches Eddie in the jaw after Eddie calls her a \xe2\x80\x9cstupid idiot,\xe2\x80\x9d Addie has\nprobably committed battery under the statute. A prosecutor could prove that Addie committed the act of harmful\nor offensive contact using Eddie\xe2\x80\x99s testimony and a physician\xe2\x80\x99s report. The jury could thereafter be instructed to\n\xe2\x80\x9cinfer intent from proof of the act.\xe2\x80\x9d If the jury accepts the inference and determines that Addie committed the\ncriminal act, the jury could find Addie guilty of battery without additional evidence of intent.\nFigure 4.6 Common Law Intents\nMost Serious\nLess Serious\nLeast Serious\n\n\x0c4.2 Criminal Intent 129\n\nMotive\nIntent should not be confused with motive, which is the reason the defendant commits the criminal act or actus\nreus. Motive can generate intent, support a defense, and be used to determine sentencing. However, motive alone\ndoes not constitute mens rea and does not act as a substitute for criminal intent.\n\nExample of Motive\nIsabella, a housewife with no criminal record, sits quietly in court waiting to hear the jury verdict in a trial for\nthe rape of her teenage daughter by Ignatius. Ignatius has been convicted of child rape in three previous incidents.\nThe jury foreman announces the decision finding Ignatius not guilty. Ignatius looks over his shoulder at Isabella\nand smirks. Isabella calmly pulls a loaded revolver out of her purse, and then shoots and kills Ignatius. In this\ncase, Isabella\xe2\x80\x99s motive is revenge for the rape of her teenage daughter, or the desire to protect other women from\nIgnatius\xe2\x80\x99 conduct. This motive generated Isabella\xe2\x80\x99s criminal intent, which is malice aforethought or intent to kill.\nIn spite of Isabella\xe2\x80\x99s motive, which is probably understandable under the circumstances, Isabella can be found\nguilty of murder because she acted with the murder mens rea. However, Isabella\xe2\x80\x99s motive may be introduced at\nsentencing and may result in a reduced sentence such as life in prison rather than the death penalty. In addition,\nIsabella\xe2\x80\x99s motive may affect a prosecutor\xe2\x80\x99s decision to seek the death penalty at all because this would probably\nbe disfavored by the public.\n\nModel Penal Code Criminal Intent\nThe Model Penal Code divides criminal intent into four states of mind listed in order of culpability: purposely,\nknowingly, recklessly, and negligently.\n\nPurposely\nA defendant who acts purposely intends to engage in conduct of that nature and intends to cause a certain\nresult (N.H. Rev. Stat. Ann., 2011). Purposeful criminal intent resembles specific intent to cause harm, which\nwas discussed previously. As the Model Penal Code states, \xe2\x80\x9c[a] person acts purposely with respect to a material\nelement of an offense when: (i) if the element involves the nature of his conduct or a result thereof, it is his\nconscious object to engage in conduct of that nature or to cause such a result\xe2\x80\x9d (Model Penal Code \xc2\xa7 2.02 (2) (a)).\n\nExample of Purposely\nReview the example given in Section 4 \xe2\x80\x9cExample of Specific Intent to Bring about a Bad Result\xe2\x80\x9d, where Pauline\ntakes out a razor and slices Peter\xe2\x80\x99s cheek. In this example, Pauline is aware of the nature of the act (slicing\n\n\x0c130 Criminal Law\n\nsomeone\xe2\x80\x99s cheek with a razor). Pauline also appears to be acting with the intent to cause a specific result, based\non her statement to Peter. Thus Pauline is acting with specific intent or purposely and can probably be convicted\nof some form of aggravated battery or mayhem in most jurisdictions.\n\nKnowingly\nKnowingly indicates that the defendant is aware of the nature of the act and its probable consequences (Utah\nCode Ann., 2011). Knowingly differs from purposely in that the defendant is not acting to cause a certain result\nbut is acting with the awareness that the result is practically certain to occur (State v. Huff, 2011). The Model\nPenal Code describes knowingly as follows: \xe2\x80\x9cA person acts knowingly with respect to a material element of an\noffense when\xe2\x80\xa6he is aware that his conduct is of that nature\xe2\x80\xa6if the element involves a result of his conduct, he is\naware that it is practically certain that his conduct will cause such a result\xe2\x80\x9d (Model Penal Code in \xc2\xa7 2.02(2) (b)).\n\nExample of Knowingly\nVictor brags to his girlfriend Tanya that he can shoot into a densely packed crowd of people on the subway train\nwithout hitting any of them. Tanya dares Victor to try it. Victor removes a concealed weapon from his waistband\nand shoots, aiming at a group of people standing with their back to him. The shot kills Monica, who is standing\nthe closest to Victor. In this case, Victor did not intend to shoot Monica. In fact, Victor\xe2\x80\x99s goal was to shoot and\nmiss all the standing subway passengers. However, Victor was aware that he was shooting a loaded gun (the\nnature of the act) and was also practically certain that shooting into a crowd would result in somebody getting\nhurt or killed. Thus Victor acted knowingly according to the Model Penal Code. If the state in which Victor shoots\nMonica defines murder intent as knowingly under the Model Penal Code, then Victor has most likely committed\nmurder in this case.\nFigure 4.7 Crack the Code\n\n\x0c4.2 Criminal Intent 131\n\nRecklessly\nRecklessly is a lower level of culpability than knowingly, and reckless intent crimes are not as common as\noffenses criminalizing purposeful, knowing conduct. The degree of risk awareness is key to distinguishing a\nreckless intent crime from a knowing intent crime. A defendant acts recklessly if he or she consciously disregards\na substantial and unjustifiable risk that the bad result or harm will occur (Colo. Rev. Stat. Ann., 2011). This is\ndifferent from a knowing intent crime, where the defendant must be \xe2\x80\x9cpractically certain\xe2\x80\x9d of the bad results. The\nreckless intent test is two pronged. First, the defendant must consciously disregard a substantial risk of harm.\nThe standard is subjective; the defendant must know of the substantial risk. Second, the defendant must take an\nunjustifiable risk, meaning that no valid reason exists for the risk. The standard for this prong is objective; if a\nreasonable person would not take the risk, then the defendant\xe2\x80\x99s action in taking it is reckless. As the Model Penal\nCode states, \xe2\x80\x9c[t]he risk must be of such a nature and degree that\xe2\x80\xa6its disregard involves a gross deviation from the\n\n\x0c132 Criminal Law\n\nstandard of conduct that a law-abiding person would observe in the actor\xe2\x80\x99s situation\xe2\x80\x9d (Model Penal Code \xc2\xa7 2.02(2)\n(c)).\n\nExample of Recklessly\nReview the example in Section 4 \xe2\x80\x9cExample of Knowingly\xe2\x80\x9d, where Victor shoots into a crowd of subway travelers\nand kills Monica. Change the example, and imagine that the subway train has only three passengers. Victor easily\nshoots in between them, yet the bullet ricochets off one of the seats and strikes Monica, killing her. Victor would\nbe acting with reckless rather than knowing intent in this situation. Victor\xe2\x80\x99s knowledge and awareness of the risk\nof injury or death when shooting a gun inside a subway car containing three passengers is probably substantial. A\nreasonable, law-abiding person would probably not take this action under these circumstances. Thus Victor might\nbe charged with a lower-level form of criminal homicide like manslaughter in this case. The difference between\nmurder and manslaughter is discussed in detail in Chapter 9 \xe2\x80\x9cCriminal Homicide\xe2\x80\x9d.\n\nNegligently\nNegligent intent crimes are less culpable than reckless intent crimes and are also less common. The difference\nbetween reckless and negligent intent is the defendant\xe2\x80\x99s lack of awareness. While defendants committing\nnegligent intent crimes are also faced with a substantial and unjustifiable risk, they are unaware of it, even\nthough a reasonable person would be (Idaho Code Ann., 2011). Thus the first prong of the reckless intent test\nis simply changed from a subjective to objective standard. As the Model Penal Code states, \xe2\x80\x9c[a] person acts\nnegligently\xe2\x80\xa6when he should be aware of a substantial and unjustifiable risk that the material element exists or\nwill result from his conduct\xe2\x80\x9d(Model Penal Code \xc2\xa7 2.02(2) (d)).\n\nExample of Negligently\nReview the example in Section 4 \xe2\x80\x9cExample of Knowingly\xe2\x80\x9d, where Victor shoots into a crowd of subway travelers\nand kills Monica. Change the example, and imagine that the subway train has no passengers. Victor brags to Tanya\nthat he can shoot a crumpled napkin on the floor. Tanya challenges him to try it. Victor shoots at the napkin and\nmisses, and the bullet ricochets three times off three different seats, travels backward, and strikes Tanya in the\nforehead, killing her instantly. In this case, Victor may be unaware of the bullet\xe2\x80\x99s potential to ricochet several\ntimes and actually travel backward. However, the trier of fact can determine that a \xe2\x80\x9creasonable person\xe2\x80\x9d would be\naware that shooting a gun inside a small subway train could result in injury or death. This would be a finding that\nVictor acted negligently, under the circumstances. If the state in which Victor shot Tanya criminalizes negligent\nkillings, then Victor could be found guilty of criminal homicide in this case.\nFigure 4.8 Model Penal Code Criminal Intents Ranked from Most Serious to Least Serious\n\n\x0c4.2 Criminal Intent 133\n\nElements and Criminal Intent\nOccasionally, different criminal intents support the various elements of an offense. If a crime requires more than\none criminal intent, each criminal intent must be proven beyond a reasonable doubt for each element.\nUnder the common law, every offense had just one criminal intent. In modern society, every offense has one\ncriminal intent unless a statute specifies otherwise. As the Model Penal Code states, \xe2\x80\x9c[w]hen the law defining an\noffense prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing\namong the material elements thereof, such provision shall apply to all of the material elements of the offense,\nunless a contrary purpose plainly appears\xe2\x80\x9d (Model Penal Code \xc2\xa7 2.02(4)).\n\nExample of a Crime That Requires More Than One Criminal Intent\nA state statute defines burglary as \xe2\x80\x9cbreaking and entering into a residence at nighttime with the intent to commit\na felony once inside.\xe2\x80\x9d In this statute, the elements are the following: (1) breaking, (2) and entering, (3) into\na residence, (4) at nighttime. Breaking and entering are two criminal act elements. They must be committed\nwith the specific intent, or purposely, to commit a felony once inside the residence. The elements of residence\nand nighttime are two attendant circumstances, which most likely have the lower level of general intent or\nknowingly. Thus this statute has four separate criminal intents that the prosecution must prove beyond a reasonable\ndoubt for conviction.\n\n\x0c134 Criminal Law\n\nStrict Liability\nAn exception to the requirement of a criminal intent element is strict liability. Strict liability offenses have no\nintent element (Ala. Code, 2011). This is a modern statutory trend, which abrogates the common-law approach\nthat behavior is only criminal when the defendant commits acts with a guilty mind. Sometimes the rationale for\nstrict liability crimes is the protection of the public\xe2\x80\x99s health, safety, and welfare. Thus strict liability offenses are\noften vehicle code or tax code violations, mandating a less severe punishment (Tex. Penal Code, 2011). With\na strict liability crime, the prosecution has to prove only the criminal act and possibly causation and harm or\nattendant circumstances, depending on the elements of the offense.\n\nExample of a Strict Liability Offense\nA vehicle code provision makes it a crime to \xe2\x80\x9ctravel in a vehicle over the posted speed limit.\xe2\x80\x9d This is a strict\nliability offense. So if a law enforcement officer captures radar information that indicates Susie was traveling in\na vehicle five miles per hour over the posted speed limit, Susie can probably be convicted of speeding under the\nstatute. Susie\xe2\x80\x99s protests that she \xe2\x80\x9cdidn\xe2\x80\x99t know she was traveling at that speed,\xe2\x80\x9d are not a valid defense. Susie\xe2\x80\x99s\nknowledge of the nature of the act is irrelevant. The prosecution only needs to prove the criminal act to convict\nSusie because this statute is strict liability and does not require proof of criminal intent.\n\nTransferred Intent\nOccasionally, the defendant\xe2\x80\x99s criminal intent is not directed toward the victim. Depending on the jurisdiction,\nthis may result in a transfer of the defendant\xe2\x80\x99s intent from the intended victim to the eventual victim, for the\npurpose of fairness (N.Y. Penal Law, 2011). Although this is a legal fiction, it can be necessary to reach a just\nresult. Transferred intent is only relevant in crimes that require a bad result or victim. In a case where intent\nis transferred, the defendant could receive more than one criminal charge, such as a charge for \xe2\x80\x9cattempting\xe2\x80\x9d to\ncommit a crime against the intended victim. Attempt and transferred intent are discussed in detail in Chapter 8\n\xe2\x80\x9cInchoate Offenses\xe2\x80\x9d.\n\nExample of Transferred Intent\nBilly and his brother Ronnie get into an argument at a crowded bar. Billy balls up his fist and swings, aiming for\nRonnie\xe2\x80\x99s face. Ronnie ducks and Billy punches Amanda in the face instead. Billy did not intend to batter Amanda.\nHowever, it is unjust to allow this protective action of Ronnie\xe2\x80\x99s to excuse Billy\xe2\x80\x99s conduct. Thus Billy\xe2\x80\x99s intent to hit\nRonnie transfers in some jurisdictions over to Amanda. Billy can also be charged with attempted battery, which is\nassault, of Ronnie, resulting in two crimes rather than one under the transferred intent doctrine.\n\n\x0c4.2 Criminal Intent 135\n\nVicarious Liability\nVicarious liability is similar to respondeat superior, a civil law concept discussed in Chapter 1 \xe2\x80\x9cIntroduction to\nCriminal Law\xe2\x80\x9d. Vicarious liability transfers a defendant\xe2\x80\x99s responsibility for the crime to a different defendant, on\nthe basis of a special relationship. Under a theory of vicarious liability, the defendant does not need to commit\nthe criminal act supported by criminal intent. The defendant just has to be involved with the criminal actor in a\nlegally defined relationship. As in civil law, vicarious liability is common between employers and employees.\nCorporate liability is a type of vicarious liability that allows a corporation to be prosecuted for a crime apart\nfrom its owners, agents, and employees (720 ILCS 5/5-4, 2011). This is a modern concept that did not exist\nat early common law. Although corporations cannot be incarcerated, they can be fined. Vicarious liability and\ncorporate liability are discussed in more detail in Chapter 7 \xe2\x80\x9cParties to Crime\xe2\x80\x9d.\n\nExample of Vicarious Liability\nDon hires James to work in his liquor store. James is specially trained to ask for the identification of any\nindividual who appears to be under the age of thirty and attempts to buy alcohol. One night, James sells alcohol to\nAshley and does not request identification because Ashley is attractive and James wants to ask her out on a date.\nUnfortunately, Ashley is underage and is participating in a sting operation with local law enforcement. Certain\nstatutes could subject Don to criminal prosecution for selling alcohol to an underage person like Ashley, even\nthough Don did not personally participate in the sale. Because Don is James\xe2\x80\x99s employer, he may be vicariously\nliable for James\xe2\x80\x99s on-the-job conduct in this instance.\n\nConcurrence of Act and Intent\nAnother element of most criminal offenses is the requirement that the criminal act and criminal intent exist at\nthe same moment (California Criminal Jury Instructions No. 252, 2011). This element is called concurrence.\nConcurrence is rarely an issue in a criminal prosecution because the criminal intent usually generates the bodily\nresponse (criminal act). However, in some rare instances, the criminal act and intent are separated by time, in\nwhich case concurrence is lacking and the defendant cannot be convicted of a crime.\n\nExample of a Situation Lacking Concurrence\nSherree decides she wants to kill her husband using a handgun. As Sherree is driving to the local gun shop to\npurchase the handgun, her husband is distracted and steps in front of her car. Sherree slams on the brakes as a\nreflex, but unfortunately she is unable to avoid striking and killing her husband. Sherree cannot be prosecuted for\ncriminal homicide in this case. Although Sherree had formulated the intent to kill, the intent to kill did not exist\nat the moment she committed the criminal act of hitting her husband with her vehicle. In fact, Sherree was trying\n\n\x0c136 Criminal Law\n\nto avoid hitting her husband at the moment he was killed. Thus this case lacks concurrence of act and intent, and\nSherree is not guilty of criminal homicide.\n\nKey Takeaways\n\xe2\x80\xa2\n\nOne important function of intent is the determination of punishment. In general, the more evil the intent,\nthe more severe the punishment.\n\n\xe2\x80\xa2\n\nThe three common-law intents ranked in order of culpability are malice aforethought, specific intent, and\ngeneral intent.\n\n\xe2\x80\xa2\n\nSpecific intent is the intent to bring about a certain result, do something other than the criminal act, or\nscienter. General intent is simply the intent to perform the criminal act.\n\n\xe2\x80\xa2\n\nWith a general intent crime, the trier of fact may infer intent from the criminal act. This alleviates the\nprosecution\xe2\x80\x99s burden of proving criminal intent.\n\n\xe2\x80\xa2\n\nMotive is the reason the defendant commits the criminal act. Motive standing alone is not enough to\nprove criminal intent.\n\n\xe2\x80\xa2\n\nThe Model Penal Code\xe2\x80\x99s criminal states of mind ranked in order of culpability are purposely, knowingly,\nrecklessly, and negligently. Purposely is similar to specific intent to cause a particular result. Knowingly is\nawareness that results are practically certain to occur. Recklessly is a subjective awareness of a risk of harm,\nand an objective and unjustified disregard of that risk. Negligently is not being aware of a substantial risk of\nharm when a reasonable person would be.\n\n\xe2\x80\xa2\n\nThe exception to the requirement that every crime contain a criminal intent element is strict liability.\n\n\xe2\x80\xa2\n\nTransferred intent promotes justice by holding a defendant responsible for his or her criminal conduct,\neven though the conduct was intended to harm a different victim.\n\n\xe2\x80\xa2\n\nVicarious liability is the transfer of criminal liability from one criminal defendant to another based on a\nspecial relationship.\n\n\xe2\x80\xa2\n\nConcurrence requires that act and intent exist at the same moment.\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nAs Jordan is driving to school, she takes her eyes off the road for a moment and rummages through her\npurse for her phone. This causes her to run a stop sign. Jordan is thereafter pulled over by law enforcement\nand issued a traffic ticket. What is Jordan\xe2\x80\x99s criminal intent in this case? Is Jordan criminally responsible for\nrunning the stop sign? Why or why not?\n\n2.\n\nRead Morissette v. U.S., 342 U.S. 246 (1952). In Morissette, the defendant was convicted of unlawful\nconversion of federal property for gathering and selling spent bomb casings dropped during US Air Force\npractice maneuvers. The statute required \xe2\x80\x9cknowing\xe2\x80\x9d conversion of the property, and the defendant claimed\nhe believed the property was abandoned. Did the US Supreme Court uphold the defendant\xe2\x80\x99s conviction?\nWhy or why not? The case is available at this link: http://scholar.google.com/\nscholar_case?case=787130527265701764&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\n3.\n\nRead State v. Crosby, 154 P.3d 97 (2007). In Crosby, the defendant was convicted of manslaughter of a\ndependent person by neglect. The defendant\xe2\x80\x99s mother died of \xe2\x80\x9csepsis\xe2\x80\x9d and was brought to the hospital\ncovered with feces and bedsores. The defendant was her mother\xe2\x80\x99s caregiver. The jury was instructed that the\n\n\x0c4.2 Criminal Intent 137\n\ndefendant possessed the mental state of \xe2\x80\x9crecklessness\xe2\x80\x9d under the statute if she disregarded a substantial risk\nof harm or circumstances. The jury asked the judge if \xe2\x80\x9ccircumstances\xe2\x80\x9d included the bedsores or just death.\nHe responded that the risk could be more than just death and left it up to the jury to decide. Did the Supreme\nCourt of Oregon uphold the defendant\xe2\x80\x99s conviction? Why or why not? The case is available at this link:\nhttp://scholar.google.com/scholar_case?case=10006178173306648171&q=\nState+v.+Crosby+S53295&hl=en&as_sdt=2,5.\n4.\n\nRead State v. Horner, 126 Ohio St. 3d 466 (2010). In Horner, the defendant pleaded no contest to\naggravated robbery. The defendant\xe2\x80\x99s pre-plea indictment did not contain a mens rea element for aggravated\nrobbery, just the mens rea for theft. The defendant moved to dismiss the no contest plea, based on the fact\nthat the indictment was defective for lacking the mens rea element. Did the Ohio Supreme Court find the\nindictment defective? Why or why not? The case is available at this link:\nhttp://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-ohio-3830.pdf.\n\nLaw and Ethics: Dean v. U.S.\nTen Years Imprisonment for an Accident?\n\xe2\x80\x9cAccidents happen. Sometimes they happen to individuals committing crimes with loaded guns.\xe2\x80\x9d Read Dean v. U.S.,\n129 S. Ct. 1849 (2009)), which is available at this link: http://scholar.google.com/\nscholar_case?case=10945987555184039397&q= Dean+v.+U.S.&hl=en&as_sdt=2,5.\nIn Dean, the defendant was sentenced to ten years imprisonment under a federal sentencing enhancement for an\naccidental discharge of his firearm during a bank robbery. The prosecution presented evidence at trial indicating that the\ndefendant went into the bank wearing a mask and carrying a loaded firearm. The defendant told everyone in the bank to\n\xe2\x80\x9cget down,\xe2\x80\x9d and then went behind the tellers\xe2\x80\x99 station and began grabbing money with his left hand. The gun in his right\nhand discharged. The defendant seemed surprised by the discharge, cursed, and ran out of the bank. No one was injured\nor hurt during the robbery.\nThe defendant thereafter admitted he committed the robbery. The US Supreme Court upheld the defendant\xe2\x80\x99s\nsentencing, in spite of the fact that there was no evidence of intent to discharge the firearm. The Court based its holding\non the plain meaning of the statute requiring a minimum sentence of ten years imprisonment when a firearm is\ndischarged during a robbery. The statute, 18 U.S.C. \xc2\xa7 924(c) (1) (A), does not expressly state a criminal intent\nrequirement. The Court further held that a presumption of criminal intent was not required. As the Court stated, \xe2\x80\x9c[i]t is\nunusual to impose criminal punishment for the consequences of purely accidental conduct. But it is not unusual to\npunish individuals for the unintended consequences of their unlawful acts\xe2\x80\x9d (Dean v. U.S., 129 S. Ct. 1849, 1855 (2009)).\n1.\n\nDo you think it is ethical to sentence Dean to ten years\xe2\x80\x99 imprisonment for his accidental conduct in this\ncase? Why or why not?\n\nCheck your answer using the answer key at the end of the chapter.\n\nReferences\nAla. Code \xc2\xa7 13A-2-3, accessed February 14, 2011, http://law.onecle.com/alabama/criminal-code/13A-2-3.html.\nCalifornia Criminal Jury Instructions No. 252, accessed February 14, 2011, http://www.justia.com/criminal/\ndocs/calcrim/200/252.html.\n\n\x0c138 Criminal Law\n\nColo. Rev. Stat. Ann. \xc2\xa7 18-1-501(8), accessed February 14, 2011, http://www.michie.com/colorado/\nlpext.dll?f=templates&fn=main-h.htm&cp=.\nCommonwealth v. Ely, 444 N.E.2d 1276 (1983), accessed February 13, 2011, http://scholar.google.com/\nscholar_case?case=369554378994187453&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\nConnecticut Jury Instructions No. 2.3-1, accessed February 14, 2011, http://www.jud.ct.gov/ji/criminal/part2/\n2.3-1.htm.\nIdaho Code Ann. \xc2\xa7 18-101(2), accessed February 14, 2011, http://www.legislature.idaho.gov/idstat/Title18/\nT18CH1SECT18-101.htm.\nN.H. Rev. Stat. Ann. \xc2\xa7 626:2(II)(a), accessed February 14, 2011, http://www.gencourt.state.nh.us/rsa/html/\nLXII/626/626-2.htm.\nPeople v. McDaniel, 597 P.2d 124 (1979), accessed February 14, 2011, http://scholar.google.com/\nscholar_case?case=8266915507346002022&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\nState v. Huff, 469 A.2d 1251 (1984), accessed February 14, 2011, http://scholar.google.com/\nscholar_case?case=4287195880403875631&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\nTex. Penal Code \xc2\xa7 49.04, accessed February 14, 2011, http://law.onecle.com/texas/penal/49.04.00.html.\nUtah Code Ann. \xc2\xa7 76-2-103(2), accessed February 14, 2011, http://le.utah.gov/~code/TITLE76/htm/\n76_02_010300.htm.\nU.S. v. Pompanio, 429 U.S. 10 (1976), accessed October 28, 2010, http://supreme.justia.com/us/429/10/\ncase.html.\n720 ILCS 5/5-4, accessed February 14, 2011, http://law.onecle.com/illinois/720ilcs5/5-4.html.\n\n\x0c4.3 Causation and Harm\n\nLearning Objectives\n1.\n\nDistinguish between factual and legal cause.\n\n2.\n\nDefine intervening superseding cause, and explain the role it plays in the defendant\xe2\x80\x99s criminal liability.\n\n3.\n\nDefine one and three years and a day rules.\n\nAs stated previously, causation and harm can also be elements of a criminal offense if the offense requires a bad\nresult. In essence, if injury is required under the statute, or the case is in a jurisdiction that allows for commonlaw crimes, the defendant must cause the requisite harm. Many incidents occur when the defendant technically\ninitiates circumstances that result in harm, but it would be unjust to hold the defendant criminally responsible.\nThus causation should not be rigidly determined in every instance, and the trier of fact must perform an analysis\nthat promotes fairness. In this section, causation in fact and legal causation are examined as well as situations\nwhere the defendant may be insulated from criminal responsibility.\nFigure 4.9 Oregon Revised Statutes\n\n139\n\n\x0c140 Criminal Law\n\nCausation in Fact\nEvery causation analysis is twofold. First, the defendant must be the factual or but for cause of the victim\xe2\x80\x99s\nharm. The but for term comes from this phrase: \xe2\x80\x9cbut for the defendant\xe2\x80\x99s act, the harm would not have occurred\xe2\x80\x9d\n(Del. Code Ann. tit. II, 2011). As the Model Penal Code states, \xe2\x80\x9c[c]onduct is the cause of a result when\xe2\x80\xa6(a) it\nis an antecedent but for which the result in question would not have occurred\xe2\x80\x9d (Model Penal Code \xc2\xa7 2.03(1)(a)).\nBasically, the defendant is the factual or but for cause of the victim\xe2\x80\x99s harm if the defendant\xe2\x80\x99s act starts the chain\nof events that leads to the eventual result.\n\nExample of Factual Cause\nHenry and Mary get into an argument over their child custody agreement. Henry gives Mary a hard shove. Mary\nstaggers backward, is struck by lightning, and dies instantly. In this example, Henry\xe2\x80\x99s act forced Mary to move\ninto the area where the lighting happened to strike. However, it would be unjust to punish Henry for Mary\xe2\x80\x99s death\nin this case because Henry could not have imagined the eventual result. Thus although Henry is the factual or but\nfor cause of Mary\xe2\x80\x99s death, he is probably not the legal cause.\n\nLegal Causation\nIt is the second part of the analysis that ensures fairness in the application of the causation element. The defendant\nmust also be the legal or proximate cause of the harm. Proximate means \xe2\x80\x9cnear,\xe2\x80\x9d so the defendant\xe2\x80\x99s conduct must\nbe closely related to the harm it engenders. As the Model Penal Code states, the actual result cannot be \xe2\x80\x9ctoo remote\nor accidental in its occurrence to have a [just] bearing on the actor\xe2\x80\x99s liability\xe2\x80\x9d (Model Penal Code \xc2\xa7 2.03 (2) (b)).\nThe test for legal causation is objective foreseeability (California Criminal Jury Instructions No. 520, 2011).\nThe trier of fact must be convinced that when the defendant acted, a reasonable person could have foreseen or\npredicted that the end result would occur. In the example given in Section 4 \xe2\x80\x9cExample of Factual Cause\xe2\x80\x9d, Henry\nis not the legal cause of Mary\xe2\x80\x99s death because a reasonable person could have neither foreseen nor predicted that\na shove would push Mary into a spot where lightning was about to strike.\nThe Model Penal Code adjusts the legal causation foreseeability requirement depending on whether the\ndefendant acted purposely, knowingly, recklessly, or negligently. If the defendant\xe2\x80\x99s behavior is reckless or\nnegligent, the legal causation foreseeability requirement is analyzed based on the risk of harm, rather than the\npurpose of the defendant.\n\nExample of Legal Causation\nImagine that Henry and Mary get into the same argument over their child custody agreement, but this time they\nare in their garage, which is crowded with furniture. Henry gives Mary a hard shove, even though she is standing\ndirectly in front of a large entertainment center filled with books and a heavy thirty-two-inch television set. Mary\n\n\x0c4.3 Causation and Harm 141\n\nstaggers backward into the entertainment center and it crashes down on top of her, killing her. In this situation,\nHenry is the factual cause of Mary\xe2\x80\x99s death because he started the chain of events that led to her death with his\npush. In addition, it is foreseeable that Mary might suffer a serious injury or death when shoved directly into a\nlarge and heavy piece of furniture. Thus in this example, Henry could be the factual and legal cause of Mary\xe2\x80\x99s\ndeath. It is up to the trier of fact to make this determination based on an assessment of objective foreseeability and\nthe attendant circumstances.\n\nIntervening Superseding Cause\nAnother situation where the defendant is the factual but not the legal cause of the requisite harm is when\nsomething or someone interrupts the chain of events started by the defendant. This is called an intervening\nsuperseding cause. Typically, an intervening superseding cause cuts the defendant off from criminal liability\nbecause it is much closer, or proximate, to the resulting harm (Connecticut Jury Instructions No. 2.6-1, 2011). If\nan intervening superseding cause is a different individual acting with criminal intent, the intervening individual is\ncriminally responsible for the harm caused.\n\nExample of an Intervening Superseding Cause\nReview the example with Henry and Mary in Section 4 \xe2\x80\x9cExample of Legal Causation\xe2\x80\x9d. Change the example so\nthat Henry pulls out a knife and chases Mary out of the garage. Mary escapes Henry and hides in an abandoned\nshed. Half an hour later, Wes, a homeless man living in the shed, returns from a day of panhandling. When he\ndiscovers Mary in the shed, he kills her and steals her money and jewelry. In this case, Henry is still the factual\ncause of Mary\xe2\x80\x99s death, because he chased her into the shed where she was eventually killed. However, Wes is\nprobably the intervening superseding cause of Mary\xe2\x80\x99s death because he interrupted the chain of events started\nby Henry. Thus Wes is subject to prosecution for Mary\xe2\x80\x99s death, and Henry may be prosecuted only for assault with\na deadly weapon.\n\nOne and Three Years and a Day Rules\nIn criminal homicide cases, the causation analysis could be complicated by a victim\xe2\x80\x99s survival for an extended\ntime period. Because of modern technology, victims often stay alive on machines for many years after they have\nbeen harmed. However, it may be unreasonable to hold a defendant responsible for a death that occurs several\nyears after the defendant\xe2\x80\x99s criminal act. A few states have rules that solve this dilemma.\nSome states have either a one year and a day rule or a three years and a day rule (S.C. Code Ann., 2011).\nThese rules create a timeline for the victim\xe2\x80\x99s death that changes the causation analysis in a criminal homicide case.\nUnder one or three years and a day rules, the victim of a criminal homicide must die within the specified time\nlimits for the defendant to be criminally responsible. If the victim does not die within the time limits, the defendant\nmay be charged with attempted murder, rather than criminal homicide. California makes the timeline a rebuttable\n\n\x0c142 Criminal Law\n\npresumption that can be overcome with evidence proving that the conduct was criminal and the defendant should\nstill be convicted (Cal. Penal Code, 2011).\nFigure 4.10 California Penal Code\n\nDeath timeline rules are often embodied in a state\xe2\x80\x99s common law and have lost popularity in recent years (Key\nv. State, 2011). Thus many states have abolished arbitrary time limits for the victim\xe2\x80\x99s death in favor of ordinary\nprinciples of legal causation (Rogers v. Tennessee, 2011). Death timeline rules are not to be confused with the\nstatute of limitations, which is the time limit the government has to prosecute a criminal defendant.\nFigure 4.11 Diagram of the Elements of a Crime\n\n\x0c4.3 Causation and Harm 143\n\n\x0c144 Criminal Law\n\nKey Takeaways\n\xe2\x80\xa2\n\nFactual cause means that the defendant starts the chain of events leading to the harm. Legal cause means\nthat the defendant is held criminally responsible for the harm because the harm is a foreseeable result of the\ndefendant\xe2\x80\x99s criminal act.\n\n\xe2\x80\xa2\n\nAn intervening superseding cause breaks the chain of events started by the defendant\xe2\x80\x99s act and cuts the\ndefendant off from criminal responsibility.\n\n\xe2\x80\xa2\n\nOne and three years and a day rules create a timeline for the victim\xe2\x80\x99s death in a criminal homicide.\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nPhillipa sees Fred picking up trash along the highway and decides she wants to frighten him. She drives a\nquarter of a mile ahead of Fred and parks her car. She then hides in the bushes and waits for Fred to show\nup. When Fred gets close enough, she jumps out of the bushes screaming. Frightened, Fred drops his trash\nbag and runs into the middle of the highway where he is struck by a vehicle and killed. Is Phillipa\xe2\x80\x99s act the\nlegal cause of Fred\xe2\x80\x99s death? Why or why not?\n\n2.\n\nRead Bullock v. State, 775 A.2d. 1043 (2001). In Bullock, the defendant was convicted of manslaughter\nbased on a vehicle collision that occurred when his vehicle hit the victim\xe2\x80\x99s vehicle in an intersection. The\ndefendant was under the influence of alcohol and traveling thirty miles per hour over the speed limit. The\nvictim was in the intersection unlawfully because the light was red. The defendant claimed that the victim\nwas the intervening superseding cause of her own death. Did the Supreme Court of Delaware agree? The\ncase is available at this link: http://caselaw.findlaw.com/de-supreme-court/1137701.html.\n\n3.\n\nRead Commonwealth v. Casanova, 429 Mass. 293 (1999). In Casanova, the defendant shot the victim in\n1991, paralyzing him. The defendant was convicted of assault with intent to murder and two firearms\noffenses. In 1996, the victim died. The defendant was thereafter indicted for his murder. Massachusetts had\nabolished the year and a day rule in 1980. Did the Massachusetts Supreme Judicial Court uphold the\nindictment, or did the court establish a new death timeline rule? The case is available at this link:\nhttp://scholar.google.com/\nscholar_case?case=16055857562232849296&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\nReferences\nCal. Penal Code \xc2\xa7 194, accessed February 14, 2011, http://codes.lp.findlaw.com/cacode/PEN/3/1/8/1/s194.\nCalifornia Criminal Jury Instructions No. 520, accessed February 14, 2011, http://www.justia.com/criminal/\ndocs/calcrim/500/520.html.\nConnecticut Jury Instructions No. 2.6-1, accessed February 14, 2011, http://www.jud.ct.gov/ji/criminal/part2/\n2.6-1.htm.\nDel. Code Ann. tit. II, \xc2\xa7 261, accessed February 14, 2011, http://delcode.delaware.gov/title11/c002/\nindex.shtml#261.\nKey v. State, 890 So.2d 1043 (2002), accessed February 15, 2011, http://www.lexisone.com/lx1/caselaw/\n\n\x0c4.3 Causation and Harm 145\n\nfreecaselaw?action=\nOCLGetCaseDetail&format=FULL&sourceID=beehed&searchTerm=\nefiQ.QLea.aadj.eaOS&searchFlag=y&l1loc=FCLOW.\nRogers v. Tennessee, 532 U.S. 541 (2001), accessed February 14, 2011, http://caselaw.lp.findlaw.com/scripts/\ngetcase.pl?court=us&vol=000&invol=99-6218.\nS.C. Code Ann. \xc2\xa7 56-5-2910, accessed February 15, 2011, http://www.scstatehouse.gov/code/t56c005.htm.\n\n\x0c4.4 End-of-Chapter Material\n\nSummary\nCrimes are made up of parts, referred to as elements. The criminal elements are criminal act or actus reus, criminal\nintent or mens rea, concurrence, causation, harm, and attendant circumstances. Only crimes that specify a bad result\nrequire the causation and harm elements.\nCriminal acts must be voluntary or controllable and cannot consist solely of the defendant\xe2\x80\x99s status or thoughts. Just\none voluntary act is needed for a crime, so if a voluntary act is followed by an involuntary act, the defendant can still be\ncriminally responsible. Omission or failure to act can also be criminal if there is a duty to act based on a statute,\ncontract, or special relationship. Possession is passive, but it can still be a criminal act. The most common items that are\ncriminal to possess are illegal contraband, drugs, and weapons. Possession can be actual if the item is on or very near\nthe defendant\xe2\x80\x99s person, or constructive if within an area of the defendant\xe2\x80\x99s control, like inside the defendant\xe2\x80\x99s house or\nvehicle. More than one defendant can be in possession of one item. Criminal possession should be supported by the\nintent of awareness because it is passive.\nCriminal intent is an important element because it is often one factor considered in the grading of criminal offenses.\nThe three common-law criminal intents are malice aforethought, which is intent to kill, specific intent, and general\nintent. Specific intent is the intent to bring about a particular result, a higher level of awareness than is required to\nperform the criminal act, or scienter, which is knowledge that a criminal act is unlawful. General intent is the intent to\ndo the act and can often give rise to an inference of criminal intent from proof of the criminal act. Motive should not be\nconfused with or replace intent. Motive is the reason the defendant develops criminal intent.\nThe Model Penal Code describes four criminal states of mind, which are purposely, knowingly, recklessly, and\nnegligently. Purposely is similar to specific intent to cause a particular result. Knowingly is awareness that results are\npractically certain to occur. Recklessly is a subjective awareness of a risk of harm and an objective and unjustified\ndisregard of that risk. Negligently is not being aware of a substantial risk of harm when a reasonable person would be.\nOffense elements, including specified attendant circumstances, may require different mental states. If so, the\nprosecution must prove each mental state for every element beyond a reasonable doubt.\nStrict liability crimes do not require an intent element and are generally malum prohibitum, with a less severe\npunishment. Transferred intent is a legal fiction that transfers a defendant\xe2\x80\x99s criminal intent to an unintended victim for\nthe purpose of fairness. Pursuant to transferred intent, the defendant may be responsible for two crimes: attempt and the\ncompleted crime, depending on the circumstances. Vicarious liability transfers a defendant\xe2\x80\x99s criminal liability to a\ndifferent defendant based on a special relationship. Corporate liability is a type of vicarious liability that holds a\ncorporation responsible for crimes apart from its owners, agents, and employees. Concurrence is also a criminal element\nthat requires the criminal act and criminal intent exist at the same moment.\nWhen the crime requires a bad result, the defendant must cause the harm. The defendant must be the factual and legal\ncause. Factual cause means that the defendant starts the chain of events that leads to the bad result. Legal or proximate\ncause means that it is objectively foreseeable that the end result will occur when the defendant commits the criminal act.\nAn intervening superseding cause breaks the chain of events started by the defendant\xe2\x80\x99s criminal act and insulates the\ndefendant from criminal liability. When the intervening superseding cause is an individual, the intervening individual is\ncriminally responsible for the crime. Some states have rules that protect the defendant from criminal responsibility for\nhomicide when the victim lives a long time after the criminal act. These death timeline rules require the victim to die\nwithin one or three years and a day from the defendant\xe2\x80\x99s criminal act and are becoming increasingly unpopular. Many\nstates have abolished death timeline rules in favor of ordinary principles of legal causation.\n\n146\n\n\x0c4.4 End-of-Chapter Material 147\n\nYou Be the Law Student\nRead the prompt, review the case, and then decide whether the issue is the defendant\xe2\x80\x99s criminal act or criminal\nintent. Check your answers using the answer key at the end of the chapter.\n1.\n\nRead State v. Andrews, 572 S.E.2d 798 (2002). In Andrews, the defendant took Prozac and Effexor for\none day. The next day, the defendant ran his wife and her friend down with his car. After hitting both\nvictims, the defendant jumped out of the car and stabbed his wife three times. He was convicted of\nattempted murder and assault with a deadly weapon against both victims. He appealed on the grounds that\nthe jury was given an improper instruction as to his criminal responsibility for the crimes committed against\nhis wife\xe2\x80\x99s friend. Did the Court of Appeals of North Carolina hold that this is an issue of criminal act or\ncriminal intent? The case is available at this link: http://caselaw.findlaw.com/nc-court-of-appeals/\n1197459.html.\n\n2.\n\nRead State v. Sowry, 155 Ohio App. 3d 742 (2004). In Sowry, Ohio police arrested the defendant and\nbrought him to jail. Before booking the defendant, the police asked him whether he had any drugs on his\nperson. He responded \xe2\x80\x9cno.\xe2\x80\x9d The police thereafter searched him and discovered a plastic bag of marijuana in\nhis pocket. The defendant was later convicted of knowingly conveying drugs onto the grounds of a\ndetention facility. The defendant appealed and was successful. Did the Court of Appeals of Ohio hold that\nthis is an issue of criminal act or criminal intent? The case is available at this link:\nhttp://www.supremecourt.ohio.gov/rod/docs/pdf/2/2004/2004-Ohio-399.pdf.\n\n3.\n\nRead Regalado v. U.S., 572 A.2d 416 (1990). In Regalado, the defendant was convicted of animal cruelty\nfor punching a puppy repeatedly in the face. The defendant appealed, claiming that he was merely\n\xe2\x80\x9cdisciplining\xe2\x80\x9d the puppy. Did the District of Columbia Court of Appeals hold that this is an issue of\ncriminal act or criminal intent? The case is available at this link: http://scholar.google.com/\nscholar_case?case=10084482120424691457&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\n4.\n\nRead State v. Slayton, 154 P.3d 1057 (2007). In Slayton, the defendant received a hunting permit, hired a\nguide, and thereafter shot an elk and carried it out of the area. The defendant\xe2\x80\x99s hunting permit was valid in\nonly a limited location, and the defendant shot the elk outside that location. The defendant was convicted of\nunauthorized hunting and transporting wildlife. The Arizona Superior Court vacated the defendant\xe2\x80\x99s\nconvictions, the state appealed, and the Court of Appeals of Arizona reversed. Did the Court of Appeals of\nArizona hold that this is an issue of criminal act or criminal intent? The case is available at this link:\nhttp://scholar.google.com/scholar_case?case=13377680343653410685&q=\nState+v.+Slayton&hl=en&as_sdt=2,5&as_ylo=2006.\n\nCases of Interest\n\xe2\x80\xa2\n\nState v. Kanavy, 4 A.3d 991 (2010), discusses omission to act: http://scholar.google.com/\nscholar_case?case=13238547420575358722&q= State+v.+Kanavy&hl=en&as_sdt=2,5&as_vis=1.\n\n\xe2\x80\xa2\n\nU.S. v. Grajeda, 581 F.3d 1186 (2009), discusses criminal intent: http://scholar.google.com/\nscholar_case?case=10326332733812062874&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\n\xe2\x80\xa2\n\nPeople v. Roberts, 826 P.2d 274 (1992), discusses proximate cause: http://scholar.google.com/\nscholar_case?case=128455976362726317&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\n\x0c148 Criminal Law\n\nArticles of Interest\n\xe2\x80\xa2\n\nThe duty to rescue: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=796384\n\n\xe2\x80\xa2\n\nStrict liability: http://www.bu.edu/law/central/jd/organizations/journals/bulr/volume86n2/documents/\nCARPENTERv2.pdf\n\n\xe2\x80\xa2\n\nVicarious liability: http://www.nj.com/news/index.ssf/2010/05/jury_finds_godinez_guilty_in_n.html\n\nWebsites of Interest\n\xe2\x80\xa2\n\nState and federal laws and cases: http://law.onecle.com\n\n\xe2\x80\xa2\n\nState and federal laws and cases: http://www.findlaw.com\n\nAnswers to Exercises\nFrom Section 4.1 \xe2\x80\x9cCriminal Elements\xe2\x80\x9d\n1.\n\nJacqueline can be convicted of a crime in this situation. Although an epileptic seizure is not a voluntary\nact, Jacqueline\xe2\x80\x99s conduct in driving while aware that she has epilepsy is. Only one voluntary act is required\nfor a crime, and Jacqueline was able to control her decision making in this instance. Punishing Jacqueline\nfor driving with epilepsy could specifically deter Jacqueline from driving on another occasion and is\nappropriate under the circumstances.\n\n2.\n\nThe Texas Court of Appeals upheld the defendant\xe2\x80\x99s indictment and conviction. The court stated that the\ndefendant\xe2\x80\x99s conduct in deliberately seeking out four physicians and presenting his medical problem to them\nwith the intent to gain a prescription for a controlled substance in violation of Texas law is a criminal act,\nnot an omission to act.\n\n3.\n\nThe US Supreme Court reversed the defendant\xe2\x80\x99s conviction and held that the prosecution must prove that\nthe defendant knew the weapon was automatic to convict him of failure to register an automatic weapon.\n\nAnswers to Exercises\nFrom Section 4.2 \xe2\x80\x9cCriminal Intent\xe2\x80\x9d\n1.\n\nJordan is acting recklessly or negligently. If Jordan is an experienced driver, then she knows that there is\na substantial risk of injury or harm when a driver takes his or her eyes off the road. If Jordan is not an\nexperienced driver, she may not be aware of the risk, but she should be because she has been trained to drive\nand has passed exams and practical driving tests that emphasize this fact. Whether Jordan\xe2\x80\x99s intent is reckless\nor negligent is probably irrelevant because most states make running a stop sign a strict liability offense\nwith no criminal intent required.\n\n2.\n\nThe US Supreme Court reversed the defendant\xe2\x80\x99s conviction. The Court disagreed with the lower court\n\n\x0c4.4 End-of-Chapter Material 149\n\nthat this was a strict liability public welfare offense and determined that a presumption of intent was\ninappropriate. The Court held that criminal intent was an element of the offense that the trier of fact needed\nto find beyond a reasonable doubt.\n3.\n\nThe Oregon Supreme Court reversed and held that the substantial risk applied to the victim\xe2\x80\x99s death (bad\nresult), not the victim\xe2\x80\x99s bedsores (attendant circumstances).\n\n4.\n\nThe Ohio Supreme Court held that the indictment was valid and that the statute clearly intended for\naggravated robbery to be a strict liability offense lacking mens rea.\n\nAnswers to Exercises\nFrom Section 4.3 \xe2\x80\x9cCausation and Harm\xe2\x80\x9d\n1.\n\nPhillipa\xe2\x80\x99s act is the factual and legal cause of Fred\xe2\x80\x99s death. Phillipa\xe2\x80\x99s act in jumping out of the bushes\nscreaming caused Fred to run onto the highway, so Phillipa\xe2\x80\x99s act is the factual cause of Fred\xe2\x80\x99s death. In\naddition, a reasonable person could foresee that frightening someone next to a major highway might result\nin them trying to escape onto the highway, where a vehicle traveling at a high rate of speed could hit them.\nThus Phillipa\xe2\x80\x99s act is also the legal cause of Fred\xe2\x80\x99s death.\n\n2.\n\nThe Delaware Supreme Court reversed the defendant\xe2\x80\x99s conviction based on a jury instruction that did not\ninclude the victim\xe2\x80\x99s actions. The Delaware Supreme Court held that the defendant\xe2\x80\x99s acts could not be the\nlegal cause of death unless the result of the defendant\xe2\x80\x99s acts was foreseeable. Foreseeability in this case\ncould only be analyzed if the jury instructions address the victim\xe2\x80\x99s behavior.\n\n3.\n\nThe Massachusetts Supreme Judicial Court upheld the defendant\xe2\x80\x99s indictment, and did not create a new\ndeath timeline rule.\n\nAnswer to Law and Ethics Question\n1.\n\nAlthough ten years is a lengthy prison sentence, it may be ethical even for a criminal act committed\nwithout criminal intent if there is a potential for harm. In Dean, the defendant may have discharged the\nfirearm unintentionally, but there was a great potential for injury. The defendant was inside a bank filled\nwith employees and customers. Although the defendant\xe2\x80\x99s shot did not cause physical injury to any of the\nbank\xe2\x80\x99s occupants, this was mere happenstance. The defendant could have shot and killed someone. If a\nsecurity guard was startled by the gunshot, a shootout may have occurred, injuring many more individuals.\nThus punishing a defendant for an act that lacks criminal intent (and harm) could fulfill specific and general\ndeterrence. Criminal intent and harm are only two factors to be considered when grading crimes. If other\npurposes of punishment are applicable, they can also be considered as factors.\n\nAnswers to You Be the Law Student\n1.\n\nThe Court of Appeals of North Carolina held that the defendant was criminally responsible for hitting his\nwife\xe2\x80\x99s friend under a theory of transferred intent. Thus this is an issue of criminal intent. The Court of\n\n\x0c150 Criminal Law\n\nAppeals held that transferred intent applies even when the defendant injures the intended victim.\n2.\n\nThe Court of Appeals of Ohio held that the defendant did not choose to bring drugs to the jail; the police\nforcibly took him there. Thus there was no voluntary criminal act.\n\n3.\n\nThe District of Columbia Court of Appeals affirmed the defendant\xe2\x80\x99s conviction, holding that the animal\ncruelty statute required proof of general intent plus malice, which the defendant demonstrated with his\nbeating of the puppy. Thus this is an issue of criminal intent.\n\n4.\n\nThe Court of Appeals of Arizona held that the statutes the defendant violated are strict liability, so the\nfact that the defendant may have been mistaken as to the limited location authorized by his hunting permit is\nirrelevant. Thus this is an issue of criminal intent.\n\n\x0cChapter 5: Criminal Defenses, Part 1\n\nDaniel Hoherd \xe2\x80\x93 Broken Latch \xe2\x80\x93 CC BY-NC 2.0.\n\nA person who unlawfully and by force enters or attempts to enter a person\xe2\x80\x99s dwelling, residence, or occupied\nvehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence\xe2\x80\xa6\n\xe2\x80\x94Fla. Stat. Ann. \xc2\xa7776.013(4), cited in Section 5.3.3 \xe2\x80\x9cDefense of Habitation\xe2\x80\x9d\n\n151\n\n\x0c5.1 Criminal Defenses\n\nLearning Objectives\n1.\n\nDistinguish between a denial or failure of proof defense and an affirmative defense.\n\n2.\n\nDistinguish between imperfect and perfect defenses.\n\n3.\n\nDistinguish between factual and legal defenses.\n\n4.\n\nGive examples of factual and legal defenses.\n\n5.\n\nDistinguish between defenses based on justification and excuse.\n\nA plethora of criminal defenses exist. Defenses may completely exonerate the criminal defendant, resulting in an\nacquittal, or reduce the severity of the offense. Chapter 3 \xe2\x80\x9cConstitutional Protections\xe2\x80\x9d discussed defenses based\non the federal Constitution. This chapter reviews the categorization of nonconstitutional criminal defenses, along\nwith the elements of various defenses sanctioning the use of force.\n\nCategorization of Defenses\nDefenses can be categorized as denial or failure of proof, affirmative, imperfect, or perfect. Defenses can also be\ncategorized as factual, legal, based on justification, or excuse. Lastly, defenses can be created by a court (common\nlaw), or created by a state or federal legislature (statutory).\n\nDefinition of Denial or Failure of Proof and Affirmative Defenses\nAs stated in Chapter 2 \xe2\x80\x9cThe Legal System in the United States\xe2\x80\x9d, a criminal defendant will be acquitted if the\nprosecution cannot prove every element of the offense beyond a reasonable doubt. In certain cases, the defendant\ncan either deny that a criminal element(s) exists or simply sit back and wait for the prosecution to fail in meeting\nits burden of proof. This legal strategy is sometimes referred to as either a denial or failure of proof defense.\nAn affirmative defense is not connected to the prosecution\xe2\x80\x99s burden of proof. When the defendant asserts an\naffirmative defense, the defendant raises a new issue that must be proven to a certain evidentiary standard. State\nstatutes often specify whether a defense is affirmative. The Model Penal Code defines an affirmative defense as\na defense that is deemed affirmative in the Code or a separate statute, or that \xe2\x80\x9cinvolves a matter of excuse or\njustification peculiarly within the knowledge of the defendant\xe2\x80\x9d (Model Penal Code \xc2\xa7 1.12 (3) (c)). Procedurally,\nthe defendant must assert any affirmative defense before or during the trial, or the defense cannot be used as\ngrounds for an appeal.\n\n152\n\n\x0c5.1 Criminal Defenses 153\n\nExample of an Affirmative Defense\nA fight breaks out at a party, and Juan is severely injured. Jasmine and Jerome are arrested and charged for\nbattering Juan. Jerome claims that he did not touch Juan; someone else battered him. Jasmine claims that she\ndid not batter Juan because she was legally defending herself against Juan\xe2\x80\x99s attack. Jerome\xe2\x80\x99s claim focuses on\nthe elements of battery and asserts that these elements cannot be proven beyond a reasonable doubt. Technically,\nJerome can do nothing and be acquitted if the prosecution fails to prove that he was the criminal actor. Jasmine\xe2\x80\x99s\nself-defense claim is an affirmative defense. Jasmine must do something to be acquitted: she must prove that\nJuan attacked her to a certain evidentiary standard.\nFigure 5.1 Denial and Affirmative Defenses\nDenial/Failure of Proof\nAffirmative\n\nBurden of Proof for Affirmative Defenses\nAs stated in Chapter 2 \xe2\x80\x9cThe Legal System in the United States\xe2\x80\x9d, states vary as to their requirements for the\ndefendant\xe2\x80\x99s burden of proof when asserting an affirmative defense (Findlaw.com, 2010). Different defenses\nalso have different burdens of proof. Some states require the defendant to meet the burden of production, but\nrequire the prosecution to thereafter meet the burden of persuasion, disproving the defense to a preponderance\nof evidence, or in some states, beyond a reasonable doubt. Other states require the defendant to meet the burden\nof production and the burden of persuasion. In such states, the defendant\xe2\x80\x99s evidentiary standard is preponderance\nof evidence, not beyond a reasonable doubt. In the example given in Section 5 \xe2\x80\x9cExample of an Affirmative\nDefense\xe2\x80\x9d, for Jasmine\xe2\x80\x99s self-defense claim, Jasmine must prove she was defending herself by meeting either the\nburden of production or the burden of production and persuasion to a preponderance of evidence, depending on\nthe jurisdiction.\nFigure 5.2 Diagram of the Criminal Burden of Proof\n\n\x0c154 Criminal Law\n\nDefinition of Imperfect and Perfect Defenses\nAs stated previously, a defense can reduce the severity of the offense, or completely exonerate the defendant from\ncriminal responsibility. If a defense reduces the severity of the offense, it is called an imperfect defense. If a\ndefense results in an acquittal, it is called a perfect defense. The difference between the two is significant. A\ndefendant who is successful with an imperfect defense is still guilty of a crime; a defendant who is successful with\na perfect defense is innocent.\n\nExample of Imperfect and Perfect Defenses\nLuLu flies into a rage and kills her sister Lola after she catches Lola sleeping with her fianc\xc3\xa9. LuLu is thereafter\ncharged with first-degree murder. LuLu decides to pursue two defenses. First, LuLu claims that the killing should\nbe manslaughter rather than first-degree murder because she honestly but unreasonably believed Lola was going\nto attack her, so she thought she was acting in self-defense. Second, LuLu claims she was insane at the time the\n\n\x0c5.1 Criminal Defenses 155\n\nkilling occurred. The claim of manslaughter is an imperfect defense that will reduce LuLu\xe2\x80\x99s sentence, but will\nnot acquit her of criminal homicide. The claim of insanity is a perfect defense that will result in an acquittal.\n\nDefinition of Factual and Legal Defenses\nA defense must be based on specific grounds. If a defense is based on an issue of fact, it is a factual defense. If a\ndefense is based on an issue of law, it is a legal defense.\n\nExample of Factual and Legal Defenses\nArmando is charged with the burglary of Roman\xe2\x80\x99s residence. Armando decides to pursue two defenses. First,\nArmando claims that he was with Phil on the date and time of the burglary. This is called an alibi defense.\nSecond, Armando claims that it is too late to prosecute him for burglary because of the expiration of the statute\nof limitations. Armando\xe2\x80\x99s alibi defense is a factual defense; it is based on the fact that Armando could not have\ncommitted the burglary because he was somewhere else at the time it occurred. Armando\xe2\x80\x99s statute of limitations\ndefense is a legal defense because it is based on a statute that limits the amount of time the government has to\nprosecute Armando for burglary.\n\nDefinition of Justification and Excuse\nWith the exception of alibi, most affirmative defenses are based on either justification or excuse. Typically,\njustification and excuse defenses admit that the defendant committed the criminal act with the requisite intent, but\ninsist that the conduct should not be criminal.\nA defense based on justification focuses on the offense. A justification defense claims that the defendant\xe2\x80\x99s\nconduct should be legal rather than criminal because it supports a principle valued by society. A defense based on\nexcuse focuses on the defendant. An excuse defense claims that even though the defendant committed the criminal\nact with criminal intent, the defendant should not be responsible for his or her behavior.\n\nExample of Justification and Excuse\nReview the examples of affirmative, imperfect, and perfect defenses given in Section 5.1.1 \xe2\x80\x9cCategorization of\nDefenses\xe2\x80\x9d. Jasmine\xe2\x80\x99s self-defense claim is based on justification. Society believes that individuals should be able\nto protect themselves from harm, so actions taken in self-defense are justified and noncriminal. Note that a selfdefense claim focuses on the offense (battery) in light of the circumstances (to prevent imminent harm). LuLu\xe2\x80\x99s\ninsanity claim is based on excuse. Although LuLu killed Lola with criminal intent, if LuLu is truly insane it is not\nbe fair or just to punish her for her behavior. Note that an insanity claim focuses on the defendant (a legally insane\nindividual) and whether he or she should be criminally responsible for his or her conduct.\n\n\x0c156 Criminal Law\nTable 5.1 Categorization of Defenses\n\nDefense Type\n\nCharacteristics\n\nCommon-law\n\nCreated by a court\n\nStatutory\n\nCreated by a state or federal legislature\n\nDenial or failure of proof\n\nCreates doubt in one or more elements of the offense and prevents the prosecution from\nmeeting its burden of proof\n\nAffirmative\n\nRaises an issue separate from the elements of the offense\n\nImperfect\n\nReduces the severity of the offense\n\nPerfect\n\nResults in an acquittal\n\nFactual\n\nBased on an issue of fact\n\nLegal\n\nBased on an issue of law\n\nAlibi\n\nAsserts that the defendant was somewhere else when the crime was committed\n\nExpiration of the statute of\nlimitations\n\nAsserts that it is too late for the government to prosecute the defendant for the crime\n\nJustification\n\nClaims that the criminal conduct is justified under the circumstances\n\nExcuse\n\nClaims that the defendant should be excused for his or her conduct\n\nKey Takeaways\n\xe2\x80\xa2\n\n\xe2\x80\xa2\n\nA denial or failure of proof defense focuses on the elements of the crime and prevents the prosecution\nfrom meeting its burden of proof. An affirmative defense is a defense that raises an issue separate from the\nelements of the crime. Most affirmative defenses are based on justification or excuse and must be raised\nbefore or during the trial to preserve the issue for appeal.\nAn imperfect defense reduces the severity of the offense; a perfect defense results in an acquittal.\n\n\xe2\x80\xa2\n\nIf the basis for a defense is an issue of fact, it is called a factual defense. If the basis for a defense is an\nissue of law, it is called a legal defense.\n\n\xe2\x80\xa2\n\nAn example of a factual defense is an alibi defense, which asserts that the defendant could not have\ncommitted the crime because he or she was somewhere else when the crime occurred. An example of a legal\ndefense is a claim that the statute of limitations has expired, which asserts that it is too late for the\ngovernment to prosecute the defendant for the crime.\n\n\xe2\x80\xa2\n\nAn affirmative defense is based on justification when it claims that criminal conduct is justified under the\ncircumstances. An affirmative defense is based on excuse when it claims that the criminal defendant should\nbe excused for his or her conduct.\n\n\x0c5.1 Criminal Defenses 157\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nCarol is on trial for battery, a general intent crime. Carol puts on a defense that proves her conduct was\naccidental, not intentional. Is this an affirmative defense? Why or why not?\n\n2.\n\nRead State v. Burkhart, 565 S.E.2d 298 (2002). In Burkhart, the defendant was convicted of three counts\nof murder. The defendant claimed he acted in self-defense. The jury instruction given during the defendant\xe2\x80\x99s\ntrial stated that the prosecution had the burden of disproving self-defense. However, the instruction did not\nstate that the prosecution\xe2\x80\x99s burden of disproving self-defense was beyond a reasonable doubt. Did the\nSupreme Court of South Carolina uphold the defendant\xe2\x80\x99s conviction for the murders? The case is available\nat this link: http://scholar.google.com/\nscholar_case?case=1066148868024499763&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\n3.\n\nRead Hoagland v. State, 240 P.3d 1043 (2010). In Hoagland, the defendant wanted to assert a necessity\ndefense to the crime of driving while under the influence. The Nevada Legislature had never addressed or\nmentioned a necessity defense. Did the Supreme Court of Nevada allow the defendant to present the\nnecessity defense? The case is available at this link: http://scholar.google.com/\nscholar_case?case=8002120339805439441&q= Hoagland+v.+State&hl=en&as_sdt=2,5&as_ylo=2009.\n\nReferences\nFindlaw.com, \xe2\x80\x9cThe Insanity Defense among the States,\xe2\x80\x9d findlaw.com website, accessed October 11, 2010,\nhttp://criminal.findlaw.com/crimes/more-criminal-topics/insanity-defense/the-insanity-defense-among-thestates.html.\n\n\x0c5.2 Self-Defense\n\nLearning Objectives\n1.\n\nDefine self-defense.\n\n2.\n\nDefine deadly force.\n\n3.\n\nAscertain the four elements required for self-defense.\n\n4.\n\nAscertain two exceptions to the unprovoked attack requirement.\n\n5.\n\nDefine the battered wife defense, and explain its justification under the imminence requirement.\n\n6.\n\nAnalyze when it is appropriate to use deadly force in self-defense.\n\n7.\n\nDistinguish between the duty to retreat and stand-your-ground doctrines.\n\n8.\n\nDefine imperfect self-defense.\n\nAs stated previously, self-defense is a defense based on justification. Self-defense can be a defense to assault,\nbattery, and criminal homicide because it always involves the use of force. In the majority of states, self-defense\nis a statutory defense (Mich. Comp. Laws, 2010). However, it can be modified or expanded by courts on a caseby-case basis.\nMost states have special requirements when the defendant uses deadly force in self-defense. Deadly force is\ndefined as any force that could potentially kill. An individual does not have to actually die for the force to be\nconsidered deadly. Examples of deadly force are the use of a knife, gun, vehicle, or even bare hands when there is\na disparity in size between two individuals.\nSelf-defense can operate as a perfect or imperfect defense, depending on the circumstances. Defendants who\ncommit criminal homicide justified by self-defense can be acquitted, or have a murder charge reduced from first\nto second or third degree, or have a charge reduced from murder to manslaughter. Criminal homicide is discussed\nin detail in Chapter 9 \xe2\x80\x9cCriminal Homicide\xe2\x80\x9d.\nTo successfully claim self-defense, the defendant must prove four elements. First, with exceptions, the\ndefendant must prove that he or she was confronted with an unprovoked attack. Second, the defendant must\nprove that the threat of injury or death was imminent. Third, the defendant must prove that the degree of force\nused in self-defense was objectively reasonable under the circumstances. Fourth, the defendant must prove that\nhe or she had an objectively reasonable fear that he or she was going to be injured or killed unless he or she\nused self-defense. The Model Penal Code defines self-defense in \xc2\xa7 3.04(1) as \xe2\x80\x9cjustifiable when the actor believes\nthat such force is immediately necessary for the purpose of protecting himself against the use of unlawful force\nby such other person on the present occasion.\xe2\x80\x9d\n\n158\n\n\x0c5.2 Self-Defense 159\n\nProvocation\nIn general, if the defendant initiates an attack against another, the defendant cannot claim self-defense (State v.\nWilliams, 2010). This rule has two exceptions. The defendant can be the initial aggressor and still raise a selfdefense claim if the attacked individual responds with excessive force under the circumstances, or if the defendant\nwithdraws from the attack and the attacked individual persists.\n\nExcessive Force Exception\nIn some jurisdictions, an individual cannot respond to the defendant\xe2\x80\x99s attack using excessive force under the\ncircumstances (State v. Belgard, 2010). For example, an individual cannot use deadly force when the defendant\ninitiates an attack using nondeadly force. If an individual does resort to deadly force with a nondeadly force\nattack, the defendant can use reasonable force in self-defense.\n\nExample of the Excessive Force Exception\nPatty and Paige get into an argument over a loan Patty made to Paige. Paige calls Patty a spoiled brat who always\ngets her way. Patty slaps Paige across the face. Paige grabs a carving knife from the kitchen counter and tries to\nstab Patty. Patty wrestles the knife away and stabs Paige in the chest, killing her. In this example, Patty provoked\nthe attack by slapping Paige across the face. However, the slap is nondeadly force. In many jurisdictions, Paige\ncannot respond to nondeadly force with deadly force, like a knife. Paige used excessive force in her response to\nPatty\xe2\x80\x99s slap, so Patty can use deadly force to defend herself and may not be responsible for criminal homicide\nunder these circumstances.\n\nWithdrawal Exception\nIn some jurisdictions, the defendant can be the initial aggressor and still use force in self-defense if the defendant\nwithdraws from the attack, and communicates this withdrawal to the attacked individual (N.Y. Penal Law, 2010).\nIf the attacked individual persists in using force against the defendant after the defendant\xe2\x80\x99s withdrawal, rather than\nnotifying law enforcement or retreating, the defendant is justified in using force under the circumstances.\n\nExample of Withdrawal\nChange the excessive force exception example in Section 5 \xe2\x80\x9cExample of the Excessive Force Exception\xe2\x80\x9d. Imagine\nthat after Patty slaps Paige across the face, Paige begins pounding Patty with her fists. Patty manages to escape and\nruns into the garage. She huddles against the garage wall. Paige chases Patty into the garage. Patty says, \xe2\x80\x9cPlease,\nplease don\xe2\x80\x99t hurt me. I\xe2\x80\x99m sorry I slapped you.\xe2\x80\x9d Paige kicks Patty in the back. Patty turns around and karate\n\n\x0c160 Criminal Law\n\nchops Paige in the neck, rendering her unconscious. In many jurisdictions, Patty\xe2\x80\x99s karate chop is lawful under a\ntheory of self-defense because she completely withdrew from the attack. Thus Patty is probably not criminally\nresponsible for battery, based on the karate chop to the neck. However, Patty could be criminally responsible for\nbattery based on the slap to Paige\xe2\x80\x99s face because this physical contact was unprovoked and not defensive under\nthe circumstances.\nFigure 5.3 New York Penal Law\n\nImminence\nThe defendant cannot use any degree of force in self-defense unless the defendant is faced with an imminent\nattack (State v. Taylor, 2010). Imminent means the attack is immediate and not something that will occur in the\nfuture. If the defendant is threatened with a future attack, the appropriate response is to inform law enforcement, so\nthat they can incapacitate the threatening individual by arrest or prosecution. Another situation where imminence\nis lacking is when the attack occurred in the past. When the defendant uses force to remedy a previous attack, this\nis retaliatory, and a self-defense claim is not appropriate. The legal response is to inform law enforcement so that\nthey can incapacitate the attacker by arrest or prosecution.\n\n\x0c5.2 Self-Defense 161\n\nSome state courts have expanded the imminence requirement to include situations where a husband in a\ndomestic violence situation uses force or violence regularly against the defendant, a battered wife, therefore\ncreating a threat of imminent harm every day (Bechtel v. State, 2010). If a jurisdiction recognizes the battered\nwife defense, the defendant\xe2\x80\x94the battered wife\xe2\x80\x94can legally use force against her abusive husband in self-defense\nin situations where harm is not necessarily immediate.\n\nExample of an Attack That Is Not Imminent\nVinny tells Fiona that if she does not pay him the $1,000 she owes him, he will put out a contract on her life. Fiona\npulls out a loaded gun and shoots Vinny. Fiona cannot successfully argue self-defense in this case. Vinny\xe2\x80\x99s threat\nwas a threat of future harm, not imminent harm. Thus Fiona had plenty of time to contact law enforcement to help\nprotect her safety.\n\nExample of an Attack That Is Retaliatory\nDwight and Abel get into a fist fight. Dwight knocks Abel unconscious. Dwight observes Abel for a few minutes,\nand then he picks up a large rock and crushes Abel\xe2\x80\x99s skull with it, killing him. Dwight cannot claim self-defense\nin this situation. Once Dwight realized that Abel was unconscious, he did not need to continue to defend himself\nagainst an imminent attack. Dwight\xe2\x80\x99s conduct appears retaliatory and is not justified under these circumstances.\n\nExample of an Imminent Attack under the Battered Wife Defense\nSpike severely beats and injures his wife Veronica every couple of days. Spike\xe2\x80\x99s beatings have become more\nviolent, and Veronica starts to fear for her life. One night, Veronica shoots and kills Spike while he is sleeping.\nIn states that have expanded self-defense to include the battered wife defense, Veronica may be successful on a\ntheory of self-defense.\n\nMary Winkler Defense Video\nDr. Alan J. Lipman Catherine Crier on Winkler Spousal Abuse Murder Trial\nMary Winkler claimed the battered wife defense as an imperfect defense to the murder of her husband, a pastor (Gay,\nM., 2011).\n" href="http://www.youtube.com/watch?v=KFSwTAINxnM" class="replaced-iframe" onclick="return\nreplaceIframe(this)" data-url="http://www.youtube.com/watch?v=KFSwTAINxnM">(click to see video)\n\n\x0c162 Criminal Law\n\nProportionality\nThe defendant cannot claim self-defense unless the degree of force used is objectively reasonable under the\ncircumstances. This requirement primarily focuses on the use of deadly force and when it is legally justified. In\ngeneral, deadly force can by employed in self-defense when a reasonable person feels threatened with imminent\ndeath, serious bodily injury, and, in some jurisdictions, a serious felony (Or. Rev. Stat. 2010). Serious bodily\ninjury and serious felony are technical terms that are defined in a statute or case, depending on the jurisdiction.\nThe Model Penal Code states that deadly force is not justifiable \xe2\x80\x9cunless the actor believes that such force is\nnecessary to protect himself against death, serious bodily harm, kidnapping or sexual intercourse compelled by\nforce or threat\xe2\x80\x9d (Model Penal Code \xc2\xa7 3.04(2)(b)).\n\nExample of Appropriate Deadly Force\nNicholas, an intruder, pins Wanda to the floor of her garage and begins to forcibly remove her clothing. Wanda\nfeels around the floor with her hand and finds a screwdriver. She plunges the screwdriver into Nicholas\xe2\x80\x99s neck,\nkilling him. Wanda has used appropriate force and can claim self-defense in most jurisdictions. A reasonable\nperson in Wanda\xe2\x80\x99s situation would feel deadly force is necessary to repel Nicholas\xe2\x80\x99s sexual assault. Nicholas\xe2\x80\x99s\nattack is a serious felony that could result in serious bodily injury or death. Thus the use of deadly force is\nlegally justified under these circumstances.\n\nDuty to Retreat\nEarly common law stated that the defendant had a duty to retreat to the wall before using deadly force against\nan attacker. The majority of states have rejected this doctrine and instead allow the defendant to stand his or her\nground if the defendant is not the initial aggressor in the confrontation (State v. Sandoval, 2010). In jurisdictions\nthat still follow the retreat doctrine, the defendant must retreat if there is an objectively reasonable belief that the\nattacker will cause death or serious bodily injury, and a retreat won\xe2\x80\x99t unreasonably increase the likelihood of death\nor serious bodily injury (Connecticut Criminal Jury Instructions, 2010). The Model Penal Code defines the duty\nto retreat by stating that the use of deadly force is not justifiable if \xe2\x80\x9cthe actor knows that he can avoid the necessity\nof using such force with complete safety by retreating\xe2\x80\x9d (Model Penal Code \xc2\xa7 3.04 (2) (b) (ii)). An established\nexception to the retreat doctrine in jurisdictions that follow it is the defense of the home, which is called the castle\ndoctrine. The castle doctrine is discussed shortly.\n\nExample of the Duty to Retreat\nSandy and Sue have an argument in the park. Sue pulls a knife out of a sheath that is strapped to her leg and begins\nto advance toward Sandy. Sandy also has a knife in her pocket. In a state that follows the retreat doctrine, Sandy\nmust attempt to escape, if she can do so safely. In a state that follows the stand-your-ground doctrine, Sandy can\n\n\x0c5.2 Self-Defense 163\n\ndefend herself using her own knife and claim lawful self-defense. Note that Sandy was not the initial aggressor\nin this situation. If Sandy pulled a knife first, she could not use the knife and claim self-defense, whether the state\nfollows the stand-your-ground doctrine or the duty to retreat doctrine.\n\nObjectively Reasonable Fear of Injury or Death\nThe defendant cannot claim self-defense unless a reasonable person in the defendant\xe2\x80\x99s situation would believe that\nself-defense is necessary to avoid injury or death. If the defendant honestly but unreasonably believes self-defense\nis necessary under the circumstances, a claim of imperfect self-defense may reduce the severity of the offense\n(State v. Faulkner, 2010). However, the defendant is still guilty of a crime, albeit a less serious crime.\n\nExample of Unjustified Conduct\nJustin, who weighs over two hundred pounds and is six feet tall, accidentally bumps into Wanda, a slender\nten-year-old child. Wanda spins around and shakes her fist at Justin. Justin responds by shoving Wanda so\nhard that she crashes into a telephone pole and is killed. Justin probably cannot claim self-defense under these\ncircumstances. A reasonable person would not believe Wanda is about to seriously injure or kill Justin. Thus\nJustin\xe2\x80\x99s response is unnecessary and unjustified in this case.\n\nExample of Imperfect Self-Defense\nChange the unjustified conduct example given in Section 5 \xe2\x80\x9cExample of Unjustified Conduct\xe2\x80\x9d. Imagine that a\nslender, female ten-year-old severely abused Justin when he was younger. Since the abusive incident, Justin has an\nunreasonable fear of female children and honestly believes that they can and will hurt him if provoked. If the trier\nof fact determines that Justin honestly but unreasonably believed that Wanda was about to inflict serious bodily\ninjury or kill him, any charge of murder could be reduced to manslaughter on a theory of imperfect self-defense.\n\nKey Takeaways\n\xe2\x80\xa2\n\nSelf-defense is a defense based on justification that allows a defendant to use physical force to protect\nhimself or herself from injury or death.\n\n\xe2\x80\xa2\n\nDeadly force is any force that can produce death. An individual does not have to die for the force to be\ndeemed deadly.\n\n\xe2\x80\xa2\n\nFour elements are required for self-defense: (1) an unprovoked attack, (2) which threatens imminent\ninjury or death, and (3) an objectively reasonable degree of force, used in response to (4) an objectively\nreasonable fear of injury or death.\n\n\xe2\x80\xa2\n\nTwo exceptions to the unprovoked attack rule are an individual\xe2\x80\x99s use of excessive force in response to an\ninitial attack and the defendant\xe2\x80\x99s withdrawal from the initial attack.\n\n\x0c164 Criminal Law\n\n\xe2\x80\xa2\n\nThe battered wife defense asserts that a woman who is a victim of spousal abuse may use force in selfdefense under certain circumstances, even when the threat of harm is not immediate. The battered wife\ndefense is justified with respect to the imminence requirement: because the abuse is so constant, the battered\nwife faces an imminent threat every day.\n\n\xe2\x80\xa2\n\nDeadly force is appropriate in self-defense when the attacker threatens death, serious bodily injury, and,\nin some jurisdictions, a serious felony.\n\n\xe2\x80\xa2\n\nThe duty to retreat doctrine is a common-law rule requiring a defendant to retreat if it is safe to do so,\ninstead of using deadly force in self-defense. The stand-your-ground doctrine is a rule allowing the\ndefendant to use deadly force if appropriate in self-defense, rather than retreating.\n\n\xe2\x80\xa2\n\nImperfect self-defense is a defense available when the defendant has an honest but unreasonable belief\nthat force is necessary to defend against injury or death. Imperfect self-defense reduces the severity of the\noffense, but does not result in acquittal.\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nScott\xe2\x80\x99s wife Diane constantly physically abuses him. One night while Diane is sleeping, Scott places a\npillow over her face and smothers her. Can Scott defend against a charge of criminal homicide by claiming\nself-defense? Why or why not?\n\n2.\n\nRead Rodriguez v. State, 212 S.W.3d 819 (2006). In Rodriguez, the defendant was convicted of murder\nand attempted murder. The defendant appealed his convictions on the ground that the jury did not\nunanimously reject each element of self-defense. Did the Court of Appeals of Texas uphold the defendant\xe2\x80\x99s\nconvictions? The case is available at this link: https://casetext.com/case/rodriguez-v-state-464.\n\n3.\n\nRead Shuler v. Babbitt, 49 F.Supp.2d 1165 (1998). In Shuler, the defendant shot and killed a grizzly bear\nthat charged him while he checked a sheep pasture to make sure his sheep were safe. The sheep had already\nbeen subjected to several bear attacks. The Fish and Wildlife Service thereafter fined the defendant under\nthe Endangered Species Act. The defendant claimed self-defense against the bear. The Fish and Wildlife\nService ruled that the defendant provoked the attack and could not claim self-defense. Did the US District\nCourt for the District of Montana uphold the fine? The case is available at this link:\nhttp://www.gilalivestockgrowers.org/documents/ShulerVsBabbitt.pdf.\n\nLaw and Ethics: The Menendez Brothers\nWere They Entitled to a Jury Instruction on Imperfect Self-Defense?\nRead Menendez v. Terhune, 422 F.3d 1012 (2005). The case is available at this link: http://cases.justia.com/us-courtof-appeals/F3/422/1012/569492.\nLyle and Eric Menendez were tried and convicted of murder and conspiracy to commit murder of their parents. There\nwere two series of trials. The first trial, which had two separate juries, resulted in two hung juries. At the first trial, the\nbrothers introduced evidence of sexual abuse by their father, and the court instructed the jury on imperfect self-defense.\nThe imperfect self-defense jury instruction was based on the brothers\xe2\x80\x99 honest but unreasonable fear that their father\nwould hurt or kill them (Menendez v. Terhune, 2010). The second trial took place in front of one jury and resulted in the\nconvictions. During the second trial, some evidence of abuse was excluded, Lyle Menendez refused to testify, and there\n\n\x0c5.2 Self-Defense 165\n\nwas no jury instruction on imperfect self-defense. After sentencing, the brothers petitioned for a writ of habeas corpus\nbased on several claims, including the exclusion of the abuse evidence and failure to instruct the jury on imperfect selfdefense (Menendez v. Terhune, 2010). The US Court of Appeals for the Ninth Circuit affirmed the district court\xe2\x80\x99s denial\nof the petition on grounds that there was insufficient evidence to support the jury instruction on imperfect self-defense\nand no foundation to support the admissibility of the evidence of abuse. The court held that the evidence confirmed\nthere was no imminent threat of serious bodily injury or death when the brothers killed their parents.\nThe facts of the case are lurid. Evidence included the sexual abuse of both boys by their father, surreptitiously taped\npsychotherapy sessions, spending sprees, fabricated mafia hit stories, and alleged will tampering by the brothers after\nthe parents were killed.\n1.\n\nDo you think the Menendez case should have been treated as a \xe2\x80\x9cbattered child syndrome\xe2\x80\x9d case, easing the\nrequirement of imminence and allowing for a jury instruction on imperfect self-defense?\n\nCheck your answer using the answer key at the end of the chapter.\n\nMenendez Brothers Video\nLyle and Erik Menendez News Report\nA news story on the conviction of the Menendez brothers is presented in this video:\n" href="http://www.youtube.com/watch?v=SFWLYealwa8" class="replaced-iframe" onclick="return\nreplaceIframe(this)" data-url="http://www.youtube.com/watch?v=SFWLYealwa8">(click to see video)\n\nReferences\nBechtel v. State, 840 P.2d 1 (1992), accessed November 13, 2010, http://scholar.google.com/\nscholar_case?case=14171263417876785206&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\nConnecticut Criminal Jury Instructions, No. 2.8-3, accessed November 13, 2010, http://www.jud.ct.gov/ji/\ncriminal/part2/2.8-3.htm.\nGay, M., \xe2\x80\x9cAbused Wife Who Killed Preacher Husband Speaks Out,\xe2\x80\x9d Huffingtonpost.com website, accessed\nAugust 25, 2011, http://www.aolnews.com/2010/11/05/abused-wife-who-killed-preacher-husband-speaks-out.\nMenendez v. Terhune, 422 F.3d 1012, 1024 (2005), accessed November 19, 2010, http://cases.justia.com/uscourt-of-appeals/F3/422/1012/569492.\nMich.\nComp.\nLaws\n\xc2\xa7 780.972,\naccessed\nNovember\n13,\n2010,\nhttp://www.legislature.mi.gov/(S(3li5rs55kkzn2pfegtskdunn))/mileg.aspx?page=getObject&objectName=mcl-78\n0-972&highlight=self-defense.\nN.Y. Penal Law \xc2\xa7 35.15(1)(b), accessed November 13, 2010, http://law.onecle.com/new-york/penal/\nPEN035.15_35.15.html.\nOr. Rev. Stat. \xc2\xa7 161.219, accessed November 13, 2010, http://www.leg.state.or.us/ors/161.html.\nState v. Belgard, 410 So.2d 720 (1982), accessed November 13, 2010, http://www.leagle.com/\nxmlResult.aspx?xmldoc=19821130410So2d720_1997.xml&docbase=CSLWAR1-1950-1985.\nState v. Faulkner, 483 A.2d 759 (1984), accessed November 13, 2010, http://scholar.google.com/\nscholar_case?case=17158253875987176431&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\n\x0c166 Criminal Law\n\nState v. Sandoval, 130 P.3d 808 (2006), accessed November 13, 2010, http://www.publications.ojd.state.or.us/\nS53457.htm.\nState v. Taylor, 858 P.2d 1358 (1993), accessed November 13, 2010, http://scholar.google.com/\nscholar_case?case=1539441759711884447&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\nState v. Williams, 644 P.2d 889 (1982), accessed November 13, 2010, http://scholar.google.com/\nscholar_case?case=18157916201475630105&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\n\x0c5.3 Other Use-of-Force Defenses\n\nLearning Objectives\n1.\n\nAscertain the elements required for the defense of others.\n\n2.\n\nDefine real and personal property.\n\n3.\n\nExplain the appropriate circumstances and degree of force a defendant can use when defending property.\n\n4.\n\nAscertain the elements required for the defense of ejection of trespasser.\n\n5.\n\nDistinguish defense of property from defense of habitation.\n\n6.\n7.\n8.\n\nAscertain the three elements required for the use of deadly force in defense of habitation under modern\ncastle laws.\nIdentify three common features of modern castle laws.\nAscertain the constitutional parameters of the use of force by law enforcement to arrest or apprehend\ncriminal suspects.\n\nAside from self-defense, a defendant can legally use force to defend another person, real or personal property,\nand habitation. In addition, law enforcement can use force to arrest or capture individuals who reasonably appear\nto be committing crimes. In this section, the elements of several use-of-force defenses will be reviewed. Keep\nin mind that these defenses can be statutory, common-law, perfect, or imperfect, depending on the facts and the\njurisdiction.\n\nDefense of Others\nAccording to early common law, a defendant could use force to defend another only when the defendant and\nthe person defended had a special relationship, such as a family connection. Most jurisdictions now reject this\ncommon-law restriction on defense of others and allow a defendant to defend anyone to the same degree that he or\nshe could use self-defense (People v. Kurr, 2010). Thus in a majority of jurisdictions, defense of others requires\nthe same elements as self-defense: the individual defended must be facing an unprovoked, imminent attack, and\nthe defendant must use a reasonable degree of force with a reasonable belief that force is necessary to repel the\nattack.\nOccasionally, a defendant uses force to defend another who has no legal right to use force in self-defense. Under\nthe common law, the defendant could not use force legally if the individual defended could not use force legally\nin self-defense. However, the majority of states now allow a defendant to use force to defend another person if\nit reasonably appears that use of force is justified under the circumstances (Commonwealth v. Miranda, 2010).\nThe Model Penal Code allows the defense of another when \xe2\x80\x9cunder the circumstances as the actor believes them\nto be, the person whom he seeks to protect would be justified in using such protective force\xe2\x80\x9d (Model Penal Code\n167\n\n\x0c168 Criminal Law\n\n\xc2\xa7 3.05(1) (b)). Thus if the defendant has a subjective belief that the individual defended could use force legally in\nself-defense, defense of others is appropriate under the Model Penal Code.\n\nExample of Defense of Others\nAlex and Shane, aspiring law enforcement officers, are performing a training maneuver in a rural area. Their\ninstructor Devin is watching nearby. Alex pretends to attack Shane. Just as Devin is about to demonstrate a\ntakedown, Timmy, who is jogging in the area, dashes over and begins beating Alex. Under the older common-law\nrule, Timmy could be successfully prosecuted for battery of Alex. Shane did not have the right to use self-defense\nduring a practice maneuver, so neither did Timmy. In jurisdictions that allow defense of others if it reasonably\nappears that self-defense is warranted, Timmy could probably use the defense to battery because it reasonably\nappeared that Alex was about to unlawfully attack Shane. In jurisdictions that follow the Model Penal Code,\nTimmy can most likely use defense of others as a defense to battery because it is clear Timmy honestly believed\nShane had the right to use self-defense in this situation.\n\nDefense of Property\nAll jurisdictions allow individuals to use force in defense of property under certain specified circumstances.\nProperty can be real or personal. Real property is land and anything permanently attached to it. This includes a\nhome. However, defense of the home is discussed in Section 5.3.3 \xe2\x80\x9cDefense of Habitation\xe2\x80\x9d. Personal property\nis any movable object.\nIn the majority of states, the defendant can use force only to defend real or personal property if the defendant\nhas an objectively reasonable belief that an imminent threat of damage, destruction, or theft will occur (California\nCriminal Jury Instructions, 2010). The Model Penal Code provides \xe2\x80\x9cthe use of force upon or toward the person of\nanother is justifiable when the actor believes that such force is immediately necessary: (a) to prevent or terminate\nan unlawful entry or other trespass upon land or a trespass against or the unlawful carrying away of tangible,\nmovable property\xe2\x80\x9d (Model Penal Code \xc2\xa73.06(1) (a)). Thus if the defendant has a subjective belief that force is\nimmediately necessary to protect real or personal property, force is appropriate under the Model Penal Code.\nThe amount of force that a defendant may legally use to protect real or personal property is reasonable force,\nunder the circumstances (K.S.A., 2010). The defendant can also chase someone who steals personal property and\ntake the item back (Conn. Gen. Stat., 2010). The Model Penal Code provides \xe2\x80\x9cthe use of force upon or toward\nthe person of another is justifiable when the actor believes that such force is immediately necessary\xe2\x80\xa6to retake\ntangible movable property\xe2\x80\x9d (Model Penal Code \xc2\xa73.06(1) (b)). In general, the Model Penal Code and most states\ndo not authorize the use of deadly force to protect property (other than the home) under any circumstances (Fla.\nStat. Ann., 2010).\n\nExample of Defense of Property\nKelsey sees Keith, her stepbrother, approaching her brand new car with a key in his hand. It appears that Keith is\n\n\x0c5.3 Other Use-of-Force Defenses 169\n\nabout to scrape the paint on the door of the car with this key. Kelsey tackles Keith to prevent him from vandalizing\nthe car. Kelsey has probably used reasonable force under the circumstances and can claim defense of property\nas a defense to battery. If Keith testifies that he was simply going to hand Kelsey the key, which she left in the\nhouse, the attack could still be justified if the trier of fact determines that it was objectively reasonable for Kelsey\nto believe Keith was about to damage her property. In jurisdictions that follow the Model Penal Code, Kelsey\ncan probably use defense of property as a defense to battery because it is clear Kelsey believed that force was\nimmediately necessary to protect her personal property in this situation. Of course, if Kelsey pulls out a gun and\nshoots Keith, she could not claim defense of property because deadly force is never justifiable to protect real or\npersonal property from harm.\n\nEjection of Trespasser\nA simple trespasser is an individual who is present on real property without consent of the owner. Property owners\nhave the legal right to eject trespassers under certain specified circumstances.\nMost states authorize the ejection of a trespasser if the trespasser is first asked to leave and fails to comply\nwithin a reasonable time (N.J. Stat., 2010). The degree of force that can be used to eject the trespasser is\nreasonable force, under the circumstances (Iowa Code, 2010). Deadly force is never reasonable to eject a\ntrespasser unless the trespasser threatens imminent deadly force against the defendant or another individual (State\nv. Curley, 2010). Deadly force under these circumstances is justified by self-defense or defense of others, not\nejection of trespasser.\n\nExample of Ejection of Trespasser\nSam sees Burt sitting on his lawn. Sam goes up to Burt and asks him to \xe2\x80\x9cmove along.\xe2\x80\x9d Burt looks up, but does not\nstand. Sam goes into the house and calls law enforcement, but they inform Sam that there is a local emergency, and\nthey cannot come and eject Burt for at least five hours. Sam goes back outside and sees that Burt is now sprawled\nout across the lawn. Sam grabs Burt, lifts him to his feet, and pushes him off the lawn and onto the sidewalk.\nSam can probably use ejection of trespasser as a defense to battery of Burt. Sam asked Burt the trespasser to\nleave, and Burt ignored him. Sam\xe2\x80\x99s attempt to rely on law enforcement was likewise unsuccessful. Sam\xe2\x80\x99s use of\nnondeadly force appears objectively reasonable. Thus Sam\xe2\x80\x99s ejection of a trespasser is most likely appropriate\nunder these circumstances.\n\nDefense of Habitation\nDefense of habitation is a defense that applies specifically to the defendant\xe2\x80\x99s residence. At early common law, a\nperson\xe2\x80\x99s home was as sacred as his or her person, and deadly force could be employed to protect it. The majority of\nstates have since enacted modern castle laws that embody this common-law doctrine. Other than the use of deadly\nforce, defense of habitation generally follows the same rules as defense of property, self-defense, and defense of\nothers. Thus this defense of habitation discussion focuses primarily on the use of deadly force.\n\n\x0c170 Criminal Law\n\nThe first state to expand the defense of habitation to include the use of deadly force was Colorado, with\nits \xe2\x80\x9cmake my day\xe2\x80\x9d self-defense statute (Colo. Rev. Stat. Ann., 2010). In 2005, Florida began a wave of castle\nlaw modifications that resulted in most states revising their defense of habitation laws (Fla. Stat. Ann., 2010).\nGenerally, three elements must be present before the use of deadly force is appropriate to defend habitation\nunder modern castle laws. First, the intruder must actually enter or be in the process of entering the residence\nowned by the defendant (Fla. Stat. Ann., 2010). This excludes intruders who are outside or in the curtilage,\nwhich is the protected area around the home. Second, the residence must be occupied when the entry occurs.\nThis excludes devices like spring-guns that protect unoccupied dwellings with deadly force (People v. Ceballos,\n2010). Third, the defendant must have an objectively reasonable belief that the intruder intends to commit a\ncrime of violence against the occupant(s) after entry (Or. Rev. Stat., 2010). The Model Penal Code provides \xe2\x80\x9c[t]he\nuse of deadly force is not justifiable\xe2\x80\xa6unless the actor believes that\xe2\x80\xa6the person against whom the force is used\nis attempting to dispossess him of his dwelling\xe2\x80\xa6or\xe2\x80\xa6attempting to commit\xe2\x80\xa6arson, burglary, robbery or other\nfelonious theft\xe2\x80\xa6and either\xe2\x80\xa6has employed or threatened deadly force\xe2\x80\xa6or\xe2\x80\xa6the use of force other than deadly\nforce would expose the actor or another in his presence to substantial danger of serious bodily harm\xe2\x80\x9d (Model\nPenal Code \xc2\xa7 3.06 (3)(d)).\nThe majority of states\xe2\x80\x99 castle laws abolish any duty to retreat when inside the home (Alaska Stat., 2010).\nFlorida\xe2\x80\x99s castle law creates a presumption that the defendant has a reasonable fear of imminent peril of death\nor great bodily injury when the intruder makes an unlawful or forceful entry (Fla Stat. Ann., 2010). This\ncompels the prosecution to disprove the defendant\xe2\x80\x99s reasonable belief of death or great bodily injury beyond a\nreasonable doubt, which is extremely difficult. Additional features of many castle laws are civil immunity and\ncriminal immunity from prosecution (720 ILCS, 2010). Immunity from prosecution means that a defendant\nwho complies with the castle law requirements cannot be sued for damages or prosecuted for a crime based on\ninjury or death to the intruder.\nFigure 5.4 Crack the Code\n\n\x0c5.3 Other Use-of-Force Defenses 171\n\nExample of Defense of Habitation under a Castle Law\nNate, a homeowner with three children, hears the front door open in the middle of the night. Nate removes a\nhandgun from the nightstand and creeps silently down the stairs. He sees Bob tiptoeing toward his daughter\xe2\x80\x99s\nbedroom. Nate shoots and kills Bob. Unfortunately, Bob is Nate\xe2\x80\x99s daughter\xe2\x80\x99s boyfriend, who was trying to enter\nher bedroom for a late-night get-together. Nate could probably assert the defense of protection of habitation\nunder modern castle laws in most jurisdictions. Bob made entry into an occupied residence. It is difficult to\nidentify individuals in the dark and to ascertain their motives for entering a residence without the owner\xe2\x80\x99s consent.\n\n\x0c172 Criminal Law\n\nThus it was objectively reasonable for Nate to feel threatened by Bob\xe2\x80\x99s presence and to use deadly force to protect\nhis domicile and its residents. If Nate is successful with his defense, he will also be immune from a civil suit for\ndamages if the castle law in his jurisdiction provides this immunity.\nChange the example with Nate and Bob so that Bob enters the residence during the day, and Nate identifies him\nas his daughter\xe2\x80\x99s boyfriend. Under these circumstances, the prosecution could rebut any presumption that Nate\xe2\x80\x99s\nactions were objectively reasonable. A reasonable person would ask Bob why he was entering the residence before\nshooting and killing him. The trier of fact might determine that Nate\xe2\x80\x99s intent was not to protect himself and his\nfamily, but to kill Bob, which would be malice aforethought. If Nate\xe2\x80\x99s actions are not justifiable by the defense of\nhabitation, he could be charged with and convicted of first-degree murder in this situation.\n\nUse of Force in Arrest and Apprehension of Criminal Suspects\nOccasionally, law enforcement must use force to effectuate an arrest or apprehend a criminal suspect. The\nappropriate use of force during an arrest or apprehension can operate as a defense to assault, battery, false\nimprisonment, kidnapping, and criminal homicide. At early common law, law enforcement could use reasonable,\nnondeadly force to arrest an individual for a misdemeanor and reasonable, even deadly force, to arrest an\nindividual for any felony. Modern law enforcement\xe2\x80\x99s ability to use deadly force is governed by the US\nConstitution.\nThe US Supreme Court clarified the constitutional standard for law enforcement\xe2\x80\x99s use of deadly force in\nTennessee v. Garner, 471 U.S. 1 (1985). In Garner, the Court invalidated a Tennessee statute that allowed law\nenforcement to exercise any degree of force to apprehend and arrest a fleeing felon. The law enforcement officer\nin Garner admitted that he shot and killed a suspect, reasonably believing he was unarmed. The Court held that\nthe Fourth Amendment governed law enforcement\xe2\x80\x99s use of deadly force in this situation because the use of deadly\nforce is a seizure. Thus law enforcement\xe2\x80\x99s use of deadly force must be scrutinized pursuant to the standard of\nconstitutional reasonableness. According to the Court, the only constitutionally reasonable circumstances under\nwhich law enforcement can use deadly force to arrest or apprehend a fleeing felon is when law enforcement has\nprobable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer\nor others.\nCurrently, most jurisdictions have statutes protecting law enforcement\xe2\x80\x99s reasonable use of force when\neffectuating an arrest or apprehending a fleeing suspect. Under Garner, these statutes must restrict the lawful use\nof deadly force to potentially deadly situations. If a law enforcement officer exceeds the use of force permitted\nunder the circumstances, the law enforcement officer could be prosecuted for a crime or sued for civil damages\n(or both).\n\nExample of Reasonable Force by Law Enforcement to Arrest\nReview the example in Chapter 1 \xe2\x80\x9cIntroduction to Criminal Law\xe2\x80\x9d, Section 1.2.1 \xe2\x80\x9cExample of Criminal Law\nIssues\xe2\x80\x9d. In that example, Linda puts a bra in her purse without paying for it at an expensive department store.\nWhen she attempts to leave the store, an alarm is activated. Linda begins sprinting down the street. Colin, a police\nofficer, just happens to be driving by with the window of his patrol car open. He hears the store alarm, sees Linda\nrunning, and begins shooting at Linda from the car. Linda is shot in the leg and collapses. In this example, no\n\n\x0c5.3 Other Use-of-Force Defenses 173\n\nfacts exist to indicate that Linda poses a potentially deadly threat to Colin or others. The fact that Linda is running\ndown the street and an alarm is going off does not demonstrate that Linda has committed a crime necessitating\ndeadly force to arrest. Thus Colin can use only nondeadly force to arrest Linda, such as his hands, or possibly\na stun gun or Taser to subdue her. If Linda is unarmed and Colin uses a firearm to subdue her, the utilization of\ndeadly force is excessive under these circumstances and Colin has no defense to assault with a deadly weapon or\nto attempted murder.\nChange this example and imagine that Colin pulls over and attempts to arrest Linda. Linda removes a gun from\nher purse. Under most modern statutes, Colin does not have a duty to retreat and can use deadly force to arrest or\napprehend Linda. Under Garner, it is reasonable to believe that Linda poses a danger of death or serious bodily\ninjury to Colin or others. Thus Colin can constitutionally use deadly force to protect himself and the public from\nharm in this situation. Note that Linda\xe2\x80\x99s theft is probably a misdemeanor, not a felony. However, it is Linda\xe2\x80\x99s\nexhibition of deadly force to resist arrest that triggers Colin\xe2\x80\x99s deadly force response. Under these circumstances,\nColin\xe2\x80\x99s use of deadly force is justified and can operate as a legal defense in a criminal prosecution or civil suit for\ndamages.\nFigure 5.5 Diagram of Use-of-Force Defenses\n\n\x0c174 Criminal Law\n\nKey Takeaways\n\xe2\x80\xa2\n\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\nDefense of others has the same elements as self-defense: the individual defended must be facing an\nunprovoked, imminent attack, and the defendant must use a reasonable degree of force with a reasonable\nbelief that force is necessary to repel the attack.\nReal property is land and anything permanently attached to it. Personal property is any movable object.\nThe defendant can use nondeadly force to defend real or personal property if the defendant has an\nobjectively reasonable belief that an imminent threat of damage, destruction, or theft will occur.\nProperty owners can use reasonable nondeadly force to eject a trespasser after first asking the trespasser\n\n\x0c5.3 Other Use-of-Force Defenses 175\n\nto leave.\n\xe2\x80\xa2\n\nOnly nondeadly force may be used to defend property; deadly force may be used to defend habitation.\n\n\xe2\x80\xa2\n\nThe defendant can use deadly force to defend habitation under modern castle laws if an intruder enters\noccupied premises, and the defendant has an objectively reasonable belief that the intruder will seriously\ninjure or kill the occupants.\n\n\xe2\x80\xa2\n\nModern castle laws abolish the duty to retreat when inside the home, occasionally include a presumption\nthat the defendant has an objectively reasonable belief the intruder is going to seriously injure or kill the\noccupants, and provide civil and criminal immunity from prosecution.\n\n\xe2\x80\xa2\n\nUse of deadly force by law enforcement is considered a seizure under the Fourth Amendment, so law\nenforcement cannot use deadly force to apprehend or arrest a criminal suspect unless there is probable cause\nto believe the suspect will inflict serious physical injury or death upon the officer or others.\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nMelanie watches as Betty verbally abuses Colleen. Betty is a known bully who verbally abused Melanie\nin the past. Betty calls Colleen an expletive and gives her a firm shove. Melanie walks up behind Betty,\nremoves a knife from her pocket, and plunges the knife into Betty\xe2\x80\x99s back. Betty suffers internal injuries and\nlater dies. Can Melanie use defense of others as a defense to criminal homicide? Why or why not?\n\n2.\n\nRead Commonwealth v. Alexander, 531 S.E.2d 567 (2000). In Alexander, the defendant was convicted of\nbrandishing a weapon when he pointed an unloaded rifle at an individual who was repossessing his vehicle\nin an aggressive and belligerent manner. Did the Supreme Court of Virginia uphold the defendant\xe2\x80\x99s\nconviction? The case is available at this link: http://caselaw.findlaw.com/va-supreme-court/1454888.html.\n\n3.\n\nRead Dutton v. Hayes-Pupko, No. 03-06-00438 (2008). In Dutton, a law enforcement officer asked the\nvictim for her name and date of birth after she allegedly sprayed her neighbors with a hose. The victim\nrefused to respond, and the law enforcement officer handcuffed her and forced her into his vehicle, injuring\nher wrist. The victim sued for use of excessive force in arrest. Did the Texas Court of Appeals hold that the\nvictim had the right to sue the officer for use of excessive force in arrest? The case is available at this link:\nhttp://scholar.google.com/scholar_case?case=17543977294597089197&q= Dutton+v.+HayesPupko&hl=en&as_sdt=2,5&as_vis=1.\n\nReferences\nAlaska Stat. \xc2\xa7 11.81.335(b), accessed November 16, 2010, http://touchngo.com/lglcntr/akstats/Statutes/Title11/\nChapter81/Section335.htm.\nCalifornia Criminal Jury Instructions No. 3476, accessed November 15, 2010, http://www.justia.com/criminal/\ndocs/calcrim/3400/3476.html.\nColo. Rev. Stat. Ann. \xc2\xa7 18-1-704.5, accessed November 16, 2010, http://www.co.jefferson.co.us/jeffco/\nsheriff_uploads/revised_statutes.htm.\nCommonwealth v. Miranda, No. 08-P-2094 (2010), accessed November 14, 2010, http://www.socialaw.com/\nslip.htm?cid=19939&sid=119.\n\n\x0c176 Criminal Law\n\nConn. Gen. Stat. \xc2\xa7 53a-21, accessed November 15, 2010, http://www.cga.ct.gov/2009/pub/\nchap951.htm#Sec53a-21.htm.\nFla. Stat. Ann. \xc2\xa7 776.031, accessed November 16, 2010, http://law.justia.com/florida/codes/2007/TitleXLVI/\nchapter776/776_031.html.\nIowa Code \xc2\xa7 704.4, accessed November 15, 2010, http://coolice.legis.state.ia.us/cool-ice/\ndefault.asp?category=billinfo&service=iowacode&ga=83&input=704#704.4.\nK.S.A. \xc2\xa7 21-3213, accessed November 15, 2010, http://kansasstatutes.lesterama.org/Chapter_21/Article_32/\n21-3213.html.\nN.J. Stat. \xc2\xa7 2C:3-6, accessed November 15, 2010, http://law.onecle.com/new-jersey/2c-the-new-jersey-codeof-criminal-justice/3-6.html.\nOr. Rev. Stat. \xc2\xa7 161.225, accessed November 16, 2010, http://www.leg.state.or.us/ors/161.html.\nPeople v. Ceballos, 526 P.2d 241 (1974), accessed November 16, 2010, http://wings.buffalo.edu/law/bclc/web/\ncalceballos.htm.\nPeople v. Kurr, 654 N.W.2d 651 (2002), accessed November 14, 2010, http://scholar.google.com/\nscholar_case?case=14992698629411781257&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\nState v. Curley, Docket # 0000011.WA (Wash. App. 2010), accessed November 15, 2010,\nhttp://scholar.google.com/scholar_case?case=11648057948374905030&q=\nState+v.+Curley&hl=en&as_sdt=2,5&as_ylo=2009.\n720 ILCS \xc2\xa7 5/7-2 (b), accessed November 16, 2010, http://www.ilga.gov/legislation/ilcs/\nilcs4.asp?DocName=072000050HArt.+7&ActID=1876&ChapAct=720.\n\n\x0c5.4 Defenses Based on Choice\n\nLearning Objectives\n1.\n\nAscertain the three elements required for the choice of evils defense.\n\n2.\n\nDistinguish between the choice of evils defense and the duress defense.\n\n3.\n\nIdentify one crime that is not justifiable by the choice of evils defense or the duress defense.\n\nOccasionally, the law protects a defendant from criminal responsibility when the defendant has no choice but to\ncommit the crime. In this section, we review the choice of evils and duress defenses.\n\nChoice of Evils Defense\nThe choice of evils defense (called the necessity defense in some jurisdictions) protects a defendant from criminal\nresponsibility when the defendant commits a crime to avoid a greater, imminent harm. Under the Model Penal\nCode, \xe2\x80\x9c[c]onduct which the actor believes to be necessary to avoid harm or evil\xe2\x80\xa6is justifiable, provided that:\n(a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law\ndefining the offense charged\xe2\x80\x9d (Model Penal Code \xc2\xa7 3.02(1)(a)). The choice of evils defense can be statutory or\ncommon-law, perfect or imperfect, depending on the jurisdiction.\nThe choice of evils defense generally requires three elements. First, there must be more than one harm that\nwill occur under the circumstances. Usually, the harms are the product of nature, or are circumstances beyond the\ndefendant\xe2\x80\x99s control (State v. Holmes, 2010). Second, the harms must be ranked, with one of the harms ranked\nmore severe than the other. The ranking is generally up to the legislature or common law. In many jurisdictions,\nthe loss of life is never justifiable under this defense and cannot be ranked lower than any other harm (Ky.\nRev. Stat. Ann., 2010). Third, the defendant must have an objectively reasonable belief that the greater harm is\nimminent and can only be avoided by committing the crime that results in the lesser harm (Tenn. Code Ann.,\n2010).\nFigure 5.6 Kentucky Revised Statutes\n\n177\n\n\x0c178 Criminal Law\n\nThe choice of evils defense is rarely used and is generally only a defense to the loss or destruction of property.\nWhen the defense is perfect, it results in an acquittal. When the defense is imperfect, it results in a reduction in\nsentence or the defendant\xe2\x80\x99s conviction of a lesser offense.\n\nExample of the Choice of Evils Defense\nTamara gets lost while hiking in a remote, mountainous area. After wandering around for hours with the\ntemperature dropping, Tamara finds a locked cabin. Tamara breaks a window and climbs inside. Once inside,\nTamara prepares some canned chili, drinks tap water, and uses the telephone to call law enforcement. Tamara\ncould probably plead and prove choice of evils as a defense to burglary and theft in many jurisdictions. Tamara\nwas confronted with two harms: harm to her personal safety and well-being and harm to the real and personal\nproperty of another. The harm to Tamara\xe2\x80\x99s health and safety is ranked more severe than the minimal harm to\nproperty. It is objectively reasonable to break into and enter a cabin and use some of the supplies inside to prevent\n\n\x0c5.4 Defenses Based on Choice 179\n\nimminent injury or death. Thus although Tamara committed burglary and theft in many jurisdictions, she did so\nwith the reasonable belief that she was saving her own life. A trier of fact could find that the harm avoided by\nTamara\xe2\x80\x99s actions was greater than the harm caused by the burglary and theft, and Tamara could be acquitted, or\nhave her sentence or crime reduced, depending on the jurisdiction.\nChange the facts in the preceding example, and imagine that Tamara steals money and jewelry in addition to\nthe chili and tap water. Tamara could not successfully prove the defense of choice of evils to this additional theft.\nNo harm was avoided by Tamara\xe2\x80\x99s theft of the money and jewelry. Thus choice of evils cannot justify this crime.\nChange the facts in the preceding example, and imagine that Tamara kills the cabin\xe2\x80\x99s owner because he\nrefuses to allow her to enter. Tamara could not successfully prove the defense of choice of evils under these\ncircumstances. Tamara\xe2\x80\x99s life is no more important than the cabin owner\xe2\x80\x99s. Thus Tamara cannot rank the harms,\nand choice of evils cannot justify criminal homicide in this case.\n\nThe Duress Defense\nIn some jurisdictions, the choice of evils defense is called the duress defense if the choice of evils is deliberately\nbrought on by another individual, rather than by nature, an act of God, or circumstances outside the defendant\xe2\x80\x99s\ncontrol. The Model Penal Code defines the duress defense as \xe2\x80\x9can affirmative defense that the actor engaged in the\nconduct\xe2\x80\xa6because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or\nthe person of another\xe2\x80\x9d (Model Penal Code \xc2\xa7 2.09(1)).\nThree elements are required for the duress defense. First, the defendant or another person must face a threat of\nimminent serious bodily injury or death (Conn. Gen. Stat., 2010). Second, the defendant must have an objectively\nreasonable belief that the only way to avoid the serious bodily injury or death is to commit the crime at issue\n(Haw. Rev. Stat., 2010). Third, in most jurisdictions, the crime committed cannot be criminal homicide (RCW\n9A.16.060, 2010). Like choice of evils, the duress defense is rarely used and can be statutory or common law,\nperfect or imperfect, depending on the jurisdiction.\n\nExample of the Duress Defense\nKeisha, a bank teller, hands Brian, a bank robber, money out of her drawer after he points a loaded gun at her\nhead. Technically, Keisha embezzled the money from the bank, but she did so based on the objectively reasonable\nfear that Brian would kill her if she failed to comply with his demands. Keisha can successfully claim duress as a\ndefense to any charge of theft. If Brian had pointed the gun at another client in line at the bank instead of Keisha,\nKeisha could still prevail using the duress defense because duress also applies when the threat of death or serious\nbodily injury is to another person.\nChange the example with Keisha and Brian, and imagine that Brian\xe2\x80\x99s threat is made in a phone call, rather than\nin person. Brian threatens to kill Keisha if she doesn\xe2\x80\x99t place thousands of dollars in an envelope and mail it to\nhim at a specified address. If Keisha complies, Keisha cannot prove duress as a defense to theft. Brian\xe2\x80\x99s threat by\nphone call is not a threat of imminent death. In addition, it is not objectively reasonable to be frightened by a voice\non the telephone. Keisha could hang up the phone and contact law enforcement, instead of timidly complying with\nBrian\xe2\x80\x99s demands.\nChange the preceding example with Keisha and Brian, and imagine that Brian orders Keisha to kill his ex-wife\n\n\x0c180 Criminal Law\n\nPat, who works at the station next to Keisha. Brian thereafter hands Keisha a switchblade. Keisha cannot kill Pat\nand claim duress as a defense to murder in most states. Keisha\xe2\x80\x99s life is no more valuable than Pat\xe2\x80\x99s. Therefore,\nKeisha cannot legally choose to commit the crime of murder and justify the crime with the duress defense.\n\nKey Takeaways\n\xe2\x80\xa2\n\nThree elements are required for the choice of evils defense: the defendant must be faced with two or more\nevils, the evils must be ranked, and it must be objectively reasonable for the defendant to choose to commit\nthe crime to avoid the imminent evil that is ranked higher.\n\n\xe2\x80\xa2\n\nChoice of evils is often based on nature or an act of God; duress is generally brought on by another\nindividual.\n\n\xe2\x80\xa2\n\nChoice of evils and duress are generally not defenses to criminal homicide.\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nA fire sweeps through a residential neighborhood. Clark and Manny light their neighbor\xe2\x80\x99s house on fire to\ncreate a firebreak. This prevents several houses from burning, including Clark\xe2\x80\x99s and Manny\xe2\x80\x99s. Do Clark and\nManny have a defense to arson in this case? Why or why not?\n\n2.\n\nRead People v. Lovercamp, 43 Cal. App. 3d 823 (1974). In Lovercamp, the defendants escaped from\nprison and were immediately captured. The defendants claimed they were forced to escape because a group\nof prisoners threatened them with sexual assault. The trial court did not allow the defendants to introduce\nevidence supporting the defense of necessity, and the defendants were convicted of escape. Did the Court of\nAppeals of California uphold their conviction for escape? The case is available at this link:\nhttp://scholar.google.com/\nscholar_case?case=6496346791408865822&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\n3.\n\nRead State v. Daoud, 141 N.H. 142 (1996). In Daoud, the defendant was convicted of driving while under\nthe influence. The defendant appealed because the trial court did not allow her to present evidence in\nsupport of the duress defense. Did the Supreme Court of New Hampshire uphold the defendant\xe2\x80\x99s\nconviction? The case is available at this link: http://scholar.google.com/\nscholar_case?case=18389754229002463686&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\nReferences\nConn. Gen. Stat. \xc2\xa7 53a-14, accessed November 22, 2010, http://search.cga.state.ct.us/dtsearch_pub_statutes.html.\nHaw. Rev. Stat. \xc2\xa7 702-231, accessed November 22, 2010, http://codes.lp.findlaw.com/histatutes/5/37/702/\n702-231.\nKy. Rev. Stat. Ann. \xc2\xa7 503.030, accessed November 22, 2010, http://www.lrc.ky.gov/krs/503-00/030.PDF.\nRCW\n9A.16.060,\naccessed\nNovember\n22,\n2010,\nhttp://apps.leg.wa.gov/rcw/\ndefault.aspx?cite=9A.16&full=true#9A.16.060.\n\n\x0c5.4 Defenses Based on Choice 181\n\nState v. Holmes, 129 Ohio Misc. 2d 38 (2004), accessed November 22, 2010, http://www.sconet.state.oh.us/rod/\ndocs/pdf/98/2004/2004-ohio-7334.pdf.\nTenn. Code Ann. \xc2\xa7 39-11-609, accessed November 22, 2010, http://www.michie.com/tennessee/\nlpext.dll?f=templates&fn=main-h.htm&cp=tncode.\n\n\x0c5.5 Consent\n\nLearning Objectives\n1.\n\nAscertain the two elements required for the consent defense.\n\n2.\n\nIdentify three situations where consent can operate as a legal defense.\n\nConsent by the victim can also form the basis of a justification defense to criminal conduct. Consent is most\ncommonly used as a defense to sex crimes such as rape, and lack of consent is a criminal element of most sexual\noffenses that must be proven beyond a reasonable doubt. Thus consent to sexual acts is discussed in Chapter 10\n\xe2\x80\x9cSex Offenses and Crimes Involving Force, Fear, and Physical Restraint\xe2\x80\x9d. In this section, consent to nonsexual\nconduct is explored. Consent is a defense that can be statutory or common law, perfect or imperfect, depending\non the jurisdiction.\n\nElements of the Consent Defense\nConsent can be a valid defense to a crime only if the victim chooses to render it. Thus it must be proffered\nknowingly and voluntarily, or it is ineffective. Under the Model Penal Code, consent is ineffective if \xe2\x80\x9cit is given\nby a person who is legally incompetent to authorize the conduct\xe2\x80\xa6it is given by a person who by reason of youth,\nmental disease or defect or intoxication is manifestly unable to make a reasonable judgment\xe2\x80\xa6it is induced by\nforce, duress or deception\xe2\x80\x9d (Model Penal Code \xc2\xa7 2.11(3)). In general, consent is not knowing if it is given by\nan individual who is too young, mentally incompetent (Colo> Rev. Stat. Ann., 2010), or intoxicated. In general,\nconsent is not voluntary if it is induced by force, threat of force, or trickery (Del. Code Ann. tit. 11, 2010).\n\nExample of Unknowing Consent\nGina drinks six glasses of wine at a party and offers to be the \xe2\x80\x9cdonkey\xe2\x80\x9d in a game of pin the tail on the donkey.\nOther party members watch as Gina staggers her way to the front of the room and poses in front of the pin the tail\non the donkey poster. Geoff walks up to Gina and stabs her several times in the buttocks with a pin. Geoff probably\ncannot claim consent as a defense to battery in this case. Gina consented to battery while she was intoxicated,\nand clearly she was unable to make a reasonable judgment. Thus her consent was not given knowingly and was\nineffective in this situation.\n\n182\n\n\x0c5.5 Consent 183\n\nExample of Involuntary Consent\nChange the example with Gina and Geoff. Imagine that Gina just arrived at the party and has not consumed any\nalcohol. Geoff tells Gina he will poke out her eye with a pin if she does not volunteer to be the donkey in the pin\nthe tail on the donkey game. He exemplifies his threat by making stabbing gestures at Gina\xe2\x80\x99s eye with the pin.\nFrightened, Gina goes to the front of the room and poses in front of the donkey poster until Geoff stabs her in the\nbuttocks with the pin. Geoff probably cannot claim consent as a defense to battery in this case. Gina consented in\nresponse to Geoff\xe2\x80\x99s threat of physical harm. Thus her consent was not given voluntarily and was ineffective in\nthis situation.\nFigure 5.7 Delaware Code Annotated\n\n\x0c184 Criminal Law\n\nSituations Where Consent Can Operate as a Defense\nConsent is a defense to only a few crimes. In most jurisdictions, consent can operate only as a defense to sexual\nconduct, injury that occurs during a sporting event, and crimes that do not result in serious bodily injury or death\n(Me. Rev. Stat. Ann., 2010). As the Model Penal Code states, \xe2\x80\x9c[w]hen conduct is charged to constitute an offense\nbecause it causes or threatens bodily harm, consent to such conduct or to the infliction of such harm is a defense\nif: (a) the bodily harm consented to or threatened by the conduct consented to is not serious; or (b) the conduct\nand the harm are reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive\nsport\xe2\x80\x9d (Model Penal Code \xc2\xa7 2.11(2)).\n\nExample of Legal Consent\nReview the examples with Gina and Geoff. Change the examples, and imagine that Gina did not consume any\nalcohol and was not threatened by Geoff. If Gina offers to be the donkey in the pin the tail on the donkey game\nand Geoff stabs her in the buttocks with the pin, Geoff may be able to use consent as a defense to battery. Gina\xe2\x80\x99s\nconsent appears to be knowing and voluntary. Gina probably does not suffer serious bodily injury from the\npin stab in the buttocks. Thus the elements of legal consent exist, and this situation is appropriate for the consent\ndefense.\nFigure 5.8 Diagram of Defenses, Part 1\n\nKey Takeaways\n\xe2\x80\xa2\n\nTwo elements are required for the consent defense: the defendant must consent knowingly (cannot be too\nyoung, mentally incompetent, or intoxicated) and voluntarily (cannot be forced, threatened, or tricked).\n\n\xe2\x80\xa2\n\nThree situations where consent can operate as a defense are sexual offenses, situations that do not result\nin serious bodily injury or death, and sporting events.\n\n\x0c5.5 Consent 185\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nAllen tackles Brett during a high school football game, and Brett is severely injured. Can Allen be\ncriminally prosecuted for battery? Why or why not?\n\n2.\n\nRead Donaldson v. Lungren, 2 Cal. App. 4th 1614 (1992). In Donaldson, the defendant sought court\npermission to be cryogenically frozen because he had a brain tumor and wanted to be frozen until there was\na cure. The defendant also sought to protect the individual who was going to help with the process and filed\na lawsuit seeking an injunction and immunity from criminal prosecution for assisted suicide. The defendant\nclaimed he had a constitutional right to consent to this procedure. Did the Court of Appeals of California\nuphold the defendant\xe2\x80\x99s right to be frozen\xe2\x80\x94that is, to commit suicide? The case is available at this link:\nhttp://www.rickross.com/reference/alcor/alcor7.html.\n\n3.\n\nRead Ramey v. State, 417 S.E.2d 699 (1992). In Ramey, the defendant, a police officer, was convicted of\nbattery for beating the defendant with a flashlight and burning his nipples. The defendant claimed that the\nvictim, who appeared to have mental problems, consented to this treatment. The trial court refused to\ninstruct the jury on the consent defense. Did the Court of Appeals of Georgia uphold the defendant\xe2\x80\x99s\nconviction? The case is available at this link: http://scholar.google.com/\nscholar_case?case=10809733884390698075&hl=en&as_sdt=2002&as_vis=1.\n\nReferences\nColo. Rev. Stat. Ann. \xc2\xa7 18-1-505, accessed November 23, 2010, http://www.michie.com/colorado/\nlpext.dll?f=templates&fn=main-h.htm&cp=.\nDel. Code Ann. tit. 11 \xc2\xa7 453, accessed November 23, 2010, http://delcode.delaware.gov/title11/c004/\nindex.shtml#451.\nMe. Rev. Stat. Ann. 17-A \xc2\xa7 109, accessed November 23, 2010, http://www.mainelegislature.org/legis/statutes/\n17-A/title17-Asec109.html.\n\n\x0c5.6 End-of-Chapter Material\n\nSummary\nDefenses can be denial or failure of proof, affirmative, imperfect, perfect, factual, legal, common law (created by case\nlaw), or statutory (created by a state or federal legislature). A denial or failure of proof defense creates doubt in one or\nmore of the elements of the offense and prevents the prosecution from meeting its burden of proof. An affirmative\ndefense raises an issue separate from the elements of the offense and must be asserted before or during the trial or it\ncannot serve as the basis for an appeal. Defendants have either the burden of production or the burden of production and\npersuasion to a preponderance of evidence for an affirmative defense. An imperfect defense reduces the severity of the\noffense, or sentence. A perfect defense results in an acquittal. A factual defense is grounded in the facts of the case,\nwhile a legal defense depends on a statute or common-law principle. An example of a factual defense is an alibi defense,\nwhich asserts that the defendant could not have committed the crime because he or she was somewhere else at the time\nthe crime occurred. An example of a legal defense is expiration of the statute of limitations, which means it is too late to\nprosecute the defendant for the offense.\nDefenses can also be based on justification or excuse. A defense based on justification focuses on the offense and\ndeems the conduct worthy of protection from criminal responsibility. A defense based on excuse focuses on the\ndefendant and excuses his or her conduct under the circumstances.\nSelf-defense justifies the defendant\xe2\x80\x99s conduct in using physical force as protective. Self-defense is legal only when\nthe defendant is faced with an unprovoked, imminent attack, and it is objectively reasonable that the degree of force\nused in response is necessary to avoid the attack. The defendant can be the initial aggressor and still use self-defense if\nthe attacked individual uses too much force in response to the defendant\xe2\x80\x99s attack or if the defendant withdraws from the\nattack and is still pursued by the attacked individual. The attack does not necessarily have to be imminent if the\ndefendant is a battered wife. Deadly force is any force that can kill under the circumstances. Deadly force can be used in\nself-defense only if the defendant is faced with imminent death, serious bodily injury, or the commission of a serious\nfelony. Some jurisdictions require the defendant to retreat before resorting to deadly force, while others allow the\ndefendant to stand his or her ground.\nIn most states, an individual can defend another to the same extent as self-defense. If a defendant is honestly but\nunreasonably mistaken about the fact that he or she needs to respond in self-defense or defense of others, imperfect selfdefense or defense of others may be appropriate, depending on the jurisdiction. A defendant can also defend property\nusing nondeadly force from an imminent threat of damage, loss, or theft. Real property is land and anything\npermanently attached to it, while personal property is any movable object. In many jurisdictions, a trespasser may be\nejected from real property using nondeadly force after the trespasser has been requested to leave.\nDefense of habitation is distinct from defense of real property in most states. Modern laws called castle laws expand\nthe use of force to defend habitation. Castle laws eliminate the duty to retreat when in the home and provide civil and\ncriminal immunity from prosecution for the use of deadly force. Deadly force can be used against a trespasser who\nenters occupied premises without consent of the owner when there is an objectively reasonable belief that the occupants\nwill be seriously injured or killed.\nLaw enforcement can also use force to arrest or apprehend a criminal. If the force is deadly, it is considered a seizure\nunder the Fourth Amendment and is scrutinized under an objectively reasonable standard.\nThe defense of choice of evils (called the necessity defense in some jurisdictions) permits the defendant to commit a\ncrime if the harm caused is less severe than harm that will occur if the crime is not committed. In general, criminal\nhomicide cannot be defended by choice of evils. Duress, a closely related defense, can sanction the use of force when\nthe defendant is imminently threatened with serious bodily injury or death. Like choice of evils, the degree of force used\npursuant to duress should be nondeadly.\nThe victim can also consent to the defendant\xe2\x80\x99s conduct, creating a consent defense, as long as the consent is given\n\n186\n\n\x0c5.6 End-of-Chapter Material 187\n\nknowingly and voluntarily, the conduct is sexual or occurs during a sporting event, and the conduct does not involve\nserious bodily injury or death.\n\nYou Be the Defense Attorney\nYou are a well-known private defense attorney with a perfect record. Read the prompt, review the case, and then\ndecide whether you would accept or reject it if you want to maintain your level of success. Check your answers using\nthe answer key at the end of the chapter.\n1.\n\nThe defendant and his wife argued. She raised a knife above her head and stated, \xe2\x80\x9cDon\xe2\x80\x99t make me use\nthis.\xe2\x80\x9d The defendant took the knife away and thereafter stabbed the victim forty-three times in the head and\nchest with it. The defendant wants to make an imperfect self-defense argument. Will you accept or reject the\ncase? Read State v. Perez, 840 P.2d 1118 (1992). The case is available at this link: http://scholar.google.com/\nscholar_case?case=7422940810428798296&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\n2.\n\nThe defendants crossed a police tape and trespassed on a medical clinic\xe2\x80\x99s private property while\nprotesting abortion. The defendants want to make arguments in support of necessity, defense of others, and\nduress. The basis of the defendants\xe2\x80\x99 claims is that they are protecting the lives of unborn children. Will you\naccept or reject the case? Read Allison v. Birmingham, 580 So.2d 1377 (1991). The case is available at this\nlink: http://scholar.google.com/\nscholar_case?case=8254507993974001416&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\n3.\n\nThe defendant, a police officer, shot the victim twice after being summoned to the victim\xe2\x80\x99s home by his\nwife. The victim was intoxicated and armed with two small steak knives. The defendant shot the victim\nsubsequent to a somewhat lengthy encounter during which the victim lunged at him with the knives. The\nvictim claimed he was putting the knives down or about to put the knives down. The victim is suing the\ndefendant for damages based on use of excessive force in arrest or apprehension. Will you accept or reject\nthe case? Read Roy v. Inhabitants of Lewiston, 42 F.3d 691 (1994). The case is available at this link:\nhttp://scholar.google.com/\nscholar_case?case=8822695050372354696&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\n4.\n\nThe defendant, the Oakland Cannabis Buyers\xe2\x80\x99 Cooperative, distributes marijuana to qualified patients\nunder California\xe2\x80\x99s Compassionate Use Act, which allows the possession and use of marijuana for medical\npurposes. The US government wants to stop this distribution under the federal Controlled Substances Act,\nwhich prohibits possession and use of marijuana under any circumstances. The defendant wants to continue\ndistribution under a claim of medical necessity. Will you accept or reject the case? Read U.S. v. Oakland\nCannabis Buyers\xe2\x80\x99 Cooperative, 532 U.S. 483 (2001). The case is available at this link:\nhttp://www.law.cornell.edu/supct/pdf/00-151P.ZO.\n\nCases of Interest\n\xe2\x80\xa2\n\nAcers v. United States, 164 U.S. 388 (1896), discusses deadly force and self-defense:\nhttp://supreme.justia.com/us/164/388.\n\n\xe2\x80\xa2\n\nGraham v. Connor, 490 U.S. 386 (1989), discusses force used in arrest: http://supreme.justia.com/us/490/\n386.\n\n\xe2\x80\xa2\n\nState v. Rogers, 912 S.W.2d 670 (1995), discusses duress: http://scholar.google.com/\nscholar_case?case=4913796561906479282&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\n\x0c188 Criminal Law\n\nArticles of Interest\n\xe2\x80\xa2\n\nAffirmative defenses: https://www.law.cornell.edu/wex/affirmative_defense\n\n\xe2\x80\xa2\n\nSelf-defense and martial arts: http://www.ittendojo.org/articles/general-4.htm\n\n\xe2\x80\xa2\n\nCastle laws: http://harvardjol.wpengine.com/wp-content/uploads/2013/10/Levin-Note1.pdf\n\n\xe2\x80\xa2\n\nNecessity and duress defenses: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=503462\n\nWebsites of Interest\n\xe2\x80\xa2\n\nCastle laws by state: http://criminal.findlaw.com/criminal-law-basics/states-that-have-stand-your-groundlaws.html\n\n\xe2\x80\xa2\n\nCriminal defense attorneys for all fifty states: http://www.hg.org/law-firms/USA-Criminal-Defense .html\n\nStatistics of Interest\n\xe2\x80\xa2\n\xe2\x80\xa2\n\nViolence used during household burglaries in the United States: http://bjs.ojp.usdoj.gov/content/pub/\npress/vdhbpr.cfm\nUS law enforcement officers killed and assaulted: https://www.fbi.gov/about-us/cjis/ucr/leoka\n\nAnswers to Exercises\nFrom Section 5.1 \xe2\x80\x9cCriminal Defenses\xe2\x80\x9d\n1.\n\nCarol\xe2\x80\x99s defense creates doubt in the intent element for battery. Thus Carol\xe2\x80\x99s defense is a denial or failure\nof proof defense, not an affirmative defense.\n\n2.\n\nThe Supreme Court of South Carolina reversed the defendant\xe2\x80\x99s conviction because the jury instruction\nshould have explained that the prosecution has the burden of disproving self-defense beyond a reasonable\ndoubt.\n\n3.\n\nThe Supreme Court of Nevada held that necessity was a valid common-law defense to driving while\nunder the influence. However, the court upheld the defendant\xe2\x80\x99s conviction because he did not meet the\nrequirements for necessity under the circumstances.\n\n\x0c5.6 End-of-Chapter Material 189\n\nAnswers to Exercises\nFrom Section 5.2 \xe2\x80\x9cSelf-Defense\xe2\x80\x9d\n1.\n\nColin cannot claim traditional self-defense because there is no objectively reasonable fear of imminent\ninjury or death while Diane is sleeping. Colin also cannot technically assert the battered wife defense\nbecause he is a husband. Courts can expand statutory defenses or create new common-law defenses.\nHowever, courts may be reluctant to expand the battered wife defense to spouses of either gender, based on\nthe physical differences between men and women and the lack of empirical evidence documenting battered\nhusband syndrome.\n\n2.\n\nThe Court of Appeals of Texas affirmed the defendant\xe2\x80\x99s convictions, holding that the jury does not have\nto be unanimous as to each required element of self-defense.\n\n3.\n\nThe US District Court for the District of Montana reversed the fine and held that the defendant did not\nprovoke the attack and was entitled to shoot the bear in self-defense.\n\nAnswers to Exercises\nFrom Section 5.3 \xe2\x80\x9cOther Use-of-Force Defenses\xe2\x80\x9d\n1.\n\nMelanie cannot use defense of others as a defense to criminal homicide. Melanie can defend Colleen only\nto the same extent she could defend herself. Nothing in the fact pattern indicates that Colleen could defend\nherself using deadly force. Thus Melanie could be successfully prosecuted for criminal homicide in this\nsituation.\n\n2.\n\nThe Supreme Court of Virginia held that the defendant could not threaten deadly force to defend\npersonal property and affirmed the conviction.\n\n3.\n\nThe Court of Appeals of Texas held that the victim had the right to sue for excessive force used to arrest.\nThe evidence did not indicate that the victim posed an immediate danger to the law enforcement officer\xe2\x80\x99s\nsafety, or that she was attempting to resist arrest or flee. Moreover, the offense\xe2\x80\x94failure to identify herself or\ngive her date of birth\xe2\x80\x94was minor. Thus the law enforcement officer was not immune from a lawsuit for\ndamages under the circumstances.\n\nAnswers to Exercises\nFrom Section 5.4 \xe2\x80\x9cDefenses Based on Choice\xe2\x80\x9d\n1.\n\nClark and Manny can use choice of evils as a defense to arson in many jurisdictions. Clark and Manny\nwere confronted with two harms: the loss of several homes or the loss of their neighbor\xe2\x80\x99s home. Clark and\nManny ranked the loss of one home lower than the loss of several homes, which is objectively reasonable.\nThus Clark and Manny could be acquitted or have a reduction in sentence or severity of the offense,\ndepending on the jurisdiction.\n\n2.\n\nThe Court of Appeals of California held that the defendants should have been allowed to present evidence\nin support of the necessity defense and were entitled to a retrial.\n\n3.\n\nThe Supreme Court of New Hampshire upheld the defendant\xe2\x80\x99s conviction. The court recognized that a\n\n\x0c190 Criminal Law\n\ncommon-law defense of duress exists in some jurisdictions, but held that the facts in the defendant\xe2\x80\x99s case\ndid not indicate that she was under duress. The court stated the defendant had lawful alternatives to driving\nwhile under the influence, such as calling a taxi or a friend for a ride or walking.\n\nAnswers to Exercises\nFrom Section 5.5 \xe2\x80\x9cConsent\xe2\x80\x9d\n1.\n\nIn most jurisdictions, Allen cannot be criminally prosecuted because Brett consented to being tackled by\nchoosing to participate in football, a contact sport.\n\n2.\n\nThe Court of Appeals of California held that the defendant had no constitutional right to be cryogenically\nfrozen and affirmed the lower court\xe2\x80\x99s dismissal of his lawsuit seeking an injunction and immunity from\ncriminal prosecution. The court reasoned that the defendant\xe2\x80\x99s right to refuse medical treatment is different\nfrom involving another individual in his death. It thereafter held that the defendant was legally free to\ncommit suicide, but he could not authorize another to kill him.\n\n3.\n\nThe Court of Appeals of Georgia upheld the defendant\xe2\x80\x99s conviction for battery. The court stated, \xe2\x80\x9cIt is the\nact and intent and results of the defendant\xe2\x80\x99s act which constitute the crimes as charged; the attitude of the\nvictim is not called into issue by these elements\xe2\x80\x9d (Ramey v. State, 2010).\n\nAnswer to Law and Ethics Question\n1.\n\nThe US Court of Appeals for the Ninth Circuit gave great discretion to the state trial court, creating a\npresumption that the trial court did a proper analysis of the law and evidence when rejecting the imperfect\nself-defense jury instruction. The court thereafter agreed with the trial court\xe2\x80\x99s findings that the evidence\nexcluded did not support a theory of imminent threat, required under California case law for a theory of\nimperfect self-defense (Menendez v. Terhune, 2010). The battered wife syndrome or defense was not\ndiscussed in detail, although the Menendez brothers\xe2\x80\x99 theory of abuse is similar. This case is a good\ndemonstration of how state case law varies, especially with regard to modern theories of self-defense based\non psychological trauma. In a different state, there may have been a different result grounded in state law\nregarding these innovative defense theories.\n\nAnswers to You Be the Defense Attorney\n1.\n\nIn this case, the trial court rejected the imperfect self-defense argument and refused to instruct the jury on\ninvoluntary manslaughter. The Supreme Court of Kansas affirmed. The court held that after the defendant\ntook the knife away, the victim was unarmed and no imminent threat of harm remained. Thus you would\nlose on the imperfect self-defense argument and should reject the case.\n\n2.\n\nThe Court of Criminal Appeals of Alabama affirmed the trial court\xe2\x80\x99s rejection of the defense arguments\nbased on the fact that abortion is legal. The court reviewed the common law, statutes, and case precedent\nand concluded that these defenses are not appropriate to protest legal acts. Thus you would lose on the\n\n\x0c5.6 End-of-Chapter Material 191\n\njustification defense arguments and should reject the case.\n3.\n\nThe United States Court of Appeals for the First Circuit affirmed the lower court\xe2\x80\x99s dismissal of the\nlawsuit for damages. The court held that the defendant\xe2\x80\x99s use of force was objectively reasonable under the\ncircumstances and gave broad latitude to officers who are forced to make split-second decisions under\ndangerous conditions. Thus you would win on the appropriate use of force in arrest argument and should\naccept the case.\n\n4.\n\nThe US Supreme Court held that there is no medical necessity exception to the Controlled Substances\nAct. The Court based its holding on the language of the federal statute, which reflects a determination that\nmarijuana has no medical benefits worthy of an exception. Thus you would lose on the medical necessity\nargument and should reject the case.\n\nReferences\nMenendez v. Terhune, 422 F.3d 1012, 1029 (2005), accessed November 19, 2010, http://cases.justia.com/us-courtof-appeals/F3/422/1012/569492.\nRamey v. State, 417 S.E.2d 699, 701 (1992), accessed November 23, 2010, http://scholar.google.com/\nscholar_case?case=10809733884390698075&hl=en&as_sdt=2002&as_vis=1.\n\n\x0cChapter 6: Criminal Defenses, Part 2\n\nCabrera Photo \xe2\x80\x93 Ejercicio Fotogr\xc3\xa1fico: Bodeg\xc3\xb3n de Droga \xe2\x80\x93 CC BY-NC-ND 2.0.\n\nThe use of drugs or controlled substances, dependence on drugs or controlled substances or voluntary\nintoxication shall not, as such, constitute a defense to a criminal charge\xe2\x80\xa6\n\xe2\x80\x94Or. Rev. Stat. \xc2\xa7 161.125(1), cited in Section 6.2.2 \xe2\x80\x9cIntoxication\xe2\x80\x9d\n\n192\n\n\x0c6.1 The Insanity Defense\n\nLearning Objectives\n1.\n\nIdentify four states that do not recognize an insanity defense.\n\n2.\n\nIdentify four versions of the insanity defense.\n\n3.\n\nAscertain the two elements required for the M\xe2\x80\x99Naghten insanity defense.\n\n4.\n\nAscertain the two elements required for the irresistible impulse insanity defense.\n\n5.\n\nCompare the M\xe2\x80\x99Naghten, irresistible impulse, and substantial capacity tests.\n\n6.\n\nAscertain the basis of the Durham insanity defense.\n\n7.\n\nIdentify the various burdens of proof for the insanity defense.\n\n8.\n\nDistinguish between diminished capacity and the insanity defense.\n\n9.\n\nCompare the insanity defense with mental competence to stand trial.\n\n10.\n\nCompare the insanity defense with the guilty but mentally ill verdict.\n\n11.\n\nCompare different commitment procedures for an insane criminal defendant.\n\n12.\n\nDistinguish temporary from permanent insanity.\n\nWith the exception of alibi and the expiration of the statute of limitations, Chapter 5 \xe2\x80\x9cCriminal Defenses, Part\n1\xe2\x80\x9d explored criminal defenses based on justification. This chapter reviews criminal defenses based on excuse,\nincluding the insanity defense. Remember that defenses based on excuse focus on the defendant and claim that\nthe defendant should be excused from criminal responsibility for his or her conduct under the circumstances.\nAlthough controversial, most states and the federal government recognize an insanity defense (18 U.S.C.,\n2010). Montana, Utah, Kansas, and Idaho are the only states that do not (Findlaw.com, 2010). The insanity\ndefense is the subject of much debate because it excuses even the most evil and abhorrent conduct, and in many\njurisdictions, legal insanity functions as a perfect defense resulting in acquittal. However, the insanity defense is\nrarely used and hardly ever successful. This is generally because of the difficulty in proving legal insanity.\nMany criminal defendants suffer from mental illness and can produce evidence of this illness such as\npsychiatric or layperson testimony. Often, mental disturbance is apparent from the defendant\xe2\x80\x99s conduct under\nthe circumstances. However, legal insanity differs from medical insanity and is generally much more difficult to\nestablish. The rationale behind creating a different standard for legal insanity is the goal of a criminal prosecution\ndiscussed in Chapter 1 \xe2\x80\x9cIntroduction to Criminal Law\xe2\x80\x9d. Criminal prosecution should deter as well as incapacitate.\nWhile the purpose of a medical diagnosis is to eventually cure the defendant\xe2\x80\x99s disorder, the purpose of criminal\nlaw is to punish the defendant. Thus the defendant\xe2\x80\x99s conduct is not excused if the defendant or society can benefit\nfrom punishment.\nThe policy supporting the insanity defense is twofold. First, an insane defendant does not have control over his\nor her conduct. This is similar to a defendant who is hypnotized, or sleepwalking. Second, an insane defendant\ndoes not have the ability to form criminal intent. Without the ability to control conduct, or the understanding that\n193\n\n\x0c194 Criminal Law\n\nconduct is evil or wrong by society\xe2\x80\x99s standards, an insane defendant presumably will commit crimes again and\nagain. Thus no deterrent effect is served by punishment, and treatment for the mental defect is the appropriate\nremedy.\nFour variations of the insanity defense currently exist: M\xe2\x80\x99Naghten, irresistible impulse, substantial capacity,\nand Durham.\n\nM\xe2\x80\x99Naghten Insanity Defense\nThe M\xe2\x80\x99Naghten insanity defense, also called the right-wrong test, is the most common insanity defense in\nthe United States. It is also the oldest and was created in England in 1843. The defense is named after Daniel\nM\xe2\x80\x99Naghten. M\xe2\x80\x99Naghten was under the paranoid delusion that the Prime Minister of England, Sir Robert Peel, was\ntrying to kill him. When he tried to shoot Sir Peel from behind, he inadvertently shot Sir Peel\xe2\x80\x99s Secretary, Edward\nDrummond, who thereafter died. M\xe2\x80\x99Naghten was put on trial for murder and, to the shock of the nation, the jury\nfound him not guilty by reason of insanity (Queen v. M\xe2\x80\x99Naghten, 2010). After a public outcry at this verdict, the\nBritish House of Lords developed a test for insanity that remains relatively intact today.\nThe M\xe2\x80\x99Naghten insanity defense is cognitive and focuses on the defendant\xe2\x80\x99s awareness, rather than the ability\nto control conduct. The defense requires two elements. First, the defendant must be suffering from a mental defect\nat the time he or she commits the criminal act. The mental defect can be called a \xe2\x80\x9cdefect of reason\xe2\x80\x9d or a \xe2\x80\x9cdisease\nof the mind,\xe2\x80\x9d depending on the jurisdiction (Iowa Code, 2010). Second, the trier of fact must find that because of\nthe mental defect, the defendant did not know either the nature and quality of the criminal act or that the act was\nwrong.\nThe terms \xe2\x80\x9cdefect of reason\xe2\x80\x9d and \xe2\x80\x9cdisease of the mind\xe2\x80\x9d can be defined in different ways, but in general, the\ndefendant must be cognitively impaired to the level of not knowing the nature and quality of the criminal act, or\nthat the act is wrong. Some common examples of mental defects and diseases are psychosis, schizophrenia, and\nparanoia.\nJurisdictions vary as to the level of awareness the defendant must possess. Some jurisdictions use the term\n\xe2\x80\x9cknow,\xe2\x80\x9d or \xe2\x80\x9cunderstand,\xe2\x80\x9d (Cal. Penal Code, 2010) while others use the term \xe2\x80\x9cappreciate\xe2\x80\x9d (Ala. Code, 2010). If\nknow or understand is the standard, the trier of fact must ascertain a basic level of awareness under the attendant\ncircumstances. If appreciate is the standard, the trier of fact must analyze the defendant\xe2\x80\x99s emotional state, and\nevidence of the defendant\xe2\x80\x99s character or personality may be relevant and admissible.\nA defendant does not know the nature and quality of a criminal act if the defendant is completely oblivious to\nwhat he or she is doing. This is quite rare, so most defendants claiming insanity choose to assert that they did\nnot know their act was wrong. However, jurisdictions differ as to the meaning of \xe2\x80\x9cwrong.\xe2\x80\x9d Some jurisdictions\ndefine wrong as \xe2\x80\x9clegally wrong,\xe2\x80\x9d meaning the defendant must be unaware that the act is against the law (State\nv. Crenshaw, 2010). Others define wrong as \xe2\x80\x9clegally and morally wrong,\xe2\x80\x9d meaning the defendant must also be\nunaware that the act is condemned by society (State v. Skaggs, 2010). Generally, the only instance where the\ndefendant must be \xe2\x80\x9cmorally wrong,\xe2\x80\x9d standing alone, is when the defendant claims that the conduct was performed\nat the command of God, which is called the deific defense (State v. Worlock, 2010). Whether the standard is\nlegally wrong or morally wrong, if there is any evidence of a cover-up or an attempt to hide or escape, it is\napparent that the defendant knew the difference between right and wrong, defeating the claim of insanity under\nM\xe2\x80\x99Naghten.\n\n\x0c6.1 The Insanity Defense 195\n\nExample of a Case Inappropriate for the M\xe2\x80\x99Naghten Insanity\nDefense\nSusan wants to marry a single man, but he does not want the responsibility of caring for her children. Susan\ndecides to kill her children. She drives her two sons, aged three and five, out to the lake. She puts the car in park,\ngets out, and then puts it in gear, watching as it drives into the water. Both of her sons drown. Later that day, Susan\nfiles a police report stating that a stranger kidnapped her children at gunpoint. While searching the area for the\nkidnapper, the police discover the children\xe2\x80\x99s bodies and evidence indicating that Susan killed them.\nSusan recants her kidnapping story and admits she killed her children. However, she claims she is not guilty\nby reason of insanity. Susan\xe2\x80\x99s claim will probably not be successful if she killed her children in a jurisdiction that\nrecognizes the M\xe2\x80\x99Naghten insanity defense. Susan tried to mislead the police, demonstrating her awareness that\nshe had done something wrong. Thus although Susan\xe2\x80\x99s behavior appears mentally imbalanced, she clearly knew\nthe difference between right and wrong, and her conduct is not excusable under M\xe2\x80\x99Naghten\xe2\x80\x99s rigid requirements.\n\nExample of a Case Appropriate for the M\xe2\x80\x99Naghten Insanity Defense\nAndrea, a diagnosed schizophrenic, drowns five of her young children in the bathtub. Andrea promptly phones\n911 and tells the operator that her children are dead. The operator dispatches an emergency call to law\nenforcement. When law enforcement officers arrive at Andrea\xe2\x80\x99s house, she informs them that she killed her\nchildren so that they could leave this earth and enter heaven.\nAndrea thereafter claims she is not guilty for killing her children by reason of insanity. Andrea could be\nsuccessful if the jurisdiction in which she killed her children recognizes the M\xe2\x80\x99Naghten insanity defense. Andrea\nsuffers from a mental defect, schizophrenia. In addition, there is no evidence indicating Andrea knew her conduct\nwas wrong, such as an attempted escape, or cover-up. In fact, Andrea herself contacted law enforcement and\nimmediately told them about her criminal acts. Thus both of the M\xe2\x80\x99Naghten elements appear to be present, and\nAndrea\xe2\x80\x99s conduct may be excusable under the circumstances.\nFigure 6.1 M\xe2\x80\x99Naghten Insanity Defense\n\n\x0c196 Criminal Law\n\nIrresistible Impulse Insanity Defense\nAnother variation of the insanity defense is the irresistible impulse defense. This defense has lost popularity\nover the years and is rejected by most of the states and the federal government (18 U.S.C., 2010). In some cases,\nthe irresistible impulse insanity defense is easier to prove than the M\xe2\x80\x99Naghten insanity defense, resulting in the\nacquittal of more mentally disturbed defendants.\nThe irresistible impulse insanity defense generally supplements M\xe2\x80\x99Naghten, so the focus is on the defendant\xe2\x80\x99s\nawareness (cognitive) and the defendant\xe2\x80\x99s will (ability to control conduct). In jurisdictions that recognize the\nirresistible impulse insanity defense, the first element is the same as M\xe2\x80\x99Naghten; the defendant must suffer from a\nmental defect or disease of the mind. However, the second element adds the concept of volition, or free choice. If\nthe defendant cannot control his or her conduct because of the mental defect or disease, the defendant\xe2\x80\x99s conduct is\nexcused even if the defendant understands that the conduct is wrong (State v. White, 2010). This is a softer stance\nthan M\xe2\x80\x99Naghten, which does not exonerate a defendant who is aware conduct is wrong. The challenge for the trier\nof fact in an irresistible impulse jurisdiction is distinguishing between conduct that can be controlled and conduct\nthat cannot.\n\n\x0c6.1 The Insanity Defense 197\n\nExample of a Case Inappropriate for the Irresistible Impulse Insanity\nDefense\nJolene, who has been diagnosed with paranoia, decides she must cut off all her sorority sisters\xe2\x80\x99 hair because they\nare \xe2\x80\x9cout to get her.\xe2\x80\x9d She drives to the sorority house with a Taser and scissors in her backpack. Her plan is to\nsubdue each sister with the stun gun and then hack off her hair. As she arrives at the house, she sees Agnes, one of\nher sorority sisters, trip and fall in the parking lot, ripping her cashmere sweater and scraping her chin. Feeling a\nstab of pity, Jolene ignores Agnes and walks hurriedly toward the building. As she enters, Ashley, another sorority\nsister, turns, scowls at Jolene, and barks, \xe2\x80\x9cWhat in the world are you wearing? You look like you just rolled out of\nbed!\xe2\x80\x9d Jolene pulls the stun gun out of her backpack and shoots Ashley. While Ashley is lying on the floor, Jolene\ntakes out the scissors and cuts Ashley\xe2\x80\x99s hair off at the scalp.\nJolene claims she is not guilty for assault and battery of Ashley by reason of insanity. If Jolene attacked Ashley\nin a jurisdiction that recognizes the irresistible impulse insanity defense, she probably will not be successful with\nher claim. Jolene has been diagnosed with paranoia, which is a mental defect or disease. However, Jolene seems\naware that shooting someone with a stun gun and cutting off her hair is wrong because she spared Agnes based\non pity. In addition, Jolene\xe2\x80\x99s choice not to attack Agnes indicates she has control over her conduct. Thus Jolene is\ncognitive of the difference between right and wrong and has the will to suppress criminal behavior, defeating any\nclaim of insanity under the irresistible impulse insanity defense.\nFigure 6.2 Irresistible Impulse Insanity Defense\n\n\x0c198 Criminal Law\n\nThe Substantial Capacity Test\nThe substantial capacity test is the insanity defense created by the Model Penal Code. The Model Penal Code\nwas completed in 1962. By 1980, approximately half of the states and the federal government adopted the\nsubstantial capacity test (also called the Model Penal Code or ALI defense) (Rolf, C. A., 2010). However, in\n1982, John Hinckley successfully claimed insanity using the substantial capacity test in his federal trial for the\nattempted murder of then-President Ronald Reagan. Public indignation at this not-guilty verdict caused many\nstates and the federal government to switch from the substantial capacity test to the more inflexible M\xe2\x80\x99Naghten\nstandard (18 U.S.C., 2010). In addition, jurisdictions that switched to M\xe2\x80\x99Naghten also shifted the burden of\nproving insanity to the defendant (Rolf, C. A., 2010). The defendant\xe2\x80\x99s burden of proof for the insanity defense is\ndiscussed shortly.\nThe substantial capacity test is as follows: \xe2\x80\x9cA person is not responsible for criminal conduct if at the time\nof such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the\ncriminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law\xe2\x80\x9d (Model Penal\nCode \xc2\xa7 4.01(1)). The defense has two elements. The first element requires the defendant to have a mental disease\nor defect, like the M\xe2\x80\x99Naghten and irresistible impulse insanity defenses. The second element combines the\n\n\x0c6.1 The Insanity Defense 199\n\ncognitive standard with volitional, like the irresistible impulse insanity defense supplementing the M\xe2\x80\x99Naghten\ninsanity defense.\nIn general, it is easier to establish insanity under the substantial capacity test because both the cognitive and\nvolitional requirements are scaled down to more flexible standards. Unlike the M\xe2\x80\x99Naghten insanity defense, the\nsubstantial capacity test relaxes the requirement for complete inability to understand or know the difference\nbetween right and wrong. Instead, the defendant must lack substantial, not total, capacity. The \xe2\x80\x9cwrong\xe2\x80\x9d in\nthe substantial capacity test is \xe2\x80\x9ccriminality,\xe2\x80\x9d which is a legal rather than moral wrong. In addition, unlike the\nirresistible impulse insanity defense, the defendant must lack substantial, not total, ability to conform conduct to\nthe requirements of the law. Another difference in the substantial capacity test is the use of the word \xe2\x80\x9cappreciate\xe2\x80\x9d\nrather than \xe2\x80\x9cknow.\xe2\x80\x9d As stated previously, appreciate incorporates an emotional quality, which means that evidence\nof the defendant\xe2\x80\x99s character or personality is relevant and most likely admissible to support the defense.\n\nExample of the Substantial Capacity Test\nLoreen has been diagnosed with psychosis and spent most of her life in a mental hospital. While at the mental\nhospital, Loreen made friends with many of the patients and health-care personnel. From time to time, Loreen\nwould play jokes on these friends. Most of these \xe2\x80\x9cjokes\xe2\x80\x9d consisted of putting her antidepressants into their food.\nLoreen was always reprimanded and often sternly punished for these escapades. After her release from the mental\nhospital at age twenty-one, Loreen falls in love with Aidan, a man who works in a bookstore near her apartment.\nLoreen decides to make Aidan fall in love with her by feeding him a magic potion, which she concocts out of a\nmixture of her antidepressants. Loreen buys a book from Aidan and casually asks if he would like her to buy him\na coffee. Aidan shrugs and says, \xe2\x80\x9cSure, but I don\xe2\x80\x99t have a break for another two hours.\xe2\x80\x9d Loreen offers to bring\nhim the coffee. Before bringing the drink to Aidan, she puts her \xe2\x80\x9cmagic potion\xe2\x80\x9d in it. While Aidan is sipping the\ncoffee, Loreen declares her love for him. She then states, \xe2\x80\x9cI know I shouldn\xe2\x80\x99t have, but I put a love potion in your\ncoffee. I hope it doesn\xe2\x80\x99t hurt you.\xe2\x80\x9d Aidan becomes seriously ill after drinking the coffee and is hospitalized.\nLoreen claims she is not guilty for battering Aidan by reason of insanity. If Loreen is in a jurisdiction that\nrecognizes the substantial capacity test, she may be successful with her claim. Loreen has a mental disease or\ndefect, psychosis. Loreen\xe2\x80\x99s statement to Aidan indicates that she lacks the substantial capacity to appreciate\nthe criminality of her conduct. Note that if Loreen were in a M\xe2\x80\x99Naghten jurisdiction, her statement \xe2\x80\x9cI know I\nshouldn\xe2\x80\x99t have\xe2\x80\x9d could prove her awareness that her conduct was wrong, defeating her claim. In addition, Loreen\xe2\x80\x99s\nbehavior at the mental hospital indicates that she lacks the substantial capacity to conform or control her conduct.\nEven after a lifetime of being punished over and over for mixing her meds together and putting them in other\npeople\xe2\x80\x99s food or drink, Loreen still does it. Lastly, in a substantial capacity jurisdiction, testimony from Loreen\xe2\x80\x99s\nfriends at the mental hospital may be admissible to support her claim of insanity, and her lack of ability to\n\xe2\x80\x9cappreciate\xe2\x80\x9d the criminality of her conduct.\nFigure 6.3 Substantial Capacity Insanity Defense\n\n\x0c200 Criminal Law\n\nThe Durham Insanity Defense\nThe Durham insanity defense is used only in New Hampshire and has been the established insanity defense in\nNew Hampshire since the late 1800s. The Durham defense, also called the Durham rule or the product test, was\nadopted by the Circuit Court of Appeals for the District of Columbia in the case of Durham v. U.S., 214 F.2d 862\n(1954). The defense set forth in that case is as follows: \xe2\x80\x9c[A]n accused is not criminally responsible if his unlawful\nact was the product of mental disease or mental defect\xe2\x80\x9d (Durham v. U.S., 2010). However, the court failed to give\ndefinitions for product, mental disease, or mental defect. Thus the Durham insanity defense is extremely difficult\nto apply, and the D.C. Circuit rejected it in 1972 in the case of U.S. v. Brawner, 471 F.2d 969 (1972), which was\nlater superseded by federal statute (18 U.S.C., 2010).\nIn general, the Durham insanity defense relies on ordinary principles of proximate causation. The defense has\ntwo elements. First, the defendant must have a mental disease or defect. Although these terms are not specifically\ndefined in the Durham case, the language of the judicial opinion indicates an attempt to rely more on objective,\npsychological standards, rather than focusing on the defendant\xe2\x80\x99s subjective cognition. The second element has to\ndo with causation. If the criminal conduct is \xe2\x80\x9ccaused\xe2\x80\x9d by the mental disease or defect, then the conduct should be\nexcused under the circumstances.\n\n\x0c6.1 The Insanity Defense 201\n\nExample of the Durham Insanity Defense\nArianna has been diagnosed with paranoia. Most psychiatric experts agree that individuals afflicted with paranoia\nunreasonably believe that the human population is \xe2\x80\x9cout to get them.\xe2\x80\x9d Arianna works under the direct supervision\nof Nora, who has a physical condition called \xe2\x80\x9cwalleye.\xe2\x80\x9d Nora\xe2\x80\x99s walleye makes it appear that she is looking to\nthe side when she addresses people. Arianna gradually becomes convinced that Nora is communicating secret\nmessages to their coworkers when she is speaking to Arianna. Arianna is genuinely frightened that Nora is telling\ntheir coworkers to kill her, and she decides she needs to defend herself. Arianna brings a gun to work one day,\nand when Nora begins talking to her about her tendency to take overlong lunches, Arianna pulls the gun out of\nher cubicle and shoots and kills Nora.\nArianna claims she is not guilty for killing Nora by reason of insanity. If Arianna killed Nora in New\nHampshire, she might be successful with her claim. Arianna has a mental disease or defect, paranoia. Arianna\ncan probably produce evidence, such as psychiatric expert testimony, that her paranoia \xe2\x80\x9ccaused\xe2\x80\x9d or \xe2\x80\x9cproduced\xe2\x80\x9d\nher criminal conduct, which was shooting Nora. Thus a trier of fact could acquit Arianna on the grounds that her\nconduct is excusable under these circumstances.\nFigure 6.4 Durham Insanity Defense\n\n\x0c202 Criminal Law\n\nProving Insanity\nThere is generally a presumption that criminal defendants are sane, just as there is a presumption that they\nare innocent. Therefore, at a minimum, a defendant claiming insanity must produce evidence that rebuts this\npresumption. Some states require the prosecution to thereafter prove sanity beyond a reasonable doubt or to a\npreponderance of evidence (Elkins, J.R., and students, 2010).\nPost-Hinckley, many states have converted the insanity defense into an affirmative defense. Thus as discussed\nin Chapter 5 \xe2\x80\x9cCriminal Defenses, Part 1\xe2\x80\x9d, the defendant may also have the burden of persuading the trier of\nfact that he or she is insane to a preponderance of evidence (New Jersey Jury Instruction on Insanity, 2010).\nThe federal government and some other states require the defendant to prove insanity by clear and convincing\nevidence, which is a higher standard than preponderance of evidence (Tenn. Code Ann., 2010).\n\nDiminished Capacity\nA claim of diminished capacity differs from the insanity defense. Diminished capacity is an imperfect failure of\nproof defense recognized in a minority of jurisdictions. Diminished capacity could reduce a first-degree murder\ncharge to second-degree murder or manslaughter if the defendant lacks the mental capacity to form the appropriate\ncriminal intent for first-degree murder.\nIn California, diminished capacity was abolished as an affirmative defense after San Francisco Supervisor Dan\nWhite used it successfully in his trial for the murder of fellow Supervisor Harvey Milk. A jury convicted White\nof voluntary manslaughter rather than first-degree premeditated murder after reviewing evidence that proved his\ndiet of junk food (Twinkies) created a chemical imbalance in his brain. In the aftermath of this highly publicized\ntrial, California passed legislation eliminating the diminished capacity defense and limiting the admissibility of\nevidence of diminished capacity only to sentencing proceedings (Cal. Penal Code, 2010).\nSimilar to diminished capacity is the syndrome defense. A syndrome that negates the requisite intent for\nthe crime could function as a failure of proof defense in a minority of jurisdictions. Some common examples\nof syndromes the American Psychiatric Association recognizes in the Diagnostic and Statistical Manual of\nMental Disorders, fourth edition (DSM-IV), are antisocial personality disorder, posttraumatic stress disorder, and\nintermittent explosive disorder. Some common examples of syndromes identified but not recognized in DSMIV are battered woman or battered wife syndrome (discussed in Chapter 5 \xe2\x80\x9cCriminal Defenses, Part 1\xe2\x80\x9d) and\ncaffeine withdrawal. Although successful use of the syndrome defense is rare, at least one case has excused a\ndefendant\xe2\x80\x99s drunken driving and assault and battery against a police officer because of premenstrual syndrome\n(PMS) (Baltimore.com, 2011).\n\nMental Competence to Stand Trial\nThe insanity defense is different from mental competence to stand trial. The insanity defense pertains to the\ndefendant\xe2\x80\x99s mental state when he or she commits the crime. If the insanity defense is successful, it exonerates\nthe defendant from guilt. Mental competence to stand trial is analyzed at the time the trial is to take place. If\nthe defendant is mentally incompetent to stand trial, the trial is delayed until the defendant regains competency.\n\n\x0c6.1 The Insanity Defense 203\n\nAlthough a detailed discussion of mental competence to stand trial is beyond the scope of this book, in general,\na criminal defendant must be able to understand the charges against him or her, and be able to assist in his or\nher defense. As the Model Penal Code provides, \xe2\x80\x9c[n]o person who as a result of mental disease or defect lacks\ncapacity to understand the proceedings against him or to assist in his own defense shall be tried, convicted or\nsentenced for the commission of an offense so long as such incapacity endures\xe2\x80\x9d (Model Penal Code \xc2\xa7 4.04). A\ndefendant who is mentally incompetent at the time of trial is subject to mental health treatment or even involuntary\nmedication until competence is regained.\n\nGuilty but Mentally Ill\nPost-Hinckley, some states adopted the guilty but mentally ill verdict. A defendant who is found guilty but\nmentally ill is not acquitted but punished and treated for mental health simultaneously while in prison. Typically,\nthe guilty but mentally ill verdict is available only when the defendant fails to prove legal insanity, and requires\nthe defendant to prove mental illness at the time of the crime to a preponderance of evidence (725 ILCS, 2010).\n\nExample of Guilty but Mentally Ill\nReview the example with Jolene in Section 6 \xe2\x80\x9cExample of a Case Inappropriate for the Irresistible Impulse\nInsanity Defense\xe2\x80\x9d. In this example, Jolene has been diagnosed with paranoia, but shows an ability to control and\nunderstand the wrongfulness of her conduct, so she probably will not be successful with an irresistible impulse\ninsanity defense. If Jolene is in a state that offers a guilty but mentally ill verdict, Jolene may be an appropriate\ncandidate because she was mentally ill at the time she assaulted and battered her sorority sister. If Jolene is found\nguilty but mentally ill, she will be treated for her mental health simultaneously while serving any prison sentence.\nFigure 6.5 Effects (Circular Diagram) of Mental Competency Claims\n\n\x0c204 Criminal Law\n\nFigure 6.6 Diagram of the Insanity Defense\n\n\x0c6.1 The Insanity Defense 205\n\n\x0c206 Criminal Law\n\nHasan Fort Hood Shooting Video\nDoes Hasan Have an Insanity Defense? The Judge Rules!\nIn this news story on the legal implications of the Fort Hood shootings, Judge Napolitano discusses the upcoming\nprosecution of Nidal Hasan and the possibility of an insanity defense (Brown, A. K., 2011).\n" href="http://www.youtube.com/watch?v=pUzcIS5MJjw" class="replaced-iframe" onclick="return\nreplaceIframe(this)" data-url="http://www.youtube.com/watch?v=pUzcIS5MJjw">(click to see video)\n\nDisposition of the Legally Insane\nThe not guilty by reason of insanity verdict means that the defendant is absolved from criminal responsibility and\ndevoid of any criminal record for the offense. However, it does not mean that the defendant is free to return to\nsociety.\nIn several states and federally, a defendant who is found not guilty by reason of insanity is automatically\ncommitted to a treatment facility until there is a determination that mental health has been restored (18 U.S.C.,\n2010). This is also the Model Penal Code approach. As the Model Penal Code states in \xc2\xa7 4.08(1), \xe2\x80\x9c[w]hen a\ndefendant is acquitted on the ground of mental disease or defect excluding responsibility, the Court shall order\nhim to be committed to the custody of the Commissioner of Mental Hygiene [Public Health] to be placed in an\nappropriate institution for custody, care and treatment.\xe2\x80\x9d\nOther states have a hearing on sanity after the judgment or verdict of not guilty by reason of insanity is returned.\nIf the defendant is deemed mentally competent at the hearing, he or she is released. If the defendant is found\nmentally ill at the hearing, he or she is committed to the appropriate treatment facility (Ohio Rev. Code Ann.,\n2010).\n\nTemporary Insanity\nMany states also recognize temporary insanity, which does not differ in analysis from permanent insanity\nexcept for the duration of the mental illness (Malo, A., Barach, M. P., & Levin, J. A., 2010). In a state\nthat recognizes temporary insanity, the elements of the state\xe2\x80\x99s insanity defense, either M\xe2\x80\x99Naghten, irresistible\nimpulse, substantial capacity, or Durham, must be present at the time the crime was committed. If the defendant\nis found not guilty by reason of insanity for the criminal offense, but regains mental competence at the time of\nprosecution, the defendant is released after the verdict is rendered. The trial court will order release based on the\ncommitment procedure discussed in Section 6.1.9 \xe2\x80\x9cDisposition of the Legally Insane\xe2\x80\x9d.\n\nExample of Temporary Insanity\nIn Virginia in 1994, Lorena Bobbitt was tried for the crime of slicing off her husband\xe2\x80\x99s penis. Bobbitt pleaded\nnot guilty to malicious wounding by reason of insanity. Bobbitt successfully established the irresistible impulse\n\n\x0c6.1 The Insanity Defense 207\n\ninsanity defense by presenting evidence of years of spousal abuse, a forced abortion, and rape on the night of\nthe incident (Bell, R., 2010; law.jrank.org, 2010). After the jury returned the verdict of not guilty by reason of\ninsanity, Bobbitt was evaluated, deemed mentally competent, and released (Bell, R., 2010).\n\nLorena Bobbitt Trial Video\nLorena Bobbitt Trial, Day One\nThis news story discusses the first day of the Lorena Bobbitt trial (Simon, R., 2011).\n" href="http://www.youtube.com/watch?v=3XnuPOk144c" class="replaced-iframe" onclick="return\nreplaceIframe(this)" data-url="http://www.youtube.com/watch?v=3XnuPOk144c">(click to see video)\n\nKey Takeaways\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\n\xe2\x80\xa2\n\nThe four states that do not recognize the insanity defense are Montana, Utah, Kansas, and Idaho.\nThe four versions of the insanity defense are M\xe2\x80\x99Naghten, irresistible impulse, substantial capacity, and\nDurham.\nThe two elements of the M\xe2\x80\x99Naghten insanity defense are the following:\n\xe2\x97\xa6\n\nThe defendant must be suffering from a mental defect or disease at the time of the crime.\n\n\xe2\x97\xa6\n\nThe defendant did not know the nature or quality of the criminal act he or she committed or\nthat the act was wrong because of the mental defect or disease.\n\nThe two elements of the irresistible impulse insanity defense are the following:\n\xe2\x97\xa6\n\nThe defendant must be suffering from a mental defect or disease at the time of the crime.\n\n\xe2\x97\xa6\n\nThe defendant could not control his or her criminal conduct because of the mental defect or\ndisease.\n\n\xe2\x80\xa2\n\nThe substantial capacity test softens the second element of the M\xe2\x80\x99Naghten and irresistible impulse\ninsanity defenses. Under the substantial capacity test, the defendant must lack substantial, not total, capacity\nto appreciate the criminality of conduct or to control or conform conduct to the law.\n\n\xe2\x80\xa2\n\nThe Durham insanity defense excuses criminal conduct when it is caused by a mental disease or defect.\n\n\xe2\x80\xa2\n\nThe criminal defendant pleading not guilty by reason of insanity must produce evidence to rebut the\npresumption that criminal defendants are sane. Thereafter, either the prosecution has the burden of\ndisproving insanity to a certain evidentiary standard or the defendant has the burden of proving insanity to a\npreponderance of evidence or clear and convincing evidence.\n\n\xe2\x80\xa2\n\nThe diminished capacity defense is a failure of proof imperfect defense that may reduce a first-degree\nmurder to second-degree murder or manslaughter if the defendant did not have the mental capacity to form\nfirst-degree murder criminal intent. The insanity defense is generally a perfect affirmative defense in many\njurisdictions.\n\n\xe2\x80\xa2\n\nThe insanity defense exonerates the defendant from criminal responsibility. Mental incompetence to stand\ntrial delays the criminal trial until mental competency is regained.\n\n\xe2\x80\xa2\n\nThe guilty but mentally ill verdict finds the criminal defendant guilty but orders him or her to undergo\nmental health treatment while incarcerated. The insanity defense is generally a perfect affirmative defense in\n\n\x0c208 Criminal Law\n\nmany jurisdictions.\n\xe2\x80\xa2\n\nThe federal government and some states automatically commit a criminal defendant to a mental health\nfacility after an acquittal based on insanity. Other states have a postverdict hearing to rule on commitment.\n\n\xe2\x80\xa2\n\nA claim of temporary insanity is the same as a claim of insanity except for the duration of the mental\nillness.\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nJeffrey is diagnosed with schizophrenia. For fifteen years, Jeffrey kidnaps, tortures, kills, and eats human\nvictims. Jeffrey avoids detection by hiding his victims\xe2\x80\x99 corpses in various locations throughout the city. If\nthe jurisdiction in which Jeffrey commits these crimes recognizes the M\xe2\x80\x99Naghten insanity defense, can\nJeffrey successfully plead and prove insanity? Why or why not?\n\n2.\n\nRead State v. Guido, 191 A.2d 45 (1993). In Guido, the defendant killed her husband and claimed insanity\nin a jurisdiction that recognizes the M\xe2\x80\x99Naghten insanity defense. Psychiatric experts examined the defendant\nand deemed her legally sane at the time of the killing. The experts thereafter met with the defendant\xe2\x80\x99s\nattorney and changed their opinion to state that the defendant was legally insane at the time of the killing.\nThe jury found the defendant sane after being made aware of this discrepancy. Did the New Jersey Supreme\nCourt uphold the defendant\xe2\x80\x99s conviction? The case is available at this link:\nhttp://lawschool.courtroomview.com/acf_cases/8791-state-v-guido.\n\n3.\n\nRead State v. Hornsby, 484 S.E.2d 869 (1997). In Hornsby, the defendant sought to reverse his\nconvictions for burglary and murder after jury verdicts of guilty but mentally ill. The defendant wanted to\ninvalidate South Carolina\xe2\x80\x99s statute recognizing the verdict of guilty but mentally ill as unconstitutional. The\ndefendant claimed that defendants incarcerated after guilty but mentally ill verdicts receive the same mental\nhealth treatment as defendants incarcerated under regular guilty verdicts, violating the Fourteenth\nAmendment due process clause. Did the Supreme Court of South Carolina uphold the statute? The case is\navailable at this link: http://scholar.google.com/\nscholar_case?case=13615864613799310547&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\nLaw and Ethics: The Elizabeth Smart Case\nTwo Prosecutions\xe2\x80\x94Two Different Results\nIn 2002, Brian David Mitchell and his accomplice and wife, Wanda Barzee, kidnapped fourteen-year-old Elizabeth\nSmart from her home. Mitchell, a so-called street preacher, and Barzee held Smart captive for nine months, tethering her\nto a metal cable, subjecting her to daily rapes, and forcing her to ingest alcohol and drugs (Dobner, J., 2010). At one\npoint, they transported Smart across state lines to California. Mitchell was put on trial for kidnapping and sexual assault\nin the state of Utah. The trial court found Mitchell incompetent to stand trial, and did not make a ruling forcing him to\nsubmit to medication to remedy the incompetency (Dobner, J., 2010). Unlike Mitchell, Barzee was involuntarily\nmedicated pursuant to a state court order (by the same judge that heard Mitchell\xe2\x80\x99s incompetency claim), and pleaded\nguilty to federal and state kidnapping, sexual assault, and illegal transportation of a minor for sex, receiving two fifteenyear sentences, to be served concurrently (Dobner, J., 2010). The federal government also instituted a prosecution\nagainst Mitchell for kidnapping and taking Smart across state lines for sex. The US District Court judge held a\n\n\x0c6.1 The Insanity Defense 209\n\ncompetency hearing and found that Mitchell was competent to stand trial (Winslow, B., 2010). Mitchell pleaded not\nguilty by reason of insanity. Throughout the trial, Mitchell was often removed from the courtroom for loudly singing\nChristmas carols and hymns. A serious of experts testified regarding Mitchell\xe2\x80\x99s psychological ailments, including a rare\ndelusional disorder, schizophrenia, pedophilia, and antisocial personality disorder. Nonetheless, the jury rejected the\ninsanity defense and convicted Mitchell of kidnapping and transporting a minor across state lines for the purpose of\nillegal sex (Dobner, J., 2010).\nIf Mitchell had not committed federal crimes, he might still be awaiting trial in Utah.\n1.\n\nWhat is the purpose of putting Mitchell on trial rather than delaying the trial for mental incompetency? Is\nthis purpose ethical?\n\nCheck your answer using the answer key at the end of the chapter.\nRead about Mitchell\xe2\x80\x99s sentencing at http://content.usatoday.com/communities/ondeadline/post/2011/05/elizabethsmarts-kidnapper-sentenced-to-xx-years-in-prison/1.\n\nBrian David Mitchell Video\nSuspect Deemed Competent in Elizabeth Smart Case\nThis video is a news story on the federal court\xe2\x80\x99s ruling that Brian David Mitchell was mentally competent to stand\ntrial in the Elizabeth Smart case:\n" href="http://www.youtube.com/watch?v=-v615MAshkU" class="replaced-iframe" onclick="return\nreplaceIframe(this)" data-url="http://www.youtube.com/watch?v=-v615MAshkU">(click to see video)\n\nReferences\nAla. Code \xc2\xa7 13A-3-1, accessed November 30, 2010, http://law.onecle.com/alabama/criminal-code/13A-3-1.html.\nBaltimore.com website, \xe2\x80\x9cSuccessful PMS Defense in Virginia Case Revives Debate,\xe2\x80\x9d accessed June 16, 2011,\nhttp://articles.baltimoresun.com/1991-06-16/news/1991167033_1_pms-richter-defense.\nBell, R., \xe2\x80\x9cCrimes Below the Belt: Penile Removal and Castration,\xe2\x80\x9d TruTV website, accessed December 3, 2010,\nhttp://www.trutv.com/library/crime/criminal_mind/sexual_assault/severed_penis/index.html\nBrown, A. K., \xe2\x80\x9cFort Hood Shooting Suspect Major Nidal Hasan to Be Arraigned,\xe2\x80\x9d Huffingtonpost.com\nwebsite, accessed August 26, 2011, http://www.huffingtonpost.com/2011/07/20/fort-hood-shooting-suspect-incourt_n_904274.html.\nCal. Penal Code \xc2\xa7 25, accessed November 30, 2010, http://law.onecle.com/california/penal/25.html.\nDobner, J., \xe2\x80\x9cElizabeth Smart Kidnapper Convicted, Jury Rejects Insanity Defense,\xe2\x80\x9d the Christian Science\nMonitor website, accessed December 11, 2010, http://www.csmonitor.com/USA/2010/1210/Elizabeth-Smartkidnapper-convicted-jury-rejects-insanity-defense.\nDobner, J., \xe2\x80\x9cWanda Barzee, Elizabeth Smart Kidnapper, Gets Fifteen Years, Including Seven Already Served,\xe2\x80\x9d\nthe Huffington Post website, accessed December 11, 2010, http://www.huffingtonpost.com/2010/05/21/wandabarzee-elizabeth-smart_n_584787.html.\nDurham v. U.S., 214 F.2d 862, 875 (1954), accessed December 2, 2010, http://scholar.google.com/\nscholar_case?case=1244686235948852364&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\n\x0c210 Criminal Law\n\nElkins, J. R., and students at the West Virginia University College of Law, \xe2\x80\x9cInsanity Defense,\xe2\x80\x9d West Virginia\nHomicide Jury Instructions Project, accessed December 2, 2010, http://myweb.wvnet.edu/~jelkins/adcrimlaw/\ninsanity.html.\nFindlaw.com, \xe2\x80\x9cThe Insanity Defense among the States,\xe2\x80\x9d findlaw.com website, accessed November 29, 2010,\nhttp://criminal.findlaw.com/crimes/more-criminal-topics/insanity-defense/the-insanity-defense-among-thestates.html.\nIowa Code \xc2\xa7 701.4, accessed November 30, 2010, http://coolice.legis.state.ia.us/cool-ice/\ndefault.asp?category=billinfo&service=iowacode&ga=83&input=701.\nlaw.jrank.org website, \xe2\x80\x9cJohn Wayne and Lorena Bobbitt Trials: 1993 and 1994\xe2\x80\x94Lorena Bobbitt\xe2\x80\x99s Trial\nBegins,\xe2\x80\x9d accessed December 3, 2010, http://law.jrank.org/pages/3594/John-Wayne-Lorena-BobbittTrials-1993-1994-Lorena-Bobbitt-s-Trial-Begins.html.\nMalo, A., Matthew P. Barach, and Joseph A. Levin, \xe2\x80\x9cThe Temporary Insanity Defense in California,\xe2\x80\x9d\nhastings.edu website, accessed December 3, 2010, http://www.uchastings.edu/public-law/docs/tempinsanity.pdf.\nNew Jersey Jury Instruction on Insanity, Based on N.J. Stat. Ann. \xc2\xa7 2C: 4-1, accessed November 30, 2010,\nhttp://www.judiciary.state.nj.us/criminal/charges/respons1.pdf.\nOhio Rev. Code Ann. \xc2\xa7 2945.40, accessed December 3, 2010, http://codes.ohio.gov/orc/2945.40.\nQueen v. M\xe2\x80\x99Naghten, 10 Clark & F.200, 2 Eng. Rep. 718 (H.L. 1843), accessed November 29, 2010,\nhttp://users.phhp.ufl.edu/rbauer/forensic_neuropsychology/mcnaghten.pdf.\nRolf, C. A., \xe2\x80\x9cFrom M\xe2\x80\x99Naghten to Yates\xe2\x80\x94Transformation of the Insanity Defense in the United States\xe2\x80\x94Is\nIt Still Viable?\xe2\x80\x9d Rivier College Online Academic Journal 2 (2006), accessed December 1, 2010,\nhttp://www.rivier.edu/journal/ROAJ-2006-Spring/J41-ROLF.pdf.\nSimon, R., \xe2\x80\x9cWas Lorena Bobbitt\xe2\x80\x99s Act \xe2\x80\x98an Irresistible Impulse?\xe2\x80\x99\xe2\x80\x9d Baltimoresun.com website, accessed August\n26, 2011, http://articles.baltimoresun.com/1994-01-12/news/1994012071_1_lorena-bobbitt-insanity-defensereason-of-insanity.\nState v. Crenshaw, 659 P.2d 488 (1983), accessed November 30, 2010, http://lawschool.courtroomview.com/\nacf_cases/8790-state-v-crenshaw.\nState v. Skaggs, 586 P.2d 1279 (1978), accessed November 30, 2010, http://www.leagle.com/\nxmlResult.aspx?xmldoc=1978587120Ariz467_1470.xml&docbase=CSLWAR1-1950-1985.\nState v. White, 270 P.2d 727 (1954), accessed November 30, 2010, http://scholar.google.com/\nscholar_case?case=15018626933471947897&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\nState v. Worlock, 569 A.2d 1314 (1990), accessed November 30, 2010, http://www.leagle.com/\nxmlResult.aspx?xmldoc=1990713117NJ596_1172.xml&docbase=CSLWAR2-1986-2006.\nTenn. Code Ann. \xc2\xa7 39-11-501, accessed December 2, 2010, http://law.justia.com/tennessee/codes/2010/title-39/\nchapter-11/part-5/39-11-501.\nWinslow, B., \xe2\x80\x9cMitchell Ruled Competent to Stand Trial for Kidnapping Elizabeth Smart,\xe2\x80\x9d Fox13now.com\nwebsite, accessed December 11, 2010, http://www.fox13now.com/news/kstu-mitchell-competent-trialkidnapping-smart,0,4261562.story.\n18\nU.S.C.\n\xc2\xa7 17,\naccessed\nNovember\n28,\n2010,\nhttp://www.law.cornell.edu/uscode/18/\nusc_sec_18_00000017\xe2\x80\x94-000-.html.\n725 ILCS \xc2\xa7 5/115-4(j), accessed December 3, 2010, http://law.onecle.com/illinois/725ilcs5/115-4.html.\n\n\x0c6.2 Infancy, Intoxication, Ignorance, and Mistake\n\nLearning Objectives\n1.\n\nDefine the infancy defense.\n\n2.\n\nDistinguish a juvenile court adjudication from a criminal prosecution.\n\n3.\n\nAscertain four criteria that could support a juvenile court waiver of jurisdiction.\n\n4.\n\nIdentify a situation where voluntary intoxication may provide a defense.\n\n5.\n\nDefine involuntary intoxication.\n\n6.\n\nCompare the defenses of voluntary and involuntary intoxication.\n\n7.\n\nIdentify a situation where mistake of law may provide a defense.\n\n8.\n\nIdentify a situation where mistake of law is not a valid defense.\n\n9.\n\nIdentify a situation where mistake of fact may provide a defense.\n\n10.\n\nIdentify a situation where mistake of fact is not a valid defense.\n\nInfancy\nMany states recognize the defense of infancy. Infancy asserts that the defendant is not subject to criminal\nprosecution because he or she is too young to commit a crime. The policy supporting the infancy defense is the\nbelief that juvenile defendants are too immature to form criminal intent. The infancy defense is typically statutory\nand can be perfect or imperfect, depending on the jurisdiction.\nStates divide up the jurisdiction of criminal defendants between juvenile courts and adult courts. Juvenile court\nsystems generally retain jurisdiction over criminal defendants under the age of sixteen, seventeen, or eighteen,\nwith exceptions. The Model Penal Code position is that \xe2\x80\x9c[a] person shall not be tried for or convicted of an offense\nif: (a) at the time of the conduct charged to constitute the offense he was less than sixteen years of age, [in which\ncase the Juvenile Court shall have exclusive jurisdiction]\xe2\x80\x9d (Model Penal Code \xc2\xa7 4.10(1)(a)).\nThe primary purpose of a juvenile court adjudication is rehabilitation. The goal is to reform the minor before\nhe or she becomes an adult. In most states, the infancy defense protects a youthful defendant from criminal\nprosecution as an adult; it does not prohibit a juvenile adjudication. Most minor defendants are adjudicated in\njuvenile court, so the infancy defense is rarely used.\nJuveniles can be prosecuted as adults under certain specified circumstances. At early common law, criminal\ndefendants were divided into three age groups. Those under the age of seven were deemed incapable of forming\ncriminal intent, and could not be criminally prosecuted. Defendants between the ages of seven and fourteen\nwere provided a rebuttable presumption that they lacked the mental capacity to form criminal intent. Once a\ndefendant turned fourteen, he or she was subject to an adult criminal prosecution. Modern statutes codify the\nadult criminal prosecution standard for different age groups. Some states follow the early common law and set up\n211\n\n\x0c212 Criminal Law\n\nrebuttable and irrebuttable presumptions based on the defendant\xe2\x80\x99s age (RCW 9A.04.050, 2010). Other states set\nforth a minimum age, such as fourteen or sixteen, and defendants who have reached that age are prosecuted as\nadults (N.Y. Penal Law \xc2\xa7 30.00, 2010).\nWhen a juvenile court has jurisdiction, the jurisdiction must be forfeited if the juvenile is to be prosecuted as an\nadult. This process is called waiver. Juvenile courts can have exclusive jurisdiction over minors under eighteen,\nor concurrent or simultaneous jurisdiction with adult courts, depending on the state.\nStates vary as to the waiver procedure. Some states allow judges to use discretion in granting the waiver,\nwhile others vest this power in the legislature or the prosecutor (Sickmund, M., 2010). A few factors serve as\ncriteria supporting the waiver to adult criminal court: the nature of the offense, the sophistication it requires, the\ndefendant\xe2\x80\x99s criminal history, and the threat the defendant poses to public safety (Kent v. United States, 2010).\n\nExample of the Infancy Defense\nMario is ten years old. Mario shoplifts some candy from the local market and is arrested. The newly elected\ndistrict attorney decides to make an example of Mario, and begins an adult criminal prosecution against him for\ntheft. In Mario\xe2\x80\x99s state, the juvenile court has exclusive jurisdiction over individuals under the age of eighteen.\nMario can probably claim infancy as a perfect defense to the theft charge. Mario should be adjudicated in juvenile\ncourt, not prosecuted as an adult. Therefore, the juvenile court has jurisdiction in this case and Mario\xe2\x80\x99s criminal\nprosecution should be dismissed.\n\nIntoxication\nIntoxication is another defense that focuses on the defendant\xe2\x80\x99s inability to form the requisite criminal intent. In\ngeneral, intoxication can be based on the defendant\xe2\x80\x99s use of alcohol, legal drugs, or illegal drugs. The Model\nPenal Code defines intoxication as \xe2\x80\x9ca disturbance of mental or physical capacities resulting from the introduction\nof substances into the body\xe2\x80\x9d (Model Penal Code \xc2\xa7 2.08(5) (a)). The intoxication defense could be perfect or\nimperfect, statutory or common law, depending on the jurisdiction.\nIntoxication is a state that is achieved either voluntarily or involuntarily. Most states frown on the use of\nvoluntary intoxication as a defense, and allow it only to reduce the severity of the crime charged (N.Y. Penal\nLaw \xc2\xa7 15.25, 2010). Recall from Chapter 4 \xe2\x80\x9cThe Elements of a Crime\xe2\x80\x9d that if a defendant voluntarily undertakes\naction, such as drinking or ingesting drugs, the voluntary act requirement is met. Conduct that occurs after the\nvoluntary intoxication probably is not excused unless the intoxication prevents the defendant from forming the\ncriminal intent required for the offense (Or. Rev. Stat., 2010). If the crime charged is a reckless intent crime,\nvoluntary intoxication rarely provides even an imperfect defense (Tenn. Code Ann., 2010).\nInvoluntary intoxication is more likely to provide a defense than voluntary intoxication. Generally, a\ndefendant can claim involuntary intoxication if he or she ingested the drug or alcohol unknowingly or under\nforce, duress, or fraud (California Jury Instructions No. 3427, 2010). Involuntary intoxication could affect the\ndefendant\xe2\x80\x99s ability to form criminal intent, thus negating specific intent, dropping murder a degree, or converting\nmurder to manslaughter. The Model Penal Code equates involuntary intoxication with the substantial capacity test,\nproviding \xe2\x80\x9c[i]ntoxication which (a) is not self-induced\xe2\x80\xa6is an affirmative defense if by reason of such intoxication\n\n\x0c6.2 Infancy, Intoxication, Ignorance, and Mistake 213\n\nthe actor at the time of his conduct lacks substantial capacity either to appreciate its criminality [wrongfulness] or\nto conform his conduct to the requirements of law\xe2\x80\x9d (Model Penal Code \xc2\xa7 2.08 (4)).\n\nExample of the Intoxication Defense\nClint slips a date rape drug into Delilah\xe2\x80\x99s drink at a fraternity party. Delilah is twenty-one and legally able to\nconsume alcohol. The date rape drug produces a state of unconsciousness during which Delilah severely beats a\nsorority sister. Delilah can probably claim involuntary intoxication as a defense in this situation. Although Delilah\nvoluntarily drank the alcohol, she became intoxicated from the date rape drug that she ingested unknowingly.\nDelilah could be acquitted or could have a charge of aggravated battery reduced, depending on the jurisdiction.\nFigure 6.7 Crack the Code\n\n\x0c214 Criminal Law\n\nIgnorance and Mistake\nOccasionally, a defendant\xe2\x80\x99s mistake negates the criminal intent required for an offense. Mistakes can be a mistake\nof law or a mistake of fact. Mistake of law and fact defenses can be statutory or common law, perfect or\nimperfect, depending on the jurisdiction.\n\nMistake of Law\nThe basis of the mistake of law defense is that the defendant believes his or her criminal conduct is legal. The\ndefense could be a failure of proof defense or an affirmative defense of excuse, depending on the jurisdiction\n(Tex. Penal Code, 2010). The Model Penal Code provides, \xe2\x80\x9cIgnorance or mistake as to a matter of fact or law\nis a defense if: (a) the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence\nrequired to establish a material element of the offense; or (b) the law provides that the state of mind established\nby such ignorance or mistake constitutes a defense\xe2\x80\x9d (Model Penal Code \xc2\xa7 2.04(1)).\nMost states require that the mistake of law be founded on a statute or judicial decision that is later overturned\n(La. Rev. Stat. Ann, 2010). The Model Penal Code states, \xe2\x80\x9cA belief that conduct does not legally constitute\nan offense is a defense to a prosecution for that offense based upon such conduct when\xe2\x80\xa6the actor\xe2\x80\xa6acts in\nreasonable reliance upon an official statement of the law, afterward determined to be invalid\xe2\x80\xa6contained in\xe2\x80\xa6a\nstatute or\xe2\x80\xa6judicial decision\xe2\x80\x9d (Model Penal Code \xc2\xa7 2.04(3) (b)).\nIncorrect advice from a licensed attorney cannot form the basis of a mistake of law defense (Hopkins v. State,\n2010). Nor can mistake of law be rooted in ignorance of the law because all individuals are required to know\nthe criminal laws effective in their jurisdiction. The Model Penal Code provides, \xe2\x80\x9cA belief that conduct does not\nlegally constitute an offense is a defense to a prosecution for that offense based upon such conduct when: the\nstatute or other enactment defining the offense is not known to the actor and has not been published or otherwise\nmade available prior to the conduct\xe2\x80\x9d (Model Penal Code \xc2\xa7 2.04(3) (a)).\n\nExample of the Mistake of Law Defense\nShelby, an attorney, researches current case law and determines that it is legal to sell products over the Internet\nand not charge sales tax. Shelby starts selling designer clothing on eBay and does not charge her customers any\nsales tax. The case decision that Shelby relied on is overturned by a court of appeals. Shelby can probably assert\nmistake of law as a defense to the crime of evading payment of sales tax.\n\nExample of a Case That Is Inappropriate for the Mistake of Law\nDefense\nReview the mistake of law defense example given in Section 6 \xe2\x80\x9cExample of the Mistake of Law Defense\xe2\x80\x9d.\nAssume that in Shelby\xe2\x80\x99s state, it is currently illegal to sell products over the Internet without charging sales tax.\n\n\x0c6.2 Infancy, Intoxication, Ignorance, and Mistake 215\n\nJonathan meets with Shelby, and asks her to research whether he needs to charge sales tax when he sells products\nover the Internet. Shelby agrees to research the matter and get back to Jonathan the next day with an answer.\nAfter Jonathan leaves, Shelby is contacted by her friend Margaret, who wants to take an impromptu trip to New\nYork City. Margaret asks Shelby if she would like to come along. Shelby agrees, rushes home, packs for the trip,\nand leaves with Margaret. The next day while Shelby is watching a Broadway play with Margaret, Jonathan calls\nShelby on her cell phone and asks Shelby what her research revealed about the sales tax question. Even though she\nhas not done any research on the matter, Shelby responds, \xe2\x80\x9cI just finished the research. You do not need to charges\nsales tax when you sell products over the Internet.\xe2\x80\x9d If Jonathan thereafter relies on Shelby\xe2\x80\x99s incorrect advice, and\nsells products over the Internet without charging sales tax, he probably will not be able to assert mistake of law\nas a defense. Incorrect advice from an attorney cannot excuse criminal conduct, even if the crime is committed\nbecause of the faulty legal opinion. Therefore, Jonathan could be charged with tax evasion in this situation.\n\nMistake of Fact\nMistake of fact is more likely to provide a defense than mistake of law. If the facts as the defendant believes them\nto be negate the requisite intent for the crime at issue, the defendant can assert mistake of fact as a defense (N.H.\nRev. Stat. Ann., 2010). Mistake of fact is generally not a defense to strict liability crimes because intent is not an\nelement of a strict liability offense (People v. Olsen, 2010).\n\nExample of the Mistake of Fact Defense\nMickie sees Rachel, his neighbor, riding his bicycle in her driveway. Mickie walks quickly up to Rachel and\ndemands that she get off the bike and return it to his garage. Frightened, Rachel hops off and runs to her house,\nleaving the bike behind. Mickie walks the bike over to his garage. Once Mickie reaches the garage, he sees that\nhis bike, which is an exact replica of Rachel\xe2\x80\x99s, is already inside. Mickie may be able to use mistake of fact as a\ndefense to theft. As is discussed in Chapter 11 \xe2\x80\x9cCrimes against Property\xe2\x80\x9d, the intent for theft is the intent to take\nthe property of another person. Mickie believed Rachel\xe2\x80\x99s bike was his. Thus Mickie\xe2\x80\x99s mistake of fact negates the\nintent required for this offense.\n\nExample of a Case That Is Inappropriate for the Mistake of Fact\nDefense\nTina is pulled over for speeding. Tina claims her speedometer is broken, so she was mistaken as to her speed. Tina\nprobably cannot assert mistake of fact as a defense in this case. Speeding is generally a strict liability offense.\nThus Tina\xe2\x80\x99s mistaken belief as to the facts is not relevant because there is no intent required for this crime.\nFigure 6.8 Comparison of Infancy, Intoxication, and Mistake\n\n\x0c216 Criminal Law\n\nInfancy\nIntoxication\nMistake\n\nKey Takeaways\n\xe2\x80\xa2\n\nInfancy is a defense to an adult criminal prosecution if the defendant is too young to form the requisite\ncriminal intent for the offense.\n\n\xe2\x80\xa2\n\nThe purpose of an adult criminal prosecution is punishment; the purpose of a juvenile adjudication is\nrehabilitation of the minor before he or she becomes an adult.\n\n\xe2\x80\xa2\n\nFour criteria that could support a juvenile court waiver of jurisdiction are the nature of the offense, the\nsophistication it requires, the defendant\xe2\x80\x99s criminal history, and the threat the defendant poses to public\nsafety.\n\n\xe2\x80\xa2\n\nVoluntary intoxication may provide a defense if the intoxication prevents the defendant from forming the\nrequisite criminal intent for the offense.\n\n\xe2\x80\xa2\n\nInvoluntary intoxication is intoxication achieved unknowingly or pursuant to force, duress, or fraud.\n\n\xe2\x80\xa2\n\nVoluntary intoxication is frowned on as a defense and in many states does not provide a defense to certain\ncrimes, such as reckless intent crimes. Involuntary intoxication is more likely to serve as a defense any time\nthe defendant is incapable of forming the requisite criminal intent for the offense.\n\n\xe2\x80\xa2\n\nMistake of law may provide a defense if the defendant believes his or her conduct is legal because of\nreliance on a statute or judicial opinion that is later overturned.\n\n\xe2\x80\xa2\n\nMistake of law is not a defense when the defendant believes his or her conduct is legal because of reliance\non the incorrect advice of an attorney.\n\n\xe2\x80\xa2\n\nIf the facts as the defendant believes them to be prevent the defendant from forming the requisite intent\nfor the crime, mistake of fact could be a valid defense.\n\n\xe2\x80\xa2\n\nMistake of fact is not a defense to strict liability crimes because intent is not an element.\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nBurt, a sixteen-year-old, consumes alcohol for the first time at a party. Unaware of alcohol\xe2\x80\x99s effect, Burt\ndrinks too much, attempts to walk home, and is cited for being drunk in public. In Burt\xe2\x80\x99s state, the juvenile\ncourt has concurrent jurisdiction over minors ages seventeen and under, with a waiver to adult court\navailable at the judge\xe2\x80\x99s discretion. Burt has not broken any laws before. Is it likely that the judge will waive\njuvenile court jurisdiction in this case and allow the adult criminal prosecution of Burt? Why or why not?\n\n2.\n\nRead People v. Register, 60 N.Y.2d 270 (1983). In Register, the defendant shot and killed an individual in\na bar after drinking heavily for many hours. The defendant thereafter sought a jury instruction on the\nintoxication defense to a charge of depraved mind murder. The trial court refused, and the defendant was\nconvicted. Did the Court of Appeals of the State of New York uphold the conviction? The case is available\nat this link: http://scholar.google.com/\nscholar_case?case=9019321014077082981&hl=en&as_sdt=2&as_vis=1&oi=.\n\n\x0c6.2 Infancy, Intoxication, Ignorance, and Mistake 217\n\n3.\n\nRead Garnett v. State, 632 A.2d 797 (1993). In Garnett, the defendant, an intellectually disabled twentyyear-old, had sexual intercourse with a thirteen-year-old girl whom he believed to be sixteen, and was\nprosecuted for statutory rape. Did the Court of Appeals of Maryland reverse the trial court and allow the\ndefendant to assert mistake of fact (the victim\xe2\x80\x99s age) as a defense? Why or why not? The case is available\nat this link: http://scholar.google.com/\nscholar_case?case=9331824442522694687&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\nReferences\nCalifornia Jury Instructions No. 3427, accessed December 7, 2010, http://www.justia.com/criminal/docs/calcrim/\n3400/3427.html.\nHopkins v. State, 69 A.2d 456 (1949), accessed December 9, 2010, http://www.leagle.com/\nxmlResult.aspx?xmldoc=1949682193Md489_1637.xml&docbase=CSLWAR1-1950-1985.\nKent v. United States, 383 U.S. 541 (1966), accessed December 7, 2010, http://scholar.google.com/\nscholar_case?case=5405024647930835755&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\nLa. Rev. Stat. Ann. \xc2\xa7 14:17, accessed December 7, 2010, http://law.justia.com/louisiana/codes/2009/rs/title14/\nrs14-17.html.\nN.H. Rev. Stat. Ann. \xc2\xa7 626:3I (a), accessed December 9, 2010, http://www.gencourt.state.nh.us/rsa/html/lxii/\n626/626-mrg.htm.\nN.Y. Penal Law \xc2\xa7 30.00, accessed December 6, 2010, http://law.onecle.com/new-york/penal/\nPEN030.00_30.00.html.\nN.Y. Penal Law \xc2\xa7 15.25, accessed December 7, 2010, http://law.onecle.com/new-york/penal/\nPEN015.25_15.25.html.\nOr. Rev. Stat. \xc2\xa7 161.125, accessed December 7, 2010, https://www.oregonlaws.org/ors/161.125.\nPeople v. Olsen, 685 P.2d 52 (1984), accessed December 9, 2010, http://lawschool.courtroomview.com/\nacf_cases/8639-people-v-olsen.\nRCW 9A.04.050, accessed December 6, 2010, http://apps.leg.wa.gov/rcw/default.aspx?cite=9A.04.050.\nSickmund, M., OJJDP National Report Series Bulletin, \xe2\x80\x9cJuveniles in Court,\xe2\x80\x9d National Center for Juvenile\nJustice website, accessed December 7, 2010, http://www.ncjrs.gov/html/ojjdp/195420/page4.html.\nTenn. Code Ann. \xc2\xa7 39-11-503(b), accessed December 7, 2010, http://www.lawserver.com/law/state/tennessee/\ntn-code/tennessee_code_39-11-503.\nTex. Penal Code \xc2\xa7 8.03, accessed December 7, 2010, http://www.statutes.legis.state.tx.us/docs/PE/htm/\nPe.8.htm.\n\n\x0c6.3 Entrapment\n\nLearning Objective\n1.\n\nCompare the subjective and objective entrapment defenses.\n\nHistorically, no legal limit was placed on the government\xe2\x80\x99s ability to induce individuals to commit crimes. The\nConstitution does not expressly prohibit this governmental action. Currently, however, all states and the federal\ngovernment provide the defense of entrapment. The entrapment defense is based on the government\xe2\x80\x99s use of\ninappropriately persuasive tactics when apprehending criminals. Entrapment is generally a perfect affirmative\nstatutory or common-law defense.\nEntrapment focuses on the origin of criminal intent. If the criminal intent originates with the government or\nlaw enforcement, the defendant is entrapped and can assert the defense. If the criminal intent originates with\nthe defendant, then the defendant is acting independently and can be convicted of the offense. The two tests of\nentrapment are subjective entrapment and objective entrapment. The federal government and the majority of\nthe states recognize the subjective entrapment defense (Connecticut Jury Instruction on Entrapment, 2010). Other\nstates and the Model Penal Code have adopted the objective entrapment defense (People v. Barraza, 2010).\n\nSubjective Entrapment\nIt is entrapment pursuant to the subjective entrapment defense when law enforcement pressures the defendant to\ncommit the crime against his or her will. The subjective entrapment test focuses on the defendant\xe2\x80\x99s individual\ncharacteristics more than on law enforcement\xe2\x80\x99s behavior. If the facts indicate that the defendant is predisposed to\ncommit the crime without law enforcement pressure, the defendant will not prevail on the defense.\nThe defendant\xe2\x80\x99s criminal record is admissible if relevant to prove the defendant\xe2\x80\x99s criminal nature and\npredisposition. Generally, law enforcement can furnish criminal opportunities and use decoys and feigned\naccomplices without crossing the line into subjective entrapment. However, if it is clear that the requisite intent\nfor the offense originated with law enforcement, not the defendant, the defendant can assert subjective entrapment\nas a defense.\n\nExample of Subjective Entrapment\nWinifred regularly attends Narcotics Anonymous (NA) for her heroin addiction. All the NA attendees know that\nWinifred is a dedicated member who has been clean for ten years, Marcus, a law enforcement decoy, meets\nWinifred at one of the meetings and begs her to \xe2\x80\x9chook him up\xe2\x80\x9d with some heroin. Winifred refuses. Marcus attends\n218\n\n\x0c6.3 Entrapment 219\n\nthe next meeting, and follows Winifred out to her car pleading with her to get him some heroin. After listening to\nMarcus explain his physical symptoms of withdrawal in detail, Winifred feels pity and promises to help Marcus\nout. She agrees to meet Marcus in two hours with the heroin. When Winifred and Marcus meet at the designated\nlocation, Marcus arrests Winifred for sale of narcotics. Winifred may be able to assert entrapment as a defense if\nher state recognizes the subjective entrapment defense. Winifred has not used drugs for ten years and did not\ninitiate contact with law enforcement. It is unlikely that the intent to sell heroin originated with Winifred because\nshe has been a dedicated member of NA, and she actually met Marcus at an NA meeting while trying to maintain\nher sobriety. Thus it appears that Marcus pressured Winifred to sell heroin against a natural predisposition, and\nthe entrapment defense may excuse her conduct.\n\nObjective Entrapment\nThe objective entrapment defense focuses on the behavior of law enforcement, rather than the individual\ndefendant. If law enforcement uses tactics that would induce a reasonable, law-abiding person to commit the\ncrime, the defendant can successfully assert the entrapment defense in an objective entrapment jurisdiction.\nThe objective entrapment defense focuses on a reasonable person, not the actual defendant, so the defendant\xe2\x80\x99s\npredisposition to commit the crime is not relevant. Thus in states that recognize the objective entrapment defense,\nthe defendant\xe2\x80\x99s criminal record is not admissible to disprove the defense.\n\nExample of Objective Entrapment\nWinifred has a criminal record for prostitution. A law enforcement decoy offers Winifred $10,000 to engage in\nsexual intercourse. Winifred promptly accepts. If Winifred\xe2\x80\x99s jurisdiction recognizes the objective entrapment\ndefense, Winifred may be able to successfully claim entrapment as a defense to prostitution. A reasonable, lawabiding person could be tempted into committing prostitution for a substantial sum of money like $10,000. The\nobjective entrapment defense focuses on law enforcement tactics, rather than the predisposition of the defendant,\nso Winifred\xe2\x80\x99s criminal record is irrelevant and is not admissible as evidence. Thus it appears that law enforcement\nused an excessive inducement, and entrapment may excuse Winifred\xe2\x80\x99s conduct in this case.\nFigure 6.9 Comparison of Subjective and Objective Entrapment\nSubjective Entrapment\nObjective Entrapment\n\nFigure 6.10 Diagram of Defenses, Part 2\n\n\x0c220 Criminal Law\n\nKey Takeaway\n\xe2\x80\xa2\n\nThe subjective entrapment defense focuses on the individual defendant, and provides a defense if law\nenforcement pressures the defendant to commit the crime against his or her will. If the defendant is\npredisposed to commit the crime without this pressure, the defendant will not be successful with the\ndefense. Pursuant to the subjective entrapment defense, the defendant\xe2\x80\x99s criminal record is admissible to\nprove the defendant\xe2\x80\x99s predisposition. The objective entrapment defense focuses on law enforcement\nbehavior, and provides a defense if the tactics law enforcement uses would convince a reasonable, lawabiding person to commit the crime. Under the objective entrapment defense, the defendant\xe2\x80\x99s criminal\nrecord is irrelevant and inadmissible.\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nAllen has a criminal record for burglary. Roger, a law enforcement decoy, approaches Allen and asks if he\nwould like to purchase methamphetamine. Allen responds that he would and is arrested. This interaction\ntakes place in a jurisdiction that recognizes the subjective entrapment defense. If Allen claims entrapment,\nwill Allen\xe2\x80\x99s criminal record be admissible to prove his predisposition to commit the crime at issue? Why or\nwhy not?\n\n2.\n\nRead Sosa v. Jones, 389 F.3d 644 (2004). In Jones, the US District Court for the Eastern District of\nMichigan denied the defendant\xe2\x80\x99s petition for a writ of habeas corpus after he was sentenced to life in prison\nfor conspiracy to sell and sale of cocaine. The defendant claimed he had been deprived of due process and\nwas subjected to sentencing entrapment when federal agents delayed a sting operation to increase the\namount of cocaine sold with the intent of increasing the defendant\xe2\x80\x99s sentencing to life in prison without the\npossibility of parole. Did the US Court of Appeals for the Sixth Circuit reverse the district court and grant\nthe defendant\xe2\x80\x99s petition? The case is available at this link: http://openjurist.org/389/f3d/644/sosa-v-jones.\n\n3.\n\nRead Farley v. State, 848 So.2d 393 (2003). In Farley, the government contacted the defendant, who had\nno criminal record, in a reverse sting operation with a mass e-mail soliciting individuals to purchase hardcore pornography. The defendant responded to the e-mail and was thereafter sent a questionnaire asking for\nhis preferences. The defendant responded to the questionnaire, and an e-mail exchange ensued. In every\ncommunication by the government, protection from governmental interference was promised. Eventually,\nthe defendant purchased child pornography and was arrested and prosecuted for this offense. The defendant\nmoved to dismiss based on subjective and objective entrapment and the motion to dismiss was denied. The\ndefendant was thereafter convicted. Did the Court of Appeal of Florida uphold the defendant\xe2\x80\x99s conviction?\nThe case is available at this link: http://www.lexisone.com/lx1/caselaw/\nfreecaselaw?action=OCLGetCaseDetail&format=FULL&sourceID=bdjgjg&searchTerm=\n\n\x0c6.3 Entrapment 221\n\neiYL.TYda.aadj.ecCQ&searchFlag=y&l1loc=FCLOW.\n\nReferences\nConnecticut Jury Instruction on Entrapment, Based on Conn. Gen. Stats. Ann. \xc2\xa7 53a-15, accessed December 10,\n2010, http://www.jud.ct.gov/ji/criminal/part2/2.7-4.htm.\nPeople v. Barraza, 591 P.2d 947 (1979), accessed December 10, 2010, http://scholar.google.com/\nscholar_case?case=4472828314482166952&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\n\x0c6.4 End-of-Chapter Material\n\nSummary\nThe federal government and every state except Montana, Utah, Kansas, and Idaho recognize the insanity defense. A\nnot guilty by reason of insanity verdict is an acquittal for the offense. The policy supporting the insanity defense is the\nlack of deterrent effect when punishing the legally insane. Four insanity defenses are recognized in the United States:\nM\xe2\x80\x99Naghten, irresistible impulse, substantial capacity, and Durham. The M\xe2\x80\x99Naghten insanity defense is cognitive and\nexcuses criminal conduct when the defendant is suffering from a mental defect or disease that prevents the defendant\nfrom knowing the nature or quality of conduct or from knowing that conduct is wrong. The irresistible impulse insanity\ndefense adds a volitional component and excuses conduct the defendant cannot control because of a mental defect or\ndisease. The substantial capacity test was created by the Model Penal Code and softens the requirements to substantial,\nrather than total, capacity to appreciate the criminality of conduct or to conform conduct to the law. The Durham\ninsanity defense is recognized only in New Hampshire, and excuses conduct that is the product of or caused by a mental\ndisease or defect. Jurisdictions vary as to the burden of proving insanity. All jurisdictions require the defendant to rebut\na presumption that he or she is sane; some also require the defendant to persuade the trier of fact that he or she is legally\ninsane to a preponderance of evidence or clear and convincing evidence (which is a higher standard than preponderance\nof evidence).\nA minority of jurisdictions recognizes diminished capacity and the syndrome defense when the defendant cannot\nform the requisite criminal intent for the offense because of a mental impairment. The criminal defendant must also be\nmentally competent to stand trial, which means the defendant can understand the charges brought against him or her and\ncan assist in any defense. Some jurisdictions recognize a guilty but mentally ill verdict, which does not exonerate the\ndefendant, but provides for mental health treatment while incarcerated. Temporary insanity is also a defense in some\njurisdictions and does not differ from the insanity defense except for the duration of the mental defect or disease.\nThe infancy defense excuses conduct when the defendant is too young to form criminal intent for the offense. The\ninfancy defense is generally not available in juvenile adjudications, so it is rarely asserted because most youthful\ndefendants are under the jurisdiction of juvenile courts. Juvenile courts can waive this jurisdiction and allow for an adult\ncriminal prosecution under certain circumstances, considering the criteria of the nature of the offense, the sophistication\nit requires, the defendant\xe2\x80\x99s prior criminal history, and the threat the defendant poses to public safety.\nOther excuse defenses are intoxication, ignorance, and mistake. Voluntary intoxication is frowned on as a defense, but\nwill occasionally excuse conduct if it negates certain high-level criminal intent requirements. Involuntary intoxication,\nwhich is intoxication achieved unknowingly, or under duress or fraud, is more likely to provide a defense if it affects the\ndefendant\xe2\x80\x99s capacity to form criminal intent. Ignorance of the law is not a defense because individuals are expected to\nknow the laws of their jurisdiction. Mistake of law, which means the defendant does not know conduct is illegal,\nfunctions as a defense if the mistake is based on a judicial opinion or statute that is later overturned. Mistake of law is\nnot a defense if the mistake is rooted in incorrect legal advice from an attorney. Mistake of fact is a defense if the facts\nas the defendant believes them to be negate the intent required for the offense.\nEntrapment is also a defense in every jurisdiction. Most states and the federal government recognize the subjective\nentrapment defense, which focuses on the defendant\xe2\x80\x99s predisposition, and does not excuse conduct if the defendant\nwould have committed the crime without law enforcement pressure. In a subjective entrapment jurisdiction, the\ndefendant\xe2\x80\x99s criminal record is admissible to prove predisposition to commit the crime at issue. Objective entrapment is\nthe Model Penal Code approach and excuses conduct if the pressure by law enforcement would induce a reasonable,\nlaw-abiding person to commit the crime. The defendant\xe2\x80\x99s criminal record is not admissible to show predisposition in an\nobjective entrapment jurisdiction because the focus is on law enforcement tactics, not the defendant\xe2\x80\x99s nature.\n\n222\n\n\x0c6.4 End-of-Chapter Material 223\n\nYou Be the Defense Attorney\nYou are a well-known private defense attorney with a perfect record. Read the prompt, review the case, and then\ndecide whether you would accept or reject it if you want to maintain your level of success. Check your answers using\nthe answer key at the end of the chapter.\n1.\n\nThe defendant shot and killed a police officer and then escaped on foot. He was thereafter charged with\nfirst-degree murder. The defendant wants to claim that his diagnosed paranoid schizophrenia affected his\nability to form the intent required for murder. In your state (Arizona), the defendant cannot introduce this\nargument to negate intent; he can only plead insanity under an abbreviated version of M\xe2\x80\x99Naghten, which\nrequires proof that the defendant did not know his conduct was wrong because of a mental defect or disease.\nWill you accept or reject the case? Read Clark v. Arizona, 548 U.S. 735 (2006), which is available at this\nlink: http://scholar.google.com/scholar_case?case=5050526068124331217&q=\nClark+v.+Arizona&hl=en&as_sdt=2,5&as_vis=1.\n\n2.\n\nThe defendant, an eleven-year-old boy, had sexual intercourse with a seven-year-old boy and was charged\nwith two counts of first-degree rape of a child. Three experts questioned the defendant, and two concluded\nhe lacked the capacity to form the intent for rape. This conclusion was based on the defendant\xe2\x80\x99s response\nthat the sexual contact was consensual and felt good. The defendant wants to present the infancy defense.\nWill you accept or reject the case? Read State v. Ramer, 86 P.3d 132 (2004), which is available at this link:\nhttp://scholar.google.com/\nscholar_case?case=14834415223416879505&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\n3.\n\nThe defendant, a diabetic, injected an abnormally large dose of insulin before his daughter\xe2\x80\x99s birthday\nparty. He and his estranged wife went to the store to buy party supplies. When they returned to the\ndefendant\xe2\x80\x99s vehicle, he hit her in the head with a hammer. She escaped the vehicle, and he caught up with\nher and ran her over. The defendant wants to claim involuntary intoxication as a defense to first-degree\nassault, domestic violence, and attempted first-degree murder. Will you accept or reject the case? Read\nPeople v. Garcia, 87 P.3d 159 (2003), which is available at this link: http://www.leagle.com/decision/\n200324687P3d159_1238/PEOPLE%20v.%20GARCIA.\n\n4.\n\nThe defendant and a narcotics decoy have been acquainted for several years. The narcotics decoy set up a\nsale transaction between the defendant and a police officer, the defendant made the sale, and was thereafter\ncharged with delivery of a controlled substance. The defendant claims that the decoy\xe2\x80\x99s status as his friend,\nand numerous phone calls to set up the narcotics sale pressured him to commit the crime and he wants to\nclaim entrapment. Your state (Texas) allows the defense of objective entrapment, focusing on law\nenforcement tactics. Will you accept or reject the case? Read Sebesta v. State, 783 S.W.2d 811 (1990), which\nis available at this link: http://scholar.google.com/\nscholar_case?case=7939192026130608711&hl=en&as_sdt=2002&as_vis=1.\n\nCases of Interest\n\xe2\x80\xa2\n\nU.S. v. Hinckley, 493 F.Supp. 2d 65 (2007), discusses St. Elizabeth Hospital\xe2\x80\x99s proposal for the conditional\nrelease of John W. Hinckley: http://fl1.findlaw.com/news.findlaw.com/wp/docs/hinckley/\nushinckley121703opn.pdf.\n\n\xe2\x80\xa2\n\nGraham v. Florida, 130 S. Ct. 2011(2010), discusses sentencing a juvenile offender to life in prison:\nhttp://scholar.google.com/scholar_case?case=6982366090819046045&q=\nGraham+v.+Florida&hl=en&as_sdt=2,5.\n\n\xe2\x80\xa2\n\nLegue v. State, 688 N.E.2d 408 (1997), discusses voluntary intoxication: http://scholar.google.com/\nscholar_case?case=15549524331562340362&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\n\x0c224 Criminal Law\n\n\xe2\x80\xa2\n\nU.S. v. Albertini, 830 F.2d 985 (1987), discusses mistake of law: http://lawschool.courtroomview.com/\nacf_cases/8647-united-states-v-albertini.\n\nArticles of Interest\n\xe2\x80\xa2\n\nThe insanity defense and recent US Supreme Court decisions: http://www.repository.law.indiana.edu/cgi/\nviewcontent.cgi?article=1494&context=ilj\n\n\xe2\x80\xa2\n\nThe insanity defense for Jared Lee Loughner, the shooter of US Representative Gabrielle Giffords (DAZ): http://www.nwherald.com/2011/01/10/insanity-defense-difficult-for-loughner/a8b43du\n\n\xe2\x80\xa2\n\nThe ruling that Jared Lee Loughner is incompetent to stand trial for the shooting of Representative\nGiffords: http://www.msnbc.msn.com/id/43165830/ns/us_news-crime_and_courts/t/ariz-shooting -spreesuspect-incompetent-trial\n\n\xe2\x80\xa2\n\nThe defense of caffeine overdose: http://www.cbsnews.com/news/murder-suspect-to-plead-insanity-bycaffeine/\n\nWebsites of Interest\n\xe2\x80\xa2\n\xe2\x80\xa2\n\nInsanity laws by state: http://criminal.findlaw.com/criminal-procedure/the-insanity-defense-among-thestates.html\nInformation about entrapment: http://www.wopular.com/newsracks/entrapment\n\nStatistics of Interest\n\xe2\x80\xa2\n\nJuvenile crime in the United States: http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=2028\n\nAnswers to Exercises\nFrom Section 6.1 \xe2\x80\x9cThe Insanity Defense\xe2\x80\x9d\n1.\n\nJeffrey will not be successful in a jurisdiction that recognizes the M\xe2\x80\x99Naghten insanity defense. Although\nJeffrey has a mental defect or disease, schizophrenia, Jeffrey\xe2\x80\x99s behavior in hiding the victims\xe2\x80\x99 corpses\nindicates that he knows his behavior is wrong. Thus Jeffrey cannot produce evidence establishing the\nsecond element of M\xe2\x80\x99Naghten.\n\n2.\n\nThe New Jersey Supreme Court reversed the defendant\xe2\x80\x99s conviction, holding that the experts changed\ntheir opinion after being educated as to the meaning of mental defect or disease under M\xe2\x80\x99Naghten. Thus the\nchange by the experts was not fraudulent and the defendant was entitled to a retrial.\n\n\x0c6.4 End-of-Chapter Material 225\n\n3.\n\nThe Supreme Court of South Carolina upheld the convictions and the statute. The court held that the\nstatute rationally accomplishes its goals, and guilty but mentally ill defendants receive immediate rather than\ndelayed treatment, which complies with due process.\n\nAnswers to Exercises\nFrom Section 6.2 \xe2\x80\x9cInfancy, Intoxication, Ignorance, and Mistake\xe2\x80\x9d\n1.\n\nIt is unlikely that the judge will waive juvenile court jurisdiction in this case. Some of the criteria a judge\nwill analyze when waiving jurisdiction are the nature of the offense, the sophistication it requires, the\ndefendant\xe2\x80\x99s criminal history, and the threat the defendant poses to public safety. This is Burt\xe2\x80\x99s first offense,\nand it did not involve violence or require much sophistication. Thus the judge will probably allow Burt to be\nadjudicated in juvenile court.\n\n2.\n\nThe Court of Appeals of the State of New York upheld the defendant\xe2\x80\x99s conviction and the trial court\xe2\x80\x99s\nrefusal to instruct the jury on intoxication. The court based its holding on the depraved mind murder statute,\nwhich requires reckless criminal intent, and the intoxication defense statute, which disallows evidence of\nintoxication as a defense to a reckless intent crime.\n\n3.\n\nThe Court of Appeals of Maryland upheld the trial court\xe2\x80\x99s decision to disallow the mistake of age\ndefense. The court based its holding on the plain meaning of the statutory rape statute, which is a strict\nliability offense.\n\nAnswers to Exercises\nFrom Section 6.3 \xe2\x80\x9cEntrapment\xe2\x80\x9d\n1.\n\nAllen\xe2\x80\x99s criminal record for burglary is not admissible to prove his predisposition to commit the crime of\npurchasing contraband. The fact that Allen committed a burglary in the past does not indicate that he is\npredisposed to purchase contraband. Thus Allen\xe2\x80\x99s criminal record for burglary is irrelevant and\ninadmissible, even though he is claiming entrapment in a jurisdiction that recognizes the subjective\nentrapment defense.\n\n2.\n\nThe US Court of Appeals for the Sixth Circuit affirmed the district court\xe2\x80\x99s denial of the petition. The\ncourt held that the defendant did not have a constitutional right to assert entrapment and that the rejection of\nthe defendant\xe2\x80\x99s sentencing entrapment claim was appropriate, albeit unfortunate, under the circumstances.\n\n3.\n\nThe Court of Appeal of Florida reversed the defendant\xe2\x80\x99s conviction under both theories of entrapment.\nThe court based its holding on the defendant\xe2\x80\x99s lack of predisposition to commit the crime and the\ngovernment\xe2\x80\x99s assurance that there would be no governmental interference, which was false under the\ncircumstances.\n\n\x0c226 Criminal Law\n\nAnswers to Law and Ethics Question\n1.\n\nWhether Mitchell is put on trial, or held indefinitely because of his mental incompetency, he is\nincapacitated and prevented from harming other victims. The difference is retribution. The federal judge\npermitted Mitchell to be put on trial, which resulted in a conviction providing retribution. Barzee\xe2\x80\x99s\nsentencing also provided retribution. The state court judge allowed only for the incapacitation of Mitchell,\nwhich did not resolve the case for the Smart family or the general public. Whether or not retribution is\nethical has been debated for centuries. However, retribution does restore public confidence in the judicial\nsystem, which can have a positive deterrent effect.\n\nAnswers to You Be the Defense Attorney\n1.\n\nIn this case, the US Supreme Court upheld Arizona\xe2\x80\x99s abbreviated M\xe2\x80\x99Naghten statute, and also confirmed\nArizona\xe2\x80\x99s constitutional right to preclude a defense based on the defendant\xe2\x80\x99s inability to form criminal intent\nbecause of a mental defect or disease. Thus you would not be able to strike down Arizona\xe2\x80\x99s insanity defense\nstatute, and you could not introduce evidence that the defendant lacked the capacity to form criminal intent,\nso you should reject the case.\n\n2.\n\nThe Washington Supreme Court upheld the trial court\xe2\x80\x99s ruling that the defendant was incapable of\nforming the intent to commit rape of a child, reversing the appellate court. The court based its holding on\nthe Washington infancy statute, which requires the prosecution to rebut a presumption of infancy for\ndefendants under the age of twelve by clear and convincing evidence. Thus you would prevail on the\ninfancy defense, and you should accept the case.\n\n3.\n\nIn this case, the trial court rejected the defendant\xe2\x80\x99s involuntary intoxication claim, and the defendant had\nto plead not guilty by reason of insanity. He was thereafter found guilty. On appeal, the Court of Appeals\nof Colorado reversed, holding that the defendant had the right to claim intoxication and present evidence of\nthis claim to the trier of fact. Thus you would be able to assert intoxication as a defense, and should accept\nthe case.\n\n4.\n\nThe Court of Appeals of Texas upheld the trial court\xe2\x80\x99s rejection of a motion to dismiss the charge based\non entrapment. The court held that friendship and numerous phone calls are not enough to pressure an\nunwilling person to commit a crime. Thus you would lose on the entrapment defense and should reject the\ncase.\n\n\x0cChapter 7: Parties to Crime\n\nTony Webster \xe2\x80\x93 National Law Enforcement Officers Memorial Visitors Center and Store \xe2\x80\x93 CC BY-NC 2.0.\n\nCongress can impute to a corporation the commission of certain criminal offenses and subject it to criminal\nprosecution therefor.\n\xe2\x80\x94New York Central R. Co. v. U.S., cited in Section 7.2.1 \xe2\x80\x9cCorporate Liability\xe2\x80\x9d\n\n227\n\n\x0c7.1 Parties to Crime\n\nLearning Objectives\n1.\n\nIdentify the four parties to crime at early common law.\n\n2.\n\nIdentify the parties to crime in modern times.\n\n3.\n\nDefine the criminal act element required for accomplice liability.\n\n4.\n\nDefine the criminal intent element required for accomplice liability.\n\n5.\n\nDefine the natural and probable consequences doctrine.\n\n6.\n\nDiscuss the consequences of accomplice liability.\n\n7.\n\nDetermine whether an accomplice can be prosecuted when the principal is not prosecuted or acquitted.\n\nOften more than one criminal defendant plays a role in the commission of a crime. Defendants working together\nwith a common criminal purpose or design are acting with complicity. When the participation and criminal\nconduct varies among the defendants, an issue arises as to who is responsible for which crime and to what\ndegree. This chapter analyzes different parties to crime, along with their accompanying criminal liability. Chapter\n8 \xe2\x80\x9cInchoate Offenses\xe2\x80\x9d examines crimes that necessarily involve more than one person such as conspiracy and\nsolicitation, as well as another inchoate or incomplete crime, attempt.\n\nAccomplice Liability\nAt early common law, parties to crime were divided into four categories. A principal in the first degree actually\ncommitted the crime. A principal in the second degree was present at the scene of the crime and assisted in its\ncommission. An accessory before the fact was not present at the scene of the crime, but helped prepare for its\ncommission. An accessory after the fact helped a party to the crime after its commission by providing comfort,\naid, and assistance in escaping or avoiding arrest and prosecution or conviction.\nIn modern times, most states and the federal government divide parties to crime into two categories: principal,\nand accessories (Idaho Code Ann., 2010). The criminal actor is referred to as the principal, although all\naccomplices have equal criminal responsibility as is discussed in Section 7.1 \xe2\x80\x9cParties to Crime\xe2\x80\x9d.\n\nAccomplice Elements\nAn accomplice under most state and federal statutes is responsible for the same crime as the criminal actor\nor principal (18 U.S.C., 2010). However, accomplice liability is derivative; the accomplice does not actually\nhave to commit the crime to be responsible for it. The policy supporting accomplice liability is the idea that an\n228\n\n\x0c7.1 Parties to Crime 229\n\nindividual who willingly participates in furthering criminal conduct should be accountable for it to the same extent\nas the criminal actor. The degree of participation is often difficult to quantify, so statutes and cases attempt to\nsegregate blameworthy accomplices based on the criminal act and intent elements, as is discussed in Section 7.1\n\xe2\x80\x9cParties to Crime\xe2\x80\x9d.\n\nAccomplice Act\nIn the majority of states and federally, an accomplice must voluntarily act in some manner to assist in the\ncommission of the offense. Some common descriptors of the criminal act element required for accomplice\nliability are aid, abet, assist, counsel, command, induce, or procure (K.S.A., 2010). Examples of actions that\nqualify as the accomplice criminal act are helping plan the crime, driving a getaway vehicle after the crime\xe2\x80\x99s\ncommission, and luring a victim to the scene of the crime. The Model Penal Code defines the accomplice criminal\nact element as \xe2\x80\x9caids\xe2\x80\xa6or attempts to aid such other person in planning or committing [the offense]\xe2\x80\x9d (Model Penal\nCode \xc2\xa7 2.06(3) (a) (ii)).\nIn many states, words are enough to constitute the criminal act element required for accomplice liability\n(N.Y. Penal Law, 2010). On the other hand, mere presence at the scene of the crime, even presence at the scene\ncombined with flight, is not sufficient to convert a bystander into an accomplice (Commonwealth v. Hargrave,\n2010). However, if there is a legal duty to act, a defendant who is present at the scene of a crime without\npreventing its occurrence could be liable as an accomplice in many jurisdictions (People v. Rolon, 2010). As the\nModel Penal Code provides, \xe2\x80\x9c[a] person is an accomplice of another person in the commission of an offense\nif\xe2\x80\xa6having a legal duty to prevent the commission of the offense, fails to make proper effect so to do\xe2\x80\x9d (Model\nPenal Code \xc2\xa7 2.06(3)(a)(iii)).\n\nExample of a Case Lacking Accomplice Act\nReview the criminal law issues example in Chapter 1 \xe2\x80\x9cIntroduction to Criminal Law\xe2\x80\x9d, Section 1.2.1 \xe2\x80\x9cExample of\nCriminal Law Issues\xe2\x80\x9d. In that example, Clara and Linda go on a shopping spree. Linda insists that they browse\nan expensive department store. After they enter the lingerie department, Linda surreptitiously places a bra into\nher purse. Clara watches, horrified, but does not say anything, even though a security guard is standing nearby.\nAs Linda and Clara leave the store, an alarm is activated. Linda and Clara run away with the security guard in\npursuit. In this case, Clara has probably not committed the criminal act element required for accomplice liability.\nAlthough Clara was present at the scene of the crime and did not alert the security guard, mere presence at the\nscene is not sufficient to constitute the accomplice criminal act. Clara fled the scene when the alarm went off, but\npresence at the scene of a crime combined with flight is still not enough to comprise the accomplice criminal act.\nThus Clara has probably not committed theft as an accomplice, and only Linda is subject to a criminal prosecution\nfor this offense.\n\n\x0c230 Criminal Law\n\nExample of Accomplice Act\nPhoebe, the parent of a two-year-old named Eliza, watches silently as her live-in boyfriend Ricky beats Eliza. In\nPhoebe\xe2\x80\x99s state, parents have a duty to come to the aid of their children if their safety is threatened. Ricky severely\ninjures Eliza, and both Phoebe and Ricky are arrested and charged with battery and child endangerment. Phoebe\nprobably has committed the criminal act element required for accomplice liability in many jurisdictions. Phoebe\ndoes not personally act to physically harm her child. However, her presence at the scene combined with a legal\nduty to act could be enough to make her an accomplice. Thus Phoebe has most likely committed battery and child\nendangerment as an accomplice, and both she and Ricky are subject to a criminal prosecution for these offenses.\n\nAccomplice Intent\nThe criminal intent element required for accomplice liability varies, depending on the jurisdiction. In many\njurisdictions, the accomplice must act with specific intent or purposely when aiding or assisting the principal (Or.\nRev. Stat., 2010). Specific intent or purposely means the accomplice desires the principal to commit the crime.\nThe Model Penal Code follows this approach and requires the accomplice to act \xe2\x80\x9cwith the purpose of promoting or\nfacilitating the commission of the offense\xe2\x80\x9d (Model Penal Code \xc2\xa7 2.06(3) (a)). In other jurisdictions, if the crime is\nserious and the accomplice acts with general intent or knowingly or has awareness that the principal will commit\nthe crime with his or her assistance, intent to further the crime\xe2\x80\x99s commission could be inferred (People v. Lauria,\n2010). In a minority of jurisdictions, only general intent or acting knowingly that the crime will be promoted or\nfacilitated is required, regardless of the crime\xe2\x80\x99s seriousness (Washington Rev. Code Ann., 2010).\n\nExample of Accomplice Intent\nJoullian, a hotel owner, rents a hotel room to Winnifred, a prostitute. In a state that requires an accomplice to act\nwith specific intent or purposely, Joullian must desire Winnifred to commit prostitution in the rented room to be\nWinnifred\xe2\x80\x99s accomplice. Evidence that Joullian stands to benefit from Winnifred\xe2\x80\x99s prostitution, such as evidence\nthat he will receive a portion of the prostitution proceeds, could help prove this intent. If Joullian\xe2\x80\x99s state allows\nfor an inference of specific intent or purposely with serious crimes when an accomplice acts with general intent\nor knowingly, it is unlikely that prostitution is a felony that would give rise to the inference. If Joullian\xe2\x80\x99s state\nrequires only general intent or knowingly for accomplice liability regardless of the crime\xe2\x80\x99s seriousness, to be\ndeemed an accomplice Joullian must simply be aware that renting Winnifred the room will promote or facilitate\nthe act of prostitution.\n\nThe Natural and Probable Consequences Doctrine\nAccomplice liability should be imputed only to blameworthy, deserving defendants. However, in some\njurisdictions, if the crime the defendant intentionally furthers is related to the crime the principal actually\n\n\x0c7.1 Parties to Crime 231\n\ncommits, the defendant is deemed an accomplice. As with legal causation, discussed in Chapter 4 \xe2\x80\x9cThe Elements\nof a Crime\xe2\x80\x9d, foreseeability is the standard. Under the natural and probable consequences doctrine, if the\ndefendant assists the principal with the intent to further a specific crime\xe2\x80\x99s commission, and the principal commits\na different crime that is foreseeable at the time of the defendant\xe2\x80\x99s assistance, the defendant could be liable as\nan accomplice (ME Rev. Stat. Ann., 2010). Several jurisdictions have rejected this doctrine as an overly harsh\nextension of accomplice liability (Bogdanov v. People, 2010).\n\nExample of the Natural and Probable Consequences Doctrine\nJos\xc3\xa9 shows up drunk and unruly at his friend Abel\xe2\x80\x99s house and tells Abel he wants to \xe2\x80\x9cbeat the hell\xe2\x80\x9d out of his\ngirlfriend Maria. Jos\xc3\xa9 asks Abel to drive him to Maria\xe2\x80\x99s house, and Abel promptly agrees. Abel drives Jos\xc3\xa9 to\nMaria\xe2\x80\x99s house and waits in the car with the engine running. Jos\xc3\xa9 forces his way into Maria\xe2\x80\x99s house and then\nbeats and thereafter rapes her. If Jos\xc3\xa9 and Abel are in a jurisdiction that recognizes the natural and probable\nconsequences doctrine, the trier of fact could find that Abel is an accomplice to the battery, burglary, and rape\nof Maria. Abel appears to have the criminal intent required to be an accomplice to battery because he assisted\nJos\xc3\xa9 in his quest to beat Maria. If burglary and rape were foreseeable when Abel drove a drunk and angry Jos\xc3\xa9\nto Maria\xe2\x80\x99s house, the natural and probable consequences doctrine would extend Abel\xe2\x80\x99s accomplice liability to\nthese crimes. If Abel is not in a natural and probable consequences jurisdiction, the trier of fact must separately\ndetermine that Abel had the criminal intent required to be an accomplice to battery, burglary, and rape; Abel\xe2\x80\x99s\nintent will be ascertained according to the jurisdiction\xe2\x80\x99s accomplice intent requirement\xe2\x80\x94either specific intent or\npurposely or general intent or knowingly.\nFigure 7.1 Diagram of Accomplice Liability\n\nConsequences of Accomplice Liability\nAn accomplice is criminally responsible for the crime(s) the principal commits. Although the sentencing may\nvary based on a defendant-accomplice\xe2\x80\x99s criminal record or other extenuating circumstances related to sentencing,\nsuch as prior strikes, in theory, the accomplice is liable to the same degree as the principal. So if accomplice\nliability is established in the examples given in Section 7.1.2 \xe2\x80\x9cAccomplice Elements\xe2\x80\x9d; Phoebe is criminally\nresponsible for battery and child endangerment, Joullian is criminally responsible for prostitution, and Abel\n\n\x0c232 Criminal Law\n\nis criminally responsible for battery and possibly burglary and rape. The principal should also be criminally\nresponsible for his or her own actions. However, occasionally a situation arises where the principal is not\nprosecuted or acquitted because of a procedural technicality, evidentiary problems, or a plea bargain, as is\ndiscussed in Section 7 \xe2\x80\x9cProsecution of an Accomplice When the Principal Is Not Prosecuted or Is Acquitted\xe2\x80\x9d.\n\nProsecution of an Accomplice When the Principal Is Not Prosecuted\nor Is Acquitted\nAlthough accomplice liability is derivative, in many jurisdictions the trier of fact can determine that a defendant\nis an accomplice even if the criminal actor or principal is not prosecuted or has been tried and acquitted for the\noffense (Standefer v. U.S., 2010). Thus a defendant can be liable for a crime even though he or she did not commit\nit and the defendant who did was spared prosecution or found not guilty. While this situation appears anomalous,\nif a defendant helps another commit a crime with the intent to further the crime\xe2\x80\x99s commission, punishment for the\ncompleted crime is appropriate. As the Model Penal Code states, \xe2\x80\x9c[a]n accomplice may be convicted on proof of\nthe commission of the offense and of his complicity therein, though the person claimed to have committed the\noffense has not been prosecuted or convicted or has been convicted of a different offense or degree of offense\xe2\x80\xa6or\nhas been acquitted\xe2\x80\x9d (Model Penal Code \xc2\xa7 2.06(7)).\n\nExample of Prosecution of an Accomplice When the Principal Is Not\nProsecuted\nReview the example in Section 7 \xe2\x80\x9cExample of the Natural and Probable Consequences Doctrine\xe2\x80\x9d with Jos\xc3\xa9 and\nAbel. Assume that after Jos\xc3\xa9 burglarizes, beats, and rapes Maria, local police arrest Jos\xc3\xa9 and Abel. The police\ntransport Jos\xc3\xa9 and Abel to the police station and take them to separate rooms for interrogation. The police officer\nwho interrogates Jos\xc3\xa9 is a rookie and forgets to read Jos\xc3\xa9 his Miranda rights. Thereafter, the police contact Maria,\nbut she refuses to cooperate with the investigation because she fears reprisal from Jos\xc3\xa9. The district attorney\ndecides not to prosecute Jos\xc3\xa9 because of the tainted interrogation. In this case, Abel could still be prosecuted for\nbattery and possibly rape and burglary as an accomplice in some jurisdictions. Although Jos\xc3\xa9 is the principal and\nactually committed the crimes, it is not necessary for Jos\xc3\xa9 to suffer the same criminal prosecution and punishment\nas Abel. If the elements required for accomplice liability are present, Abel can be fully responsible for the crimes\ncommitted by Jos\xc3\xa9, whether or not Jos\xc3\xa9 is prosecuted for or convicted of these offenses.\n\nGarrido Sentencing Video\nAttorney: Nancy Garrido in Tears during Sentencing\nPhillip Garrido, with his wife Nancy\xe2\x80\x99s help, kidnapped Jaycee Dugard, an eleven-year-old girl, and held her captive\nfor eighteen years. During that time, Dugard was repeatedly raped, became pregnant twice, and gave birth to two\nchildren. Phillip Garrido pleaded guilty to multiple charges of rape and kidnapping and received a sentence of four\nhundred years to life in prison. Nancy was prosecuted as an accomplice, pleaded guilty and received a sentence of\n\n\x0c7.1 Parties to Crime 233\n\nthirty-six years to life in prison (Martinez, M., 2011). Nancy Garrido\xe2\x80\x99s attorney discusses her sentencing as an\naccomplice in this video:\n" href="http://www.youtube.com/watch?v=YfCFAmILBQo" class="replaced-iframe" onclick="return\nreplaceIframe(this)" data-url="http://www.youtube.com/watch?v=YfCFAmILBQo">(click to see video)\n\nGhailani Verdict Video\nGhailani Guilty of One Count\nAhmed Ghailani, an alleged terrorist, was transferred from a military prison in Guantanamo Bay and tried as a\ncivilian in a federal district court in New York. Ghailani was indicted for accomplice liability and conspiracy for the\ndeaths of hundreds of citizens killed during Al Qaeda bombings of US embassies in Nairobi, Kenya, and Tanzania. At\ntrial, the prosecution failed to convince the jury that Ghailani had the criminal intent required for accomplice liability.\nHe was acquitted of the murders and attempted murders as an accomplice and convicted of one conspiracy charge.\nHowever, he received a sentence of life in prison without the possibility of parole for the conspiracy charge, the same\nsentence he would have received if convicted of all the murder and attempted murder charges (Weiser, B., 2011). A\nnews story on the conviction of Ghailani is shown in this video:\n" href="http://www.youtube.com/watch?v=ZUVRzJHA_tk" class="replaced-iframe" onclick="return\nreplaceIframe(this)" data-url="http://www.youtube.com/watch?v=ZUVRzJHA_tk">(click to see video)\n\nKey Takeaways\n\xe2\x80\xa2\n\nThe four parties to crime at early common law were principals in the first degree, principals in the second\ndegree, accessories before the fact, and accessories after the fact. These designations signified the following:\n\xe2\x97\xa6\n\n\xe2\x80\xa2\n\nPrincipals in the first degree committed the crime.\n\n\xe2\x97\xa6\n\nPrincipals in the second degree were present at the crime scene and assisted in the crime\xe2\x80\x99s\ncommission.\n\n\xe2\x97\xa6\n\nAccessories before the fact were not present at the crime scene, but assisted in preparing for\nthe crime\xe2\x80\x99s commission.\n\n\xe2\x97\xa6\n\nAccessories after the fact helped a party to the crime avoid detection and escape prosecution\nor conviction.\n\nIn modern times, the parties to crime are principals and their accomplices, and accessories.\n\n\xe2\x80\xa2\n\nThe criminal act element required for accomplice liability is aiding, abetting, or assisting in the\ncommission of a crime. In many jurisdictions, words are enough to constitute the accomplice criminal act\nelement, while mere presence at the scene without a legal duty to act is not enough.\n\n\xe2\x80\xa2\n\nThe criminal intent element required for accomplice liability is either specific intent or purposely or\ngeneral intent or knowingly.\n\n\xe2\x80\xa2\n\nThe natural and probable consequences doctrine holds an accomplice criminally responsible if the crime\nthe principal commits is foreseeable when the accomplice assists the principal.\n\n\xe2\x80\xa2\n\nThe consequences of accomplice liability are that the accomplice is criminally responsible for the crimes\nthe principal commits.\n\n\xe2\x80\xa2\n\nIn many jurisdictions, an accomplice can be prosecuted for an offense even if the principal is not\n\n\x0c234 Criminal Law\n\nprosecuted or is tried and acquitted.\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nJustin asks his girlfriend Penelope, a bank teller, to let him know what time the security guard takes his\nlunch break so that he can successfully rob the bank. Penelope tells Justin the security guard takes his break\nat 1:00. The next day, which is Penelope\xe2\x80\x99s day off, Justin successfully robs the bank at 1:15. Has Penelope\ncommitted robbery? Why or why not?\n\n2.\n\nRead State v. Ulvinen, 313 N.W.2d 425 (1981). In Ulvinen, the defendant sat guard and then helped her\nson clean up and dispose of evidence after he strangled and dismembered his wife. Thereafter, the defendant\nwas convicted of murder as an accomplice. The defendant was asleep when the killing occurred, but before\nthe killing her son told her that he planned to kill the victim. The defendant reacted with passive\nacquiescence by demurring and expressing disbelief that he would go through with his plans. Did the\nSupreme Court of Minnesota uphold the defendant\xe2\x80\x99s murder conviction? The case is available at this link:\nhttp://scholar.google.com/\nscholar_case?case=5558442148317816782&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\n3.\n\nRead Joubert v. State, 235 SW 3d 729 (2007). In Joubert, the defendant was convicted and sentenced to\ndeath based on his participation in an armed robbery that resulted in the death of a police officer and\nemployee. The jury convicted the defendant after hearing testimony from his accomplice and reviewing a\nvideo of the defendant confessing to the offense. The defendant appealed the conviction because in Texas,\naccomplice testimony must be corroborated by other evidence, and the defendant claimed that the other\ncorroborating evidence was lacking in this case. Did the Court of Criminal Appeals of Texas uphold the\ndefendant\xe2\x80\x99s conviction? Why or why not? The case is available at this link: http://scholar.google.com/\nscholar_case?case=10119211983865864217&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\nReferences\nBogdanov v. People, 941 P.2d 247, 251 n. 8 (1997), accessed December 21, 2010, http://scholar.google.com/\nscholar_case?case=13910767150180460511&hl=en&as_sdt=2&as_vis=1&oi=scholarr#[8].\nCal. Penal Code \xc2\xa7 31, accessed December 20, 2010,http://law.onecle.com/california/penal/31.html. and their\naccomplices.\nCommonwealth v. Hargrave, 745 A.2d 20 (2000), accessed December 20, 2010, http://scholar.google.com/\nscholar_case?case=14481330811091769472&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\nIdaho Code Ann. \xc2\xa7 18-205, accessed December 20, 2010, http://www.legislature.idaho.gov/idstat/Title18/\nT18CH2SECT18-205.htm.\nK.S.A. \xc2\xa7 21-3205, accessed December 20, 2010, http://kansasstatutes.lesterama.org/Chapter_21/\nArticle_32/#21-3205.\nMartinez, M., \xe2\x80\x9cPhillip, Nancy Garrido sentenced in Jaycee Dugard Kidnapping,\xe2\x80\x9d CNN website, accessed\nAugust 15, 2011, http://articles.cnn.com/2011-06-02/justice/california.garridos.sentencing_1_jaycee-dugardterry-probyn-phillip-garrido?_s=PM:CRIME.\n\n\x0c7.1 Parties to Crime 235\n\nME Rev. Stat. Ann. tit. 17-A \xc2\xa7 57 (3) (A), accessed December 21, 2010, http://www.mainelegislature.org/legis/\nstatutes/17-a/title17-Asec57.html.\nN.Y. Penal Law \xc2\xa7 20.00, accessed December 26, 2010, http://law.onecle.com/new-york/penal/\nPEN020.00_20.00.html.\nOr. Rev. Stat. \xc2\xa7 161.155, accessed December 20, 2010, https://www.oregonlaws.org/ors/161.155.\nPeople v. Lauria, 251 Cal. App. 2d 471 (1967), accessed December 21, 2010, http://scholar.google.com/\nscholar_case?case=686539897745974621&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\nPeople v. Rolon, 160 Cal. App. 4th 1206 (2008), accessed December 20, 2010, http://caselaw.findlaw.com/cacourt-of-appeal/1308666.html.\nStandefer v. U.S., 447 U.S. 10 (1980), accessed December 22, 2010, http://scholar.google.com/\nscholar_case?case=11715693283858901517&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\nWashington Rev. Code Ann. \xc2\xa7 9A.08.020 (3) (a), accessed December 21, 2010, http://apps.leg.wa.gov/rcw/\ndefault.aspx?cite=9A.08.020.\nWeiser, B., \xe2\x80\x9cEx-Detainee Gets Life Sentence in Embassy Blasts,\xe2\x80\x9d New York Times website, accessed January\n26, 2011, http://www.nytimes.com/2011/01/26/nyregion/26ghailani.html.\n18 U.S.C. \xc2\xa7 2, accessed December 20, 2010, http://codes.lp.findlaw.com/uscode/18/I/1/2.\n\n\x0c7.2 Vicarious Liability\n\nLearning Objectives\n1.\n\nDistinguish between accomplice liability and vicarious liability.\n\n2.\n\nDistinguish between corporate criminal vicarious liability and individual criminal vicarious liability.\n\nVicarious liability, a concept discussed in Chapter 4 \xe2\x80\x9cThe Elements of a Crime\xe2\x80\x9d, also transfers liability from one\ndefendant to another. However, vicarious liability should not be confused with accomplice liability. Accomplice\nliability is based on the defendant\xe2\x80\x99s participation in a criminal enterprise and complicity with the criminal actor\nor principal, but vicarious liability transfers a defendant\xe2\x80\x99s criminal responsibility for the crime to a different\ndefendant because of a special relationship. With vicarious liability, the acting defendant also is criminally\nresponsible for his or her conduct. Similar to the civil law concept of respondeat superior discussed in Chapter 1\n\xe2\x80\x9cIntroduction to Criminal Law\xe2\x80\x9d, vicarious liability in criminal law is common between employers and employees.\nIt is also the basis of corporate liability, which is discussed in Section 7.2.1 \xe2\x80\x9cCorporate Liability\xe2\x80\x9d.\n\nCorporate Liability\nAt early common law, corporations were not criminally prosecutable as separate entities, which was most likely\nbecause in England, corporations were owned and operated by the government. In modern times, American\ncorporations are private enterprises whose actions can seriously injure other individuals and the economy. Thus\na corporation can be criminally responsible for conduct apart from its owners, agents, or employees (New York\nCentral R. Co. v. U.S., 2010). In general, this is a vicarious liability, transferring criminal responsibility for\nan offense from an agent or employee of the corporation to the corporation itself, based on the employment\nrelationship. Of course, the agent or employee also is responsible for the crime he or she commits.\nA corporation is vicariously liable only if an agent or employee commits a crime during the agent or employee\xe2\x80\x99s\nscope of employment (720 ILCS, 2010). As the Model Penal Code states, \xe2\x80\x9c[a] corporation may be convicted of\nthe commission of an offense if\xe2\x80\xa6the conduct is performed by an agent of the corporation acting in behalf of\nthe corporation within the scope of his office or employment\xe2\x80\x9d (Model Penal Code \xc2\xa7 2.07(1)(a)). The criminal\npunishment for a corporation is generally payment of a fine.\n\nExample of Corporate Liability\nHarry, an employee of Burger King Corporation, shreds corporate documents in his office when Burger King is\nsued civilly for sexual harassment in a multimillion-dollar class action suit. Under modern theories of corporate\n236\n\n\x0c7.2 Vicarious Liability 237\n\nliability, both Harry and Burger King could be criminally prosecuted for obstruction of justice. Note that Burger\nKing\xe2\x80\x99s liability is vicarious and depends on its relationship with Harry as an employer and the fact that Harry\nis acting within the scope of employment. Vicarious liability is distinguishable from accomplice liability, where\nthe accomplice must be complicit with the criminal actor. The owners of Burger King, who are the corporate\nshareholders, did not actively participate in Harry\xe2\x80\x99s conduct, although they will share in the punishment if the\ncorporation is fined.\nFigure 7.2 Vicarious and Corporate Liability\n\nIndividual Criminal Vicarious Liability\nGenerally speaking, criminal law disfavors criminal vicarious liability, the exception being corporate liability\ndiscussed in Section 7.2.1 \xe2\x80\x9cCorporate Liability\xe2\x80\x9d. Criminal vicarious liability violates the basic precept that\nindividuals should be criminally accountable for their own conduct, not the conduct of others (State v. Akers,\n2010). Although accomplice liability appears to hold an accomplice responsible for principals\xe2\x80\x99 conduct, in reality\nthe accomplice is committing a criminal act supported by criminal intent and is punished accordingly. In addition,\nother statutes that appear to impose criminal liability vicariously are actually holding individuals responsible\nfor their own criminal conduct. Some examples are statutes holding parents criminally responsible when their\nchildren commit crimes that involve weapons belonging to the parents, and offenses criminalizing contributing\nto the delinquency of a minor. In both of these examples, the parents are held accountable for their conduct, such\nas allowing children to access their guns or be truant from school. The law is evolving in this area because the\nincidence of juveniles committing crimes is becoming increasingly prevalent.\n\nKey Takeaways\n\xe2\x80\xa2\n\nAccomplice liability holds an accomplice accountable when he or she is complicit with the principal;\nvicarious liability imposes criminal responsibility on a defendant because of a special relationship with the\ncriminal actor.\n\n\x0c238 Criminal Law\n\n\xe2\x80\xa2\n\nIn many jurisdictions, corporations are vicariously liable for crimes committed by employees or agents\nacting within the scope of employment. Individual criminal vicarious liability is frowned on, but the law in\nthis area is evolving as the incidence of juveniles committing crimes increases.\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nBrad, the president and CEO of ABC Corporation, recklessly hits and kills a pedestrian as he is driving\nhome from work. Could ABC Corporation be held vicariously liable for criminal homicide? Why or why\nnot?\n\n2.\n\nRead People v. Premier House, Inc., 662 N.Y.S 2d 1006 (1997). In Premier House, the defendant, a\nhousing cooperative that was incorporated, and members of the housing cooperative board of directors were\nordered to stand trial for violating a New York law requiring that window guards be installed on apartment\nbuildings. A child died after falling out of one of the windows. The members of the board of directors\nappealed on the basis that their positions were merely honorary, and they had no personal involvement in the\ncrime. Did the Criminal Court of the City of New York uphold the order as to the members of the board of\ndirectors? Why or why not? The case is available at this link: http://scholar.google.com/\nscholar_case?case=6854365622778516089&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\n3.\n\nRead Connecticut General Statute \xc2\xa7 53a-8(b), which criminalizes the sale or provision of a firearm to\nanother for the purpose of committing a crime. The statute is available at this link: http://law.justia.com/\nconnecticut/codes/2005/title53a/sec53a-8.html. Does this statute create accomplice liability or vicarious\nliability? Read the Connecticut Criminal Jury Instruction 3.1-4 for an explanation of the statute. The jury\ninstruction is available at this link: http://www.jud.ct.gov/ji/criminal/part3/3.1-4.htm.\n\nLaw and Ethics: Life Care Centers of America, Inc.\nIs a Corporation Criminally Accountable When Its Employees Are Not?\nRead Commonwealth v. Life Care Centers of America, Inc., 456 Mass. 826 (2010). The case is available at this link:\nhttp://scholar.google.com/scholar_case?case=12168070317136071651&hl=en&as_sdt=2&as_vis=1&oi=scholarr. In\nLife Care Centers, a resident of the Life Care Center nursing home died in 2004 from injuries sustained when she fell\ndown the front stairs while attempting to leave the facility in her wheelchair. The resident could try to leave the facility\nbecause she was not wearing a prescribed security bracelet that both set off an alarm and temporarily locked the front\ndoors if a resident approached within a certain distance of those doors. The defendant, Life Care Centers of America,\nInc., a corporation that operates the nursing home, was indicted for involuntary manslaughter and criminal neglect\n(Gillespie, G. G. & Scammon, K. S., 2011). The criminal intent element required for involuntary manslaughter and\ncriminal neglect in Massachusetts is reckless intent. The evidence indicated that the order requiring the victim to wear a\nsecurity bracelet was negligently edited out of the victim\xe2\x80\x99s treatment sheet, based on the actions of more than one\nemployee. The individual employee who left the victim near the stairs without the security bracelet relied on the orders\nthat did not indicate a need for the bracelet. There was no evidence that any individual employee of Life Care Centers of\nAmerica, Inc. was reckless. The prosecution introduced a theory of \xe2\x80\x9ccollective knowledge\xe2\x80\x9d of the actions or failure to\nact of the corporation\xe2\x80\x99s employees. The prosecution\xe2\x80\x99s premise was that the several individual instances of negligent\nconduct combined to create reckless conduct that could be imputed to the corporation vicariously. The Massachusetts\n\n\x0c7.2 Vicarious Liability 239\n\nSupreme Court unanimously held that the corporation could not be held criminally responsible unless one individual\nemployee could be held criminally responsible (Commonwealth v. Life Care Centers of America, Inc., 2011).\n1.\n\nDo you think it is ethical to allow a corporation to escape criminal responsibility for reckless involuntary\nmanslaughter and criminal neglect when several employees\xe2\x80\x99 negligent conduct caused the death, rather than\none employee\xe2\x80\x99s reckless conduct? Why or why not?\n\nCheck your answer using the answer key at the end of the chapter.\n\nReferences\nCommonwealth v. Life Care Centers of America, Inc., 456 Mass. 826 (2010), accessed January 24, 2011,\nhttp://scholar.google.com/\nscholar_case?case=12168070317136071651&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\nGillespie, G. G. & Kristen S. Scammon, \xe2\x80\x9cSJC Limits Corporate Criminal Liability,\xe2\x80\x9d Martindale.com website,\naccessed January 24, 2011, http://www.martindale.com/corporate-law/article_Mintz-Levin-Cohn-Ferris-GlovskyPopeo-PC_1047124.htm.\nNew York Central R. Co. v. U.S., 212 U.S. 481 (1909), accessed December 21, 2010, http://supreme.justia.com/\nus/212/481.\nState v. Akers, 400 A.2d 38 (1979), accessed December 26, 2010, http://scholar.google.com/\nscholar_case?case=12639244883487184852&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n720 ILCS \xc2\xa7 5/5-4, accessed December 26, 2010, http://law.onecle.com/illinois/720ilcs5/5-4.html.\n\n\x0c7.3 Accessory\n\nLearning Objectives\n1.\n\nDistinguish between accomplice liability and the crime of accessory.\n\n2.\n\nDefine the criminal act element required for an accessory.\n\n3.\n\nDefine the criminal intent element required for an accessory.\n\n4.\n\nCompare various approaches to grading the crime of accessory.\n\nAs stated in Section 7.1.1 \xe2\x80\x9cAccomplice Liability\xe2\x80\x9d, at early common law, a defendant who helped plan the offense\nbut was not present at the scene when the principal committed the crime was an accessory before the fact. A\ndefendant who helped the principal avoid detection after the principal committed the crime was an accessory\nafter the fact. In modern times, an accessory before the fact is an accomplice, and an accessory after the fact\nis an accessory, which is a separate and distinct offense. Some states still call the crime of accessory \xe2\x80\x9caccessory\nafter the fact\xe2\x80\x9d (Mass. Gen. Laws ch. 274, 2011) or \xe2\x80\x9chindering prosecution\xe2\x80\x9d (Haw. Rev. Stat., 2011).\nThe difference between an accomplice and an accessory is crucial. An accomplice is responsible for the offense\nthe principal commits. An accessory, on the other hand, is guilty of a separate crime that is almost always a\nmisdemeanor.\n\nAccessory Act\nThe criminal act element required for an accessory in the majority of jurisdictions is aiding or assisting a principal\nin escape, concealment, or evasion of arrest and prosecution or conviction after the principal commits a felony\n(Va. Code Ann., 2010). In most states, a defendant cannot be an accessory to a misdemeanor, although in some\nstates a defendant can be an accessory to a high-level or gross misdemeanor (N.R.S., 2010). In a minority of states,\nthe defendant can be an accessory to any crime (Haw. Rev. Stat., 2011).\nIn many states, words are enough to constitute the accessory criminal act element (Minn. Stat. Ann., 2010).\nOften special categories of individuals are exempted from liability as an accessory, typically family members by\nblood or marriage (Vt. Stat. Ann. tit. 13, 2010).\n\nExample of Accessory Act\nJim wakes up late at night to the sound of someone pounding on his door. He gets out of bed, walks down the\nstairs, and opens the door. His father James is on the doorstep. James\xe2\x80\x99s eyes are bloodshot and he is swaying\nslightly on his feet. He tells Jim that he just got into a car accident and needs to come inside before the police find\n240\n\n\x0c7.3 Accessory 241\n\nout about it and begin an investigation. Jim steps aside and lets his father enter the house. The smell of alcohol\non his father\xe2\x80\x99s breath is apparent. He thereafter allows his father to spend the night without contacting the police\nabout the accident.\nJim has probably committed the criminal act element required for an accessory in many jurisdictions. Jim\nallowed his father to escape arrest and evade an alcohol screening after leaving the scene of a car accident, which\nis most likely felony drunk driving and hit and run. He also sheltered his father for the night, concealing him\nfrom law enforcement. If Jim is in a state that exempts family members from accessory liability, he may not be\nsubject to prosecution because the principal to the crime(s) is his father. If Jim is not in a state that relieves family\nmembers from accessory liability, he could be fully prosecuted for and convicted of this offense.\nFigure 7.3 Crack the Code\n\n\x0c242 Criminal Law\n\nAccessory Intent\nThe criminal intent element required for an accessory has two parts. First, the defendant must act with general\nintent or knowingly or awareness that the principal committed a crime. Second, the defendant must help or\nassist the principal escape or evade arrest or prosecution for and conviction of the offense with specific intent or\npurposely (Mass. Gen. Laws ch. 274, 2010).\n\n\x0c7.3 Accessory 243\n\nExample of Accessory Intent\nReview the example with Jim and James given in Section 7 \xe2\x80\x9cExample of Accessory Act\xe2\x80\x9d. In this case, Jim is\naware that James committed a crime because James told Jim he got into an accident and James\xe2\x80\x99s intoxicated\ncondition was apparent. Nonetheless, Jim purposely helped James evade arrest and an alcohol screening by\nsheltering him in his home while the effects of the alcohol dissipated. Thus Jim probably has the criminal intent\nrequired for liability as an accessory in most jurisdictions. If Jim is not in a state that exempts family members\nfrom accessory liability, he could be fully subject to prosecution for and conviction of this offense.\n\nAccessory Grading\nAs stated in Section 7.3 \xe2\x80\x9cAccessory\xe2\x80\x9d, in many jurisdictions accessory is an offense that is graded less severely\nthan the crime committed by the principal. Accessory is typically graded as a misdemeanor (Haw. Rev. Stat.,\n2011), although in some jurisdictions it is graded as a felony (Idaho Code Ann., 2011).\nTable 7.1 Comparison of Accomplice, Accessory, and Vicarious Liability\n\nType of\nLiability\n\nCriminal Act\n\nAccomplice Aid, assist commission of a crime\n\nCriminal Intent\nSpecific or purposely, or general or knowingly,\ndepending on the jurisdiction\n\nAccessory\n\nAid, assist evasion of prosecution or conviction\nfor a felony, high-level misdemeanor, or any\ncrime\n\nGeneral or knowingly (crime committed) plus specific\nor purposely (principal evades prosecution or\nconviction)\n\nVicarious\n\nCommitted by an individual in a special\nrelationship with the defendant\n\nBelongs to an individual in a special relationship with\nthe defendant\n\nFigure 7.4 Diagram of Parties to Crime\n\n\x0c244 Criminal Law\n\nKey Takeaways\n\xe2\x80\xa2\n\nAccomplice liability holds a complicit defendant accountable for the crime the principal commits;\naccessory is a separate crime that is typically a misdemeanor.\n\n\xe2\x80\xa2\n\nThe criminal act element required for an accessory is aiding or assisting the principal escape or evade\narrest, prosecution for, or conviction of a felony, high-level misdemeanor, or any crime, depending on the\njurisdiction. In many jurisdictions words are enough to constitute the accessory criminal act element.\n\n\xe2\x80\xa2\n\nThe criminal intent element required for an accessory has two parts. The defendant must act\n\xe2\x97\xa6\n\xe2\x97\xa6\n\n\xe2\x80\xa2\n\nwith general intent or knowingly that the principal committed the crime,\nwith specific intent or purposely to help the principal escape or evade arrest, prosecution for,\nor conviction of the offense.\n\nIn many jurisdictions, the crime of accessory is graded lower than the crime the principal committed;\ntypically, it is graded as a misdemeanor, although in some jurisdictions, it is graded as a felony.\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nCory watches as her sister Amanda breaks into a parking meter across the street and starts scooping\nchange into her purse. Amanda thereafter runs into a nearby alley and hides behind a dumpster. A police\nofficer arrives on the scene and asks Cory if she witnessed the crime. Cory responds, \xe2\x80\x9cNo, I didn\xe2\x80\x99t notice\nanything.\xe2\x80\x9d The police officer does a search, does not find Amanda, and leaves. Has Cory committed a\n\n\x0c7.3 Accessory 245\n\ncrime? If your answer is yes, which crime has Cory committed, and does Cory have a possible defense?\n2.\n\nRead U.S. v. Hill, 268 F.3d 1140 (2001). In Hill, the defendant was convicted of harboring a fugitive and\nbeing an accessory when she helped her husband escape the country to avoid prosecution for a failure to pay\nchild support. The defendant claimed that her convictions were unconstitutional because they contravened\nher right to privacy, association, marriage, and due process. Did the US Court of Appeals for the Ninth\nCircuit uphold the defendant\xe2\x80\x99s convictions? The case is available at this link: http://caselaw.findlaw.com/\nus-9th-circuit/1215479.html.\n\n3.\n\nRead State v. Truesdell, 620 P.2d 427 (1980). In Truesdell, the prosecution appealed the dismissal of the\ndefendant\xe2\x80\x99s case that was a prosecution for accessory to her twelve-year-old son\xe2\x80\x99s felony shooting of her exhusband. The lower court held that the defendant could not be an accessory to a felony because her son was\nnot an adult who could be charged with a felony. Did the Oklahoma Court of Criminal Appeals reverse the\nlower court and permit the defendant to be tried as an accessory? Why or why not? The case is available at\nthis link: http://scholar.google.com/scholar_case?case=14038267185437754114&q=\nState+v.+Truesdell+620+P.2d+427+%281980%29&hl=en&as_sdt=2,5.\n\nReferences\nHaw. Rev. Stat. \xc2\xa7 710-1030, accessed January 26, 2011, http://law.justia.com/codes/hawaii/2009/volume-14/\ntitle-37/chapter-710/hrs-0710-1030-htm/.\nIdaho Code Ann. \xc2\xa7 18-206, accessed January 9, 2011, http://www.legislature.idaho.gov/idstat/Title18/\nT18CH2SECT18-206.htm.\nMass. Gen. Laws ch. 274 \xc2\xa7 4, accessed January 16, 2011, http://law.onecle.com/massachusetts/274/4.html.\nMinn. Stat. Ann. \xc2\xa7 609.495, accessed December 23, 2010, https://www.revisor.mn.gov/\nstatutes/?id=609.495&year=2010.\nN.R.S. \xc2\xa7 195.030, accessed December 26, 2010, http://law.onecle.com/nevada/crimes/195.030.html.\nVa. Code Ann. \xc2\xa7 18.2-19, accessed December 26, 2010, http://law.onecle.com/virginia/crimes-and-offensesgenerally/18.2-19.html.\nVt. Stat. Ann. tit. 13 \xc2\xa7 5, accessed December 23, 2010, http://www.leg.state.vt.us/statutes/\nfullchapter.cfm?Title=13&Chapter=001.\n\n\x0c7.4 End-of-Chapter Material\n\nSummary\nOften more than one criminal defendant participates in the commission of a crime. Defendants working together with\na common criminal purpose are acting with complicity and are responsible for the same crimes, to the same degree.\nAt early common law, there were four parties to a crime. A principal in the first degree actually committed the crime.\nA principal in the second degree was present at the crime scene and assisted in the crime\xe2\x80\x99s commission. An accessory\nbefore the fact was not present at the crime scene but helped prepare for the crime\xe2\x80\x99s commission. An accessory after the\nfact helped a party after he or she committed a crime by providing aid in escaping or avoiding arrest and prosecution or\nconviction. In modern times, there are only two parties to a crime: a principal, who is in the same category with his or\nher accomplice(s), and accessory(ies). Principals actually commit the crime, and they and their accomplices are\ncriminally responsible for it. Accessories play the same role as accessories after the fact at common law.\nThe criminal act element required to be an accomplice in most jurisdictions is assistance in the commission of a\ncrime. Words are enough to constitute the accomplice criminal act. Mere presence at the scene, even presence at the\nscene combined with flight after the crime\xe2\x80\x99s commission, is not enough to constitute the accomplice criminal act unless\nthere is a legal duty to act.\nThe criminal intent element required for accomplice liability in many jurisdictions is specific intent or purposely to\ncommit the crime at issue. In some states, general intent or knowingly that the principal will commit the crime creates\nan inference of intent if the offense is serious. In a minority of jurisdictions, general intent or knowingly that the\nprincipal will commit the crime is sufficient.\nThe natural and probable consequences doctrine holds accomplices criminally responsible for all crimes the principal\ncommits that are reasonably foreseeable. In many jurisdictions an accomplice can be prosecuted for a crime the\nprincipal commits even if the principal is not prosecuted or acquitted.\nVicarious liability transfers criminal responsibility from one party to another because of a special relationship.\nVicarious liability is common between employers and employees and is the basis for corporate criminal liability.\nPursuant to modern corporate criminal liability, a corporation can be fined for a crime(s) a corporate agent or employee\ncommits during the scope of employment. The corporate agent or employee also is criminally responsible for his or her\nconduct. In general, the law disfavors individual criminal vicarious liability. The law in this area is evolving as the\nincidence of juveniles committing crimes increases.\nIn modern times, an accessory is the equivalent of an accessory after the fact at common law. The criminal act\nelement required for an accessory is providing assistance to a principal in escape, avoiding detection, or arrest and\nprosecution, or conviction for the commission of a felony, high-level misdemeanor, or any crime, depending on the\njurisdiction. Words are enough to constitute the accessory criminal act. Several jurisdictions exempt family members\nfrom criminal responsibility for acting as an accessory.\nThe criminal intent element required for an accessory in most jurisdictions is general intent or knowingly that the\nprincipal committed a crime, and specific intent or purposely that the principal escape, avoid detection, or arrest and\nprosecution, or conviction for the offense. Accessory is a separate crime that is usually graded as a misdemeanor,\nalthough some jurisdictions grade accessory as a felony.\n\n246\n\n\x0c7.4 End-of-Chapter Material 247\n\nYou Be the Law Professor\nYou are a law professor searching for cases to illustrate certain legal concepts for your students. Read the prompt,\nreview the case, and then decide which legal concept it represents. Check your answers using the answer key at the end\nof the chapter.\n1.\n\nThe defendant\xe2\x80\x99s vehicle matched the description of a vehicle seen in the vicinity of a burglary before the\nburglary, during the burglary, and after the burglary. The defendant claimed that the evidence was\ninsufficient to prove he was an accomplice to the burglary. Does this case illustrate the legal concept of\naccomplice act, accomplice intent, or both? Read Collins v. State, 438 So. 2d 1036 (1983). The case is\navailable at this link: http://scholar.google.com/\nscholar_case?case=8573128029213310764&hl=en&as_sdt=2,5&as_vis=1.\n\n2.\n\nThe defendants, foster parents, were found guilty as accomplices to the felony murder of their two-yearold foster daughter. Although both defendants testified that the victim died from injuries experienced after a\nfall from a swing, medical experts reported that the victim\xe2\x80\x99s injuries were inconsistent with that testimony\nand appeared to be the result of child abuse. The jury convicted the defendants as accomplices to felony\nmurder after a jury instruction stating that an omission to act could constitute the criminal act element for\naccomplice liability when there is a duty to act, and parents have a legal duty to come to the aid of their\nchildren. Does this case illustrate the legal concept of omission to act, statutory interpretation, or both?\nRead State v. Jackson, 137 Wn. 2d 712 (1999). The case is available at this link: http://caselaw.findlaw.com/\nwa-supreme-court/1412039.html.\n\n3.\n\nThe defendant, an electrical contracting company, was found guilty of violating OSHA regulations that\nled to an employee\xe2\x80\x99s death. The victim, an apprentice in training, touched a live electrical wire and died\nfrom electrocution. The OSHA statute in question required \xe2\x80\x9cwillful\xe2\x80\x9d conduct on behalf of the company. The\njury instruction on willful stated that a company acted willfully or knowingly if individual employees of that\ncompany acted knowingly. The evidence indicated that some employees knew or were aware of live wiring\nin the vicinity of the accident. The defendant appealed and claimed that the jury instruction should have\nstated that a company acted willfully or knowingly if individual employees acted knowingly and had a duty\nto report that knowledge to the company. Does this case illustrate the legal concept of criminal intent,\nvicarious liability, or both? Read U.S. v. L.E. Meyers Co., 562 F.3d 845 (2009). The case is available at this\nlink: http://scholar.google.com/\nscholar_case?case=2854285863509787279&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\n4.\n\nThe defendant was convicted of both first-degree murder and accessory after the fact to that murder. The\ntrial court did not instruct the jury that the offenses were mutually exclusive and that they could only convict\nthe defendant of one or the other. The defendant appealed on the basis that he was entitled to a jury\ninstruction that prevented a conviction on both murder and accessory after the fact to murder. Does this case\nillustrate the legal concept of the criminal elements required for accessory after the fact, the criminal\nelements required for murder, or both? Read State v. Melvin, No. 382PA09 (North Carolina 2010). The\ncase is available at this link: http://caselaw.findlaw.com/nc-supreme-court/1549865.html.\n\nCases of Interest\n\xe2\x80\xa2\n\nState v. Merida-Medina, 191 P.3d 708 (2008), discusses accomplice liability: http://scholar.google.com/\nscholar_case?case=9533921177591527482&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\n\xe2\x80\xa2\n\nState v. Guminga, 395 N.W.2d 344 (1986), discusses vicarious liability and due process:\nhttp://scholar.google.com/\nscholar_case?case=9718401866480992202&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\n\x0c248 Criminal Law\n\n\xe2\x80\xa2\n\nStaten v. State, 519 So. 2d 622 (1988), discusses principal and accessory criminal responsibility:\nhttp://scholar.google.com/\nscholar_case?case=5691885691013540689&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\nArticles of Interest\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\nSpectator liability in gang rape: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1664162\nCorporate criminal liability: http://www.pointoflaw.com/feature/archives/2009/07/corporate-criminal\n-liability-s.php\nCriminal vicarious liability in general: http://www.lectlaw.com/mjl/cl048.htm\n\nWebsite of Interest\n\xe2\x80\xa2\n\nWhite collar crime blog site: http://lawprofessors.typepad.com/whitecollarcrime_blog/2009/12/recentarticles.html\n\nStatistics of Interest\n\xe2\x80\xa2\n\nFBI statistics on pending corporate and securities fraud cases: http://www.fbi.gov/stats-services/\npublications/financial-crimes-report-2009/financial-crimes-report-2009#corporate\n\nAnswers to Exercises\nFrom Section 7.1 \xe2\x80\x9cParties to Crime\xe2\x80\x9d\n1.\n\nPenelope could be charged with and convicted of robbery as an accomplice in many jurisdictions.\nPenelope assisted Justin by telling him what time the security guard took his break. Although Penelope was\nnot present at the scene, if the trier of fact determines that Penelope had the proper criminal intent required\nfor accomplice liability (specific intent or purposely or general intent or knowingly, depending on the\njurisdiction) then Penelope can be held accountable for this crime. Note that Penelope assisted Justin with\nwords and that words are enough to constitute the criminal act element required for accomplice liability.\n\n2.\n\nThe Supreme Court of Minnesota reversed the defendant\xe2\x80\x99s murder conviction, holding that the Minnesota\nAccomplice Liability Statute required more than passive acquiescence as a criminal act element. The court\nheld that evidence of conduct occurring after the crime could raise an inference of participation before or\nduring the crime\xe2\x80\x99s commission, but in this case, the evidence was insufficient to uphold the verdict.\n\n3.\n\nThe Court of Criminal Appeals of Texas upheld the defendant\xe2\x80\x99s conviction because the video of the\n\n\x0c7.4 End-of-Chapter Material 249\n\ndefendant\xe2\x80\x99s confession corroborated the accomplice\xe2\x80\x99s testimony. The court specifically held that\ncorroborating evidence does not have to be enough to prove beyond a reasonable doubt that the defendant\ncommitted the crime; it only has to \xe2\x80\x9ctend to connect him to the offense\xe2\x80\x9d (Joubert v. State, 2011).\n\nAnswers to Exercises\nFrom Section 7.2 \xe2\x80\x9cVicarious Liability\xe2\x80\x9d\n1.\n\nABC Corporation probably is not vicariously liable for criminal homicide because Brad\xe2\x80\x99s reckless\nconduct did not occur during the scope of employment; the criminal homicide occurred as Brad was driving\nhome. However, if Brad were required to work while driving home (by making work-related phone calls, for\nexample), vicarious liability could be present in this instance.\n\n2.\n\nThe Criminal Court of the City of New York upheld the order to stand trial, holding that the prosecution\nwas within its rights to charge the members of the board of directors under the statute. The court stated that\nwhether the board of directors could be held vicariously liable was a question of fact to be determined by the\njudge or jury at trial.\n\n3.\n\nThe jury instruction explains that the statute criminalizes vicarious liability, not accomplice liability.\nThe defendant could also be charged as a principal or accessory under section (a) of the statute.\n\nAnswers to Exercises\nFrom Section 7.3 \xe2\x80\x9cAccessory\xe2\x80\x9d\n1.\n\nCory has probably committed the crime of accessory in most jurisdictions. Cory\xe2\x80\x99s response to the police\nofficer\xe2\x80\x99s question was false, and it appears to be made with the intent to help Amanda escape detection.\nNote that Cory renders assistance using words, but words are enough to constitute the criminal act element\nrequired for accessory. Cory is not an accomplice to Amanda\xe2\x80\x99s crime because she did not act to assist\nAmanda with the parking meter destruction and theft; she only acted after the crime was committed. Her\nfailure to report the crime is probably not an \xe2\x80\x9comission to act\xe2\x80\x9d because it is extremely unlikely that a statute\nexists requiring individuals to report theft committed in their presence, creating a legal duty to act. A\npotential defense to accessory would be the family relationship, which creates an exemption to accessory in\nsome jurisdictions.\n\n2.\n\nThe US Court of Appeals for the Ninth Circuit upheld the defendant\xe2\x80\x99s conviction for harboring a fugitive\nbecause the statute at issue was justified by the compelling government interest in apprehending deadbeat\nparents. The court reversed the accessory conviction on separate grounds (an improperly drafted\nindictment).\n\n3.\n\nThe Oklahoma Court of Criminal Appeals reversed the lower court and allowed the defendant to be\nprosecuted for accessory. The court held that it is not necessary for the principal to be charged with or\nconvicted of a felony to prosecute another for accessory to that felony, so the child\xe2\x80\x99s age or prosecutability is\nirrelevant.\n\n\x0c250 Criminal Law\n\nAnswer to Law and Ethics Question\n1.\n\nInsisting that at least one individual employee of the corporation commit a crime with the requisite intent\nbefore imposing vicarious liability upon the corporation is ethical, and it promotes justice. Aggregating\nintent could have far-reaching consequences outside the arena of vicarious corporate liability. For example,\nit could create unfair and overly harsh sentencing if extended to accomplice liability. When accomplices\nwork together, at least one accomplice must possess the intent for the crime to hold other accomplices\nresponsible. Imagine the possibilities if the accomplices\xe2\x80\x99 intent could be aggregated and raised to a more\nsinister level. Accomplices working together to commit a misdemeanor could be prosecuted for a serious\nand unforeseeable felony if their intents could be combined and elevated. Vicarious corporate liability is\nalready a legal fiction because it transfers criminal responsibility for conduct from an individual to a\nbusiness entity. This transfer of liability punishes the owners of the corporation for crimes they did not\ncommit. If prosecutors could stretch the fiction further by combining the intents of various corporate\nemployees and elevating them, this would not comport with notions of fairness.\n\nAnswers to You Be the Law Professor\n1.\n\nIn this case, the District Court of Appeal of Florida held that the evidence was insufficient to support\neither the criminal act element or the criminal intent element required to be an accomplice. First, the court\nheld that the identification of the vehicle proved \xe2\x80\x9cmere presence at the scene,\xe2\x80\x9d which is not sufficient to\nconstitute the accomplice criminal act. The court thereafter held that an inference of intent to commit\nburglary was inappropriate when the prosecution did not prove the criminal act that was the basis of the\ninference. Thus you can use this case to illustrate the legal concepts of accomplice criminal act and intent.\n\n2.\n\nIn this case, the Supreme Court of Washington reviewed the accomplice liability statute and noted that it\ndid not include omission to act. The statute was predicated on the Model Penal Code \xc2\xa7 2.06(3)(a)(iii), which\nexpressly includes omission to act as sufficient for accomplice liability when there is a legal duty to act, so\nthe court held that the Washington State Legislature\xe2\x80\x99s rejection of omission to act in the accomplice liability\nstatute was deliberate. The court reversed the felony murder convictions because the jury instruction did not\ncomport with the statute (RCW 9A.08.020 (3)) as they interpreted it. The court also expressly stated that in\nWashington, omission to act cannot create accomplice liability. Thus you can use this case to illustrate the\nlegal concepts of statutory interpretation and omission to act.\n\n3.\n\nThe US Court of Appeals for the Seventh Circuit held that the jury instruction should include the\nindividual employee\xe2\x80\x99s duty to report knowledge or awareness of dangerous conditions when defining\n\xe2\x80\x9cwillful\xe2\x80\x9d conduct under the OSHA statute. The court held that an individual employee\xe2\x80\x99s knowledge or\nawareness could not be imputed to the company unless the individual employee had a duty to report that\nknowledge. The court\xe2\x80\x99s holding focused on when a court should impute criminal intent to an employer or\ncompany and the definition of criminal intent under the statute. Thus you can use this case to illustrate the\nlegal concepts of vicarious liability and criminal intent.\n\n4.\n\nThe North Carolina Supreme Court discussed the elements of first-degree murder, aiding and abetting\nfirst-degree murder, and accessory after the fact to murder. The court reached the conclusion that firstdegree murder and accessory after the fact to that murder are mutually exclusive, based on the criminal\nelements required for each offense. Thus you can use this case to illustrate the legal concepts of the\nelements of first-degree murder and the elements of accessory after the fact.\n\n\x0c7.4 End-of-Chapter Material 251\n\nReferences\nJoubert v. State, 235 SW3d 729, 731 (2007), accessed January 22, 2011, http://scholar.google.com/\nscholar_case?case=10119211983865864217&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\n\x0cChapter 8: Inchoate Offenses\n\nChris-H\xc3\xa5vard Berge \xe2\x80\x93 Shaking hands \xe2\x80\x93 CC BY-NC 2.0.\n\nAnd so long as the partnership in crime continues, the partners act for each other in carrying it forward.\n\xe2\x80\x94Pinkerton v. U.S., cited in Section 8.2.4 \xe2\x80\x9cConsequences of Conspiracy\xe2\x80\x9d\n\n252\n\n\x0c8.1 Attempt\n\nLearning Objectives\n1.\n\nDefine an inchoate crime.\n\n2.\n\nDistinguish between general and specific attempt statutes.\n\n3.\n\nIdentify and describe the four tests jurisdictions use to ascertain the criminal act element required for\nattempt.\n\n4.\n\nDefine preparatory crimes.\n\n5.\n\nDefine the criminal intent element required for attempt.\n\n6.\n\nIdentify two potential defenses to attempt.\n\n7.\n\nDistinguish between factual and legal impossibility.\n\n8.\n\nDefine voluntary abandonment.\n\n9.\n\nDescribe merger and explain the way it affects attempt crimes.\n\n10.\n\nAnalyze the relationship between transferred intent and attempt.\n\n11.\n\nDistinguish between the grading of attempt and the completed crime.\n\nAttempt, conspiracy, and solicitation are considered inchoate crimes. Inchoate means \xe2\x80\x9cjust begun, incipient, in\nthe early stages\xe2\x80\x9d (Yourdictionary.com, 2010). Inchoate crimes can be left unfinished, or incomplete. Although\nattempt never results in the finished criminal offense, both conspiracy and solicitation could give rise to separate\ncompleted crimes.\nThe rationale supporting punishment for an inchoate crime is prevention and deterrence. If a defendant could\nnot be apprehended until a crime is finished, law enforcement would not be able to intervene and avert injury to\nvictim(s) or property. In addition, a defendant who is unable to complete a crime would try again and again, free\nfrom any criminal consequences.\nThe difficulty in holding a defendant accountable for an inchoate or incomplete crime is ascertaining the level\nof progress necessary to impute criminal responsibility, which is especially daunting with attempt, because in\nevery instance the crime is left unfinished, as is discussed in Section 8.1 \xe2\x80\x9cAttempt\xe2\x80\x9d.\n\nSynopsis of the History of Attempt\nAt early English common law, attempt was not a crime (Schulhofer, S. J. and Kahan, D. M., 2010). Gradually, the\nlaw evolved, and a defendant who committed attempt resulting in severe harm was punished for a minor crime,\ntypically a misdemeanor. One of the first documented cases of attempt was Rex v. Scofield, Cald. 397 (1784)\n(Schulhofer, S. J. and Kahan, D. M., 2010). In Scofield, a servant was convicted of a misdemeanor for attempting\nto burn down his master\xe2\x80\x99s house with a lighted candle. A subsequent case, Rex v. Higgins, 102 Eng. Rep. 269\n253\n\n\x0c254 Criminal Law\n\n(K.B. 1801), upheld an indictment for attempted theft and firmly established the crime of attempt in English\njurisprudence. In modern times, most states criminalize attempt, the majority in statutes, except in some states that\npermit common-law crimes. However, even in statutes, the word \xe2\x80\x9cattempt\xe2\x80\x9d is often left undefined, forcing courts\nto derive the meaning from common-law principles.\n\nAttempt Statutes\nIn general, there are two types of attempt statutes. Some states have general attempt statutes that set forth attempt\nelements and apply them to any criminal offense (Tex. Penal Code, 2010). Other states and the federal government\nhave specific attempt statutes that define attempt according to specified crimes, such as murder, robbery, or rape\n(18 U.S.C., 2011). Keep in mind that several states do not criminalize attempt in a statute and consider it a\ncommon-law crime (Grill v. State, 2010).\n\nAttempt Act\nThe criminal act element required for attempt varies, depending on the jurisdiction. As Chapter 4 \xe2\x80\x9cThe Elements\nof a Crime\xe2\x80\x9d stated, thoughts are not criminal acts. Thus a defendant does not commit attempt by plotting or\nplanning an offense. An extension of this rule dictates that mere preparation is not enough to constitute the attempt\ncriminal act element (People v. Luna, 2010). However, the crux of any attempt case is how close to completing\nthe offense the defendant must get to fulfill the attempt criminal act requirement. In many statutes and cases, the\nattempt act is loosely defined to allow the trier of fact the flexibility needed to separate true criminal attempt from\nnoncriminal preparation.\nJurisdictions use four tests to ascertain whether the defendant has committed the attempt criminal act:\nproximity test, res ipsa loquitur test, probable desistance test, and the Model Penal Code\xe2\x80\x99s substantial steps\ntest.\n\nProximity Test\nThe proximity test measures the defendant\xe2\x80\x99s progress by examining how close the defendant is to completing the\noffense. The distance measured is the distance between preparation for the offense and successful termination. It\nis the amount left to be done, not what has already been done, that is analyzed (Commonwealth v. Hamel, 2010).\nIn some jurisdictions, if the defendant\xe2\x80\x99s criminal intent is clear, the defendant does not need to come as close to\ncompletion of the offense (People v. Dillon, 2010). Generally, the defendant does not have to reach the last step\nbefore completion (People v. Dillon, 2010), although many defendants do.\n\nExample of the Proximity Test\nMelissa and Matthew decide they want to poison their neighbor\xe2\x80\x99s dog because it barks loudly and consistently\n\n\x0c8.1 Attempt 255\n\nevery night. Melissa buys some rat poison at the local hardware store. Matthew coats a raw filet mignon with\nthe poison and throws it over the fence into the neighbor\xe2\x80\x99s yard. Fortuitously, the neighbors are on an overnight\ncamping trip, and the dog is with them. The next day, after a night of silence, Melissa feels regret and climbs\nover the fence to see what happened to the dog. When she sees the filet untouched on the ground, she picks it\nup and takes it back over the fence, later disposing of it in the trash. If Melissa and Matthew are in a jurisdiction\nthat follows the proximity test, Melissa and Matthew have probably committed the criminal act element required\nfor attempt. Melissa and Matthew finished every act necessary to commit the crime of destruction of property or\nanimal cruelty (poisoning the dog). The only reason the crime was not successfully consummated was the absence\nof the dog, which is a circumstance outside their control. Thus Melissa and Matthew could most likely be charged\nwith and convicted of this offense. If Melissa bought the rat poison but thereafter changed her mind and talked\nMatthew out of poisoning the dog, her actions would be a preparation, not a positive step toward commission of\nthe crime. If Matthew coated the filet with poison but then changed his mind and threw the filet away, he would\nstill be \xe2\x80\x9ctoo far\xe2\x80\x9d away from completing the offense. However, once the filet is thrown over the fence, the crime is\nproximate to completion; the only step left is the victim\xe2\x80\x99s (dog\xe2\x80\x99s) participation.\n\nRes Ipsa Loquitur Test\nRes ipsa loquitur means \xe2\x80\x9cthe thing speaks for itself\xe2\x80\x9d (USLegal.com, 2010). The res ipsa loquitur test, also called\nthe unequivocality test, analyzes the facts of each case independently. Under res ipsa loquitur or unequivocality,\nthe trier of fact must determine that at the moment the defendant stopped progressing toward completion of the\noffense, it was clear that the defendant had no other purpose than commission of the specific crime at issue.\nThis determination is based on the defendant\xe2\x80\x99s act\xe2\x80\x94which manifests the intent to commit the crime (Hamiel v.\nWisconsin, 2010).\n\nExample of the Res Ipsa Loquitur Test\nHarry wants to kill his wife Ethel for the proceeds of her life insurance policy. Harry contacts his friend Joe, who\nis reputed to be a \xe2\x80\x9chit man,\xe2\x80\x9d and sets up a meeting for the next day. Harry meets with Joe and asks him if he will\nmurder Ethel for one thousand dollars. Joe agrees, and Harry pulls out a wad of cash and pays him. Unfortunately\nfor Harry, Joe is a law enforcement decoy. If the state in which Harry paid Joe recognizes the res ipsa loquitur\nor unequivocality test, Harry has most likely committed attempted murder (along with solicitation to commit\nmurder, which is discussed shortly). Harry\xe2\x80\x99s actions in contacting and thereafter hiring and paying Joe to kill Ethel\nindicate that he has no other purpose than the commission of Ethel\xe2\x80\x99s murder. Hiring and paying a hit man is more\nthan just preparation. Note that evidence of Ethel\xe2\x80\x99s life insurance policy is not needed to prove the attempt act.\nHarry\xe2\x80\x99s conduct \xe2\x80\x9cspeaks for itself,\xe2\x80\x9d which is the essence of res ipsa loquitur or unequivocality.\n\nProbable Desistance Test\nThe probable desistance test examines how far the defendant has progressed toward commission of the crime,\n\n\x0c256 Criminal Law\n\nrather than analyzing how much the defendant has left to accomplish. Pursuant to this test, a defendant commits\nattempt when he or she has crossed a line beyond which it is probable he or she will not desist unless there is\nan interruption from some outside source, law enforcement, or circumstances beyond his or her control (U.S. v.\nMandujano, 2010).\n\nExample of the Probable Desistance Test\nJudy, who works at Zales jewelry store, tells her Facebook friends that she is going to steal a diamond necklace\nout of the safe that evening. Judy drives to Zales at eleven o\xe2\x80\x99clock after the store has closed. She enters the\nbuilding using her key and quickly disables the store alarm. She then turns off the store security camera. As she\ncrouches down by the safe and begins to enter the combination, all the lights go on and she blinks, startled by\nthe sight of several police officers pointing their guns at her. If the state in which Judy lives follows the probable\ndesistance test, Judy has most likely committed attempted larceny, along with burglary. Judy informed others of\nher plan, drove to the crime scene, entered the building unlawfully, disabled the store alarm, and turned off the\nstore security camera. This series of actions indicate that Judy crossed a point of no return. It is unlikely that Judy\nwould have desisted without the law enforcement interruption, which fulfills the attempt act requirement pursuant\nto the probable desistance test.\n\nModel Penal Code Substantial Steps Test\nThe Model Penal Code developed the substantial steps test in response to the large variance between different\njurisdictions in evaluating the criminal act element required for attempt. The substantial steps test is intended\nto clarify and simplify the attempt act analysis, to prevent arbitrary application. It is also a test that is more\nlikely to result in a conviction because it classifies as \xe2\x80\x9csubstantial\xe2\x80\x9d those acts the other tests might consider only\n\xe2\x80\x9cpreparatory\xe2\x80\x9d (People v. Dillon, 2011).\nThe substantial steps test has two parts. First, the defendant must take substantial steps toward completion\nof the crime. As the Model Penal Code states, \xe2\x80\x9c[a] person is guilty of an attempt to commit a crime\nif\xe2\x80\xa6he\xe2\x80\xa6does\xe2\x80\xa6anything which\xe2\x80\xa6is an act or omission constituting a substantial step in a course of conduct\nplanned to culminate in his commission of the crime\xe2\x80\x9d (Model Penal Code \xc2\xa7 5.01(1)(c)). Second, the defendant\xe2\x80\x99s\nactions must be \xe2\x80\x9cstrongly corroborative of the actor\xe2\x80\x99s criminal purpose\xe2\x80\x9d (Model Penal Code \xc2\xa7 5.01(2)). To further\nelucidate the test, the Model Penal Code provides seven examples of actions that constitute substantial steps, as\nlong as they are corroborative of the defendant\xe2\x80\x99s intent. The seven examples are lying in wait; enticing the victim\nto go to the scene of the crime; investigating the potential scene of the crime; unlawfully entering a structure or\nvehicle where the crime is to be committed; possessing materials that are specially designed for unlawful use;\npossessing, collecting, or fabricating materials to be used in the crime\xe2\x80\x99s commission; and soliciting an innocent\nagent to commit the crime (Model Penal Code \xc2\xa7 5.01(2)).\n\n\x0c8.1 Attempt 257\n\nExample of the Substantial Steps Test\nKevin wants to rob an armored car that delivers cash to the local bank. After casing the bank for two months and\ndetermining the date and time that the car makes its delivery, Kevin devises a plan that he types on his computer.\nOn the date of the next delivery, Kevin hides a weapon in his jacket pocket and makes his way on foot to the bank.\nThereafter, he hides in an alley and waits for the truck to arrive. When the truck drives up and parks in front of\nthe bank, Kevin walks over to the driver\xe2\x80\x99s door and reaches for his weapon. He is immediately apprehended by a\nsecurity guard who saw him emerge from the alley. If Kevin is in a substantial steps jurisdiction, he has probably\ncommitted the criminal act element required for attempt. Kevin cased the bank, planned the robbery, showed up\non the appointed date and time with a concealed weapon, and hid in an alley to wait for the truck to appear. These\nactions are (1) investigating the potential scene of the crime, (2) possessing materials to be used in the crime\xe2\x80\x99s\ncommission, and (3) lying in wait. Thus Kevin has completed three substantial steps that corroborate his intent as\nexpressed in the plan he typed, which is most likely sufficient to constitute the attempt criminal act element under\nthe Model Penal Code.\nFigure 8.1 Various Tests for Attempt Act\n\nFigure 8.2 Crack the Code\n\n\x0c258 Criminal Law\n\nPreparatory Crimes\nSome states have statutes criminalizing behavior that would be considered preparatory under any of the four\nattempt act tests. For example, some statutes prohibit the mere possession of burglar\xe2\x80\x99s tools (N.Y. Penal Law,\n2010) or even the manufacture of burglar\xe2\x80\x99s tools (Conn. Gen. Stat., 2010). A defendant could be convicted of a\npreparatory crime and attempt if the criminal act element for both is present under the circumstances.\n\nExample of a Preparatory Crime and Attempt\nHal manufactures a lock pick and takes it to the local coin shop, which is closed. Hal takes the lock pick out and\nbegins to insert it into the coin shop doorknob. A security guard apprehends Hal before he is able to pick the lock.\n\n\x0c8.1 Attempt 259\n\nIf Hal is in a jurisdiction that prohibits the manufacture of burglar\xe2\x80\x99s tools, he probably could be charged with and\nconvicted of manufacture of burglar\xe2\x80\x99s tools and attempted burglary because he has committed the criminal act\nelement required for both of these offenses.\n\nAttempt Intent\nThe criminal intent element required for attempt in the majority of jurisdictions is the specific intent or purposely\nto commit the crime at issue (N.Y. Penal Law, 2010). Generally, no such thing exists as reckless or negligent\nattempt. Thus if the prosecution fails to prove beyond a reasonable doubt that the defendant acted purposefully\nwith intent to commit the crime attempted, this could operate as a failure of proof defense.\n\nExample of a Case Lacking Attempt Intent\nEric is hiking in a jurisdiction that criminalizes reckless burning. Eric pauses in front of a sign that states \xe2\x80\x9cFire\nDanger Today: High.\xe2\x80\x9d Eric reads the sign, pulls out a cigarette, lights it, and throws the lit match into some dry\nbrush near the sign. He starts hiking and when he finishes his cigarette, he tosses the lit cigarette butt into some\narid grass. Neither the brush nor the grass burns. Eric probably does not have the requisite criminal intent for\nattempted reckless burning. Attempt requires purposeful conduct. Eric\xe2\x80\x99s conduct is reckless because he is aware\nof a risk and disregards it. If Eric takes the match or lit cigarette and tries to ignite a fire with them, it is likely\nthat he has the appropriate criminal intent for attempted arson. However, in this case Eric\xe2\x80\x99s actions demonstrate\ncareless behavior that probably is not sufficient for the crime of attempt.\n\nDefenses to Attempt\nAlong with failure of proof defenses to the criminal act and criminal intent elements, legal impossibility and\nvoluntary abandonment can also function as affirmative defenses to attempt in many jurisdictions.\n\nImpossibility as a Defense to Attempt\nTwo types of impossibility defenses exist: legal impossibility, which can function as a defense to attempt, and\nfactual impossibility, which generally cannot. Legal impossibility means that the defendant believes what he or\nshe is attempting to do is illegal, when it is not. Factual impossibility means that the defendant could not complete\nthe crime attempted because the facts are not as he or she believes them to be. The Model Penal Code disallows\nfactual impossibility as a defense by stating that conduct is an attempt when the defendant \xe2\x80\x9cpurposely engages in\nconduct which would constitute the crime if the attendant circumstances were as he believes them to be\xe2\x80\x9d (Model\nPenal Code \xc2\xa7 5.01(1) (a)).\n\n\x0c260 Criminal Law\n\nExample of Legal Impossibility\nReview the example given in Section 8 \xe2\x80\x9cRes Ipsa Loquitur Test\xe2\x80\x9d with Melissa and Matthew and the attempted\npoisoning of the neighbor\xe2\x80\x99s dog. Assume that Melissa is eighteen. Melissa believes that an individual must be\ntwenty-one to purchase rat poison because that is the law in the state where she lived five years ago. Actually,\nthe state in which Melissa currently resides allows the purchase of rat poison by those who are eighteen or older.\nThe first store Melissa enters asks for identification when she tries to pay for the rat poison, so Melissa makes\nan excuse and leaves. The second store Melissa enters does not ask for identification, and she successfully makes\nthe rat poison purchase. Melissa has probably not attempted to purchase rat poison illegally in the first store she\nentered. Melissa\xe2\x80\x99s act in attempting to purchase the rat poison is legal under the circumstances. Thus her mistaken\nbelief that she is attempting to commit a crime does not transform this legal act into an illegal one.\n\nExample of Factual Impossibility\nRecall from the example given in Section 8 \xe2\x80\x9cRes Ipsa Loquitur Test\xe2\x80\x9d that Matthew threw a filet coated with rat\npoison over the fence into the neighbor\xe2\x80\x99s yard with the intent to poison the neighbor\xe2\x80\x99s dog. Both Melissa and\nMatthew are under the mistaken belief that the dog is present and will eat the filet. However, the dog is on an\novernight camping trip with its owners. This mistake of fact probably will not excuse Melissa and Matthew\xe2\x80\x99s\nattempt. Melissa and Matthew purposely engaged in conduct that would result in the poisoning of the dog if the\nfacts were as Melissa and Matthew believed them to be. Thus Melissa and Matthew have most likely committed\nattempted destruction of property or animal cruelty regardless of the fact that their plan could not succeed under\nthe circumstances.\n\nVoluntary Abandonment as a Defense to Attempt\nMany jurisdictions allow a defendant who voluntarily abandons the planned offense to use this abandonment\nas an affirmative defense to attempt (Fla. Stat. Ann., 2010). The defense has two parts. First, the defendant must\nhave a change of heart that is not motivated by an increased possibility of detection, or a change in circumstances\nthat make the crime\xe2\x80\x99s commission more difficult. As the Model Penal Code states, \xe2\x80\x9cit is an affirmative defense\nthat he abandoned his effort to commit the crime\xe2\x80\xa6under circumstances manifesting a complete and voluntary\nrenunciation of his criminal purpose\xe2\x80\xa6[R]enunciation of criminal purpose is not voluntary if it is motivated\xe2\x80\xa6by\ncircumstances\xe2\x80\xa6which increase the probability of detection\xe2\x80\xa6or which make more difficult the accomplishment\nof the criminal purpose\xe2\x80\x9d (Model Penal Code \xc2\xa7 5.01(4)). Second, the abandonment must be complete and cannot\nsimply be a postponement. Under the Model Penal Code, \xe2\x80\x9c[r]enunciation is not complete if it is motivated\nby a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal\neffort to another but similar\xe2\x80\xa6victim\xe2\x80\x9d (Model Penal Code \xc2\xa7 5.01(4)). The voluntary abandonment defense gives\ndefendants incentive to stop progressing toward consummation of the offense and prevents the crime from\noccurring without the need for law enforcement intervention.\n\n\x0c8.1 Attempt 261\n\nExample of Voluntary Abandonment as a Defense to Attempt\nReview the example with Melissa and Matthew in Section 8 \xe2\x80\x9cRes Ipsa Loquitur Test\xe2\x80\x9d. If Melissa changes\nher mind after purchasing the rat poison and talks Matthew out of poisoning the neighbor\xe2\x80\x99s dog, Melissa has\nvoluntarily abandoned the crime and cannot be charged with attempt. If Matthew changes his mind after coating\nthe filet with rat poison and throws the filet away, Matthew has voluntarily abandoned the crime and cannot be\ncharged with attempt. Note that both Melissa\xe2\x80\x99s and Matthew\xe2\x80\x99s actions are in the very early stages of the crime of\ndestruction of property or animal cruelty and probably will be considered preparatory, rather than constituting the\ncriminal act element required for attempt. When Melissa climbs over the fence, picks up the filet, and takes it back\nto her house for disposal, it is most likely too late to voluntarily abandon the crime. At this point, the crime of\nattempt has already been committed, and neither voluntary abandonment nor factual impossibility can function\nas defenses.\n\nMerger\nAttempt merges into the crime if the crime is completed in many jurisdictions, which means that the defendant\ncannot be charged with attempt and the completed crime (Ga. Code tit. 16, 2011).\n\nExample of Merger\nReview the example with Melissa and Matthew in Section 8 \xe2\x80\x9cRes Ipsa Loquitur Test\xe2\x80\x9d. Change the facts, and\nassume that the neighbor\xe2\x80\x99s dog eats the poisoned filet and dies. Melissa and Matthew probably cannot be charged\nwith attempted destruction of property or animal cruelty and destruction of property or animal cruelty in many\njurisdictions. Once the crime is complete, the attempt crime merges into the consummated offense, and Melissa\nand Matthew may be charged only with destruction of property or animal cruelty.\nFigure 8.3 Defenses to Attempt\nImpossibility\nVoluntary Abandonment\nMerger\n\nAttempt and Transferred Intent\nRecall from Chapter 4 \xe2\x80\x9cThe Elements of a Crime\xe2\x80\x9d that a defendant\xe2\x80\x99s criminal intent can transfer from the\nintended victim to the actual victim in some jurisdictions. If the intent is transferred, the defendant may be\ncriminally responsible for the consummated offense against the eventual victim and for attempt against the\nintended victim.\n\n\x0c262 Criminal Law\n\nExample of Attempt and Transferred Intent\nReview the example with Melissa and Matthew in Section 8 \xe2\x80\x9cRes Ipsa Loquitur Test\xe2\x80\x9d. Change the facts, and\nassume that the neighbor\xe2\x80\x99s cat licks the poison off the filet and thereafter dies. If Melissa and Matthew are in a\njurisdiction that recognizes transferred intent, they may be charged with attempted destruction of property or\nanimal cruelty for trying to poison the neighbor\xe2\x80\x99s dog and destruction of property or animal cruelty for actually\npoisoning and killing the neighbor\xe2\x80\x99s cat.\n\nAttempt Grading\nJurisdictions vary as to how they grade attempt. Some jurisdictions follow the common law and grade attempt\nlower than the completed offense (Mo. Ann. Stat., 2010). Other jurisdictions punish attempt the same as the\nattempted offense, with exceptions for certain specified crimes (Conn. Gen. Stat., 2010).\nFigure 8.4 Diagram of Attempt\n\n\x0c8.1 Attempt 263\n\nKey Takeaways\n\xe2\x80\xa2\n\xe2\x80\xa2\n\nAn inchoate crime is a crime that might not be completed.\nGeneral attempt statutes set forth the elements of attempt and apply them to any crime. Specific attempt\nstatutes define attempt according to specified crimes, such as attempted murder, robbery, or rape.\n\n\x0c264 Criminal Law\n\n\xe2\x80\xa2\n\nThe four tests jurisdictions use to ascertain the criminal act element required for attempt are proximity, res\nipsa loquitur, probable desistance, and substantial steps.\n\n\xe2\x80\xa2\n\nThe proximity test determines how close the defendant is to committing the crime by analyzing how\nmuch is left to accomplish after preparation for the offense.\n\n\xe2\x80\xa2\n\nThe res ipsa loquitur test, also called the unequivocality test, examines the defendant\xe2\x80\x99s actions at a\nmoment in time to determine whether the defendant has no other purpose than committing the crime at\nissue.\n\n\xe2\x80\xa2\n\nThe probable desistance test analyzes whether the defendant has progressed so far that it is probable he or\nshe will not desist without interruption from law enforcement or other intervening circumstances.\n\n\xe2\x80\xa2\n\nThe substantial steps test is the Model Penal Code test and ascertains whether the defendant has\ncompleted substantial steps toward commission of the crime that are corroborative of the defendant\xe2\x80\x99s\ncriminal intent.\n\n\xe2\x80\xa2\n\nPreparatory crimes criminalize preparing to commit a crime, which would be a stage that is too premature\nto constitute the criminal act element required for attempt.\n\n\xe2\x80\xa2\n\nThe criminal intent element required for attempt is specific intent or purposely to commit the crime at\nissue.\n\n\xe2\x80\xa2\n\nAside from failure of proof defenses to attempt act and intent, two potential defenses to attempt are legal\nimpossibility and voluntary abandonment.\n\n\xe2\x80\xa2\n\nFactual impossibility means the defendant cannot complete the crime because the facts are not as the\ndefendant believes them to be. Factual impossibility is generally not a defense to attempt. Legal\nimpossibility means the defendant believes he or she is attempting to commit a crime, but the defendant\xe2\x80\x99s\nactions are actually legal. Legal impossibility is generally a defense to attempt.\n\n\xe2\x80\xa2\n\nVoluntary abandonment is when the defendant voluntarily and completely withdraws from commission of\nthe offense before it is consummated.\n\n\xe2\x80\xa2\n\nIn many jurisdictions, attempt merges into the offense if it is completed, which means that a defendant\ncannot be charged with attempt and the completed crime.\n\n\xe2\x80\xa2\n\nIn a jurisdiction that allows for transferred intent, a defendant\xe2\x80\x99s intent can transfer from the intended\nvictim to the actual victim. The defendant can thereafter be criminally responsible for the completed crime\nagainst the actual victim and attempt against the intended victim.\n\n\xe2\x80\xa2\n\nSome jurisdictions grade attempt lower than the completed offense; others grade attempt the same as the\ncompleted offense, with exceptions.\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nCarol shoots her father Carl with malice aforethought. He thereafter lingers in a coma for two months and\nthen dies. Carol is in a jurisdiction that recognizes merger for attempt and that also requires a victim to die\nwithin one year and a day if the defendant is to be charged with murder. Can Carol be charged with\nattempted murder and murder? Why or why not?\n\n2.\n\nRead State v. Withrow, 8 S.W.3d 75 (1999). In Withrow, the defendant made frequent visits to a house that\nwas under law enforcement surveillance. While searching the house pursuant to a search warrant, law\nenforcement officers saw the defendant emerging from a bedroom that had a locked closet containing a jar\nwith pills dissolving in it, which is the first step of methamphetamine production. The defendant was\n\n\x0c8.1 Attempt 265\n\nconvicted of attempted methamphetamine production and received a sentence of eighteen years in prison.\nDid the Supreme Court of Missouri uphold the defendant\xe2\x80\x99s conviction? The case is available at this link:\nhttp://scholar.google.com/\nscholar_case?case=17239945130468444353&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n3.\n\nRead People v. Strand, 539 N.W.2d 739 (1995). In Strand, the defendant was convicted of assault with\nintent to commit attempted kidnapping. Did the Michigan Court of Appeals uphold this conviction? The\ncase is available at this link: http://scholar.google.com/\nscholar_case?case=1507705469884283003&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\nReferences\nCommonwealth v. Hamel, 52 Mass. App. Ct. 250 (2001), accessed December 29, 2010, http://scholar.google.com/\nscholar_case?case=3222223363179578849&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\nConn. Gen. Stat. \xc2\xa7 53a-106, accessed December 31, 2010, http://www.cga.ct.gov/2009/pub/\nchap952.htm#Sec53a-106.htm.\nFla. Stat. Ann. \xc2\xa7 777.04(5) (a), accessed December 31, 2010, http://law.justia.com/florida/codes/2003/\nTitleXLVI/chapter777/777_04.html.\nGa. Code tit. 16 \xc2\xa7 16-4-2, accessed January 28, 2011, http://law.onecle.com/georgia/16/16-4-2.html.\nGrill v. State, 337 Md. 91 (1995), accessed December 27, 2010, http://www.leagle.com/\nxmlResult.aspx?xmldoc=1995428337Md91_1422.xml&docbase=CSLWAR2-1986-2006.\nHamiel v. Wisconsin, 285 N.W.2d 639 (1979), accessed December 30, 2010, http://scholar.google.com/\nscholar_case?case=3730801887783687670&hl=en&as_sdt=2002&as_vis=1.\nMo. Ann. Stat. \xc2\xa7 564.011, accessed December 31, 2010, http://law.justia.com/missouri/codes/2005/t38/\n5640000011.html.\nN.Y. Penal Law \xc2\xa7 140.35, accessed December 31, 2010, http://law.onecle.com/new-york/penal/\nPEN0140.35_140.35.html.\nPeople v. Dillon, 668 P.2d 697 (1983), accessed December 29, 2010, http://scholar.google.com/\nscholar_case?case=16336126005486548570&hl=en&as_sdt=2,5.\nPeople v. Luna, 170 Cal. App. 4th 535 (2009), accessed December 27, 2010, http://scholar.google.com/\nscholar_case?case=11148942163253518924&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\nSchulhofer, S. J. and Dan M. Kahan, \xe2\x80\x9cAttempt,\xe2\x80\x9d encyclopedia.com website, accessed December 26, 2010,\nhttp://www.encyclopedia.com/topic/Attempt.aspx.\nTex. Penal Code \xc2\xa7 15.01, accessed December 27, 2010, http://law.onecle.com/texas/penal/15.01.00.html.\nU.S. v. Mandujano, 499 F.2d 370, 373 fn. 5 (1974), accessed December 30, 2010, http://ftp.resource.org/\ncourts.gov/c/F2/499/499.F2d.370.74-1445.html.\nUSLegal.com, \xe2\x80\x9cDefinition of Res Ipsa Loquitur,\xe2\x80\x9d accessed December 29, 2010, http://definitions.uslegal.com/\nr/res-ipsa-loquitur.\nYourdictionary.com, accessed December 28, 2010, \xe2\x80\x9cDefinition of Inchoate,\xe2\x80\x9d http://www.yourdictionary.com/\ninchoate.\n18\nU.S.C.\n\xc2\xa7 1113,\naccessed\nJune\n28,\n2011,\nhttp://www.law.cornell.edu/uscode/718/\nusc_sec_18_00001113\xe2\x80\x94-000-.html.\n\n\x0c8.2 Conspiracy\n\nLearning Objectives\n1.\n\nExplain why conspiracy is an inchoate crime.\n\n2.\n\nDefine the criminal act element required for conspiracy.\n\n3.\n\nCompare the conspiracy overt act requirement with the criminal act element required for attempt.\n\n4.\n\nDefine the criminal intent element required for conspiracy.\n\n5.\n\nAscertain whether a coconspirator can be criminally responsible when another coconspirator is not\nprosecuted or acquitted.\n\n6.\n\nAscertain whether a coconspirator must know every other coconspirator to be guilty of conspiracy.\n\n7.\n\nDistinguish between a wheel and chain conspiracy.\n\n8.\n\nDefine the Pinkerton rule.\n\n9.\n\nDefine Wharton\xe2\x80\x99s rule.\n\n10.\n\nIdentify an affirmative defense to conspiracy.\n\n11.\n\nAscertain whether merger applies to conspiracy.\n\n12.\n\nCompare various approaches to conspiracy grading.\n\n13.\n\nDefine federal RICO.\n\nConspiracy punishes defendants for agreeing to commit a criminal offense. Conspiracy is an inchoate crime\nbecause it is possible that the defendants never will commit the planned offense. However, a conspiracy is\ncomplete as soon as the defendants become complicit and commit the conspiracy act with the conspiracy intent.\nThe rationale for punishing defendants for planning activity, which generally is not sufficient to constitute the\ncrime of attempt, is the increased likelihood of success when defendants work together to plot and carry out a\ncriminal offense (Dennis v. U.S., 2011). If the defendants commit the crime that is the object of the conspiracy,\nthe defendants are responsible for the conspiracy and the completed crime, as is discussed in Section 8.2.4\n\xe2\x80\x9cConsequences of Conspiracy\xe2\x80\x9d.\n\nConspiracy Act\nIn many jurisdictions, the criminal act element required for conspiracy is an agreement to commit any criminal\noffense (Fla. Stat. Ann., 2011). The agreement does not need to be formal or in writing (State v. Bond, 2011).\nSome states also criminalize as conspiracy the agreement to falsely indict another for a crime and the agreement\nto falsely maintain any lawsuit, even a civil lawsuit (Cal. Penal Code, 2011). Other states only criminalize as\nconspiracy the agreement to commit a felony (Tex. Penal Code, 2011).\nIn some states and federally, an overt act in furtherance of the conspiracy is also required (18 U.S.C., 2011).\n266\n\n\x0c8.2 Conspiracy 267\n\nThe Model Penal Code requires an overt act only when the planned crime is \xe2\x80\x9cother than a felony of the first or\nsecond degree\xe2\x80\x9d (Model Penal Code \xc2\xa7 5.03(5)). The overt act does not have to be criminal and may be planning or\npreparatory activity that would be insufficient to constitute the criminal act element required for attempt (State v.\nVerive, 2011).\n\nExample of Conspiracy Act\nReview the example with Melissa and Matthew in Section 8 \xe2\x80\x9cRes Ipsa Loquitur Test\xe2\x80\x9d. In this example, Melissa\nand Matthew agree to poison the neighbor\xe2\x80\x99s dog because it barks every night. After deciding they will poison the\ndog, Melissa buys rat poison, and Matthew thereafter coats a filet mignon with it and throws it over the fence\ninto the neighbor\xe2\x80\x99s yard. In a jurisdiction that defines the criminal act element for conspiracy as an agreement\nbetween two or more to commit a criminal offense, Melissa and Matthew probably committed the conspiracy\ncriminal act as soon as they agreed to poison the dog. Their agreement could be verbal and does not need to be\nformal or in writing. If Melissa and Matthew are in a jurisdiction that requires an overt act in furtherance of the\nconspiracy, Melissa and Matthew probably have not committed the conspiracy criminal act until Melissa buys\nthe rat poison. Note that the purchase of the rat poison is not sufficient to constitute the criminal act element\nrequired for attempted destruction of property or animal cruelty, as discussed in Section 8 \xe2\x80\x9cRes Ipsa Loquitur\nTest\xe2\x80\x9d. However, it would likely be enough to support the conspiracy to commit destruction of property or animal\ncruelty.\n\nConspiracy Intent\nThe essence of conspiracy is agreement, which requires two or more parties. However, the modern approach is\nthat a conspiracy may be formed as long as one of the parties has the appropriate intent (Ind. Code, 2011). Pursuant\nto this unilateral view of conspiracy, a conspiracy may exist between a defendant and a law enforcement decoy\nwho is pretending to agree.\nIn the majority of jurisdictions, the criminal intent element required for conspiracy is specific intent or\npurposely to agree with another to commit the crime at issue (Connecticut Criminal Jury Instructions 3.3-1,\n2011). As the Model Penal Code states, \xe2\x80\x9c[a] person is guilty of conspiracy\xe2\x80\xa6if with the purpose of promoting\nor facilitating its commission he: (a) agrees with such other person\xe2\x80\xa6that they\xe2\x80\xa6will engage in conduct which\nconstitutes such crime\xe2\x80\x9d (Model Penal Code \xc2\xa7 5.03(1) (a)). This intent has two components. The prosecution must\nprove that the conspirator intended to agree and also intended to commit the underlying offense (State v. Lewis,\n2011).\n\nExample of Conspiracy Intent\nShelley and Sam meet at a bar and discuss their lack of finances. Shelley mentions that she and her friend Steffy\nwork at a convenience store. Sam asks Shelley if she would like to help him rob the convenience store when Steffy\nis working. Shelley agrees. The two plan the robbery. Shelley and Sam agree that Shelley will drive the getaway\n\n\x0c268 Criminal Law\n\ncar on the appointed date and time. Shelley informs Sam that Steffy is extremely meek and fearful and will readily\nhand over cash out of the cash register if Sam uses a fake handgun. Shelley and Sam probably have the criminal\nintent element required for conspiracy. Shelley and Sam have the intent to agree to work together because they\nboth need each other to successfully complete the convenience store robbery. In addition, Shelley and Sam have\nthe intent to successfully commit the robbery because they both want the money the robbery will produce. Thus if\nno overt act is required in their jurisdiction, Shelley and Sam most likely have completed the crime of conspiracy\nand may be prosecuted for this offense whether or not the robbery actually takes place.\n\nConspiracy Parties\nSimilar to accomplice liability, the acquittal of or failure to prosecute one party to the conspiracy does not relieve\na coconspirator from criminal responsibility in many states (Tex. Penal Code, 2011). In addition, a coconspirator\ndoes not need to know every other coconspirator to be accountable as a member of the conspiracy (Neb. Rev.\nStat. Ann., 2011). As long as the conspiracy defendant is aware that other coconspirators exist, the mens rea for\nconspiracy is present. As the Model Penal Code states, \xe2\x80\x9c[i]f a person guilty of conspiracy\xe2\x80\xa6knows that a person\nwith whom he conspires to commit a crime has conspired with another person or persons to commit the same\ncrime, he is guilty of conspiring with such other person or persons, whether or not he knows their identity\xe2\x80\x9d (Model\nPenal Code \xc2\xa7 5.03(2)). Large-scale conspiracies, such as conspiracies to distribute contraband or illegal firearms,\nmay result in each member sharing criminal responsibility for the conspiracy and every separate conspiracy\ntransaction.\nA conspiracy that has more than one criminal objective still can be just one conspiracy. Under the Model Penal\nCode, \xe2\x80\x9c[i]f a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such\nmultiple crimes are the object of the same agreement or continuous conspiratorial relationship\xe2\x80\x9d (Model Penal\nCode \xc2\xa7 5.03(3)).\nIt is useful to understand two basic large-scale conspiracy organizational formats: wheel and chain conspiracies.\nA wheel conspiracy consists of a single conspirator, generally the ringleader who is interconnected to every other\ncoconspirator. The ringleader is the hub; the other coconspirators are the spokes of the wheel. An example of a\nwheel conspiracy would be a mob boss linked to individual members of the mob following his or her commands.\nA chain conspiracy consists of coconspirators connected to each other like links in a chain but without a central\ninterconnected ringleader. An example of a chain conspiracy is a conspiracy to manufacture and distribute a\ncontrolled substance, with the manufacturer linked to the transporter, who sells to a large-quantity dealer, who\nthereafter sells to a smaller-quantity dealer, who sells to a customer. Whether the conspiracy is wheel, chain, or\notherwise, if the jurisdiction has a statute or common-law rule that each member does not need to personally know\nevery other member as discussed previously, the coconspirators may be criminally responsible for the conspiracy\nand the crime(s) it furthers.\nFigure 8.5 Comparison of Wheel and Chain Conspiracies\n\n\x0c8.2 Conspiracy 269\n\nConsequences of Conspiracy\nIn some states and federally, individuals who enter into a conspiracy are criminally responsible for every\nreasonably foreseeable crime committed in furtherance of the conspiracy (U.S. v. Castaneda, 2011). This rule\nis called the Pinkerton rule, based on the US Supreme Court case that created it (Pinkerton v. U.S., 328 U.S.\n640 (1946).). One factor used to determine foreseeability is the degree of the defendant\xe2\x80\x99s involvement in the\nconspiracy. A defendant who plays a minor role is less likely to be criminally responsible than a defendant who\nhas a more substantive involvement (U.S. v Castaneda, 2011).\n\nExample of the Pinkerton Rule\nReview the example in Section 8 \xe2\x80\x9cExample of Conspiracy Intent\xe2\x80\x9d with Shelley and Sam. Assume that on the\nnight of the convenience store robbery, Lucy, an armed, off-duty police officer, wanders into the store to purchase\ncigarettes at the moment Sam pulls out his fake handgun. Lucy yanks her concealed handgun out of her waistband\nand tells Sam to drop the weapon. Jolene, another customer in the store, observes the two pointing guns at each\nother and suffers a fatal heart attack. In many jurisdictions, both Shelley and Sam probably could be criminally\n\n\x0c270 Criminal Law\n\nresponsible for conspiracy to commit robbery, attempted robbery, and the murder of Jolene. Shelley and Sam\nattempted to commit the robbery in furtherance of the conspiracy. Both played a major role in the conspiracy\nand the attempted robbery. Thus both are accountable for the foreseeable consequences. Robbery is a crime of\nviolence, so a death that occurs during a robbery is foreseeable, even though Sam is armed with only a pretend\nhandgun. Thus Shelley and Sam may be charged with and convicted of Jolene\xe2\x80\x99s murder, which is most likely\nfelony murder. Felony murder is discussed in detail in Chapter 9 \xe2\x80\x9cCriminal Homicide\xe2\x80\x9d.\n\nWharton\xe2\x80\x99s Rule\nA criminal offense that requires two parties cannot be the object of a conspiracy that consists of two parties. This\nrule is called Wharton\xe2\x80\x99s rule, or the concert of action rule (USLegal, 2011). However, a statute can expressly\ncriminalize a conspiracy to commit any crime, abrogating the rule. Currently, Wharton\xe2\x80\x99s rule can operate as a\njudicial presumption, to be applied in the absence of legislative intent to the contrary (Ianelli v. U.S., 2011).\n\nExample of a Case Where Wharton\xe2\x80\x99s Rule Is Inapplicable\nJoanne and Robert conspire with Don, Joanne\xe2\x80\x99s pimp, to engage in prostitution. Joanne and Robert get caught\nin the act of engaging in prostitution by Edward, a police officer. Wharton\xe2\x80\x99s rule probably does not apply in this\ncase. Although engaging in prostitution requires two parties, the conspiracy to engage in prostitution has three\nmembers\xe2\x80\x94Don, Joanne, and Robert. Thus Wharton\xe2\x80\x99s rule is likely inapplicable, and Don, Joanne, and Robert\nmight have committed conspiracy to engage in prostitution. Note that if only Joanne and Robert conspire to\nengage in prostitution, Wharton\xe2\x80\x99s rule may act as a judicial presumption that they cannot commit conspiracy and\nthe crime it furthers.\n\nRenunciation as a Defense to Conspiracy\nOne potential affirmative defense to conspiracy is renunciation. Similar to voluntary abandonment in attempt,\nrenunciation can operate as a defense to conspiracy in some jurisdictions if the defendant completely and\nvoluntarily renounces the conspiracy (N.J. Stat., 2011). The renunciation must also thwart the crime that is the\nobject of the conspiracy. The Model Penal Code allows the defense and provides, \xe2\x80\x9cIt is an affirmative defense\nthat the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances\nmanifesting a complete and voluntary renunciation of his criminal purpose\xe2\x80\x9d (Model Penal Code \xc2\xa7 5.03(6)).\n\nExample of Renunciation\nReview the example with Shelley and Sam in Section 8 \xe2\x80\x9cExample of Conspiracy Intent\xe2\x80\x9d. In this example, Shelley\nand Sam agree to commit a robbery at the convenience store where Steffy is a cashier. Adjust the example so\nthat Shelley has a change of heart and contacts law enforcement about the robbery before she drives Sam to\n\n\x0c8.2 Conspiracy 271\n\nthe convenience store in the getaway car. Law enforcement officers ask Shelley to help them apprehend Sam,\nand she agrees. Shelley drives Sam to the convenience store as planned. Two law enforcement officers dress\nin plainclothes and pretend to be shopping in the convenience store when Sam arrives. As soon as Sam pulls\nout his fake handgun, they arrest him. If Shelley is in a jurisdiction that recognizes the renunciation defense,\nshe probably will have a valid defense to a charge of conspiracy. Although Shelley committed the criminal act\nfor conspiracy with the requisite criminal intent, she voluntarily and completely renounced the conspiracy and\nthwarted the crime that was its object. Thus Shelly has likely met the requirements of renunciation, and only Sam\nmay be charged with a crime or crimes in this scenario.\n\nMerger\nAt early common law, conspiracy, which was a misdemeanor, merged into the completed felony that was its\nobject. The merger was based on the significant procedural differences between misdemeanor and felony trials.\nAs the differences diminished, so did the merger concept. In modern times, conspiracy does not merge into the\ncompleted offense (Callanan v. U.S., 2011). Thus a defendant can be charged with and convicted of conspiracy\nand any crime the conspiracy furthers, as is discussed more fully in Section 8.2.4 \xe2\x80\x9cConsequences of Conspiracy\xe2\x80\x9d.\nFigure 8.6 Defenses to Conspiracy\nRenunciation\nWharton\xe2\x80\x99s Rule\nNot: Merger\n\nConspiracy Grading\nSome states grade conspiracy the same as the most serious offense that is the conspiracy\xe2\x80\x99s object (18 Pa. Cons.\nStat., 2011). Others grade conspiracy lower than the most serious conspired offense and do not criminalize the\nconspiracy to commit a simple, low-level misdemeanor (Tenn. Code Ann., 2011). Another view is to set a separate\npenalty for the conspiracy to commit specific crimes (Cal. Penal Code, 2011). It is not unconstitutional to punish\nconspiracy more severely than the crime conspired (Clune v. U.S., 2011).\n\nFederal RICO\nIn response to an increase in organized crime, the federal government enacted the Racketeer Influenced and\nCorrupt Organization Act (RICO) (18 U.S.C. \xc2\xa7\xc2\xa7 1961-1968)). RICO provides extensive criminal penalties and\nalso a civil cause of action for organized crime and includes all offenses that are criminal under state or federal\nlaw. Although RICO was originally intended to focus on sophisticated criminal businesses such as loan sharking,\nmafia, and high-stakes gambling operations (Blakey, G. R., 2011), its modern application is much broader and\n\n\x0c272 Criminal Law\n\nencompasses many white-collar crimes and small-time conspiracies. A criminal organization always involves\nmore than one member, and at the very least rudimentary planning, so conspiracy is a common RICO charge and\nis often easier to prove than a completed criminal offense. Recently, RICO has been criticized as being overused\nand applied in a manner inconsistent with its original purpose, especially when it targets smaller, low-member\ncriminal \xe2\x80\x9corganizations.\xe2\x80\x9d Some examples of highly publicized RICO defendants are Hell\xe2\x80\x99s Angels (Zimmerman,\nKeith and Zimmerman, Kent, 2011), Catholic priests in sex abuse cases (Smith, G., 2011), and Major League\nBaseball (Sportsbusinessdaily.com, 2011).\nTable 8.1 Comparison of Conspiracy and Accomplice Liability\n\nType of\nLiability\n\nCriminal Act\n\nCriminal Intent\n\nConspiracy\n\nAgreement to commit a crime, false criminal indictment, false\nlawsuit, or felony; some jurisdictions require an overt act in\nfurtherance of the conspiracy\n\nSpecific intent or purposely to agree\nto commit the specified offense(s)\n\nAccomplice Aid, assist commission of a crime\n\nFigure 8.7 Diagram of Conspiracy\n\nSpecific intent or purposely or general\nintent or knowingly, depending on the\njurisdiction\n\n\x0c8.2 Conspiracy 273\n\nTom DeLay Convicted of Conspiracy and Money Laundering Video\nJudge Sentences Tom DeLay to Three Years in Prison\nTom DeLay, former US House Majority Leader, was convicted of conspiracy and money laundering (Meyer, P.,\n2011). His verdict is shown in this video:\n" href="http://www.youtube.com/watch?v=KONoIQvpNmk" class="replaced-iframe" onclick="return\nreplaceIframe(this)" data-url="http://www.youtube.com/watch?v=KONoIQvpNmk">(click to see video)\n\n\x0c274 Criminal Law\n\nKey Takeaways\n\xe2\x80\xa2\n\nConspiracy is an inchoate crime because the defendants might never complete the offense that is the\nconspiracy\xe2\x80\x99s object.\n\n\xe2\x80\xa2\n\nThe criminal act element required for conspiracy is an agreement to commit any crime, commit a felony,\nfalsely indict another for a crime, or falsely maintain any lawsuit, depending on the jurisdiction.\n\n\xe2\x80\xa2\n\nThe overt act required for conspiracy can be preparatory activity; the criminal act element required for\nattempt must be more than mere preparation.\n\n\xe2\x80\xa2\n\nThe criminal intent element required for conspiracy is specific intent or purposely to agree to commit the\noffense that is the conspiracy\xe2\x80\x99s object.\n\n\xe2\x80\xa2\n\nThe acquittal of or failure to prosecute one coconspirator does not prohibit the prosecution of other\ncoconspirators in some jurisdictions.\n\n\xe2\x80\xa2\n\nA coconspirator does not need to know every other coconspirator; as long as a coconspirator is aware that\nthere are other members, he or she can be criminally responsible for conspiracy.\n\n\xe2\x80\xa2\n\nA wheel conspiracy connects all members to one central member. A chain conspiracy interconnects the\nmembers in a linear fashion.\n\n\xe2\x80\xa2\n\nThe Pinkerton rule holds conspiracy members criminally responsible for every foreseeable crime\ncommitted in furtherance of the conspiracy.\n\n\xe2\x80\xa2\n\nWharton\xe2\x80\x99s rule could create a judicial presumption that a defendant cannot be criminally responsible for\nconspiracy and the crime that is its object if the conspiracy has only two members, and the crime that is its\nobject requires two defendants.\n\n\xe2\x80\xa2\n\nRenunciation is an affirmative defense to conspiracy in some jurisdictions if the defendant voluntarily and\ncompletely renounces the conspiracy and thwarts the crime that is its object.\n\n\xe2\x80\xa2\n\nGenerally, conspiracy does not merge like attempt; a defendant can be convicted of conspiracy and the\ncrime conspired.\n\n\xe2\x80\xa2\n\nSome jurisdictions grade conspiracy the same as the conspired offense; other jurisdictions grade\nconspiracy lower than the conspired offense. It is not unconstitutional to grade conspiracy higher than the\noffense that is its object.\n\n\xe2\x80\xa2\n\nFederal RICO is a statute that is designed to punish organized crime.\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nGail and Roger conspire to commit a misdemeanor. In Gail and Roger\xe2\x80\x99s state, conspiracy is punishable\nas a felony. Can Gail and Roger be convicted of a felony for conspiring to commit a misdemeanor? Why or\nwhy not?\n\n2.\n\nRead State v. Blackmer, 816 A.2d 1014 (2003). In Blackmer, the defendant appealed his conviction for\nconspiracy to possess marijuana with intent to sell because the individual with whom he was conspiring was\na police decoy who did not have conspiracy intent. Did the Supreme Court of New Hampshire uphold the\ndefendant\xe2\x80\x99s conviction? The case is available at this link: http://scholar.google.com/\nscholar_case?case=10340846332108789820&q= State+v.+Blackmer&hl=en&as_sdt=2,5.\n\n3.\n\nRead Commonwealth v. Roux, 350 A.2d 867 (1976). In Roux, the defendant was convicted of murder and\n\n\x0c8.2 Conspiracy 275\n\nconspiracy to commit murder after a barroom brawl resulted in a victim\xe2\x80\x99s death. The defendant and others\nbeat the victim with their fists. Thereafter the criminal actor took a knife from a defendant who then walked\naway. The criminal actor stabbed the victim, who died as a result. The defendant who walked away claimed\nthat he \xe2\x80\x9cabandoned\xe2\x80\x9d the conspiracy by leaving before the stabbing, and this should be an affirmative defense\nto the conspiracy and murder charges. Did the Supreme Court of Pennsylvania uphold the defendant\xe2\x80\x99s\nconvictions? The case is available at this link: http://scholar.google.com/\nscholar_case?case=1692554406000599210&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\nLaw and Ethics: The Han Murder Conspiracy\nDid the Coconspirators Intend to Commit Murder?\nRead People v. Han, 78 Cal. App. 4th 797 (2000). The case is available at this link: http://caselaw.lp.findlaw.com/\ndata2/californiastatecases/g023433.pdf.\nIn Han, a lurid California case involving twins, three defendants were convicted of burglary, false imprisonment, and\nconspiracy to commit murder (Beloit Daily News, 2011). Two of the codefendants appealed on the grounds that the\nevidence was insufficient to support the verdict of conspiracy to commit murder. The codefendants claimed that the only\ndirect evidence of intent to commit murder were statements made by the defendant Jeen Han before the conspiracy was\nformed, and defendant Han could not conspire with herself.\nThe defendant Jeen Han and her twin sister Sunny had a long history of violence against each other (People v. Han,\n2011). Defendant Han became enraged when Sunny pressed charges against her for theft. Testimonial evidence\npresented at trial showed that she expressed the intent to kill her twin before any conspiracy was formed (People v. Han,\n2011). She actively sought out individuals to help her with her sister\xe2\x80\x99s murder (People v. Han, 2011). Thereafter, she\nmet up with her teenaged cousin and a friend, the other two codefendants. The three broke into Sunny Han\xe2\x80\x99s apartment,\ntied up Sunny and her roommate at gunpoint and placed them in the bathtub, and then ransacked Sunny\xe2\x80\x99s purse.\nReceipts produced at trial indicated a purchase of garbage bags, twine, utility tape, and Pine Sol previous to the incident.\nThe Court of Appeal of California held that although circumstantial, the evidence supported the verdict. The court\nreasoned that the purchase of the twine, garbage bags, utility tape, and Pine Sol, combined with the actions of the\ndefendants in breaking into the apartment, tying up the two roommates at gunpoint, and putting them in the bathtub,\ncould be interpreted as circumstantial evidence of intent to kill, and the trier of fact did not err in making that conclusion\n(People v. Han, 2011).\n1.\n\nDo you think it is ethical to impute Jeen Han\xe2\x80\x99s intent to murder her twin to the two other coconspirators,\nbased on the circumstantial evidence presented at trial?\n\nCheck your answer using the answer key at the end of the chapter.\n\nReferences\nBeloit Daily News, \xe2\x80\x9c\xe2\x80\x98Evil Twin\xe2\x80\x99 Found Guilty of Plotting to Kill Sister,\xe2\x80\x9d Beloit Daily News website, accessed\nJanuary 28, 2011, http://www.beloitdailynews.com/articles/1997/11/21/export7262.txt.\nBlakey, G. R., \xe2\x80\x9cRICO: The Genesis of an Idea,\xe2\x80\x9d Abstract, Social Science Research Network website, accessed\nJanuary 4, 2011, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1142930.\nCal. Penal Code \xc2\xa7 182(a) (2), (3), accessed January 2, 2011, http://law.justia.com/california/codes/2009/pen/\n182-185.html.\n\n\x0c276 Criminal Law\n\nCallanan v. U.S., 364 U.S. 587 (1961), accessed January 4, 2011, http://scholar.google.com/\nscholar_case?case=10261023883092961366&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\nClune v. U.S., 159 U.S. 590 (1895), accessed January 4, 2011, http://scholar.google.com/\nscholar_case?case=14126191414675975192&q= Clune+v.+US&hl=en&as_sdt=2002&as_vis=1.\nConnecticut Criminal Jury Instructions 3.3-1, accessed January 1, 2011, http://www.jud.ct.gov/ji/criminal/\npart3/3.3-1.htm.\nDennis v. U.S., 341 U.S. 494 (1951), accessed January 3, 2011, http://scholar.google.com/\nscholar_case?case=13576454585730441281&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\nFla. Stat. Ann. \xc2\xa7 777.04(3), accessed January 1, 2011, http://www.leg.state.fl.us/statutes/\nindex.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0777/Sections/0777.04.html.\nIanelli v. U.S., 420 U.S. 770, 785 (1975), accessed January 3, 2011, http://scholar.google.com/\nscholar_case?case=16942118715212641737&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\nInd. Code \xc2\xa7 35-41-5-2(5), accessed January 1, 2011, http://www.in.gov/legislative/ic/2010/title35/ar41/\nch5.html.\nMeyer, P., \xe2\x80\x9cTom DeLay is sentenced to three years,\xe2\x80\x9d Los Angeles Times website, accessed August 15, 2011,\nhttp://articles.latimes.com/2011/jan/11/nation/la-na-tom-delay-20110111.\nNeb. Rev. Stat. Ann. \xc2\xa7 28-202(2), accessed January 3, 2011, http://law.justia.com/nebraska/codes/2006/\ns28index/s2802002000.html.\nN.J. Stat. \xc2\xa7 2c: 5-2e, accessed January 4, 2011, http://law.onecle.com/new-jersey/2c-the-new-jersey-code-ofcriminal-justice/5-2.html.\nPeople v. Han, 78 Cal. App. 4th 797, 802 (2000), accessed January 28, 2011, http://caselaw.lp.findlaw.com/\ndata2/californiastatecases/g023433.pdf.\nSmith, G., \xe2\x80\x9cCourts: Lawsuit Accuses Diocese of Hiding Sex Abuse,\xe2\x80\x9d Norwich Bulletin website, accessed\nJanuary 4, 2011, http://www.norwichbulletin.com/lifestyles/spirituality/x497774422/Courts-Lawsuit-accusesdiocese-of-hiding-sex-abuse.\nSportsbusinessdaily.com website, \xe2\x80\x9cArbitration Ruling Effectively Ends Loria RICO Suit,\xe2\x80\x9d accessed June\n28, 2011, http://www.sportsbusinessdaily.com/Daily/Issues/2004/11/Issue-46/Franchises/Arbitration-RulingEffectively-Ends-Loria-Rico-Suit.aspx.\nState v. Bond, 49 Conn. App. 183 (1998), accessed January 1, 2011, http://caselaw.findlaw.com/ct-court-ofappeals/1255702.html.\nState v. Lewis, 220 Conn. 602 (1991), accessed January 2, 2011, http://scholar.google.com/\nscholar_case?case=6997065715061309373&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\nState v. Verive, 627 P.2d 721 (1981), accessed January 1, 2011, http://wings.buffalo.edu/law/bclc/web/\nazverive.htm.\nTenn. Code Ann. \xc2\xa739-12-107(c), accessed January 4, 2011, http://law.justia.com/tennessee/codes/2010/title-39/\nchapter-12/part-1/39-12-107.\nTex. Penal Code \xc2\xa7 15.02, accessed January 3, 2011, http://law.onecle.com/texas/penal/15.02.00.html.\nU.S. v. Castaneda, 9 F.3d 761 (1993), accessed January 3, 2011, http://scholar.google.com/\nscholar_case?case=13576116398000833345&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\nUSLegal, \xe2\x80\x9cDefinition of Wharton\xe2\x80\x99s Rule,\xe2\x80\x9d USLegal.com website, accessed January 3, 2011,\nhttp://definitions.uslegal.com/w/whartons-rule.\nZimmerman, K., Kent Zimmerman, \xe2\x80\x9cHell\xe2\x80\x99s Angel: The Life and Times of Sonny Barger and the Hell\xe2\x80\x99s Angels\nMotorcycle Club,\xe2\x80\x9d accessed January 4, 2011, http://www.organized-crime.de/revbar01sonnybarger.htm.\n\n\x0c8.2 Conspiracy 277\n\n18 Pa. Cons. Stat. \xc2\xa7 905, accessed January 4, 2011, http://law.onecle.com/pennsylvania/crimes-and-offenses/\n00.009.005.000.html.\n18 U.S.C. \xc2\xa7 371, accessed January 1, 2011, http://codes.lp.findlaw.com/uscode/18/I/19/371.\n\n\x0c8.3 Solicitation\n\nLearning Objectives\n1.\n\nExplain why solicitation is an inchoate crime.\n\n2.\n\nDefine the criminal act element required for solicitation.\n\n3.\n\nDefine the criminal intent element required for solicitation.\n\n4.\n\nDetermine whether the defense of renunciation is available for solicitation.\n\n5.\n\nDiscuss various approaches to solicitation grading.\n\nSolicitation can be a precursor to conspiracy because it criminalizes the instigation of an agreement to commit a\ncriminal offense. Solicitation is an inchoate crime because it is possible that the conspiracy will never be formed,\nand the crime that is its object will not be committed. Many of the rules that apply to attempt and conspiracy also\napply to solicitation, as is discussed in Section 8.3 \xe2\x80\x9cSolicitation\xe2\x80\x9d.\n\nSolicitation Act\nThe criminal act element required for solicitation is generally words that induce another to commit a capital\nfelony, first-degree felony (Tex. Penal Code, 2011), or any crime (N.Y. Penal Law, 2011). Typical words of\ninducement are request, command, encourage, hire, procure, entice, and advise. The Model Penal Code defines\nsolicitation as follows: \xe2\x80\x9c[a] person is guilty of solicitation to commit a crime if with the purpose of promoting\nor facilitating its commission he commands, encourages or requests another person to engage in specific conduct\nwhich would constitute such crime\xe2\x80\x9d (Model Penal Code \xc2\xa7 5.02(1)). However, the Model Penal Code does not\nrequire direct communication, if \xe2\x80\x9cconduct was designed to effect such communication.\xe2\x80\x9d (Model Penal Code\n\xc2\xa7 5.02(2)).\n\nExample of Solicitation Act\nJimmy calls his friend Choo, who is reputed to be a \xe2\x80\x9cfence,\xe2\x80\x9d and asks Choo to help him sell some stolen designer\nshoes. If Jimmy is in a jurisdiction that criminalizes the \xe2\x80\x9crequest\xe2\x80\x9d to commit any crime, Jimmy probably has\ncommitted the criminal act element required for solicitation. If Jimmy is in a jurisdiction that only criminalizes\nsolicitation to commit a capital felony or first-degree felony, then Jimmy probably has not committed the criminal\nact element required for solicitation because selling stolen property is not generally graded that severely. If Jimmy\nis in a jurisdiction that follows the Model Penal Code, and Jimmy and Choo had a long-standing arrangement\nwhereby Jimmy puts stolen items in a storage facility so that Choo can sell them, Jimmy will not have to\n278\n\n\x0c8.3 Solicitation 279\n\ncommunicate his request to Choo. He simply will have to place the shoes in the storage facility to commit the\ncriminal act element required for solicitation.\n\nSolicitation Intent\nThe criminal intent element required for solicitation is specific intent or purposely to promote the crime\xe2\x80\x99s\ncommission in most jurisdictions and under the Model Penal Code, as set forth in Section 8.3.1 \xe2\x80\x9cSolicitation Act\xe2\x80\x9d\n(Or. Rev. Stat., 2011).\n\nExample of Solicitation Intent\nReview the solicitation act example in Section 8 \xe2\x80\x9cExample of Solicitation Act\xe2\x80\x9d. In this example, Jimmy desires\nChoo to commit the crime of selling stolen property so that he can reap a benefit from his stolen designer\nshoes. Thus Jimmy probably has the criminal intent required for solicitation. If Jimmy is in a jurisdiction that\ncriminalizes solicitation to commit any crime, Jimmy could be charged with and convicted of this offense.\n\nRenunciation as a Defense to Solicitation\nSimilar to conspiracy, many jurisdictions allow renunciation as an affirmative defense to solicitation (Ariz. Rev.\nStat., 2011). The renunciation must be voluntary and complete and must thwart the crime that is solicited. As the\nModel Penal Code states, \xe2\x80\x9cit is an affirmative defense that the actor, after soliciting another person to commit\na crime, persuaded him not to do so or otherwise prevented the commission of the crime, under circumstances\nmanifesting a complete and voluntary renunciation of his criminal purpose\xe2\x80\x9d (Model Penal Code \xc2\xa7 5.02(3)).\n\nSolicitation Grading\nJurisdictions vary as to how they grade solicitation. Some jurisdictions grade solicitation according to the crime\nsolicited, with more serious crimes accorded a more severe solicitation punishment (Ala. Code, 2011). Others\ngrade solicitation the same as the crime solicited, with exceptions (N.H. Rev. Stat. Ann., 2011). Some states grade\nsolicitation as a misdemeanor, regardless of the crime solicited (Commonwealth v. Barsell, 2011).\nFigure 8.8 Diagram of Solicitation\n\n\x0c280 Criminal Law\n\nKey Takeaways\n\xe2\x80\xa2\n\nSolicitation is an inchoate crime because the crime that is solicited may not be completed.\n\n\xe2\x80\xa2\n\nThe criminal act element required for solicitation is words or conduct that induces another to commit any\ncrime, a capital felony, or first-degree felony.\n\n\xe2\x80\xa2\n\nThe criminal intent element required for solicitation is specific intent or purposely to induce another to\ncommit any crime, a capital felony, or first-degree felony.\n\n\xe2\x80\xa2\n\nRenunciation is an affirmative defense to solicitation if the defendant voluntarily and completely\nrenounces his or her criminal purpose and thwarts the commission of the solicited crime.\n\n\xe2\x80\xa2\n\nJurisdictions vary in their approach to grading solicitation. Some jurisdictions grade solicitation on a\nsliding scale according to the crime solicited, some grade solicitation the same as the crime solicited, and\nsome grade solicitation as a misdemeanor, regardless of the crime solicited.\n\n\x0c8.3 Solicitation 281\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nNancy asks Jennifer to help her counterfeit twenty-dollar bills. Jennifer refuses. Has a crime been\ncommitted in this situation?\n\n2.\n\nRead Planter v. State, 9 S.W. 3d 156 (1999). In Planter, the defendant told a former police officer\nwearing a wire that he would kill his estranged son-in-law for ten thousand dollars. The defendant was\nconvicted of solicitation to commit murder. The defendant appealed on the basis that he did not solicit the\nformer police officer to commit murder; he solicited the former police officer to pay him to commit murder.\nDid the Court of Criminal Appeals of Texas uphold the defendant\xe2\x80\x99s conviction? The case is available at this\nlink: http://caselaw.findlaw.com/tx-court-of-criminal-appeals/1007515.html.\n\n3.\n\nRead People v. Dennis, 340 N.W.2d 81 (1983). In Dennis, the defendant was convicted of incitement to\nmurder, which is the Michigan equivalent of solicitation to murder. The defendant appealed based on the\nfact that she solicited a police officer posing as a hit man, so the police officer did not have the intent to\nmurder, and thus the murder was not possible. Did the Michigan Court of Appeals uphold the defendant\xe2\x80\x99s\nconviction? The case is available at this link: http://scholar.google.com/\nscholar_case?case=4173359376569096786&hl=en&as_sdt=2002&as_vis=1.\n\nReferences\nAla. Code \xc2\xa7 13A-4-1(f), accessed January 7, 2011, http://law.onecle.com/alabama/criminal-code/13A-4-1.html.\nAriz. Rev. Stat. \xc2\xa7 13-1005, accessed January 7, 2011, http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/\n13/01005.htm&Title=13&DocType=ARS.\nCommonwealth v. Barsell, 424 Mass. 737 (1997), accessed January 7, 2011, http://scholar.google.com/\nscholar_case?case=8677391463974362410&hl=en&as_sdt=2&as_vis=1&oi=scholarr (accessed January 7,\n2011).\nN.H. Rev. Stat. Ann. \xc2\xa7 629:2(IV), accessed January 7, 2011, http://law.justia.com/codes/new-hampshire/2009/\nTITLELXII/CHAPTER629/629-2.html.\nN.Y. Penal Law \xc2\xa7 100.00, accessed January 6, 2011, http://law.onecle.com/new-york/penal/\nPEN0100.00_100.00.html.\nOr. Rev. Stat. \xc2\xa7 161.435, accessed January 6, 2011, http://law.onecle.com/oregon/161-general-provisions/\n161.435.html.\nTex. Penal Code \xc2\xa7 15.03, accessed January 6, 2011, http://law.onecle.com/texas/penal/15.03.00.html (accessed\nJanuary 6, 2011).\n\n\x0c8.4 End-of-Chapter Material\n\nSummary\nAn inchoate crime might never be completed. The rationale of punishing a defendant for an inchoate crime is\nprevention and deterrence. The three inchoate crimes are attempt, conspiracy, and solicitation.\nThe criminal act element required for attempt must be more than thoughts or mere preparation. Modern jurisdictions\nuse four tests to ascertain attempt. The proximity test analyzes how close the defendant is to completing the offense by\nexamining how much is left to be done. The defendant may have to come dangerously close to completion but generally\ndoes not have to reach the last act before completion. The res ipsa loquitur test looks at the moment in time when the\ndefendant stopped progressing toward completion to see if the defendant\xe2\x80\x99s acts indicate that the defendant has no other\npurpose than commission of the offense. The probable desistance test focuses on how far the defendant has progressed\nto see if it is probable that the defendant won\xe2\x80\x99t desist until the crime is complete. The Model Penal Code substantial\nsteps test has two parts. First, the defendant must take substantial steps toward completion of the crime. Second, the\ndefendant\xe2\x80\x99s actions must strongly corroborate the defendant\xe2\x80\x99s criminal purpose.\nSome jurisdictions also criminalize preparatory crimes such as the manufacture or possession of burglar\xe2\x80\x99s tools.\nPreparatory crimes can be combined with attempt under the appropriate circumstances.\nThe criminal intent element required for attempt is the specific intent or purposely to commit the crime attempted.\nLegal impossibility can be a defense to attempt if the defendant mistakenly believes that a legal act attempted is illegal.\nFactual impossibility is not a defense to attempt if the crime cannot be completed because the facts are not as the\ndefendant believes them to be. Voluntary abandonment is also a defense to attempt in some jurisdictions if the defendant\nvoluntarily and completely renounces the attempted crime.\nIf a jurisdiction recognizes transferred intent, a defendant can be criminally responsible for attempt against the\nintended victim and the completed offense against the actual victim. In many jurisdictions, attempt merges into the\ncrime if the crime is completed. Jurisdictions vary as to how they grade attempt; either attempt is graded the same or\nlower than the completed offense.\nThe criminal act element required for conspiracy is an agreement to commit any crime, commit a felony, falsely\nindict another for a crime, or falsely maintain any lawsuit, depending on the jurisdiction. Some jurisdictions also require\nan overt act in furtherance of the conspiracy that could be a legal or preparatory act.\nThe criminal intent element required for conspiracy in many jurisdictions is the specific intent or purposely to agree\nand to commit the crime at issue. In some states, a coconspirator can be prosecuted even if another coconspirator is not\nprosecuted or acquitted. Coconspirators do not need to know every other coconspirator, as long as they are aware that\nother coconspirators exist. A wheel conspiracy connects all members to one central member. A chain conspiracy\nconnects members to each other in a linear fashion.\nThe Pinkerton rule holds coconspirators criminally responsible for every foreseeable crime committed in furtherance\nof the conspiracy. Wharton\xe2\x80\x99s rule creates a judicial presumption that a crime requiring two parties merges into a\nconspiracy made up of two parties.\nRenunciation can be a defense to conspiracy if a coconspirator voluntarily and completely abandons the conspiracy\nand thwarts the crime that is its object. Conspiracy generally does not merge into the conspired offense. Jurisdictions\nvary as to how they grade conspiracy. Usually it is graded the same or lower than the crime that is the conspiracy\xe2\x80\x99s\nobject, but it is not unconstitutional to punish conspiracy more severely than the conspired offense. The federal RICO\nstatute is targeted at organized crime, including conspiracy.\nSolicitation is the instigation of an agreement to commit any crime or, in some jurisdictions, a capital or first-degree\nfelony. The criminal act element required for solicitation is words or conduct of inducement. The criminal intent\nelement required for solicitation is specific intent or purposely to promote the crime solicited.\n\n282\n\n\x0c8.4 End-of-Chapter Material 283\n\nRenunciation is a defense to solicitation if it is voluntary and complete and thwarts the solicited offense. Jurisdictions\nvary as to how they grade solicitation. Some grade solicitation the same as the crime solicited, others vary the grading\ndepending on the crime solicited, and still others grade solicitation as a misdemeanor.\n\nYou Be the Prosecutor\nYou are a prosecutor seeking a promotion. You want to win your next case so that you can make a good impression\non your superior. Read the prompt, review the case, and then decide whether you would accept or reject it from a pool\nof cases available to junior prosecutors. Check your answers using the answer key at the end of the chapter.\n1.\n\nThe defendant is charged with witness tampering by attempting to kill the witness. A witness identified\nthe defendant, a police officer, as someone who sexually assaulted her at gunpoint. The defendant met with\ntwo individuals, one of them an FBI informant, and told them that he wanted to kill the witness before trial.\nHe was thereafter apprehended with a gun he had recently test-fired in the vicinity of the witness\xe2\x80\x99s house,\nwhich he had located with the FBI informant on a previous occasion. The jurisdiction in which you\nprosecute cases follows the \xe2\x80\x9csubstantial steps\xe2\x80\x9d test for the attempt act element. Will you accept or reject the\ncase? Read U.S. v. Contreras, 950 F.2d 232 (1991). The case is available at this link: http://law.justia.com/\ncases/federal/appellate-courts/F2/950/232/110462/.\n\n2.\n\nThe defendant, a substitute teacher, is charged with two counts of attempted child sexual abuse for\nblocking the door of his residence and refusing to allow his thirteen-year-old student to leave. The defendant\nalso asked the student for a kiss, was told \xe2\x80\x9cno,\xe2\x80\x9d and moved his face in the proximity of the student\xe2\x80\x99s face.\nWill you accept or reject the case? Read People v. Miller, 856 N.Y.S. 2d 443 (2008). The case is available\nat this link: http://scholar.google.com/scholar_case?case=13341924462190148625&q=\n%22Stan+Miller%22+%22People+v+Miller%22&hl=en&as_sdt=2,5&as_ylo=2007&as_vis=1.\n\n3.\n\nThe defendant is charged with conspiracy to commit manslaughter and various other crimes (including\nmanslaughter). The defendant and an acquaintance agreed to shoot at some individuals near a housing\nproject and walked over carrying guns. The defendant fired shots at a dumpster with people standing nearby,\nand one of the people was hit and killed. In your state, the criminal intent required for conspiracy is the\nspecific intent or purposely to agree, and the specific intent or purposely to commit the crime that is the\nconspiracy\xe2\x80\x99s object. Will you accept or reject the case? Read State v. Montgomery, 22 Conn. App. 340\n(1990). The case is available at this link: http://scholar.google.com/\nscholar_case?case=355479416909506104&hl=en&as_sdt=2&as_vis=1&oi=scholarr\n\n4.\n\nThe defendant is charged with solicitation to traffic narcotics. The defendant was in a vehicle with other\nindividuals, and a drug dealer approached them. The defendant gave the drug dealer twenty dollars to\nexamine the drugs, gave the drugs back, and got his twenty dollars back. Thereafter, a police officer who\nhad witnessed the transaction arrested everyone in the car. Will you accept or reject the case? Read State v.\nPinson, 895 P.2d 274 (1995). The case is available at this link: http://scholar.google.com/\nscholar_case?case=1966550891971070482&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\nCases of Interest\n\xe2\x80\xa2\n\n\xe2\x80\xa2\n\nPeople v. Hart, 176 Cal. App. 4th 662 (2009), discusses attempt and the natural and probable\nconsequences doctrine: http://scholar.google.com/scholar_case?case=9438325952737556456&hl=\nen&as_sdt=2&as_vis=1&oi=scholarr.\nU.S. v. Guest, 383 U.S. 745 (1966), discusses conspiracy and the US Constitution: http://www.oyez.org/\n\n\x0c284 Criminal Law\n\ncases/1960-1969/1965/1965_65.\n\xe2\x80\xa2\n\nReynolds v. State, 2007 Tex. App. LEXIS 6139 (2007), discusses solicitation to commit capital murder:\nhttps://casetext.com/case/reynolds-v-state-54.\n\nArticles of Interest\n\xe2\x80\xa2\n\nCriminal attempt: https://www.highbeam.com/doc/1G1-389935141.html\n\n\xe2\x80\xa2\n\nJos\xc3\xa9 Padilla\xe2\x80\x99s conspiracy conviction: http://www.nytimes.com/2008/01/23/us/23padilla.html\n\n\xe2\x80\xa2\n\nCriminal solicitation and entrapment: http://digitalcommons.uconn.edu/cgi/viewcontent.cgi?article\n=1071&context=econ_wpapers\n\nWebsites of Interest\n\xe2\x80\xa2\n\nDiscussion on various crimes, including inchoate crimes: http://criminal.laws.com/conspiracy\n\n\xe2\x80\xa2\n\nInformation about the RICO Act: http://www.ricoact.com\n\nAnswers to Exercises\nFrom Section 8.1 \xe2\x80\x9cAttempt\xe2\x80\x9d\n1.\n\nCarol can be charged with murder because her father died within the jurisdiction\xe2\x80\x99s requisite time limit. If\nher father did not die within one year and a day, Carol could only be charged with attempted murder. Carol\ncannot be charged with attempted murder and murder because attempt merges into the offense if it is\ncompleted in Carol\xe2\x80\x99s jurisdiction.\n\n2.\n\nThe Supreme Court of Missouri reversed the defendant\xe2\x80\x99s conviction. Following a substantial steps\nanalysis, the court determined that in the absence of evidence that the defendant placed the pills inside the\njar, the defendant must be in possession of the jar to be guilty of attempted methamphetamine production,\nand the facts did not indicate that possession.\n\n3.\n\nThe Michigan Court of Appeals reversed the defendant\xe2\x80\x99s conviction, reasoning that assault with intent to\ncommit attempted kidnapping is a nonexistent offense because it would require the specific intent to\ncommit an uncompleted crime.\n\nAnswers to Exercises\nFrom Section 8.2 \xe2\x80\x9cConspiracy\xe2\x80\x9d\n\n\x0c8.4 End-of-Chapter Material 285\n\n1.\n\nGail and Roger can be convicted of felony conspiracy to commit a misdemeanor because it is not\nunconstitutional to punish conspiracy more severely than the crime that is its object.\n\n2.\n\nThe New Hampshire Supreme Court upheld the defendant\xe2\x80\x99s conviction because under New Hampshire\nlaw it is not necessary for both parties to the conspiracy to possess conspiracy criminal intent.\n\n3.\n\nThe Supreme Court of Pennsylvania upheld the defendant\xe2\x80\x99s convictions, determining that it was too late\nfor him to abandon the conspiracy, and also that the evidence indicated he was holding the knife \xe2\x80\x9cat the\nready\xe2\x80\x9d for the criminal actor to grab and use.\n\nAnswers to Exercises\nFrom Section 8.3 \xe2\x80\x9cSolicitation\xe2\x80\x9d\n1.\n\nNancy has committed solicitation to commit counterfeiting, which is criminal if Nancy\xe2\x80\x99s jurisdiction\ncriminalizes the solicitation to commit this type of offense. It is of no import that Jennifer refuses Nancy\xe2\x80\x99s\nrequest because the criminal act element of solicitation is requesting another to commit a crime, not a\nmutual understanding or agreement (like conspiracy).\n\n2.\n\nThe Court of Criminal Appeals of Texas reversed the defendant\xe2\x80\x99s conviction, agreeing with the defendant\nthat he solicited a payment, not a murder.\n\n3.\n\nThe Michigan Court of Appeals upheld the defendant\xe2\x80\x99s conviction, based on the plain meaning of the\nstatute that does not require the individual solicited to have the intent to commit the crime solicited.\n\nAnswer to Law and Ethics Question\n1.\n\nOne of the biggest concerns about the crime of conspiracy is that it is easier to prove than many\nsubstantive crimes. In Chapter 7 \xe2\x80\x9cParties to Crime\xe2\x80\x9d, an example is given in Section 7.1 \xe2\x80\x9cParties to Crime\xe2\x80\x9d\nwhere an alleged terrorist was acquitted of over two hundred counts of accomplice to murder, but he was\nconvicted of one count of conspiracy. The Han case also illustrates this principle. The circumstantial\nevidence presented at trial may not have been enough to prove attempted murder, but it was clearly enough\nto convince the jury that there was a conspiracy to murder. However, the rationale supporting\nconspiracy\xe2\x80\x94that it is more likely that a crime will be completed if it is a group effort\xe2\x80\x94is also illustrated by\nthe Han case. A thorough review of the facts as detailed in that case reveals that Jeen Han approached more\nthan one individual about attacking and killing her sister. She seemed unwilling or possibly incapable of\ncommitting this crime alone. Once she had the support of the other two codefendants, she was able to move\nforward with the offense. The circumstantial evidence presented at trial was not overwhelming. However,\nappellate courts give the trier of fact the benefit of the doubt because the judge or jury views the evidence\nfirsthand\xe2\x80\x94rather than simply reading it in a court transcript. Also, the right to a jury trial must be preserved,\nregardless of whether the jury follows the law or acts ethically.\n\n\x0c286 Criminal Law\n\nAnswers to You Be the Defense Prosecutor\n1.\n\nIn this case, the US Court of Appeals for the Fifth Circuit upheld the defendant\xe2\x80\x99s conviction for witness\ntampering by attempting to kill a witness. The court specifically held that the defendant\xe2\x80\x99s expressed intent to\nkill, combined with his efforts to find the witness\xe2\x80\x99s house, and his possession of a gun that had recently been\ntest-fired in the vicinity of the witness\xe2\x80\x99 house was enough to constitute a \xe2\x80\x9csubstantial step\xe2\x80\x9d toward\ncompletion of the offense of killing the witness. Thus you would be successful on the witness tampering\ncharge and you should accept the case.\n\n2.\n\nThe Criminal Court, City of New York held that the criminal complaint for attempted child sexual abuse\nwas sufficient on its face. The court stated that evidence indicating the defendant blocked the door and tried\nto kiss the student, coupled with physical and verbal coercive conduct, could constitute the criminal act\nelement of attempted child sexual abuse. Thus the attempted child sexual abuse charges are sufficient and\nyou should accept the case.\n\n3.\n\nIn this case, the Appellate Court of Connecticut held that manslaughter is a reckless intent crime, so there\ncould be no conspiracy to commit it. A defendant cannot have the specific intent to commit a reckless intent\ncrime. Thus you would lose on the conspiracy to commit manslaughter charge and you should reject the\ncase.\n\n4.\n\nThe Court of Appeals of New Mexico held that solicitation cannot be charged when it is incidental to the\ncrime solicited. The court reasoned that trafficking narcotics criminalizes only the sale (not the purchase) of\nnarcotics, and narcotics cannot be sold without a buyer. Thus you would lose on the solicitation charge and\nshould reject the case.\n\n\x0cChapter 9: Criminal Homicide\n\nBill Salek \xe2\x80\x93 Evidence \xe2\x80\x93 CC BY-ND 2.0.\n\n[W]hether it is made for the purpose of destroying animal life, or whether it was not made by man at all, or\nwhether it was made by him for some other purpose, if it is a weapon, or if it is a thing with which death can be\neasily and readily produced, the law recognizes it as a deadly weapon\xe2\x80\xa6\n\xe2\x80\x94Acers v. U.S., cited in Section 9 \xe2\x80\x9cInference of Intent\xe2\x80\x9d\n\n287\n\n\x0c9.1 Homicide\n\nLearning Objectives\n1.\n\nDefine homicide.\n\n2.\n\nRecognize that all homicides are not criminal.\n\n3.\n\nIdentify the corpus delicti components in a criminal homicide.\n\n4.\n\nCompare the definition of fetus in criminal homicide and feticide statutes.\n\n5.\n\nCompare common-law feticide and suicide with modern views.\n\n6.\n\nAscertain whether it is constitutional to criminalize assisted suicide.\n\nIn this section, you learn the definition of homicide and the meaning of human being, which vary from state to\nstate. You also learn that suicide is not criminal, but assisted suicide might be, depending on the jurisdiction.\n\nSynopsis of the History of Homicide\nHomicide is the killing of one human being by another. Homicide is not always criminal. For example, a lawful\nexecution pursuant to the death penalty is homicide, but it is not criminal homicide.\nHomicide law in the United States has its origins in the English common law. Oxford professor Sir William\nBlackstone defined homicide as justifiable, excusable, or felonious. Justifiable homicides were not criminal\nbecause they did not include the concept of guilt. Excusable homicides were not criminal because they included\nminimal guilt. Felonious homicides were criminal and were considered the most heinous offenses known to man.\nInitially at common law, every felonious or criminal homicide was punished by death. Gradually, as the law\nevolved, unlawful killings were divided into murder and manslaughter based on the defendant\xe2\x80\x99s criminal intent.\nMurder had the criminal intent element of malice aforethought and remained a capital offense. Manslaughter was\nan unlawful killing without malice and was punished by incarceration.\nIn modern times, most states define criminal homicide and its elements in statutes, which often are interpreted\nby case law. Many jurisdictions continue to follow Blackstone\xe2\x80\x99s philosophy and the common-law division\nbetween murder and manslaughter, as is discussed in this chapter.\n\nCorpus Delicti in Criminal Homicide\nAn essential component of every criminal case, including criminal homicide, is corpus delicti. Corpus delicti is\nthe substance of the crime at issue. The prosecution must prove corpus delicti beyond a reasonable doubt, with\nevidence other than a defendant\xe2\x80\x99s confession (People v. Ochoa, 2011). Although a detailed discussion of corpus\n288\n\n\x0c9.1 Homicide 289\n\ndelicti is beyond the scope of this text, corpus delicti in a criminal homicide case consists of the death of a victim,\ncaused by the defendant, in an unlawful manner.\nOften the victim\xe2\x80\x99s body is never discovered, which could make it more difficult for the prosecution to prove\ncorpus delicti but not impossible. If there is sufficient circumstantial or direct evidence, such as bloodstains,\nsurveillance footage, or witness testimony, the prosecution can prove corpus delicti without the victim\xe2\x80\x99s body and\ncan convict the defendant of criminal homicide.\n\nFeticide\nFeticide is the intentional destruction of a fetus. At common law, a human being could not be the victim of\ncriminal homicide unless it was born alive (Keeler v. Superior Court, 2010). The Model Penal Code takes this\napproach and defines human being as \xe2\x80\x9ca person who has been born and is alive\xe2\x80\x9d (Model Penal Code \xc2\xa7 210.0 (1)).\nThe modern trend in many jurisdictions is to include the fetus as a victim in a criminal homicide or feticide statute,\nexcepting abortion. The definition of fetus is either set forth in the criminal homicide or feticide statute or created\nby case law. Many states and the federal government consider an embryo a fetus from the time of conception (Ala.\nCode, 2010). Other states determine that a fetus is formed when the child has \xe2\x80\x9cquickened,\xe2\x80\x9d or is able to move\nwithin the womb\xe2\x80\x94about four to five months after conception (Fla. Stat., 2010). A few states do not consider the\nfetus a victim of criminal homicide or feticide until it is viable and can survive outside the womb (Ind. Code,\n2010).\nFigure 9.1 Crack the Code\n\n\x0c290 Criminal Law\n\nSuicide\nAt common law, suicide was a crime. The punishment was forfeiture of the lands owned by the deceased. In\nmodern times, most states do not criminalize suicide. However, almost all jurisdictions make it a crime to assist\n\n\x0c9.1 Homicide 291\n\na suicide, and the US Supreme Court has held these statutes constitutional (Washington v. Glucksberg, 2010).\nSeveral states have special statutes that specifically punish assisted suicide less severely than their first- or seconddegree murder statutes (Tex. Penal Code, 2010). A minority of states allow terminally ill patients to end their lives\nwith the assistance of a physician (Or. Rev. Stat., 2010). The Model Penal Code provides that \xe2\x80\x9c[a] person who\npurposely aids or solicits another to commit suicide is guilty of a felony of the second degree if his conduct causes\nsuch suicide or an attempted suicide\xe2\x80\x9d (Model Penal Code \xc2\xa7 210.5(2)).\n\nKey Takeaways\n\xe2\x80\xa2\n\nHomicide is the killing of one human being by another.\n\n\xe2\x80\xa2\n\nHomicide is not always criminal. For example, a lawful execution pursuant to the death penalty is\nhomicide, but it is not criminal homicide.\n\n\xe2\x80\xa2\n\nThe corpus delicti components in a criminal homicide are the death of the victim, caused by the\ndefendant, in an unlawful manner.\n\n\xe2\x80\xa2\n\nStates that criminalize feticide consider an embryo a fetus at the moment of conception, when it quickens\nin the womb, or when it is viable and can survive outside the womb.\n\n\xe2\x80\xa2\n\nIn modern times, in many jurisdictions feticide is a crime (excepting abortion), and suicide is not. At\ncommon law, the following applied:\n\n\xe2\x80\xa2\n\n\xe2\x97\xa6\n\nFeticide was not a crime; only a person \xe2\x80\x9cborn alive\xe2\x80\x9d could be the victim of criminal homicide.\n\n\xe2\x97\xa6\n\nSuicide was a crime; the punishment was forfeiture of the deceased\xe2\x80\x99s lands.\n\nThe US Supreme Court has held that it is constitutional to criminalize assisted suicide, and most states do.\nA minority of states allow a physician to legally end the life of a terminally ill patient.\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n2.\n\nWhat is the fundamental difference between homicide and suicide?\nRead Washington v. Glucksberg, 521 U.S. 702 (1997). Which part of the Constitution did the US Supreme\nCourt analyze when it held that it is constitutional to criminalize assisted suicide? The case is available at\nthis link: http://scholar.google.com/scholar_case?case=17920279791882194984&q=\nWashington+v.+Glucksberg&hl=en&as_sdt=2,5.\n\nReferences\nAla. Code \xc2\xa7 13A-6-1, accessed February 13, 2010, http://www.legislature.state.al.us/codeofalabama/1975/\n13A-6-1.htm.\nFla. Stat. \xc2\xa7 782.09, accessed July 10, 2010, http://www.lawserver.com/law/state/florida/statutes/\nflorida_statutes_782-09.\n\n\x0c292 Criminal Law\n\nInd. Code \xc2\xa735-42-1-1(4), accessed July 10, 2010, http://www.in.gov/legislative/ic/code/title35/ar42/ch1.html.\nKeeler v. Superior Court, 2 Cal.3d 619 (1970), accessed July 10, 2010, http://scholar.google.com/\nscholar_case?case=2140632244672927312&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\nOr. Rev. Stat. \xc2\xa7 127.800 et seq., accessed July 10, 2010, http://law.onecle.com/oregon/127-powers-of-attorneyadvance-directives/index.html.\nPeople v. Ochoa, 966 P.2d 442 (1998), accessed February 13, 2011, http://scholar.google.com/\nscholar_case?case=13299597995178567741&q= corpus+delicti+criminal+homicide&hl=en&as_sdt=2,5.\nTex. Penal Code \xc2\xa7 22.08, accessed July 10, 2010, http://law.onecle.com/texas/penal/22.08.00.html.\nWashington v. Glucksberg, 521 U.S. 702 (1997), accessed July 10, 2010, http://scholar.google.com/\nscholar_case?case=17920279791882194984&q= Washington+v.+Glucksberg&hl=en&as_sdt=2,5.\n\n\x0c9.2 Murder\n\nLearning Objectives\n1.\n\nDefine the criminal act element required for murder.\n\n2.\n\nExplain why criminal intent is an important element of murder.\n\n3.\n\nIdentify, describe, and compare the three types of malice aforethought and the three Model Penal Code\nmurder mental states.\n\n4.\n\nExplain the deadly weapon doctrine.\n\n5.\n\nDefine death.\n\n6.\n\nGive examples of justifiable and excusable homicides.\n\n7.\n\nAscertain which type of criminal homicide the defendant commits when deliberately and inadvertently\ntransmitting AIDS.\n\nMurder is a crime that has the elements of criminal act, criminal intent, causation, and harm. In this section, you\nlearn the elements of murder. In upcoming sections, you learn the factors that classify murder as first degree,\nfelony, and second degree.\n\nMurder Act\nMost jurisdictions define the criminal act element of murder as conduct that causes the victim\xe2\x80\x99s death (N.Y. Penal\nLaw, 2011). The criminal act could be carried out with a weapon, a vehicle, poison, or the defendant\xe2\x80\x99s bare hands.\nLike all criminal acts, the conduct must be undertaken voluntarily and cannot be the result of a failure to act unless\na duty to act is created by common law or statute.\n\nMurder Intent\nIt is the criminal intent element that basically separates murder from manslaughter. At common law, the criminal\nintent element of murder was malice aforethought. In modern times, many states and the federal government\nretain the malice aforethought criminal intent (Cal. Penal Code, 2011). The Model Penal Code defines murder\nintent as purposely, knowingly, or recklessly under circumstances manifesting extreme indifference to the value\nof human life (Model Penal Code \xc2\xa7 210.2).\nAn exception to the criminal intent element of murder is felony murder. Most jurisdictions criminalize felony\nmurder, which does not require malice aforethought or the Model Penal Code murder mental states. Felony\nmurder is discussed shortly.\n293\n\n\x0c294 Criminal Law\n\nThe Meaning of Malice\nMalice, as used in the term malice aforethought, is not the intent to vex or annoy. Nor is it hatred of the victim.\nMalice exists when the defendant desires the victim\xe2\x80\x99s death or is indifferent to whether the victim lives or dies.\nMalice is apparent in three criminal homicide situations: the defendant intends to kill the victim, the defendant\nintends to cause serious bodily injury to the victim, or the defendant has a depraved heart and does not care if\nthe victim lives or dies.\nThe specific intent to kill the victim corresponds with the Model Penal Code\xe2\x80\x99s purposely murder mental state\nand is often referred to as express malice (N.R.S., 2011). The intent to cause serious bodily injury corresponds\nwith the Model Penal Code\xe2\x80\x99s knowingly or recklessly murder mental states and is often referred to as implied\nmalice. Serious bodily injury is a technical term and is generally defined in a state statute or by case law. The\nModel Penal Code defines serious bodily injury as \xe2\x80\x9cbodily injury which creates a substantial risk of death or\nwhich causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily\nmember or organ\xe2\x80\x9d (Model Penal Code \xc2\xa7 210.0(3)). The depraved heart intent is also implied malice (N.R.S.,\n2011) and corresponds with the Model Penal Code\xe2\x80\x99s knowingly or recklessly murder mental states, depending on\nthe attendant circumstances.\n\nExample of Intent to Kill\nJay decides he wants to kill someone to see what it feels like. Jay drives slowly up to a crosswalk, accelerates,\nand then runs down an elderly lady who is crossing the street. Jay is acting with the intent to kill, which would be\nexpress malice or purposely.\n\nExample of Intent to Cause Serious Bodily Injury\nJay wants to injure Robbie, a track teammate, so that he will be the best runner in the high school track meet. Jay\nwaits for Robbie outside the locker room and when Robbie exits, Jay attacks him and stabs him several times in\nthe knee. Unfortunately, one of Jay\xe2\x80\x99s stabbing wounds is in the carotid artery, and Robbie bleeds to death. Jay is\nacting with the intent to cause serious bodily injury, which would be implied malice, or knowingly or recklessly\nunder circumstances manifesting extreme indifference to the value of human life.\n\nExample of Depraved Heart Intent\nJay is angry at Brittany for turning him down when he asks her to the senior prom. Jay decides to teach Brittany\na lesson. He knocks her unconscious as she walks home from school and then drives her out to a deserted field\nand dumps her on the ground. He thereafter leaves, feeling vindicated at the thought of her walking over ten miles\nto the nearest telephone. Brittany does not regain consciousness and spends the entire night in the field, where\ntemperatures drop to 5\xc2\xb0F. Brittany dies of exposure and acute hypothermia. Jay acts with the intent of depraved\n\n\x0c9.2 Murder 295\n\nheart, also called abandoned and malignant heart. This criminal intent is another form of implied malice, or\nknowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.\n\nThe Meaning of Aforethought\nThe term aforethought at common law meant that the defendant planned or premeditated the killing. However, this\nterm has lost its significance in modern times and does not modify the malice element in any way. Premeditation\nis a factor that can elevate murder to first-degree murder, as is discussed shortly.\n\nInference of Intent\nThe deadly weapon doctrine creates an inference of murder intent when the defendant uses a deadly weapon\n(People v. Carines, 2011). A judge may instruct the jury that they can infer the defendant intended the natural\nand probable consequences of the criminal act, which are death when a deadly weapon is utilized. This basically\nalleviates the burden of having to prove criminal intent for murder.\nA deadly weapon is any instrumentality that can kill when used in a manner calculated to cause death or serious\nbodily injury (Acers v. United States, 2010). The Model Penal Code defines deadly weapon as \xe2\x80\x9cany firearm, or\nother weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is\nused or is intended to be used is known to be capable of producing death or serious bodily injury\xe2\x80\x9d (Model Penal\nCode \xc2\xa7 210.0 (4)). Some examples of deadly weapons are knives, guns, broken bottles, or even bare hands if there\nis a discrepancy in the size of the attacker and the victim. Aside from creating an inference of intent for murder,\nuse of a deadly weapon may also enhance a sentence for certain crimes.\n\nCausation Issues in Murder\nThere is always a causation analysis for murder. The defendant must be the factual and legal cause of a very\nspecific harm\xe2\x80\x94the victim\xe2\x80\x99s death. Causation issues in murder are numerous. If a state has a one or three years and\na day rule, this could complicate the causation scenario when a victim\xe2\x80\x99s life is artificially extended. One and three\nyears and a day rules are discussed in detail in Chapter 4 \xe2\x80\x9cThe Elements of a Crime\xe2\x80\x9d. In addition, co-felon liability\ncould extend criminal responsibility to defendants that did not actually kill the victim, as is discussed shortly.\n\nHarm Element of Murder\nAs stated previously, the harm element of murder is a victim\xe2\x80\x99s death. With the advent of life-sustaining machines,\njurisdictions have had to develop a definition for the term dead. A victim is legally dead when there is irreversible\ncessation of the entire brain, including the brain stem (Uniform Determination of Death Act, 2010).\nFigure 9.2 Diagram of Murder\n\n\x0c296 Criminal Law\n\nJustification and Excuse\nAs Blackstone stated, murder cannot be justified or excused. Justifiable and excusable homicides are noncriminal,\nand thus justification or excuse can operate as an affirmative defense in many jurisdictions. A thorough\ndiscussion of defenses based on justification and excuse is in Chapter 5 \xe2\x80\x9cCriminal Defenses, Part 1\xe2\x80\x9d and Chapter\n6 \xe2\x80\x9cCriminal Defenses, Part 2\xe2\x80\x9d.\nA justifiable homicide is a homicide that is warranted under the circumstances. One example of a justifiable\nhomicide is when a law enforcement officer shoots and kills a fleeing felon to prevent imminent great bodily\ninjury or death. This killing is intentional and purposeful with malice aforethought, but it is noncriminal. The\njustification negates the criminality and the law enforcement officer will not be convicted of murder. A complete\ndiscussion of use of deadly force by law enforcement to arrest or apprehend a criminal defendant is in Chapter 5\n\xe2\x80\x9cCriminal Defenses, Part 1\xe2\x80\x9d. Other murder defenses based on justification are self-defense, defense of others, and\ndefense of habitation.\nAn excusable homicide is a homicide that society forgives or pardons. One example of an excusable homicide\nis a homicide committed by a defendant who is found legally insane. This killing could also be intentional and\npurposeful with malice aforethought, but it is noncriminal. The excuse negates the criminality and the defendant\nwill not be convicted of murder. A complete discussion of the insanity defense is in Chapter 6 \xe2\x80\x9cCriminal Defenses,\nPart 2\xe2\x80\x9d.\n\nAIDS and Homicide\nThe criminal transmission of AIDS is a new and evolving topic with state and federal courts and criminal codes.\nMany jurisdictions have statutes specifying that death by the deliberate transmission of AIDS is murder because\nmurder intent is present (Minn. Stat. Ann., 2010). Death by the inadvertent transmission of AIDS is more likely\nmanslaughter, although modern courts could begin to imply malice or murder intent in this situation. For states\n\n\x0c9.2 Murder 297\n\nthat follow the one or three years and a day rule, the time limit could affect any murder or manslaughter charge\nbecause medical breakthroughs have extended the life span of AIDS victims significantly.\n\nGood News: The US Murder Rate Is Declining\nTable 9.1 Murder Rate in the United States: Percent Change January\xe2\x80\x93December\nYears\n\nPercent Change/Murder Rate\n\n2006/2005\n\n+1.8\n\n2007/2006\n\n\xe2\x88\x920.6\n\n2008/2007\n\n\xe2\x88\x923.9\n\n2009/2008\n\n\xe2\x88\x927.2\n\nSource: Department of Justice, \xe2\x80\x9cCrime in the United States; Preliminary Annual Uniform Crime Report,\xe2\x80\x9d accessed\nJuly 28, 2010, http://www.fbi.gov/ucr/prelimsem2009/table_3.html.\n\nKey Takeaways\n\xe2\x80\xa2\n\nThe criminal act element required for murder is conduct that causes the victim\xe2\x80\x99s death.\n\n\xe2\x80\xa2\n\nThe criminal intent element of murder is important because it distinguishes murder from manslaughter.\n\n\xe2\x80\xa2\n\nThe three types of malice aforethought are intent to kill, intent to cause serious bodily injury, and\ndepraved heart. The three Model Penal Code murder mental states are purposely, knowingly, or recklessly\nunder circumstances manifesting extreme indifference to the value of human life.\n\n\xe2\x80\xa2\n\nExpress malice is the intent to kill the victim, or purposely, under the Model Penal Code. Implied malice\nis indifference to whether the victim lives or dies, or knowingly or recklessly under circumstances\nmanifesting extreme indifference to the value of human life under the Model Penal Code. Implied malice,\nknowingly, and recklessly includes the intent to commit serious bodily injury and depraved heart intent.\n\n\xe2\x80\xa2\n\nThe deadly weapon doctrine creates an inference of murder intent when the defendant uses a deadly\nweapon. If the trier of fact accepts the inference, the prosecution does not have the burden of proving\ncriminal intent.\n\n\xe2\x80\xa2\n\nA human being is dead when there is irreversible cessation of the entire brain, including the brain stem.\n\n\xe2\x80\xa2\n\nAn example of a justifiable homicide is a killing by law enforcement to prevent great bodily injury or\ndeath. An example of an excusable homicide is a killing perpetrated by a legally insane defendant.\n\n\xe2\x80\xa2\n\nWhen a victim dies because of the deliberate transmission of AIDS, the crime is most likely murder\nbecause murder intent is present. When a victim dies because of the inadvertent transmission of AIDS, the\ncrime is most likely manslaughter, although modern courts could begin to imply malice or murder intent in\nthis situation.\n\n\x0c298 Criminal Law\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nJay is angry about the grade he received on his criminal law midterm. Jay pulls a loaded revolver out of\nhis backpack, aims at a tree and fires in an attempt to release his frustrations. Unfortunately, Jay is an\ninexperienced marksman and the bullet strikes an innocent bystander in the forehead, killing him. What was\nJay\xe2\x80\x99s criminal intent when shooting the revolver?\n\n2.\n\nA prosecutor reviews the file for Jay\xe2\x80\x99s criminal case. After reading the facts, he chuckles and tells his\nparalegal, \xe2\x80\x9cIt won\xe2\x80\x99t be hard to prove criminal intent in this case.\xe2\x80\x9d Is this true? Why or why not?\n\n3.\n\nRead U.S. v. Moore, 846 F.2d 1163 (1988). Did the US Court of Appeals for the Eighth Circuit hold that\nteeth are a deadly weapon when the defendant is infected with the HIV virus? The case is available at this\nlink: http://openjurist.org/846/f2d/1163.\n\nReferences\nAcers v. United States, 164 U.S. 388 (1896), accessed February 13, 2010, http://scholar.google.com/\nscholar_case?case=16538901276155737856&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\nCal. Penal Code \xc2\xa7 187, accessed February 4, 2011, http://law.justia.com/california/codes/2009/pen/\n187-199.html.\nMinn. Stat. Ann. \xc2\xa7 609.2241, accessed February 24, 2010, https://www.revisor.mn.gov/statutes/?id=609.2241.\nN.R.S. \xc2\xa7 200.020(1), accessed February 13, 2011, http://law.onecle.com/nevada/crimes/200.020.html.\nN.Y. Penal Law \xc2\xa7 125.27, accessed February 4, 2011, http://law.onecle.com/new-york/penal/\nPEN0125.27_125.27.html.\nPeople v. Carines, 597 N.W. 2d 130 (1999), accessed February 13, 2011, http://scholar.google.com/\nscholar_case?case=6441565823584670121&q= deadly+weapon+doctrine&hl=en&as_sdt=2,5.\nUniform Determination of Death Act, accessed February 14, 2010, http://www.gencourt.state.nh.us/rsa/html/X/\n141-D/141-D-mrg.htm.\n\n\x0c9.3 First-Degree Murder\n\nLearning Objectives\n1.\n\nAscertain the three types of murder that are typically first degree.\n\n2.\n\nDefine premeditated murder.\n\n3.\n\nExplain the significance of the criminal act element of murder in premeditated murder.\n\n4.\n\nDefine murder by a specified means.\n\n5.\n\nGive examples of specified means for first-degree murder.\n\n6.\n\nAnalyze first-degree murder grading.\n\n7.\n\nAscertain the circumstances that merit capital punishment.\n\nIn this section, you analyze the factors that classify a murder as first-degree murder. Keep in mind that the\ncriminal act, criminal intent, causation, and harm elements of murder have already been discussed.\n\nFactors Classifying Murder as First Degree\nStates and the federal government usually include premeditated murder, murder by a specified means, and\nvery serious felony murders in their first-degree murder statutes. Felony murder is discussed shortly.\n\nPremeditated Murder\nPremeditated murder was originally and historically the predominant form of murder in any first-degree murder\nstatute. A common statutory definition of first-degree premeditated murder is a willful, deliberate, premeditated\nkilling (Mich. Comp. Laws, 2010).\n\nDefinition of Willful, Deliberate, and Premeditated\nMost jurisdictions define willful as a specific intent to kill, purposely, or express malice. Jurisdictions differ\nwhen interpreting deliberate and premeditated. A minority of jurisdictions equate express malice or purposely\nwith deliberation and premeditation, which means that the prosecution need only prove specific intent to kill for\na first-degree premeditated murder conviction (Hawthorne v. State, 2010). However, this interpretation could blur\nthe distinction between first and second-degree murder. The majority of jurisdictions have defined deliberate as\n299\n\n\x0c300 Criminal Law\n\ncalm and methodical, without passion or anger (People v. Anderson, 2011). Premeditated generally means the\ndefendant reflected on the act or planned ahead (People v. Cole, 2011). In other words, if the defendant specifically\nintends to kill the victim and rationally, purposefully, takes steps that culminate in the victim\xe2\x80\x99s death, the defendant\nhas committed first-degree premeditated murder in many jurisdictions.\nOften it is the act itself that proves the killing was willful, deliberate, and premeditated. If the killing is carried\nout in a manner that indicates a strong and calculated desire to bring about the victim\xe2\x80\x99s death, the trier of fact can\nand often does conclude that the murder was premeditated (State v. Snowden, 2010).\nMost jurisdictions agree that an extended period of time is not a requirement of premeditation (Commonwealth\nv. Carroll, 2010). Thus a murder can be premeditated and first degree even if it is conceived only moments before\nthe actual killing (State v. Schrader, 2010). Some jurisdictions do not require any appreciable time lapse between\nthe formation of intent and the criminal act (State v. Snowden, 2010).\n\nExample of a Willful, Deliberate, Premeditated Murder\nImagine that Joannie and her husband Tim are in a terrible fight in the kitchen. Tim tells Joannie that he is going\nto get a divorce and will thereafter seek full custody of their two young children. Joannie states, \xe2\x80\x9cWait here. I need\nto go to the bathroom. I will be right back.\xe2\x80\x9d She walks down the hall, but goes into the bedroom, rather than the\nbathroom, and removes a handgun from the nightstand drawer. She then walks to the bathroom and flushes the\ntoilet. Hiding the handgun in the pocket of her bathrobe, she walks back into the kitchen, removes it, and shoots\nTim four times in the abdomen, killing him.\nIn this scenario, Joannie probably could be convicted of premeditated murder in most jurisdictions. Joannie\nshoots and kills Tim in a calm, methodical manner, evidencing deliberation. Her manufactured excuse and\nflushing of the toilet indicate planning. The act of shooting Tim four times shows that Joannie has a specific\nintent to kill and a strong and calculated desire to bring about Tim\xe2\x80\x99s death. Note that timing is not an issue here.\nEven a few minutes are enough to carry out a premeditated murder if the proper facts are present.\n\nExample of a Spontaneous Killing\nCompare the previous example with this scenario. Frank, Dillon\xe2\x80\x99s supervisor, calls Dillon into his office and\nfires him. Enraged, Dillon grabs a heavy brass paperweight from the top of Frank\xe2\x80\x99s desk and strikes him in the\nforehead, killing him instantly. In this example, Dillon acts in anger, not calm, cool, reflection. The act of grabbing\na heavy brass paperweight appears impulsive, not planned. There is no evidence to indicate that Dillon knew he\nwould be fired or knew that there was a brass paperweight on Frank\xe2\x80\x99s desk. In addition, the single blow to the\nhead does not necessarily indicate that Dillon had a strong and calculated desire to kill Frank. Dillon\xe2\x80\x99s conduct\nmay be supported by murder intent (most likely implied malice, knowingly, or recklessly under circumstances\nmanifesting extreme indifference to the value of human life), but there is no evidence of specific intent to kill,\ndeliberation, or premeditation. Thus Frank\xe2\x80\x99s killing would probably not be first-degree premeditated murder in\nmost jurisdictions.\n\n\x0c9.3 First-Degree Murder 301\n\nMurder by a Specified Means\nMurder by a specified means is a specific method of killing that is extremely heinous. Most states list the specified\nmeans in their first-degree murder statutes. Some examples of commonly included specified means are murder by\ndrive-by shooting, destructive device like a bomb, weapon of mass destruction, ammunition designed to puncture\na bulletproof vest, poison, torture, or lying in wait, which is an ambush-style killing (Cal. Penal Code, 2010). Note\nthat all the aforementioned methods of killing involve premeditation to a certain extent and could also probably\nqualify as first-degree premeditated murder.\nFigure 9.3 Diagram of First-Degree Murder\n\nFirst-Degree Murder Grading\nMost states divide murder into first and second degree (N.R.S., 2011). Some states add a third degree of murder\nthat generally includes less serious sentencing options (Pa. Cons. Stat. Ann., 2010). The Model Penal Code\nclassifies all murders as felonies of the first degree (Model Penal Code \xc2\xa7 210.2(2)).\nFirst-degree murder is the highest classification of murder and results in the most extreme punishment available\nin a jurisdiction\xe2\x80\x99s punishment scheme. If the jurisdiction allows for the death penalty, first-degree murder typically\nis the only crime against an individual that qualifies the defendant for execution (N.R.S., 2011). If the jurisdiction\ndoes not allow for the death penalty, first-degree murder often qualifies the defendant for life in prison (Mich.\nComp. Laws, 2011).\n\nCapital Punishment\nThe US Supreme Court has held that criminal homicide is the only crime against an individual that can merit the\ndeath penalty (Kennedy v. Louisiana, 2010). A discussion of crimes against the government (such as treason) that\nmerit the death penalty is in Chapter 13 \xe2\x80\x9cCrimes against the Government\xe2\x80\x9d.\n\n\x0c302 Criminal Law\n\nIn states that allow capital punishment, first-degree murder with one or more aggravating factor(s) is generally\na capital offense. Examples of aggravating factors are killing more than one person, killing for financial gain,\nkilling with a particularly heinous method, or killing a peace officer (Death Penalty Information Center 1, 2010).\nIn general, the trier of fact must ensure that the aggravating factor(s) are not outweighed by mitigating factor(s).\nExamples of mitigating factors are the youth of the defendant, the defendant\xe2\x80\x99s lack of a criminal history, and the\nfact that the defendant was acting under extreme emotional or mental disturbance (Death Penalty Information\nCenter 2, 2010).\nFigure 9.4 Diagram of Capital Punishment\n\nThe Peterson Case\nA jury convicted Scott Peterson of first-degree premeditated murder for the killing of his pregnant wife Laci Peterson.\nThey also convicted him of second-degree murder for the killing of his unborn son Conner (Montaldo, C. 1, 2010). The\ngoverning statute was California Penal Code \xc2\xa7 189 (Cal. Penal Code, 2010). After issuing the verdict, the jury sentenced\nPeterson to death based on the special circumstance of killing more than one person (Montaldo, C. 2, 2010).\nThe prosecution was successful without direct evidence or proof of the cause of death (Montaldo, C. 1, 2010).\nCongress was inspired by the Peterson case to pass the Unborn Victims of Violence Act, 18 U.S.C. \xc2\xa7 1841 (18\nU.S.C., 2010), creating the new federal crime of killing an unborn child.\n\nKey Takeaways\n\xe2\x80\xa2\n\nMost states and the federal government include premeditated murder, murder by a specified means, and\nfelony murder in their first-degree murder statutes.\n\n\xe2\x80\xa2\n\nPremeditated murder is typically a purposeful killing committed after calm planning and reflection. An\nextensive length of time between the formation of criminal intent and the criminal act is not generally a\nrequirement of premeditated murder.\n\n\xe2\x80\xa2\n\nThe criminal act can help prove that a murder was premeditated. If the killing is carried out in a manner\nthat indicates a strong and calculated desire to bring about the victim\xe2\x80\x99s death, the trier of fact can conclude\nthat the murder was premeditated.\n\n\xe2\x80\xa2\n\nWhen the defendant commits murder with a particularly heinous method, the killing is murder by a\nspecified means.\n\n\xe2\x80\xa2\n\nFirst-degree murder statutes often include the following specified means: murder by drive-by shooting,\n\n\x0c9.3 First-Degree Murder 303\n\ndestructive device like a bomb, weapon of mass destruction, ammunition designed to puncture a bulletproof\nvest, poison, torture, or lying in wait.\n\xe2\x80\xa2\n\nFirst-degree murder is the highest classification of murder with the most severe sentencing options. If the\njurisdiction allows for capital punishment, first-degree murder typically is the only crime against an\nindividual that merits the death penalty. If the jurisdiction does not allow for capital punishment, first-degree\nmurder often qualifies the defendant for life in prison.\n\n\xe2\x80\xa2\n\nThe only crime against an individual that can merit capital punishment is criminal homicide. In most\njurisdictions, the defendant must commit first-degree murder combined with one or more aggravating\nfactors that are not outweighed by mitigating factors to receive the death penalty.\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nJohnnie decides he wants to kill Marcus, the leader of a rival gang. Johnnie knows that Marcus always\nhangs out in front of the gas station on Friday nights. Johnnie puts his gun in the glove compartment of his\ncar and drives to the gas station on a Friday night. He sees Marcus standing out front. He slowly drives by,\ntakes aim, and shoots Marcus from the car, killing him. Could this be first-degree murder? Explain your\nanswer.\n\n2.\n\nRead State v. West, 844 S.W.2d 144 (1992). Did the Supreme Court of Tennessee hold that a defendant\xe2\x80\x99s\nfailure to report a shooting to the police for over an hour and concealment of the murder weapon constitutes\nsufficient evidence to prove premeditated murder? The case is available at this link:\nhttp://scholar.google.com/scholar_case?case=3481778471457660977&hl=en&as_sdt=2002&as_vis=1.\n\n3.\n\nRead U.S. v. Downs, 56 F.3d 973 (1995). Identify motive, planning, and preconceived design in this case.\nThe case is available at this link: https://casetext.com/case/us-v-downs-2.\n\nReferences\nCal. Penal Code \xc2\xa7 189, accessed February 18, 2010, http://law.onecle.com/california/penal/189.html.\nCommonwealth v. Carroll, 412 Pa. 525 (1963), accessed February 18, 2010, http://scholar.google.com/\nscholar_case?case=13694151174720667465&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\nDeath Penalty Information Center 1, \xe2\x80\x9cAggravating Factors for Capital Punishment by State,\xe2\x80\x9d accessed\nSeptember 23, 2010, http://www.deathpenaltyinfo.org/aggravating-factors-capital-punishment-state.\nDeath Penalty Information Center 2, \xe2\x80\x9cTerry Lenamon\xe2\x80\x99s List of State Death Penalty Mitigation Statutes,\xe2\x80\x9d\naccessed September 23, 2010, http://www.jdsupra.com/post/documentViewer.aspx?fid=d61d8c7b-896b-4c1abd87-f86425206b45.\nHawthorne v. State, 835 So. 2d 14 (2003), accessed September 19, 2010, http://scholar.google.com/\nscholar_case?case=6294577581180338458&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\nKennedy v. Louisiana, 128 S. Ct. 2641 (2008), accessed September 21, 2010, http://www.law.cornell.edu/supct/\nhtml/07-343.ZO.html.\n\n\x0c304 Criminal Law\n\nMich. Comp. Laws \xc2\xa7 750.316, accessed September 19, 2010, http://law.onecle.com/michigan/750-michiganpenal-code/mcl-750-316.html.\nMontaldo, C., \xe2\x80\x9cThe Peterson Verdict: Special Circumstances,\xe2\x80\x9d About.com website, accessed July 15, 2010,\nhttp://crime.about.com/od/news/a/scott_verdict.htm.\nMontaldo, C. 1, \xe2\x80\x9cScott Peterson Guilty of first-degree murder,\xe2\x80\x9d About.com website, accessed July 15, 2010,\nhttp://crime.about.com/od/news/a/scott_peterson.htm.\nN.R.S. \xc2\xa7 200.030, accessed February 13, 2011, http://law.onecle.com/nevada/crimes/200.030.html.\nPa. Cons. Stat. Ann. \xc2\xa7 2502, accessed February 14, 2010, http://wings.buffalo.edu/law/bclc/web/pa2501.html.\nPeople v. Anderson, 447 P.2d 942 (1968), accessed February 13, 2011, http://scholar.google.com/\nscholar_case?case=9215896464929219588&q=\ndefinition+of+deliberate+premeditated+murder&hl=en&as_sdt=2,5.\nPeople v. Cole, 95 P.3d 811 (2004), accessed February 13, 2011, http://scholar.google.com/\nscholar_case?case=18037950298665209340&q=\ndefinition+of+deliberate+premeditated+murder&hl=en&as_sdt=2,5.\nState v. Schrader, 302 SE 2d 70 (1982), accessed September 19, 2010, http://scholar.google.com/\nscholar_case?case=287453315188864266&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\nState v. Snowden, 313 P.2d 706 (1957), accessed September 19, 2010, http://scholar.google.com/\nscholar_case?case=16193283019378884065&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n18\nU.S.C.\n\xc2\xa7 1841,\naccessed\nFebruary\n13,\n2010,\nhttp://crime.about.com/gi/o.htm?zi=1/\nXJ&zTi=1&sdn=crime&cdn=newsissues&tm=435&gps=634_398_1276_788&f=10&tt=\n2&bt=0&bts=0&zu=http%3A//www.nrlc.org/Unborn_Victims/UVVAEnrolled.html.\n\n\x0c9.4 Felony Murder\n\nLearning Objectives\n1.\n2.\n\nDefine the criminal intent element required for felony murder.\nCompare the criminal intent element of felony murder to implied malice, knowingly, or recklessly under\ncircumstances manifesting extreme indifference to human life.\n\n3.\n\nExplain the rule of co-felon liability for felony murder.\n\n4.\n\nExplain an exception to the rule of co-felon liability for felony murder.\n\n5.\n\nAnalyze criminal responsibility for felony murder when someone other than a co-felon kills the victim.\n\n6.\n\nAnalyze criminal responsibility for felony murder when someone other than a co-felon kills a co-felon.\n\n7.\n\nDescribe concurrence of the felony and the homicide for felony murder.\n\n8.\n\nAnalyze felony murder grading and ascertain the felonies that typically classify felony murder as first\ndegree.\n\nFelony murder is a criminal homicide that occurs during the commission or attempted commission of a felony.\nMost states and the federal government include felony murder in their penal codes (18 U.S.C., 2011). However, it\nhas not been universally adopted. The Model Penal Code does not include felony murder per se. It does suggest\na rebuttable presumption that killings that occur during the commission of specified dangerous felonies exhibit\nrecklessness under circumstances manifesting extreme indifference to the value of human life (Model Penal Code\n\xc2\xa7 210.2(1)(b)).\n\nFelony Murder Intent\nWhat distinguishes felony murder from murder is the absence of the typical murder intent. The criminal intent\nelement required for felony murder is the intent required for a felony that causes a victim\xe2\x80\x99s death.\n\nExplanation of Felony Murder Intent\nWhen the defendant commits a felony that is inherently dangerous to life, he or she does so knowing that\nsome innocent victim may die. In essence, this awareness is similar to implied malice, knowingly, or recklessly\nunder circumstances manifesting extreme indifference to the value of human life. What is difficult to justify is a\nconviction for felony murder when the felony is not inherently dangerous to life. Thus most jurisdictions limit the\nfelony murder doctrine to felonies that create a foreseeable risk of violence or death. States that include nonviolent\n\n305\n\n\x0c306 Criminal Law\n\nfelonies in their felony murder statutes generally grade them as second- or third-degree felony murder (Fla. Stat.\nAnn., 2010).\n\nExample of Felony Murder Intent\nJoaquin, who has just lost his job, decides to burn down his apartment building because he can\xe2\x80\x99t afford to pay the\nrent. Joaquin carefully soaks his apartment with lighter fluid, exits into the hallway, and throws a lit, lighter-fluidsoaked towel into the apartment. He then runs outside to watch the entire building burn down. Several tenants die\nof smoke inhalation because of the fire. In jurisdictions that recognize felony murder, Joaquin can probably be\ncharged with and convicted of murder for every one of these deaths.\nIn this example, Joaquin did not intend to kill the tenants. However, he did most likely have the criminal intent\nnecessary for arson. Therefore, felony murder convictions are appropriate. Note that Joaquin exhibited extreme\nindifference to whether the tenants in the building lived or died, which could also constitute the criminal intent of\nimplied malice or depraved heart.\n\nLiability of Co-Felons for Felony Murder\nIt is common for more than one defendant to cooperate in the commission of a felony. Group participation in\ncriminal conduct could constitute more than one crime\xe2\x80\x94for example, conspiracy\xe2\x80\x94and could also place criminal\nresponsibility squarely on a defendant who did not commit the criminal act. The general rule for felony murder\nin many jurisdictions is that if one defendant kills a victim during the commission or attempted commission of a\nspecified felony, all defendants involved in the felony are guilty of felony murder (State v. Hoang, 2011).\n\nExample of Co-Felon Liability for Felony Murder\nJoe and Jane dream up a plan to rob a local bank. Joe is designated as the primary robber and is supposed to enter\nthe bank and hand a note to the teller demanding all the money in her station. Jane\xe2\x80\x99s role in the felony is to drive\nthe getaway vehicle to the bank, wait outside the front door with the motor running, and transport Joe and the\nmoney back to their apartment after the bank transaction is completed. Joe takes a handgun hidden beneath his\njacket into the bank. He passes the note to the teller, and she frantically summons a security guard. As the security\nguard starts to approach, Joe pulls out the gun. An elderly lady standing to the left of Joe suffers a heart attack\nand dies at the sight of the gun. In this case, Joe and Jane can probably be convicted of felony murder. Note that\nJane did nothing to directly cause the victim\xe2\x80\x99s death from a heart attack. However, Jane did drive the getaway\nvehicle with the criminal intent to commit robbery, so Jane is criminally responsible for the consequences in many\njurisdictions.\n\n\x0c9.4 Felony Murder 307\n\nException to Co-Felon Liability for Felony Murder\nSome jurisdictions provide an exception to co-felon liability for felony murder if the defendant did not actually\ncommit the act that killed the victim and had neither knowledge nor awareness that a death might occur (N.Y.\nPenal Law, 2010).\n\nExample of the Exception to Co-Felon Liability for Felony Murder\nReview the example with Joe and Jane in Section 9 \xe2\x80\x9cExample of Co-Felon Liability for Felony Murder\xe2\x80\x9d. Change\nthis example so that Jane is a teller at the local bank. Joe and Jane plan the \xe2\x80\x9crobbery\xe2\x80\x9d so that Jane is to pretend Joe\nis a customer, and hand Joe all the money in her station after he enters the bank unarmed and passes her a phony\ncheck made out to \xe2\x80\x9ccash.\xe2\x80\x9d Without informing Jane, Joe brings a gun into the bank, \xe2\x80\x9cjust in case.\xe2\x80\x9d The security\nguard observes Jane handing Joe large amounts of cash. Suspicious, he begins to approach the station. Joe notices\nand frantically pulls out the gun and points it at the security guard. The elderly lady standing to the left of Joe\nsuffers a heart attack and dies at the sight of the gun. In this example, Jane may have a valid defense to co-felon\nliability for the elderly lady\xe2\x80\x99s death in some jurisdictions. Although Jane had the intent to commit theft, a trier\nof fact could determine that Jane had neither the knowledge nor awareness that a death might occur because she\nbelieved she was cooperating in a nonviolent offense. Thus it is possible that in certain jurisdictions only Joe is\nsubject to a conviction of felony murder in this case.\n\nLiability When Someone Other than the Defendant Kills the Victim\nGenerally, if the felony is inherently dangerous to life, and the defendant or defendants intentionally create a\nsituation that is likely to result in death, if death does result, each and every defendant is guilty of felony murder. In\nsome jurisdictions, this criminal liability exists even when someone other than a co-felon kills the victim (People\nv. Hernandez, 2010). Review the bank robbery committed by Joe and Jane, as discussed in Section 9 \xe2\x80\x9cExample of\nCo-Felon Liability for Felony Murder\xe2\x80\x9d. If the security guard takes a shot at Joe but misses and kills the bank teller\ninstead, both Joe and Jane are guilty of the bank teller\xe2\x80\x99s death pursuant to this interpretation of the felony-murder\ndoctrine.\nSome jurisdictions relieve a defendant from criminal liability for felony murder if the death is the death of a\nco-felon, rather than a completely innocent victim (State v. Canola, 2010). In the case of Joe and Jane discussed\nin Section 9 \xe2\x80\x9cExample of Co-Felon Liability for Felony Murder\xe2\x80\x9d, if the security guard shoots and kills Joe in a\njurisdiction that recognizes this exception, Jane is not guilty of felony murder.\n\nConcurrence of the Felony and the Death of the Victim\nAnother important aspect that must be analyzed in any felony murder case is the concurrence of the felony and\nthe death of the victim. The felony and the death must be part and parcel of the same continuous transaction.\n\n\x0c308 Criminal Law\n\nTherefore, there must be a determination of (1) when the felony begins and (2) when the felony ends. If the death\noccurs before or after the commission or attempted commission of the felony, the defendant might not be guilty\nof felony murder.\n\nExample of a Death That Occurs before the Felony Begins\nCarlos shoots and kills his drug dealer in a fit of temper because the drugs he bought are placebo. After the killing,\nit occurs to Carlos that the drug dealer might be carrying significant amounts of cash. Carlos thereafter steals\nsome cash from the drug dealer\xe2\x80\x99s pockets and runs off. Although this killing is probably murder, it is not felony\nmurder. Carlos stole money from his drug dealer, but the theft occurred after the murder. Thus the killing did not\nhappen during a robbery. If premeditation is proven, this could still be first-degree murder, but it is not first-degree\nfelony murder.\n\nDeath That Occurs after the Felony Ends\nMore commonly, the issue is whether the killing occurs after the felony ends. The general rule is that the felony\nends when the defendant has reached a place of temporary safety (People v. Young, 2010). This place does not\nhave to be the defendant\xe2\x80\x99s residence; it could simply be a hiding place. Pursuant to this rule, a death that occurs\nduring a car chase as the defendants flee the scene of the crime is considered felony murder (Del. Code Ann. Tit.\n11, 2011).\nFigure 9.5 Diagram of Felony Murder\n\n\x0c9.4 Felony Murder 309\n\nFelony Murder Grading\nFelony murder can be first, second, or third degree (Fla. Stat. Ann., 2010). Some common examples of felonies\nlisted in first-degree murder statutes are arson, rape, carjacking, robbery, burglary, kidnapping, and certain forcible\nsexual felonies (Cal. Penal Code, 2010).\n\nKey Takeaways\n\xe2\x80\xa2\n\nThe criminal intent element required for felony murder is the intent required for the underlying felony, not\nmurder intent.\n\n\xe2\x80\xa2\n\nIf a felony is inherently dangerous to life, the defendant may act with implied malice, knowingly, or\nrecklessly manifesting extreme indifference to human life when committing or attempting to commit the\nfelony.\n\n\xe2\x80\xa2\n\nIf more than one defendant commits or attempts to commit a felony, all defendants are guilty of felony\nmurder if a victim is killed during the commission or attempted commission of the felony.\n\n\xe2\x80\xa2\n\nSome jurisdictions will not find a co-felon criminally responsible for felony murder if the co-felon did not\ncommit the act of killing and was unaware that there was a risk of death.\n\n\xe2\x80\xa2\n\nIn some jurisdictions, all co-felons are criminally responsible for felony murder when someone other than\n\n\x0c310 Criminal Law\n\na co-felon kills a victim during the commission or attempted commission of a felony that is inherently\ndangerous to life.\n\xe2\x80\xa2\n\nIn some jurisdictions, all co-felons are not criminally responsible for felony murder when someone other\nthan a co-felon kills a co-felon during the commission or attempted commission of a felony.\n\n\xe2\x80\xa2\n\nThe killing must take place during the commission or attempted commission of a felony for the felony\nmurder rule to apply.\n\n\xe2\x80\xa2\n\nFelony murder can be first, second, or third degree. Typical felonies that classify felony murder as first\ndegree are arson, rape, carjacking, robbery, burglary, kidnapping, and certain forcible sexual felonies.\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nRead People v. Anderson, 666 N.W.2d 696 (2003). Did the Minnesota Supreme Court uphold a charge of\nsecond-degree felony murder when the underlying felonies were possession of a firearm by a convicted\nfelon and possession of a stolen firearm? The case is available at this link: http://law.justia.com/cases/\ncalifornia/supreme-court/3d/6/628.html.\n\n2.\n\nKurt robs a convenience store at gunpoint. As the cashier hands him money out of the cash register, Kurt\nhears a siren and runs outside, stuffing the money in his pockets. He sees a dark alley and dashes into it.\nWhile he crouches there waiting for the police to leave, a homeless person living in the alley taps him on the\nshoulder. Startled, Kurt spins around and shoots and kills the homeless person. Is this felony murder?\nExplain your answer.\n\n3.\n\nRead Enmund v. Florida, 458 U.S. 782 (1982). In Enmund, the US Supreme Court held that the death\npenalty is unconstitutional in a felony murder case for one who neither took life, attempted to take life, nor\nintended to take life. On which part of the Constitution did the Court rely in reaching this holding? The case\nis available at this link: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0458_0782_ZO.html.\n\nReferences\nCal. Penal Code \xc2\xa7 189, accessed February 18, 2010, http://law.onecle.com/california/penal/189.html.\nDel. Code Ann. Tit. 11 \xc2\xa7 636 (a) (2), accessed February 18, 2010, http://law.justia.com/delaware/codes/title11/\nc005-sc02.html.\nFla. Stat. Ann. \xc2\xa7 782.04[4], accessed February 18, 2010, http://law.onecle.com/florida/crimes/782.04.html.\nN.Y. Penal Law \xc2\xa7 125.25 (3), accessed February 18, 2010, http://law.onecle.com/new-york/penal/\nPEN0125.25_125.25.html.\nPeople v. Hernandez, 82 N.Y.2d 309 (1993), accessed February 18, 2010, http://scholar.google.com/\nscholar_case?case=3094702040122584711&q= People+v.+Hernandez+82+N.Y.2d+309&hl=en&as_sdt=2,5.\nPeople v. Young, 105 P.2d 487 (2005), accessed February 18, 2010, http://scholar.google.com/\nscholar_case?case=5918096649976465300&q= felony+murder+%22temporary+safety%22&hl=en&as_sdt=2,5.\nState v. Canola, 73 N.J. 206 (1977), accessed February 18, 2010, http://www.audiocasefiles.com/acf_cases/\n8722-state-v-canola.\n\n\x0c9.4 Felony Murder 311\n\nState v. Hoang, 755 P.2d 7 (1988), accessed February 13, 2011, http://scholar.google.com/\nscholar_case?case=2216953450979337225&q=\nheart+attack+during+robbery+%22co+felon%22&hl=en&as_sdt=2,5.\n18 U.S.C. \xc2\xa7 1111, accessed February 4, 2011, http://codes.lp.findlaw.com/uscode/18/I/51/1111.\n\n\x0c9.5 Second-Degree Murder\n\nLearning Objectives\n1.\n\nCompare statutory definitions of second-degree murder.\n\n2.\n\nAscertain two types of murder that are typically second degree.\n\n3.\n\nAnalyze second-degree murder grading.\n\nStates that classify murder as either first or second degree often define second-degree murder as any murder that\nis not first-degree murder (Mich. Comp. Laws, 2010). This definition excludes murders that are premeditated or\ncommitted with a specified means. It includes implied malice murder, such as murder committed with the intent\nto inflict serious bodily injury and depraved heart murder.\n\nDepraved Heart Murder\nSome statutes use the Model Penal Code\xe2\x80\x99s language and define second-degree murder as a killing executed\nrecklessly, under circumstances manifesting extreme indifference to the value of human life (K.S.A., 2010). This\ndefinition embodies the concept, discussed previously, of murders committed with a depraved or abandoned\nand malignant heart. The facts that give rise to this type of second-degree murder often indicate the mens rea\nof recklessness, rather than purposeful or knowing intent or express malice. Whether the killing is a seconddegree murder or manslaughter is left to the trier of fact and often rests on the degree of recklessness exhibited.\nIf the defendant\xe2\x80\x99s conduct indicates extreme indifference to life, the killing is a depraved heart murder. If the\ndefendant\xe2\x80\x99s conduct is simply reckless, the killing is manslaughter. As the Model Penal Code states in its\ncomments, \xe2\x80\x9c[w]hether recklessness is so extreme that it demonstrates similar indifference is not a question, it is\nsubmitted, that can be further clarified. It must be left directly to the trier of fact under instructions which make it\nclear that recklessness that can fairly be assimilated to purpose or knowledge should be treated as murder and that\nless extreme recklessness should be punished as manslaughter\xe2\x80\x9d (A.L.I., Model Penal Code & Commentaries Part\nII \xc2\xa7 210.2, Comment. 4, pp. 21\xe2\x80\x9322 (1980)).\n\nExample of a Depraved Heart Murder\nAfter watching his fifth-grade daughter play softball, Doug attends a party with her team and other parents at the\nlocal pizza parlor. Doug\xe2\x80\x99s daughter leaves the party with her mother, Doug\xe2\x80\x99s ex-wife. Doug consumes ten beers\nand then leaves the party and smokes some crack cocaine in his vehicle. He thereafter begins driving home. As he\nis driving in a busy section of town, he hears his phone beep, indicating the receipt of a text message. He grabs\n312\n\n\x0c9.5 Second-Degree Murder 313\n\nhis phone and starts reading the text. This lapse of attention causes him to run a red light and broadside a vehicle\nturning left in front of him, killing a child sitting in the passenger seat. Doug puts his vehicle in reverse, drives\naround the car he hit, and leaves the scene of the accident. These facts could give rise to a conviction for depraved\nheart second-degree murder. Although Doug did not act with specific intent to kill, his conduct in driving while\nunder the influence of alcohol and crack cocaine, reading a text message while driving impaired in a busy part\nof town, and leaving the scene of an accident most likely elevate Doug\xe2\x80\x99s intent from ordinary recklessness to\nrecklessness indicating extreme indifference to the value of human life. Thus the trier of fact could find Doug\nguilty of murder rather than manslaughter in this case.\nFigure 9.6 Diagram of Second-Degree Murder\nSecond-Degree Murder\nSecond-Degree Murder\n\nSecond-Degree Murder Grading\nMost jurisdictions grade second-degree murder lower than first-degree murder and include less serious sentencing\noptions (N.R.S. \xc2\xa7 200.030, 2011). Most jurisdictions grade second-degree murder higher than manslaughter\nbecause it has a more heinous criminal intent (N.R.S. \xc2\xa7 200.080, 2011). Manslaughter is discussed shortly.\n\nKey Takeaways\n\xe2\x80\xa2\n\nSecond-degree murder is often defined as any murder that is not first-degree murder. Second-degree\nmurder can also be defined as murder committed recklessly, under circumstances evidencing extreme\nindifference to life.\n\n\xe2\x80\xa2\n\nSecond-degree murder includes implied malice murder, such as murder with the intent to cause serious\nbodily injury, and depraved heart murders.\n\n\xe2\x80\xa2\n\nSecond-degree murder is graded lower than first-degree murder but higher than manslaughter.\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nReread the second question of the exercises in Section 9.4 \xe2\x80\x9cFelony Murder\xe2\x80\x9d. When Kurt shoots the\nhomeless person in the alley, is this killing first or second-degree murder? Explain your answer.\n\n2.\n\nRead Berry v. Superior Court, 208 Cal. App. 3d 783 (1989). In Berry, the defendant was charged with\nsecond-degree murder when his pit bull attacked and killed a young child. The pit bull had never bitten\nanyone before this incident. Did the California Court of Appeal uphold the defendant\xe2\x80\x99s murder charge on a\ntheory of implied malice? The case is available at this link: http://lawschool.courtroomview.com/acf_cases/\n9986-berry-v-superior-court.\n\n\x0c314 Criminal Law\n\n3.\n\nRead Dowda v. State, 776 So.2d 714 (2000). Why did the Mississippi Court of Appeals hold that this\nkilling was a depraved heart murder? The case is available at this link: http://www.mssc.state.ms.us/images/\nOpinions/Conv9328.pdf.\n\nReferences\nK.S.A. \xc2\xa7 21-3402, accessed September 21, 2010, http://kansasstatutes.lesterama.org/Chapter_21/Article_34/\n21-3402.html.\nMich.\nComp.\nLaws\n\xc2\xa7 750.317,\naccessed\nFebruary\n24,\n2010,\nhttp://www.legislature.mi.gov/(S(gjc5ys55et3ukfj0uq5uehqm))/mileg.aspx?page=GetObject&objectname=mcl-7\n50-317.\nN.R.S. \xc2\xa7 200.030, accessed February 13, 2011, http://law.onecle.com/nevada/crimes/200.030.html.\nN.R.S. \xc2\xa7 200.080, accessed February 13, 2011, http://law.onecle.com/nevada/crimes/200.080.html.\n\n\x0c9.6 Manslaughter\n\nLearning Objectives\n1.\n\nCompare murder and manslaughter.\n\n2.\n\nDefine voluntary manslaughter.\n\n3.\n\nAscertain the basis of an adequate provocation.\n\n4.\n\nExplain the concurrence of a voluntary manslaughter killing and the heat of passion.\n\n5.\n\nCompare voluntary and involuntary manslaughter.\n\n6.\n\nDescribe the three types of involuntary manslaughter.\n\n7.\n\nAnalyze manslaughter grading.\n\nWhat distinguishes murder from manslaughter is the criminal intent element. Manslaughter is an unlawful\nkilling without malice or murder intent (N.R.S. \xc2\xa7 200.040, 2011). The criminal act, causation, and harm elements\nof manslaughter and murder are fundamentally the same. Thus criminal intent is the only manslaughter offense\nelement that is discussed in this section.\n\nVoluntary Manslaughter\nManslaughter has two basic classifications: voluntary and involuntary. Voluntary manslaughter has the same\ncriminal intent element as murder. In fact, a voluntary manslaughter killing is typically supported by express\nmalice, specific intent to kill, or purposely. However, in a voluntary manslaughter, an emotional state called a\nheat of passion negates the murder intent. An adequate provocation from the victim inspires the heat of passion\n(Tenn. Code Ann., 2010). The Model Penal Code does not require adequate provocation from the victim per se,\nbut it does have a similar provision that reduces murder to manslaughter when there is a reasonable explanation\nor excuse (Model Penal Code \xc2\xa7 210.3(1)(b)).\nThe adequacy requirement is essential to any voluntary manslaughter analysis. Many defendants are provoked\nand thereafter kill with murder intent. Nonetheless, most provocations are not adequate to drop the crime from\nmurder to manslaughter. The victim\xe2\x80\x99s provocation must be serious enough to goad a reasonable person into killing\n(People v. Steele, 2011). A reasonable person is a fictional and objective standard created by the trier of fact. Of\ncourse, the defendant must actually be provoked, which is a subjective standard (People v. Steele, 2011).\n\nExample of Inadequate Provocation\nRevisit the situation discussed in Section 9 \xe2\x80\x9cExample of a Spontaneous Killing\xe2\x80\x9d, in which Dillon kills his\n315\n\n\x0c316 Criminal Law\n\nsupervisor Frank with a brass paperweight after Frank fires him. Clearly, Frank\xe2\x80\x99s conduct provokes Dillon into\nkilling Frank. However, getting fired would not provoke a reasonable person into a killing frenzy. In fact,\nreasonable people are fired all the time and learn to live with it peacefully. Therefore, in this example, Dillon\xe2\x80\x99s\ncrime is most likely murder, not voluntary manslaughter.\n\nExample of Adequate Provocation\nA traditional example of provocation that is adequate to reduce a crime from murder to manslaughter is an\nobservation by one spouse of another spouse in the act of adultery (Ohio v. Shane, 2011). For example, Jos\xc3\xa9 comes\nhome from work early and catches his wife in bed with his best friend. He becomes so enraged that he storms\nover to the dresser, grabs his handgun, and shoots and kills her. Clearly, Jos\xc3\xa9 acts with intent to kill. However,\nthe victim provoked this intent with an act that could cause a reasonable person to kill. Thus Jos\xc3\xa9 has probably\ncommitted voluntary manslaughter in this case, not murder.\n\nOther Examples of Adequate Provocation\nOther examples of adequate provocation are when the homicide victim batters the defendant and a killing that\noccurs during a mutual combat (Ohio v. Shane, 2011). Cases have generally held that words alone are not enough\nto constitute adequate provocation (Girouard v. State, 2011). Thus in the adequate provocation example in Section\n9 \xe2\x80\x9cExample of Adequate Provocation\xe2\x80\x9d, if a friend told Jos\xc3\xa9 that his wife was committing adultery, and Jos\xc3\xa9\nresponded by shooting and killing his wife, this would probably be murder, not voluntary manslaughter.\n\nConcurrence of the Killing and the Heat of Passion\nThe second requirement of voluntary manslaughter is that the killing occur during a heat of passion. Defendants\ngenerally exhibit rage, shock, or fright when experiencing a heat of passion. This emotional state negates the calm,\ndeliberate, intent to kill that supports a charge of murder. However, heat of passion mental states are typically\nbrief in duration. Thus there cannot be a significant time lapse between the victim\xe2\x80\x99s provocation and the killing\n(State v. Cole, 2010). Analyze the adequate provocation example discussed in Section 9 \xe2\x80\x9cExample of Adequate\nProvocation\xe2\x80\x9d. If Jos\xc3\xa9 waits until the next day to shoot and kill his wife, the crime is most likely premeditated firstdegree murder, not voluntary manslaughter.\nFigure 9.7 Diagram of Voluntary Manslaughter\nVoluntary Manslaughter\nAdequate provocation from the victim\n\nKilling occurs during a heat of passion\n\nEnough to cause a\nreasonable person to kill\n\nNo significant time lapse between heat of\npassion and the killing\n\nThe defendant must actually be provoked into\nkilling in a heat of passion\n\n\x0c9.6 Manslaughter 317\n\nInvoluntary Manslaughter\nInvoluntary manslaughter is an unlawful killing that completely lacks murder intent. Involuntary manslaughter\nis distinguishable from voluntary manslaughter, which generally includes a murder intent that has been negated.\nInvoluntary manslaughter generally can be classified as misdemeanor manslaughter, reckless or negligent\ninvoluntary manslaughter, or vehicular manslaughter.\n\nMisdemeanor Manslaughter\nMisdemeanor manslaughter, also called unlawful act manslaughter, is a criminal homicide that occurs during the\ncommission or attempted commission of a misdemeanor. The Model Penal Code completely rejects misdemeanor\nmanslaughter. There is a trend to follow the Model Penal Code\xe2\x80\x99s example and abolish misdemeanor manslaughter.\nMost states that prohibit misdemeanor manslaughter only include misdemeanors that are inherently dangerous to\nlife in the criminal statute, excluding strict liability misdemeanors or malum prohibitum crimes (K.S.A., 2010).\nA minority of states and the federal government include strict liability or malum prohibitum crimes in their\nmisdemeanor manslaughter statutes (21 O.S., 2010). In either jurisdiction, the defendant need only possess the\ncriminal intent for the misdemeanor to be guilty of the killing.\n\nExample of Misdemeanor Manslaughter\nRoberta points an unloaded gun at Jennifer to scare her into breaking up with Roberta\xe2\x80\x99s ex-boyfriend. This crime\nis called brandishing a weapon and is often classified as a misdemeanor. At the sight of the gun, Jennifer suffers\na heart attack and dies. Roberta has most likely committed misdemeanor manslaughter in this case. Brandishing\na weapon is not always inherently dangerous to life. However, if Jennifer has a heart attack and dies because of\nRoberta\xe2\x80\x99s commission of this misdemeanor offense, Roberta still could be criminally responsible for misdemeanor\nmanslaughter in many jurisdictions.\n\nReckless or Negligent Involuntary Manslaughter\nStates and the federal government also criminalize reckless or negligent involuntary manslaughter (Ala. Code,\n2011). Reckless or negligent involuntary manslaughter is a more common form of manslaughter than\nmisdemeanor manslaughter. The Model Penal Code defines reckless homicide as manslaughter and a felony of\nthe second degree (Model Penal Code \xc2\xa7 210.3). The Model Penal Code defines negligent homicide as a felony of\nthe third degree (Model Penal Code \xc2\xa7 210.4).\nReckless involuntary manslaughter is a killing supported by the criminal intent element of recklessness.\nRecklessness means that the defendant is aware of a risk of death but acts anyway. Negligent involuntary\nmanslaughter is a killing supported by the criminal intent element of negligence. Negligence means that the\ndefendant should be aware of a risk of death, but is not. This category includes many careless or accidental deaths,\n\n\x0c318 Criminal Law\n\nsuch as death caused by firearms or explosives, and a parent\xe2\x80\x99s failure to provide medical treatment or necessities\nfor his or her child. Reckless and negligent criminal intent is discussed in detail in Chapter 4 \xe2\x80\x9cThe Elements of a\nCrime\xe2\x80\x9d.\nAs stated in Section 9.5.1 \xe2\x80\x9cDepraved Heart Murder\xe2\x80\x9d, reckless or negligent involuntary manslaughter is often\nsimilar to second-degree depraved heart murder. If the prosecution charges the defendant with both crimes, the\ntrier of fact determines which crime is appropriate based on the attendant circumstances.\n\nExample of Reckless or Negligent Involuntary Manslaughter\nSteven, an off-duty sheriff\xe2\x80\x99s deputy, brings his shotgun into the local rifle shop to be repaired. Steven thinks that\nthe shotgun is unloaded and hands it to the employee with the safety off. Unfortunately, the gun is loaded and\ndischarges, shooting and killing the employee. In this case, Steven should know that at certain times the safety on\nhis shotgun must always be on because he is a registered gun owner and a sheriff\xe2\x80\x99s deputy who has been trained\nto handle guns. However, Steven is unaware of the risk and believes that the gun is unloaded. If the employee\ndies, Steven could be convicted of negligent involuntary manslaughter in jurisdictions that recognize this crime.\nIf Steven is in a jurisdiction that only recognizes reckless involuntary manslaughter, the prosecution may have to\nprove a higher degree of awareness, such as Steven\xe2\x80\x99s knowledge that the shotgun was loaded.\n\nVehicular Manslaughter\nVehicular manslaughter is typically either the operation of a motor vehicle with recklessness or negligence\nresulting in death or the operation of a motor vehicle under the influence of alcohol or drugs resulting in\ndeath (N.Y. Penal Law \xc2\xa7125.12, 2010). Some states have specific vehicular manslaughter statutes (Cal. Penal\nCode, 2011). In states that do not, the defendant could be prosecuted under a jurisdiction\xe2\x80\x99s misdemeanor or\nunlawful act manslaughter statute if the defendant violates a vehicle code section. Vehicular manslaughter can\nalso be prosecuted under a jurisdiction\xe2\x80\x99s reckless or negligent involuntary manslaughter statute, depending on the\ncircumstances. If the defendant uses a motor vehicle as a weapon to kill the victim, the intent to kill is present and\nthe appropriate crime would be murder.\nFigure 9.8 Diagram of Involuntary Manslaughter\n\n\x0c9.6 Manslaughter 319\n\nManslaughter Grading\nVoluntary and involuntary manslaughter typically have a more lenient punishment scheme than murder because\nthe criminal intent is less heinous (N.R.S. \xc2\xa7 200.080, 2011). Often manslaughter functions as an imperfect defense\nto murder, based on the less serious sentencing options. In general, voluntary manslaughter is graded higher than\ninvoluntary manslaughter (N.R.S. \xc2\xa7 200.090, 2011). Some states divide manslaughter into degrees, rather than\nclassifying it as voluntary and involuntary, with first-degree manslaughter punished more severely than seconddegree manslaughter (N.Y. Penal Law \xc2\xa7125.20, 2011). The Model Penal Code grades all manslaughter as a felony\nof the second degree (Model Penal Code \xc2\xa7 210.3(2)) and grades negligent homicide as a felony of the third degree\n(Model Penal Code \xc2\xa7 210.4(2)).\nFigure 9.9 Diagram of Homicide\n\n\x0c320 Criminal Law\n\nKey Takeaways\n\xe2\x80\xa2\n\n\xe2\x80\xa2\n\nMurder is a killing supported by the criminal intent of malice or purposely, knowingly, or recklessly\nunder circumstances manifesting extreme indifference to life. Manslaughter is a killing supported by malice\nnegated by a heat of passion, reckless, or negligent criminal intent.\nVoluntary manslaughter is a killing that occurs during an adequately provoked heat of passion.\n\n\xe2\x80\xa2\n\nAn adequate provocation is one sufficient to goad a reasonable person into killing and that actually\nprovokes the defendant into killing.\n\n\xe2\x80\xa2\n\nA killing must occur during a heat of passion to be classified as voluntary manslaughter. If a killing\noccurs before the heat of passion is provoked or after the heat of passion has cooled, it probably will be\nclassified as murder.\n\n\xe2\x80\xa2\n\nVoluntary manslaughter is supported by murder intent that has been negated in an adequately provoked\nheat of passion. Involuntary manslaughter lacks murder intent altogether.\n\n\xe2\x80\xa2\n\nThe three types of involuntary manslaughter are misdemeanor manslaughter, reckless or negligent\ninvoluntary manslaughter, and vehicular manslaughter.\n\n\xe2\x80\xa2\n\nManslaughter is typically graded lower than murder. Voluntary manslaughter is typically graded higher\nthan involuntary manslaughter. The Model Penal Code grades all manslaughters as felonies of the second\ndegree and grades negligent homicide as a felony of the third degree.\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n2.\n\nHow does the Model Penal Code classify criminal homicides?\nRead Stevens v. State, 691 N.E.2d 412 (1997). Why did the Indiana Supreme Court affirm the lower\ncourt\xe2\x80\x99s decision to refuse a jury instruction on voluntary manslaughter in this case? The case is available at\nthis link: http://scholar.google.com/scholar_case?case=1747625552972024733&q=\n\n\x0c9.6 Manslaughter 321\n\nstevens+v.+state+691+ne2d+412&hl=en&as_sdt=2002&as_vis=1.\n3.\n\nRead Tripp v. State, 374 A.2d 384 (1977). In this case, the defendant killed his ex-girlfriend, her mother,\nher niece, and her son. Did the Maryland Court of Appeals hold that the victim must be the source of\nadequate provocation in a voluntary manslaughter case? The case is available at this link:\nhttp://scholar.google.com/scholar_case?case=17743318345966072534&hl=en&as_sdt=2002&as_vis=1.\n\n4.\n\nRead Walker v. Superior Court, 47 Cal.3d 112 (1988). What was the basis for the involuntary\nmanslaughter charge against the defendant in this case? Did the California Supreme Court uphold this\ncharge? The case is available at this link: http://scholar.google.com/\nscholar_case?case=11713950418773441100&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n\nLaw and Ethics\nShould Killing an Abortion Doctor Be Voluntary Manslaughter?\nScott Roeder left his pew during a church service, walked up to a well-known abortion doctor, and deliberately shot\nhim in the head, killing him. During Roeder\xe2\x80\x99s trial for first-degree premeditated murder, the defense asked the court to\nallow a second charge of voluntary manslaughter. The defense claimed that defendant Roeder was acting in defense of\nothers in the attempt to save the lives of unborn children (USA Today, 2010).\n1.\n\nWhat are some of the consequences of allowing the charge of voluntary manslaughter in this situation?\n\nCheck your answer using the answer key at the end of the chapter.\n\nScott Roeder Verdict Video\nScott Roeder Convicted of Murder\nScott Roeder\xe2\x80\x99s murder verdict is shown in this video:\n" href="http://www.youtube.com/watch?v=lhWyubMcEV0" class="replaced-iframe" onclick="return\nreplaceIframe(this)" data-url="http://www.youtube.com/watch?v=lhWyubMcEV0">(click to see video)\n\nReferences\nAla. Code \xc2\xa7 13A-6-3(a) (1), accessed February 13, 2011, http://law.onecle.com/alabama/criminal-code/\n13A-6-3.html.\nCal. Penal Code \xc2\xa7 191.5, accessed February 7, 2011, http://law.onecle.com/california/penal/191.5.html.\nGirouard v. State, 583 A.2d 718 (1991), accessed February 24, 2011, http://www.audiocasefiles.com/acf_cases/\n8711-girouard-v-state.\nK.S.A. \xc2\xa7 21-3404 (b), accessed July 28, 2010, http://kansasstatutes.lesterama.org/Chapter_21/Article_34/\n21-3404.html.\nN.R.S. \xc2\xa7 200.040, accessed February 13, 2011, http://law.onecle.com/nevada/crimes/200.040.html.\n\n\x0c322 Criminal Law\n\nN.R.S. \xc2\xa7 200.080, accessed February 13, 2011, http://law.onecle.com/nevada/crimes/200.080.html.\nN.R.S. \xc2\xa7 200.090, accessed February 13, 2011, http://law.onecle.com/nevada/crimes/200.090.html.\nN.Y. Penal Law \xc2\xa7 125.12, accessed March 5, 2010, http://wings.buffalo.edu/law/bclc/web/NewYork/\nny3%28a%29%281%29-.htm.\nN.Y. Penal Law \xc2\xa7125.20, accessed February 24, 2011, http://ypdcrime.com/penal.law/article125.htm#125.20.\nOhio v. Shane, 63 Ohio St.3d 630 (1992), accessed February 24, 2011, http://scholar.google.com/\nscholar_case?case=8752055493993855988&q=\nvoluntary+manslaughter+spouse+act+of+adultery&hl=en&as_sdt=2,5.\nPeople v. Steele, 47 P.2d 225 (2002), accessed February 13, 2011, http://scholar.google.com/\nscholar_case?case=18208208560981664037&q=\nvoluntary+manslaughter+reasonable+person+adequate+provocation&hl=en&as_sdt=2,5.\nState v. Cole, 338 S.C. 97 (2000), accessed March 1, 2010, http://www.judicial.state.sc.us/opinions/htmlfiles/\nSC/25037.htm.\nTenn. Code Ann. \xc2\xa7 39-13-211, accessed February 24, 2010, http://www.lexisnexis.com/hottopics/tncode.\nUSA Today, \xe2\x80\x9cMan Testifies he Killed Kansas Abortion Doctor,\xe2\x80\x9d accessed July 27, 2010,\nhttp://www.usatoday.com/news/nation/2010-01-28-tiller-murder-trial_N.htm.\n21\nO.S.\n\xc2\xa7 711(1),\naccessed\nJuly\n28,\n2010,\nhttp://www.oscn.net/applications/oscn/\nDeliverDocument.asp?CiteID=69314.\n\n\x0c9.7 End-of-Chapter Material\n\nSummary\nHomicide is the killing of one human being by another. Criminal homicide is either murder or manslaughter. Some\nstates and the federal government also criminalize the killing of a fetus. Suicide is usually not criminal, although\nassisted suicide could be.\nMany jurisdictions follow the common law and define murder as the killing of a victim with malice aforethought.\nMalice can be either a specific intent to kill, which is express malice, or the intent to do serious bodily injury, or\ndepraved heart, which is implied malice. The Model Penal Code defines murder intent as purposely, knowingly, or\nrecklessly under circumstances indicating extreme indifference to life. A killing by the transmission of AIDS can either\nbe murder, if the transmission is deliberate, or manslaughter, if the transmission is inadvertent.\nMost jurisdictions divide murder into degrees of seriousness. First-degree murder is the most serious, can merit the\ndeath penalty in certain jurisdictions, and generally includes premeditated murder, murder by a specified means, and\nserious felony murders. Premeditated murder is typically a killing supported by specific intent to kill combined with\ncool reflection and planning. Murder by a specified means is killing with a specific heinous method. Felony murder is a\nhomicide that occurs during the commission or attempted commission of a felony. Felony murder lacks murder intent;\nthe defendant need only possess the intent required for the felony. Felony murder can be graded as first, second, or third\ndegree, depending on the felony. The Model Penal Code classifies all murders as first-degree felonies.\nSecond-degree murder is often defined as any murder that is not first degree. Typically, second-degree murder intent\nis the intent to inflict serious bodily injury or a depraved heart intent. Second-degree murder is usually graded lower\nthan first-degree murder but higher than manslaughter.\nIn many jurisdictions, manslaughter is an unlawful killing without murder intent. Most jurisdictions divide\nmanslaughter into voluntary and involuntary. The Model Penal Code classifies all manslaughters as felonies of the\nsecond degree. Voluntary manslaughter is a killing that occurs during a heat of passion inspired by adequate provocation\nfrom the victim, negating murder intent. Involuntary manslaughter can be a killing that occurs during the commission or\nattempted commission of a misdemeanor or a reckless or negligent killing, depending on the jurisdiction. Involuntary\nmanslaughter can also be vehicular manslaughter when the killing occurs while driving a vehicle recklessly, negligently,\nor under the influence of alcohol or drugs. The Model Penal Code classifies negligent killings as negligent homicide and\na felony of the third degree.\n\nYou Be the Judge\nRead the prompt and then decide whether you would affirm or reverse the lower court. Review the case and see how\nthe judges or justices actually ruled. Check your answers using the answer key at the end of the chapter.\n1.\n\nThe defendant shot and killed his ex-girlfriend, who was pregnant. The defendant did not know she was\npregnant, nor was it obvious from her appearance. The lower court reversed a jury verdict of second-degree\nmurder of the fetus, and the prosecution appealed. Would you affirm or reverse? People v. Taylor, 86 P.3d\n881 (2004). The case is available at this link: http://caselaw.lp.findlaw.com/data2/californiastatecases/\ns112443.pdf.\n\n2.\n\nThe defendant held his wife and two small children hostage at gunpoint in a train compartment for three\n\n323\n\n\x0c324 Criminal Law\n\ndays. The wife died of a bullet wound and one of the children died of dehydration. The defendant was\nconvicted of first-degree murder for the child\xe2\x80\x99s death, based on the specified means of \xe2\x80\x9cstarvation.\xe2\x80\x9d The\ndefendant appealed because there was no evidence of specific intent to kill the child. Would you affirm or\nreverse? State v. Evangelista, 353 S.E.2d 375 (1987). The case is available at this link:\nhttp://scholar.google.com/\nscholar_case?case=587685537389879135&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n3.\n\nThe defendant was charged with felony murder for the death of his girlfriend\xe2\x80\x99s mother. The underlying\nfelony was cruelty to an elderly person. The defendant and his girlfriend had removed the victim from an\nassisted living facility so that they could control her Social Security checks. Thereafter, they neglected to\ncare for her and she died from this neglect. The defendant claimed that he had no duty of care for his\ngirlfriend\xe2\x80\x99s mother. The lower court denied his motion for a new trial. Would you affirm or reverse? Wood\nv. State, 620 S.E.2d 348 (2005). The case is available at this link: http://law.justia.com/cases/georgia/\nsupreme-court/2005/s05a0839-1.html.\n\n4.\n\nThe defendant held the victim, his ex-wife, hostage in her home with a gun. When an oil truck pulled into\nher driveway, she smirked at the defendant because she knew the confrontation was over. The defendant\nshot and killed her and claimed that the smirk was adequate provocation. The court held that the defendant\nwas not entitled to a jury instruction on voluntary manslaughter. Would you affirm or reverse? State v.\nWarmke, 879 A.2d 30 (2005). The case is available at this link: http://scholar.google.com/\nscholar_case?case=7047276887490940793&q=State+v.+Warmke,+879+A.2d+30+%282005%29.&hl\n=en&as_sdt=2,6&as_vis=1.\n\nCases of Interest\n\xe2\x80\xa2\n\nUnited States v. Watson, 501 A.2d 791 (1985), discusses premeditation in a short period of time:\nhttp://www.scribd.com/doc/10079243/United-States-v-Watson.\n\n\xe2\x80\xa2\n\nCalderon v. Prunty, 59 F.3d 1005 (1995), discusses lying in wait: http://openjurist.org/59/f3d/1005.\n\n\xe2\x80\xa2\n\nMullaney v. Wilbur, 421 U.S. 684 (1975), discusses the burden of proof for voluntary manslaughter:\nhttp://supreme.justia.com/us/421/684/case.html.\n\nArticles of Interest\n\xe2\x80\xa2\n\nAssisted suicide: http://phoenixcriminallawnews.com/2011/04/lawrence-egbert-of-final-exit-network\n-acquitted-of-manslaughter.html\n\n\xe2\x80\xa2\n\nUtah bill that criminalizes miscarriage: http://abcnews.go.com/Health/utah-abortion-bill-punishingmiscarriages-preventing-crime/story?id=9955517\n\n\xe2\x80\xa2\n\nProsecution of Michael Jackson\xe2\x80\x99s doctor for involuntary manslaughter, http://www.cbsnews.com/stories/\n2011/01/25/eveningnews/main7282905.shtml\n\n\xe2\x80\xa2\n\nHIV as a deadly weapon: http://www.johntfloyd.com/is-hiv-a-deadly-weapon/\n\n\x0c9.7 End-of-Chapter Material 325\n\nWebsites of Interest\n\xe2\x80\xa2\n\nFetal homicide statutes: http://www.ncsl.org/research/health/fetal-homicide-state-laws.aspx\n\n\xe2\x80\xa2\n\nInformation about assisted suicide: http://www.assistedsuicide.org\n\n\xe2\x80\xa2\n\nState statutes on the criminal transmission of HIV: http://www.cdc.gov/hiv/policies/law/states/\nexposure.html\n\nStatistics of Interest\n\xe2\x80\xa2\n\nCrime, including homicide: https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2014/crime-in-theu.s.-2014/offenses-known-to-law-enforcement/expanded-offense\n\nAnswers to Exercises\nFrom Section 9.1 \xe2\x80\x9cHomicide\xe2\x80\x9d\n1.\n\nThe fundamental difference between homicide and suicide is the identity of the victim. In a homicide, the\nvictim is another human being. In a suicide, the victim is the perpetrator, which is one of the reasons that\nhomicide is often criminal and suicide is not.\n\n2.\n\nThe US Supreme Court held that the right to assist a suicide is not a fundamental liberty interest protected\nby the due process clause in the Fourteenth Amendment.\n\nAnswers to Exercises\nFrom Section 9.2 \xe2\x80\x9cMurder\xe2\x80\x9d\n1.\n\nJay has the criminal intent of depraved heart. Jay\xe2\x80\x99s conduct in shooting at a tree in a public place might\ncause someone\xe2\x80\x99s death, which indicates that Jay is indifferent to whether he takes a life. This indifference is\na form of implied malice, knowingly, or recklessly manifesting extreme indifference to the value of human\nlife.\n\n2.\n\nYes, this is true. Because Jay used a revolver, the prosecutor has the benefit of the deadly weapon doctrine\nin many jurisdictions, alleviating his burden of proving criminal intent.\n\n3.\n\nThe US Court of Appeals for the Eighth Circuit held that teeth can constitute a deadly weapon in any\ncase, whether or not the defendant has contracted the HIV virus. The court thereafter affirmed the\ndefendant\xe2\x80\x99s conviction for assault with a deadly weapon.\n\n\x0c326 Criminal Law\n\nAnswers to Exercises\nFrom Section 9.3 \xe2\x80\x9cFirst-Degree Murder\xe2\x80\x9d\n1.\n\nThis killing could be first-degree premeditated murder or first-degree murder by a specified means.\nThe facts indicate a willful, deliberate, premeditated killing. Johnnie evidences a specific intent to kill the\nleader of a rival gang. He indicates planning by putting his gun in the glove compartment of his car and\ndriving to the gas station on Friday night where he suspects Marcus will be present. He kills Marcus by\nshooting him in a manner calculated to cause death. In addition, first-degree murder by a specified means\nfrequently includes drive-by shooting as a method of killing.\n\n2.\n\nThe Tennessee Supreme Court held that the defendant\xe2\x80\x99s failure to make a timely police report and\nconcealment of the murder weapon did not prove that the murder was premeditated. The Court stated the\nfollowing:\nOne who has recently killed another person recklessly, passionately, or even negligently may be\nextremely hesitant to reveal the details of the crime, and yet not be guilty of first-degree murder\xe2\x80\xa6One who\nkills another in a passionate rage may dispose of the weapon when reason returns just as readily as the cool,\ndispassionate killer (State v. West, 2010).\n\n3.\n\nThe motive was to exact revenge. The defendant and victim had a relationship fraught with abuse, most\nof it based on the defendant\xe2\x80\x99s desire to control the victim. The planning was as follows: the defendant\nselected the day of the killing with care, made a copy of the key to his son\xe2\x80\x99s house, rented a minivan with\ntinted windows and altered the interior, sent four letters to his son that he knew the victim, a postal\nemployee, would deliver, packed the murder weapon and supplies in the minivan, called his son\xe2\x80\x99s house to\nensure his son had left, arrived early at his son\xe2\x80\x99s house, and prepared the interior for the killing.\nPreconceived design is shown by the following actions: The defendant shot the victim several times with\nthe shotgun he brought to his son\xe2\x80\x99s house. He paused to reload and also to retrieve a handgun from the snow\nin between shots.\n\nAnswers to Exercises\nFrom Section 9.4 \xe2\x80\x9cFelony Murder\xe2\x80\x9d\n1.\n\nThe Minnesota Supreme Court reversed the court of appeal and held that felon in possession of a firearm\nand possession of a stolen firearm are not felonies inherently dangerous to life, so they cannot be predicate\nfelonies for a felony murder conviction. The Court stated the following: \xe2\x80\x9cApplying the statute as previously\ninterpreted by us to this record, we conclude that the predicate offenses of felon in possession of a firearm\nand possession of a stolen firearm are not inherently dangerous. While the use of a firearm can pose\nsignificant danger to human life, simple possession\xe2\x80\x94standing alone\xe2\x80\x94does not\xe2\x80\x9d (People v. Anderson,\n2010).\n\n2.\n\nKurt did not commit felony murder in this case because he had reached a place of temporary safety, so the\nfelony had ended.\n\n3.\n\nThe US Supreme Court based its holding on the Eighth and Fourteenth amendments. Primarily, the Court\ndetermined that the death penalty was cruel and unusual punishment under the circumstances.\n\n\x0c9.7 End-of-Chapter Material 327\n\nAnswers to Exercises\nFrom Section 9.5 \xe2\x80\x9cSecond-Degree Murder\xe2\x80\x9d\n1.\n\nThere is no evidence of premeditation, and Kurt did not kill the homeless person using a specified means.\nThis is not a first-degree felony murder (based on the felony of robbery) because the felony had ended when\nthe killing occurred. Thus this is most likely second-degree murder.\n\n2.\n\nThe California Court of Appeals upheld the defendant\xe2\x80\x99s second-degree murder charge and stated that it\nwas up to the trier of fact to determine the probability of death and the subjective mental state of the\ndefendant.\n\n3.\n\nThe Mississippi Court of Appeals held that putting a gun to someone\xe2\x80\x99s forehead and pulling the trigger\nindicates depraved heart intent, even if the defendant believes the gun to be unloaded.\n\nAnswers to Exercises\nFrom Section 9.6 \xe2\x80\x9cManslaughter\xe2\x80\x9d\n1.\n\nThe Model Penal Code classifies criminal homicides as felonies of the first, second, and third degree,\ndepending on the defendant\xe2\x80\x99s intent. Murder is supported by purposeful, knowing, or extremely reckless\nintent and is a felony of the first degree. Manslaughter is supported by reckless intent, or is a murder that is\ncommitted under the influence of extreme mental or emotional disturbance for which there is a reasonable\nexplanation or excuse, and is a felony of the second degree. Criminal homicide committed with negligent\nintent is a negligent homicide and is a felony of the third degree.\n\n2.\n\nThe Indiana Supreme Court held that a jury instruction on voluntary manslaughter was inappropriate\nbecause a reasonable person would not be provoked by words alone. In this case, a ten-year-old boy\nthreatened to expose sexual molestation by the defendant, who was twenty years old. The Court held that\nthis threat was not adequate provocation.\n\n3.\n\nThe Maryland Court of Appeals held that the victim must be the source of the adequate provocation in a\nvoluntary manslaughter case. Thus the defendant could not claim voluntary manslaughter when he killed his\nex-girlfriend\xe2\x80\x99s family members because he was provoked only by her.\n\n4.\n\nThe defendant was charged with involuntary manslaughter because she treated her daughter\xe2\x80\x99s meningitis\nwith prayer, rather than obtaining medical care. The California Supreme Court upheld the involuntary\nmanslaughter charge, in spite of the First Amendment free exercise clause and the Fourteenth Amendment\ndue process clause.\n\nAnswer to Law and Ethics Question\n1.\n\nThe first problem with extending the defense of voluntary manslaughter to the deliberate killing of an\nabortion doctor is the fact that the abortion doctor is acting legally. Extending the defense in this manner\nopens the door to a voluntary manslaughter charge for a defendant who (1) kills an individual authorized to\nexecute prisoners pursuant to the death penalty or (2) is a soldier who is going off to war. Another problem\nwith extending the defense to include Roeder\xe2\x80\x99s conduct is the lack of imminence. As discussed in Chapter 5\n\xe2\x80\x9cCriminal Defenses, Part 1\xe2\x80\x9d, defense of others requires an imminent threat. No imminent threat was present\n\n\x0c328 Criminal Law\n\nwhen the abortion doctor was in church. Removing the imminence requirement allows defendants to calmly\nand with deliberation kill victims and thereafter claim voluntary manslaughter\xe2\x80\x94the antithesis of heat of\npassion. Thus the judge presiding over Roeder\xe2\x80\x99s trial allowed the defense arguments but thereafter\nprecluded the voluntary manslaughter charge (USA Today, 2010).\n\nAnswers to You Be the Judge\n1.\n\nThe California Supreme Court reversed, holding that implied malice does not mean that the defendant\nneeds to be aware of the risk to a specific victim.\n\n2.\n\nThe Supreme Court of North Carolina affirmed because there is no need to prove specific intent to kill\nwhen a murder is by a specified means.\n\n3.\n\nThe Supreme Court of Georgia affirmed because the defendant voluntarily and knowingly took the\nvictim into his home and agreed to care for her, creating the duty to act.\n\n4.\n\nThe Supreme Court of Maine affirmed because the defendant initiated the confrontation.\n\nReferences\nPeople v. Anderson, 666 N.W. 2d 696, 700 (2003), accessed July 30, 2010, http://www.lexisone.com/lx1/caselaw/\nfreecaselaw?action=OCLGetCaseDetail&format=\nFULL&sourceID=bdjhdg&searchTerm=ejhU.Iaea.aadj.ebKG&searchFlag=y&l1loc=FCLOW.\nState v. West, 844 S.W. 2d 144, 147 (1992), accessed July 30, 2010, http://scholar.google.com/\nscholar_case?case=3481778471457660977&hl=en&as_sdt=2002&as_vis=1.\nUSA Today, \xe2\x80\x9cMan Testifies he Killed Kansas Abortion Doctor,\xe2\x80\x9d accessed July 27, 2010,\nhttp://www.usatoday.com/news/nation/2010-01-28-tiller-murder-trial_N.htm.\n\n\x0cChapter 10: Sex Offenses and Crimes Involving Force,\nFear, and Physical Restraint\n\nKeoni Cabral \xe2\x80\x93 Kidnapped \xe2\x80\x93 CC BY 2.0.\n\nAmong the evils that both the common law and later statutory prohibitions against kidnapping sought to address\nwere the isolation of a victim from the protections of society and the law and the special fear and danger\ninherent in such isolation.\n\xe2\x80\x94State v. Salaman, cited in Section 10.4 \xe2\x80\x9cKidnapping and False Imprisonment\xe2\x80\x9d\n\n329\n\n\x0c10.1 Sex Offenses\n\nLearning Objectives\n1.\n\nCompare common-law rape and sodomy offenses with modern rape and sodomy offenses.\n\n2.\n\nDefine the criminal act element required for rape.\n\n3.\n\nDefine the attendant circumstance element required for rape.\n\n4.\n\nAscertain the amount of resistance a victim must demonstrate to evidence lack of consent.\n\n5.\n\nAscertain whether the victim\xe2\x80\x99s testimony must be corroborated to convict a defendant for rape.\n\n6.\n\nDefine the criminal intent element required for rape.\n\n7.\n\nAnalyze the relationship between the criminal intent element required for rape and the mistake of fact\ndefense allowed for rape in some jurisdictions.\n\n8.\n\nDefine the harm element required for rape.\n\n9.\n\nIdentify the primary components of rape shield laws.\n\n10.\n\nIdentify the most prevalent issues in acquaintance rape.\n\n11.\n\nCompare spousal rape with rape.\n\n12.\n\nIdentify the elements of statutory rape, and compare statutory rape with rape.\n\n13.\n\nCompare sodomy, oral copulation, and incest with rape.\n\n14.\n\nAnalyze sex offenses grading.\n\n15.\n\nIdentify the primary components of sex offender registration statutes.\n\nIn this section, you learn the elements of rape and related sex offenses and examine defenses based on consent.\nIn upcoming sections, you analyze the elements of other crimes involving force, fear, and physical restraint,\nincluding assault, battery, domestic violence, stalking, and kidnapping.\n\nSynopsis of the History of Rape and Sodomy\nThe word rape has its roots in the Latin word rapere, which means to steal or seize. At early common law,\nrape was a capital offense. The elements of rape were forcible sexual intercourse, by a man, with a woman not\nthe spouse of the perpetrator, conducted without consent, or with consent obtained by force or threat of force\n(Macnamara, D., 2011). The rape prosecution required evidence of the defendant\xe2\x80\x99s use of force, extreme resistance\nby the victim, and evidence that corroborated the rape victim\xe2\x80\x99s testimony. The common law also recognized the\ncrime of sodomy. In general, sodomy was the penetration of the male anus by a man. Sodomy was condemned\nand criminalized even with consent because of religious beliefs deeming it a crime against nature (Lawbrain.com,\n2011).\nIn the 1970s, many changes were made to rape statutes, updating the antiquated common-law approach and\n330\n\n\x0c10.1 Sex Offenses 331\n\nincreasing the chances of conviction. The most prominent changes were eliminating the marital rape exemption\nand the requirement of evidence to corroborate the rape victim\xe2\x80\x99s testimony, creating rape shield laws to protect the\nvictim, and relaxing the necessity for the defendant\xe2\x80\x99s use of force or resistance by the victim (Lyon, M. R., 2011).\nMany jurisdictions also changed the name of rape to sexual battery, sexual assault, or unlawful sexual conduct and\ncombined sexual offenses like rape, sodomy, and oral copulation into one statute. Although some states still have\nstatutes that provide the death penalty for rape, the US Supreme Court has held that rape, even child rape, cannot\nbe considered a capital offense without violating the Eighth Amendment cruel and unusual punishment clause,\nrendering these statutes unenforceable (Kennedy v. Louisiana, 2011).\nSodomy law has likewise been updated to make sodomy a gender-neutral offense and preclude the\ncriminalization of consensual sexual conduct between adults. The US Supreme Court has definitively held that\nconsensual sex between adults may be protected by a right of privacy and cannot be criminalized without a\nsufficient government interest (Lawrence v. Texas, 2011).\nTable 10.1 Comparing Common Law Rape and Sodomy with Modern Statutes\n\nCrime\n\nCriminal Act\n\nCommon-law Penis-vagina\nrape\npenetration\n\nModern rape\n\nSome states\ninclude any\nsexual\npenetration\n\nMale\nCommon-law penis-male\nsodomy\nanus\npenetration\nModern\nsodomy\n\nLack of\nVictim\nConsent?\n\nVictim Resistance?\n\nOther Differences\n\nYes\n\nYes, extreme resistance\n\nCorroborative evidence required;\nno spousal rape; capital crime\n\nYes\n\nNot if force is used, or threat of\nforce that would deter a reasonable\nperson from resisting (See section\n10.1.2.2.2.)\n\nNo corroborative evidence\nrequired; spousal rape is a crime\nin some jurisdictions; rape is not a\ncapital crime.\n\nNo. Even\nconsensual\nsodomy was\ncriminal.\n\nNo. Even consensual sodomy was\ncriminal.\n\nGender-neutral\npenis-anus\nYes\npenetration\n\nSame as modern rape, above\n\nConsensual sodomy in prison or\njail is still criminal in some\njurisdictions. (See section 10.1.7.)\n\nRape Elements\nIn modern times, rape is a crime that has the elements of criminal act, criminal intent, causation, and harm. Rape\nalso has an attendant circumstance element, which is lack of consent by the victim.\n\nRape Act\nThe criminal act element required for rape in many states is sexual intercourse, accomplished by force or threat\nof force (Md. Code Ann. \xc2\xa7 3-303, 2011). Sexual intercourse is typically defined as penetration of a woman\xe2\x80\x99s\nvagina by a man\xe2\x80\x99s penis and can also be referred to as vaginal intercourse (Md. Code Ann. \xc2\xa7 3-301(g), 2011).\nSome jurisdictions include the penetration of the woman\xe2\x80\x99s vagina by other body parts, like a finger, as sexual\n\n\x0c332 Criminal Law\n\nintercourse (K.S.A., 2011). The Model Penal Code defines the criminal act element required for rape as sexual\nintercourse that includes \xe2\x80\x9cintercourse per os or per anum,\xe2\x80\x9d meaning oral and anal intercourse (Model Penal Code\n\xc2\xa7 213.0(2)). In most jurisdictions, a man or a woman can commit rape (K.S.A., 2011).\nAlthough it is common to include force or threat of force as an indispensible part of the rape criminal act, some\nmodern statutes expand the crime of rape to include situations where the defendant does not use force or threat,\nbut the victim is extremely vulnerable, such as an intoxicated victim, an unconscious victim, or a victim who is\nof tender years (K.S.A., 2011). The Model Penal Code includes force, threat of force, and situations where the\ndefendant has impaired the victim\xe2\x80\x99s power to control conduct by administering intoxicants or drugs without the\nvictim\xe2\x80\x99s knowledge or sexual intercourse with an unconscious female or a female who is fewer than ten years\nold (Model Penal Code \xc2\xa7 213.1(1)). Other statutes may criminalize unforced nonconsensual sexual intercourse\nor other forms of unforced nonconsensual sexual contact as less serious forms of rape with reduced sentencing\noptions (N.Y. Penal Law, 2011).\n\nExample of Rape Act\nAlex and Brad play video games while Brad\xe2\x80\x99s sister Brandy watches. Brad tells Alex he is going to go the store\nand purchase some beer. While Brad is gone, Alex turns to Brandy, pulls a knife out of his pocket, and tells her\nto take off her pants and lie down. Brandy tells Alex, \xe2\x80\x9cNo, I don\xe2\x80\x99t want to,\xe2\x80\x9d but thereafter acquiesces, and Alex\nputs his penis into Brandy\xe2\x80\x99s vagina. Alex has probably committed the criminal act element required for rape in\nmost jurisdictions. Although Alex did not use physical force to accomplish sexual intercourse, his threat of force\nby display of the knife is sufficient. If the situation is reversed, and Brandy pulls out the knife and orders Alex to\nput his penis in her vagina, many jurisdictions would also criminalize Brandy\xe2\x80\x99s criminal act as rape. If Alex does\nnot use force or a threat of force, but Brandy is only nine years old, some jurisdictions still criminalize Alex\xe2\x80\x99s act\nas rape, as would the Model Penal Code.\n\nRape Attendant Circumstance\nIn many jurisdictions, the attendant circumstance element required for rape is the victim\xe2\x80\x99s lack of consent to\nthe defendant\xe2\x80\x99s act (Md. Code Ann \xc2\xa7 3-304, 2011). Thus victim\xe2\x80\x99s consent could operate as a failure of proof or\naffirmative defense.\n\nProving Lack of Consent as an Attendant Circumstance\nProving lack of consent has two components. First, the victim must be legally capable of giving consent. If the\nvictim is under the age of consent or is mentally or intellectually impaired because of a permanent condition,\nintoxication, or drugs, the prosecution does not have to prove lack of consent in many jurisdictions (K.S.A., 2011).\nSexual intercourse with a victim under the age of consent is a separate crime, statutory rape, which is discussed\nshortly.\nThe second component to proving lack of consent is separating true consent from consent rendered\n\n\x0c10.1 Sex Offenses 333\n\ninvoluntarily. Involuntary consent is present in two situations. First, if the victim consents to the defendant\xe2\x80\x99s\nact because of fraud or trickery\xe2\x80\x94for example, when the victim is unaware of the nature of the act of sexual\nintercourse\xe2\x80\x94the consent is involuntary. A victim is generally unaware of the nature of the act of sexual\nintercourse when a doctor shams a medical procedure (Iowa v. Vander Esch, 2011). This is called fraud in the\nfactum. Fraud in the inducement, which is a fraudulent representation as to the circumstances accompanying\nthe sexual conduct, does not render the consent involuntary in many jurisdictions. An example of fraud in the\ninducement is a defendant\xe2\x80\x99s false statement that the sexual intercourse will cure a medical condition (Boro v.\nSuperior Court, 2011).\nA more common example of involuntary consent is when the victim consents to the defendant\xe2\x80\x99s act because\nof force or threat of force. The prosecution generally proves this type of consent is involuntary by introducing\nevidence of the victim\xe2\x80\x99s resistance.\nFigure 10.1 Diagram of Consent\n\nProving Involuntary Consent by the Victim\xe2\x80\x99s Resistance\nUnder the common law, the victim had to manifest extreme resistance to indicate lack of consent. In modern times,\nthe victim does not have to fight back or otherwise endanger his or her life if it would be futile to do so. In most\njurisdictions, the victim only needs to resist to the same extent as a reasonable person under similar circumstances,\nwhich is an objective standard (Del. Code Ann. tit. II, \xc2\xa7 761(j), 2011).\nThe use of force by the defendant could eliminate any requirement of victim resistance to prove lack of\nconsent (N.Y. Penal Law \xc2\xa7 130.05, 2011). If the defendant obtains consent using a threat of force, rather than\nforce, the victim may not have to resist if the victim experiences subjective fear of serious bodily injury, and a\nreasonable person under similar circumstances would not resist, which is an objective standard (Minn. Stat. Ann.\n\xc2\xa7 609.343(c), 2011). Threat of force can be accomplished by words, weapons, or gestures. It can also be present\nwhen there is a discrepancy in size or age between the defendant and the victim or if the sexual encounter takes\nplace in an isolated location. The Model Penal Code considers it a felony of the third degree and gross sexual\nimposition when a male has sexual intercourse with a female not his wife by compelling \xe2\x80\x9cher to submit by any\nthreat that would prevent resistance by a woman of ordinary resolution\xe2\x80\x9d (Model Penal Code \xc2\xa7 213.1(2)(a)). Note\n\n\x0c334 Criminal Law\n\nthat the Model Penal Code\xe2\x80\x99s position does not require the threat to be a threat of force; it can be any type of threat\nthat prevents physical resistance.\nIf the victim does not physically resist the criminal act, the prosecution must prove that the victim affirmatively\nindicated lack of consent in some other manner. This could be a verbal response, such as saying, \xe2\x80\x9cNo,\xe2\x80\x9d but the\nverbal response must be unequivocal. In the most extreme case, at least one court has held that a verbal \xe2\x80\x9cNo\xe2\x80\x9d\nduring the act of sexual intercourse is sufficient, and the defendant who continues with sexual intercourse after\nbeing told \xe2\x80\x9cNo\xe2\x80\x9d is committing the criminal act of rape (In re John Z., 2011).\nFigure 10.2 Proving Lack of Consent\nProving\nLack of\nConsent\n\nThe Requirement of Corroborative Evidence\nAt early common law, a victim\xe2\x80\x99s testimony was insufficient evidence to meet the burden of proving the elements\nof rape, including lack of consent. The victim\xe2\x80\x99s testimony had to be supported by additional corroborative\nevidence. Modern jurisdictions have done away with the corroborative evidence requirement and allow the trier of\nfact to determine the elements of rape or lack of consent based on the victim\xe2\x80\x99s testimony alone (State v. Borthwick,\n2011). However, statistics indicate that rape prosecutions often result in acquittal. Thus although technically the\nvictim\xe2\x80\x99s testimony need not be corroborated, it is paramount that the victim promptly report the rape to the\nappropriate authorities and submit to testing and interrogation to preserve any and all forms of relevant rape\nevidence.\n\nExample of Rape Attendant Circumstance\nReview the example with Brandy and Alex in Section 10 \xe2\x80\x9cExample of Rape Act\xe2\x80\x9d. In this example, after an initial\nprotest, Brandy lies down, takes off her pants, and allows Alex to put his penis in her vagina when he pulls out\na knife. It is likely that the trier of fact will find the rape attendant circumstance in this case. Although Brandy\nacquiesced to Alex\xe2\x80\x99s demands without resisting, she did so after Alex took a knife out of his pocket, which is a\nthreat of force. In addition, Brandy expressed her lack of consent verbally before submitting to Alex\xe2\x80\x99s demand.\nA trier of fact could determine that Brandy experienced a fear of serious bodily injury from Alex\xe2\x80\x99s display of the\nknife, and that a reasonable person under similar circumstances would give in to Alex\xe2\x80\x99s demands without physical\nresistance.\nChange this example and assume that after Brad leaves, Alex asks Brandy to have sexual intercourse with him.\nBrandy responds, \xe2\x80\x9cNo,\xe2\x80\x9d but allows Alex to remove her pants and put his penis in her vagina without physically\nresisting. The trier of fact must make the determination of whether Alex accomplished the sexual act by force\nor threat of force and without Brandy\xe2\x80\x99s consent. If Brandy testifies that she said \xe2\x80\x9cNo\xe2\x80\x9d and did not consent to\nAlex\xe2\x80\x99s act, and Alex testifies that Brandy\xe2\x80\x99s verbal response was insufficient to indicate lack of consent, the trier\n\n\x0c10.1 Sex Offenses 335\n\nof fact must resolve this issue of fact, and it can do so based on Brandy\xe2\x80\x99s testimony, uncorroborated, in many\njurisdictions. The trier of fact can use the criteria of the difference in age and size between Brandy and Alex, any\ngestures or words indicating force or threat, and the location and isolation of the incident, among other factors.\n\nRape Intent\nThe criminal intent element required for rape in most jurisdictions is the general intent or knowingly to perform\nthe rape criminal act (State v. Lile, 2011). This may include the intent to use force to accomplish the objective if\nthe state\xe2\x80\x99s rape statute includes force or threat of force as a component of the criminal act.\nAs Chapter 4 \xe2\x80\x9cThe Elements of a Crime\xe2\x80\x9d stated, occasionally, a different criminal intent supports the other\nelements of an offense. In some states, negligent intent supports the rape attendant circumstance of lack of\nvictim consent. This creates a viable mistake of fact defense if the defendant has an incorrect perception as\nto the victim\xe2\x80\x99s consent. To be successful with this defense, the facts must indicate that the defendant honestly\nand reasonably believed that the victim consented to the rape criminal act (People v. Mayberry, 2011). Many\njurisdictions expressly disallow the defense, requiring strict liability intent for the lack of consent attendant\ncircumstance (State v. Plunkett, 2011).\n\nExample of Rape Intent\nReview the example with Alex and Brandy in Section 10 \xe2\x80\x9cExample of Rape Act\xe2\x80\x9d. Change the example so that\nAlex does not display a knife and simply asks Brandy if she would like to have sex with him. Brandy does\nnot respond. Alex walks over to Brandy and removes her pants. Brandy does not protest or physically resist.\nThereafter, Alex asks Brandy if she \xe2\x80\x9clikes it rough.\xe2\x80\x9d Brandy remains silent. Alex physically and forcibly puts his\npenis in Brandy\xe2\x80\x99s vagina. In states that allow a negligent intent to support the attendant circumstance of rape,\nAlex may be able to successfully assert mistake of fact as a defense. It appears that Alex has with general intent\nor knowingly committed forcible sexual intercourse, based on his actions. In most jurisdictions, the jury could\nbe instructed on an inference of this intent from Alex\xe2\x80\x99s behavior under the circumstances. However, if negligent\nintent is required to support the attendant circumstance of the victim\xe2\x80\x99s lack of consent, the trier of fact may find\nthat Alex\xe2\x80\x99s mistake as to Brandy\xe2\x80\x99s consent was honest and reasonable, based on her lack of response or physical\nresistance. If Alex is in a jurisdiction that requires strict liability intent to support the attendant circumstance\nelement, Alex cannot raise the defense because Alex\xe2\x80\x99s belief as to Brandy\xe2\x80\x99s consent would be irrelevant.\n\nRape Causation\nThe defendant\xe2\x80\x99s criminal act must be the factual and legal cause of the harm, which is defined in Section 10\n\xe2\x80\x9cRape Harm\xe2\x80\x9d.\n\n\x0c336 Criminal Law\n\nRape Harm\nThe harm element of rape in most jurisdictions is penetration, no matter how slight (Idaho Code Ann. \xc2\xa7 18-6101,\n2011). This precludes virginity as a defense. In addition, modern statutes do not require male ejaculation, which\nprecludes lack of semen as a defense (Ala. Code \xc2\xa7 13A-6-69, 2011).\n\nExample of Rape Harm\nReview the example with Alex and Brandy in Section 10 \xe2\x80\x9cExample of Rape Act\xe2\x80\x9d. Assume that Brad walks into\nthe room while Alex and Brandy are engaging in sexual intercourse. Brad tackles Alex and pulls him off Brandy.\nAlex may be charged with rape, not attempted rape, in most jurisdictions. The fact that Alex did not ejaculate\ndoes not affect the rape analysis in any way because most jurisdictions do not require ejaculation as a component\nof the harm element of rape.\n\nRape Shield Laws\nRape prosecutions can be extremely stressful for the victim, especially when the defendant pursues a consent\ndefense. Before the comprehensive rape reforms of the 1970s, rape defendants would proffer any evidence they\ncould find to indicate that the victim was sexually promiscuous and prone to consenting to sexual intercourse.\nFearing humiliation, many rape victims kept their rape a secret, not reporting it to law enforcement. This allowed\nserial rapists to escape punishment and did not serve our criminal justice goal of deterrence.\nIn modern times, most states protect rape victims with rape shield laws. Rape shield laws prohibit the\nadmission of evidence of the victim\xe2\x80\x99s past sexual conduct to prove consent in a rape trial, unless the judge allows\nit in a pretrial in camera hearing, outside the presence of the jury. Rape shield laws could include the additional\nprotections of the exclusion of evidence relating to the victim\xe2\x80\x99s style of dress to prove consent, the exclusion of\nevidence that the victim requested the defendant to wear a condom to prove consent, and the affirmation that a\nvictim\xe2\x80\x99s testimony in a rape trial need not be corroborated by other evidence (Fla. Stat. Ann. \xc2\xa7 794.022, 2011).\nMost courts permit the admission of evidence proving the victim\xe2\x80\x99s previous consensual sex with the defendant\nbecause this evidence is particularly relevant to any consent defense (Colo. Rev. Stat. Ann \xc2\xa7 18-3-497(1), 2011).\n\nExample of the Effect of a Rape Shield Law\nReview the example with Alex and Brandy in Section 10 \xe2\x80\x9cExample of Rape Intent\xe2\x80\x9d. Assume that the jurisdiction\nin which the example takes place has a rape shield law. If Alex is put on trial for the rape of Brandy and he\ndecides to pursue a consent defense, Alex would not be able to introduce evidence of Brandy\xe2\x80\x99s sexual history with\nother men unless he receives approval from a judge in an in camera hearing before the trial.\n\n\x0c10.1 Sex Offenses 337\n\nLaw and Ethics\nShould the Media Be Permitted to Publish Negative Information about a Rape Victim?\nIn 2003, Kobe Bryant, a professional basketball player, was indicted for sexually assaulting a nineteen-year-old hotel\ndesk clerk. A mistake by a court reporter listed the accuser\xe2\x80\x99s name on a court website (MSNBC.com, 2011). The court\nremoved the victim\xe2\x80\x99s name after discovery of the mistake, but the damage was done. Thereafter, in spite of a court order\nprohibiting the publication of the accuser\xe2\x80\x99s name, the media, including radio, newspaper, Internet, and television,\npublished the accuser\xe2\x80\x99s name, phone number, address, and e-mail address (Kenworty, T. & O\xe2\x80\x99Driscoll, P., 2011).\nProducts like underwear, t-shirts, and coffee mugs with pictures of the accuser and Bryant in sexual positions were\nwidely available for sale, and the accuser received constant harassment, including death threats (Haddad, R., 2011).\nAlthough the Colorado Supreme Court ordered pretrial in camera transcripts of hearings pursuant to Colorado\xe2\x80\x99s rape\nshield law to remain confidential, an order that was confirmed by the US Supreme Court (Associated Press et. al. v.\nDistrict Court for the Fifth Judicial Distric of Colorado, 2011), the accuser was subjected to so much negative publicity\nthat she eventually refused to cooperate and the prosecution dropped the charges in 2004.\n1.\n\nDo you think rape shield laws should include prohibitions against negative publicity? What are the\nconstitutional ramifications of this particular type of statutory protection?\n\nCheck your answer using the answer key at the end of the chapter.\n\nKobe Bryant Video\nKobe Claims Innocence to Sexual Assault Charges\nKobe Bryant and his attorney discuss the charge of rape filed against Kobe in this video:\n" href="http://www.youtube.com/watch?v=SSamEqtPVao" class="replaced-iframe" onclick="return\nreplaceIframe(this)" data-url="http://www.youtube.com/watch?v=SSamEqtPVao">(click to see video)\n\nAcquaintance Rape\nIn modern times, rape defendants are frequently known to the victim, which may change the factual situation\nsignificantly from stranger rape. Acquaintance rape, also called date rape, is a phenomenon that could increase\na victim\xe2\x80\x99s reluctance to report the crime and could also affect the defendant\xe2\x80\x99s need to use force and the victim\xe2\x80\x99s\npropensity to physically resist (The National Center for Victims of Crime, 2011). Although studies indicate that\nacquaintance rape is on the rise (The National Center for Victims of Crime, 2011), statutes have not entirely\naddressed the issues presented in an acquaintance rape fact pattern. To adequately punish and deter acquaintance\nor date rape, rape statutes should punish nonforcible, nonconsensual sexual conduct as severely as forcible rape.\nAlthough the majority of states still require forcible sexual intercourse as the rape criminal act element, at least\none modern court has rejected the necessity of any force other than what is required to accomplish the sexual\nintercourse (State of New Jersey in the Interest of M.T.S., 2011). Some rape statutes have also eliminated the\nrequirement that the defendant use force and punish any sexual intercourse without consent as rape (Utah Code\nAnn \xc2\xa7 76-5-402(1).\n\n\x0c338 Criminal Law\n\nSpousal Rape\nAs stated previously, at early common law, a man could not rape his spouse. The policy supporting this exemption\ncan be traced to a famous seventeenth-century jurist, Matthew Hale, who wrote, \xe2\x80\x9c[T]he husband cannot be guilty\nof a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the\nwife hath given up herself in this kind unto her husband, which she cannot retract\xe2\x80\x9d (Hale, History of Pleas of\nthe Crown, p. 629). During the rape reforms of the 1970s, many states eliminated the marital or spousal rape\nexemption, in spite of the fact that the Model Penal Code does not recognize spousal rape. At least one court has\nheld that the spousal rape exemption violates the equal protection clause of the Fourteenth Amendment because\nit discriminates against single men without a sufficient government interest (People v. Liberta, 2011). In several\nstates that criminalize spousal rape, the criminal act, criminal intent, attendant circumstance, causation, and harm\nelements are exactly the same as the elements of forcible rape (N. H. Rev. Stat. Ann. \xc2\xa7 632-A, 2011). Many states\nalso grade spousal rape the same as forcible rape\xe2\x80\x94as a serious felony (Utah Code Ann. \xc2\xa7 76-5-402(2), 2011).\nGrading of sex offenses is discussed shortly.\n\nStatutory Rape\nStatutory rape, also called unlawful sexual intercourse, criminalizes sexual intercourse with a victim who is\nunder the age of legal consent. The age of legal consent varies from state to state and is most commonly sixteen,\nseventeen, or eighteen (Age of Consent Chart for the U.S.-2010, 2011).\nThe criminal act element required for statutory rape in many jurisdictions is sexual intercourse, although\nother types of sexual conduct with a victim below the age of consent are also criminal (US Department of\nHealth and Human Services, 2011). The harm element of statutory rape also varies, although many jurisdictions\nmirror the harm element required for rape (US Department of Health and Human Services, 2011). The attendant\ncircumstance element required for statutory rape is an underage victim (Cal. Penal Code \xc2\xa7 261.5, 2011). There\nis no requirement for force by the defendant. Nor is there an attendant circumstance element of lack of consent\nbecause the victim is incapable of legally consenting.\nIn the majority of states, the criminal intent element of statutory rape is strict liability (La. Rev. Stat. Ann. \xc2\xa7\n14-80, 2011). However, a minority of states require reckless or negligent criminal intent, allowing for the defense\nof mistake of fact as to the victim\xe2\x80\x99s age. If the jurisdiction recognizes mistake of age as a defense, the mistake\nmust be made reasonably, and the defendant must take reasonable measures to verify the victim\xe2\x80\x99s age (Alaska\nStat \xc2\xa7 11.41.445(b), 2011). The mistake of age defense can be proven by evidence of a falsified identification,\nwitness testimony that the victim lied about his or her age to the defendant, or even the appearance of the victim.\nIt is much more common to prosecute males for statutory rape than females. The historical reason for this\nselective prosecution is the policy of preventing teenage pregnancy (Michael M. v. Superior Court, 2011).\nHowever, modern statutory rape statutes are gender-neutral (N.Y. Penal Law \xc2\xa7 130.30, 2011). This ensures that\nwomen, especially women who are older than their sexual partner, are equally subject to prosecution.\n\n\x0c10.1 Sex Offenses 339\n\nExample of Statutory Rape\nGary meets Michelle in a nightclub that only allows entrance to patrons eighteen and over. Gary and Michelle\nend up spending the evening together, and later they go to Gary\xe2\x80\x99s apartment where they have consensual sexual\nintercourse. In reality, Michelle is actually fifteen and was using false identification to enter the nightclub. If Gary\nand Michelle are in a state that requires strict liability for the criminal intent element of statutory rape, Gary can\nbe subject to prosecution for and conviction of this offense if fifteen is under the age of legal consent. If Gary\nand Michelle are in a state that allows for mistake of age as a defense, Gary could use Michelle\xe2\x80\x99s presence in the\nnightclub as evidence that he acted reasonably in believing that Michelle was capable of rendering legal consent.\nIf both Gary and Michelle used false identification to enter the nightclub, and both Gary and Michelle are under\nthe age of legal consent, both could be prosecuted for and convicted of statutory rape in most jurisdictions because\nmodern statutory rape statutes are gender-neutral.\nFigure 10.3 Comparison of Rape and Statutory Rape\n\nSodomy and Oral Copulation\nAs stated previously, some states include rape, sodomy, and oral copulation in a sexual assault or sexual conduct\nstatute that criminalizes a variety of sexual acts involving penetration (Alaska Stat. \xc2\xa7 11.41.410, 2011). In states\nthat distinguish between rape and sodomy, the criminal act element of sodomy is often defined as forcible penis\nto anus penetration (Cal. Penal Code \xc2\xa7 286(a), 2011). Typically, the other sodomy elements, including the lack of\n\n\x0c340 Criminal Law\n\nconsent attendant circumstance, criminal intent, causation, and harm, are the same as the elements of rape. Many\njurisdictions also grade sodomy the same as rape. Grading is discussed shortly.\nSodomy that is nonforcible but committed with an individual below the age of legal consent is also criminal\n(Cal. Penal Code \xc2\xa7 286(b), 2011). As stated previously, the US Supreme Court has held that statutes criminalizing\nsodomy between consenting adults unreasonably encroach on a right to privacy without a sufficient government\ninterest (Lawrence v. Texas, 2011). In some states, consensual nonforcible sodomy is criminal if it is committed\nin a state penitentiary or local detention facility or jail (Cal. Penal Code \xc2\xa7 286(c), 2011).\nIn states that distinguish between rape, sodomy, and oral copulation, the criminal act element of oral copulation\nis forcible mouth to sexual organ or anus penetration (Cal. Penal Code \xc2\xa7 288a, 2011). Typically, the other oral\ncopulation elements, including the lack of consent attendant circumstance, criminal intent, causation, and harm,\nare the same as the elements of rape. Many jurisdictions also grade oral copulation the same as rape. Grading is\ndiscussed shortly.\nA few states still criminalize oral copulation with consent (Ala. Code \xc2\xa7 13A-6-65, 2011). Based on the US\nSupreme Court precedent relating to sodomy, these statutes may be unenforceable and unconstitutional.\n\nIncest\nIncest is also criminal in many jurisdictions. The criminal act element required for incest is typically sexual\nintercourse (Fla. Stat. Ann. \xc2\xa7 826.04, 2011). The attendant circumstance element required for incest is a victim\nthe defendant cannot legally marry because of a family relationship (Del. Code Ann. Tit. 11 \xc2\xa7 766, 2011). In the\nmajority of jurisdictions, force is not required, and consent is not an attendant circumstance element of incest\n(Del. Code Ann. Tit. 11, 2011). Thus consent by the victim cannot operate as a defense. If the sexual intercourse\nwith a family member is forcible and nonconsensual, the defendant could be charged with and convicted of rape.\nThe criminal intent element required for incest is typically general intent or knowingly (Fla. Stat. Ann. \xc2\xa7 826.04,\n2011). The causation and harm elements of incest are generally the same as the causation and harm elements of\nrape (Fla. Stat. Ann. \xc2\xa7 826.04, 2011). However, incest is generally graded lower than forcible rape or sexual\nassault because force and lack of consent are not required (Del. Code Ann. Tit. 11, \xc2\xa7 766, 2011).\n\nExample of Incest\nHal and Harriet, brother and sister, have consensual sexual intercourse. Both Hal and Harriet are above the age of\nlegal consent. In spite of the fact that there was no force, threat of force, or fraud, and both parties consented to\nthe sexual act, Hal and Harriet could be charged with and convicted of incest in many jurisdictions, based on their\nfamily relationship.\n\nSex Offenses Grading\nJurisdictions vary when it comes to grading sex offenses. In general, forcible sex crimes involving penetration are\ngraded as serious felonies. Factors that could aggravate grading are gang rape (Fla. Stat. Ann. \xc2\xa7 794.023, 2011),\n\n\x0c10.1 Sex Offenses 341\n\nthe infliction of bodily injury, the use of a weapon, a youthful victim, the commission of other crimes in concert\nwith the sexual offense, or a victim who has mental or intellectual disabilities or who has been compromised by\nintoxicants (Del. Code Ann. Tit. 11, \xc2\xa7 773, 2011). The Model Penal Code grades rape as a felony of the second\ndegree unless the actor inflicts serious bodily injury on the victim or another, or the defendant is a stranger to the\nvictim, in which case the grading is elevated to a felony of the first degree (Model Penal Code \xc2\xa7 213.1 (1)).\nSexual offenses that do not include penetration are graded lower (N.Y. Penal Law \xc2\xa7 130.52, 2011), along with\noffenses that could be consensual (Del. Code Ann. Tit. 11, \xc2\xa7 766, 2011). Sex offense statutes that criminalize\nsexual conduct with a victim below the age of legal consent often grade the offense more severely when there is\na large age difference between the defendant and the victim, when the defendant is an adult, or the victim is of\ntender years (Cal. Penal Code \xc2\xa7 261.5, 2011).\nFigure 10.4 Diagram of Sex Offenses\n\n\x0c342 Criminal Law\n\n\x0c10.1 Sex Offenses 343\n\nSex Offender Registration Statutes\nBased on a public awareness that sex offenders often reoffend, many states have enacted some form of Megan\xe2\x80\x99s\nlaw or Jessica\xe2\x80\x99s law, which provide for registration, monitoring, control, and elevated sentencing for sex\noffenders, including those that harm children. Both laws were written and enacted after high-profile cases with\nchild victims became the subject of enormous media attention. Megan\xe2\x80\x99s and Jessica\xe2\x80\x99s law statutes enhance\npreviously enacted statutes that require the registration of sex offenders with local law enforcement agencies.\nTypically, a Megan\xe2\x80\x99s law statute provides for registration and notification to the public that a convicted sex\noffender lives in their area (42 Pa. C. S. \xc2\xa7 9799.1, 2011). A Jessica\xe2\x80\x99s law statute often includes a stay-away order,\nmandating that a sex offender cannot live within a certain distance from areas such as a school or park where\nchildren tend to congregate. Jessica\xe2\x80\x99s law statutes also provide for GPS monitoring and extend the sentencing and\nparole terms of child sex offenders (Va. Code Ann. \xc2\xa7 19.2-295.2:1, 2011).\nFigure 10.5 Diagram of Megan\xe2\x80\x99s and Jessica\xe2\x80\x99s Law Statutes\nMegan\xe2\x80\x99s Law\nJessica\xe2\x80\x99s Law\n\nKey Takeaways\n\xe2\x80\xa2\n\nCommon-law rape was a capital offense, did not include rape of a spouse, required extreme resistance by\nthe victim, and required evidence to corroborate a victim\xe2\x80\x99s testimony. Modern statutes do not make rape a\ncapital offense, often criminalize spousal rape, and do not require extreme resistance by the victim or\nevidence to corroborate the victim\xe2\x80\x99s testimony. At early common law, sodomy was the anal penetration of a\nman, by a man. Modern statutes make sodomy gender-neutral and only criminalize sodomy without consent.\n\n\xe2\x80\xa2\n\nThe criminal act element required for rape is sexual penetration accomplished with force or threat of force\nin many jurisdictions.\n\n\xe2\x80\xa2\n\nThe attendant circumstance element required for rape is lack of consent by the victim.\n\n\xe2\x80\xa2\n\nIn many jurisdictions, the victim does not need to resist if the defendant uses force. If the victim is faced\nwith a threat of force rather than force, the victim need not resist if he or she has a subjective fear of serious\nbodily injury, and this fear is reasonable under the circumstances.\n\n\xe2\x80\xa2\n\nIn modern times, a victim\xe2\x80\x99s testimony does not need to be corroborated by other evidence to convict a\ndefendant of rape.\n\n\xe2\x80\xa2\n\nThe criminal intent element required for rape is general intent or knowingly to commit the criminal act.\n\n\xe2\x80\xa2\n\nIn some jurisdictions, the criminal intent element required for the rape attendant circumstance is negligent\nintent\xe2\x80\x94providing for a defense of mistake of fact as to the victim\xe2\x80\x99s consent. In other jurisdictions, the\ncriminal intent element required for the rape attendant circumstance is strict liability, which does not allow\nfor the mistake of fact defense.\n\n\xe2\x80\xa2\n\nThe harm element required for rape is penetration, no matter how slight. Ejaculation is not a requirement\nfor rape in most jurisdictions.\n\n\xe2\x80\xa2\n\nRape shield laws generally preclude the admission of evidence of the victim\xe2\x80\x99s past sexual conduct in a\nrape trial, unless it is allowed by a judge at an in camera hearing. Rape shield laws also preclude the\n\n\x0c344 Criminal Law\n\nadmission of evidence of the victim\xe2\x80\x99s style of dress and the victim\xe2\x80\x99s request that the defendant wear a\ncondom to prove victim consent. Some rape shield laws provide that the victim\xe2\x80\x99s testimony need not be\ncorroborated by other evidence to convict the defendant of rape.\n\xe2\x80\xa2\n\nAcquaintance rape often goes unreported and does not necessarily include use of force by the defendant\nor resistance by the victim.\n\n\xe2\x80\xa2\n\nStates that criminalize spousal rape generally require the same elements for spousal rape as for rape and\ngrade spousal rape the same as rape.\n\n\xe2\x80\xa2\n\nStatutory rape is generally sexual intercourse with a victim who is under the age of legal consent.\nStatutory rape does not have the requirement that the intercourse be forcible and does not require the\nattendant circumstance of the victim\xe2\x80\x99s lack of consent because the victim is incapable of rendering legal\nconsent. In the majority of jurisdictions, the criminal intent element required for statutory rape is strict\nliability. In a minority of jurisdictions, the criminal intent element required for statutory rape is negligent or\nreckless intent, providing for a defense of mistake of fact as to the victim\xe2\x80\x99s age.\n\n\xe2\x80\xa2\n\nSodomy has the same elements as rape except for the criminal act element, which is often defined as\nforcible penis to anus penetration, rather than penis to vagina penetration. In addition, in some states\nsodomy is criminal with consent when it occurs in a state prison or a local detention facility or jail. Oral\ncopulation also has the same elements as rape, except for the criminal act element, which is forcible mouth\nto sexual organ or anus penetration. Incest is sexual intercourse between family members who cannot\nlegally marry.\n\n\xe2\x80\xa2\n\nGenerally, rape, sodomy, and oral copulation are graded as serious felonies. Factors that enhance grading\nof sex offenses are penetration, gang rape, bodily injury, the use of a weapon, a victim who has intellectual\nor mental disabilities or is youthful or intoxicated, and the commission of other crimes in concert with the\nsex offense. Sex offenses committed with the victim\xe2\x80\x99s consent and without penetration are typically graded\nlower. If the victim is below the age of consent, a large age difference exists between the defendant and the\nvictim, the defendant is an adult, or the victim is of tender years, grading typically is enhanced.\n\n\xe2\x80\xa2\n\nTypically, a Megan\xe2\x80\x99s law statute provides for sex offender registration and notification to the public that a\nconvicted sex offender lives in their area. A Jessica\xe2\x80\x99s law statute often includes a stay-away order mandating\nthat a sex offender cannot live within a certain distance from areas such as a school or park where children\ntend to congregate. Jessica\xe2\x80\x99s law statutes also provide for GPS monitoring and extend the sentencing and\nparole terms of child sex offenders.\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nJorge and Christina have consensual sexual intercourse. Could this consensual sexual intercourse be\ncriminal? Which crime(s), if any, could exist in this fact pattern?\n\n2.\n\nRead Toomer v. State, 529 SE 2d 719 (2000). In Toomer, the defendant was convicted of rape after having\nsexual intercourse with his daughter, who was under the age of fourteen. The jury instruction did not include\nany requirement for the defendant\xe2\x80\x99s use of force or victim resistance. The defendant appealed and claimed\nthat the prosecution should have proven he used force and the victim\xe2\x80\x99s resistance because the charge was\nrape, not statutory rape. Did the Supreme Court of South Carolina uphold the defendant\xe2\x80\x99s conviction?\nWhy or why not? The case is available at this link: http://scholar.google.com/\nscholar_case?case=3593808516097562509&q= Toomer+v.+State&hl=en&as_sdt=2,5.\n\n3.\n\nRead Fleming v. State, 323 SW 3d 540 (2010). In Fleming, the defendant appealed his conviction for\naggravated sexual assault of a child under fourteen because he was not allowed to present a mistake of age\n\n\x0c10.1 Sex Offenses 345\n\ndefense. The defendant claimed that the requirement of strict liability intent as to the age of the victim\ndeprived him of due process of law. Did the Court of Appeals of Texas agree with the defendant? The case\nis available at this link: http://scholar.google.com/scholar_case?case=12908572719333538188&q=\n%22Scott+v.+State+36+SW+3d+240%22&hl=en&as_sdt=2,5.\n\nReferences\nAge of Consent Chart for the U.S.-2010, Ageofconsent.us website, accessed February 14, 2011,\nhttp://www.ageofconsent.us.\nAla. Code \xc2\xa7 13A-6-60, accessed February 11, 2011, http://law.justia.com/alabama/codes/2009/Title13A/\nChapter6/13A-6-60.html.\nAla. Code \xc2\xa7 13A-6-65, accessed February 15, 2011, http://www.legislature.state.al.us/CodeofAlabama/1975/\n13A-6-65.htm.\nAlaska Stat. \xc2\xa7 11.41.410, accessed February 15, 2011, http://law.justia.com/alaska/codes/2009/title-11/\nchapter-11-41/article-04/sec-11-41-410.\nAlaska Stat. \xc2\xa7 11.41.445(b), accessed February 15, 2011, http://law.justia.com/alaska/codes/2009/title-11/\nchapter-11-41/article-04/sec-11-41-445.\nAssociated Press et. al. v. District Court for the Fifth Judicial District of Colorado, 542 U.S. 1301 (2004),\naccessed February 27, 2011, http://ftp.resource.org/courts.gov/c/US/542/542.US.1301.04.73.html.\nBoro v. Superior Court, 163 Cal. App. 3d 1224 (1985), accessed February 17, 2011, http://scholar.google.com/\nscholar_case?case=8450241145233624189&q= Boro+v.+Superior+Court&hl=en&as_sdt=2,5.\nCal. Penal Code \xc2\xa7 261.5, accessed February 15, 2011, http://law.onecle.com/california/penal/261.5.html.\nCal. Penal Code \xc2\xa7 286(a), accessed February 15, 2011, http://law.justia.com/california/codes/2009/pen/\n281-289.6.html.\nCal. Penal Code \xc2\xa7 286(b), accessed February 15, 2011, http://law.justia.com/california/codes/2009/pen/\n281-289.6.html.\nCal. Penal Code \xc2\xa7 286(c) (3) (e), accessed February 15, 2011, http://law.justia.com/california/codes/2009/pen/\n281-289.6.html.\nCal. Penal Code \xc2\xa7 288a, accessed February 15, 2011, http://law.onecle.com/california/penal/288a.html.\nColo. Rev. Stat. Ann. \xc2\xa7 18-3-407(1) (a), accessed February 14, 2011, http://www.michie.com/colorado/\nlpext.dll?f=templates&fn=main-h.htm&cp=.\nDel. Code Ann. Tit. 11, \xc2\xa7 766, accessed February 15, 2011, http://law.justia.com/delaware/codes/2010/title11/\nc005-sc02.html.\nDel. Code Ann. tit. II, \xc2\xa7 761(j) (1), accessed February 9, 2011, http://delcode.delaware.gov/title11/c005/sc02/\nindex.shtml#761.\nDel. Code Ann. Tit. 11, \xc2\xa7 766, accessed February 15, 2011, http://law.justia.com/delaware/codes/2010/title11/\nc005-sc02.html.\nDel. Code Ann. Tit. 11, \xc2\xa7 773, accessed February 15, 2011, http://law.justia.com/delaware/codes/2010/title11/\nc005-sc02.html.\nFla. Stat. Ann. \xc2\xa7 794.022, accessed February 11, 2011, http://law.justia.com/florida/codes/2010/TitleXLVI/\nchapter794/794_022.html.\n\n\x0c346 Criminal Law\n\nFla. Stat. Ann. \xc2\xa7 794.023, accessed February 15, 2011, http://law.onecle.com/florida/crimes/794.023.html.\nFla. Stat. Ann. \xc2\xa7 826.04, accessed February 15, 2011, http://law.onecle.com/florida/crimes/826.04.html.\nHaddad, R., \xe2\x80\x9cShield or Sieve? People v. Bryant and the Rape Shield Law in High-Profile Cases,\xe2\x80\x9d Columbia\nJournal of Law and Social Problems, accessed February 27, 2011, http://www.columbia.edu/cu/jlsp/pdf/\nSpring2%202006/Haddad10.pdf.\nIdaho Code Ann. \xc2\xa7 18-6101, accessed February 10, 2011, http://www.legislature.idaho.gov/idstat/Title18/\nT18CH61SECT18-6101.htm.\nIn re John Z., 29 Cal. 4th 756 (2003), accessed February 10, 2011, http://scocal.stanford.edu/opinion/re-johnz-32309.\nIowa v. Vander Esch, 662 N.W. 2d 689 (2002), accessed February 10, 2011, http://scholar.google.com/\nscholar_case?case=4906781834239023314&q=\nrape+%22fraud+in+the+inducement%22&hl=en&as_sdt=2,5&as_ylo=2002.\nKennedy v. Louisiana, 128 S. Ct. 2641 (2008), accessed February 8, 2011, http://www.oyez.org/cases/\n2000-2009/2007/2007_07_343.\nK.S.A. \xc2\xa7 21-3501(1), accessed February 8, 2011, http://law.justia.com/kansas/codes/2006/chapter21/\nstatute_11553.html.\nKenworty, T., Patrick O\xe2\x80\x99Driscoll, \xe2\x80\x9cJudge Dismisses Bryant Rape Case,\xe2\x80\x9d USAtoday.com website, accessed\nFebruary 27, 2011, http://www.usatoday.com/sports/basketball/nba/2004-09-01-kobe-bryant-case_x.htm.\nLa. Rev. Stat. Ann. \xc2\xa7 14-80, accessed February 15, 2011, http://law.justia.com/louisiana/codes/2009/rs/title14/\nrs14-80.html.\nLawbrain.com website, \xe2\x80\x9cSex Offenses,\xe2\x80\x9d accessed February 8, 2011, http://lawbrain.com/wiki/Sex_Offenses.\nLawrence v. Texas, 539 U.S. 558 (2003), accessed February 8, 2011, http://www.oyez.org/cases/2000-2009/\n2002/2002_02_102.\nLyon, M. R., \xe2\x80\x9cNo means No? Withdrawal of Consent During Intercourse and the Continuing Evolution of\nthe Definition of Rape,\xe2\x80\x9d Findarticles.com website, accessed February 8, 2011, http://findarticles.com/p/articles/\nmi_hb6700/is_1_95/ai_n29148498/pg_3/?tag=content;col1.\nMacnamara, D., \xe2\x80\x9cHistory of Sexual Violence,\xe2\x80\x9d Interactive theatre.org website, accessed February 8, 2011,\nhttp://www.interactivetheatre.org/resc/history.html.\nMd. Code Ann. \xc2\xa7 3-301(g), accessed February 8, 2011, http://law.justia.com/maryland/codes/2005/gcr/\n3-301.html.\nMd. Code Ann. \xc2\xa7 3-303, accessed February 8, 2011, http://law.justia.com/maryland/codes/2005/gcr/\n3-303.html.\nMd. Code Ann. \xc2\xa7 3-304, accessed February 8, 2011, http://law.justia.com/maryland/codes/gcr/3-304.html.\nMichael M. v. Superior Court, 450 U.S. 464 (1981), accessed February 15, 2011, http://www.oyez.org/cases/\n1980-1989/1980/1980_79_1344.\nMinn. Stat. Ann. \xc2\xa7 609.343(c), accessed February 10, 2011, https://www.revisor.mn.gov/statutes/?id=609.343.\nMSNBC.com website, \xe2\x80\x9cRape Case against Bryant Dismissed,\xe2\x80\x9d accessed February 27, 2011,\nhttp://nbcsports.msnbc.com/id/5861379.\nN. H. Rev. Stat. Ann. \xc2\xa7 632-A: 5, accessed February 14, 2011, http://www.gencourt.state.nh.us/rsa/html/LXII/\n632-A/632-A-5.htm.\nThe National Center for Victims of Crime, \xe2\x80\x9cAcquaintance Rape,\xe2\x80\x9d Ncvc.org website, accessed February 14,\n2011, http://www.ncvc.org/ncvc/main.aspx?dbName=DocumentViewer&DocumentID=32306.\nN.Y. Penal Law \xc2\xa7 130.05, accessed February 9, 2011, http://law.onecle.com/new-york/penal/\nPEN0130.05_130.05.html.\n\n\x0c10.1 Sex Offenses 347\n\nN.Y. Penal Law \xc2\xa7 130.25(3), accessed February 10, 2011, http://law.onecle.com/new-york/penal/\nPEN0130.25_130.25.html.\nN.Y. Penal Law \xc2\xa7 130.30, accessed February 15, 2011, http://law.onecle.com/new-york/penal/\nPEN0130.30_130.30.html.\nN.Y. Penal Law \xc2\xa7 130.52, accessed February 15, 2011, http://law.onecle.com/new-york/penal/\nPEN0130.52_130.52.html.\nPeople v. Liberta, 64 N.Y. 2d 152 (1984), accessed February 14, 2011, http://scholar.google.com/\nscholar_case?case=1399209540378549726&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\nPeople v. Mayberry, 542 P.2d 1337 (1975), accessed February 11, 2011, http://scholar.google.com/\nscholar_case?case=6471351898025391619&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\nState of New Jersey in the Interest of M.T.S., 609 A.2d 1266 (1992), accessed February 14, 2011,\nhttp://www.4lawnotes.com/showthread.php?t=1886.\nState v. Borthwick, 880 P.2d 1261 (1994), accessed February 10, 2011, http://www1.law.umkc.edu/suni/\nCrimLaw/calendar/Class_24_borthwick_case.htm.\nState v. Lile, 699 P.2d 456 (1985), accessed February 8, 2011, http://scholar.google.com/\nscholar_case?case=5958820374035014869&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\nState v. Plunkett, 934 P.2d 113 (1997), accessed February 11, 2011, http://scholar.google.com/\nscholar_case?case=17940293485668190575&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\nUS Department of Health and Human Services, \xe2\x80\x9cStatutory Rape: A Guide to State Laws and Reporting\nRequirements,\xe2\x80\x9d ASPE.hhs.gov website, accessed February 16, 2011, http://aspe.hhs.gov/hsp/08/SR/StateLaws/\nstatelaws.shtml.\nUtah Code Ann. \xc2\xa7 76-5-402(1), accessed February 14, 2011, http://le.utah.gov/~code/TITLE76/htm/\n76_05_040200.htm.\nUtah Code Ann. \xc2\xa7 76-5-402(2), accessed February 14, 2011, http://le.utah.gov/~code/TITLE76/htm/\n76_05_040200.htm.\nVa. Code Ann. \xc2\xa7 19.2-295.2:1, accessed February 15, 2011, http://leg1.state.va.us/cgi-bin/\nlegp504.exe?000+cod+19.2-295.2C1.\n42 Pa. C. S. \xc2\xa7 9799.1, accessed February 15, 2011, http://www.pameganslaw.state.pa.us.\n\n\x0c10.2 Assault and Battery\n\nLearning Objectives\n1.\n\nDefine the criminal act element required for battery.\n\n2.\n\nDefine the criminal intent element required for battery.\n\n3.\n\nDefine the attendant circumstance element required for battery.\n\n4.\n\nDefine the harm element required for battery.\n\n5.\n\nAnalyze battery grading.\n\n6.\n\nDistinguish between attempted battery and threatened battery assault.\n\n7.\n\nDefine the elements of attempted battery assault.\n\n8.\n\nDefine the elements of threatened battery assault.\n\n9.\n\nAnalyze assault grading.\n\nAssault and battery are two crimes that are often prosecuted together, yet they are separate offenses with different\nelements. Although modern jurisdictions frequently combine assault and battery into one statute called assault,\nthe offenses are still distinct and are often graded differently. The Model Penal Code calls both crimes assault,\nsimple and aggravated (Model Penal Code \xc2\xa7 211.1). However, the Model Penal Code does not distinguish between\nassault and battery for grading purposes. This section reviews the elements of both crimes, including potential\ndefenses.\n\nBattery Elements\nBattery is a crime that has the elements of criminal act, criminal intent, attendant circumstance, causation, and\nharm as is discussed in the subsections that follow.\n\nBattery Act\nThe criminal act element required for battery in most jurisdictions is an unlawful touching, often described as\nphysical contact (720 ILCS \xc2\xa7 12-3, 2011). This criminal act element is what distinguishes assault from battery,\nalthough an individual can be convicted of both crimes if he or she commits separate acts supported by the\nappropriate intent. The defendant can touch the victim with an instrumentality, like shooting the victim with a\ngun, or can hit the victim with a thrown object, such as rocks or a bottle. The defendant can also touch the victim\nwith a vehicle, knife, or a substance, such as spitting on the victim or spraying the victim with a hose.\n348\n\n\x0c10.2 Assault and Battery 349\n\nExample of Battery Act\nRecall from Chapter 1 \xe2\x80\x9cIntroduction to Criminal Law\xe2\x80\x9d an example where Chris, a newly hired employee at\nMcDonald\xe2\x80\x99s, spills steaming-hot coffee on his customer Geoff\xe2\x80\x99s hand. Although Chris did not touch Geoff with\nany part of his body, he did pour a substance that unlawfully touched Geoff\xe2\x80\x99s body, which could be sufficient to\nconstitute the criminal act element for battery in most jurisdictions.\n\nBattery Intent\nThe criminal intent element required for battery varies, depending on the jurisdiction. At early common law,\nbattery was a purposeful or knowing touching. Many states follow the common-law approach and require specific\nintent or purposely, or general intent or knowingly (Fla. Stat. Ann. \xc2\xa7 784.03, 2011). Others include reckless\nintent (K.S.A. \xc2\xa7 21-3412, 2011), or negligent intent (R.I. Gen. Laws \xc2\xa7 11-5-2.2, 2011). Jurisdictions that\ninclude reckless or negligent intent generally require actual injury, serious bodily injury, or the use of a deadly\nweapon. The Model Penal Code requires purposely, knowingly, or recklessly causing bodily injury to another,\nor negligently causing \xe2\x80\x9cbodily injury to another with a deadly weapon\xe2\x80\x9d (Model Penal Code \xc2\xa7 211.1(1) (b)). If\nnegligent intent is not included in the battery statute, certain conduct that causes injury to the victim may not be\ncriminal.\n\nExample of Battery Intent\nReview the example with Chris and Geoff in Section 10 \xe2\x80\x9cExample of Battery Act\xe2\x80\x9d. Assume that Chris\xe2\x80\x99s act of\npouring hot coffee on Geoff\xe2\x80\x99s hand occurred when Chris attempted to multitask and hand out change at the same\nmoment he was pouring the coffee. Chris\xe2\x80\x99s act of physically touching Geoff with the hot coffee may be supported\nby negligent intent because Chris is a new employee and is probably not aware of the risk of spilling coffee when\nmultitasking. If the state in which Chris\xe2\x80\x99s spill occurs does not include negligent intent in its battery statute, Chris\nprobably will not be subject to prosecution for this offense. If Chris\xe2\x80\x99s state only criminalizes negligent battery\nwhen serious bodily injury occurs, or when causing bodily injury to another with a deadly weapon, Chris will not\nbe subject to prosecution for battery unless the coffee caused a severe burning of Geoff\xe2\x80\x99s hand; hot coffee cannot\nkill and would probably not be considered a deadly weapon.\n\nBattery Attendant Circumstance\nThe attendant circumstance element required for battery in most jurisdictions is that the touching occur without\nthe victim\xe2\x80\x99s consent. Thus victim\xe2\x80\x99s consent can operate as a failure of proof or affirmative defense in some\nfactual situations.\n\n\x0c350 Criminal Law\n\nExample of Battery Consent Defense\nRecall from Chapter 5 \xe2\x80\x9cCriminal Defenses, Part 1\xe2\x80\x9d the example where Allen tackles Brett during a high school\nfootball game, causing Brett to suffer a severe injury. Although Allen intentionally touched Brett, and the result\nis serious bodily injury, Brett consented to the touching by voluntarily participating in a sporting event where\nphysical contact is frequent. Thus the attendant circumstance element for battery is absent and Allen is probably\nnot subject to prosecution for this offense.\n\nJustification and Excuse Defenses to Battery\nIn addition to consent, there are also justification and excuse defenses to battery that Chapter 5 \xe2\x80\x9cCriminal\nDefenses, Part 1\xe2\x80\x9d and Chapter 6 \xe2\x80\x9cCriminal Defenses, Part 2\xe2\x80\x9d discuss in detail. To summarize and review, the\njustification defenses to battery are self-defense, defense of property and habitation, and the lawful apprehension\nof criminals. An excuse defense to battery that Chapter 6 \xe2\x80\x9cCriminal Defenses, Part 2\xe2\x80\x9d explores is the insanity\ndefense. One other excuse defense to battery is the reasonable discipline of a child by a parent that is generally\nregulated by statute and varies from state to state (Kidjacked.com, 2011).\n\nBattery Causation\nThe defendant\xe2\x80\x99s criminal act must be the factual and legal cause of the harm, which is defined in Section 10\n\xe2\x80\x9cBattery Harm\xe2\x80\x9d.\n\nBattery Harm\nThe harm requirement for battery varies, depending on the jurisdiction. Many jurisdictions allow for harmful or\noffensive contact (720 ILCS \xc2\xa7 12-3, 2011). Some jurisdictions require an actual injury to the victim (Ala. Code \xc2\xa7\n13A-6-21, 2011). The severity of the injury can elevate grading, as is discussed in Section 10 \xe2\x80\x9cBattery Grading\xe2\x80\x9d.\n\nExample of Battery Harm\nReview the example in Section 10 \xe2\x80\x9cExample of Battery Act\xe2\x80\x9d where Chris pours hot coffee on Geoff\xe2\x80\x99s hand. If\nChris and Geoff are in a state that requires actual injury to the victim as the harm element of battery, Chris will\nnot be subject to prosecution for this offense unless the hot coffee injures Geoff\xe2\x80\x99s hand. If Chris and Geoff are in\na state that allows for harmful or offensive contact, Chris may be charged with or convicted of battery as long as\nthe battery intent element is present, as discussed in Section 10 \xe2\x80\x9cBattery Intent\xe2\x80\x9d.\nFigure 10.6 Diagram of Defenses to Battery\n\n\x0c10.2 Assault and Battery 351\n\nBattery Grading\nAt early common law, battery was a misdemeanor. The Model Penal Code grades battery (called simple assault)\nas a misdemeanor unless \xe2\x80\x9ccommitted in a fight or scuffle entered into by mutual consent, in which case it is a\npetty misdemeanor\xe2\x80\x9d (Model Penal Code \xc2\xa7 211.1(1)). The Model Penal Code grades aggravated battery (called\naggravated assault), which is battery that causes serious bodily injury or bodily injury caused by a deadly weapon,\nas a felony of the second or third degree (Model Penal Code \xc2\xa7 211.1(2)). Many states follow the Model Penal Code\napproach by grading battery that causes offense or emotional injury as a misdemeanor (720 ILCS \xc2\xa7 12-3, 2011)\nand battery that causes bodily injury as a gross misdemeanor or a felony (720 ILCS \xc2\xa712-4, 2011). In addition,\nbattery supported by a higher level of intent\xe2\x80\x94such as intent to cause serious bodily injury or intent to maim or\ndisfigure\xe2\x80\x94is often graded higher (Ala. Code \xc2\xa7 13A-6-20, 2011). Other factors that can aggravate battery grading\nare the use of a weapon (R.I. Gen. Laws \xc2\xa7 11-5-2, 2011), the commission of battery during the commission or\nattempted commission of a serious or violent felony (Ala. Code \xc2\xa7 13A-6-20, 2011), the helplessness of the victim\n(Wis. Stat \xc2\xa7 940.16(6), 2011), and battery against a teacher (Wis. Stat. \xc2\xa7 940.16(5), 2011) or law enforcement\nofficer (Wis. Stat. \xc2\xa7 940.20(2), 2011).\n\nAssault Elements\nAssault is a crime that has the elements of criminal act and intent. A certain type of assault also has a causation\nand harm element, as is discussed in Section 10 \xe2\x80\x9cThreatened Battery Assault\xe2\x80\x9d.\n\n\x0c352 Criminal Law\n\nAttempted Battery and Threatened Battery Assault\nTwo types of assault are recognized. In some jurisdictions, assault is an attempted battery. In other jurisdictions,\nassault is a threatened battery. The Model Penal Code criminalizes both attempted battery and threatened battery\nassault (Model Penal Code \xc2\xa7 211.1). The elements of both types of assault are discussed in Section 10 \xe2\x80\x9cAttempted\nBattery and Threatened Battery Assault\xe2\x80\x9d.\n\nAttempted Battery Assault\nAttempted battery assault is an assault that has every element of battery except for the physical contact. The\nelements of attempted battery assault are criminal act supported by criminal intent. There is no requirement of\ncausation or harm because attempt crimes do not have a harm requirement. Although attempted battery assault\nshould allow for the same defense of consent as battery, this is not as common with assault as it is with battery,\nso most statutes do not have the attendant circumstance element of lack of consent by the victim.\n\nAttempted Battery Assault Act\nThe criminal act element required for attempted battery assault is an act that attempts to make physical contact\nwith the victim but falls short for some reason. This could be a thrown object that never hits its target, a gunshot\nthat misses, or a punch that doesn\xe2\x80\x99t connect. In some states, the defendant must have the present ability to cause\nharmful or offensive physical contact, even though the contact never takes place (Cal. Penal Code \xc2\xa7 240, 2011).\nThe present ability requirement is simply an extension of the rule that attempt crimes must progress beyond mere\npreparation. In the majority of jurisdictions, the criminal act element is measured by the Model Penal Code\xe2\x80\x99s\nsubstantial steps test described in detail in Chapter 7 \xe2\x80\x9cParties to Crime\xe2\x80\x9d (Commonwealth v. Matthews, 2011).\nTo summarize, the substantial steps test requires the defendant to take substantial steps toward completion of the\nbattery, and the defendant\xe2\x80\x99s actions must be strongly corroborative of the defendant\xe2\x80\x99s criminal purpose (Model\nPenal Code \xc2\xa7 5.01).\n\nExample of Attempted Battery Assault Act\nDiana points a loaded pistol at her ex-boyfriend Dan, says, \xe2\x80\x9cPrepare to die, Dan,\xe2\x80\x9d and pulls the trigger. Fortunately\nfor Dan, the gun malfunctions and does not fire. Diana has probably committed attempted battery assault. Diana\ntook every step necessary toward completion of battery, and her conduct of aiming a pistol at Dan and pulling\nthe trigger was strongly corroborative of her criminal purpose. In addition, it appears that Diana had the present\nability to shoot Dan because her gun was loaded. Thus Diana may be charged with and convicted of the offense\nof attempted battery assault with a deadly weapon. Note that Diana may also be charged with or convicted of\nattempted murder because it appears that murder intent is present.\n\n\x0c10.2 Assault and Battery 353\n\nAttempted Battery Assault Intent\nThe criminal intent element required for attempted battery assault is the specific intent or purposely to cause\nharmful or offensive contact (People v. Nickens, 2011). Like all attempt crimes, attempted battery assault cannot\nbe supported by reckless or negligent intent.\n\nExample of Attempted Battery Assault Intent\nChange the example in Section 10 \xe2\x80\x9cExample of Attempted Battery Assault Act\xe2\x80\x9d so that Dan hands Diana a pistol\nand comments that it is unloaded. Diana says, \xe2\x80\x9cReally? Well, then, I can do this!\xe2\x80\x9d She thereafter points the gun\nat Dan and playfully pulls the trigger. The gun malfunctions and does not shoot, although it is loaded. Diana\nprobably cannot be charged with or convicted of attempted battery assault in this case. Although Diana took every\nstep necessary toward making harmful physical contact with Dan, she was acting with negligent, not specific or\npurposeful, intent. Thus the criminal intent element for attempted battery assault is absent, and Diana could only\nbe charged with a lesser offense such as negligent handling of firearms.\n\nThreatened Battery Assault\nThreatened battery assault differs from attempted battery assault in that the intent is not to cause physical\ncontact with the victim; the intent is to cause the victim to fear physical contact. Thus threatened battery assault\nis not an attempt crime and has the additional requirement of causation and harm offense elements.\n\nThreatened Battery Assault Act\nThe criminal act element required for threatened battery assault is conduct that causes the victim apprehension of\nimmediate harmful or offensive physical contact. In general, words are not enough to constitute the criminal act\nelement required for threatened battery assault (Clark v. Commonwealth, 2011). The words must be accompanied\nby threatening gestures. In addition, a threat of future harm or a conditional threat is not sufficient (Clark v.\nCommonwelath, 2011). The physical contact threatened must be unequivocal and immediate. Some jurisdictions\nstill require present ability for threatened battery assault. In others, only apparent ability is necessary; this\nmeans the victim must reasonably believe that the defendant can effectuate the physical contact (Fla. Stat. Ann. \xc2\xa7\n784.011, 2011).\n\nExample of Threatened Battery Assault Act\nChange the example given in Section 10 \xe2\x80\x9cExample of Attempted Battery Assault Act\xe2\x80\x9d so that Dan\xe2\x80\x99s pistol is lying\non a table. Diana says to Dan, \xe2\x80\x9cIf you don\xe2\x80\x99t take me back, I am going to shoot you with your own gun!\xe2\x80\x9d At this\n\n\x0c354 Criminal Law\n\npoint, Diana has probably not committed the criminal act element required for threatened battery assault. Diana\nhas only used words to threaten Dan, and words are generally not enough to constitute the threatened battery\nassault act. In addition, Diana\xe2\x80\x99s threat was conditional, not immediate. If Dan agrees to get back together with\nDiana, no physical contact would occur. Add to the example, and assume that Dan responds, \xe2\x80\x9cGo ahead, shoot\nme. I would rather die than take you back!\xe2\x80\x9d Diana thereafter grabs the gun, points it at Dan, and cocks it. At this\npoint, Diana may have committed the criminal act element required for threatened battery assault. Diana\xe2\x80\x99s threat is\naccompanied by a serious gesture: cocking a pistol. If the state in which Dan and Diana\xe2\x80\x99s example occurs requires\npresent ability, then the gun must be loaded. If the state requires apparent ability, then Dan must believe the gun\nis loaded\xe2\x80\x94and if he is wrong, Diana could still have committed the criminal act element required for threatened\nbattery assault.\n\nThreatened Battery Assault Intent\nThe criminal intent element required for threatened battery assault is the specific intent or purposely to cause fear\nof harmful or offensive contact (Commonwelath v. Porro, 2010). This is different from the criminal intent element\nrequired for attempted battery assault, which is the specific intent or purposely to cause harmful or offensive\ncontact.\n\nExample of Threatened Battery Assault Intent\nReview the example in Section 10 \xe2\x80\x9cExample of Threatened Battery Assault Act\xe2\x80\x9d. Change the example so that the\ngun that Diana grabs is Diana\xe2\x80\x99s gun, and it is unloaded. Diana is aware that the gun is unloaded, but Dan is not.\nIn this example, Diana probably has the intent required for threatened battery assault. Diana\xe2\x80\x99s act of pointing the\ngun at Dan and cocking it, after making a verbal threat, indicates that she has the specific intent or purposely to\ncause apprehension in Dan of imminent harmful physical contact. If Diana is in a state that only requires apparent\nability to effectuate the contact, Diana has committed the criminal act supported by criminal intent for threatened\nbattery assault. Note that Diana does not have the proper criminal intent for attempted battery assault if the\ngun is unloaded. This is because the intent required for attempted battery assault is the intent to cause harmful or\noffensive contact, which Diana clearly cannot intend to do with an unloaded gun.\n\nThreatened Battery Assault Causation\nThe defendant\xe2\x80\x99s criminal act must be the factual and legal cause of the harm that is defined in Section 10\n\xe2\x80\x9cThreatened Battery Assault Harm\xe2\x80\x9d.\n\nThreatened Battery Assault Harm\nThe harm element required for threatened battery assault is the victim\xe2\x80\x99s reasonable apprehension of imminent\n\n\x0c10.2 Assault and Battery 355\n\nharmful or offensive contact (Commonwelath v. Porro, 2011). Thus the victim\xe2\x80\x99s lack of awareness of the\ndefendant\xe2\x80\x99s criminal act could operate as a failure of proof or affirmative defense in many jurisdictions.\n\nExample of Threatened Battery Assault Harm\nReview the example in Section 10 \xe2\x80\x9cExample of Threatened Battery Assault Act\xe2\x80\x9d. Change the example so that\nafter Diana verbally threatens Dan, he shrugs, turns around, and begins to walk away. Frustrated, Diana grabs the\ngun off of the table and waves it menacingly at Dan\xe2\x80\x99s back. Dan is unaware of this behavior and continues walking\nout the door. Diana has probably not committed threatened battery assault in this situation. A key component of\nthreatened battery assault is victim apprehension or fear. If Diana silently waves a gun at Dan\xe2\x80\x99s back, it does\nnot appear that she has the specific intent or purposely to inspire fear in Dan of harmful physical contact. In\naddition, Dan was not cognizant of Diana\xe2\x80\x99s action and did not experience the fear, which is the threatened battery\nassault harm element. Thus Diana may not be convicted of assault with a deadly weapon in states that criminalize\nonly threatened battery assault. Note that if the gun is loaded, Diana may have committed attempted battery\nassault in many jurisdictions. Attempted battery assault requires neither intent to inspire fear in the victim nor\nvictim awareness of the defendant\xe2\x80\x99s criminal act. A trier of fact could find that Diana took substantial steps toward\ncommitting harmful physical contact when she picked up a loaded gun and waved it at Dan\xe2\x80\x99s back after making a\nverbal threat. Attempted battery assault has no harm element, so the crime is complete as soon as Diana commits\nthe criminal act supported by criminal intent.\nFigure 10.7 Diagram of Assault Elements\n\nFigure 10.8 Crack the Code\n\n\x0c356 Criminal Law\n\nAssault Grading\nAssault grading is very similar to battery grading in many jurisdictions. As stated previously, many modern\nstatutes follow the Model Penal Code approach and combine assault and battery into one statute, typically called\n\xe2\x80\x9cassault\xe2\x80\x9d (Ariz. Rev. Stat \xc2\xa7 13-1203, 2011). Simple assault is generally a misdemeanor (Ariz Rev. Stat. \xc2\xa7 13-1203,\n2011). Aggravated assault is generally a felony (Ariz. Rev. Stat. \xc2\xa7 13-1204, 2011). Factors that could enhance\ngrading of assault are the use of a deadly weapon and assault against a law enforcement officer, teacher, or helpless\nindividual (Ariz. Rev. Stat. \xc2\xa7 13-1204, 2011).\nTable 10.2 Comparing Battery, Attempted Battery, and Threatened Battery Assault\n\n\x0c10.2 Assault and Battery 357\n\nCrime\n\nCriminal Act\n\nCriminal Intent\n\nHarm\n\nGrading\n\nBattery\n\nUnlawful touching\n\nSpecific or purposely,\ngeneral or knowingly,\nreckless, or negligent\n\nHarmful or\noffensive physical\ncontact\n\nSimple:\nmisdemeanor\nAggravated:\nfelony\n\nAttempted\nbattery\nassault\n\nSubstantial steps toward a battery plus\npresent ability\n\nSpecific or purposely to\ncommit battery\n\nNone required\n\nSimple:\nmisdemeanor\nAggravated:\nfelony\n\nSpecific or purposely to\ninspire fear of physical\ncontact\n\nVictim\xe2\x80\x99s\nreasonable fear of\nimminent physical\ncontact\n\nSimple:\nmisdemeanor\nAggravated:\nfelony\n\nThreatened Conduct that inspires fear of physical\nbattery\ncontact; words are not enough; may require\nassault\napparent rather than present ability\n\nNote: Battery could also include the attendant circumstance element of lack of consent by the victim.\n\nKey Takeaways\n\xe2\x80\xa2\n\xe2\x80\xa2\n\n\xe2\x80\xa2\n\nThe criminal act element required for battery is an unlawful touching.\nThe criminal intent element required for battery can be specific intent or purposely, general intent or\nknowingly, recklessly, or negligently, depending on the circumstances and the jurisdiction. Jurisdictions that\ncriminalize reckless or negligent battery generally require actual injury, serious bodily injury, or the use of a\ndeadly weapon.\nThe attendant circumstance element required for battery is lack of consent by the victim.\n\n\xe2\x80\xa2\n\nThe harm element of battery is physical contact. Jurisdictions vary as to whether the physical contact\nmust be harmful or if it can be harmful or offensive.\n\n\xe2\x80\xa2\n\nBattery that causes offense or emotional injury is typically graded as a misdemeanor, and battery that\ncauses physical injury is typically graded as a gross misdemeanor or a felony. Factors that can aggravate\ngrading are a higher level of intent, such as intent to maim or disfigure, use of a weapon, committing battery\nin concert with other serious or violent felonies, and battery against a helpless victim, teacher, or law\nenforcement officer.\n\n\xe2\x80\xa2\n\nAttempted battery assault is an attempt crime that does not require the elements of causation or harm.\nThreatened battery assault requires causation and harm; the victim must experience reasonable fear of\nimminent physical contact.\n\n\xe2\x80\xa2\n\nAttempted battery assault requires the criminal act of substantial steps toward commission of a battery\nand the criminal intent of specific intent or purposely to commit a battery. Because attempted battery assault\nis an attempt crime, it also generally requires present ability to commit the battery.\n\n\xe2\x80\xa2\n\nThe criminal act element required for threatened battery assault is conduct that inspires reasonable fear in\nthe victim of imminent harmful or offensive physical contact. Words generally are not enough to constitute\nthe criminal act element, nor are conditional threats. However, because the act need only inspire the fear,\nrather than culminate in a battery, apparent ability to commit the battery is sufficient in many jurisdictions.\nThe criminal intent element required for threatened battery assault is specific intent or purposely to inspire\nthe victim\xe2\x80\x99s reasonable fear. The defendant must also be the factual and legal cause of the harm, which is the\nvictim\xe2\x80\x99s reasonable fear of imminent harmful or offensive physical contact.\n\n\xe2\x80\xa2\n\nSimple assault is generally graded as a misdemeanor; aggravated assault is generally graded as a felony.\nFactors that can aggravate grading are the use of a weapon or assault against a law enforcement officer,\nteacher, or helpless victim.\n\n\x0c358 Criminal Law\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nBob and Rick get into an argument after drinking a few beers. Bob swings at Rick with his fist, but Rick\nducks and Bob does not hit Rick. Bob swings again with the other hand, and this time he manages to punch\nRick in the stomach. Identify the crimes committed in this situation. If Bob only swings once and misses,\nwhich crime(s) have been committed?\n\n2.\n\nRead State v. Higgs, 601 N.W.2d 653 (1999). What criminal act did the defendant commit that resulted in\na conviction for battery? Did the Court of Appeals of Wisconsin uphold the defendant\xe2\x80\x99s conviction? Why or\nwhy not? The case is available at this link: http://scholar.google.com/\nscholar_case?case=10727852975973050662&q= State+v.+Higgs+601+N.W.2d+653&hl=en&as_sdt=2,5.\n\n3.\n\nRead Commonwealth v. Henson, 259 N.E.2d 769 (1970). In Henson, the defendant fired blanks at a police\nofficer and was convicted of assault with a deadly weapon. The defendant appealed, claiming that he had no\npresent ability to shoot the police officer because the gun was not loaded with bullets. Did the Supreme\nJudicial Court of Massachusetts uphold the defendant\xe2\x80\x99s conviction? The case is available at this link:\nhttp://scholar.google.com/scholar_case?case=11962310018051202223&hl=en&as_sdt=2002&as_vis=1.\n\nReferences\nAla. Code \xc2\xa7 13A-6-20, accessed February 18, 2011, http://law.onecle.com/alabama/criminal-code/13A-6-20.html.\nAla. Code \xc2\xa7 13A-6-20(4), accessed February 18, 2011, http://law.onecle.com/alabama/criminal-code/\n13A-6-20.html.\nAla. Code \xc2\xa7 13A-6-21, accessed February 18, 2011, http://law.onecle.com/alabama/criminal-code/\n13A-6-21.html.\nAriz. Rev. Stat. \xc2\xa7 13-1203, accessed February 20, 2011, http://law.onecle.com/arizona/criminal-code/\n13-1203.html.\nAriz. Rev. Stat. \xc2\xa7 13-1204, accessed February 20, 2011, http://law.onecle.com/arizona/criminal-code/\n13-1204.html.\nCal. Penal Code \xc2\xa7 240, accessed February 19, 2011, http://law.justia.com/california/codes/2009/pen/\n240-248.html.\nClark v. Commonwealth, 676 S.E.2d 332 (2009), accessed February 19, 2011, http://scholar.google.com/\nscholar_case?case=12317437845803464805&q=\n%22assault%22+%2B+%22words+are+not+enough%22&hl=en&as_sdt=2,5.\nCommonwealth v. Matthews, 205 PA Super 92 (2005), accessed February 19, 2011, http://scholar.google.com/\nscholar_case?case=16367791555829234654&q=\n%22assault%22+%2B+%22conditional+threat%22+%2B+%22not+enough%22&hl= en&as_sdt=2,5.\nCommonwealth v. Porro, 458 Mass. 526 (2010), accessed February 20, 2011, http://scholar.google.com/\nscholar_case?case=13033264667355058927&q= Commonwealth+v.+Porro&hl=en&as_sdt=4,22.\nFla. Stat. Ann. \xc2\xa7 784.03, accessed February 18, 2011, http://law.onecle.com/florida/crimes/784.03.html.\nK.S.A. \xc2\xa7 21-3412, accessed February 18, 2011, http://kansasstatutes.lesterama.org/Chapter_21/Article_34/\n21-3412.html.\n\n\x0c10.2 Assault and Battery 359\n\nKidjacked.com website, \xe2\x80\x9cUnited States statutes pertaining to spanking,\xe2\x80\x9d accessed February 18, 2011,\nhttp://kidjacked.com/legal/spanking_law.asp.\nPeople v. Nickens, 685 NW 2d 657 (2004), accessed February 19, 2011, http://scholar.google.com/\nscholar_case?case=16424953435525763156&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\nR.I. Gen. Laws \xc2\xa7 11-5-2.2, accessed February 18, 2011, http://law.justia.com/rhodeisland/codes/title11/\n11-5-2.2.html.\nWis. Stat. \xc2\xa7\xc2\xa7 940.19(6) (a), 940.19(6) (b), accessed February 18, 2011, http://nxt.legis.state.wi.us/nxt/\ngateway.dll?f=templates&fn=default.htm&d=stats&jd=ch.%20940.\nWis.\nStat.\n\xc2\xa7 940.20(2),\naccessed\nFebruary\n18,\n2011,\nhttp://nxt.legis.state.wi.us/nxt/\ngateway.dll?f=templates&fn=default.htm&d=stats&jd=ch.%20940.\nWis.\nStat.\n\xc2\xa7 940.20(5),\naccessed\nFebruary\n18,\n2011,\nhttp://nxt.legis.state.wi.us/nxt/\ngateway.dll?f=templates&fn=default.htm&d=stats&jd=ch.%20940.\n720 ILCS \xc2\xa7 12-3, accessed February 18, 2011, http://law.onecle.com/illinois/720ilcs5/12-3.html.\n720 ILCS \xc2\xa7 12-4, accessed February 18, 2011, http://law.onecle.com/illinois/720ilcs5/12-4.html.\n\n\x0c10.3 Domestic Violence and Stalking\n\nLearning Objectives\n1.\n\nIdentify the individuals covered by domestic violence statutes.\n\n2.\n\nIdentify some of the special features of domestic violence statutes.\n\n3.\n\nDefine the criminal act element required for stalking.\n\n4.\n\nDefine the criminal intent element required for stalking, and compare various statutory approaches to\nstalking criminal intent.\n\n5.\n\nDefine the harm element required for stalking, and compare various statutory approaches to ascertaining\nharm.\n\n6.\n\nAnalyze stalking grading.\n\nDomestic violence and stalking are modern crimes that respond to societal problems that have escalated in\nrecent years. Domestic violence statutes are drafted to address issues that are prevalent in crimes between family\nmembers or individuals living in the same household. Stalking generally punishes conduct that is a precursor\nto assault, battery, or other crimes against the person, as is explored in Section 10.3 \xe2\x80\x9cDomestic Violence and\nStalking\xe2\x80\x9d.\n\nDomestic Violence\nDomestic violence statutes generally focus on criminal conduct that occurs between family members. Although\nfamily cruelty or interfamily criminal behavior is not a new phenomenon, enforcement of criminal statutes against\nfamily members can be challenging because of dependence, fear, and other issues that are particular to the family\nunit. In addition, historical evidence indicates that law enforcement can be reluctant to get involved in family\ndisputes and often fails to adequately protect victims who are trapped in the same residence as the defendant.\nSpecific enforcement measures that are crafted to apply to defendants and victims who are family members are\nan innovative statutory approach that many jurisdictions are beginning to adopt. In general, domestic violence\nstatutes target crimes against the person, for example, assault, battery, sex offenses, kidnapping, and criminal\nhomicide.\n\nDomestic Violence Statutes\xe2\x80\x99 Characteristics\nThe purpose of many domestic violence statutes is equal enforcement and treatment of crimes between family\nmembers and maximum protection for the domestic violence victim (RCW \xc2\xa7 10.99.010, 2011). Domestic violence\n360\n\n\x0c10.3 Domestic Violence and Stalking 361\n\nstatutes focus on individuals related by blood or marriage, individuals who share a child, ex-spouses and exlovers, and individuals who reside together (Ariz. Rev. Stat. \xc2\xa7 13-3601(A), 2011). Domestic violence statutes\ncommonly contain the following provisions:\n\xe2\x80\xa2 Special training for law enforcement in domestic issues (RCW \xc2\xa7 10.99.030, 2011)\n\xe2\x80\xa2 Protection of the victim by no-contact orders and nondisclosure of the victim\xe2\x80\x99s residence address\n(RCW \xc2\xa7 10.99.040, 2011)\n\xe2\x80\xa2 Duty of law enforcement or prosecutors to inform the victim of the decision of whether to prosecute\nand the duty to inform the victim of special procedures available to protect domestic violence victims\n(RCW \xc2\xa7 10.99.060, 2011)\n\xe2\x80\xa2 Ability to arrest domestic violence offenders with or without a warrant (Ariz. Rev. Stat. \xc2\xa7 13-3601(B),\n2011)\n\xe2\x80\xa2 Special factors to consider in the sentencing of domestic violence defendants (RCW \xc2\xa7 10.99.100,\n2011)\n\xe2\x80\xa2 Peace officer immunity for enforcement of domestic violence provisions (Ariz. Rev. Stat. \xc2\xa7\n13,3601(G), 2011)\n\nStalking\nCalifornia was the first state to enact a stalking law in 1990, in response to the high-profile murder of a young\nactress named Rebecca Schaeffer whose attacker stalked her for two years. Now all states and the federal\ngovernment have stalking laws (18 U.S.C. \xc2\xa7 2261A, 2011). Although statutes criminalizing stalking are genderneutral, in reality, most stalking victims are women, and most stalking defendants are men.\nBefore the states enacted stalking laws, a victim who was threatened and harassed but not assaulted had no\nremedy except to go to court and obtain a restraining order. A restraining order is a court order mandating\nthat the defendant neither contact nor come within a certain distance of the victim. If the defendant violated the\nrestraining order, law enforcement could arrest him or her. Until a restraining order was in place, however, the\ndefendant was free to continue frightening the victim. Restraining orders typically take some time to obtain. The\nvictim must contact and employ an attorney and also set up a court hearing. For this reason, the restraining order\nmethod of preventing a defendant from stalking was cumbersome, ineffective, and frequently resulted in force or\nviolence against the stalking victim.\nThe modern crime of stalking allows law enforcement to arrest and incapacitate defendants before they\ncomplete an assault, battery, or other violent crime against a victim. Like all crimes, stalking requires the\ndefendant to commit a voluntary act supported by criminal intent. In many jurisdictions, stalking also has the\nelements of causation and harm, as is discussed in Section 10.3.2 \xe2\x80\x9cStalking\xe2\x80\x9d.\n\nStalking Act\nVarious approaches have been made to criminalize stalking, and a plethora of descriptors now identify the stalking\n\n\x0c362 Criminal Law\n\ncriminal act. In the majority of jurisdictions, the criminal act element required for stalking includes any course\nof conduct that credibly threatens the victim\xe2\x80\x99s safety, including following (Tex. Penal Code \xc2\xa7 42.072, 2011),\nharassing (Cal. Penal Code \xc2\xa7 646.9, 2011), approaching (Md. Code Ann. \xc2\xa7 3-802, 2011), pursuing, or making an\nexpress or implied threat to injure the victim, the victim\xe2\x80\x99s family member (Ala. Code \xc2\xa7 13A-6-90, 2011), or the\nvictim\xe2\x80\x99s property (Tex. Penal Code \xc2\xa7 42.072(a), 2011). In general, credible threat means the defendant has the\napparent ability to effectuate the harm threatened (S. D. Codified Laws \xc2\xa7 22-19A-6, 2011). The stalking criminal\nact is unique among criminal acts in that it must occur on more than one occasion or repeatedly (Colo. Rev. Stat.\nAnn. \xc2\xa7 18-3-602, 2011). The popularity of social networking sites and the frequency with which defendants use\nthe Internet to stalk their victims inspired many states to specifically criminalize cyberstalking, which is the use\nof the Internet or e-mail to commit the criminal act of stalking (Alaska Stat. \xc2\xa7 11.41.270, 2011).\n\nExample of a Case Lacking Stalking Act\nElliot tells Lisa on two separate occasions that he loves her. Lisa intensely dislikes Elliot and wants nothing to do\nwith him. Although Elliot\xe2\x80\x99s proclamations of love are unwelcome, Elliot probably has not committed the criminal\nact element required for stalking. Elliot\xe2\x80\x99s behavior does not threaten Lisa\xe2\x80\x99s safety or the safety of her family\nmembers or property. Thus Elliot may not be charged with and convicted of stalking in most jurisdictions.\n\nExample of Stalking Act\nChange the example in Section 10 \xe2\x80\x9cExample of a Case Lacking Stalking Act\xe2\x80\x9d so that Elliot tells Lisa he loves her\non one occasion. Lisa frowns and walks away. Elliot then follows Lisa and tells her that he will \xe2\x80\x9cmake her pay\xe2\x80\x9d\nfor not loving him. Lisa ignores Elliot\xe2\x80\x99s statement, climbs into her car, and drives away. Later that evening, Elliot\nrings Lisa\xe2\x80\x99s doorbell. Lisa does not answer the door but yells at Elliot, telling him to leave. Disgruntled and angry,\nElliot carves, \xe2\x80\x9cyou will die for not loving me\xe2\x80\x9d into Lisa\xe2\x80\x99s front door with his pocketknife.\nElliot\xe2\x80\x99s conduct could constitute the criminal act element required for stalking in most jurisdictions. In this\nexample, Elliot has followed Lisa and approached her, which is a repeated course of conduct. On two occasions\nElliot threatened Lisa: once by telling her he will \xe2\x80\x9cmake her pay\xe2\x80\x9d and again by carving a death threat into her front\ndoor. Keep in mind that Elliot\xe2\x80\x99s threat to Lisa\xe2\x80\x99s safety must be credible in many jurisdictions. Thus if Elliot is\nunable to actually harm Lisa for any reason, the trier of fact could find that he does not have the apparent ability\nto carry out his threat, and he could not be convicted of stalking.\n\nStalking Intent\nThe criminal intent element required for stalking also varies, depending on the jurisdiction. In most states, the\ndefendant must commit the criminal act willfully or maliciously (Cal. Penal Code \xc2\xa7 646.9, 2011). This indicates a\nspecific intent or purposeful conduct. However, in states that require the victim to experience harm, a different\ncriminal intent could support the harm offense element. States that include bad results or harm in their stalking\n\n\x0c10.3 Domestic Violence and Stalking 363\n\nstatutes require either specific intent or purposely, general intent or knowingly, reckless intent, negligent\nintent, or strict liability (no intent) to cause the harm, depending on the state (Ncvc.org, 2011).\n\nExample of Stalking Intent\nReview the stalking act example in Section 10 \xe2\x80\x9cExample of Stalking Act\xe2\x80\x9d. In the majority of states, Elliot must\nmake the threatening statement and carve the threatening message into Lisa\xe2\x80\x99s front door willfully or maliciously.\nHowever, the requirement that Elliot act with the intent to cause Lisa\xe2\x80\x99s reaction to this conduct varies, depending\non the jurisdiction. In some jurisdictions, Elliot must act with the specific intent or purposely to cause Lisa to\nsuffer the stalking harm, which is generally fear for bodily safety, the safety of family members, or fear of damage\nto Lisa\xe2\x80\x99s property. In others, Elliot can act to cause Lisa\xe2\x80\x99s fear with general intent or knowingly, reckless intent,\nor negligent intent. In some jurisdictions, Elliot\xe2\x80\x99s purpose or awareness as to Lisa\xe2\x80\x99s feeling of fear is irrelevant\nbecause strict liability is the intent supporting the harm or bad results requirement.\n\nStalking Causation\nIn jurisdictions that require harm for stalking, the defendant\xe2\x80\x99s criminal act must be the factual and legal cause of\nthe harm, which is defined in Section 10 \xe2\x80\x9cStalking Harm\xe2\x80\x9d.\n\nStalking Harm\nAs stated previously, some states require a specific harm element in their stalking statutes. This element is defined\ndifferently depending on the state but generally amounts to victim fear. The fear is typically fear of bodily injury\nor death of the victim (Ala. Code \xc2\xa7 13A-6-90, 2011) or of the victim\xe2\x80\x99s family member (Alaska Stat. \xc2\xa7 11.41.270,\n2011), or damage to the victim\xe2\x80\x99s property (Tex Penal Code \xc2\xa7 42.072(a), 2011). States also employ different tests\nto ascertain the harm element. States can require subjective and objective fear (Tex. Penal Code \xc2\xa7 42.072(a),\n2011), just subjective fear (Alaska Stat. \xc2\xa7 11.41.270, 2011), or just objective fear (Md. Code Ann. \xc2\xa7 3-802, 2011).\nSubjective fear means the victim must actually experience fear. Objective fear means a reasonable victim under\nsimilar circumstances would experience fear.\n\nExample of Stalking Harm\nReview the stalking act example in Section 10 \xe2\x80\x9cExample of Stalking Act\xe2\x80\x9d. In jurisdictions that require subjective\nand objective victim fear as the harm element for stalking, Elliot must cause Lisa to experience fear that is\nreasonable under the circumstances. In a jurisdiction that requires only subjective victim fear, Elliot must cause\nLisa to feel fear, either reasonably or unreasonably. In a jurisdiction that requires only objective fear, Elliot must\nact in a manner that would cause a reasonable victim under similar circumstances to experience fear. Keep in mind\n\n\x0c364 Criminal Law\n\nthat if Lisa is aware of a circumstance that makes it unlikely that Elliot can carry out his threat, Elliot could not be\nconvicted of stalking in a jurisdiction that requires Lisa to experience subjective fear.\n\nStalking Grading\nJurisdictions vary as to how they grade stalking. Many states divide stalking into degrees or grade it as simple\nand aggravated. First-degree or aggravated stalking is generally graded as a felony, and second-degree or simple\nstalking is generally graded as a misdemeanor (Alaska Stat. \xc2\xa7\xc2\xa7 11.41.260, 2011). Factors that could enhance\ngrading are the violation of a restraining or protective order, the use of a weapon, a youthful victim, or previous\nconvictions for stalking (Alaska Stat. \xc2\xa7 11.41.260, 2011).\nFigure 10.9 Diagram of Domestic Violence and Stalking\n\n\x0c10.3 Domestic Violence and Stalking 365\n\nKey Takeaways\n\xe2\x80\xa2\n\nIndividuals covered by domestic violence statutes are relatives by blood or marriage, individuals who\nshare a child, ex-spouses and ex-lovers, and individuals who reside together.\n\n\xe2\x80\xa2\n\nSome special features of domestic violence statutes are special training for law enforcement in domestic\nissues, protection of the victim by no-contact orders and nondisclosure of the victim\xe2\x80\x99s residence address, the\nduty of law enforcement or prosecutors to inform the victim of the decision of whether to prosecute and the\nduty to inform the victim of special procedures available to protect domestic violence victims, the ability to\narrest domestic violence offenders with or without a warrant, special factors to consider in the sentencing of\ndomestic violence defendants, and peace officer immunity for enforcement of domestic violence provisions.\n\n\x0c366 Criminal Law\n\n\xe2\x80\xa2\n\nThe criminal act element required for stalking varies, but in general it is repeatedly engaging in a course\nof conduct that poses a credible threat to the victim\xe2\x80\x99s safety, including following, harassing, approaching, or\npursuing the victim.\n\n\xe2\x80\xa2\n\nThe criminal intent supporting the stalking criminal act is specific intent or purposely in most\njurisdictions. Some jurisdictions require a different criminal intent to support the harm requirement: either\nspecific intent or purposely, general intent or knowingly, reckless intent, negligent intent, or strict liability.\n\n\xe2\x80\xa2\n\nSome jurisdictions require the defendant to cause harm, which is victim fear of serious bodily injury, fear\nof death of the victim or the victim\xe2\x80\x99s family member, or damage to the victim\xe2\x80\x99s property. The test for victim\nfear varies and could be either subjective and objective fear, just subjective fear, or just objective fear.\n\n\xe2\x80\xa2\n\nIt is common to divide stalking into degrees or grade it as simple and aggravated. First-degree or\naggravated stalking is generally graded as a felony, and second-degree or simple stalking is generally graded\nas a misdemeanor. Factors that can aggravate grading are the violation of a restraining or protective order,\nthe use of a weapon, a youthful victim, or previous convictions for stalking.\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nChris punches and slaps Rhianna, his roommate and girlfriend. Could this be considered domestic\nviolence?\n\n2.\n\nRead State v. Holbach, 2009 ND 37 (2009). In Holbach, the defendant appealed a conviction for stalking\nbased on his constitutionally protected right to travel around town and do errands. The defendant was on\nprobation for stalking the victim and subject to conditions of probation, including a stay-away order.\nHowever, the victim claimed that she saw the defendant following her around town on many occasions. Did\nthe Supreme Court of North Dakota uphold the defendant\xe2\x80\x99s stalking conviction? Why or why not? The case\nis available at this link: http://scholar.google.com/scholar_case?case=14788412528928431856&q=\nstalking&hl=en&as_sdt=2,5&as_ylo=2009.\n\n3.\n\nRead Burke v. State, 676 S.E.2d 766 (2009). Why did the Court of Appeals of Georgia reverse the\ndefendant\xe2\x80\x99s conviction for aggravated stalking in this case? The case is available at this link:\nhttp://scholar.google.com/scholar_case?case=14247986447862424093&q=\nstalking&hl=en&as_sdt=2,5&as_ylo=2009.\n\nReferences\nAla. Code \xc2\xa7 13A-6-90, accessed February 22, 2011, http://www.ncvc.org/src/main.aspx?dbID=DB_Alabama390.\nAlaska Stat. \xc2\xa7\xc2\xa7 11.41.260, 11.41.270, accessed February 22, 2011, http://www.ncvc.org/src/\nmain.aspx?dbID=DB_Alaska803.\nAlaska Stat. \xc2\xa7 11.41.270 (a), http://www.ncvc.org/src/main.aspx?dbID=DB_Alaska803.\nAlaska Stat. \xc2\xa7 11.41.270 (b) (3) (F), accessed February 22, 2011, http://www.ncvc.org/src/\nmain.aspx?dbID=DB_Alaska803.\nAriz. Rev. Stat. \xc2\xa7 13-3601(A), accessed February 21, 2011, http://www.azleg.state.az.us/ars/13/03601.htm.\nAriz. Rev. Stat. \xc2\xa7 13-3601(B), accessed February 21, 2011, http://www.azleg.state.az.us/ars/13/03601.htm.\n\n\x0c10.3 Domestic Violence and Stalking 367\n\nAriz. Rev. Stat. \xc2\xa7 13-3601(G), accessed February 21, 2011, http://www.azleg.state.az.us/ars/13/03601.htm.\nCal.\nPenal\nCode\n\xc2\xa7 646.9,\naccessed\nFebruary\n22,\n2011,\nhttp://www.ncvc.org/src/\nmain.aspx?dbID=DB_California176 (accessed February 22, 1022).\nColo. Rev. Stat. Ann. \xc2\xa7 18-3-602, accessed February 22, 2011, http://www.ncvc.org/src/\nmain.aspx?dbID=DB_Colorado285.\nMd.\nCode\nAnn.\n\xc2\xa7 3-802,\naccessed\nFebruary\n22,\n2011,\nhttp://www.ncvc.org/src/\nmain.aspx?dbID=DB_Maryland678.\nNcvc.org website, \xe2\x80\x9cCriminal Stalking Laws,\xe2\x80\x9d accessed February 22, 2011, http://www.ncvc.org/src/\nmain.aspx?dbID=DB_State-byState_Statutes117.\nRCW \xc2\xa7 10.99.010, accessed February 21, 2011, http://apps.leg.wa.gov/rcw/default.aspx?cite=10.99.010.\nRCW \xc2\xa7 10.99.030, accessed February 21, 2011, http://apps.leg.wa.gov/rcw/default.aspx?cite=10.99.030.\nRCW \xc2\xa7 10.99.040, accessed February 21, 2011, http://apps.leg.wa.gov/rcw/default.aspx?cite=10.99.040.\nRCW \xc2\xa7 10.99.060, accessed February 21, 2011, http://apps.leg.wa.gov/rcw/default.aspx?cite=10.99.060, Ariz.\nRev. Stat. \xc2\xa7 13-3601(J), accessed February 21, 2011, http://www.azleg.state.az.us/ars/13/03601.htm.\nRCW \xc2\xa7 10.99.100, accessed February 21, 2011, http://apps.leg.wa.gov/rcw/default.aspx?cite=10.99.100.\nS. D. Codified Laws \xc2\xa7 22-19A-6, accessed February 22, 2011, http://www.ncvc.org/src/\nmain.aspx?dbID=DB_SouthDakota123.\nTex.\nPenal\nCode\n\xc2\xa7 42.072,\naccessed\nFebruary\n22,\n2011,\nhttp://www.ncvc.org/src/\nmain.aspx?dbID=DB_Texas176.\nTex. Penal Code \xc2\xa7 42.072(a) (1) (c), accessed February 22, 2011, http://www.ncvc.org/src/\nmain.aspx?dbID=DB_Texas176.\n18\nU.S.C.\n\xc2\xa7 2261A,\naccessed\nFebruary\n22,\n2011,\nhttp://www.ncvc.org/src/\nmain.aspx?dbID=DB_Federal_Interstate_Stalking_Institute163#61a.\n\n\x0c10.4 Kidnapping and False Imprisonment\n\nLearning Objectives\n1.\n\nDefine the criminal act element required for kidnapping.\n\n2.\n\nDefine the criminal intent element required for kidnapping.\n\n3.\n\nDefine the harm element required for kidnapping.\n\n4.\n\nDefine the attendant circumstance element required for kidnapping.\n\n5.\n\nAnalyze kidnapping grading.\n\n6.\n\nCompare false imprisonment with kidnapping.\n\n7.\n\nIdentify two potential defenses to kidnapping and false imprisonment.\n\n8.\n\nIdentify two special features of interference with custody statutes.\n\nKidnapping and false imprisonment are crimes that involve physical restraint and intrude on the liberty interests\nof victims. In ancient times, kidnapping was used to remove members of royalty from the kingdom for ransom or\nto implement the overthrow of the existing monarchy. In the United States, high-profile kidnapping cases, such\nas the Lindbergh baby kidnapping in the 1930s, and the frequency with which organized crime participated in\nkidnapping led many states to impose the harshest penalties for this offense: the death penalty or life in prison\nwithout the possibility of parole.\nIn modern times, kidnapping is still a serious felony, although the US Supreme Court has held that capital\npunishment for any crime against an individual other than criminal homicide is unconstitutional. False\nimprisonment is generally a lesser included offense of kidnapping and is graded lower, as is discussed in Section\n10.4.2 \xe2\x80\x9cFalse Imprisonment\xe2\x80\x9d.\n\nKidnapping Elements\nIn most jurisdictions, kidnapping has the elements of criminal act, criminal intent, causation, harm, and an\nattendant circumstance.\n\nKidnapping Act\nThe criminal act element required for kidnapping is twofold. First, the defendant must confine the victim (720\nILC \xc2\xa7 5/10-1). Second, in many states, the defendant must move the victim, which is called asportation. One\ncommon issue with the kidnapping criminal act is how far the victim must be moved. In the majority of states,\nthe movement can be slight, as long as it is not incidental to the commission of a separate offense (People v.\n368\n\n\x0c10.4 Kidnapping and False Imprisonment 369\n\nDominguez, 2011). Other states do not require asportation when the kidnapping is for ransom (N.R.S. \xc2\xa7 200.310,\n2011). Some states have done away with the asportation requirement altogether (N.C. Gen. Stat. \xc2\xa7 14-39(a),\n2011). The Model Penal Code requires the movement to be from the victim\xe2\x80\x99s residence, place of business, or\n\xe2\x80\x9ca substantial distance from the vicinity where he is found\xe2\x80\x9d (Model Penal Code \xc2\xa7 212.1). However, when the\nkidnapping is for ransom, for the purpose of committing a felony, to inflict bodily injury or terrorize the victim\nor another, or to interfere with the performance of a governmental or political function, the Model Penal Code\ndoes not require asportation, although it does require confinement for a \xe2\x80\x9csubstantial period in a place of isolation\xe2\x80\x9d\n(Model Penal Code \xc2\xa7 212.1).\n\nExample of a Case Lacking Kidnapping Act\nJoseph breaks into Abby\xe2\x80\x99s home and sees Abby sitting on the couch. A picture window in front of the couch puts\nAbby in full view of the street and sidewalk. To avoid detection, Joseph grabs Abby off the living room couch and\ndrags her into the bedroom to rape her. Joseph has probably not committed the criminal act element required for\nkidnapping if the kidnapping statute in Joseph\xe2\x80\x99s state requires asportation. Joseph forcibly confined Abby when\nhe grabbed her. However, his movement of Abby from the couch to the bedroom appears incidental to the crime\nof rape, which is not sufficient to constitute kidnapping asportation in most jurisdictions.\n\nKidnapping Intent\nThe criminal intent element required for kidnapping in many jurisdictions is specific intent or purposely to\ncommit the criminal act in order to harm or injure the victim or another, confine or hold the victim in secret\n(N.R.S. \xc2\xa7 200.310(2), 2011), receive a ransom, commit a separate offense, subject the victim to involuntary\nservitude, or interfere with the purpose of the government or some political function (Ariz. Rev. Stat. \xc2\xa7 13-1304,\n2011).\n\nExample of Kidnapping Intent\nReview the example in Section 10 \xe2\x80\x9cExample of a Case Lacking Kidnapping Act\xe2\x80\x9d with Joseph and Abby. Change\nthis example so that Joseph drags Abby to his car, stuffs her into the trunk, and then drives fifteen miles to a\ndeserted field where he thereafter removes her from the trunk and rapes her. Joseph probably has the criminal\nintent required for kidnapping in most jurisdictions. Joseph committed the criminal act of forcible confinement\nand asportation with the purpose of raping Abby, which is specific intent or purposely to \xe2\x80\x9ccommit a separate\noffense.\xe2\x80\x9d Thus if the other elements of kidnapping are present, Joseph can most likely be charged with and\nconvicted of kidnapping, along with the crime of rape.\n\n\x0c370 Criminal Law\n\nKidnapping Causation\nIn jurisdictions that require harm for kidnapping, the defendant\xe2\x80\x99s criminal act must be the factual and legal cause\nof the harm, which is defined in Section 10 \xe2\x80\x9cKidnapping Harm\xe2\x80\x9d.\n\nKidnapping Harm\nThe harm element required for kidnapping in most jurisdictions is confinement and asportation. As stated\npreviously, some jurisdictions have done away with the asportation requirement or do not require asportation\nwhen the kidnapping is for ransom.\n\nKidnapping Attendant Circumstance\nIn many jurisdictions, the attendant circumstance element required for kidnapping is that the confinement or\nasportation occur against the victim\xe2\x80\x99s will or without the victim\xe2\x80\x99s consent (N.C. Gen. Stat. \xc2\xa7 14-39, 2011). Thus\nconsent could function as a failure of proof or affirmative defense to kidnapping.\n\nExample of a Case Lacking Kidnapping Attendant Circumstance\nThomas sees Shawna hitchhiking on the side of a busy freeway at night. Thomas pulls over, rolls down the\nwindow, and asks Shawna if she wants a ride. Shawna says, \xe2\x80\x9csure,\xe2\x80\x9d and climbs into Thomas\xe2\x80\x99s vehicle. Thomas\ndrives away with Shawna in the front seat. Thomas has not committed kidnapping in this case. Although Thomas\nconfined and moved Shawna in his vehicle, the facts do not indicate that he has the specific intent to harm\nher, obtain a ransom, confine her in secret, or commit a separate offense. In addition, Shawna consented to\nthe confinement and asportation. Thus the attendant circumstance element for kidnapping is also absent and\nThomas\xe2\x80\x99s conduct may be perfectly legal (unless engaging in hitchhiking is illegal in Thomas\xe2\x80\x99s state).\n\nExample of Kidnapping Attendant Circumstance\nChange the example given in Section 10 \xe2\x80\x9cExample of a Case Lacking Kidnapping Attendant Circumstance\xe2\x80\x9d so\nthat after fifty miles of driving, Shawna asks Thomas to pull over and let her out. Thomas refuses, threatens to\nharm Shawna if she tries to escape, and continues to drive another twenty miles with Shawna in the front seat. If\nThomas acted with the proper kidnapping intent, Thomas might have committed kidnapping in this case. Although\nShawna\xe2\x80\x99s original entrance into Thomas\xe2\x80\x99s vehicle and her asportation for the first fifty miles was consensual, once\nShawna requested that Thomas pull over and let her out, the confinement or asportation was against Shawna\xe2\x80\x99s\nwill and without her consent. If the trier of fact determines that twenty miles is far enough to constitute sufficient\nasportation for kidnapping, Thomas could be charged with or convicted of this offense.\n\n\x0c10.4 Kidnapping and False Imprisonment 371\n\nKidnapping Grading\nJurisdictions vary as to how they grade kidnapping. The Model Penal Code grades kidnapping as a felony of\nthe first or second degree (Model Penal Code \xc2\xa7 212.1). Many states divide kidnapping into degrees or grade it\nas simple and aggravated (N.R.S. \xc2\xa7 200.310, 2011). First-degree or aggravated kidnapping is generally graded as\na serious felony, and second-degree or simple kidnapping is generally graded as a lower-level felony (N.R.S. \xc2\xa7\n200.310, 2011). One factor that could mitigate or reduce grading is the defendant\xe2\x80\x99s release of the victim unharmed\nin a safe place (Ariz. Rev. Stat. \xc2\xa7 13-1304(B), 2011). Factors that could enhance grading are the youth of the\nvictim (Ariz. Rev. Stat. \xc2\xa7 13-1304, 2011) or the infliction of serious bodily injury (N.C. Gen. Stat. \xc2\xa7 14-39, 2011).\nWhen kidnapping takes a victim across state lines, the defendant can also be prosecuted for the additional offense\nof federal kidnapping (18 U.S.C. \xc2\xa7 1201, 2011).\n\nFalse Imprisonment\nIn many jurisdictions, false imprisonment, also called felonious restraint, is a lesser included offense of\nkidnapping. This means that the crime of false imprisonment is missing one or two of the kidnapping elements and\nis graded lower than kidnapping. Often, false imprisonment functions as a partial defense to kidnapping because\nof the less serious sentencing options. In general, false imprisonment and felonious restraint under the Model\nPenal Code require confinement but not asportation (Model Penal Code \xc2\xa7212.2; 18 Pa. C. S. \xc2\xa7 2903, 2011). In\nsome jurisdictions, false imprisonment requires only general intent or knowingly to commit the criminal act,\nrather than the specific intent or purposely to commit other crimes, harm the victim, or receive a ransom (720\nILCS \xc2\xa7 5/10-3, 2011). False imprisonment does not require movement and has a lower level of intent, so it is\ngenerally graded as a gross misdemeanor or a low-level felony (18 Pa. C.S. \xc2\xa7 2903, 2011). The Model Penal Code\ngrades felonious restraint as a felony of the third degree (Model Penal Code \xc2\xa7 212.2). Factors that can aggravate\ngrading of false imprisonment are the youth of the victim (18 Pa. C. \xc2\xa7 2903, 2011) or the use of force or violence\nto carry out the criminal act (Cal. Penal Code \xc2\xa7 237, 2011).\n\nExample of False Imprisonment\nReview the case example given in Section 10 \xe2\x80\x9cExample of a Case Lacking Kidnapping Attendant Circumstance\xe2\x80\x9d.\nChange the facts so that after fifty miles of driving, Shawna asks Thomas to pull over and let her out. Thomas pulls\nover but thereafter locks all the doors and refuses to let Shawna out for twenty minutes, in spite of her begging and\npleading for him to unlock the doors. In this case, Thomas might have committed false imprisonment. Although\nShawna\xe2\x80\x99s entrance into Thomas\xe2\x80\x99s vehicle was consensual, when Thomas confined Shawna to his vehicle by\nlocking the doors, he deprived her of her liberty against her will. Thomas did not move Shawna without her\nconsent because he pulled over and stopped the vehicle at her request. However, asportation is not required for\nfalse imprisonment. Although Thomas\xe2\x80\x99s actions do not indicate specific intent or purposely to injure Shawna,\ncommit a separate offense, or seek ransom, often general intent or knowingly to commit the criminal act is\nsufficient for false imprisonment. Thus these facts indicate the lower-level crime of false imprisonment rather than\nkidnapping, and Thomas may be charged with and convicted of this offense.\n\n\x0c372 Criminal Law\n\nPotential Defenses to Kidnapping and False Imprisonment\nAs stated previously, consent is a potential failure of proof or affirmative defense to kidnapping and false\nimprisonment in some jurisdictions. Another potential defense is lawful authority to execute the kidnapping or\nfalse imprisonment. Thus when a law enforcement officer or a citizen lawfully arrests a defendant, he or she is not\ncommitting kidnapping or false imprisonment. By the same token, if an arrest is executed unlawfully, it might be\nkidnapping, false imprisonment, or another related offense (N.C. Gen. Stat. \xc2\xa714-43.1, 2011).\nFigure 10.10 Diagram of Defenses to Kidnapping and False Imprisonment\n\nInterference with Custody\nBecause of a dramatic increase in the abduction of children by their estranged parents and parental interference\nwith child custody and visitation agreements, almost all states have specifically criminalized interference with\nthe custody of children(18 Pa. C. S. \xc2\xa7 2904, 2011) or unlawful visitation (720 ILCS \xc2\xa7 5/10-5.5, 2011). The\nsignificant features of these modern offenses are their specific applicability to parents as defendants and various\ndefenses based on the good faith belief that the child would be in danger without the allegedly criminal conduct\n(18 Pa. C. S. \xc2\xa7 2904, 2011). Grading of these offenses varies, with some states grading nonforcible parental\ninterference with custody as a misdemeanor (720 ILCS \xc2\xa7 5/10-5.5, 2011) and others as a low-level felony (18 Pa.\nC.S. \xc2\xa7 2904, 2011).\nTable 10.3 Comparing Kidnapping and False Imprisonment\n\n\x0c10.4 Kidnapping and False Imprisonment 373\n\nCrime\n\nCriminal Act\n\nCriminal Intent\n\nHarm\n\nCircumstance Grading\n\nKidnapping\n\nConfinement\nplus asportation\n\nSpecific or purposely\n\nConfinement\nplus asportation\n\nLack of\nconsent\n\nFelony\n\nGeneral or knowingly in\nsome jurisdictions\n\nConfinement\n\nLack of\nconsent\n\nGross misdemeanor or\nlow-level felony\n\nFalse\nConfinement\nimprisonment\n\nFigure 10.11 Diagram of Crimes against the Person\n\nKey Takeaways\n\xe2\x80\xa2\n\nThe criminal act element required for kidnapping in many jurisdictions is confinement and asportation of\nthe victim. Some states do not require asportation when the kidnapping is for ransom, and others have done\naway with the asportation requirement altogether.\n\n\xe2\x80\xa2\n\nThe criminal intent element required for kidnapping in many jurisdictions is the specific intent or\npurposely to commit the criminal act in order to harm or injure the victim or another, confine or hold the\nvictim in secret, receive a ransom, commit a separate offense, subject the victim to involuntary servitude, or\ninterfere with the purpose of the government or some political function.\n\n\xe2\x80\xa2\n\nThe harm element required for kidnapping in many jurisdictions is confinement and asportation of the\nvictim.\n\n\xe2\x80\xa2\n\nThe attendant circumstance element required for kidnapping is lack of victim consent.\n\n\xe2\x80\xa2\n\nKidnapping is generally graded as first degree or aggravated or as second degree or simple. First-degree\nor aggravated kidnapping is typically a serious felony, while second-degree or simple kidnapping is\ntypically a low-level felony. One factor that could mitigate or reduce grading is the release of the victim\nunharmed in a safe place. Factors that could aggravate grading are the youth of the victim or the infliction of\nserious bodily injury.\n\n\xe2\x80\xa2\n\nFalse imprisonment is often a lesser included offense of kidnapping, missing the asportation element, and\nrequiring general intent or knowing commission of the criminal act. False imprisonment is also graded\nlower than kidnapping as either a gross misdemeanor or a low-level felony.\n\n\xe2\x80\xa2\n\nTwo potential defenses to kidnapping and false imprisonment are victim consent and a lawful arrest by a\nlaw enforcement officer or citizen.\n\n\xe2\x80\xa2\n\nInterference with custody statutes specifically include parents as defendants and allow for a good faith\ndefense that a child would suffer injury if not for the allegedly criminal conduct.\n\n\x0c374 Criminal Law\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nCoby is in the process of robbing a bank. When a security guard threatens to shoot Coby, he grabs a\ncustomer in the bank and holds a knife to her throat. Coby thereafter demands a getaway vehicle and fifty\nthousand dollars in cash in exchange for the hostage\xe2\x80\x99s release. Has Coby committed kidnapping in this\ncase? Why or why not?\n\n2.\n\nRead State v. Salaman, 949 A.2d 1092 (2008). In Salaman, the defendant grabbed the victim, pinned her\nto the stairs for five minutes, punched her in the face, and violently stuck his fingers down her throat. He\nwas thereafter convicted of second-degree kidnapping and appealed, claiming his restraint of the victim was\nmerely incidental to the crime of assault. In Connecticut, the state where the offense occurred, the\nkidnapping criminal act is restraint with the specific intent to prevent the victim\xe2\x80\x99s liberation. Connecticut\nalso had case precedent holding that restraint that is incidental to the commission of a separate offense is\nstill kidnapping. Did the Supreme Court of Connecticut uphold the defendant\xe2\x80\x99s conviction? The case is\navailable at this link: http://scholar.google.com/scholar_case?case=13933358391504195031&q=\nkidnapping&hl=en&as_sdt=2,5&as_ylo=2008.\n\n3.\n\nRead Commonwealth v. Rivera, 828 A.2d 1094 (2003). In Rivera, the defendant, who had a court order\ndepriving him of custody, forcibly removed his daughter from her day care and drove around with her in his\ncar, frequently calling and terrorizing the child\xe2\x80\x99s mother. The defendant\xe2\x80\x99s daughter disappeared, and the\ndefendant was later convicted of felony murder, kidnapping, and other offenses. The underlying felony for\nthe felony murder was kidnapping, and the defendant appealed claiming he could not legally kidnap his\nown biological child. Did the Superior Court of Pennsylvania affirm the defendant\xe2\x80\x99s felony murder and\nkidnapping convictions? Why or why not? The case is available at this link: http://scholar.google.com/\nscholar_case?case=6955582630525573237&q=\n%22interference+with+the+custody+of+children%22&hl=en&as_sdt=2,5.\n\nReferences\nAriz. Rev. Stat. \xc2\xa7 13-1304, accessed February 24, 2011, http://law.onecle.com/arizona/criminal-code/\n13-1304.html.\nAriz. Rev. Stat. \xc2\xa7 13-1304(B), accessed February 24, 2011, http://law.onecle.com/arizona/criminal-code/\n13-1304.html.\nCal. Penal Code \xc2\xa7 237, accessed February 25, 2011, http://law.onecle.com/california/penal/237.html.\nN.C. Gen. Stat. \xc2\xa7 14-39, accessed February 24, 2011, http://law.onecle.com/north-carolina/14-criminal-law/\n14-39.html.\nN.C. Gen. Stat. \xc2\xa7 14-39(a), accessed February 24, 2011, http://law.onecle.com/north-carolina/14-criminal-law/\n14-39.html.\nN.C. Gen. Stat. \xc2\xa7 14-43.1, accessed February 25, 2011, http://law.onecle.com/north-carolina/14-criminal-law/\n14-43.1.html.\nN.R.S. \xc2\xa7 200.310, accessed February 24, 2011, http://law.onecle.com/nevada/crimes/200.310.html.\nN.R.S. \xc2\xa7 200.310(2), accessed February 24, 2011, http://law.onecle.com/nevada/crimes/200.310.html.\nPeople v. Dominguez, 140 P.2d 866 (2006), accessed February 24, 2011, http://scholar.google.com/\nscholar_case?case=3515612573668484000&q= People+v.+Dominguez&hl=en&as_sdt=2,5.\n\n\x0c10.4 Kidnapping and False Imprisonment 375\n\n18 Pa. C. S. \xc2\xa7 2903, accessed February 25, 2011, http://law.onecle.com/pennsylvania/crimes-and-offenses/\n00.029.003.000.html.\n18\nU.S.C.\n\xc2\xa7 1201,\naccessed\nFebruary\n27,\n2011,\nhttp://www.law.cornell.edu/uscode/18/\nusc_sec_18_00001201\xe2\x80\x94-000-.html.\n720 ILCS \xc2\xa7 5/10-1, http://law.onecle.com/illinois/720ilcs5/10-1.html.\n720 ILCS \xc2\xa7 5/10-3, accessed February 25, 2011, http://law.onecle.com/illinois/720ilcs5/10-3.html.\n720 ILCS \xc2\xa7 5/10-5.5, accessed February 25, 2011, http://law.onecle.com/illinois/720ilcs5/10-5.5.html.\n\n\x0c10.5 End-of-Chapter Material\n\nSummary\nStates vary as to how they categorize and grade sex offenses. In general, rape is knowing, forcible sexual intercourse\nwithout consent or with consent obtained involuntarily. Although the victim had to resist to indicate lack of consent at\nearly common law, in modern times the victim need not resist if it would be futile to do so. Another modernization from\ncommon-law rape is the elimination of an exemption for spousal rape and the elimination of the requirement that victim\ntestimony in a rape case be corroborated. Most states have rape shield laws that govern the admissibility of evidence of\nthe victim\xe2\x80\x99s past sexual conduct at a trial for rape. Sodomy and oral copulation are sometimes combined and included\nwith rape in one statute called sexual assault. If sodomy and oral copulation are the subject of separate statutes, sodomy\nis typically knowing forcible penis to anus penetration, and oral copulation is typically knowing forcible mouth to\nsexual organ or anus penetration. Statutory rape is generally sexual intercourse with an underage victim either\nrecklessly, negligently, or with strict liability depending on the jurisdiction, and incest is generally knowing sexual\nintercourse between family members who cannot marry. States vary as to how they grade sex offenses, with force and\npenetration enhancing the grading to a felony in most jurisdictions.\nAssault and battery are often included in the same statute (called assault) but are actually separate offenses with\ndistinct elements. Battery is generally a purposeful, knowing, reckless, or negligent (depending on the jurisdiction)\nunlawful harmful or offensive touching without victim consent. Assault can be attempted battery, in which case all the\nelements of battery except the physical contact are present, or threatened battery, which is a purposeful act that causes\napprehension of harmful or offensive physical contact in the victim. Simple battery and simple assault are typically\nmisdemeanors, while aggravated versions of these offenses are often felonies. Factors that can aggravate the grading of\nassault and battery are the use of a weapon or serious injury.\nDomestic violence statutes criminalize conduct such as assault, battery, sex offenses, or criminal homicide between\nfamily members and have special provisions that pertain to interfamily violence. Stalking criminalizes a purposeful\ncourse of conduct that poses a credible threat to the victim\xe2\x80\x99s safety. Cyberstalking is the use of the Internet or e-mail to\ncommit stalking. Simple stalking is generally a misdemeanor, while aggravated stalking, which is stalking that causes\ninjury or violates a restraining order, is generally a felony.\nKidnapping is the purposeful confinement and asportation (movement) of a victim for the purpose of injuring or\nharming the victim or another, hiding the victim in secret, obtaining a ransom, committing a separate offense, subjecting\nthe victim to involuntary servitude, or interfering with the purpose of government or political function. False\nimprisonment is a lesser included offense of kidnapping that does not include asportation or specific intent. Interference\nwith custody is parental kidnapping or violation of a child custody or visitation agreement. While kidnapping is\ntypically a felony, false imprisonment and interference with custody are generally graded lower, as either a gross\nmisdemeanor or low-level felony.\n\nYou Be the Law Enforcement Officer\nYou are a newly hired law enforcement officer starting out in the file room. You have been given five case files. To\nproperly file them, first read over the facts of each case, determine which crime has been committed, and determine\nwhether the crime is a misdemeanor or felony. Check your answers using the answer key at the end of the chapter.\n1.\n\nThe defendant was on a date with the victim. After a few drinks, the victim became extremely\n\n376\n\n\x0c10.5 End-of-Chapter Material 377\n\nintoxicated, and the defendant had to have help carrying him to her vehicle. The defendant thereafter drove\nto a secluded area where she had sexual intercourse with the victim. The victim was unconscious and did not\ndiscover the act of sexual intercourse until two months later when the defendant told him she was pregnant.\nWhich crime has been committed? Is the crime a misdemeanor or a felony?\n2.\n\nThe defendant, a security guard, forced the victim, a shopper in the store, to kiss him by threatening to\nfalsely arrest her for shoplifting if she refused. Which crime is this? Is this a misdemeanor or a felony?\n\n3.\n\nThe defendant chased the victim with a knife for two miles. After the defendant was arrested, law\nenforcement determined that the \xe2\x80\x9cknife\xe2\x80\x9d was made of rubber and could not cause injury. Which crime has\nbeen committed? Is the crime a misdemeanor or a felony?\n\n4.\n\nThe defendant grabbed a law enforcement officer\xe2\x80\x99s gun and pointed it at him while the law enforcement\nofficer was having coffee in a local restaurant. Which crime has been committed? Is the crime a\nmisdemeanor or a felony?\n\n5.\n\nThe defendant, a jilted lover, picked up her ex-boyfriend\xe2\x80\x99s child from school and took her to an\namusement park where they spent the afternoon going on rides and eating junk food. Which crime has been\ncommitted? Is the crime a misdemeanor or a felony?\n\nCases of Interest\n\xe2\x80\xa2\n\nU.S. v. Lanier, 520 U.S. 259 (1997), discusses sexual assault by a judge as the subject of a federal\ncriminal action: http://www.law.cornell.edu/supct/html/95-1717.ZS.html\n\n\xe2\x80\xa2\n\nOregon v. Rangel, 934 P.2d 1128 (1997), discusses the constitutionality of Oregon\xe2\x80\x99s stalking statute under\nthe First Amendment: http://www.publications.ojd.state.or.us/docs/S44151.htm.\n\n\xe2\x80\xa2\n\nChatwin v. U.S., 326 U.S. 455 (1946), discusses federal kidnapping in the context of joining a religious\ncult: http://supreme.justia.com/us/326/455/case.html.\n\nArticles of Interest\n\xe2\x80\xa2\n\nHigh-profile criminal cases, including rape criminal cases: http://lawdigitalcommons.bc.edu/cgi/\nviewcontent.cgi?article=2240&context=bclr\n\n\xe2\x80\xa2\n\nThe sexual assault case of former IMF chief, Dominique Strauss-Kahn: http://www.nytimes.com/2011/05/\n26/nyregion/strauss-kahns-lead-prosecutor-is-said-to-be-replaced.html\n\n\xe2\x80\xa2\n\nCyberstalking among college students: http://btci.stanford.clockss.org/cgi/reprint/5/3/279\n\n\xe2\x80\xa2\n\nParental kidnapping and domestic violence: http://www.vaw.umn.edu/documents/pkreport/pkreport.html\n\nWebsites of Interest\n\xe2\x80\xa2\n\nState statutes on statutory rape: http://aspe.hhs.gov/hsp/08/SR/StateLaws/statelaws.shtml\n\n\x0c378 Criminal Law\n\n\xe2\x80\xa2\n\nInformation about various sex offenses: http://criminal.findlaw.com/criminal-charges/sex-crimes.html\n\n\xe2\x80\xa2\n\nInformation about stalking: http://www.stalkingbehavior.com\n\nStatistics of Interest\n\xe2\x80\xa2\n\nRape and other sex offenses: http://www.rainn.org/statistics\n\n\xe2\x80\xa2\n\nNationwide crime by state: http://www.disastercenter.com/crime\n\nAnswers to Exercises\nFrom Section 10.1 \xe2\x80\x9cSex Offenses\xe2\x80\x9d\n1.\n\nThe sexual intercourse could be rape or statutory rape if either Jorge or Christina (or both) are incapable\nof rendering legal consent because they are below the age of consent, have mental or intellectual disabilities,\nor are intoxicated. If Jorge and Christina are incapable of marrying because of a family relationship, their\nsexual intercourse could be incest.\n\n2.\n\nThe South Carolina Supreme Court upheld the defendant\xe2\x80\x99s conviction on the grounds that force and\nvictim resistance are not required when a victim is under the age of legal consent. The court specifically\nstated that the victim\xe2\x80\x99s inability to legally consent vitiates the need to prove the defendant\xe2\x80\x99s use of force for\nrape.\n\n3.\n\nThe Court of Appeals of Texas held that state legislatures have broad powers to define crimes and\ncriminal intent requirements, including the power to eliminate a culpable mental state. Thus the court upheld\nthe defendant\xe2\x80\x99s conviction and did not strike the strict liability aggravated sexual assault statute. The court\nreviewed significant state and federal precedent to determine that the majority of states disallow the mistake\nof age defense, and that this does not violate federal or Texas state due process because it is supported by\nthe legitimate government interest of protecting children.\n\nAnswers to Exercises\nFrom Section 10.2 \xe2\x80\x9cAssault and Battery\xe2\x80\x9d\n1.\n\nIn the first scenario where Bob swings once and misses, then swings again and connects, two crimes have\nbeen committed: assault and battery. The first swing that misses is an assault. The swing that punches Rick\nin the stomach is a battery. In the second scenario, where Bob only swings and misses, only an assault has\nbeen committed.\n\n2.\n\nThe defendant threw a cup of urine in the victim\xe2\x80\x99s face. Although the battery statute in Wisconsin requires\nbodily harm, the court held that the stinging sensation in the victim\xe2\x80\x99s eyes was sufficient and upheld the\ndefendant\xe2\x80\x99s conviction.\n\n3.\n\nThe Supreme Judicial Court of Massachusetts upheld the defendant\xe2\x80\x99s conviction, reasoning that the\n\n\x0c10.5 End-of-Chapter Material 379\n\ndefendant\xe2\x80\x99s apparent ability to consummate the shooting is what is essential to the crime of assault with a\ndeadly weapon, not the secret fact that the gun is loaded with blanks rather than bullets.\n\nAnswers to Exercises\nFrom Section 10.3 \xe2\x80\x9cDomestic Violence and Stalking\xe2\x80\x9d\n1.\n\nMost domestic violence statutes include individuals residing together, so this could be domestic\nviolence battery or assault.\n\n2.\n\nThe Supreme Court of North Dakota upheld the defendant\xe2\x80\x99s conviction, stating that the constitutional\nright to travel is not absolute and can be restricted to protect a victim from harm, as in this case.\n\n3.\n\nThe Court of Appeals of Georgia reversed the defendant\xe2\x80\x99s conviction because aggravated stalking in\nGeorgia requires a course of conduct violating a protective order. In this case, the prosecution only proved\nthat the defendant committed one act violating the protective order.\n\nAnswers to Exercises\nFrom Section 10.4 \xe2\x80\x9cKidnapping and False Imprisonment\xe2\x80\x9d\n1.\n\nIf Coby\xe2\x80\x99s state does not require asportation for kidnapping when the kidnapping is for ransom, then\nCoby has probably committed kidnapping. He confined a victim against her will with the purpose of\ncommitting another offense (theft) and demanded a ransom, which are all the elements of kidnapping.\n\n2.\n\nThe Connecticut Supreme Court rejected precedent and changed the rule that an act of kidnapping could\nbe incidental to the commission of a separate offense. Thereafter, the court ordered a new trial on the\nkidnapping charge, although it surmised that a jury could reasonably find the defendant guilty of kidnapping\nseparate from the assault.\n\n3.\n\nThe Superior Court of Pennsylvania affirmed the defendant\xe2\x80\x99s convictions, holding that the kidnapping\nstatute applied to any individual\xe2\x80\x94including a parent.\n\nAnswer to Law and Ethics Question\n1.\n\nRape shield laws focus on the protection of the victim at trial and preclude the admission of evidence of\nthe victim\xe2\x80\x99s sexual history (other than a sexual history with the defendant). They do not necessarily prevent\nthe media from publishing information about the victim or from taunting the victim. Of course, in the\nBryant case, this publication ended up badly demoralizing and frightening the victim, leading to the\neventual demise of the rape case against Bryant. However, blanket prohibitions against publication of\ninformation by the media would be overbroad and would violate the First Amendment. A balance must be\npresent between protection of the victim, preservation of the right to a fair trial, and freedom of speech. This\ncase illustrates the damage the media can do to a fair trial, unprejudiced jury, and a willing and cooperative\nvictim. However, the public\xe2\x80\x99s right to know is also paramount and cannot be sublimated without narrow\n\n\x0c380 Criminal Law\n\ntailoring and a compelling government interest.\n\nAnswers to You Be the Law Enforcement Officer\n1.\n\nThe crime is rape. Although nonforcible, sexual intercourse with an inebriated or unconscious victim is\nstill rape. Rape can be committed by a woman in most jurisdictions. Rape is a felony.\n\n2.\n\nThe crime is simple battery, as long as your jurisdiction criminalizes \xe2\x80\x9coffensive\xe2\x80\x9d physical contact.\nSimple battery is a misdemeanor.\n\n3.\n\nThe crime is threatened battery assault. Threatened battery assault typically requires apparent, rather\nthan present, ability. Threatened battery assault that does not involve a deadly weapon is a misdemeanor.\n\n4.\n\nThe crime is assault with a deadly weapon. The defendant committed the assault with a deadly weapon\nand inflicted it against a law enforcement officer, so the assault is a felony.\n\n5.\n\nThe crime is kidnapping. Although the child was unharmed, children cannot give legal consent, so the\ncrime was complete once there was confinement and asportation with the proper criminal intent (most likely\nthe intent to \xe2\x80\x9cconfine the child in secret\xe2\x80\x9d). Kidnapping is a felony.\n\n\x0cChapter 11: Crimes against Property\n\nKiwi NZ \xe2\x80\x93 House in flames \xe2\x80\x93 CC BY 2.0.\n\nArson is one of the easiest crimes to commit on the spur of the moment\xe2\x80\xa6it takes only seconds to light a match to\na pile of clothes or a curtain\xe2\x80\xa6\n381\n\n\x0c382 Criminal Law\n\n\xe2\x80\x94People v. Atkins, cited in Section 11 \xe2\x80\x9cArson Intent\xe2\x80\x9d\n\n\x0c11.1 Nonviolent Theft Crimes\n\nLearning Objectives\n1.\n\nDefine the criminal act element required for consolidated theft statutes.\n\n2.\n\nDefine the criminal intent element required for consolidated theft statutes.\n\n3.\n\nDefine the attendant circumstances required for consolidated theft statutes.\n\n4.\n\nDefine the harm element required for consolidated theft statutes, and distinguish the harm required for\nlarceny theft from the harm required for false pretenses theft.\n\n5.\n\nAnalyze consolidated theft grading.\n\n6.\n\nDefine the elements required for federal mail fraud, and analyze federal mail fraud grading.\n\nAlthough crimes against the person such as murder and rape are considered extremely heinous, crimes against\nproperty can cause enormous loss, suffering, and even personal injury or death. In this section, you review\ndifferent classifications of nonviolent theft crimes that are called white-collar crimes when they involve\ncommercial theft. Upcoming sections analyze theft crimes that involve force or threat, receiving stolen property,\nand crimes that invade or damage property, such as burglary and arson. Computer crimes including hacking,\nidentity theft, and intellectual property infringement are explored in an exercise at the end of the chapter.\n\nConsolidated Theft Statutes\nHistorically, nonviolent theft was broken down into three categories: larceny, embezzlement, and false\npretenses. The categories differ in the type of property that can be stolen and the method of stealing. Modern\njurisdictions combine all three categories of nonviolent theft into one consolidated theft statute, with a uniform\ngrading system largely dependent on the value of the stolen property. The Model Penal Code consolidates all\nnonviolent theft offenses, including receiving stolen property and extortion, under one grading system (Model\nPenal Code \xc2\xa7 223.1). What follows is a discussion of theft as defined in modern consolidated theft statutes,\nmaking note of the traditional distinctions among the various theft categories when appropriate. Theft has the\nelements of criminal act, criminal intent, attendant circumstances, causation, and harm, as is discussed in this\nchapter.\n\nConsolidated Theft Act\nThe criminal act element required under consolidated theft statutes is stealing real property, personal property,\nor services. Real property is land and anything permanently attached to land, like a building. Personal property\n383\n\n\x0c384 Criminal Law\n\nis any movable item. Personal property can be tangible property, like money, jewelry, vehicles, electronics,\ncellular telephones, and clothing. Personal property can also be intangible property, which means it has value,\nbut it cannot be touched or held, like stocks and bonds. The Model Penal Code criminalizes theft by unlawful\ntaking of movable property, theft by deception, theft of services, and theft by failure to make required disposition\nof funds received under one consolidated grading provision (Model Penal Code \xc2\xa7\xc2\xa7 223.1, 223.2, 223.3, 223.7,\n223.8).\nThe act of stealing can be carried out in more than one way. When the defendant steals by a physical taking,\nthe theft is generally a larceny theft. The act of taking is twofold. First, the defendant must gain control over\nthe item. Then the defendant must move the item, which is called asportation, as it is with kidnapping (Britt\nv. Commonwealth, 2011). Although asportation for kidnapping must be a certain distance in many jurisdictions,\nthe asportation for larceny can be any distance\xe2\x80\x94even the slightest motion is sufficient (Britt v. Commonwealth,\n2011). Control plus asportation can be accomplished by the defendant\xe2\x80\x99s physical act or by deceiving the victim\ninto transferring the property with a false representation of fact. This is called larceny by trick. Because larceny\nrequires a physical taking, it generally only pertains to personal property.\nAnother way for a defendant to steal property is to convert it to the defendant\xe2\x80\x99s use or ownership. Conversion\ngenerally occurs when the victim transfers possession of the property to the defendant, and the defendant\nthereafter appropriates the property transferred. When the defendant steals by conversion, the theft is generally\nan embezzlement theft (Commonwealth v. Mills, 2011). Embezzlement could occur when the defendant gains\npossession of property from a friendship or a family relationship or from a paid relationship such as employeremployee or attorney-client. Embezzlement does not require a physical taking, so it can pertain to real or personal\nproperty.\nWhen the defendant steals by a false representation of fact, and the subject of the theft is a service, the theft\nis generally a false pretenses theft (Cal. Penal Code \xc2\xa7 484(a), 2011). False pretenses can also be used to steal\npersonal or real property and is very similar to larceny by trick in this regard. What differentiates false pretenses\nfrom larceny by trick is the status of the property after it is stolen, which is discussed under the harm element of\nconsolidated theft statutes.\nTo summarize, whether the defendant steals by a physical taking, a conversion, or a false representation of\nfact, and whether the defendant steals real or personal property or a service, the crime is theft under modern\nconsolidated theft statutes and is graded primarily on the value of the property or service stolen.\n\nExample of Consolidated Theft Act\nJeremy stops by the local convenience store on his way to work and buys some cigarettes. Before paying for\nthe cigarettes, Jeremy slips a package of chewing gum into his pocket and does not pay for it. Jeremy continues\nwalking to his job at a local gas station. When one of the customers buys gas, Jeremy only rings him up for half\nof the amount purchased. Once the gas station closes, Jeremy takes the other half out of the cash register and\nputs it in his pocket with the chewing gum. After work, Jeremy decides to have a drink at a nearby bar. While\nenjoying his drink, he meets a patron named Chuck, who is a taxi driver. Chuck mentions that his taxi needs a\ntune-up. Jeremy offers to take Chuck back to the gas station and do the tune-up in exchange for a taxi ride home.\nChuck eagerly agrees. The two drive to the gas station, and Jeremy suggests that Chuck take a walk around the\nblock while he performs the tune-up. While Chuck is gone, Jeremy lifts the hood of the taxi and then proceeds to\n\n\x0c11.1 Nonviolent Theft Crimes 385\n\nread a magazine. When Chuck returns twenty-five minutes later, Jeremy tells him the tune-up is complete. Chuck\nthereafter drives Jeremy home for free.\nIn this scenario, Jeremy has performed three separate acts of theft. When Jeremy slips the package of chewing\ngum into his pocket without paying for it, he has physically taken personal property, which is a larceny theft.\nWhen Jeremy fails to ring up the entire sale for a customer and pockets the rest from the cash register, he has\nconverted the owner of the gas station\xe2\x80\x99s cash for his own use, which is an embezzlement theft. When Jeremy\nfalsely represents to Chuck that he has performed a tune-up of Chuck\xe2\x80\x99s taxi and receives a free taxi ride in\npayment, he has falsely represented a fact in exchange for a service, which is a false pretenses theft. All three of\nthese acts of theft could be prosecuted under one consolidated theft statute. The three stolen items have a relatively\nlow value, so these crimes would probably be graded as a misdemeanor. Grading of theft under consolidated theft\nstatutes is discussed shortly.\nFigure 11.1 Diagram of Consolidated Theft Act\nLarceny\nEmbezzlement\nFalse Pretenses\nIn many jurisdictions, all three types of theft are prosecuted under one consolidated theft statute.\n\nConsolidated Theft Intent\nThe criminal intent element required under consolidated theft statutes is either specific intent or purposely, or\ngeneral intent or knowingly to perform the criminal act, depending on the jurisdiction. The Model Penal Code\nrequires purposeful intent for theft by unlawful taking, deception, theft of services, and theft by failure to make\nrequired disposition of funds received (Model Penal Code \xc2\xa7\xc2\xa7 223.2, 223.3, 223.7, 223.8).\nWhen the criminal intent is specific or purposely, the defendant must intend the criminal act of stealing and\nmust also intend to keep the stolen property (Itin v. Ungar, 2011). This could create a potential failure of proof or\naffirmative defense that the defendant was only \xe2\x80\x9cborrowing\xe2\x80\x9d property and intended to return it after use. In some\njurisdictions, specific or purposeful intent to keep the property does not apply to embezzlement theft under the\ntraditional definition (In the Matter of Schwimmer, 2011). Thus in these jurisdictions, a defendant who embezzles\nproperty and later replaces it cannot use this replacement as a defense.\n\nExample of a Case Lacking Consolidated Theft Intent\nJorge goes to the nursery and spends hundreds of dollars on plants for his garden. Some of the plants are delicate\nand must be put into the ground immediately after purchase. When Jorge gets home, he discovers that he has no\nshovel because he loaned it to his brother-in-law a few weeks ago. He notices that his neighbor\xe2\x80\x99s shovel is leaning\nagainst his neighbor\xe2\x80\x99s garage. If Jorge borrows his neighbor\xe2\x80\x99s shovel so that he can get his expensive plants into\nthe ground, this appropriation would probably not constitute the crime of theft under a consolidated theft statute\nin certain jurisdictions. Jorge had the intent to perform the theft act of taking personal property. However, Jorge\n\n\x0c386 Criminal Law\n\ndid not have the specific or purposeful intent to deprive his neighbor of the shovel permanently, which is often\nrequired for larceny theft. Thus in this scenario, Jorge may not be charged with and convicted of a consolidated\ntheft offense.\n\nExample of Consolidated Theft Intent\nReview the example with Jeremy given in Section 11 \xe2\x80\x9cExample of Consolidated Theft Act\xe2\x80\x9d. Change this example\nand assume when Jeremy charged his customer for half of the sale and later pocketed fifty dollars from the cash\nregister, his intent was to borrow this fifty dollars to drink at the bar and replace the fifty dollars the next day\nwhen he got paid. Jeremy probably has the criminal intent required for theft under a consolidated theft statute in\nmany jurisdictions. Although Jeremy did not have the specific or purposeful intent to permanently deprive the gas\nstation owner of fifty dollars, this is not generally required with embezzlement theft, which is the type of theft\nJeremy committed. Jeremy had the intent to convert the fifty dollars to his own use, so the fact that the conversion\nwas only a temporary deprivation may not operate as a defense, and Jeremy may be charged with and convicted\nof theft under a consolidated theft statute.\nFigure 11.2 Crack the Code\n\n\x0c11.1 Nonviolent Theft Crimes 387\n\nLarceny or False Pretenses Intent as to the False Statement of Fact\nAs stated previously, the taking in both larceny by trick and false pretenses occurs when the defendant makes a\nfalse representation of fact that induces the victim to transfer the property or services. In many jurisdictions, the\ndefendant must have general intent or knowledge that the representation of fact is false and must make the false\nrepresentation with the specific intent or purposely to deceive (People v. Lueth, 2011). The Model Penal Code\n\n\x0c388 Criminal Law\n\ncriminalizes theft by deception when a defendant purposely \xe2\x80\x9ccreates or reinforces a false impression, including\nfalse impressions as to law, value, intention or other state of mind\xe2\x80\x9d (Model Penal Code \xc2\xa7 223.3(1)).\n\nExample of Larceny or False Pretenses Intent as to the False\nRepresentation of Fact\nReview the example with Jeremy in Section 11 \xe2\x80\x9cExample of Consolidated Theft Act\xe2\x80\x9d. In this example, Jeremy\ntold Chuck that he performed a tune-up of Chuck\xe2\x80\x99s taxi, when actually he just lifted the hood of the taxi and read\na magazine. Because Jeremy knew the representation was false, and made the representation with the intent to\ndeceive Chuck into providing him with a free taxi ride home, Jeremy probably has the appropriate intent for theft\nof a service by false pretenses, and he may be subject to prosecution for and conviction of this offense under a\nconsolidated theft statute.\n\nConsolidated Theft Attendant Circumstance of Victim Ownership\nAll theft requires the attendant circumstance that the property stolen is the property of another (Alaska Stat. \xc2\xa7\n11.46.100, 2011). The criminal intent element for theft must support this attendant circumstance element. Thus\nmistake of fact or law as to the ownership of the property stolen could operate as a failure of proof or affirmative\ndefense to theft under consolidated theft statutes in many jurisdictions (Haw. Rev. Stat. \xc2\xa7 708-834, 2011). The\nModel Penal Code provides an affirmative defense to prosecution for theft when the defendant \xe2\x80\x9cis unaware that\nthe property or service was that of another\xe2\x80\x9d (Model Penal Code \xc2\xa7 223.1(3) (a)).\n\nExample of Mistake of Fact as a Defense to Consolidated Theft\nReview the example of a case lacking consolidated theft intent given in Section 11 \xe2\x80\x9cExample of a Case Lacking\nConsolidated Theft Intent\xe2\x80\x9d. Change this example so that Jorge arrives home from the nursery and begins\nfrantically searching for his shovel in his toolshed. When he fails to locate it, he emerges from the shed and\nnotices the shovel leaning against his neighbor\xe2\x80\x99s garage. Jorge retrieves the shovel, uses it to put his plants into\nthe ground, and then puts it into his toolshed and locks the door. If the shovel Jorge appropriated is actually his\nneighbor\xe2\x80\x99s shovel, which is an exact replica of Jorge\xe2\x80\x99s, Jorge may be able to use mistake of fact as a defense to\ntheft under a consolidated theft statute. Jorge took the shovel, but he mistakenly believed that it was his, not the\nproperty of another. Thus the criminal intent for the attendant circumstance of victim ownership is lacking, and\nJorge probably will not be charged with and convicted of theft under a consolidated theft statute.\n\nConsolidated Theft Attendant Circumstance of Lack of Consent\nTheft under a consolidated theft statute also typically requires the attendant circumstance element of lack of\n\n\x0c11.1 Nonviolent Theft Crimes 389\n\nvictim consent (Tex. Penal Code \xc2\xa7 31.03(b), 2011). Thus victim consent to the taking or conversion may operate\nas a failure of proof or affirmative defense in many jurisdictions. Keep in mind that all the rules of consent\ndiscussed in Chapter 5 \xe2\x80\x9cCriminal Defenses, Part 1\xe2\x80\x9d and Chapter 10 \xe2\x80\x9cSex Offenses and Crimes Involving Force,\nFear, and Physical Restraint\xe2\x80\x9d apply. Thus consent obtained fraudulently, as in larceny by trick or false pretenses,\nis not valid and effective and cannot form the basis of a consent defense.\n\nExample of a Consensual Conversion That Is Noncriminal\nReview the example given in Section 11 \xe2\x80\x9cExample of Consolidated Theft Act\xe2\x80\x9d with Jeremy. Change the example\nso that the owner of the gas station is Jeremy\xe2\x80\x99s best friend Cody. Cody tells Jeremy several times that if he is ever\nshort of cash, he can simply take some cash from the register, as long as it is not more than fifty dollars. Assume\nthat on the date in question, Jeremy did not ring up half of a sale but simply took fifty dollars from the register\nbecause he was short on cash, and he needed money to order drinks at the bar. In this case, Jeremy may have a\nvalid defense of victim\xe2\x80\x99s consent to any charge of theft under a consolidated theft statute.\n\nEmbezzlement Attendant Circumstance of a Relationship of Trust\nand Confidence\nIn many jurisdictions, embezzlement theft under a consolidated theft statute requires the attendant circumstance\nelement of a relationship of trust and confidence between the victim and the defendant (Commonwealth v. Mills,\n2011). This relationship is generally present in an employer-employee relationship, a friendship, or a relationship\nwhere the defendant is paid to care for the victim\xe2\x80\x99s property. However, if the attendant circumstance element\nof trust and confidence is lacking, the defendant will not be subject to prosecution for embezzlement under a\nconsolidated theft statute in many jurisdictions.\n\nExample of a Case Lacking Embezzlement Attendant Circumstance\nTran sells an automobile to Lee. Tran\xe2\x80\x99s automobile has personalized license plates, so he offers to apply for new\nlicense plates and thereafter send them to Lee. Lee agrees and pays Tran for half of the automobile, the second\npayment to be made in a week. Lee is allowed to take possession of the automobile and drives it to her home\nthat is over one hundred miles away. Tran never receives the second payment from Lee. When the new license\nplates arrive, Tran phones Lee and tells her he is going to keep them until Lee makes her second payment. In\nsome jurisdictions, Tran has not embezzled the license plates. Although Tran and Lee have a relationship, it is\nnot a relationship based on trust or confidence. Tran and Lee have what is called a debtor-creditor relationship\n(Lee is the debtor and Tran is the creditor). Thus if the jurisdiction in which Tran sold the car requires a special\nconfidential relationship for embezzlement, Tran may not be subject to prosecution for this offense.\n\nAttendant Circumstance of Victim Reliance Required for False\n\n\x0c390 Criminal Law\n\nPretenses or Larceny by Trick\nA false pretenses or larceny by trick theft under a consolidated theft statute requires the additional attendant\ncircumstance element of victim reliance on the false representation of fact made by the defendant (People\nv. Lueth, 2011). Thus a victim\xe2\x80\x99s knowledge that the statement is false could operate as a failure of proof or\naffirmative defense in many jurisdictions.\n\nExample of a Case Lacking the Attendant Circumstance of Victim\nReliance Required for False Pretenses\nReview the example with Jeremy and Chuck in Section 11 \xe2\x80\x9cExample of Consolidated Theft Act\xe2\x80\x9d. Change the\nexample so that Chuck does not walk around the block as Jeremy asked him to do. Instead, Chuck walks around\nthe corner and then spies on Jeremy while he reads a magazine with the hood open. Chuck takes out his phone\nand makes a videotape of Jeremy. After twenty-five minutes, Chuck walks back over to Jeremy and thereafter\ngives Jeremy the free taxi ride home. When they arrive at Jeremy\xe2\x80\x99s house, Chuck shows Jeremy the videotape\nand threatens to turn it over to the district attorney if Jeremy does not pay him two hundred dollars. In this case,\nJeremy probably has a valid defense to false pretenses theft. Chuck, the \xe2\x80\x9cvictim,\xe2\x80\x9d did not rely on Jeremy\xe2\x80\x99s false\nrepresentation of fact. Thus the attendant circumstance element of false pretenses is lacking and Jeremy may not\nbe subject to prosecution for and conviction of this offense. Keep in mind that this is a false pretenses scenario\nbecause Chuck gave Jeremy a service, and larceny by trick only applies to personal property. Also note that\nChuck\xe2\x80\x99s action in threatening Jeremy so that Jeremy will pay him two hundred dollars may be the criminal act\nelement of extortion, which is discussed shortly.\nFigure 11.3 Diagram of Defenses to Consolidated Theft\n\n\x0c11.1 Nonviolent Theft Crimes 391\n\nConsolidated Theft Causation\nThe criminal act must be the factual and legal cause of the consolidated theft harm, which is defined in Section\n11 \xe2\x80\x9cConsolidated Theft Harm\xe2\x80\x9d.\n\nConsolidated Theft Harm\nConsolidated theft is a crime that always includes bad results or harm, which is the victim\xe2\x80\x99s temporary or\npermanent loss of property or services, no matter how slight the value. In the case of theft by false pretenses and\nlarceny by trick, in some jurisdictions, the status of the property after it has been stolen determines which crime\nwas committed. If the defendant becomes the owner of the stolen property, the crime is a false pretenses theft\n(People v. Curtin, 2011). If the defendant is merely in possession of the stolen property, the crime is larceny by\ntrick (People v. Beaver, 2011). When the stolen property is money, the crime is false pretenses theft because the\npossessor of money is generally the owner (People v. Curtin, 2011).\n\nExample of False Pretenses Theft Harm\nReview the example given in Section 11 \xe2\x80\x9cExample of a Case Lacking Embezzlement Attendant Circumstance\xe2\x80\x9d\nwith Tran and Lee. In this example, Lee paid Tran half of the money she owed him for his vehicle, with a promise\n\n\x0c392 Criminal Law\n\nto pay the remainder in one week. Assume that Lee never intended to pay the second installment when she made\nthe deal with Tran. Tran signs the ownership documents over to Lee, promises to send Lee the license plates when\nthey arrive, and watches as Lee drives off, never to be seen again. In this example, Lee has most likely committed\nfalse pretenses theft, rather than larceny by trick. Lee made a false representation of fact with the intent to deceive\nand received a vehicle for half price in exchange. The vehicle belongs to Lee, and the ownership documents are\nin her name. Thus Lee has ownership of the stolen vehicle rather than possession, and the appropriate offense is\nfalse pretenses theft.\n\nExample of Larceny by Trick Harm\nJacob, a car thief, runs up to Nanette, who is sitting in her Mercedes with the engine running. Jacob tells Nanette\nhe is a law enforcement officer and needs to take control of her vehicle to pursue a fleeing felon. Nanette\nskeptically asks Jacob for identification. Jacob pulls out a phony police badge and says, \xe2\x80\x9cMadam, I hate to be\nrude, but if you don\xe2\x80\x99t let me drive your vehicle, a serial killer will be roaming the streets looking for victims!\xe2\x80\x9d\nNanette grudgingly gets out of the car and lets Jacob drive off, never to be seen again. In this example, Jacob has\nobtained the Mercedes, but the ownership documents are still in Nanette\xe2\x80\x99s name. Thus Jacob has possession of the\nstolen vehicle rather than ownership, and the appropriate offense is larceny by trick.\n\nConsolidated Theft Grading\nGrading under consolidated theft statutes depends primarily on the value of the stolen property. Theft can be\ngraded by degrees (Connecticut Jury Instructions \xc2\xa7 53a-119, 2011) or as petty theft, which is theft of property\nwith low value, and grand theft, which is theft of property with significant value (Cal. Penal Code \xc2\xa7 486, 2011).\nPetty theft or theft of the second or third degree is generally a misdemeanor, while grand theft or theft of the\nfirst degree is generally a felony, felony-misdemeanor, or gross misdemeanor, depending on the amount stolen\nor whether the item stolen is a firearm (Cal. Penal Code \xc2\xa7 489, 2011). The Model Penal Code grades theft as a\nfelony of the third degree if the amount stolen exceeds five hundred dollars or if the property stolen is a firearm,\nautomobile, airplane, motorcycle, or other motor-propelled vehicle (Model Penal Code \xc2\xa7 223.1(2)). The Model\nPenal Code grades all other theft as a misdemeanor or petty misdemeanor (Model Penal Code \xc2\xa7 223.1(2)). When\ndetermining the value of property for theft, in many jurisdictions, the value is market value, and items can be\naggregated if they were stolen as part of a single course of conduct (Connecticut Jury Instructions \xc2\xa7\xc2\xa7 53a-119,\n2011). The Model Penal Code provides that \xe2\x80\x9c[t]he amount involved in a theft shall be deemed to be the highest\nvalue, by any reasonable standard\xe2\x80\xa6[a]mounts involved in thefts committed pursuant to one scheme or course of\nconduct, whether from the same person or several persons, may be aggregated in determining the grade or the\noffense\xe2\x80\x9d (Model Penal Code \xc2\xa7 223.1(2) (c)).\nTable 11.1 Comparing Larceny, Larceny by Trick, False Pretenses, and Embezzlement\n\n\x0c11.1 Nonviolent Theft Crimes 393\n\nCrime\n\nCriminal Act\n\nType of\nCriminal Intent\nProperty\n\nLarceny\n\nTaking\ncontrol plus\nasportation\n\nPersonal\n\nLarceny by\ntrick\n\nFalse\npretenses\n\nAttendant Circumstance\n\nHarm\n\nSpecific or purposely to\ndeprive victim\npermanently*\n\nVictim\xe2\x80\x99s property (applies to all\nfour theft crimes), lack of\nvictim consent\n\nProperty loss\n\nTaking by a\nfalse\nPersonal\nrepresentation\nof fact\n\nSpecific or purposely to\ndeceive*\n\nVictim reliance on false\nrepresentation\n\nVictim loses\npossession of\nproperty\n\nTaking by a\nPersonal,\nfalse\nreal,\nrepresentation\nservices\nof fact\n\nSpecific or purposely to\ndeceive*\n\nVictim reliance on false\nrepresentation\n\nVictim loses\nownership of\nproperty\n\nPersonal,\nreal\n\nSpecific or purposely to\ndeprive victim\ntemporarily or\npermanently*\n\nRelationship of trust and\nconfidence between defendant\nand victim (some jurisdictions)\n\nProperty loss\neither\ntemporary or\npermanent\n\nEmbezzlement Conversion\n\n*Some jurisdictions include general intent or knowingly to commit the criminal act.\nNote: Grading under consolidated theft statutes is based primarily on property value; market value is the standard,\nand property can be aggregated if stolen in a single course of conduct.\n\nFederal Mail Fraud\nThe federal government criminalizes theft by use of the federal postal service as federal mail fraud, a felony (18\nU.S.C. \xc2\xa7 1341, 2011). Like every federal offense, federal mail fraud is criminal in all fifty states. In addition, a\ndefendant can be prosecuted by the federal and state government for one act of theft without violating the double\njeopardy protection in the Fifth Amendment of the federal Constitution.\nThe criminal act element required for federal mail fraud is perpetrating a \xe2\x80\x9cscheme to defraud\xe2\x80\x9d using the US\nmail (18 U.S.C. \xc2\xa7 1341, 2011). Scheme has been given a broad interpretation and includes \xe2\x80\x9ceverything designed to\ndefraud by representations as to the past or present, or suggestions and promises as to the future\xe2\x80\x9d (Durland v. U.S.,\n1896). Even one act of mailing is sufficient to subject the defendant to a criminal prosecution for this offense (U.S.\nv. McClelland, 2011). In addition, the defendant does not need to actually mail anything himself or herself (U.S.\nv. McClelland, 2011). The criminal intent element required for federal mail fraud is general intent or knowingly\nor awareness that the mail will be used to further the scheme (U.S. v. McClelland, 2011). The defendant does not\nhave to intend that the US Mail will be used to commit the theft, as long as use of the postal service is reasonably\nforeseeable in the ordinary course of business (U.S. v. McClelland, 2011). The defendant\xe2\x80\x99s criminal act, supported\nby the appropriate intent, must be the factual and legal cause of the harm, which is the placement of anything\nin any post office or depository to be sent by the US Postal Service in furtherance of the scheme to defraud 18\nU.S.C. \xc2\xa7 1341, 2011).\nThe Mail Fraud Act has been used to punish a wide variety of schemes, including Ponzi schemes, like the\nrecent high-profile Bernie Madoff case (Parten, C., 2011). In a Ponzi scheme, the defendant informs investors\nthat their investment is being used to purchase real estate, stocks, or bonds, when, in actuality, the money is\nappropriated by the defendant and used to pay earlier investors. Eventually this leads to a collapse that divests all\ninvestors of their investment.\n\n\x0c394 Criminal Law\n\nFederal statutes also punish bank fraud (18 U.S.C. \xc2\xa7 1344, 2011), health care fraud (18 U.S.C. \xc2\xa7 1347, 2011),\nsecurities fraud (18 U.S.C. \xc2\xa7 1348, 2011), and fraud in foreign labor contracting (18 U.S.C. \xc2\xa7 1351, 2011). Fraud\ncommitted by wire, television, and radio also is federally criminalized (18 U.S.C. \xc2\xa7 1343, 2011).\n\nBernard Madoff Video\nBernard Madoff $50 Billion Ponzi Scheme: How Did He Do It?\nThe facts behind Bernie Madoff\xe2\x80\x99s Ponzi scheme are explained in this video:\n" href="http://www.youtube.com/watch?v=PtqsqG74agA" class="replaced-iframe" onclick="return\nreplaceIframe(this)" data-url="http://www.youtube.com/watch?v=PtqsqG74agA">(click to see video)\n\nKey Takeaways\n\xe2\x80\xa2\n\nThe criminal act element required for consolidated theft statutes is stealing real or personal property or\nservices. The defendant can commit the theft by a physical taking (larceny), conversion of property in the\ndefendant\xe2\x80\x99s possession (embezzlement), or a false representation of fact (false pretenses or larceny by trick).\n\n\xe2\x80\xa2\n\nThe criminal intent element required for consolidated theft statutes is either specific intent or purposely,\nor general intent or knowingly to perform the criminal act, depending on the jurisdiction. When the criminal\nintent is specific or purposely, the defendant must intend the criminal act of stealing and must also intend to\nkeep the stolen property. For false pretenses or larceny by trick theft, in many jurisdictions the defendant\nmust have general intent or knowledge that the representation of fact is false and must make the false\nrepresentation with the specific intent or purposely to deceive.\n\n\xe2\x80\xa2\n\nAll theft generally requires the attendant circumstances that the property stolen is the property of another,\nand victim consent to the taking, conversion, or transfer of ownership is lacking.\n\xe2\x97\xa6\n\nIn many jurisdictions, embezzlement theft under a consolidated theft statute requires the\nattendant circumstance element of a relationship of trust and confidence between the victim and\nthe defendant.\n\n\xe2\x97\xa6\n\nA false pretenses or larceny by trick theft under a consolidated theft statute requires the\nadditional attendant circumstance element of victim reliance on the false representation of fact\nmade by the defendant.\n\n\xe2\x80\xa2\n\nThe harm element required for consolidated theft statutes is the victim\xe2\x80\x99s temporary or permanent loss of\nproperty or services, no matter how slight the value. When the defendant gains possession of personal\nproperty by a false representation of fact, the theft is larceny by trick theft. When the defendant gains\nownership of personal property or possession of money, the theft is false pretenses theft.\n\n\xe2\x80\xa2\n\nTheft can be graded by degrees or as petty theft, which is theft of property with low value, and grand\ntheft, which is theft of property with significant value. Petty theft or theft of the second or third degree is\ngenerally a misdemeanor, while grand theft or theft of the first degree is generally a felony, felonymisdemeanor, or gross misdemeanor, depending on the amount stolen or whether the item stolen is a\nfirearm.\n\n\xe2\x80\xa2\n\nThe criminal act element required for federal mail fraud is the use of the federal postal service to further\nany scheme to defraud. The criminal intent element required for this offense is general intent, knowingly, or\nawareness that the postal service will be used. The criminal act supported by the criminal intent must be the\nfactual and legal cause of the harm, which is the placement of anything in a depository or postal office that\nfurthers the scheme to defraud. Federal mail fraud is a felony.\n\n\x0c11.1 Nonviolent Theft Crimes 395\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nRecall a scenario in Chapter 1 \xe2\x80\x9cIntroduction to Criminal Law\xe2\x80\x9d where Linda and Clara browse an\nexpensive department store\xe2\x80\x99s lingerie department and Linda surreptitiously places a bra in her purse and\nleaves the store without paying for it. What type of theft did Linda commit in this scenario?\n\n2.\n\nEllen goes to the fine jewelry department at Macy\xe2\x80\x99s and asks the clerk if she can see a Rolex watch,\nvalued at ten thousand dollars. The clerk takes the watch out of the case and lays it on the counter. Ellen tells\nthe clerk that her manager is signaling. When the clerk turns around, Ellen puts her hand over the watch and\nbegins to slide it across the counter and into her open purse. Before the watch slides off the counter, the\nclerk turns back around and pins Ellen\xe2\x80\x99s hand to the counter, shouting for a security guard. Has Ellen\ncommitted a crime in this scenario? If your answer is yes, which crime?\n\n3.\n\nRead State v. Larson, 605 N.W. 2d 706 (2000). In Larson, the defendant, the owner of an automobile\nleasing company, was convicted of theft by temporary taking under a consolidated theft statute for failing to\nreturn security deposits to customers pursuant to their automobile lease contracts. The defendant appealed,\nclaiming that the lease deposits were not the \xe2\x80\x9cproperty of another.\xe2\x80\x9d Did the Supreme Court of Minnesota\nuphold the defendant\xe2\x80\x99s conviction? Why or why not? The case is available at this link:\nhttp://scholar.google.com/scholar_case?case=18374046737925458759&q=\nembezzlement+%22temporary+taking%22&hl=en&as_sdt=2,5.\n\n4.\n\nRead People v. Traster, 111 Cal. App. 4th 1377 (2003). In Traster, the defendant told his employer that it\nwas necessary to purchase computer-licensing agreements, and he was given the employer credit card to\npurchase them. The defendant thereafter appropriated the money, never purchased the licenses, and quit his\njob a few days later. The defendant was convicted of theft by false pretenses under a consolidated theft\nstatute. Did the Court of Appeal of California uphold the defendant\xe2\x80\x99s conviction? Why or why not? The case\nis available at this link: http://scholar.google.com/scholar_case?case=14111729725043843748&q=\nlarceny+false+pretenses+possession+ownership&hl=en&as_sdt=2,5&as_ylo=2000.\n\n5.\n\nRead U.S. v. Ingles, 445 F.3d 830 (2006). In Ingles, the defendant was convicted of federal mail fraud\nwhen his son\xe2\x80\x99s cabin was burned by arson and his son made a claim for homeowner\xe2\x80\x99s insurance. The\nevidence indicated that the defendant was involved in the arson. The defendant\xe2\x80\x99s son was acquitted of the\narson, and only the insurance company, which sent several letters to the defendant\xe2\x80\x99s son, did the acts of\nmailing. Did the US Court of Appeals for the Fifth Circuit uphold the defendant\xe2\x80\x99s conviction? Why or why\nnot? The case is available at this link: http://scholar.google.com/\nscholar_case?case=6621847677802005327&q=\nfederal+mail+fraud+%22one+letter%22&hl=en&as_sdt=2,5&as_ylo=2000.\n\nReferences\nAlaska Stat. \xc2\xa7 11.46.100, accessed March 8, 2011, http://law.justia.com/codes/alaska/2009/title-11/chapter-11-46/\narticle-01/sec-11-46-100.\nBritt v. Commonwealth, 667 S.E.2d 763 (2008), accessed March 8, 2011, http://scholar.google.com/\nscholar_case?case=2834311189194937383&q= larceny+asportation&hl=en&as_sdt=2,5&as_ylo=1999.\nCal. Penal Code \xc2\xa7 484(a), accessed March 8, 2011, http://law.onecle.com/california/penal/484.html.\nCal. Penal Code \xc2\xa7 486, accessed March 10, 2011, http://law.onecle.com/california/penal/486.html.\nCal. Penal Code \xc2\xa7 489, accessed March 10, 2011, http://law.onecle.com/california/penal/489.html.\nCommonwealth v. Mills, 436 Mass. 387 (2002), accessed March 7, 2011, http://scholar.google.com/\n\n\x0c396 Criminal Law\n\nscholar_case?case=14428947695245966729&q=\nlarceny+false+pretenses+embezzlement&hl=en&as_sdt=2,5&as_ylo=1997.\nConnecticut Jury Instructions \xc2\xa7\xc2\xa7 53a-119, 53a-122 through 53a-125b, accessed March 10, 2011,\nhttp://www.jud.ct.gov/JI/criminal/part9/9.1-1.htm.\nDurland v. U.S., 161 U.S. 306, 313 (1896), http://supreme.justia.com/us/161/306.\nHaw. Rev. Stat. \xc2\xa7 708-834, accessed March 8, 2011, http://law.justia.com/codes/hawaii/2009/volume-14/\ntitle-37/chapter-708/hrs-0708-0834-htm.\nIn the Matter of Schwimmer, 108 P.3d 761 (2005), accessed March 8, 2011, http://scholar.google.com/\nscholar_case?case=637183228950627584&q=\nembezzlement+borrowing+%22no+intent+to+permanently+deprive%22&hl= en&as_sdt=2,5&as_ylo=1999.\nItin v. Ungar, 17 P.3d 129 (2000), accessed March 8, 2011, http://scholar.google.com/\nscholar_case?case=12387802565107699365&q=theft+requires+\nspecific+intent+to+permanently+deprive&hl=en&as_sdt=2,5&as_ylo=1999.\nParten, C., \xe2\x80\x9cAfter Madoff: Notable Ponzi Schemes,\xe2\x80\x9d CNBC website, accessed March 11, 2011,\nhttp://www.cnbc.com/id/41722418/After_Madoff_Most_Notable_Ponzi_Scams.\nPeople v. Beaver, 186 Cal. App. 4th 107 (2010), accessed March 10, 2011, http://scholar.google.com/\nscholar_case?case=12194560873043980150&q=\nfalse+pretenses+theft+of+a+service&hl=en&as_sdt=2,5&as_ylo=1999.\nPeople v. Curtin, 22 Cal. App. 4th 528 (1994), accessed March 10, 2011, http://scholar.google.com/\nscholar_case?case=3765672039191216315&q=\nfalse+pretenses+theft+of+a+service&hl=en&as_sdt=2,5&as_ylo=1999.\nPeople v. Lueth, 660 N.W.2d 322 (2002), accessed March 9, 2011, http://scholar.google.com/\nscholar_case?case=16580779180424536816&q=\nfalse+pretenses+knowledge+statement+is+false+intent+to+deceive&hl= en&as_sdt=2,5&as_ylo=1999.\nTex. Penal Code \xc2\xa7 31.03(b) (1), accessed March 8, 2011, http://law.justia.com/codes/texas/2009/penal-code/\ntitle-7-offenses-against-property/chapter-31-theft.\nU.S. v. McClelland, 868 F.2d 704 (1989), accessed March 18, 2011, http://scholar.google.com/\nscholar_case?case=8428034080210339517&q=\nfederal+mail+fraud+%22one+letter%22&hl=en&as_sdt=2,5&as_ylo=2000.\n18\nU.S.C.\n\xc2\xa7 1341,\naccessed\nMarch\n18,\n2011,\nhttp://www.law.cornell.edu/uscode/18/\nusc_sec_18_00001341\xe2\x80\x94-000-.html.\n18\nU.S.C.\n\xc2\xa7 1343,\naccessed\nMarch\n11,\n2011,\nhttp://www.law.cornell.edu/uscode/18/\nusc_sec_18_00001343\xe2\x80\x94-000-.html.\n18\nU.S.C.\n\xc2\xa7 1344,\naccessed\nMarch\n11,\n2011,\nhttp://www.law.cornell.edu/uscode/18/\nusc_sec_18_00001344\xe2\x80\x94-000-.html.\n18\nU.S.C.\n\xc2\xa7 1347,\naccessed\nMarch\n11,\n2011,\nhttp://www.law.cornell.edu/uscode/18/\nusc_sec_18_00001347\xe2\x80\x94-000-.html.\n18\nU.S.C.\n\xc2\xa7 1348,\naccessed\nMarch\n11,\n2011,\nhttp://www.law.cornell.edu/uscode/18/\nusc_sec_18_00001348\xe2\x80\x94-000-.html.\n18\nU.S.C.\n\xc2\xa7 1351,\naccessed\nMarch\n11,\n2011,\nhttp://www.law.cornell.edu/uscode/18/\nusc_sec_18_00001351\xe2\x80\x94-000-.html.\n\n\x0c11.2 Extortion, Robbery, and Receiving Stolen Property\n\nLearning Objectives\n1.\n\nDefine the criminal act element required for extortion.\n\n2.\n\nDefine the criminal intent element required for extortion.\n\n3.\n\nIdentify a potential defense to extortion.\n\n4.\n\nDefine the attendant circumstances required for extortion.\n\n5.\n\nDefine the harm element required for extortion.\n\n6.\n\nAnalyze extortion grading.\n\n7.\n\nIdentify the differences between robbery, larceny, and extortion.\n\n8.\n\nAnalyze robbery grading.\n\n9.\n\nDefine the criminal act element required for receiving stolen property.\n\n10.\n\nDefine the criminal intent element required for receiving stolen property.\n\n11.\n\nIdentify a failure of proof or affirmative defense to receiving stolen property in some jurisdictions.\n\n12.\n\nDefine the attendant circumstances and harm element required for receiving stolen property.\n\n13.\n\nAnalyze receiving stolen property grading.\n\nExtortion\nAll states and the federal government criminalize extortion, which is also called blackmail (K.S.A. \xc2\xa7 21-3428,\n2011). As stated previously, the Model Penal Code criminalizes theft by extortion and grades it the same as all\nother nonforcible theft offenses (Model Penal Code \xc2\xa7 223.4). Extortion is typically nonviolent, but the elements of\nextortion are very similar to robbery, which is considered a forcible theft offense. Robbery is discussed shortly.\nExtortion has the elements of criminal act, criminal intent, attendant circumstances, causation, and harm, as is\nexplored in Section 11.2.1 \xe2\x80\x9cExtortion\xe2\x80\x9d.\n\nExtortion Act\nThe criminal act element required for extortion is typically the theft of property accomplished by a threat to\ncause future harm to the victim, including the threat to inflict bodily injury, accuse anyone of committing a crime,\nor reveal a secret that would expose the victim to hatred, contempt, or ridicule (Ga. Code \xc2\xa7 16-8-16, 2011). The\nModel Penal Code criminalizes theft by extortion when the defendant obtains property of another by threatening\nto inflict bodily injury on anyone, commit any criminal offense, accuse anyone of a criminal offense, expose any\n397\n\n\x0c398 Criminal Law\n\nsecret tending to subject any person to hatred, contempt, or ridicule or impair his credit and business repute, take\nor withhold action as an official, bring about a strike or boycott, testify with respect to another\xe2\x80\x99s legal claim, or\ninflict any other harm that would not benefit the actor (Model Penal Code \xc2\xa7 223.4). Note that some of these acts\ncould be legal, as long as they are not performed with the unlawful intent to steal.\n\nExample of Extortion Act\nRodney tells Lindsey that he will report her illegal drug trafficking to local law enforcement if she does not pay\nhim fifteen thousand dollars. Rodney has probably committed the criminal act element required for extortion in\nmost jurisdictions. Note that Rodney\xe2\x80\x99s threat to expose Lindsey\xe2\x80\x99s illegal activities is actually desirable behavior\nwhen performed with the intent to eliminate or reduce crime. However, under these circumstances, Rodney\xe2\x80\x99s act\nis most likely criminal because it is supported by the intent to steal fifteen thousand dollars from Lindsey.\n\nExtortion Intent\nThe criminal intent element required for extortion is typically the specific intent or purposely to commit the\ncriminal act and to unlawfully deprive the victim of property permanently (Connecticut Criminal Jury Instructions\n\xc2\xa7\xc2\xa753a-119(5), 2011). This intent requirement is similar to the criminal intent element required for larceny and\nfalse pretenses theft, as discussed in Section 11 \xe2\x80\x9cConsolidated Theft Intent\xe2\x80\x9d. Some jurisdictions only require\ngeneral intent or knowingly to perform the criminal act (Ariz. Rev. Stat. \xc2\xa7 13-1804).\n\nExample of a Case Lacking Extortion Intent\nReview the example with Rodney and Lindsey in Section 11 \xe2\x80\x9cExample of Extortion Act\xe2\x80\x9d. Change the example\nand assume that Rodney asks Lindsey to loan him the fifteen thousand dollars so that he can make a balloon\npayment due on his mortgage. Lindsey refuses. Rodney thereafter threatens to expose Lindsey\xe2\x80\x99s drug trafficking if\nshe doesn\xe2\x80\x99t loan him the money. In many jurisdictions, Rodney may not have the criminal intent element required\nfor extortion. Although Rodney performed the criminal act of threatening to report Lindsey for a crime, he did\nso with the intent to borrow money from Lindsey. Thus Rodney did not act with the specific intent or purposely\nto permanently deprive Lindsey of property, which could operate as a failure of proof or affirmative defense to\nextortion in many jurisdictions.\n\nExtortion Attendant Circumstance\nExtortion is a form of theft, so it has the same attendant circumstance required in consolidated theft statutes\xe2\x80\x94the\nproperty stolen belongs to another. In many jurisdictions, it is an affirmative defense to extortion that the\nproperty taken by threat to expose a secret or accuse anyone of a criminal offense is taken honestly, as\ncompensation for property, or restitution or indemnification for harm done by the secret or crime (Ga. Code\n\n\x0c11.2 Extortion, Robbery, and Receiving Stolen Property 399\n\n\xc2\xa7 16-8-16, 2011). The Model Penal Code provides an affirmative defense to extortion by threat of accusation\nof a criminal offense, exposure of a secret, or threat to take or withhold action as an official if the property\nobtained was \xe2\x80\x9chonestly claimed as restitution or indemnification for harm done in the circumstances to which such\naccusation, exposure, lawsuit or other official action relates, or as compensation for property or lawful services\xe2\x80\x9d\n(Model Penal Code \xc2\xa7 223.4).\n\nExample of Extortion Affirmative Defense\nTara, a real estate broker, hires Trent to be a real estate sales agent in her small realty office. Tara decides she\nwants to get the property listing of a competitor by using Trent to obtain information. Tara tells Trent to pretend\nhe is a buyer interested in the property. She asks him to make an appointment with the competitor, ask a lot\nof questions about the owner of the property, and thereafter bring Tara the information. Tara promises to pay\nTrent one thousand dollars for his time and effort. Trent spends several hours performing this task and thereafter\ndemands his one thousand dollars payment. Tara tells Trent she is experiencing \xe2\x80\x9ctough times\xe2\x80\x9d and can\xe2\x80\x99t afford\nto pay him. Trent threatens to tell Tara\xe2\x80\x99s competitor what she is up to if she doesn\xe2\x80\x99t pay him the one thousand\ndollars. Trent has probably not committed extortion in many jurisdictions. Although Trent threatened to expose\nTara\xe2\x80\x99s secret if she didn\xe2\x80\x99t pay him one thousand dollars, Trent honestly believed he was owed this money for a job\nhe performed that was directly related to the secret. Thus in many jurisdictions, Trent has an affirmative defense\nthat the money demanded was compensation for services and not the subject of unlawful theft by extortion.\n\nAttendant Circumstance of Victim Consent\nExtortion also requires the attendant circumstance of victim consent. With extortion, the victim consensually\ntransfers the property based on fear inspired by the defendant\xe2\x80\x99s threat (Oklahoma Uniform Jury Instructions No.\nCR 5-34, 2011).\n\nExample of Attendant Circumstance of Victim Consent for\nExtortion\nReview the example with Rodney and Lindsey in Section 11 \xe2\x80\x9cExample of Extortion Act\xe2\x80\x9d. Assume that Lindsey\ngrudgingly gives Rodney the fifteen thousand dollars so that he will not report her drug trafficking. In this\nexample, Lindsey is consensually transferring the money to Rodney to prevent him from making good on his\nthreat. Thus the attendant circumstance of victim consent based on fear is most likely present, and Rodney could\nbe subject to prosecution for and conviction of extortion in most jurisdictions.\n\n\x0c400 Criminal Law\n\nExtortion Causation\nThe criminal act must be the factual and legal cause of extortion harm, which is defined in Section 11 \xe2\x80\x9cExtortion\nHarm\xe2\x80\x9d.\n\nExtortion Harm\nThe defendant must obtain property belonging to another for the completed crime of extortion in most\njurisdictions (Oklahoma Uniform Jury Instructions No. CR 5-34, 2011). If the defendant commits the criminal\nact of threatening the victim with the appropriate criminal intent, but the victim does not actually transfer the\nproperty to the defendant, the defendant can only be charged with attempted extortion (Oklahoma Uniform Jury\nInstructions No. CR 5-32, 2011).\n\nExample of a Case Lacking Extortion Harm\nReview the example with Rodney and Lindsey in Section 11 \xe2\x80\x9cExample of Extortion Act\xe2\x80\x9d. Assume that after\nRodney threatens to report Lindsey\xe2\x80\x99s drug trafficking to local law enforcement, Lindsey calls local law\nenforcement, turns herself in for drug trafficking, and also reports Rodney for making the threat. In this case,\nbecause Rodney did not \xe2\x80\x9cobtain\xe2\x80\x9d property by threat, the crime of extortion is not complete, and attempted\nextortion would be the appropriate charge in most jurisdictions.\nFigure 11.4 Diagram of Defenses to Extortion\n\n\x0c11.2 Extortion, Robbery, and Receiving Stolen Property 401\n\nExtortion Grading\nExtortion is generally graded as a felony in most jurisdictions (Or. Rev. Stat. \xc2\xa7 164.075, 2011). As stated\npreviously, the Model Penal Code grades extortion under its consolidated theft offense.\n\nRobbery\nRobbery was the first common-law theft crime. The criminalization of robbery was a natural progression from\nother common-law crimes against the person because robbery always involves force, violence, or threat and could\npose a risk of injury or death to the robbery victim, defendant, or other innocent bystanders. Recall from Chapter\n9 \xe2\x80\x9cCriminal Homicide\xe2\x80\x9d that robbery is generally a serious felony that is included in most felony murder statutes\nas a predicate felony for first-degree felony murder. When robbery does not result in death, it is typically graded\nmore severely than theft under a consolidated theft statute. Robbery grading is discussed shortly.\nThe elements of robbery are very similar to the elements of larceny and extortion. For the purpose of brevity,\nonly the elements of robbery that are distinguishable from larceny and extortion are analyzed in depth. Robbery\nhas the elements of criminal act, attendant circumstances, criminal intent, causation, and harm, as is explored in\nSection 11.2 \xe2\x80\x9cExtortion, Robbery, and Receiving Stolen Property\xe2\x80\x9d.\n\n\x0c402 Criminal Law\n\nRobbery Act\nIt is the criminal act element that primarily distinguishes robbery from larceny and extortion. The criminal act\nelement required for robbery is a taking of personal property by force or threat of force (Ind. Code \xc2\xa7 35-42-5-1,\n2011). Force is generally physical force. The force can be slight, but it must be more than what is required to\ngain control over and move the property (S.W. v. State, 2011). Many jurisdictions require force during the taking,\nwhich includes the use of force to prevent the victim from reclaiming the property, or during escape (State v.\nHandburgh, 2011). The Model Penal Code requires force or threat \xe2\x80\x9cin the course of committing a theft\xe2\x80\x9d and\ndefines this as occurring in \xe2\x80\x9can attempt to commit theft or in flight after the attempt or commission\xe2\x80\x9d (Model Penal\nCode \xc2\xa7 222.1(1)). Threat for robbery is a threat to inflict imminent force (Ala. Code \xc2\xa7 13A-8-43, 2011).\nWhile larceny and extortion also require a taking, the defendant typically accomplishes the larceny taking by\nstealth, or a false representation of fact. In extortion, the defendant accomplishes the taking by a threat of future\nharm that may or may not involve force.\n\nExample of Robbery Act\nReview the example given in Section 11 \xe2\x80\x9cExample of Extortion Act\xe2\x80\x9d with Rodney and Lindsey. In this example,\nRodney threatened to expose Lindsey\xe2\x80\x99s drug trafficking if she didn\xe2\x80\x99t pay him fifteen thousand dollars. Change the\nexample so that Rodney tells Lindsey he will kill her if she doesn\xe2\x80\x99t write him a check for fifteen thousand dollars.\nRodney exemplifies his threat by pointing to a bulge in his front jacket pocket that appears to be a weapon. In\nthis scenario, Rodney has most likely committed the criminal act element required for robbery, not extortion.\nRodney\xe2\x80\x99s threat is a threat of immediate force. Compare this threat to Rodney\xe2\x80\x99s threat to expose Lindsey\xe2\x80\x99s drug\ntrafficking, which is a threat of future harm that relates to Lindsey\xe2\x80\x99s arrest for a crime, rather than force.\n\nExample of a Case Lacking Robbery Act\nPeter, a jewelry thief, notices that Cheryl is wearing a diamond ring. Peter walks up to Cheryl and asks her if she\nwants him to read her palm. Cheryl shrugs her shoulders and says, \xe2\x80\x9cSure! What have I got to lose?\xe2\x80\x9d While Peter\ndoes an elaborate palm reading, he surreptitiously slips Cheryl\xe2\x80\x99s diamond ring off her finger and into his pocket.\nPeter has probably not committed the criminal act element required for robbery in this case. Although Peter used\na certain amount of physical force to remove Cheryl\xe2\x80\x99s ring, he did not use any force beyond what was required\nto gain control over Cheryl\xe2\x80\x99s property and move it into his possession. Thus Peter has probably committed the\ncriminal act element required for larceny theft, not robbery, and is subject to less severe sentencing for this\nlower-level offense.\n\nRobbery Attendant Circumstances\nAnother difference between robbery and larceny or extortion is the attendant circumstances requirement(s).\n\n\x0c11.2 Extortion, Robbery, and Receiving Stolen Property 403\n\nRobbery requires the same attendant circumstance required for both larceny and extortion\xe2\x80\x94that the property\ntaken belongs to another. It also has the same attendant circumstance as larceny\xe2\x80\x94that the defendant accomplish\nthe taking against the victim\xe2\x80\x99s will and without consent. However, robbery has one additional attendant\ncircumstance, which is that the property be taken from the victim\xe2\x80\x99s person or presence (Cal. Penal Code \xc2\xa7 211).\nThe property does not need to be in the actual physical possession of the victim, as long as it is under the victim\xe2\x80\x99s\ncontrol (Jones v. State, 2011). Thus if the victim could have prevented the taking if not for the force, violence, or\nthreat posed by the defendant, this attendant circumstance is present (Jones v. State, 2011).\n\nExample of Robbery Attendant Circumstances\nReview the example given in Section 11 \xe2\x80\x9cExample of Robbery Act\xe2\x80\x9d with Rodney and Lindsey. In this example,\nRodney tells Lindsey he will kill her if she doesn\xe2\x80\x99t write him a check for fifteen thousand dollars. Change this\nexample so that Rodney knows Lindsey has recently withdrawn fifteen thousand dollars in cash from the bank.\nRodney demands the cash, tells Lindsey he will kill her if she doesn\xe2\x80\x99t give it to him, and gestures toward a bulge\nin his front jacket pocket that appears to be a weapon. Lindsey tells Rodney, \xe2\x80\x9cThe money is in my purse, but\nif you take it, you will be ruining my life!\xe2\x80\x9d and points to her purse, which is on the kitchen table a few feet\naway. Rodney walks over to the table, opens Lindsey\xe2\x80\x99s purse, and removes a large envelope stuffed with bills. In\nthis scenario, the attendant circumstances for robbery appear to be present. Rodney took the property of another\nwithout consent. Although the money was not on Lindsey\xe2\x80\x99s person, it was in her presence and subject to her\ncontrol. If Rodney had not threatened Lindsey\xe2\x80\x99s life, she could have prevented the taking. Thus Rodney has most\nlikely committed robbery and is subject to prosecution for and conviction of this offense.\n\nRobbery Intent\nThe criminal intent element required for robbery is the same as the criminal intent element required for larceny\nand extortion in many jurisdictions. The defendant must have the specific intent or purposely to commit the\ncriminal act and to deprive the victim of the property permanently (Metheny v. State, 2011). Some jurisdictions do\nnot require the intent to permanently deprive the victim of property and include temporary takings in the robbery\nstatute (Fla. Stat. Ann. \xc2\xa7 812.13, 2011).\n\nExample of Robbery Intent\nReview the example with Rodney and Lindsey in Section 11 \xe2\x80\x9cExample of a Case Lacking Extortion Intent\xe2\x80\x9d. In\nthis example, Rodney demands a loan from Lindsey in the amount of fifteen thousand dollars and threatens to\nexpose her drug trafficking activities if she doesn\xe2\x80\x99t comply. Change this example so that Rodney tells Lindsey to\nloan him fifteen thousand dollars or he will kill her, gesturing at a bulge in his front jacket pocket that appears\nto be a weapon. In a jurisdiction that requires the criminal intent to permanently deprive the victim of property\nfor robbery, Rodney does not have the appropriate criminal intent. In a jurisdiction that allows for the intent to\n\n\x0c404 Criminal Law\n\ntemporarily deprive the victim of property for robbery, Rodney has the appropriate criminal intent and may be\ncharged with and convicted of this offense.\n\nRobbery Causation and Harm\nThe criminal act supported by the criminal intent must be the factual and legal cause of the robbery harm, which\nis the same as the harm requirement for larceny and extortion: the property must be transferred to the defendant\n(Oklahoma Uniform Jury Instructions No. CR 4-141, 2011). In some jurisdictions, no transfer of property needs to\ntake place, and the crime is complete when the defendant employs the force or threat with the appropriate criminal\nintent (Williams v. State, 2011).\n\nExample of Robbery Harm\nReview the example with Rodney and Lindsey in Section 11 \xe2\x80\x9cExample of Robbery Attendant Circumstances\xe2\x80\x9d.\nIn this example, Rodney threatens to kill Lindsey if she does not give him fifteen thousand dollars out of her\npurse and gestures to a bulge in his front jacket pocket that appears to be a weapon. Change this example so that\nLindsey leaps off of the couch and tackles Rodney after his threat. She reaches into his pocket and determines that\nRodney\xe2\x80\x99s \xe2\x80\x9cgun\xe2\x80\x9d is a plastic water pistol. Rodney manages to get out from under Lindsey and escapes. If Rodney\nand Lindsey are in a jurisdiction that requires a transfer of property for the harm element of robbery, Rodney\nhas probably only committed attempted robbery because Rodney did not get the chance to take the money out of\nLindsey\xe2\x80\x99s purse. If Rodney and Lindsey are in a jurisdiction that does not require a transfer of property for the\nharm element of robbery, Rodney may be subject to prosecution for and conviction of this offense.\nFigure 11.5 Diagram of Defenses to Robbery\n\n\x0c11.2 Extortion, Robbery, and Receiving Stolen Property 405\n\nRobbery Grading\nAs stated previously, robbery is generally graded as a serious felony that can serve as the predicate felony for\nfirst-degree felony murder (Cal. Penal Code \xc2\xa7 189, 2011) and a strike in states that have three strikes statutes (Cal.\nPenal Code \xc2\xa7 1192.7, 2011). Robbery grading is aggravated by the use of a weapon or when the defendant inflicts\nserious bodily injury (Tex. Penal Code \xc2\xa7 29.03, 2011). The Model Penal Code grades robbery as a felony of the\nsecond degree, unless the actor attempts to kill anyone or purposely inflicts or attempts to inflict serious bodily\ninjury, in which case it is graded as a felony of the first degree (Model Penal Code \xc2\xa7 222.1(2)).\nTable 11.2 Comparing Larceny, Extortion, and Robbery\n\nCrime\n\nCriminal Act\n\nCriminal Intent\n\nAttendant Circumstance\n\nHarm\n\nLarceny\n\nTaking by stealth or\nfalse representation of\nfact\n\nSpecific or purposely to\ndeprive the victim of\nproperty permanently*\n\nVictim\xe2\x80\x99s property, lack of victim consent\n\nProperty\ntransfer\n\nSpecific or purposely to\ndeprive the victim of\nproperty permanently*\n\nVictim\xe2\x80\x99s property; the victim consents\nbased on fear\n\nProperty\ntransfer\n\nSpecific or purposely to\ndeprive the victim of\nproperty permanently*\n\nVictim\xe2\x80\x99s property, lack of victim\nconsent, property is taken from the\nvictim\xe2\x80\x99s person or presence\n\nProperty\ntransfer**\n\nTaking by threat of\nExtortion future harm; not\nnecessarily physical\nRobbery\n\nTaking by force or\nthreat of imminent\nforce\n\n*In some jurisdictions, the defendant can intend a temporary taking.\n**In some jurisdictions, the victim does not need to transfer the property to the defendant.\n\nReceiving Stolen Property\nAll jurisdictions criminalize receiving stolen property, to deter theft and to break up organized criminal\nenterprises that benefit from stealing and selling stolen goods. Receiving stolen property criminal statutes often\nare targeted at pawnbrokers or fences who regularly buy and sell property that is the subject of one of the theft\ncrimes discussed in the preceding sections. As stated, the Model Penal Code includes receiving stolen property\nin its consolidated theft offense (Model Penal Code \xc2\xa7\xc2\xa7 223.1, 223.6). Receiving stolen property has the elements\nof criminal act, criminal intent, attendant circumstances, causation, and harm, as is explored in Section 11.2.3\n\xe2\x80\x9cReceiving Stolen Property\xe2\x80\x9d.\n\nReceiving Stolen Property Act\nThe criminal act element required for receiving stolen property in many jurisdictions is receiving, retaining,\ndisposing of (Ala. Code \xc2\xa7 13A-8-16, 2011), selling (Cal. Penal Code \xc2\xa7 496, 2011), trafficking in (Fla. Stat. Ann.\n\xc2\xa7 812.019, 2011), buying, or aiding in concealment (Mass. Gen. Laws ch. 266 \xc2\xa7 60) of stolen personal property.\nThe Model Penal Code defines the criminal act element as receiving, retaining, or disposing of stolen movable\n\n\x0c406 Criminal Law\n\nproperty (Model Penal Code \xc2\xa7 223.6(1)). The criminal act does not generally require the defendant to be in\nactual physical possession of the property, as long as the defendant retains control over the item(s) (Ga. Code \xc2\xa7\n16-8-7, 2011). This would be a constructive possession. The Model Penal Code defines receiving as \xe2\x80\x9cacquiring\npossession, control or title, or lending on the security of the property\xe2\x80\x9d (Model Penal Code \xc2\xa7 223.6(1)). Note that\nthe criminal act element of receiving stolen property includes both buying and selling. Thus dealers that regularly\npurchase and then sell stolen items can be prosecuted for both of these acts under the same statute.\n\nExample of Receiving Stolen Property Act\nChanel, a fence who deals in stolen designer perfume, arranges a sale between one of her thieves, Burt, and a\nregular customer, Sandra. Chanel directs Burt to drop off a shipment of one crate of the stolen perfume at Chanel\xe2\x80\x99s\nstorage facility and gives Burt the key. Chanel pays Burt five thousand dollars for the perfume delivery. Chanel\nthereafter accepts a payment of ten thousand dollars from Sandra and gives Sandra another key with instructions to\npick up the perfume the next day after it has been delivered. Chanel could probably be charged with and convicted\nof receiving stolen property in most jurisdictions. Although Chanel did not ever acquire actual possession of the\nstolen designer perfume, Chanel had control over the property or constructive possession through her storage\nfacility. Chanel\xe2\x80\x99s acts of buying the perfume for five thousand dollars and then selling it for ten thousand dollars\nboth would be criminalized under one statute in many jurisdictions. Thus Chanel could be prosecuted for both\nacts as separate charges of receiving stolen property.\n\nReceiving Stolen Property Intent\nThe criminal intent element required for receiving stolen property has two parts. First, the defendant must have\nthe intent to commit the criminal act, which could be specific intent or purposely, general intent or knowingly,\nrecklessly, or negligently to either buy-receive or sell-dispose of stolen personal property, depending on the\njurisdiction. This means that the defendant must have actual knowledge that the property is stolen (Mass. Gen.\nLaws ch. 266 \xc2\xa7 60, 2011), or the defendant must be aware or should be aware of a risk that the property is stolen\n(Ala. Code \xc2\xa7 13A-8-16(a), 2011). The Model Penal Code requires the defendant to purposely commit the act\nknowing that the property is stolen or believing that the property has probably been stolen (Model Penal Code\n\xc2\xa7 223.6(1)). The Model Penal Code also provides a presumption of knowledge or belief when the defendant is a\ndealer, which is defined as a \xe2\x80\x9cperson in the business of buying or selling goods including a pawnbroker,\xe2\x80\x9d and has\nbeen found in possession or control of property stolen from two or more persons on more than one occasion, or\nhas received stolen property in another transaction within the year preceding the transaction charged, or acquires\nthe property for consideration far below its reasonable value (Model Penal Code \xc2\xa7 223.6(2)). Many state statutes\nhave a similar provision (Ala. Code \xc2\xa7 13A-8-16, 2011).\nThe second aspect of criminal intent for receiving stolen property is the defendant\xe2\x80\x99s specific intent or\npurposeful desire to deprive the victim of the property permanently, which is required in some jurisdictions\n(Hawaii Criminal Jury Instructions No. 10.00, 10.20, 2011). This creates a failure of proof or affirmative defense\nthat the defendant received and retained the stolen property with the intent to return it to the true owner (Ga.\nCode \xc2\xa7 16-8-7(a), 2011). The Model Penal Code also provides a defense if \xe2\x80\x9cthe property is received, retained, or\ndisposed of with purpose to restore it to the owner\xe2\x80\x9d (Model Penal Code \xc2\xa7 223.6(1)).\n\n\x0c11.2 Extortion, Robbery, and Receiving Stolen Property 407\n\nExample of Receiving Stolen Property Intent\nChip\xe2\x80\x99s iPod breaks, so he decides to go to the local electronics store and buy a new one. As he is approaching\nthe store, Heather saunters over from a nearby alley and asks him if he wants to buy a brand new iPod for ten\ndollars. Suspicious of the price, Chip asks Heather to see the iPod. She hands it to him, and he notices that the\nbox looks like it has been tampered with and a price tag removed. He shrugs, takes ten dollars out of his wallet,\nand hands it to Heather in exchange for the iPod. In jurisdictions that require actual knowledge that the property\nis stolen, Chip probably does not have the appropriate criminal intent for receiving stolen property because he did\nnot know Heather and had no way of knowing if Heather was selling him stolen property. In jurisdictions that\nrequire awareness of a risk that the property is stolen, Chip may have the appropriate criminal intent because\nhe knew the price was too low and noticed that the box had been tampered with to remove evidence of an actual\nprice or vendor.\nChange the example so that Chip is a pawnshop broker, and Heather brings the iPod into his shop to pawn\nfor the price of ten dollars. In many jurisdictions, if Chip accepts the iPod to pawn, this creates a presumption\nof receiving stolen property criminal intent. Chip is considered a dealer, and in many jurisdictions, dealers who\nacquire property for consideration that they know is far below the reasonable value are subject to this type of\npresumption.\nChange the example again so that Chip notices the following message written on the back of the iPod box:\n\xe2\x80\x9cThis iPod is the property of Eugene Schumaker.\xe2\x80\x9d Chip is Eugene Schumaker\xe2\x80\x99s friend, so he pays Heather the ten\ndollars to purchase the iPod so he can return it to Eugene. In many jurisdictions and under the Model Penal Code,\nChip can use his intent to return the stolen property to its true owner as a failure of proof or affirmative defense\nto receiving stolen property.\n\nRetaining Stolen Property\nIf retaining is the criminal act element described in the receiving stolen property statute, a defendant can still\nbe convicted of receiving stolen property if he or she originally receives the property without the appropriate\ncriminal intent, but later keeps the property after discovering it is stolen (Connecticut Criminal Jury Instructions\n\xc2\xa7\xc2\xa753a-119(8), 2011).\n\nExample of Retaining Stolen Property\nReview the example with Chip and Heather in Section 11 \xe2\x80\x9cExample of Receiving Stolen Property Intent\xe2\x80\x9d. Change\nthis example so that Chip is not a dealer and is offered the iPod for one hundred dollars, which is fairly close to its\nactual value. Chip purchases the iPod from Heather and thereafter drives home. When he gets home, he begins to\nopen the box and notices the message stating that the iPod is the property of Eugene Schumaker. Chip thinks about\nit for a minute, continues to open the box, and then retains the iPod for the next six months. If Chip is in a state\nthat defines the criminal act element for receiving stolen property as retains, then Chip most likely committed\nthe criminal act with the appropriate criminal intent (knowledge that the property is stolen) and may be subject to\nprosecution for and conviction of this offense.\n\n\x0c408 Criminal Law\n\nReceiving Stolen Property Attendant Circumstances\nThe property must be stolen for this crime, so the prosecution must prove the attendant circumstances that the\nproperty belongs to another and lack of victim consent.\n\nReceiving Stolen Property Causation\nThe criminal act must be the factual and legal cause of receiving stolen property harm, which is defined in\nSection 11 \xe2\x80\x9cReceiving Stolen Property Harm\xe2\x80\x9d.\n\nReceiving Stolen Property Harm\nThe defendant must buy, receive, retain, sell, or dispose of stolen property for the completed crime of receiving\nstolen property in most jurisdictions (Ala. Code \xc2\xa7 13A-8-16, 2011). If the defendant does not actually gain or\ntransfer control of the property, only attempted receiving stolen property can be charged.\nFigure 11.6 Diagram of Defenses to Receiving Stolen Property\n\n\x0c11.2 Extortion, Robbery, and Receiving Stolen Property 409\n\nReceiving Stolen Property Grading\nReceiving stolen property is graded as a felony-misdemeanor (Cal. Penal Code \xc2\xa7 496, 2011) or as a misdemeanor\nif the stolen property is of low value and a felony if the stolen property is of high value (Ga. Code \xc2\xa7 16-8-12,\n2011).\nFigure 11.7 Diagram of Crimes Involving Theft\n\n\x0c410 Criminal Law\n\n\x0c11.2 Extortion, Robbery, and Receiving Stolen Property 411\n\nKey Takeaways\n\xe2\x80\xa2\n\nThe criminal act element required for extortion is typically a theft of property accomplished by a threat to\ncause future harm to the victim.\n\n\xe2\x80\xa2\n\nThe criminal intent element required for extortion is typically the specific intent or purposely to\nunlawfully deprive the victim of property permanently. However, in some jurisdictions, it is the general\nintent or knowingly to perform the criminal act.\n\n\xe2\x80\xa2\n\nIn many jurisdictions, it is an affirmative defense to extortion that the property taken by threat to expose a\nsecret or accuse anyone of a criminal offense is taken honestly, as compensation for property, or as\nrestitution or indemnification for harm done by the secret or crime.\n\n\xe2\x80\xa2\n\nThe attendant circumstances of extortion are that the property belongs to another and that the victim\nconsents to transferring the property to the defendant based on fear inspired by the defendant\xe2\x80\x99s threat.\n\n\xe2\x80\xa2\n\nThe harm element required for extortion is that the defendant obtains the property of another.\n\n\xe2\x80\xa2\n\nExtortion is graded as a felony in most jurisdictions.\n\n\xe2\x80\xa2\n\nRobbery requires a taking accomplished by force or threat of imminent force. Extortion requires a taking\nby threat of future harm that is not necessarily force, and larceny generally requires a taking by stealth or a\nfalse representation of fact. Robbery also requires the attendant circumstance that the property be taken from\nthe victim\xe2\x80\x99s person or presence and is generally graded more severely than larceny or extortion.\n\n\xe2\x80\xa2\n\nRobbery is typically graded as a serious felony, which is a strike in jurisdictions that have three strikes\nstatutes, and a predicate felony for first-degree felony murder.\n\n\xe2\x80\xa2\n\nThe criminal act element required for receiving stolen property is typically buying-receiving, retaining,\nand selling-disposing of stolen personal property.\n\n\xe2\x80\xa2\n\nThe defendant must have the intent to commit the criminal act of receiving stolen property, which could\nbe specific intent or purposely, general intent or knowingly, recklessly, or negligently to either buy-receive\nor sell-dispose of stolen personal property, depending on the jurisdiction. If \xe2\x80\x9cretain\xe2\x80\x9d is the criminal act\nelement specified in the receiving stolen property statute, a defendant who obtains property without\nknowledge that it is stolen commits the offense if he or she thereafter keeps property after discovering that it\nis stolen. The defendant must also have the specific intent or purposeful desire to deprive the victim of the\nproperty permanently in some jurisdictions.\n\n\xe2\x80\xa2\n\nA failure of proof or affirmative defense to receiving stolen property in some jurisdictions is that the\ndefendant received and retained the stolen property with the intent to return it to the true owner.\n\n\xe2\x80\xa2\n\nThe attendant circumstances for receiving stolen property are that the property belongs to another and\nlack of victim consent. The harm element of receiving stolen property is that the defendant buy-receive,\nretain, or sell-dispose of stolen personal property.\n\n\xe2\x80\xa2\n\nReceiving stolen property is graded as a felony-misdemeanor or a misdemeanor if the stolen property is\nof low value and a felony if the stolen property is of high value.\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nReview the example given in Section 11 \xe2\x80\x9cExample of a Case Lacking the Attendant Circumstance of\nVictim Reliance Required for False Pretenses\xe2\x80\x9d with Jeremy and Chuck. In this example, Chuck shows\nJeremy a video he made of Jeremy reading a magazine instead of tuning up Chuck\xe2\x80\x99s taxi. Chuck thereafter\n\n\x0c412 Criminal Law\n\nthreatens to show this video to the district attorney if Jeremy does not pay him two hundred dollars. Has\nChuck committed a crime in this scenario? If your answer is yes, which crime?\n2.\n\nRead State v. Robertson, 531 S. E. 2d 490 (2000). In Robertson, the Court of Appeals of North Carolina\nreversed the defendant\xe2\x80\x99s conviction for robbery of the victim\xe2\x80\x99s purse. What was the basis of the court\xe2\x80\x99s\nreversal of conviction? The case is available at this link: http://scholar.google.com/\nscholar_case?case=10266690205116389671&q=\nrobbery+%22purse+snatching%22&hl=en&as_sdt=2,5&as_ylo=2000.\n\n3.\n\nRead People v. Pratt, 656 N.W.2d 866 (2002). In Pratt, the defendant was convicted of receiving stolen\nproperty for taking and concealing his girlfriend\xe2\x80\x99s vehicle. The defendant appealed, claiming that there was\nno evidence to indicate that he intended to permanently deprive his girlfriend of the vehicle, and thus it was\nnot \xe2\x80\x9cstolen.\xe2\x80\x9d Did the Court of Appeals of Michigan uphold the defendant\xe2\x80\x99s conviction? Why or why not?\nThe case is available at this link: http://scholar.google.com/scholar_case?case=9260508991670862336&q=\nactual+knowledge+%22receiving+stolen+property%22&hl=en&as_sdt=2,5&as_ylo=2000.\n\nReferences\nAla. Code \xc2\xa7 13A-8-16, accessed March 12, 2011, http://law.onecle.com/alabama/criminal-code/13A-8-16.html.\nAla. Code \xc2\xa7 13A-8-43, accessed March 18, 2011, http://law.onecle.com/alabama/criminal-code/13A-8-43.html.\nAriz. Rev. Stat. \xc2\xa7 13-1804, http://law.onecle.com/arizona/criminal-code/13-1804.html.\nCal. Penal Code \xc2\xa7 189, accessed March 19, 2011, http://law.onecle.com/california/penal/189.html.\nCal. Penal Code \xc2\xa7 211, accessed March 19, 2011, http://codes.lp.findlaw.com/cacode/PEN/3/1/8/4/s211.\nCal. Penal Code \xc2\xa7 496, accessed March 12, 2011, http://law.onecle.com/california/penal/496.html.\nCal. Penal Code \xc2\xa7 1192.7, accessed March 19, 2011, http://law.onecle.com/california/penal/1192.7.html.\nConnecticut Criminal Jury Instructions \xc2\xa7\xc2\xa753a-119(5) and 53a-122(a) (1), accessed March 12, 2011,\nhttp://www.jud.ct.gov/ji/criminal/part9/9.1-11.htm.\nConnecticut Criminal Jury Instructions \xc2\xa7\xc2\xa753a-119(8) and 53a-122 through 53a-125b, accessed March 13, 2011,\nhttp://www.jud.ct.gov/ji/criminal/part9/9.1-15.htm.\nFla. Stat. Ann. \xc2\xa7 812.019, accessed March 12, 2011, http://law.onecle.com/florida/crimes/812.019.html.\nFla. Stat. Ann. \xc2\xa7 812.13, accessed March 19, 2011, http://law.onecle.com/florida/crimes/812.13.html.\nGa. Code \xc2\xa7 16-8-7, accessed March 12, 2011, http://law.onecle.com/georgia/16/16-8-7.html.\nHawaii Criminal Jury Instructions No. 10.00, 10.20, accessed March 13, 2011, http://www.courts.state.hi.us/\ndocs/docs4/crimjuryinstruct.pdf.\nJones v. State, 652 So. 2d 346 (1995), accessed March 19, 2011, http://scholar.google.com/\nscholar_case?case=11856873917512077763&q=\nrobbery+%22from+the+victim%27s+person%22&hl=en&as_sdt=2,5&as_ylo=2000.\nK.S.A. \xc2\xa7 21-3428, accessed March 18, 2011, http://kansasstatutes.lesterama.org/Chapter_21/Article_34/\n21-3428.html.\nGa. Code \xc2\xa7 16-8-12, accessed March 13, 2011, http://law.onecle.com/georgia/16/16-8-12.html.\nGa. Code \xc2\xa7 16-8-16, accessed March 11, 2011, http://law.onecle.com/georgia/16/16-8-16.html.\nInd. Code \xc2\xa7 35-42-5-1, accessed March 18, 2011, http://law.onecle.com/indiana/35/35-42-5-1.html.\nMass. Gen. Laws ch. 266 \xc2\xa7 60, http://law.onecle.com/massachusetts/266/60.html.\n\n\x0c11.2 Extortion, Robbery, and Receiving Stolen Property 413\n\nMetheny v. State, 755 A.2d 1088 (2000), accessed March 19, 2011, http://scholar.google.com/\nscholar_case?case=10315203348655203542&q= robbery+%22deprive+permanently%22&hl=en&as_sdt=2,5.\nOklahoma Uniform Jury Instructions No. CR 4-141, accessed March 19, 2011, http://www.okcca.net/online/\noujis/oujisrvr.jsp?o=248.\nOklahoma Uniform Jury Instructions No. CR 5-34, accessed March 12, 2011, http://www.okcca.net/online/\noujis/oujisrvr.jsp?oc=OUJI-CR%205-34.\nOr. Rev. Stat. \xc2\xa7 164.075, accessed March 12, 2011, http://law.onecle.com/oregon/164-offenses-againstproperty/164.075.html.\nS.W. v. State, 513 So. 2d 1088 (1987), accessed March 18, 2011, http://scholar.google.com/\nscholar_case?case=8956843531832075141&q= robbery+%22slight+force%22&hl=en&as_sdt=2,5.\nState v. Handburgh, 830 P.2d 641 (1992), accessed March 18, 2011, http://scholar.google.com/\nscholar_case?case=2186457002998894202&q= State+v.+Handburgh&hl=en&as_sdt=2,5.\nTex. Penal Code \xc2\xa7 29.03, accessed March 12, 2011, http://law.onecle.com/texas/penal/29.03.00.html.\nWilliams v. State, 91 S.W. 3d 54 (2002), accessed March 19, 2011, http://scholar.google.com/\nscholar_case?case=9518129765374420507&q=\nrobbery+%22transfer+of+property%22&hl=en&as_sdt=2,5&as_ylo=2000.\n\n\x0c11.3 Crimes That Invade or Damage Property\n\nLearning Objectives\n1.\n\nDefine the criminal act element required for burglary.\n\n2.\n\nDefine the criminal intent element required for burglary.\n\n3.\n\nDefine the attendant circumstances required for burglary.\n\n4.\n\nAnalyze burglary grading.\n\n5.\n\nDefine the elements of criminal trespass, and analyze criminal trespass grading.\n\n6.\n\nDefine the criminal act element required for arson.\n\n7.\n\nDefine the criminal intent element required for arson.\n\n8.\n\nDefine the attendant circumstances required for arson.\n\n9.\n\nDefine the harm element required for arson.\n\n10.\n\nAnalyze arson grading.\n\n11.\n\nDefine the elements of criminal mischief, and analyze criminal mischief grading.\n\nBurglary\nAlthough burglary is often associated with theft, it is actually an enhanced form of trespassing. At early common\nlaw, burglary was the invasion of a man\xe2\x80\x99s castle at nighttime, with a sinister purpose. Modern jurisdictions have\ndone away with the common-law attendant circumstances and criminalize the unlawful entry into almost any\nstructure or vehicle, at any time of day. Burglary has the elements of criminal act, criminal intent, and attendant\ncircumstances, as is explored in Section 11.3.1 \xe2\x80\x9cBurglary\xe2\x80\x9d.\n\nBurglary Act\nThe criminal act element required for burglary varies, depending on the jurisdiction. Many jurisdictions require\nbreaking and entering into the area described in the burglary statute (Mass. Gen. Laws ch. 266 \xc2\xa7 14, 2011). Some\njurisdictions and the Model Penal Code only require entering (Model Penal Code \xc2\xa7 221.1). Other jurisdictions\ninclude remaining in the criminal act element (Fla. Stat. Ann. \xc2\xa7 810.02(b)).\nWhen criminal breaking is required, generally any physical force used to enter the burglarized area is\nsufficient\xe2\x80\x94even pushing open a closed door (Commonwealth v. Hallums, 2011). Entry is generally partial or\ncomplete intrusion of either the defendant, the defendant\xe2\x80\x99s body part, or a tool or instrument (People v. Nible,\n2011). In some jurisdictions, the entry must be unauthorized (State v. Hall, 2011), while in others, it could be\n414\n\n\x0c11.3 Crimes That Invade or Damage Property 415\n\nlawful (People v. Nunley, 2011). The Model Penal Code makes an exception for \xe2\x80\x9cpremises\xe2\x80\xa6open to the public\xe2\x80\x9d\nor when the defendant is \xe2\x80\x9clicensed or privileged to enter\xe2\x80\x9d (Model Penal Code \xc2\xa7 221.1(1)). Remaining means that\nthe defendant lingers in the burglarized area after an initial lawful or unlawful entry (State v. Allen, 2011).\n\nExample of Burglary Act\nJed uses a burglar tool to remove the window screen of a residence. The window is open, so once Jed removes the\nscreen, he places both hands on the sill, and begins to launch himself upward. The occupant of the residence, who\nwas watching Jed from inside, slams the window down on Jed\xe2\x80\x99s hands. Jed has probably committed the criminal\nact element required for burglary in many jurisdictions. When Jed removed the window screen, he committed a\nbreaking. When Jed placed his hands on the windowsill, his fingers intruded into the residence, which satisfies\nthe entry requirement. Thus Jed may be subject to a prosecution for burglary rather than attempted burglary, even\nthough he never actually damaged or broke the barrier of the residence or managed to gain complete access to the\ninterior.\n\nBurglary Intent\nDepending on the jurisdiction, the criminal intent element required for burglary is typically the general intent\nor knowingly to commit the criminal act, with the specific intent or purposely to commit a felony (Mass. Gen.\nLaws ch. 266 \xc2\xa7 14, 2011), any crime (Connecticut Criminal Jury Instructions \xc2\xa753a-102, 2011), or a felony, grand,\nor petty theft once inside the burglarized area (Cal. Penal Code \xc2\xa7 459, 2011). The Model Penal Code describes the\ncriminal intent element as \xe2\x80\x9cpurpose to commit a crime therein\xe2\x80\x9d (Model Penal Code \xc2\xa7 221.1(1)).\n\nExample of a Case Lacking Burglary Intent\nHans dares Christian to break into a house in their neighborhood that is reputed to be \xe2\x80\x9chaunted.\xe2\x80\x9d Christian goes\nup to the front door of the house, shoves it open, steps inside the front hallway, and then hurriedly dashes back\noutside. Christian probably does not have the criminal intent element required for burglary in this scenario.\nAlthough Christian committed the criminal act of breaking and entering, Christian did not have the intent to\ncommit a crime once inside. Christian\xe2\x80\x99s conduct is probably criminal, but it is most likely a criminal trespass,\nnot burglary. Criminal trespass is discussed in Section 11.3.2 \xe2\x80\x9cCriminal Trespass\xe2\x80\x9d.\n\nBurglary Attendant Circumstances\nDepending on the jurisdiction, burglary often includes the attendant circumstance that the area entered is a\nstructure, building, or vehicle belonging to another (Oklahoma Uniform Jury Instructions No. CR 5-13, 2011).\nHowever, modern jurisdictions have eliminated the requirement that the property belong to another (Cal. Penal\nCode \xc2\xa7 459, 2011) and prohibit burglarizing property owned by the defendant, such as a landlord burglarizing a\n\n\x0c416 Criminal Law\n\ntenant\xe2\x80\x99s apartment. Some jurisdictions require a structure or building to be occupied (Iowa Code \xc2\xa7 713.1, 2011),\nor require it to be a dwelling (Connecticut Criminal Jury Instructions \xc2\xa753a-102, 2011), and require a vehicle to\nbe locked (Cal. Penal Code \xc2\xa7 459, 2011). A few jurisdictions also retain the common-law attendant circumstance\nthat the burglary take place at nighttime (Mass. Gen. Laws ch. 266 \xc2\xa7 15, 2011).\nStructure or building generally includes a house, room, apartment, shop, barn, or even a tent (Cal. Penal Code\n\xc2\xa7 459, 2011). The Model Penal Code expressly excludes abandoned structures or buildings (Model Penal Code\n\xc2\xa7 221.1(1)). A dwelling is a building used for lodging at night (Connecticut Criminal Jury Instructions \xc2\xa7 53a-102,\n2011). Occupied means that the structure or building can be used for business or for lodging at night and does\nnot necessarily require the actual presence of a person or victim when the criminal act takes place (Iowa Code \xc2\xa7\n702.12). Nighttime means the time after sunset and before sunrise when it is too dark to clearly see a defendant\xe2\x80\x99s\nface (State v. Reavis, 2011).\n\nExample of Burglary Attendant Circumstances\nSusan breaks down a door and steps inside a building with the intent to commit arson, a felony, once inside. If the\nbuilding is an empty child\xe2\x80\x99s tiny plastic playhouse, the attendant circumstance that the structure be occupied or a\ndwelling is lacking. If it is twelve noon, the attendant circumstance that the criminal act takes place at nighttime\nis lacking. If it is pitch black outside and 10 p.m. and the building is Susan\xe2\x80\x99s ex-boyfriend\xe2\x80\x99s residence, then Susan\nhas most likely committed burglary and may be subject to prosecution for and conviction of this offense.\nFigure 11.8 Diagram of Defenses to Burglary\n\n\x0c11.3 Crimes That Invade or Damage Property 417\n\nBurglary Grading\nBurglary is typically divided into degrees (Iowa Code \xc2\xa7\xc2\xa7 713.3, 713.5, 713.6A, 2011). First-degree burglary is\ngenerally a serious felony that can serve as the predicate felony for first-degree felony murder (Cal. Penal Code \xc2\xa7\n189, 2011) and a strike in states that have three strikes statutes (Cal. Penal Code \xc2\xa7 1192.7, 2011). Factors that can\nelevate burglary grading are the use or possession of a weapon, the entry into a residence, dwelling, or building\nwhere people are present, the commission of burglary at nighttime, or the infliction of injury or death (Mass. Gen.\nLaws ch. 266 \xc2\xa7 14, 2011). Second- and third-degree burglary generally are still felonies, although less serious\nthan first-degree burglary (Ala. Code \xc2\xa7 13A-7-7, 2011). The Model Penal Code grades burglary as a felony of the\nsecond degree if perpetrated in the dwelling of another at night, or if the actor purposely, knowingly, or recklessly\ninflicts or attempts to inflict bodily injury or is armed with explosives or a deadly weapon. Otherwise, the Model\nPenal Code grades burglary as a felony of the third degree (Model Penal Code \xc2\xa7 221.1(2)).\nKeep in mind that a defendant can be prosecuted for burglary even if the felony or crime intended after entry\nnever takes place. In addition, if the defendant actually commits the felony or crime after entry, the defendant\ncan be prosecuted for both burglary and the completed crime without violating the protection against double\njeopardy in the Fifth Amendment to the federal Constitution. The Model Penal Code states that a \xe2\x80\x9cperson may\nnot be convicted both for burglary and for the offense which it was his purpose to commit after the burglarious\nentry\xe2\x80\xa6unless the additional offense constitutes a felony of the first or second degree\xe2\x80\x9d (Model Penal Code\n\xc2\xa7 221.1(3)).\n\nCriminal Trespass\nAs stated previously, criminal trespass is generally charged when one or more of the attendant circumstances of\nburglary are lacking or when the criminal intent is less heinous. Typically, criminal trespass is an unauthorized\n(attendant circumstance) entry or remaining (criminal act) into a building, occupied structure, or place as to\nwhich notice against trespassing is given, owned by another (attendant circumstance), with general intent or\nknowingly that the entry was unauthorized (criminal intent) (18 Pa. C.S. \xc2\xa7 3503, 2011). The Model Penal Code\nstates that it is criminal trespass when the defendant \xe2\x80\x9cknowing that he is not licensed or privileged to do so\xe2\x80\xa6enters\nor surreptitiously remains in any building or occupied structure\xe2\x80\xa6or any place as to which notice against trespass\nis given\xe2\x80\x9d (Model Penal Code \xc2\xa7 221.2). Criminal trespass is generally graded as a less serious felony than burglary\nor is graded as a misdemeanor if the trespass is into a place, rather than a building or occupied structure (18 Pa.\nC.S. \xc2\xa7 3503, 2011). The Model Penal Code grades criminal trespass as a misdemeanor if it is committed in a\ndwelling at night; otherwise, it is graded as a petty misdemeanor or a violation (Model Penal Code \xc2\xa7 221.2).\n\nArson\nArson is one of the most destructive crimes in the United States, costing billions of dollars per year in lost or\ndamaged homes, businesses, and real property. Many jurisdictions punish arson as a high-level felony that could\nmerit a punishment of life in prison and mandatory registration requirements similar to serious sex offenses (730\nILCS 148 \xc2\xa7 10, 2011).\n\n\x0c418 Criminal Law\n\nAt early common law, arson was primarily a crime against habitation, rather than a crime against property.\nThe elements of arson at common law were the malicious or intentional burning of a dwelling owned by another.\nModern statutes criminalize burning almost anything, including the defendant\xe2\x80\x99s own property in many instances.\nArson is a crime that has the elements of criminal act, criminal intent, attendant circumstances, causation, and\nharm, as is explored in Section 11.3.3 \xe2\x80\x9cArson\xe2\x80\x9d.\n\nArson Act\nThe criminal act element required for arson is typically setting fire to or burning real or personal property\nspecified in the arson statute (Cal. Penal Code \xc2\xa7 451, 2011). This could include buildings, structures, land, and\nvehicles (Tex. Penal Code \xc2\xa7 28.02, 2011). Some states define the criminal act element as \xe2\x80\x9cdamaging\xe2\x80\x9d the specified\nproperty by fire or explosives (Ga. Code tit. 16 \xc2\xa7 16-7-60, 2011). The Model Penal Code describes the criminal\nact element as starting a fire or causing an explosion (Model Penal Code \xc2\xa7 220.1(1). The type or value of the\nproperty the defendant burns or damages can enhance grading. Grading is discussed shortly.\n\nExample of Arson Act\nClark and Manny are bored and decide to light a fire in the woods near their houses. The grass is damp from\na recent rain, so the fire does not spread and burns only a small circle of grass. Clark and Manny give up and\nwalk home. Clark and Manny have probably committed the criminal act element required for arson in most\njurisdictions. Although a large destructive fire was not set by Clark and Manny, the two did burn or damage real\nproperty and start a fire, which satisfies the criminal act requirement in most jurisdictions and under the Model\nPenal Code.\n\nArson Intent\nThe criminal intent element required for arson in many jurisdictions is the general intent or knowingly to commit\nthe criminal act (Ga. Code tit. 16 \xc2\xa7 16-7-60). Thus the defendant only needs the intent to burn or damage property\nspecified in the arson statute; the defendant does not have to intend to burn a specific structure or personal\nproperty, even if that is the end result (People v. Atkins, 2011). The Model Penal Code requires starting a fire or\ncausing an explosion \xe2\x80\x9cwith the purpose of destroying a building or occupied structure of another; or destroying or\ndamaging any property\xe2\x80\xa6to collect insurance for such loss\xe2\x80\x9d (Model Penal Code \xc2\xa7 220.1(1)).\n\nExample of Arson Intent\nReview the example with Clark and Manny in Section 11 \xe2\x80\x9cExample of Arson Act\xe2\x80\x9d. Change this example so that\nClark and Manny leave the area and a tiny spark from the fire they set begins to ignite. After a few hours, a large\nand powerful fire starts and burns thousands of acres in the forest. Clark and Manny most likely have the criminal\n\n\x0c11.3 Crimes That Invade or Damage Property 419\n\nintent element required for arson in many jurisdictions. Although Clark and Manny did not necessarily want to\nburn thousands of acres of forest land, they did intentionally or knowingly start a fire in the forest, which is all\nthat many modern arson statutes require. Thus even though Clark and Manny did not intend the end result, Clark\nand Manny are probably subject to prosecution for and conviction of arson for their conduct.\n\nArson Attendant Circumstances\nIn most jurisdictions, arson must burn a specific type of property. Although this can be interpreted as an attendant\ncircumstance, it is also a function of grading. Thus first-degree arson may focus on arson of a dwelling (Vt. Stat.\nAnn. tit. 13 \xc2\xa7 502, 2011), while second-degree arson focuses on arson of other property (Vt. Stat. Ann. tit 13 \xc2\xa7\n503, 2011). Many jurisdictions do not require the attendant circumstance that property \xe2\x80\x9cbelongs to another,\xe2\x80\x9d and\ntherefore the defendant can burn his or her own property and still be guilty of arson. However, the defendant must\ngenerally burn his or her property with the specific intent or purposely to defraud for the burning to constitute\narson (Ga. Code tit. 16 \xc2\xa7 16-7-62, 2011). The Model Penal Code requires \xe2\x80\x9cdestroying or damaging any property,\nwhether his own or another\xe2\x80\x99s, to collect insurance for such loss\xe2\x80\x9d (Model Penal Code \xc2\xa7 220.1(b)).\n\nExample of a Case Lacking Arson Intent for Burning the Defendant\xe2\x80\x99s\nProperty\nTim decides he wants to get rid of all the reminders of his ex-girlfriend. Tim piles all the photographs, gifts, and\nclothing items that are connected to his relationship with his ex into his fireplace and burns them. In this scenario,\nTim probably does not have the criminal intent element required for arson in most jurisdictions. Although Tim\nburned or damaged property, the property belongs to Tim, not another. Thus Tim must burn the property with the\nspecific intent or purposely to defraud\xe2\x80\x94most likely an insurance carrier. Tim burned his own property with only\ngeneral intent or knowingly, so Tim may not be charged with and convicted of arson in most jurisdictions.\n\nArson Causation\nThe criminal act must be the factual and legal cause of arson harm, which Section 11 \xe2\x80\x9cExample of Arson\nCausation\xe2\x80\x9d defines. As stated previously, the defendant does not have to intend to burn a specific structure or\npersonal property, even if that is the end result in many jurisdictions. However, there must be a causation analysis\nin every arson case because arson is a crime that requires a bad result or harm. Thus the arson harm must be\nreasonably foreseeable at the time the defendant commits the criminal act with the accompanying criminal intent.\n\nExample of Arson Causation\nReview the example with Clark and Manny in Section 11 \xe2\x80\x9cExample of Arson Intent\xe2\x80\x9d. In this example, Clark and\n\n\x0c420 Criminal Law\n\nManny try to light a fire in the forest, but the grass is too damp, so they give up and leave the area. Hours later, a\nspark from their fire ignites, burning thousands of acres. Clark and Manny could be the factual and legal cause\nof this harm in many jurisdictions. Even though the grass was damp and difficult to burn, a trier of fact could\nfind that it is reasonably foreseeable when lighting a fire in the forest that the fire could turn into a massive and\ndestructive blaze. Thus Clark and Manny\xe2\x80\x99s act accompanied by the general intent or knowingly to burn caused\nsignificant harm, and Clark and Manny may be subject to prosecution for arson in this case.\n\nArson Harm\nThe harm element required for arson is burning, charring, or damage to the property specified in the arson statute.\nDamage could be damage to even a small part (California Criminal Jury Instructions No. 1515, 2011), and in\nthe most extreme cases, even smoke damage without burning or charring is sufficient (Ursulita v. State, 2011).\nThe Model Penal Code only requires starting a fire or causing an explosion with the appropriate criminal intent,\nregardless of whether damage to real or personal property ensues (Model Penal Code \xc2\xa7 220.1(1)). Some states\nfollow the Model Penal Code approach (Tex. Penal Code \xc2\xa7 28.02, 2011).\n\nExample of Arson Harm\nReview the example with Clark and Manny in Section 11 \xe2\x80\x9cExample of Arson Act\xe2\x80\x9d. In this example, Clark and\nManny started a fire in the woods that burned a small circle of dead grass. This damage is probably sufficient to\nconstitute the harm for arson in most jurisdictions. Although the value of the damaged forest land is not excessive,\nexcessive damage is not typically a requirement under modern arson statutes\xe2\x80\x94any damage is enough. Thus Clark\nand Manny may be subject to a prosecution for and conviction of this offense in most jurisdictions.\nFigure 11.9 Diagram of Defenses to Arson\n\n\x0c11.3 Crimes That Invade or Damage Property 421\n\nArson Grading\nArson is typically divided into degrees (Ga. Code tit. 16 \xc2\xa7 16-7-60, 2011), or simple and aggravated (Cal. Penal\nCode \xc2\xa7 451.5, 2011). Factors that can elevate grading are the burning or damage of another\xe2\x80\x99s dwelling (Ga. Code\ntit. 16 \xc2\xa7 16-7-60, 2011), bodily injury or death (Connecticut Criminal Jury Instructions \xc2\xa7 53a-111, 2011), extensive\nproperty damage, or damage to property of high value (Cal. Penal Code \xc2\xa7 451.5, 2011). As stated previously, arson\nis a serious felony that can result in a sentence of life in prison and mandatory registration requirements similar to\nserious sex offenses (730 ILCS \xc2\xa7 10, 2011). Arson is also generally a strike in states that have three strikes statutes\n(Cal. Penal Code \xc2\xa7 1192.7, 2011) and a predicate felony for first-degree felony murder (Cal. Penal Code \xc2\xa7 189,\n2010). Many jurisdictions grade even simple arson or second or third-degree arson as a felony (Cal. Penal Code \xc2\xa7\n451, 2011). The Model Penal Code grades arson as a felony of the second degree (Model Penal Code \xc2\xa7 220.1).\n\nCriminal Mischief\nCriminal mischief prohibits damaging or destroying property, tampering with property, or deception or threat that\nleads to a loss of property. Although criminal mischief may be a felony in many jurisdictions, it is generally a less\nserious felony than arson, either because the defendant inflicts damage to property in a safer manner or because\nthe criminal intent is less heinous. The criminal act element required for criminal mischief is damaging (Ala.\nCode \xc2\xa7 13A-7-21, 2011), destroying, interfering with (Or. Rev. Stat. \xc2\xa7 164.365, 2011), or tampering with (Alaska\nStat. \xc2\xa7 11.46.480, 2011) property. The criminal intent element required for criminal mischief varies, depending on\nthe jurisdiction and the degree of the offense. The criminal intent could be specific intent or purposely, general\nintent or knowingly, reckless, or negligent (18 Pa.C.S. \xc2\xa7 3304, 2011). The attendant circumstances required\nfor criminal mischief are typically committing the criminal act against the property of another (or property that\nis government owned) without victim consent or with no right or authorization (Alaska Stat. \xc2\xa7 11.46.475, 2011).\nThe harm element required for criminal mischief is damage, destruction, or interference to property by fire,\nexplosive, flood, or some other method, or interference with electricity, water, oil or gas (Alaska Stat. \xc2\xa7 11.46.475,\n2011), or loss of property or money by deception such as causing the victim to purchase a worthless product (18\nPa.C.S. \xc2\xa7 3304, 2011). As stated previously, criminal mischief is often a less serious felony than arson and could\nalso be graded as a gross misdemeanor or misdemeanor (18 Pa.C.S. \xc2\xa7 3304, 2011). Factors that could elevate\ngrading of criminal mischief are the extent of the property damage and the severity of the defendant\xe2\x80\x99s criminal\nintent (18 Pa.C.S. \xc2\xa7 3304, 2011). The Model Penal Code criminalizes criminal mischief when the defendant\npurposely, recklessly, or negligently damages tangible property of another by fire, explosives, or other dangerous\nmeans, purposely or recklessly tampers with tangible property of another so as to endanger person or property,\nor purposely or recklessly causes another to suffer pecuniary loss by deception or threat. The Model Penal Code\ngrades criminal mischief as a felony of the third degree, misdemeanor, petty misdemeanor, or violation, depending\non the extent of the damage or the criminal intent (Model Penal Code \xc2\xa7 220.3).\nFigure 11.10 Diagram of Crimes That Invade or Damage Property\n\n\x0c422 Criminal Law\n\nKey Takeaways\n\xe2\x80\xa2\n\xe2\x80\xa2\n\nThe criminal act element required for burglary is breaking and entering, just entering, or remaining.\nThe criminal intent element required for burglary is typically the general intent or knowingly to commit\nthe criminal act and the specific intent or purposely to commit a felony, any crime, or a felony, petty, or\ngrand theft once inside the burglarized area.\n\n\x0c11.3 Crimes That Invade or Damage Property 423\n\n\xe2\x80\xa2\n\nBurglary generally includes the attendant circumstances that the area entered is a structure, building, or\nvehicle belonging to another, or an occupied building or structure, or a dwelling. Modern jurisdictions have\neliminated the requirement that the property belong to another and prohibit the defendant from burglarizing\nhis or her own property. Some jurisdictions require a vehicle to be locked, and a few jurisdictions require the\nburglary to take place at nighttime.\n\n\xe2\x80\xa2\n\nBurglary is typically graded as a felony that is divided into degrees. First-degree burglary is often a strike\nin jurisdictions that have three strikes statutes and a predicate felony for first-degree felony murder.\n\n\xe2\x80\xa2\n\nTypically, criminal trespass is an unauthorized (attendant circumstance) entry or remaining (criminal act)\ninto a building, occupied structure, or place as to which notice against trespassing is given, owned by\nanother (attendant circumstance) with general intent or knowingly that the entry was unauthorized (criminal\nintent). Criminal trespass is generally graded as a felony, albeit a less serious felony than burglary, or a\nmisdemeanor if the area trespassed is a place rather than an occupied building or structure.\n\n\xe2\x80\xa2\n\nThe criminal act element required for arson is starting a fire, burning, or damaging with fire or explosives\nspecified real or personal property.\n\n\xe2\x80\xa2\n\nThe criminal intent element required for arson is the general intent or knowingly to commit the criminal\nact in many jurisdictions.\n\n\xe2\x80\xa2\n\nArson statutes can specify the attendant circumstance that the defendant burns a specific type of property,\nsuch as a dwelling or other real or personal property. In most jurisdictions, if the defendant burns his or her\nown property, the defendant must act with the specific intent or purposely to defraud, typically an insurance\ncarrier.\n\n\xe2\x80\xa2\n\nThe harm element required for arson is burning, charring, damage, or, in the most extreme cases, smoke\ndamage.\n\n\xe2\x80\xa2\n\nArson is typically graded as a felony that is divided into degrees. First-degree arson is often a strike in\njurisdictions that have three strikes statutes and a predicate felony for first-degree felony murder. Arson\ncould also carry a registration requirement like serious sex offenses.\n\n\xe2\x80\xa2\n\nThe elements of criminal mischief are damaging or destroying property, tampering with property, or\ndeception or threat that leads to a loss of property (criminal act and harm) with specific intent or purposely,\ngeneral intent or knowingly, recklessly, or negligently. Although criminal mischief may be a felony in many\njurisdictions, it is generally a less serious felony than arson and in some jurisdictions it is graded as a gross\nmisdemeanor or misdemeanor.\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nWhy is burglary of a dwelling at nighttime generally graded higher than other burglaries?\n\n2.\n\nRead Butler v. Florida, No. 1D08-0958 (Fla: Dist. Court of Appeals, 2009). In Butler, the defendant\nappealed his convictions for trespass and criminal mischief, based on the trial court\xe2\x80\x99s failure to instruct the\njury on the defense of necessity. The defendant claimed he broke into a residence because he was being\nchased and feared for his safety. Did the Court of Appeal of Florida reverse the defendant\xe2\x80\x99s convictions?\nWhy or why not? The case is available at this link: http://scholar.google.com/\nscholar_case?case=1710354491441564352&q=\nburglary+%22necessity+defense%22&hl=en&as_sdt=2,5&as_ylo=2000.\n\n3.\n\nRead In the Matter of V.V.C., No. 04-07-00166 CV (Tex.: Court of Appeals, 2008). In V.V.C., the Court of\nAppeals of Texas dismissed a minor\xe2\x80\x99s adjudication for arson when he started a fire in the boy\xe2\x80\x99s restroom of\n\n\x0c424 Criminal Law\n\na middle school. What was the basis for the court\xe2\x80\x99s dismissal? The case is available at this link:\nhttp://scholar.google.com/scholar_case?case=1784800980619654964&q=\narson+%22smoke+damage%22&hl=en&as_sdt=2,5&as_ylo=2000.\n\nLaw and Ethics\nWikiLeaks: Should Exposure of Information Be Criminal?\nJulian Assange, famous for his computer hacking skills, is the editor in chief of WikiLeaks, a whistleblower website.\nWikiLeaks has exposed documents and videos detailing the corruption in Kenya, Guantanamo Bay procedures, and the\nAmerican involvement in the Afghan and Iraq wars, portions of which were classified confidential and secret\n(Khatchadourian, R., 2011). The New York Times published some of this information (Savage, C., 2011). Although\nWikiLeaks did not actually \xe2\x80\x9cleak\xe2\x80\x9d classified material (some of it was allegedly passed to WikiLeaks by a low-level US\nArmy intelligence analyst), the US Department of Justice has launched a criminal investigation regarding the release,\nand US prosecutors are reportedly considering charges against Assange (Savage, C., 2011).\n1.\n\nDo you think it is ethical to expose or publish \xe2\x80\x9cleaked\xe2\x80\x9d confidential and secret government information?\n\n2.\n\nWhat is the difficulty in prosecuting a defendant for this type of publication?\n\nCheck your answers using the answer key at the end of the chapter.\n\nWikiLeaks Video\n60 Minutes Interviews Julian Assange\nJulian Assange\xe2\x80\x99s interview with 60 Minutes is shown in the following video:\n" href="http://www.youtube.com/watch?v=qA-hRJnNW9c" class="replaced-iframe" onclick="return\nreplaceIframe(this)" data-url="http://www.youtube.com/watch?v=qA-hRJnNW9c">(click to see video)\n\nReferences\nAla. Code \xc2\xa7 13A-7-21, accessed March 24, 2011, http://law.onecle.com/alabama/criminal-code/13A-7-21.html.\nAla. Code \xc2\xa7 13A-7-7, accessed March 20, 2011, http://law.onecle.com/alabama/criminal-code/13A-7-7.html.\nAlaska Stat. \xc2\xa7 11.46.475, accessed March 24, 2011, http://law.justia.com/codes/alaska/2009/title-11/\nchapter-11-46/article-04/sec-11-46-475.\nAlaska Stat. \xc2\xa7 11.46.480, accessed March 24, 2011, http://law.justia.com/codes/alaska/2009/title-11/\nchapter-11-46/article-04/sec-11-46-480.\nCal. Penal Code \xc2\xa7 1192.7, accessed March 21, 2011, http://law.onecle.com/california/penal/1192.7.html.\nCal. Penal Code \xc2\xa7 189, accessed March 20, 2011, http://law.onecle.com/california/penal/189.html.\nCal. Penal Code \xc2\xa7 451, accessed March 22, 2011, http://law.onecle.com/california/penal/451.html.\nCal. Penal Code \xc2\xa7 451.5, accessed March 21, 2011, http://law.onecle.com/california/penal/451.5.html.\n\n\x0c11.3 Crimes That Invade or Damage Property 425\n\nCal. Penal Code \xc2\xa7 459, accessed March 20, 2011, http://law.onecle.com/california/penal/459.html.\nCalifornia Criminal Jury Instructions No. 1515, accessed March 22, 2011, http://www.justia.com/criminal/docs/\ncalcrim/1500/1515.html.\nCommonwealth v. Hallums, 61 Mass. App. Ct. 50 (2004), accessed March 20, 2011, http://scholar.google.com/\nscholar_case?case=5153605963860010581&q=\nburglary+%22breaking+requirement%22&hl=en&as_sdt=2,5&as_ylo=2000.\nConnecticut Criminal Jury Instructions \xc2\xa7 53a-111, accessed March 22, 2011, http://www.jud.ct.gov/ji/criminal/\npart9/9.3-1.htm.\nConnecticut Criminal Jury Instructions \xc2\xa753a-102, accessed March 20, 2011, http://www.jud.ct.gov/ji/criminal/\npart9/9.2-3.htm.\nFla. Stat. Ann. \xc2\xa7 810.02(b) (2), http://law.justia.com/codes/florida/2010/TitleXLVI/chapter810/810_02.html.\nGa. Code tit. 16 \xc2\xa7 16-7-60, accessed March 21, 2011, http://law.onecle.com/georgia/16/16-7-60.html.\nIowa Code \xc2\xa7 702.12, http://search.legis.state.ia.us/nxt/gateway.dll/ic?f=templates&fn=default.htm.\nIowa\nCode\n\xc2\xa7 713.1,\naccessed\nMarch\n20,\n2011,\nhttp://coolice.legis.state.ia.us/cool-ice/\ndefault.asp?category=billinfo&service=iowacode&ga=83&input=713.\nIowa Code \xc2\xa7\xc2\xa7 713.3, 713.5, 713.6A, accessed March 20, 2011, http://coolice.legis.state.ia.us/cool-ice/\ndefault.asp?category=billinfo&service=iowacode&ga=83&input=713.\nKhatchadourian, R., \xe2\x80\x9cNo Secrets,\xe2\x80\x9d New Yorker website, accessed March 29, 2011, http://www.newyorker.com/\nreporting/2010/06/07/100607fa_fact_khatchadourian?printable=true.\nMass. Gen. Laws ch. 266 \xc2\xa7 14, accessed March 20, 2011, http://law.justia.com/codes/massachusetts/2009/\nPARTIV/TITLEI/CHAPTER266/Section14.html.\nMass. Gen. Laws ch. 266 \xc2\xa7 15, accessed March 20, 2011, http://law.onecle.com/massachusetts/266/15.html.\nOklahoma Uniform Jury Instructions No. CR 5-13, accessed March 20, 2011, http://www.okcca.net/online/\noujis/oujisrvr.jsp?oc=OUJI-CR%205-13.\nOr. Rev. Stat. \xc2\xa7 164.365, accessed March 24, 2011, http://law.onecle.com/oregon/164-offenses-againstproperty/164.365.html.\nPeople v. Atkins, 25 Cal. 4th 76 (2001), accessed March 22, 2011, http://scholar.google.com/\nscholar_case?case=959832986872752180&q= %22mens+rea+for+arson%22&hl=en&as_sdt=2,5.\nPeople v. Nible, 200 Cal. App. 3d 838 (1988), accessed March 20, 2011, http://scholar.google.com/\nscholar_case?case=2854983864809427191&q=\nburglary+%22partial+entry%22&hl=en&as_sdt=2,5&as_ylo=2000.\nPeople v. Nunley, 168 Cal. App. 3d 225 (1985), accessed March 20, 2011, http://scholar.google.com/\nscholar_case?case=13700546275600703774&q=\nburglary+%22shoplifting%22&hl=en&as_sdt=2,5&as_ylo=2000.\nSavage, C., \xe2\x80\x9cU.S. Prosecutors Study WikiLeaks Prosecution,\xe2\x80\x9d New York Times website, accessed March 29,\n2011, http://www.nytimes.com/2010/12/08/world/08leak.html?_r=2&partner=rss&emc=rss.\nState v. Allen, 110 P. 3d 849 (2005), accessed March 20, 2011, http://scholar.google.com/\nscholar_case?case=837948213995751444&q=\nburglary+%22remaining+means%22&hl=en&as_sdt=2,5&as_ylo=2000.\nState v. Hall, 3 P.3d 582 (2000), accessed March 20, 2011, http://scholar.google.com/\nscholar_case?case=14296917791490578337&q=\nburglary+%22shoplifting%22&hl=en&as_sdt=2,5&as_ylo=2000.\nState v. Reavis, 700 S.E.2d 33 (2010), accessed March 20, 2011, http://scholar.google.com/\n\n\x0c426 Criminal Law\n\nscholar_case?case=10817450688281022337&q=\nburglary+%22definition+of+nighttime%22&hl=en&as_sdt=2,5&as_ylo=2000.\nTex. Penal Code \xc2\xa7 28.02, accessed March 22, 2011, http://law.onecle.com/texas/penal/28.02.00.html.\nUrsulita v. State, 706 S.E.2d 123 (2011), accessed March 22, 2011, http://scholar.google.com/\nscholar_case?case=8922319356856476558&q= Ursulita+v.+State&hl=en&as_sdt=2,5&as_ylo=2000.\nVt. Stat. Ann. tit. 13 \xc2\xa7 502, accessed March 22, 2011, http://law.justia.com/codes/vermont/2009/title-13/\nchapter-11/502.\nVt. Stat. Ann. tit. 13 \xc2\xa7 503, accessed March 22, 2011, http://law.justia.com/codes/vermont/2009/title-13/\nchapter-11/503.\n18 Pa. C.S. \xc2\xa7 3503, accessed March 20, 2011, http://law.onecle.com/pennsylvania/crimes-and-offenses/\n00.035.003.000.html.\n18 Pa.C.S. \xc2\xa7 3304, accessed March 24, 2011, http://law.onecle.com/pennsylvania/crimes-and-offenses/\n00.033.004.000.html.\n730 ILCS \xc2\xa7 10, accessed March 21, 2011, http://law.onecle.com/illinois/730ilcs148/10.html.\n730 ILCS 148 \xc2\xa7 10, accessed March 21, 2011, http://law.onecle.com/illinois/730ilcs148/10.html.\n\n\x0c11.4 End-of-Chapter Material\n\nSummary\nCrimes against property include theft, crimes connected to theft, and crimes that invade or damage property. Modern\njurisdictions criminalize several forms of theft under consolidated theft statutes that grade theft primarily on the value of\nthe property stolen. Larceny under a consolidated theft statute in many jurisdictions is the physical taking or gaining\npossession of a victim\xe2\x80\x99s personal property by control and asportation, or a false representation of fact, with the intent to\nkeep the property. Embezzlement under a consolidated theft statute is the conversion of a victim\xe2\x80\x99s real or personal\nproperty entrusted to the defendant. False pretenses under a consolidated theft statute is the permanent transfer of\nownership of real or personal property or services from the victim to the defendant, based on a false representation of\nfact. The theft of property of low value is typically a misdemeanor (petty theft), while the theft of property of high value\n(grand theft) is a felony, felony-misdemeanor, or a gross misdemeanor, depending on the circumstances and the\njurisdiction. Federal mail fraud, a felony, is the knowing use of the mail to perpetrate a scheme to defraud.\nExtortion is the purposeful theft of property by a threat of future harm such as bodily injury or exposure of the\nvictim\xe2\x80\x99s crime or secret that subjects the victim to hatred, contempt, or ridicule. Extortion is typically graded as a felony.\nRobbery is the purposeful theft of property from the victim\xe2\x80\x99s person or presence by force or threat of imminent physical\nharm. Robbery is typically graded as a serious felony. Receiving stolen property is receiving, buying, selling, disposing\nof, or retaining stolen property with either knowledge or awareness that the property is stolen or knowledge or\nawareness of a risk that the property is stolen. Receiving stolen property is typically graded as a felony-misdemeanor or\na misdemeanor if the property is of low value and a felony if the property is of significant value.\nBurglary is either breaking and entering, entering, or remaining on another\xe2\x80\x99s property with the intent to commit a\nfelony, any crime, grand theft, or petty theft once inside. In some jurisdictions, the defendant can burglarize his or her\nown property. Burglary is typically graded as a serious felony. Criminal trespass is a knowing unauthorized entry onto\nthe property of another. Criminal trespass is typically graded as a less serious felony than burglary, or a misdemeanor if\nthe trespass is into a place, rather than an occupied building or structure. Arson is knowingly burning or damaging by\nfire property described in the arson statute. Arson is typically graded as a serious felony. Criminal mischief is damaging,\ndestroying, or interfering with property with specific intent or purposely, general intent or knowingly, recklessly, or\nnegligently, depending on the jurisdiction and the degree of the offense. Criminal mischief is typically graded as a less\nserious felony than arson, a gross misdemeanor, or a misdemeanor.\n\nYou Be the Legal Textbook Author\nRead the statute, and then describe the elements of each of the following crimes. Check your answers using the\nanswer key at the end of the chapter.\n1.\n\nOffenses against computer users: Fla. Stat. Ann. \xc2\xa7 815.06. The statute is available at this link:\nhttp://law.onecle.com/florida/crimes/815.06.html. Identify the criminal act (seven possible), criminal intent,\nattendant circumstance, and harm. How is this crime graded?\n\n2.\n\nIdentity theft: 18 Pa. C.S. \xc2\xa7 4120. The statute is available at this link: http://law.onecle.com/\npennsylvania/crimes-and-offenses/00.041.020.000.html. Identify the criminal act (two possible), criminal\nintent, attendant circumstance, and harm. How is this crime graded?\n\n3.\n\nUnlawful duplication of computer-related material in the first degree: N.Y. Penal Law \xc2\xa7 156.30. The\n\n427\n\n\x0c428 Criminal Law\n\nstatute is available at this link: http://law.onecle.com/new-york/penal/PEN0156.30_156.30.html. Identify the\ncriminal act (three possible), criminal intent, attendant circumstance, and harm. How is this crime\ngraded?\n\nCases of Interest\n\xe2\x80\xa2\n\nPeople v. Beaver, 186 Cal. App. 4th 107 (2010), illustrates the complexity of prosecuting theft under a\nconsolidated theft statute: http://scholar.google.com/scholar_case?case=12194560873043980150&q=\nfalse+pretenses+theft+of+a+service&hl=en&as_sdt=2,5&as_ylo=1999.\n\n\xe2\x80\xa2\n\nState v. Castillo, Docket No. 29, 641 (NM: 2011), discusses the difference between a debit card and credit\ncard for theft: http://scholar.google.com/\nscholar_case?case=8674118418557512209&q=State+v+Castillo+NM&hl=en&as_sdt=2,5&as_ylo=2010.\n\n\xe2\x80\xa2\n\nPeople v. Nowack, 614 N.W.2d 78 (2000), discusses the criminal intent element required for arson:\nhttp://scholar.google.com/scholar_case?case=3668258956679541189&q=\narson+%22specific+intent+crime%22&hl=en&as_sdt=2,5&as_ylo=2000.\n\nArticles of Interest\n\xe2\x80\xa2\n\xe2\x80\xa2\n\nBernie Madoff case: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1661462\nLargest hedge fund insider trading case in US history: http://www.huffingtonpost.com/2011/03/22/rajrajaratnam-jury-hears_n_839281.html\n\n\xe2\x80\xa2\n\nCelebrity burglaries: http://www.nigerianbestforum.com/generaltopics/?p=50094\n\n\xe2\x80\xa2\n\nWildland arson: http://www.springerlink.com/content/h4w5015373m2v200\n\nWebsites of Interest\n\xe2\x80\xa2\n\nInformation on arson: http://www.ncjrs.gov/App/Topics/Topic.aspx?topicid=66\n\n\xe2\x80\xa2\n\nCybercrime: http://www.justice.gov/usao/priority-areas/cyber-crime\n\n\xe2\x80\xa2\n\nUS DOJ identity theft information: http://www.justice.gov/criminal/fraud/websites/idtheft.html\n\nStatistics of Interest\n\xe2\x80\xa2\n\nBurglary: http://bjs.ojp.usdoj.gov/index.cfm?ty=tp&tid=321\n\n\xe2\x80\xa2\n\nIdentity theft: http://bjs.ojp.usdoj.gov/index.cfm?ty=tp&tid=42\n\n\x0c11.4 End-of-Chapter Material 429\n\nAnswers to Exercises\nFrom Section 11.1 \xe2\x80\x9cNonviolent Theft Crimes\xe2\x80\x9d\n1.\n\nLinda has committed larceny because she took personal property belonging to another without consent\nand with what appears to be the intent to keep it permanently. Shoplifting is typically larceny. A bra is not a\nhigh-value item (even in an expensive department store), so Linda\xe2\x80\x99s larceny is probably petty, second-, or\nthird-degree theft under a consolidated theft statute.\n\n2.\n\nEllen has committed larceny because she took personal property belonging to another without consent\nand with what appears to be the intent to keep it permanently. When Ellen put her hand over the Rolex\nwatch, she gained control of it. When she slid it across the counter, this was sufficient asportation of the\nproperty because asportation for larceny can generally be any distance\xe2\x80\x94no matter how slight. The Rolex is\nvalued at ten thousand dollars, so Ellen\xe2\x80\x99s larceny is probably grand or first-degree theft under a consolidated\ntheft statute.\n\n3.\n\nThe Minnesota Supreme Court reversed, holding that the lease deposits were held in trust and belonged to\nthe defendant, not the lessees. The court also held that the prosecution failed to prove a relationship of trust\nand confidence between the defendant and the lessees, which is required in Minnesota for embezzlement\ntheft under the consolidated theft statute.\n\n4.\n\nThe Court of Appeal of California modified the defendant\xe2\x80\x99s conviction under a consolidated theft statute.\nThe court held that the defendant actually committed attempted larceny by trick, not false pretenses,\nbecause he was directed to purchase licensing agreements with the money, which put him in possession of it\nrather than ownership.\n\n5.\n\nThe US Court of Appeals for the Fifth Circuit reversed the defendant\xe2\x80\x99s conviction. The court held that the\ndefendant did not have to use the mails or intend that the mails be used by another to be convicted of federal\nmail fraud. However, because all the mailings involved the defendant\xe2\x80\x99s son, who was acquitted of the arson\nand therefore not involved in a scheme to defraud the insurance company, the defendant\xe2\x80\x99s mail fraud\nconviction had no basis.\n\nAnswers to Exercises\nFrom Section 11.2 \xe2\x80\x9cExtortion, Robbery, and Receiving Stolen Property\xe2\x80\x9d\n1.\n\nChuck has committed the crime of attempted extortion. Although Chuck threatened to expose Jeremy\xe2\x80\x99s\ncrime of false pretenses with the intent to force Jeremy to pay him two hundred dollars, Jeremy did not pay\nChuck. Thus the harm element of extortion is lacking, and Chuck\xe2\x80\x99s conduct is only attempted extortion.\n\n2.\n\nThe Court of Appeals of North Carolina reversed the defendant\xe2\x80\x99s robbery conviction because he snatched\nthe purse, using only the force required to take it from the victim\xe2\x80\x99s possession. Thus the crime was most\nlikely larceny rather than robbery.\n\n3.\n\nThe Court of Appeals of Michigan upheld the defendant\xe2\x80\x99s conviction. Although the court conceded that a\ntheft by larceny requires the intent to permanently deprive the owner of personal property, the court held\nthat the term \xe2\x80\x9cstolen\xe2\x80\x9d in the receiving stolen property statute encompasses more than larceny theft, and thus\nit includes any taking of personal property without permission of the owner.\n\n\x0c430 Criminal Law\n\nAnswers to Exercises\nFrom Section 11.3 \xe2\x80\x9cCrimes That Invade or Damage Property\xe2\x80\x9d\n1.\n\nBurglary of a dwelling is graded higher than burglary of a structure or vehicle because it is likely that the\nowners of a dwelling might be inside and might employ protective actions that could lead to injury or death.\nBurglary at nighttime enhances the probability that the dwelling owners will be home and makes it more\ndifficult to identify the defendant. This could also enhance the probability of injury or death and reduce the\nchances of conviction, which does not serve deterrence.\n\n2.\n\nThe Court of Appeal of Florida held that the evidence was insufficient to warrant the necessity jury\ninstruction. Although a neighbor to the burglarized residence testified that the defendant rang her doorbell\nand asked to come in while looking around in a scared manner, and a guest at a party testified that the\ndefendant was slapped by an individual claiming the defendant owed him money, the court held that this\nevidence did not establish the defendant\xe2\x80\x99s reasonable belief that he was at risk for immediate serious bodily\ninjury.\n\n3.\n\nThe Court of Appeals of Texas dismissed the minor\xe2\x80\x99s judgment of adjudication because the middle school\nwas not located in \xe2\x80\x9cthe incorporated city limits,\xe2\x80\x9d as was alleged in the State\xe2\x80\x99s petition for adjudication.\n\nAnswers to Law and Ethics Questions\n1.\n\nWhether it is ethical to publish classified information depends on the content of the published material,\nand requires a balancing of the public\xe2\x80\x99s right to know and the safety risk posed by the publication. If the\npublication exposes government corruption or another topic that could lead to government reform and the\nrisk of harm is minimal, then many would feel the exposure is of high value and ethical.\n\n2.\n\nThe First Amendment complicates the prosecution of WikiLeaks for simply publishing information\nprovided by an informant. Without evidence that WikiLeaks participated or assisted the government\ninformant, a prosecution of WikiLeaks is a prosecution for speech, and this requires a compelling\ngovernment interest and a narrowly tailored statute. Of course the government has a strong interest in\nprotecting those involved in national defense; however, government speech has traditionally been accorded\nthe highest form of protection from censorship. An additional problem is the Constitution\xe2\x80\x99s prohibition\nagainst the enactment of ex post facto laws because it does not appear that there is a statute addressing\nWikiLeaks\xe2\x80\x99 behavior (government property cannot be copyrighted, trademarked, or patented, so there was\nno intellectual property infringement).\n\nAnswers to You Be the Legal Textbook Author\n1.\n\nCriminal act: access, disrupt, damage, destroy, take, injure, introduce computer contaminant to any\ncomputer, computer system, or network. Criminal intent: general intent or knowingly. Attendant\ncircumstance: without authorization. Harm: disruption, damage, destruction, or use of the computer to\ncommit a scheme to defraud. Grading: a felony or a first-degree misdemeanor. Also provides a civil action\nfor damages.\n\n2.\n\nCriminal act: possess or use the identifying information of another person. Criminal intent: specific\nintent or purposely to further an unlawful purpose. Attendant circumstance: lack of victim consent. Harm:\n\n\x0c11.4 End-of-Chapter Material 431\n\nidentifying information of another is possessed or used to further any unlawful purpose. Grading: a felony\nor misdemeanor, depending on the value of property obtained, the prior record of the defendant, and\nwhether the unlawful purpose is a conspiracy or dependent abuse.\n3.\n\nCriminal act: copy, reproduce, or duplicate any computer data or program. Criminal intent: general intent\nor knowingly to deprive the owner of property valued in excess of $2,500, or specific intent or purposely to\ncommit or attempt to commit any felony. Attendant circumstance: with no right to do so. Harm: computer\ndata or program is copied, reproduced, or duplicated. Grading: felony.\n\n\x0cChapter 12: Crimes against the Public\n\nSource: Image courtesy of Tara Storm.\n\nThe state has not only a right to \xe2\x80\x9cmaintain a decent society\xe2\x80\x9d but an obligation to do so. In the public nuisance\ncontext, the community\xe2\x80\x99s right to security and protection must be reconciled with the individual\xe2\x80\x99s right to\nexpressive and associative freedom. Reconciliation begins with the acknowledgment that the interests of the\ncommunity are not invariably less important than the freedom of individuals.\n\xe2\x80\x94People v. Acuna, cited in Section 12 \xe2\x80\x9cCivil Responses to Gang Activity\xe2\x80\x9d\n\n432\n\n\x0c12.1 Quality-of-Life Crimes\n\nLearning Objectives\n1.\n\nDefine the criminal act element required for disorderly conduct.\n\n2.\n\nDefine the criminal intent element required for disorderly conduct.\n\n3.\n\nDefine the attendant circumstance required for disorderly conduct.\n\n4.\n\nIdentify potential constitutional challenges to disorderly conduct statutes.\n\n5.\n\nAnalyze disorderly conduct grading.\n\n6.\n\nIdentify potential constitutional challenges to vagrancy statutes.\n\n7.\n\nIdentify potential constitutional challenges to loitering statutes.\n\n8.\n\nDefine the elements of loitering, and analyze loitering grading.\n\n9.\n\nCompare sit-lie laws to loitering statutes.\n\nCrimes against the public include offenses that affect the quality of life, group violence such as gang activity, and\nvice crimes. Because quality-of-life crimes are often based on moral or value judgments, these offenses tend to\ntarget the poor and downtrodden. If the conduct prohibited involves an individual\xe2\x80\x99s status in society, assembling,\nor speech, the First and Fourteenth Amendments require a narrowly tailored statute supported by a compelling\ngovernment interest. This creates a conflict between legislators trying to ensure peace and tranquility for citizens\nand judges upholding the many individual protections included in the Bill of Rights.\nThe quality-of-life offenses discussed are disorderly conduct, vagrancy, and loitering. Upcoming sections\nanalyze crimes involving group activity, such as unlawful assembly and riot, along with the ever-growing problem\nof criminal gangs, and novel criminal and civil responses. The final section of this chapter discusses common vice\ncrimes, including possession, sale, and use of controlled substances and prostitution.\n\nDisorderly Conduct\nDisorderly conduct, also called disturbing the peace, criminalizes conduct that negatively impacts the quality\nof life for citizens in any given city, county, or state. Although disorderly conduct is typically a low-level offense,\nthe enforcement of disorderly conduct statutes is important to preserve citizens\xe2\x80\x99 ability to live, work, and travel\nin safety and comfort. Disorderly conduct has the elements of criminal act, criminal intent, and an attendant\ncircumstance, as is explored in Section 12.1.1 \xe2\x80\x9cDisorderly Conduct\xe2\x80\x9d.\n\n433\n\n\x0c434 Criminal Law\n\nDisorderly Conduct Act\nThree criminal acts generally are identified in any disorderly conduct statute. The defendant must either (1)\nmake a loud and unreasonable noise, obscene utterance, or gesture, (2) engage in fighting or threatening, or state\nfighting words, or (3) create a hazardous condition by an act that does not serve a legitimate purpose (18 Pa. C.\nS. \xc2\xa7 5503, 2011). The Model Penal Code defines disorderly conduct as engaging in fighting or threatening or\nviolent tumultuous behavior, making unreasonable noise or an offensively course utterance, gesture, or display,\naddressing abusive language to any person present, or creating a hazardous or physically offensive condition\nby an act that serves no legitimate purpose (Model Penal Code \xc2\xa7 250.2). When the criminal act is a loud and\nunreasonable noise, the quality of the noise is judged in the setting where the noise occurred. A noise made in\nan extremely quiet area can be softer than a noise made in a loud and busy area like a city street during peak\nhours (Haw. Rev. Stat. \xc2\xa7 711-1101(2), 2011). The term \xe2\x80\x9chazardous condition\xe2\x80\x9d generally refers to a situation that\nis dangerous and poses a risk of injury to others in the vicinity of the defendant\xe2\x80\x99s conduct (Wolfe v. State, 2011).\n\nExample of Disorderly Conduct Act\nDavid and Daniel leave a party in a quiet neighborhood at three in the morning. Both are inebriated. After walking\na couple of blocks and telling stories, they begin singing loudly with their arms wrapped around each other. David\nstumbles and trips Daniel, who falls heavily to the sidewalk. Daniel gets up and starts screaming and swearing at\nDavid, challenging him to fight. David yells back, \xe2\x80\x9cBring it on!\xe2\x80\x9d David pushes Daniel, he pushes back, and they\nbegin punching and kicking. In this instance, David and Daniel have probably committed three separate disorderly\nconduct offenses. When David and Daniel began singing at three in the morning on a quiet street, they made a\nloud and unreasonable noise. When they challenged each other to fight, they uttered threats or stated fighting\nwords. When they engaged in a fistfight, they committed fighting, or created a hazardous condition. Thus David\nand Daniel are most likely subject to a prosecution for and conviction of three counts of disorderly conduct in\nmany jurisdictions.\n\nDisorderly Conduct Intent\nThe criminal intent element required for disorderly conduct in many jurisdictions is the specific intent or\npurposely to cause public inconvenience, annoyance, or alarm, or the reckless intent to cause a risk thereof (Ala.\nCode \xc2\xa7 13A-11-7, 2011). The Model Penal Code has the same criminal intent requirement (Model Penal Code\n\xc2\xa7 250.2(1)).\n\nExample of Disorderly Conduct Intent\nReview the example given in Section 12 \xe2\x80\x9cExample of Disorderly Conduct Act\xe2\x80\x9d with David and Daniel. David and\nDaniel may not have had the specific intent to cause public inconvenience, annoyance, or alarm; however, their\n\n\x0c12.1 Quality-of-Life Crimes 435\n\nbehavior in a quiet neighborhood late at night displays the reckless intent to cause a risk of such inconvenience,\nannoyance, or alarm. Although David and Daniel are inebriated, recall from Chapter 6 \xe2\x80\x9cCriminal Defenses, Part\n2\xe2\x80\x9d that intoxication is not generally a defense to a reckless intent crime. Thus a trier of fact could find that David\nand Daniel have the appropriate criminal intent for disorderly conduct, and they may both be subject to conviction\nof this offense.\n\nDisorderly Conduct Attendant Circumstance\nIn many jurisdictions, disorderly conduct requires the attendant circumstance that the conduct occur in a public\nplace (Tex. Penal Code \xc2\xa7 42.01, 2011). This goes along with the purposeful or reckless intent to inconvenience,\nannoy, or alarm the public, or create a risk thereof. The Model Penal Code defines public as \xe2\x80\x9caffecting or likely\nto affect persons in a place to which the public or a substantial group has access\xe2\x80\xa6highways, transport facilities,\nschools, prisons, apartment houses, places of business or amusement, or any neighborhood\xe2\x80\x9d (Model Penal Code\n\xc2\xa7 250.2).\n\nExample of Disorderly Conduct Attendant Circumstance\nReview the example in Section 12 \xe2\x80\x9cExample of Disorderly Conduct Act\xe2\x80\x9d with David and Daniel. David and\nDaniel commit their acts of loud and unreasonable noise, threats, fighting words, fighting, and creating a\nhazardous condition on a sidewalk in a neighborhood. Thus in jurisdictions that require the disorderly conduct\nattendant circumstance of a public place, David and Daniel may be subject to prosecution for and conviction of\nthis offense. If David and Daniel committed exactly the same acts in a private residence located on fifty acres\nwith no neighbors for miles, the attendant circumstance for disorderly conduct would be lacking, along with the\ncriminal intent to annoy, inconvenience, or alarm the public.\n\nPotential Constitutional Challenges to Disorderly Conduct Statutes\nBecause disorderly conduct statutes often criminalize obscene gestures and words, threats, and fighting words,\nthey are subject to constitutional challenges under the First and Fourteenth Amendments. However, not all speech\nis protected under the First Amendment. As Chapter 3 \xe2\x80\x9cConstitutional Protections\xe2\x80\x9d discusses in detail, it is\nconstitutional to regulate obscenity, true threats, and fighting words. Nonetheless, any statute criminalizing speech\nor expression is subject to strict scrutiny, must be narrowly drafted, and supported by a compelling government\ninterest. Thus two common grounds for challenging disorderly conduct statutes are void for vagueness and\noverbreadth (Colten v. Kentucky, 2011).\n\nExample of a Disorderly Conduct Statute That Is Unconstitutional\nA state legislature enacts a disorderly conduct statute that prohibits \xe2\x80\x9cmaking rude and annoying comments to\n\n\x0c436 Criminal Law\n\nanother.\xe2\x80\x9d This statute is most unlikely unconstitutional under the First and Fourteenth Amendments. The words\nrude and annoying are ambiguous, which could lead to uneven application by law enforcement and a failure\nto provide adequate notice to the public of what is criminal. Therefore, the statute can be stricken as void for\nvagueness. In addition, rude and annoying comments are not necessarily fighting words, true threats, or obscenity,\nso they could be protected under the First Amendment. This means that the statute could also be stricken as\noverbroad because it includes protected and unprotected conduct within its parameters. For a fuller and more\ndetailed description of void for vagueness and overbreadth constitutional challenges, please refer to Chapter 3\n\xe2\x80\x9cConstitutional Protections\xe2\x80\x9d.\nFigure 12.1 Potential Constitutional Challenges to Disorderly Conduct Statutes\n\nVoid for vagueness\n\nDisorderly Conduct Grading\nAs stated previously, disorderly conduct is a low-level offense that is typically graded as a misdemeanor (N.C.\nGen. Stat. \xc2\xa7 14-132). The Model Penal Code grades disorderly conduct as a petty misdemeanor if the defendant\xe2\x80\x99s\npurpose is to cause substantial harm or serious inconvenience or if the defendant persists with his or her conduct\nafter a warning. Otherwise, the Model Penal Code grades disorderly conduct as a violation (Model Penal Code\n\xc2\xa7 250.2(2)).\n\nVagrancy and Loitering\nAlthough the government technically does not have an interest in punishing individuals for who they are, such as\nan impoverished person or a transient, the public perception of law enforcement is often affected by the presence\nof so-called vagrants and panhandlers in any given area. Thus virtually every jurisdiction has statutes punishing\neither vagrancy or loitering. However, these statutes are subject to constitutional attack if they are void for\nvagueness, overbroad, or target status.\nHistorically, vagrancy statutes were broadly drafted to allow law enforcement considerable discretion in\narresting the unemployed, gamblers, drug addicts, alcoholics, and those who frequented houses of prostitution or\nother locations of ill repute. In a sense, vagrancy statutes attempted to incapacitate individuals before they engaged\nin criminal activity, to ensure the safety and security of any given area.\nIn 1972, the US Supreme Court struck down a Florida vagrancy statute in Papachristou v. City of Jacksonville,\n405 U.S. 156 (1972). The Court held that the statute, which prohibited night walking, living off one\xe2\x80\x99s spouse, and\nfrequenting bars or liquor stores was void for vagueness and violated the due process clause in the Fourteenth\nAmendment. Thereafter, many states repealed or modified vagrancy statutes in lieu of more precisely drafted\nstatutes prohibiting specific criminal conduct such as loitering. The Model Penal Code prohibits public\ndrunkenness and drug incapacitation (Model Penal Code \xc2\xa7 250.5) and loitering or prowling (Model Penal Code\n\xc2\xa7 250.6). To summarize US Supreme Court precedent refining loitering statutes: it is unconstitutional to target\nthose who are unemployed (Edwards v. California, 2011) or to enact a statute that is vague, such as a statute that\n\n\x0c12.1 Quality-of-Life Crimes 437\n\ncriminalizes loitering in an area \xe2\x80\x9cwith no apparent purpose,\xe2\x80\x9d (City of Chicago v. Morales, 2011) or without the\nability to provide law enforcement with \xe2\x80\x9ccredible and reliable identification\xe2\x80\x9d (Kolender v. Lawson, 2011).\nIn a jurisdiction that criminalizes loitering, the criminal act element is typically loitering, wandering, or\nremaining, with the specific intent or purposely to gamble, beg, or engage in prostitution (Ala. Code \xc2\xa7 13A-11-9,\n2011). An attendant circumstance could specify the location where the conduct takes place, such as a school\nor transportation facility (Ariz. Rev. Stat. \xc2\xa7 13-2905, 2011). Another common attendant circumstance is being\nmasked in a public place while loitering, with an exception for defendants going to a masquerade party or\nparticipating in a public parade (Ala. Code \xc2\xa7 13A-11-9, 2011). The Model Penal Code prohibits loitering or\nprowling in a place, at a time, or in a manner not usual for law-abiding individuals under circumstances that\nwarrant alarm for the safety of persons or property in the vicinity (Model Penal Code \xc2\xa7 250.6). Loitering is\ngenerally graded as a misdemeanor (Ariz. Rev. Stat. \xc2\xa7 13-2905, 2011) or a violation (Ala. Code \xc2\xa7 13A-11-9,\n2011). The Model Penal Code grades loitering as a violation (Model Penal Code \xc2\xa7 250.6).\nFigure 12.2 Crack the Code\n\n\x0c438 Criminal Law\n\nMany jurisdictions also criminalize panhandling or begging. Panhandling statutes essentially criminalize\nspeech, so they must be narrowly tailored to avoid successful constitutional challenges based on the First\nAmendment, void for vagueness, or overbreadth. Constitutional panhandling statutes generally proscribe\naggressive conduct (Gresham v. Peterson, 2011) or conduct that blocks public access or the normal flow of traffic.\n\nSit-Lie Laws\nOne modern statutory approach to preventing homeless individuals and transients from congregating in cities and\naffecting the quality of life or the prosperity of businesses and tourism are sit-lie laws. Sit-lie laws prohibit sitting\nor lying on public streets and sidewalks and thereby encourage individuals to move about, rather than block access\nto businesses, roadways, or transportation facilities. If precisely drafted, sit-lie laws could resemble constitutional\nloitering statutes, substituting sitting or lying down for the criminal act of loitering, wandering, or remaining.\nHowever, these statutes are susceptible to the same constitutional challenges as vagrancy and loitering statutes\nbecause they target the impoverished, addicts, and the unemployed.\nSeattle was the first city in the United States to enact a sit-lie ordinance in 1993 that prohibited sitting or lying\non a public sidewalk between the hours of 7 a.m. and 9 p.m. in Seattle\xe2\x80\x99s downtown area. The ordinance was\nattacked and ultimately upheld by the US Court of Appeals for the Ninth Circuit in 1996 (Knight, H., 2011).\nLos Angeles thereafter enacted a more comprehensive ordinance that banned sitting, lying, or sleeping on public\nstreets and sidewalks at all times and in all places within Los Angeles city limits. This ordinance was stricken by\nthe same court as unconstitutional cruel and unusual punishment pursuant to the Eighth Amendment (Jones v.\nCity of Los Angeles, 2011). The court held that the homeless in Los Angeles far outnumbered the amount of space\navailable in homeless shelters, and therefore the ordinance punished defendants for conduct that was involuntary.\nPortland followed Los Angeles with a sidewalk-obstruction ordinance, requiring individuals to keep their personal\nbelongings within two feet of their bodies. This ordinance was stricken as void for vagueness in 2009 (Davis, M.,\n2011).\nThe most recent enactment of a sit-lie ordinance took place in San Francisco in 2010. The San Francisco\nordinance is modeled after the Seattle ordinance and prohibits sitting or lying on a public sidewalk in the\ncity limits between 7 a.m. and 9 p.m., with exceptions for medical emergencies, protests, or those who have\ndisabilities (San Francisco Police Code \xc2\xa7 16.8, 2011). The first offense is an infraction, and the second offense is\na misdemeanor (San Francisco Police Code \xc2\xa7 16.8, 2011). If the San Francisco ordinance successfully reduces the\npresence of transients and is upheld as constitutional, other cities that desire the same results could soon follow\nsuit.\nFigure 12.3 Potential Constitutional Challenges to Loitering, Panhandling, and Sit-Lie Laws\n\nLoitering\nPanhandling\nSit-Lie\nTable 12.1 Comparing Disorderly Conduct, Loitering, and Sit-Lie Laws\n\n\x0c12.1 Quality-of-Life Crimes 439\n\nCrime\n\nCriminal Act\n\nCriminal Intent\n\nAttendant Circumstance\n\nUnreasonable noise, obscene utterance or\nDisorderly\ngesture, fighting, threats, fighting words,\nconduct\ncreating a hazardous condition\n\nSpecific or purposely or\nrecklessly to disturb the\npublic or create a risk thereof\n\nAct takes place in public\n\nLoitering\n\nLoitering, wandering, remaining\n\nSpecific or purposely to beg,\ngamble, solicit prostitution\n\nAct takes place near a school,\ntransportation facility: the\ndefendant is masked\n\nSit-lie law\n\nSitting or lying down\n\nStrict liability*\n\nAct takes place between certain\ntimes of day, in public, on a\nsidewalk, or on a street\n\n*Exceptions for medical emergencies, people who have disabilities, protests\n\nKey Takeaways\n\xe2\x80\xa2\n\nThe criminal act element required for disorderly conduct is either when the defendant (1) makes a loud\nand unreasonable noise, obscene utterance, or gesture, (2) engages in fighting or threatening, or states\nfighting words, or (3) creates a hazardous condition by an act that does not serve a legitimate purpose.\n\n\xe2\x80\xa2\n\nThe criminal intent element required for disorderly conduct in many jurisdictions is the specific intent or\npurposely to cause public inconvenience, annoyance, or alarm, or the reckless intent to cause a risk thereof.\n\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\nThe disorderly conduct attendant circumstance is that the conduct occurs in a public place.\nDisorderly conduct statutes can be constitutionally challenged under the First or Fourteenth Amendments\nas void for vagueness or overbroad.\nDisorderly conduct is typically graded as a misdemeanor.\n\n\xe2\x80\xa2\n\nVagrancy statutes are subject to constitutional challenges if they are void for vagueness, overbroad, or\ntarget status.\n\n\xe2\x80\xa2\n\nLoitering statutes are subject to constitutional challenges if they target the unemployed or are void for\nvagueness.\n\n\xe2\x80\xa2\n\nThe loitering criminal act element is typically loitering, wandering, or remaining, with the specific intent\nor purposely to gamble, beg, or engage in prostitution. An attendant circumstance could specify the location\nthe conduct takes place, such as a school or transportation facility. Another common attendant circumstance\nis being masked in a public place while loitering, with an exception for defendants going to a masquerade\nparty or participating in a public parade. Loitering is typically graded as a misdemeanor or a violation.\n\n\xe2\x80\xa2\n\nSit-lie laws typically prohibit sitting or lying on a public sidewalk or street, instead of loitering,\nwandering, or remaining like loitering statutes.\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nA city enacts an ordinance that prohibits standing or remaining in a crosswalk for an extended period with\na sign. What are three potential constitutional challenges to this ordinance? Can you identify a government\ninterest supporting it?\n\n\x0c440 Criminal Law\n\n2.\n\nRead State v. Russell, 890 A.2d 453 (2006). Why did the Supreme Court of Rhode Island reinstate a\ncomplaint against the defendant for disorderly conduct in this case? The case is available at this link:\nhttp://scholar.google.com/scholar_case?case=15220603438033851670&q=\nState+v+Russell&hl=en&as_sdt=2,5.\n\n3.\n\nRead People v. Hoffstead, 905 N.Y.S.2d 736 (2010). Why did the New York Supreme Court overturn the\ndefendant\xe2\x80\x99s conviction for loitering in this case? The case is available at this link: http://scholar.google.com/\nscholar_case?case=16147172189959232373&q= People+v.+Hoffstead&hl=en&as_sdt=2,5.\n\nReferences\n18 Pa. C. S. \xc2\xa7 5503, accessed April 2, 2011, http://law.onecle.com/pennsylvania/crimes-and-offenses/\n00.055.003.000.html.\nAla. Code \xc2\xa7 13A-11-7, accessed April 3, 2011, http://law.onecle.com/alabama/criminal-code/13A-11-7.html.\nAla. Code \xc2\xa7 13A-11-9, accessed April 5, 2011, http://law.onecle.com/alabama/criminal-code/13A-11-9.html.\nAriz. Rev. Stat. \xc2\xa7 13-2905, accessed April 5, 2011, http://law.onecle.com/arizona/criminal-code/13-2905.html.\nCity of Chicago v. Morales, accessed April 5, 2011, 527 U.S. 41 (1999), http://supreme.justia.com/us/527/41/\ncase.html.\nColten v. Kentucky, 407 U.S. 104 (1972), accessed April 3, 2011, http://scholar.google.com/\nscholar_case?case=7926620308068158831&q= Colten+v.+Kentucky&hl=en&as_sdt=2,5.\nDavis, M., \xe2\x80\x9cSit/Lie Law Unconstitutional,\xe2\x80\x9d Portland Mercury website, accessed April 5, 2011,\nhttp://blogtown.portlandmercury.com/BlogtownPDX/archives/2009/02/19/judge_rules_sit_lie_law_uncons.\nEdwards v. California, 314 U.S. 160 (1941), accessed April 5, 2011, http://scholar.google.com/\nscholar_case?case=6778891532287614638&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\nGresham v. Peterson, 225 F.3d 899 (2000), accessed April 5, 2011, http://scholar.google.com/\nscholar_case?case=12046859312956994237&q= %22Gresham+v.+Peterson%22&hl=en&as_sdt=2,5.\nHaw. Rev. Stat. \xc2\xa7 711-1101(2), accessed April 2, 2011, http://www.capitol.hawaii.gov/hrscurrent/\nvol14_Ch0701-0853/HRS0711/HRS_0711-1101.htm.\nJones v. City of Los Angeles, 444 F.3d 1118 (2006), accessed April 5, 2011, http://scholar.google.com/\nscholar_case?case=4259488333208893136&q=\nJones+v.+City+of+Los+Angeles+2005&hl=en&as_sdt=2,5&as_ylo=2004.\nKnight, H., \xe2\x80\x9cSan Francisco Looks to Seattle: Did Sidewalk Sitting Ban Help?\xe2\x80\x9d seattlepi.com website, accessed\nApril 5, 2011, http://www.seattlepi.com/default/article/San-Francisco-looks-to-Seattle-Did-sidewalk-888774.php.\nKolender v. Lawson, accessed April 5, 2011, 461 U.S. 352 (1983), http://supreme.justia.com/us/461/352.\nN.C. Gen. Stat. \xc2\xa7 14-132, http://law.onecle.com/north-carolina/14-criminal-law/14-132.html.\nSan Francisco Police Code \xc2\xa7 16.8, accessed April 5, 2011, http://www.sfgov2.org/ftp/uploadedfiles/elections/\ncandidates/Nov2010_CivilSidewalks.pdf.\nTex. Penal Code \xc2\xa7 42.01, accessed April 2, 2011, http://law.onecle.com/texas/penal/42.01.00.html.\nWolfe v. State, 24 P.3d 1252 (2001), accessed April 2, 2011, http://scholar.google.com/\nscholar_case?case=8611678948602739716&q=\ndisorderly+conduct+%22hazardous+condition%22&hl=en&as_sdt=2,5&as_ylo=2000.\n\n\x0c12.2 Crimes Targeting Group Conduct\n\nLearning Objectives\n1.\n\nDefine the elements of unlawful assembly and failure to disperse.\n\n2.\n\nIdentify potential constitutional challenges to unlawful assembly and failure to disperse statutes.\n\n3.\n\nAnalyze unlawful assembly and failure to disperse grading.\n\n4.\n\nDefine the elements of riot, and analyze riot grading and the potential for constitutional challenges to riot\nstatutes.\n\n5.\n\nDefine criminal gang and criminal gang member.\n\n6.\n\nCompare gang participation and gang-enhancement statutes.\n\n7.\n\nAnalyze two civil responses to the criminal gang problem.\n\n8.\n\nIdentify potential constitutional challenges to gang activity statutes.\n\nGroup conduct, if criminal, can enhance the potential for violence and injury and is punishable as the crimes\nof unlawful assembly, riot, or criminal gangs. However, the right to peacefully assemble is guaranteed in the\nFirst Amendment, so statutes codifying these offenses can be subject to constitutional attack similar to disorderly\nconduct, vagrancy, and loitering statutes. In addition, the problem of criminal gangs has proven to be so stubborn\nthat it has produced some novel criminal and civil responses. The following sections discuss group activity\noffenses as well as their potential constitutional defenses.\n\nUnlawful Assembly and Failure to Disperse\nUnlawful assembly can be the predicate offense to riot, which is discussed shortly. The elements required for\nunlawful assembly are the assembling (Ala. Code \xc2\xa7 13A-11-5, 2011) or meeting (Fla. Stat. Ann. \xc2\xa7 870.02, 2011)\n(criminal act) of a group, with the specific intent or purposely to commit a breach of the peace, some other\nunlawful act (Fla. Stat. Ann. \xc2\xa7 870.02, 2011), or riot (Ala. Code \xc2\xa7 13A-11-5, 2011). Some jurisdictions and the\nModel Penal Code punish the failure to disperse (criminal act) when a peace officer or public servant orders a\ngroup participating in disorderly conduct likely to cause substantial harm, serious annoyance, or alarm to do so\n(Mass. Gen. Laws ch. 269 \xc2\xa7 1, 2011) (Model Penal Code \xc2\xa7 250.1(2)). The criminal intent element for failure to\ndisperse is general intent or knowingly (N.J. Stat. \xc2\xa7 2C:33-1, 2011) (Model Penal Code \xc2\xa7 250.1(2)).\nJurisdictions vary as to the attendant circumstance for unlawful assembly and failure to disperse, which is the\nsize of the group. Some common group minimums are two (Cal. Penal Code \xc2\xa7 407, 2011), three (Fla. Stat. Ann. \xc2\xa7\n870.02, 2011), or five (N.J. Stat. \xc2\xa7 2C:33-1, 2011). The Model Penal Code requires three or more persons (Model\nPenal Code \xc2\xa7 250.1(2)).\n\n441\n\n\x0c442 Criminal Law\n\nExample of Unlawful Assembly and Failure to Disperse\nSix neighbors are sitting on their porches, peacefully chatting. One of the neighbors, Buck, notices a pro-choice\ngroup with signs in the park across the street. Annoyed, Buck tells the group, \xe2\x80\x9cLet\xe2\x80\x99s go show those losers what\nit\xe2\x80\x99s like to fear for your life!\xe2\x80\x9d He marches angrily over to the park, and the other neighbors follow. Buck begins\nchanting, \xe2\x80\x9cHow would you like to be aborted?\xe2\x80\x9d and the other neighbors join in. The individuals in the pro-choice\ngroup stand their ground, and the decibel of the chanting increases. Buck and his neighbors form a ring around the\ngroup and move in closer, almost touching the individuals and their signs. A park ranger hears the noise, walks\nover to Buck and his neighbors, and tells them to \xe2\x80\x9cmove along.\xe2\x80\x9d Buck spits at the ranger\xe2\x80\x99s feet and starts up the\nchant again. The other neighbors laugh and join him.\nIn this scenario, Buck and his neighbors have most likely committed unlawful assembly and failure to\ndisperse in many jurisdictions. Buck and his neighbors number six, which generally meets the minimum unlawful\nassembly and failure to disperse attendant circumstance requirement. When Buck and his neighbors go to the park\nin a group, they are assembling. Their chant, \xe2\x80\x9cHow would you like to be aborted?\xe2\x80\x9d is directed at a pro-choice\ngroup, so it is evident that Buck and his neighbors have the specific intent or purposely to cause a breach of the\npeace. In addition, the increasing decibel of the chanting and the neighbors\xe2\x80\x99 close proximity to the pro-choice\ngroup indicates an intent to intimidate, threaten, and possibly commit an unlawful act such as false imprisonment,\nassault, battery, or riot. When the park ranger, who is most likely a peace officer, tells Buck and his neighbors\nto \xe2\x80\x9cmove along,\xe2\x80\x9d he is ordering them to disperse. Buck\xe2\x80\x99s response in spitting at the ranger\xe2\x80\x99s feet and starting up\nthe chant again is probably a failure to disperse committed with general intent or knowingly. Thus Buck and his\nneighbors may be subject to prosecution for and conviction of both of these offenses in many jurisdictions.\n\nPotential Constitutional Challenges to Unlawful Assembly and\nFailure to Disperse Statutes\nThe offenses of unlawful assembly and failure to disperse target conduct that, if peaceful, is protected by the\nFirst Amendment. Therefore, similar to disorderly conduct offenses, statutes proscribing this type of conduct are\nsubject to strict scrutiny, must be narrowly tailored, and must be supported by a compelling government interest,\nor they are vulnerable to attack under the First Amendment (People v. Sanchez, 2011) or as void for vagueness\nand overbroad.\nFigure 12.4 Potential Constitutional Challenges to Unlawful Assembly and Failure to Disperse Statutes\n\n\x0c12.2 Crimes Targeting Group Conduct 443\n\nUnlawful Assembly and Failure to Disperse Grading\nUnlawful assembly and failure to disperse are generally graded as misdemeanors (Ala. Code \xc2\xa7 13A-11-5, 2011).\nThe Model Penal Code grades failure to disperse as a misdemeanor (Model Penal Code \xc2\xa7 250.1(2)).\n\nRiot\nRiot can be the result of an unlawful assembly that escalates, an incitement to riot (discussed in Chapter\n3 \xe2\x80\x9cConstitutional Protections\xe2\x80\x9d), or can occur spontaneously without any planning or predicate activity. The\ncriminal act element required for riot in many jurisdictions is group commission of an unlawful act of violence\nor a lawful act in a violent and tumultuous manner (Ga. Code tit. 16 \xc2\xa7 16-11-30, 2011). The Model Penal Code\ncriminalizes riot when a group participates in a course of disorderly conduct (Model Penal Code \xc2\xa7 250.1). The\ncriminal intent element for riot varies, depending on the jurisdiction. Some jurisdictions and the Model Penal\nCode require specific intent or purposely to commit or facilitate a felony or misdemeanor, or to prevent or coerce\nofficial action, or general intent or knowledge that anyone plans to use a firearm or deadly weapon (N.J. Stat. \xc2\xa7\n2C:33-1, 2011) (Model Penal Code \xc2\xa7 250.1). Others make riot a strict liability offense (Cal. Penal Code \xc2\xa7 404,\n2011; Ga. Code tit. 16 \xc2\xa7 16-11-30). In many jurisdictions, riot also has the requirement that the defendant(s) be\nthe factual and legal cause of harm, which is public terror and alarm or a risk thereof (Ala. Code \xc2\xa7 13A-11-3,\n2011).\nJurisdictions vary as to the attendant circumstance for riot, which is the size of the group. Some common\ngroup minimums are two (Ga. Code tit. 16 \xc2\xa7 16-11-30, 2011), five (N.J. Stat. \xc2\xa7 2C:33-1, 2011), and six (Ala.\nCode \xc2\xa7 13A-11-3, 2011). The Model Penal Code requires three or more persons (Model Penal Code \xc2\xa7 250.1).\nRiot is graded as a misdemeanor (Ala. Code \xc2\xa7 13A-11-3, 2011), or a felony if a firearm is used (Va. Code Ann.\n\n\x0c444 Criminal Law\n\n\xc2\xa7 18.2-405, 2011) or there is property damage or physical injury to an individual other than the defendants (N.Y.\nPenal \xc2\xa7 240.06, 2011). The Model Penal Code grades riot as a felony of the third degree (Model Penal Code\n\xc2\xa7 250.1).\n\nExample of Riot\nReview the example with Buck and his neighbors in Section 12 \xe2\x80\x9cExample of Unlawful Assembly and Failure\nto Disperse\xe2\x80\x9d. Assume that after the park ranger orders Buck and his neighbors to disperse, Buck spits at the\nranger\xe2\x80\x99s feet, continues chanting, and thereafter becomes so enraged that he grabs a sign out of one of the prochoice individual\xe2\x80\x99s hands and begins beating him over the head with it. The other neighbors follow suit and within\nminutes they are all wielding signs and hitting the pro-choice individuals with them. In this scenario, Buck and\nhis neighbors have most likely committed riot. Buck and his neighbors number six, which meets the minimum\ngroup requirement in many riot statutes. Buck and his neighbors have also assaulted and battered some of the\npro-choice individuals, which are unlawful acts of violence. The statement made by Buck about showing the prochoice group what it means to fear for your life indicates a specific intent or purposely to commit a felony or\nmisdemeanor, which is the intent requirement in many jurisdictions. If the riot statute in Buck\xe2\x80\x99s state requires\nfactual and legal causation and the harm of public terror and alarm, the beating constitutes the causation and harm\nrequirement. Thus Buck and his neighbors\xe2\x80\x99 conduct probably falls within the parameters of most riot statutes, and\nBuck and his neighbors may be subject to prosecution for and conviction of this offense in many jurisdictions.\n\nPotential Constitutional Challenges to Riot Statutes\nBecause statutes criminalizing riot include the requirement of force or violence, they do not target protected\nconduct under the First Amendment and are not as prone to a constitutional challenge. Of course, any criminal\nstatute must be precisely drafted so that it is not void for vagueness. However, riot statutes are not generally\nsubject to strict scrutiny because the First Amendment does not include forceful or violent expression within the\ndefinition of speech.\n\nRodney King Riots Video\nKTLA News, April 30, 1992, 6:50 p.m., King Riots\nNews clips of the riots that occurred subsequent to the Rodney King trial are shown in this video:\n" href="http://www.youtube.com/watch?v=B6S-wTidqVs" class="replaced-iframe" onclick="return\nreplaceIframe(this)" data-url="http://www.youtube.com/watch?v=B6S-wTidqVs">(click to see video)\n\nCriminal Gangs\nMany jurisdictions have statutes, both criminal and civil, that address the ongoing dilemma of criminal gangs.\n\n\x0c12.2 Crimes Targeting Group Conduct 445\n\nHowever, gang activity remains a problem in major cities and even smaller, rural areas. Criminal gangs can create\na stigma that attaches to a location, affecting property values and residents\xe2\x80\x99 attitudes about the effectiveness of\nlaw enforcement and the justice system in general. Commentators and legislators differ as to the most effective\nremedies for the gang problem, leading to a plethora of diverse statutory responses.\nWhat follows is a discussion of modern statutes targeting gang activity and the potential constitutional\nchallenges.\n\nCriminal Gang Definitions\nIt is important for a jurisdiction\xe2\x80\x99s gang statute to define criminal gang and criminal gang member precisely, to\navoid constitutional challenges under the First Amendment or void for vagueness and overbreadth. This is because\ngang membership involves assembly, which, if peaceful, is protected under the First Amendment.\nFederal law defines a criminal street gang as an ongoing group, club, organization, or association of five\nor more that has as one of its primary purposes the commission of specific criminal offenses or activities that\naffect interstate or foreign commerce (18 U.S.C. 521(a), 2011). Federal law defines a gang member as someone\nwho participates in a criminal street gang with the general intent or knowledge that its members engage in a\ncontinuing series of specified crimes, or an individual who intends to promote or further the felonious activities\nof the criminal street gang (18 U.S.C. 521(d), 2011). One representative state statutory definition of criminal gang\nis a group of three or more persons who have in common a name, identifying sign, symbol, tattoo, style of dress,\nor use of hand signs and who have committed or attempted to commit specified crimes for the benefit of the group\n(Alaska Stat. \xc2\xa7 11.81.900, 2011). Criminal gang member could be statutorily defined as any person who engages\nin a pattern of criminal gang activity and who meets two or more of the following criteria: (1) admits to gang\nmembership; (2) is identified as a gang member; (3) resides in or frequents a particular gang\xe2\x80\x99s area and adopts\nits style of dress, use of hand signs, or tattoos; (3) associates with known gang members; or (4) has been arrested\nmore than once in the company of identified gang members for offenses consistent with gang activity (Idaho Code\nAnn. \xc2\xa7 18-8502(2), 2011).\n\nExample of Criminal Gang Definitions\nThe North Side Boys are a group of fifty-five members who have a special tattoo, wear the colors black and white\ndaily, and pride themselves on their illegal controlled substances distribution. Mike decides he wants to be a North\nSide Boy. Mike participates in a special initiation process that includes selling a specified quantity of an illegal\ncontrolled substance in a certain location over a period of two weeks. After Mike completes the initiation, he gets\nthe North Side Boys\xe2\x80\x99 tattoo, wears the North Side Boys\xe2\x80\x99 colors daily, and spends all his time with the North Side\nBoys, hanging out and also contributing to their illegal activities. The North Side Boys probably meets the criteria\nfor a criminal gang, and Mike is most likely a criminal gang member under many modern statutes. The North\nSide Boys has an identifiable tattoo and style of dress and furthers a criminal activity, which is the distribution\nof illegal controlled substances. Mike can be identified as a gang member by other North Side Boys members,\nfrequents the North Side Boys\xe2\x80\x99 gang area, and adopts the gang\xe2\x80\x99s style of dress and tattoos along with furthering\nits criminal enterprise. Thus the North Side Boys and Mike fit the definition of criminal gang and gang member\nin many jurisdictions, and Mike may be subject to prosecution for and conviction of criminal gang activity if he\n\n\x0c446 Criminal Law\n\ncommits crimes at the direction of or in furtherance of the gang, as is analyzed in Section 12 \xe2\x80\x9cCriminal Gang\nActivity\xe2\x80\x9d.\n\nCriminal Gang Activity\nStates generally criminalize gang participation (Ohio Rev. Code Ann. \xc2\xa7 2923.42, 2011), enhance the penalty for a\ncrime when it is committed in furtherance of a gang (Fla. Stat. Ann. \xc2\xa7 874.04, 2011), or both (Cal. Penal Code \xc2\xa7\n186.22). If a state enacts a gang participation statute, the criminal act element is generally described as actively\nparticipating in a criminal gang and promoting, furthering, or assisting in any felony, with the general intent\nor knowingly that members of the gang engage in a pattern of criminal gang activity (Del. Code Ann. tit. 11\n\xc2\xa7 616, 2011). Gang participation is generally graded as a felony (Del. Code Ann. tit. 11 \xc2\xa7 616, 2011). Gang\nenhancement statutes enhance the defendant\xe2\x80\x99s sentence for actually committing a misdemeanor or felony with\nthe specific intent or purposely to benefit, promote, or further the interests of the criminal gang (Fla. Stat. Ann.\n\xc2\xa7 874.04, 2011). Some jurisdictions only provide gang enhancement for the commission of a felony (Del. Code.\nAnn. tit. 11 \xc2\xa7 616, 2011).\n\nExample of Criminal Gang Activity\nReview the example with Mike and the North Side Boys given in Section 12 \xe2\x80\x9cExample of Criminal Gang\nDefinitions\xe2\x80\x9d. Assume that Mike resumes selling illegal controlled substances at the behest of the North Side\nBoys after his initiation and is arrested. If the state where Mike sells illegal controlled substances has a gang\nparticipation statute and grades the crime of sale of illegal controlled substances as a felony, Mike could be\nprosecuted for and convicted of this crime. He furthered and assisted in the North Side Boys\xe2\x80\x99 sale of illegal\ncontrolled substances with the general intent or knowingly that members of the North Side Boys engaged in this\npattern of criminal gang activity. If the state also has a gang enhancement statute, Mike could have his sentence\nfor sale of illegal controlled substances enhanced because he committed the sale of illegal controlled substances\nin furtherance of the criminal gang. In either situation, Mike will be punished more severely for the sale of illegal\ncontrolled substances than an individual defendant who sells illegal controlled substances on his or her own, rather\nthan at the direction or in furtherance of a criminal gang.\nFigure 12.5 Diagram of Typical Modern Gang Statutes\n\n\x0c12.2 Crimes Targeting Group Conduct 447\n\nCivil Responses to Gang Activity\nAs stated previously, the problem of criminal gangs is challenging and has proven resistant to criminal remedies.\nThus many jurisdictions have also enacted civil gang control statutes, along with resorting to the remedy of civil\ngang injunctions to try to curb the multitude of harms that gangs inflict.\nCivil gang control statutes generally provide for damages, often enhanced, for coercion, intimidation, threats, or\nother harm caused by a gang or gang member (Fla. Stat. Ann. \xc2\xa7 874.06, 2011). A common provision of civil gang\ncontrol statutes is the ability of a resident or state agency to sue as a plaintiff (Fla. Stat. Ann. \xc2\xa7 874.06, 2011).\nFigure 12.6 Example of a Civil Gang Control Statute\n\n\x0c448 Criminal Law\n\nCivil gang injunctions (CGIs) are precisely drafted orders prohibiting gang members from associating with other\ngang members or entering certain areas known for gang activity (Tex. Penal Code \xc2\xa7 125.065, 2011). A state\nagency or an individual resident can typically make a motion requesting a CGI (Tex. Penal Code \xc2\xa7 125.064, 2011).\nThe basis for a CGI motion is the tort of public nuisance, which requires proof that the gang is disturbing the\nenjoyment of life and property for those living in the community (People v. Acuna, 2011). Common provisions of\nCGIs are a prohibition on associating with known gang members, wearing gang colors, flashing gang hand signs,\nor loitering in areas known for gang activity (Shiner, M., 2011). Violation of a CGI could constitute the crime of\ncontempt, resulting in fines or incarceration (Tex. Penal Code \xc2\xa7 125.066, 2011).\n\n\x0c12.2 Crimes Targeting Group Conduct 449\n\nExample of Civil Responses to Gang Activity\nReview the example with Mike and the North Side Boys in Section 12 \xe2\x80\x9cExample of Criminal Gang Definitions\xe2\x80\x9d.\nMike and the North Side Boys are subject to a criminal prosecution for gang participation for their sale of illegal\ncontrolled substances. They also are subject to gang enhancements for any felony committed at the direction or in\nfurtherance of the North Side Boys. In addition, if the state where Mike and the North Side Boys are located has\nstatutes providing civil remedies and CGIs, both Mike and the North Side Boys members are subject to a civil\nsuit for damages if they coerce, intimidate, or injure another. They also are subject to an injunction constraining\ntheir ability to meet, associate, wear black and white, flash gang hand signs, or loiter in certain areas. If a CGI is\nin place, and Mike or the North Side Boys violate it, a potential exists for criminal charges of contempt, leading\nto fines or incarceration.\n\nColton Gang Injunction\nNews Story of the Colton Civil Gang Injunction\nThe civil gang injunction in Colton, California, is discussed in this video:\n" href="http://www.youtube.com/watch?v=qBwETbSEoKs" class="replaced-iframe" onclick="return\nreplaceIframe(this)" data-url="http://www.youtube.com/watch?v=qBwETbSEoKs">(click to see video)\n\nPotential Constitutional Challenges to Gang Statutes\nGang activity and gang association require assembly, which, if peaceful, is protected by the First Amendment.\nThus statutes proscribing gang conduct are subject to attack under the First Amendment or void for vagueness\nand overbreadth. CGIs have the same constitutional concerns as criminal gang activity statutes because their\nviolation can lead to a criminal prosecution for contempt (People v. Acuna, 2011).\nIn City of Chicago v. Morales, 527 U.S. 41 (1999), the US Supreme Court struck down Chicago\xe2\x80\x99s Gang\nCongregation Ordinance as void for vagueness. The ordinance prohibited criminal street gang members from\n\xe2\x80\x9cloitering in public.\xe2\x80\x9d The term loitering was defined as remaining in any one place with no apparent purpose.\nWhen a Chicago law enforcement officer observed a gang member loitering, he was obligated to order the gang\nmember to disperse, and if the gang member refused, the gang member was subject to arrest for violating the\nordinance. The Court held that the ordinance did not give the public notice of what was criminal, as required by\nthe due process clause of the Fourteenth Amendment, and allowed too much discretion to law enforcement to\nunevenly enforce its provisions.\nUnder Morales, modern statutes targeting gang activity and association must precisely define criminal conduct,\navoid vague terms such as \xe2\x80\x9cno apparent purpose,\xe2\x80\x9d and ensure that First Amendment protected activity is not\nincluded within the statute\xe2\x80\x99s reach. CGIs should support a significant government interest, be narrowly tailored to\navoid constitutionally protected activity, and be buttressed by evidence that the CGI is the least restrictive means\nto carry out the interest stated (Shiner, M., 2011).\nFigure 12.7 Potential Constitutional Challenges to Statutes Targeting Gangs\n\n\x0c450 Criminal Law\n\nFigure 12.8 Diagram of Crimes Involving Group Activity\n\n\x0c12.2 Crimes Targeting Group Conduct 451\n\nKey Takeaways\n\xe2\x80\xa2\n\nThe elements of unlawful assembly are the assembling or meeting of a group (criminal act) with the\nspecific intent or purposely to commit breach of the peace, some other unlawful act, or riot. Some\njurisdictions punish the failure to disperse (criminal act) with general intent or knowingly when a peace\nofficer or public servant orders a group likely to cause substantial harm, serious annoyance, or alarm to do\nso. Jurisdictions vary as to the attendant circumstance, which is the group minimum, identifying two, three,\n\n\x0c452 Criminal Law\n\nfive, or some similar number, depending on the statute.\n\xe2\x80\xa2\n\xe2\x80\xa2\n\nUnlawful assembly and failure to disperse statutes can be constitutionally challenged under the First\nAmendment, as void for vagueness, or overbroad.\nUnlawful assembly and failure to disperse are typically graded as misdemeanors.\n\n\xe2\x80\xa2\n\nRiot is group commission of an unlawful violent act or a lawful act in a violent manner (criminal act)\nwith either the specific intent or purposely to commit a felony or misdemeanor or prevent official action, or\nthe general intent or knowingly that someone in the group possesses a firearm, or with strict liability intent.\nSome jurisdictions require the criminal act and intent to be the factual and legal cause of harm, which is\npublic terror, alarm, or a risk thereof. The attendant circumstance, which is the group minimum, could be\ntwo, five, six, or some similar number, depending on the statute. Riot is often graded as a misdemeanor, or a\nfelony if a firearm is used or there is property damage or physical injury to someone other than a defendant.\nBecause riot statutes criminalize conduct involving force or violence, riot statutes are not as prone to\nconstitutional challenges as disorderly conduct, vagrancy, loitering, and unlawful assembly statutes.\n\n\xe2\x80\xa2\n\nCriminal gang could be defined as a group of a statutorily specified number that engages in a pattern of\ncriminal activity and has in common hand signs, tattoos, and style of dress. Criminal gang member could be\ndefined as someone who is identified as a gang member, admits to gang membership, associates with gang\nmembers, adopts the hand signs, tattoos, and style of dress of gang members, and commits crimes at the\nbehest of the gang.\n\n\xe2\x80\xa2\n\nGang participation statutes criminalize actively participating in a criminal gang and promoting,\nfurthering, or assisting (criminal act) the commission of a felony on behalf of a criminal gang with the\ngeneral intent or knowingly that the gang participates in a pattern of criminal activity. Gang participation is\ntypically graded as a felony. Gang enhancement statutes enhance a sentence for a misdemeanor or felony\ncommitted with the specific intent or purposely to promote or further a criminal gang. Some states only\nprovide gang enhancement statutes for the commission of a felony.\n\n\xe2\x80\xa2\n\nCivil responses to the gang problem include civil gang control statutes that allow plaintiffs, including\nstate agencies, to sue for enhanced damages for threats, intimidation, or physical injury caused by a gang or\ngang member and civil gang injunctions (CGIs) that prohibit gang members from associating or\ncongregating in certain areas frequented by criminal gangs.\n\n\xe2\x80\xa2\n\nStatutes targeting gangs can be constitutionally challenged under the First Amendment or as void for\nvagueness or overbroad.\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nA law enforcement officer arrests a group of individuals for standing outside a Jewish temple with signs\nthat indicate a disbelief in the holocaust. The officer tells the individuals that he is arresting them for\nunlawful assembly. What are some potential constitutional problems with this arrest?\n\n2.\n\nRead Ortiz v. NYS Parole in Bronx, 586 F.3d 149 (2009). In Ortiz, the defendant was found guilty of\nseveral counts of riot under New York\xe2\x80\x99s first-degree riot statute for conduct that occurred after he left the\nscene of the riot. Did the US Court of Appeals for the Second Circuit uphold the defendant\xe2\x80\x99s conviction?\nWhy or why not? The case is available at this link: http://scholar.google.com/\nscholar_case?case=2710893752280724993&q= %22riot+statute%22&hl=en&as_sdt=2,5&as_ylo=2002.\n\n3.\n\nRead People v. Englebrecht, 88 Cal. App. 4th 1236 (2001). Did the California Court of Appeal hold that\nthe defendant, an alleged gang member, had the right to a jury trial on the issue of his gang membership for\nthe purpose of a civil gang injunction? The case is available at this link: http://scholar.google.com/\n\n\x0c12.2 Crimes Targeting Group Conduct 453\n\nscholar_case?case=449430704300565285&q=\nunconstitutional+%22civil+gang+injunction%22&hl=en&as_sdt=2,5&as_ylo=1997.\n\nReferences\nAla. Code \xc2\xa7 13A-11-3, accessed April 9, 2011, http://law.onecle.com/alabama/criminal-code/13A-11-3.html.\nAla. Code \xc2\xa7 13A-11-5, accessed April 9, 2011, http://law.onecle.com/alabama/criminal-code/13A-11-5.html.\nAlaska Stat. \xc2\xa7 11.81.900 (13), accessed April 12, 2011, http://law.justia.com/codes/alaska/2009/title-11/\nchapter-11-81/article-07/sec-11-81-900.\nCal. Penal Code \xc2\xa7 186.22, http://law.justia.com/codes/california/2010/pen/186.20-186.33.html.\nCal. Penal Code \xc2\xa7 404, accessed April 9, 2011, http://law.onecle.com/california/penal/404.html.\nCal. Penal Code \xc2\xa7 407, accessed April 9, 2011, http://law.onecle.com/california/penal/407.html.\nDel. Code Ann. tit. 11 \xc2\xa7 616 (2)(b), accessed April 13, 2011, http://law.justia.com/codes/delaware/2010/title11/\nc005-sc02.html.\nFla. Stat. Ann. \xc2\xa7 870.02, accessed April 9, 2011, http://law.onecle.com/florida/crimes/870.02.html.\nFla. Stat. Ann. \xc2\xa7 874.04, accessed April 14, 2011, http://law.onecle.com/florida/crimes/874.04.html.\nFla. Stat. Ann. \xc2\xa7 874.06, accessed April 14, 2011, http://law.onecle.com/florida/crimes/874.06.html.\nGa. Code tit. 16 \xc2\xa7 16-11-30, accessed April 9, 2011, http://law.onecle.com/georgia/16/16-11-30.html.\nIdaho Code Ann. \xc2\xa7 18-8502(2), accessed April 12, 2011, http://law.justia.com/codes/idaho/2010/title18/\nt18ch85sect18-8502.html.\nMass. Gen. Laws ch. 269 \xc2\xa7 1, accessed April 9, 2011, http://law.onecle.com/massachusetts/269/1.html.\nN.J. Stat. \xc2\xa7 2C:33-1, accessed April 9, 2011, http://law.onecle.com/new-jersey/2c-the-new-jersey-code-ofcriminal-justice/33-1.html.\nN.Y. Penal \xc2\xa7 240.06, accessed April 9, 2011, http://law.onecle.com/new-york/penal/PEN0240.06_240.06.html.\nOhio Rev. Code Ann. \xc2\xa7 2923.42, accessed April 14, 2011, http://law.justia.com/codes/ohio/2010/title29/\nchapter2923/2923_42.html.\nPeople v. Acuna, 14 Cal. 4th 1090 (1997), accessed April 14, 2011, http://scholar.google.com/\nscholar_case?case=10825872110148502169&hl=en&as_sdt=2&as_vis=1&oi=scholarr (accessed April 15,\n2011).\nPeople v. Sanchez, 888 N.Y.S. 2d 352 (2009), accessed April 9, 2011, http://scholar.google.com/\nscholar_case?case=15178974598569042123&q=\nunconstitutional+%22unlawful+assembly+statute%22&hl=en&as_sdt=2,5&as_ylo=1992.\nShiner, M., \xe2\x80\x9cCivil Gang Injunctions a Guide for Prosecutors,\xe2\x80\x9d Ndaa.org website, accessed April 14, 2011,\nhttp://www.ndaa.org/pdf/Civil_Gang_Injunctions_09.pdf.\nTex. Penal Code \xc2\xa7 125.065, accessed April 14, 2011, http://law.onecle.com/texas/civil/125.065.00.html.\nTex. Penal Code \xc2\xa7 125.066, accessed April 14, 2011, http://law.onecle.com/texas/civil/125.066.00.html.\nVa. Code Ann. \xc2\xa7 18.2-405, accessed April 9, 2011, http://law.onecle.com/virginia/crimes-and-offensesgenerally/18.2-405.html.\n18\nU.S.C.\n521(a),\naccessed\nApril\n12,\n2011,\nhttp://www.law.cornell.edu/uscode/18/\nusc_sec_18_00000521\xe2\x80\x94-000-.html.\n\n\x0c454 Criminal Law\n\n18\nU.S.C.\n521(d),\naccessed\nusc_sec_18_00000521\xe2\x80\x94-000-.html.\n\nApril\n\n12,\n\n2011,\n\nhttp://www.law.cornell.edu/uscode/18/\n\n\x0c12.3 Vice Crimes\n\nLearning Objectives\n1.\n\nIdentify the sources of federal and state drug laws.\n\n2.\n\nDescribe a drug schedule.\n\n3.\n\nAnalyze various drug crimes and their grading.\n\n4.\n\nIdentify two modern trends in state drug crimes statutes.\n\n5.\n\nIdentify a potential constitutional challenge to a state\xe2\x80\x99s medical marijuana statute.\n\n6.\n\nAnalyze prostitution, pimping, and pandering and their grading.\n\nVice crimes offend the sensibilities, yet are often victimless and harmless, other than harm done to the defendant\nor society in general. Section 12.3.1 \xe2\x80\x9cDrug Crimes\xe2\x80\x9d explores drug crimes, including manufacture or cultivation,\npossession, sale, and under the influence offenses. Upcoming sections analyze prostitution, pimping, and\npandering. In the final section, various vice statutes are available for review, including statutes criminalizing\ngambling and conduct involving alcohol.\n\nDrug Crimes\nAll states and the federal government criminalize the manufacture or cultivation, possession, sale, and use\nof specified drugs. Many modern statutes focus on rehabilitation for nonviolent drug offenders, rather than\nincarceration, because this has proven effective in reducing recidivism and freeing up jails and prisons for\ndefendants who pose a greater security risk to society. In addition, marijuana, a drug that has demonstrated\nvalid therapeutic qualities, has been legalized by many states for medicinal purposes, which poses interesting\nconstitutional questions, as is discussed in Section 12 \xe2\x80\x9cModernization of Drug Crimes Statutes\xe2\x80\x9d.\n\nFederal and State Drug Schedules\nFederal criminal statutes targeting illegal drugs are part of the Comprehensive Drug Abuse Prevention and Control\nAct of 1970, commonly known as the Controlled Substances Act (21 U.S.C. \xc2\xa7 801, 2011). The states follow\none of the three versions of the Uniform Controlled Substances Act (Uniform Controlled Substances Act, 2011),\nwhich was drafted by a commission striving for uniformity in state and federal laws. For the purpose of drug\ncrimes, the states and the federal government categorize illegal drugs in drug schedules (21 U.S.C. \xc2\xa7 812, 2011).\nThe schedules generally focus on the harmful or addictive qualities of the drug, with Schedule I drugs being the\n\n455\n\n\x0c456 Criminal Law\n\nmost harmful or addictive; the remaining schedules reflect less harmful or addictive drugs, including drugs that\nare legal with a prescription (Minn. Stat. Ann. \xc2\xa7 152.02, 2011).\n\nExample of a Drug Schedule\nThe North Carolina drug schedule is located in N.C. Gen. Stat. \xc2\xa7 90-89-90-94 (N.C. Gen. Stat. \xc2\xa7 90-89-90-94,\n2011). Review the schedule and note that heroin, a highly addictive drug that can cause death if a user ingests too\nmuch, is listed in Schedule I, while marijuana, a less addictive drug that is generally not as harmful as heroin, is\nlisted in Schedule VI.\n\nFederal and State Drug Crimes\nThe federal government and all fifty states criminalize the manufacture and cultivation, possession, sale, and\nuse of drugs categorized in a jurisdiction\xe2\x80\x99s drug schedule, with exceptions for validly prescribed drugs and\ndrugs involved in scientific or medical research. As discussed in Chapter 4 \xe2\x80\x9cThe Elements of a Crime\xe2\x80\x9d, the\ngovernment cannot criminalize the status of being a drug addict (Robinson v. California, 2011). However, there is\nno constitutional impediment to punishing criminal acts involving controlled substances, even though it may be\nmore difficult for an addict to control drug-related criminal behavior.\nIn most jurisdictions, the manufacture of scheduled drugs is a felony (Ala. Code \xc2\xa7 13A-12-217, 2011), with\na more severe penalty for the accompanying use of a firearm or the furtherance of a clandestine laboratory\noperation (Ala. Code \xc2\xa7 13A-12-218, 2011). Cultivation of marijuana, which must be done with general intent\nor knowingly, can be a misdemeanor or a felony, depending on the quantity cultivated (Ohio Rev. Code Ann. \xc2\xa7\n2925.04, 2011).\nPossession of scheduled drugs is typically graded based on the quantity possessed, the drug\xe2\x80\x99s classification\nin the schedule, and whether or not the possession is for the purpose of distribution, with the penalties ranging\nfrom a misdemeanor for simple possession to a serious felony for possession with intent to sell (Ohio Rev. Code\nAnn. \xc2\xa7 2925.11, 2011). As is discussed more fully in Chapter 4 \xe2\x80\x9cThe Elements of a Crime\xe2\x80\x9d, possession can be\nactual, meaning the drug is located on or very near the defendant\xe2\x80\x99s person, or constructive, meaning the drug is\nwithin the defendant\xe2\x80\x99s control (Connecticut Jury Instructions No. 2.11-1, 2010). Constructive possession can be\njoint, meaning between two or more (Connecticut Jury Instructions No. 2.11-1, 2010). Simple possession typically\nmust be with general intent or knowingly, while possession for the purpose of distribution or sale must be with\nspecific intent or purposely (People v. Parra, 2011). In many states, possession of marijuana is graded lower than\npossession of other scheduled drugs\xe2\x80\x94even as low as an infraction if the quantity is less than one ounce (Cal.\nHealth and Safety Code \xc2\xa7 11357(b), 2011).\nThe sale, distribution, or trafficking of scheduled drugs is generally a felony, with more severe penalties for\ndrugs in a higher schedule (N.C. Gen. Stat. \xc2\xa7 90-95, 2011), the sale of larger quantities (Ala. Code \xc2\xa7 13A-12-231,\n2011), a sale by an adult to a minor (Ala. Code \xc2\xa7 13A-12-215, 2011), or a sale near school grounds (Ala. Code \xc2\xa7\n13A-12-250, 2011).\nScheduled drug use, also designated as being under the influence of a controlled substance, is typically a\nmisdemeanor with more severe penalties for habitual offenders (Cal. Health and Safety Code \xc2\xa7 11550, 2011).\n\n\x0c12.3 Vice Crimes 457\n\nExample of Drug Crimes\nCharlene decides she wants to make some extra money by growing and selling marijuana. Charlene acquires some\nmarijuana seeds and plants a marijuana garden in her backyard. Once her plants are ready for harvest, Charlene\nharvests some buds, weighs and packages them, and then puts some of the packages into her backpack and walks\nto a street corner known for drug sales. After she arrives at the street corner, Rick drives up, rolls down his\nwindow, and asks Charlene if she knows where he can \xe2\x80\x9cscore.\xe2\x80\x9d Charlene replies, \xe2\x80\x9cI have some pot if that is what\nyou are looking for.\xe2\x80\x9d Rick responds affirmatively, so Charlene gets into Rick\xe2\x80\x99s car and they drive to a local park.\nRick insists on trying the marijuana before he buys it. Charlene takes out a joint, and Rick and Charlene smoke\nit. Thereafter, Rick buys one of Charlene\xe2\x80\x99s packages that weighs half an ounce and drops Charlene off back at the\nstreet corner.\nIn this example, Charlene has probably committed every drug crime discussed in Section 12 \xe2\x80\x9cFederal and\nState Drug Crimes\xe2\x80\x9d. When Charlene planted the marijuana garden, she committed cultivation of a scheduled\ndrug. Harvesting and packaging the marijuana is possession for sale. Smoking the marijuana with Rick is use, or\nunder the influence of a controlled substance. Selling Rick a half-ounce of marijuana is drug sale, distribution, or\ntrafficking. Rick has also probably committed two drug offenses. Smoking the marijuana with Charlene is use,\nor under the influence of a controlled substance. When Rick took the package of marijuana from Charlene, he\ncommitted possession (which may be an infraction in some states because he bought less than an ounce). Thus, in\nthis example, Charlene and Rick may be subject to prosecution for and conviction of the stated drug offenses in\nmost jurisdictions.\n\nModernization of Drug Crimes Statutes\nTwo new trends in state drug crimes statutes are the emphasis on rehabilitation for nonviolent drug offenders and\nthe legalization of marijuana for medical use.\nModern statutes allow nonviolent drug offenders to go through a specialized drug court that typically sentences\nthe offenders to probation and rehabilitation, rather than incarceration (Ariz. Rev. Stat. \xc2\xa7 13-3422, 2011). Common\noffenses for drug courts are simple possession and use of drugs listed in a jurisdiction\xe2\x80\x99s drug schedule (Ariz.\nRev. Stat. \xc2\xa7 13-3422, 2011). Typically, the drug court offender must participate in a rehabilitation program that\nincludes counseling and detoxification within a specified time period (Tex. Penal Code \xc2\xa7 469.001, 2011). During\nthe rehabilitation, the offender is frequently drug tested to ensure compliance. If the drug offender tests positive,\nreoffends, or does not complete the program within the specified time limits, the offender will be found guilty of\nthe original nonviolent drug offense and sentenced accordingly (Ariz. Rev. Stat. \xc2\xa7 13-3422, 2011).\nLegalization of marijuana for medical use is another modern statutory trend among the states. Currently,\nsixteen states and the District of Columbia legalize medical marijuana (Procon.org, 2011). The criteria under\nthese statutes vary, but in general a qualified individual can gain a prescription for marijuana from a caregiver,\nusually a physician, and thereafter obtain, possess, and use a specified quantity of marijuana (Alaska Stat. \xc2\xa7\xc2\xa7\n17.37.010-17.37.070, 2011). In some states, limited cultivation is also permissible (Cal. Health and Safety Code\n\xc2\xa7\xc2\xa7 11362.7-11362.83, 2011).\nThe legalization of marijuana for medical use presents an interesting constitutional dilemma because federal\nlaw lists marijuana as a Schedule 1 drug and does not permit its possession, use, or sale for medicinal purposes\n\n\x0c458 Criminal Law\n\n(21 U.S.C. \xc2\xa7 812, 2011). Technically, the legalization of marijuana for medical use violates the Supremacy\nClause in the federal Constitution, which Chapter 2 \xe2\x80\x9cThe Legal System in the United States\xe2\x80\x9d and Chapter 3\n\xe2\x80\x9cConstitutional Protections\xe2\x80\x9d discuss in detail. However, the US Supreme Court has not invalidated any state\xe2\x80\x99s\nmedical marijuana statutory scheme on this basis, although the Court has upheld federal Congress\xe2\x80\x99s authority to\nprohibit the possession and use of small quantities of marijuana under the Federal Controlled Substances Act\n(Gonzales v. Raich, 2011) and has rejected a medical necessity exception for the possession and use of marijuana\n(U.S. v. Oakland Cannavis Buyer\xe2\x80\x99s Cooperative, 2011).\n\nExample of the Modernization of Drug Crimes Statutes\nRemy lives in a state that legalizes marijuana for medical use and also has a drug court program. Remy obtains\na prescription from an authorized caregiver and then buys the maximum amount of marijuana permitted under\nher state\xe2\x80\x99s medical marijuana statute at a medical marijuana distribution center. As Remy leaves the distribution\ncenter, Donny, a drug dealer standing nearby, asks Remy if she would like to buy some cocaine. Remy agrees and\nbuys a gram of cocaine from Donny. Unfortunately for Remy, Donny is a federal Drug Enforcement Agent who\nthereafter arrests Remy for possession of marijuana and cocaine.\nIn this example, the federal government can most likely prosecute Remy for possession of both marijuana and\ncocaine, even though her state legalizes marijuana for medical use and Remy has complied with the requirements\nof the state medical marijuana statute. The US Supreme Court has held that the federal government may\ncriminalize the possession of small amounts of marijuana, and there is no federal medical necessity exemption.\nThus Remy may be subject to prosecution for and conviction of both of these offenses under federal law. Remy\xe2\x80\x99s\nstate also can prosecute Remy for possession of cocaine. Remy\xe2\x80\x99s state has a drug court program, so Remy may\nbe qualified to go through drug court for the possession of cocaine charge and may face only probation and\nrehabilitation for this offense rather than incarceration.\nFigure 12.9 Diagram of Modern Drug Crimes Statutes\n\n\x0c12.3 Vice Crimes 459\n\nCrimes Involving Prostitution\nEvery state except Nevada criminalizes prostitution. In Nevada, legal prostitution must follow specific guidelines\nand can occur only in a licensed house of prostitution (N.R.S. 201.354, 2011).\nThe criminal act element required for prostitution varies, depending on the jurisdiction. In many states,\nprostitution is offering, agreeing, or engaging (N.Y. Penal Law \xc2\xa7 230.00, 2011) in sexual conduct for money (N.Y.\nPenal Law \xc2\xa7 230.00, 2011), property, or anything of value (720 ILCS \xc2\xa7 5/11-14, 2011). Agreeing and engaging\nare both considered prostitution, so the prostitute and the prostitute\xe2\x80\x99s client could be prosecuted for and convicted\nof prostitution in most jurisdictions. The Model Penal Code criminalizes loitering in or within view of any public\nplace for the purpose of being hired to engage in sexual activity and an inmate of a house of prostitution engaging\nin sexual activity as a business (Model Penal Code \xc2\xa7 251.1(1)). The sexual conduct or sexual activity specified in\nstatutes criminalizing prostitution generally includes sexual penetration, touching, or fondling sexual organs for\nsexual gratification (720 ILCS \xc2\xa7 5/11-14, 2011). The Model Penal Code includes homosexual and deviate activity\n(Model Penal Code \xc2\xa7 251.1).\nThe criminal intent element required for prostitution is either strict liability (N.Y. Penal Law \xc2\xa7 230.00, 2011)\nor general intent or knowingly in most jurisdictions (N.M. Stat. \xc2\xa7 30-9-2, 2011). The Model Penal Code requires\npurposeful intent if the defendant is loitering to engage in prostitution or strict liability if an inmate in a house of\nprostitution engages in prostitution as a business (Model Penal Code \xc2\xa7 251.1). Prostitution is typically graded as\na misdemeanor, with sentencing enhancements for habitual offenders, prostitution that occurs near a school (720\nILCS \xc2\xa7 5/11-14, 2011), or clients who patronize juvenile prostitutes (N.Y. Penal Law \xc2\xa7 230.06, 2011). The Model\nPenal Code grades prostitution as a petty misdemeanor (Model Penal Code \xc2\xa7 251.1(1)).\nTwo crimes associated with prostitution are pimping and pandering. Although the elements of these offenses\n\n\x0c460 Criminal Law\n\nvary depending on the jurisdiction, in general, the criminal act element required for pimping is receiving anything\nof value from a prostitute with the general intent or knowingly that it was earned by prostitution (720 ILCS \xc2\xa7 5/\n11-19, 2011). Pimping is generally graded as a misdemeanor (720 ILCS \xc2\xa7 5/11-19, 2011) or felony (N.M. Stat.\n\xc2\xa7 30-9-4.1, 2011), with sentencing enhancements if intimidation or force is used to compel an act of prostitution\n(N.Y. Penal Law \xc2\xa7 230.33, 2011) or if the prostitute is a juvenile (N.Y. Penal Law \xc2\xa7 230.32, 2011).\nPandering is generally procuring another (criminal act) with the specific intent or purposely to commit an\nact of prostitution (Cal. Penal Code \xc2\xa7 266 i, 2011). Pandering is typically graded as a felony, with sentencing\nenhancement if the pandering occurs near a school (720 ILCS \xc2\xa7 5/11-16, 2011). The Model Penal Code\ncriminalizes a broad spectrum of conduct as promoting prostitution, including encouraging and inducing another\npurposely to become or remain a prostitute (Model Penal Code \xc2\xa7 251.1(2) (c)). The Model Penal Code grades\nthese acts of promoting prostitution as felonies of the third degree (Model Penal Code \xc2\xa7 251.1(3) (a)).\n\nExample of Crimes Involving Prostitution\nDaniel approaches Penelope, a sixteen-year-old, as she wanders down the sidewalk. Daniel asks Penelope if she\nwould like to earn a little extra cash. Penelope responds affirmatively, and Daniel asks her if she will have sexual\nintercourse with John (who is an adult) for one hundred and fifty dollars. Penelope eagerly agrees. Daniel walks\nPenelope over to the entrance of a motel where John is waiting. John and Penelope enter the motel, and John\nrents a room where they engage in sexual intercourse. Afterward, John pays Penelope the one hundred and fifty\ndollars. As Penelope leaves the motel, Daniel swiftly walks over, grabs Penelope by the wrist, and demands the\none hundred and fifty dollars. Penelope protests, but Daniel twists her arm behind her back, and she grudgingly\nhands him the money. Daniel removes twenty dollars, hands it to Penelope, and informs her that it is her \xe2\x80\x9cshare,\xe2\x80\x9d\nand if she wants more, she needs to engage in another act of sexual intercourse.\nIn this example, Penelope and John have probably committed prostitution, and Daniel has most likely\ncommitted pimping and pandering in many jurisdictions. When Penelope has sexual intercourse with John for one\nhundred and fifty dollars, she is engaging in sexual conduct for money with general intent or knowingly, which\nconstitutes prostitution in most jurisdictions. When John has sexual intercourse with Penelope and thereafter pays\nher one hundred and fifty dollars, he is engaging in sexual conduct for money with general intent or knowingly,\nwhich is also generally criminal prostitution. Penelope is a juvenile, so John\xe2\x80\x99s sentence may be enhanced\nand more severe than Penelope\xe2\x80\x99s. When Daniel procures John and Penelope for the purpose of committing\nprostitution, he is most likely committing pandering. When Daniel takes money from Penelope with the general\nintent or knowingly that it was earned by prostitution, he is probably committing pimping. The use of force to\nobtain the money and Penelope\xe2\x80\x99s age could enhance Daniel\xe2\x80\x99s sentence for both crimes in many jurisdictions. Thus\nPenelope, John, and Daniel may be subject to prosecution for and conviction of the stated crimes of prostitution,\npimping, and pandering in most jurisdictions.\n\nProstitution Video\n\xe2\x80\x9cThe Yard Blues\xe2\x80\x9d: A Reality of Drugs and Prostitution\nA prostitute\xe2\x80\x99s life is described in this video:\n" href="http://www.youtube.com/watch?v=Hspx7mTyDcU" class="replaced-iframe" onclick="return\n\n\x0c12.3 Vice Crimes 461\n\nreplaceIframe(this)" data-url="http://www.youtube.com/watch?v=Hspx7mTyDcU">(click to see video)\n\nEliot Spitzer Video\nNew York Governor Eliot Spitzer Resigns after Sex Scandal\nThis video shows former New York Governor Spitzer resigning after being exposed for his connection with a\nprostitution ring (Hakim, D., Rashbaum, W. K., 2011):\n" href="http://www.youtube.com/watch?v=Ilwe8Y-6dsw" class="replaced-iframe" onclick="return\nreplaceIframe(this)" data-url="http://www.youtube.com/watch?v=Ilwe8Y-6dsw">(click to see video)\n\nFigure 12.10 Diagram of Vice Crimes\n\nVarious Vice Statutes\nMost states criminalize gambling (18 Pa. C.S. \xc2\xa7 5513, 2011), drunkenness in public (Cal. Penal Code \xc2\xa7 647(f),\n2011), and driving while under the influence (Or. Rev. Stat. \xc2\xa7 813.010, 2011). Review the representative state\nstatutes in the Notes for the elements of these vice crimes.\n\n\x0c462 Criminal Law\n\nKey Takeaways\n\xe2\x80\xa2\n\nFederal criminal statutes targeting illegal drugs are part of the Comprehensive Drug Abuse Prevention\nand Control Act of 1970, commonly known as the Controlled Substances Act. The states follow one of the\nthree versions of the Uniform Controlled Substances Act, which was drafted by a commission striving for\nuniformity in state and federal laws.\n\n\xe2\x80\xa2\n\nFor the purpose of drug crimes, the states and the federal government categorize illegal drugs in\nschedules. The schedules generally focus on the harmful or addictive qualities of the drug, with Schedule I\ndrugs being the most harmful or addictive, and the remaining schedules reflecting less harmful or addictive\ndrugs, including drugs that are legal with a prescription.\n\n\xe2\x80\xa2\n\nIn most jurisdictions, the manufacture of scheduled drugs is a felony, and cultivation of marijuana, which\nmust be done with general intent or knowingly, can be a misdemeanor or a felony, depending on the quantity\ncultivated. Possession of scheduled drugs is typically graded based on the quantity, schedule classification,\nand whether or not the possession is for sale, with penalties ranging from a misdemeanor for simple\npossession to a serious felony for possession with intent to sell. Possession of less than an ounce of\nmarijuana is graded lower than possession of other scheduled drugs in many jurisdictions. Sale, distribution,\nor trafficking of scheduled drugs is generally graded as a felony, with sentencing enhancements for drugs in\na higher schedule, the sale of larger quantities, a sale by an adult to a minor, or a sale near school grounds.\nScheduled drug use is typically a misdemeanor with more severe penalties for habitual offenders.\n\n\xe2\x80\xa2\n\nTwo modern trends in state drug crimes statutes are the emphasis on rehabilitation for nonviolent drug\noffenders, which drug courts provide through sentencing, and the legalization of marijuana for medical use\nin sixteen states and the District of Columbia.\n\n\xe2\x80\xa2\n\nTechnically, a state\xe2\x80\x99s legalization of marijuana for medical use violates the Supremacy Clause because\nfederal law classifies marijuana as a Schedule I drug and does not allow its possession, sale, or use for any\npurpose.\n\n\xe2\x80\xa2\n\nProstitution is generally offering, agreeing, or engaging in sexual conduct for money or anything of value\n(criminal act), with general intent or knowingly, or strict liability. Prostitution is typically graded as a\nmisdemeanor, with sentencing enhancements for habitual offenders, prostitution that occurs near a school,\nor clients who patronize juvenile prostitutes. Pimping is generally receiving anything of value from a\nprostitute (criminal act), with general intent or knowingly that it was earned by prostitution in many\njurisdictions, and is typically graded as a misdemeanor or felony, with sentencing enhancements if\nintimidation or force is used to compel an act of prostitution or if the prostitute is a juvenile. Pandering is\ngenerally procuring another (criminal act) with specific intent or purposely to commit an act of prostitution\nand is typically graded as a felony with sentencing enhancement if the pandering takes place near a school.\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nAnita lives in a state that permits the possession and use of marijuana for medical reasons. Anita obtains\nsome marijuana and uses it to treat her medical condition, carefully following her state\xe2\x80\x99s statutory\nrequirements. Has Anita committed a crime(s)?\n\n2.\n\nRead Poindexter v. State, 153 S.W. 3d 402 (2005). In Poindexter, the defendant purchased cocaine from a\nconfidential informant inside his house. After the defendant left, a subsequent law enforcement search\nuncovered the cocaine inside a tin breath mints can hidden in the ceiling of the master bedroom closet. The\ndefendant was convicted at trial, but the appellate court reversed, based on the fact that another individual\n\n\x0c12.3 Vice Crimes 463\n\nwas seen on the premises, so there was insufficient proof of the defendant\xe2\x80\x99s possession. Did the Court of\nCriminal Appeals of Texas affirm the court\xe2\x80\x99s reversal? Why or why not? The case is available at this link:\nhttp://scholar.google.com/scholar_case?case=10968287895213637721&q=\npossession+of+drugs+roommate+control+%22joint+possession%22&hl=en&as_sdt=2,5&as_ylo=2002.\n3.\n\nRead People v. Watson, No. 90962 (Ohio 2120 2009). In Watson, the defendant was convicted of\ncompelling prostitution. The defendant appealed on the grounds that the proper interpretation of compelling\nprostitution under the Ohio statute requires force, duress, or coercion and the defendant merely arranged it\nso that the prostitute had no money for shelter, clothes, and food if she did not continually commit\nprostitution. Did the Court of Appeals of Ohio uphold the defendant\xe2\x80\x99s conviction? Why or why not? The\ncase is available at this link: http://scholar.google.com/scholar_case?case=5203798681398361958&q=\nprostitution+client+acquitted+%22convicted+of+prostitution+%22&hl=en&as_sdt=2,5&as_ylo=2002.\n\nLaw and Ethics\nShould Convicted Prostitutes Be Subjected to Involuntary AIDS Testing?\nRead Love v. Superior Court, 226 Cal. App. 3d 736 (1990). The case is available at this link:\nhttp://scholar.google.com/scholar_case?case=16603325888575880385&q=\nLove+v.+Superior+Court&hl=en&as_sdt=2,5. In Love, the defendants, convicted prostitutes, challenged the\nconstitutionality of a California statute that required AIDS testing and counseling for those convicted of prostitution and\nother sex offenses (Cal. Penal Code \xc2\xa7 1202.1, 2011). The defendants claimed the statute was an unreasonable search\npursuant to the Fourth Amendment and also violated the due process and the equal protection clauses. The California\nCourt of Appeals upheld the statute, holding that the \xe2\x80\x9cspecial need\xe2\x80\x9d of preventing the spread of AIDS was a valid\nexercise of state police power, and the statute was a reasonable means to effectuate that interest. In California, soliciting\nor agreeing to exchange sexual conduct for money constitutes prostitution (Cal. Penal Code \xc2\xa7 647(b), 2011), so a\nconviction for prostitution does not necessarily indicate an exchange of bodily fluids that could spread AIDS.\n1.\n\nDo you think it is ethical to require all convicted prostitutes to submit to AIDS testing, whether or not\nthey engaged in sexual intercourse? Why or why not?\n\nCheck your answer using the answer key at the end of the chapter.\n\nReferences\nGonzales v. Raich, 545 U.S. 1 (2005), accessed April 17, 2011, http://www.oyez.org/cases/2000-2009/2004/\n2004_03_1454.\nPeople v. Parra, 70 Cal. App. 4th 222 (1999), accessed April 17, 2011, http://scholar.google.com/\nscholar_case?case=5809016451778310933&q= People+v.+Parra+70+Cal.+App.+4th+222&hl=en&as_sdt=2,5.\nRobinson v. California, 370 U.S. 660 (1962), accessed April 18, 2011, http://scholar.google.com/\nscholar_case?case=3358010003227436496&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\nU.S. v. Oakland Cannabis Buyers\xe2\x80\x99 Cooperative, 532 U.S. 483 (2001), accessed April 17, 2011,\nhttp://www.oyez.org/cases/2000-2009/2000/2000_00_151.\n18 Pa. C.S. \xc2\xa7 5513, accessed April 21, 2011, http://law.onecle.com/pennsylvania/crimes-and-offenses/\n00.055.013.000.html.\n\n\x0c464 Criminal Law\n\n21 U.S.C. \xc2\xa7 801 et seq., accessed April 17, 2011, http://www.deadiversion.usdoj.gov/21cfr/21usc/index.html.\n21\nU.S.C.\n\xc2\xa7 812,\naccessed\nApril\n17,\n2011,\nhttp://www.law.cornell.edu/uscode/21/\nusc_sec_21_00000812\xe2\x80\x94-000-.html.\n720 ILCS \xc2\xa7 5/11-14, accessed April 21, 2011, http://law.onecle.com/illinois/720ilcs5/11-14.html.\n720 ILCS \xc2\xa7 5/11-16, accessed April 21, 2011, http://law.onecle.com/illinois/720ilcs5/11-16.html.\nAla. Code \xc2\xa7 13A-12-217, accessed April 17, 2011, http://law.onecle.com/alabama/criminal-code/\n13A-12-217.html.\nAla. Code \xc2\xa7 13A-12-218, accessed April 17, 2011, http://law.onecle.com/alabama/criminal-code/\n13A-12-218.html.\nAla. Code \xc2\xa7 13A-12-231, accessed April 17, 2011, http://law.onecle.com/alabama/criminal-code/\n13A-12-231.html.\nAla. Code \xc2\xa7 13A-12-250, accessed April 17, 2011, http://law.onecle.com/alabama/criminal-code/\n13A-12-250.html.\nAlaska Stat. \xc2\xa7\xc2\xa7 17.37.010-17.37.070, accessed April 17, 2011, http://medicalmarijuana.procon.org/sourcefiles/\nalaska-ballot-measure-8.pdf.\nAriz. Rev. Stat. \xc2\xa7 13-3422, accessed April 17, 2011, http://law.onecle.com/arizona/criminal-code/13-3422.html.\nCal. Health and Safety Code \xc2\xa7 11357(b), accessed April 18, 2011, http://www.canorml.org/laws/\nhsc11357.html#b.\nCal. Health and Safety Code \xc2\xa7 11550, accessed April 17, 2011, http://law.onecle.com/california/health/\n11550.html.\nCal.\nHealth\nand\nSafety\nCode\n\xc2\xa7\xc2\xa7 11362.7-11362.83,\naccessed\nApril\n17,\n2011,\nhttp://medicalmarijuana.procon.org/view.resource.php?resourceID=000881#California.\nCal. Penal Code \xc2\xa7 1202.1, accessed April 22, 2011, http://law.onecle.com/california/penal/1202.1.html.\nCal. Penal Code \xc2\xa7 266 i, accessed April 21, 2011, http://law.onecle.com/california/penal/266i.html.\nCal. Penal Code \xc2\xa7 647(b), accessed April 2, 2011, http://law.onecle.com/california/penal/647.html.\nCal. Penal Code \xc2\xa7 647(f), accessed April 21, 2011, http://law.onecle.com/california/penal/647.html.\nConnecticut Jury Instructions No. 2.11-1, http://www.jud.ct.gov/ji/criminal/part2/2.11-1.htm (accessed\nFebruary 13, 2010).\nHakim, D., William K. Rashbaum, \xe2\x80\x9cSpitzer Is Linked to Prostitution Ring,\xe2\x80\x9d New York Times website, accessed\nSeptember 4, 2011, http://www.nytimes.com/2008/03/10/nyregion/10cnd-spitzer.html.\nMinn. Stat. Ann. \xc2\xa7 152.02, accessed April 17, 2011, https://www.revisor.mn.gov/statutes/?id=152.02 (accessed\nApril 17, 2011).\nN.C. Gen. Stat. \xc2\xa7 90-89-90-94, accessed April 17, 2011, http://www.ncga.state.nc.us/EnactedLegislation/\nStatutes/HTML/ByArticle/Chapter_90/Article_5.html.\nN.C. Gen. Stat. \xc2\xa7 90-95, accessed April 17, 2011, http://www.ncga.state.nc.us/EnactedLegislation/Statutes/\nHTML/ByArticle/Chapter_90/Article_5.html.\nN.M. Stat. \xc2\xa7 30-9-2, accessed April 21, 2011, http://law.justia.com/codes/new-mexico/2009/chapter-30/\narticle-9/section-30-9-2.\nN.M. Stat. \xc2\xa7 30-9-4.1, accessed April 21, 2011, http://law.justia.com/codes/new-mexico/2009/chapter-30/\narticle-9/section-30-9-4-1.\nN.R.S. 201.354, accessed April 18, 2011, http://law.onecle.com/nevada/crimes/201.354.html.\nN.Y. Penal Law \xc2\xa7 230.00, accessed April 21, 2011, http://law.onecle.com/new-york/penal/\nPEN0230.00_230.00.html.\n\n\x0c12.3 Vice Crimes 465\n\nN.Y. Penal Law \xc2\xa7 230.06, accessed April 21, 2011, http://law.onecle.com/new-york/penal/\nPEN0230.06_230.06.html.\nN.Y. Penal Law \xc2\xa7 230.32, accessed April 21, 2011, http://law.onecle.com/new-york/penal/\nPEN0230.32_230.32.html.\nN.Y. Penal Law \xc2\xa7 230.33, accessed April 21, 2011, http://law.onecle.com/new-york/penal/\nPEN0230.33_230.33.html.\nOhio Rev. Code Ann. \xc2\xa7 2925.04, accessed April 17, 2011, http://codes.ohio.gov/orc/2925.04.\nOhio Rev. Code Ann. \xc2\xa7 2925.11, accessed April 17, 2011, http://codes.ohio.gov/orc/2925.\nOr. Rev. Stat. \xc2\xa7 813.010, et seq., accessed April 21, 2011, http://law.onecle.com/oregon/813-driving-under-theinfluence-of/index.html.\nProcon.org website, \xe2\x80\x9cMedical Marijuana Summary Chart,\xe2\x80\x9d accessed April 17, 2011,\nhttp://medicalmarijuana.procon.org/view.resource.php?resourceID=000881.\nTex. Penal Code \xc2\xa7 469.001, accessed April 17, 2011, http://codes.lp.findlaw.com/txstatutes/HS/6/B/469/\n469.001.\nUniform Controlled Substances Act (1994), accessed April 17, 2011, http://www.law.upenn.edu/bll/archives/\nulc/fnact99/1990s/ucsa94.pdf.\n\n\x0c12.4 End-of-Chapter Material\n\nSummary\nStates have an interest in protecting the quality of life of citizens, and therefore prohibit crimes against the public.\nMost jurisdictions criminalize disorderly conduct, which is making a loud and unreasonable noise, obscene utterance or\ngesture, fighting, threatening or stating fighting words, or creating a hazardous condition in public, with the specific\nintent or purposely or reckless intent to cause public inconvenience and alarm or a risk thereof. Disorderly conduct\nstatutes target speech, so they are subject to constitutional challenges under the First and Fourteenth Amendments.\nDisorderly conduct is typically graded as a misdemeanor. Unconstitutionally vague statutes criminalizing vagrancy have\nbeen supplanted by precisely drafted statutes criminalizing loitering, which is loitering, wandering, or remaining with\nspecific intent or purposely to gamble, beg, or commit prostitution in a specified area. Loitering is typically graded as a\nmisdemeanor or a violation. Panhandling or begging is also criminal in many jurisdictions, and panhandling statutes\nshould be narrowly tailored to target aggressive conduct or conduct that blocks public access or the normal flow of\ntraffic. Sit-lie laws prohibit sitting or lying down with strict liability intent in public or on a sidewalk during specified\ntimes in certain areas. Sit-lie laws are subject to constitutional challenges as cruel and unusual punishment or void for\nvagueness and are typically graded as an infraction.\nGroup conduct tends to enhance the potential for force and violence. Most jurisdictions criminalize unlawful\nassembly, which is purposefully assembling or meeting to cause a breach of the peace, and failure to disperse, which is\nthe knowing refusal or failure to disperse when ordered to by law enforcement. Both unlawful assembly and failure to\ndisperse statutes are subject to constitutional challenges under the First Amendment or as void for vagueness and\noverbroad, require the attendant circumstance of a group minimum of two, three, or five, and are graded as a\nmisdemeanor. Most jurisdictions also criminalize riot, which is group commission of an unlawful act of violence or a\nlawful act in an unlawful manner, with the specific intent or purposely to commit or facilitate a misdemeanor or felony\nor prevent official action, or the general intent or knowingly that one of the group plans to use a firearm or deadly\nweapon. In some jurisdictions, riot is a strict liability offense. A few jurisdictions require the defendants to be the factual\nand legal cause of riot harm, which is public terror and alarm. Riot typically requires the attendant circumstance of a\ngroup minimum of two, five, or six and is graded as a misdemeanor or a felony if a firearm is used or if there is property\ndamage or physical injury to someone other than the defendants.\nGang conduct is prohibited federally and in state statutes. States either criminalize gang conduct as gang\nparticipation, enhance a penalty for a crime committed by a criminal gang or gang member, or both. Gang participation\nis generally furthering the commission of a felony for the benefit of a criminal gang with the general intent or\nknowingly that other members participate in gang activity and is a felony. Gang enhancement statutes enhance the\npenalty for the commission of a felony or misdemeanor at the direction of or to further a criminal gang. Civil responses\nto gang conduct are civil gang activity statutes providing for damages and civil gang injunctions, which prohibit gang\nassociation, hand signs, wearing of gang colors, and loitering in areas known for gang activity. Statutes regulating gangs\nare subject to constitutional challenges under the First Amendment and as void for vagueness or overbroad.\nAll states and the federal government criminalize specific controlled substances offenses. Jurisdictions classify drugs\nin schedules, based on their harmful or addictive qualities, and punish drug offenses accordingly. Common offenses are\nthe manufacture, cultivation, possession for personal use or sale, sale, and use of scheduled drugs, with the grading\nranging from a felony to an infraction, depending on the offense and the drug. Some jurisdictions provide rehabilitation\ncombined with probation as a penalty for nonviolent offenders through a drug court procedure. Some jurisdictions also\nlegalize marijuana for medical use, which could violate federal supremacy because the federal government does not\nlegalize marijuana for this purpose.\nAll states except Nevada criminalize prostitution. In Nevada, only prostitution that occurs in a licensed house of\nprostitution is noncriminal. Prostitution is offering, agreeing, or engaging in specified sexual conduct for money or\nanything of value, with strict liability or general intent or knowingly in most jurisdictions, and is typically graded as a\n\n466\n\n\x0c12.4 End-of-Chapter Material 467\n\nmisdemeanor with sentencing enhancements for habitual offenders, prostitution that occurs near a school, or patronizing\na juvenile prostitute. Pimping is generally receiving something of value from a prostitute, with general intent or\nknowingly that it was earned by prostitution, and is graded as a misdemeanor or a felony with sentencing enhancements\nif the defendant uses force or the prostitute is a juvenile. Pandering is generally procuring another for an act of\nprostitution with specific intent or purposely and is typically graded as a felony with sentencing enhancement if the\npandering takes place near a school.\n\nYou Be the Legislator\nYou are a legislator with a perfect record for voting on statutes that are constitutional. You have been presented with\nfour proposed statutes. Read each one, and then read the case analyzing a replica statute for constitutionality. Decide\nwhether you should vote for or against the proposed statute if you want to keep your perfect record. Check your\nanswers using the answer key at the end of the chapter.\n1.\n\nThe proposed statute is Disorderly Conduct and reads as follows: It is a misdemeanor to engage in\nindecent or disorderly conduct in the presence of another in a public place. This statute was analyzed for\nconstitutionality by Satterfield v. State, 395 S.E. 2d 816 (1990). The case is available at this link:\nhttp://scholar.google.com/scholar_case?case=8539981756406627329&q=\nSatterfield+v.+State+395&hl=en&as_sdt=2,5. Should you vote for or against the statute?\n\n2.\n\nThe proposed statute is Loitering for prostitution and reads as follows: It is unlawful for any person to\nloiter in or near any public place in a manner and under circumstances manifesting the purpose of inducing,\nenticing, soliciting for or procuring another to commit an act of prostitution. Among the circumstances that\nmay be considered in determining whether such purpose is manifested are that such person repeatedly\nbeckons to, stops, or attempts to stop or engages persons passing by in conversation, or repeatedly stops or\nattempts to stop motor vehicle operators by hailing, waving of arms or any other bodily gesture. This statute\nwas analyzed for constitutionality by Silvar v. Dist. Ct., 129 P.3d 682 (2006). The case is available at this\nlink: http://scholar.google.com/scholar_case?case=15323479136078401167&q=\nSilvar+v.+Dist.+Ct.&hl=en&as_sdt=2,5. Should you vote for or against the statute?\n\n3.\n\nThe proposed statute is Gang Violence and Juvenile Crime Prevention Act and reads as follows: State\nProsecutors are hereby authorized to bring specified crime charges against minors fourteen and older in the\ncriminal division of adult court rather than in the juvenile division without a judicial determination that the\nminor is unfit for a juvenile court disposition. This statute was analyzed for constitutionality by Manduley v.\nSuperior Court, 41 P.3d 3 (2002). The case is available at this link: http://scholar.google.com/\nscholar_case?case=14196981766707899172&q= Manduley+v.+Superior+Court&hl=e.n&as_sdt=2,5.\nShould you vote for or against the statute?\n\n4.\n\nThe proposed statute is Mere Possession and reads as follows: It is a crime to possess an unprescribed\ncontrolled substance. This statute was analyzed for constitutionality by State v. Bradshaw, 98 P.3d 1190\n(2004). The case is available at this link: http://scholar.google.com/\nscholar_case?case=33245956757868529&q= State+v.+Bradshaw+98&hl=en&as_sdt=2,5. Should you vote\nfor or against the statute?\n\nCases of Interest\n\xe2\x80\xa2\n\nRoulette v. City of Seattle, 97 F.3d 300 (1996), discusses sit-lie laws: http://scholar.google.com/\nscholar_case?case=11766310634401293489&q= %22sit+lie+%22&hl=en&as_sdt=2,5.\n\n\x0c468 Criminal Law\n\n\xe2\x80\xa2\n\nNoy v. State, 83 P.3d 538 (2003), discusses Alaska\xe2\x80\x99s possession of marijuana law:\nhttp://scholar.google.com/scholar_case?case=17763301345063946977&q=\n%22Noy+v.+State%22&hl=en&as_sdt=2,5.\n\n\xe2\x80\xa2\n\nPhillips v. State, 25 So. 3d 404 (2010), discusses the right to participate in drug court:\nhttp://scholar.google.com/scholar_case?case=706671360238134410&q=\n%22drug+court%22&hl=en&as_sdt=2,5&as_ylo=2009.\n\n\xe2\x80\xa2\n\nIn re BW, 313 S.W. 3d 818 (2010), discusses juvenile prostitution: http://scholar.google.com/\nscholar_case?case=13593192130854531269&q=\n%22prostitution+statute%22&hl=en&as_sdt=2,5&as_ylo=2009.\n\nArticles of Interest\n\xe2\x80\xa2\n\nTrue threats and the First Amendment: http://works.bepress.com/cgi/viewcontent.cgi?article\n=1018&context=mark_strasser\n\n\xe2\x80\xa2\n\nGang injunctions: http://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1736&context\n=ggulrev\n\n\xe2\x80\xa2\n\nSubstance abuse in America: http://works.bepress.com/cgi/viewcontent.cgi?article=1000&context\n=edward_perez\n\nWebsites of Interest\n\xe2\x80\xa2\n\nInformation about the homeless: http://www.nationalhomeless.org\n\n\xe2\x80\xa2\n\nInformation about gangs: http://www.nationalgangcenter.gov\n\n\xe2\x80\xa2\n\nInformation about the legalization of prostitution: http://prostitution.procon.org\n\nStatistics of Interest\n\xe2\x80\xa2\n\nHomelessness: http://www.nationalhomeless.org/factsheets\n\n\xe2\x80\xa2\n\nGang violence: http://www.ncjrs.gov/app/QA/Detail.aspx?Id=11&context=9\n\n\xe2\x80\xa2\n\nDrug crime: http://www.dea.gov/druginfo/factsheets.shtml\n\nAnswers to Exercises\nFrom Section 12.1 \xe2\x80\x9cQuality-of-Life Crimes\xe2\x80\x9d\n\n\x0c12.4 End-of-Chapter Material 469\n\n1.\n\nThe ordinance can be challenged under the First Amendment, as void for vagueness, and as overbroad.\nA sign is expressive, so a First Amendment challenge is appropriate. The words \xe2\x80\x9cextended period\xe2\x80\x9d are\nvague, which can lead to uneven application by law enforcement and a failure to provide notice to the public\nof what behavior is criminal. Holding a sign such as a school crossing sign is protected activity, so an\noverbreadth challenge is also in order. The government has an interest in keeping the roadways safe, and in\npreventing dangerous distractions that could occur when drivers try to read signs while approaching a\ncrosswalk.\n\n2.\n\nThe Supreme Court of Rhode Island held that the disorderly conduct statute was not vague or overbroad\nsimply because it does not require conduct to occur in public, and therefore the defendant\xe2\x80\x99s attack of his\nspouse in a private residence could be prosecuted as \xe2\x80\x9ccreating a hazardous condition.\xe2\x80\x9d\n\n3.\n\nThe Supreme Court of New York held that \xe2\x80\x9cbegging\xe2\x80\x9d is constitutionally protected expression under the\nFirst Amendment, and thereafter reversed the defendant\xe2\x80\x99s conviction under New York\xe2\x80\x99s loitering for the\npurpose of begging statute.\n\nAnswers to Exercises\nFrom Section 12.2 \xe2\x80\x9cCrimes Targeting Group Conduct\xe2\x80\x9d\n1.\n\nThe First Amendment protects an individual\xe2\x80\x99s right to stand in a public place and hold a sign as long as\nthe sign is not obscene, fighting words, or a true threat. Signs indicating a disbelief in the holocaust are most\nlikely upsetting to Jewish individuals attending temple, but they must constitute fighting words or a true\nthreat if they are to be constitutionally prohibited. If the law enforcement officer arrests the individuals for\nunlawful assembly pursuant to a statute that arguably prohibits such conduct, the statute is subject to\nconstitutional attack under the First Amendment or for overbreadth.\n\n2.\n\nThe US Court of Appeals for the Second Circuit upheld the defendant\xe2\x80\x99s conviction. The court held that\nthe lower court\xe2\x80\x99s interpretation of New York\xe2\x80\x99s first-degree riot statute did not violate due process by\ndenying the defendant notice that his conduct was criminal, even though the interpretation extended the\nstatute\xe2\x80\x99s reach by including conduct that occurred after the defendant left the scene of the riot.\n\n3.\n\nThe California Court of Appeal held that the defendant was not entitled to a jury trial on his gang\nmembership for purposes of a civil gang injunction because of the civil nature of the action and the fact that\nhis physical liberty was not directly at stake.\n\nAnswers to Exercises\nFrom Section 12.3 \xe2\x80\x9cVice Crimes\xe2\x80\x9d\n1.\n\nAnita has committed the federal crimes of possession and use of marijuana. Although Anita\xe2\x80\x99s state has\nlegalized marijuana for medical use, and Anita complied with her state\xe2\x80\x99s statutory requirements, the Federal\nControlled Substances Act criminalizes the possession and use of marijuana, and there is no federal medical\nnecessity exemption.\n\n2.\n\nThe Court of Criminal Appeals of Texas reversed, holding that evidence of the cocaine\xe2\x80\x99s presence in a\nhidden location accessible only to someone exercising control over the house, the defendant\xe2\x80\x99s ownership of\nthe house, and evidence that the cocaine was conveniently accessible to the defendant was sufficient to\nconvict the defendant of possession of cocaine.\n\n\x0c470 Criminal Law\n\n3.\n\nThe Court of Appeals of Ohio reversed, finding no evidence of force, duress, or coercion because the\nprostitute\xe2\x80\x99s testimony indicated that \xe2\x80\x9cnothing would happen\xe2\x80\x9d if she refused to turn money earned from\nprostitution over to the defendant.\n\nAnswer to Law and Ethics Question\n1.\n\nCombating a syndrome like AIDS is clearly a legitimate state concern, and, generally, individual\nprotections can be sublimated constitutionally as long as they are outweighed by the government interest at\nstake. In this case, the individual interest in avoiding a potentially life-saving blood test is not nearly as\nparamount as the government interest in preventing the spread of a communicable disease. Neither the risk\nof a stigma nor the ethics involved in targeting prostitutes are outweighed by the government interest. It is\nreasonable to infer, as the court stated, that convicted prostitutes have been or will be sexually active with\nmultiple partners. Thus the California statutory scheme appears to be a minimally invasive and reasonable\nmethod to protect the health and well-being of California citizens, which makes it as ethical as statutes\ntargeting the homeless, for example, sit-lie laws.\n\nAnswers to You Be the Legislator\n1.\n\nThe Supreme Court of Georgia held that the statute fails to define in any manner what is meant by\nindecent or disorderly conduct, so it does not provide fair warning to persons of ordinary intelligence of\nwhat is criminal, gives too much discretion to law enforcement, and is therefore void for vagueness. Thus\nyou should vote against the proposed statute if you want to keep your perfect record.\n\n2.\n\nThe Nevada Supreme Court held that the statute is void for vagueness because it does not adequately\nspecify the circumstances for which a person could be arrested, thus failing to provide fair warning to\npersons of ordinary intelligence of what is criminal and giving too much discretion to law enforcement. The\ncourt also held that the statute is overbroad because it criminalizes protected conduct like waving and\nbeckoning. Thus you should vote against the proposed statute if you want to keep your perfect record.\n\n3.\n\nThe California Supreme Court held that the statute did not violate separation of powers and was not\nunconstitutionally discriminatory pursuant to the equal protection clause, even though filing charges in adult\ncourt affects a juvenile\xe2\x80\x99s sentencing because this is incidental to the prosecutor\xe2\x80\x99s traditional role in charging\nindividuals with crimes. In addition, the court held that juveniles were subject to concurrent jurisdiction\nbetween juvenile and adult court, so the statute did not deprive them of rights guaranteed by due process of\nlaw, nor did it subject them to cruel and unusual punishment. Thus you should vote for the proposed statute\nand you will keep your perfect record.\n\n4.\n\nThe Washington Supreme Court found that the legislature had revised the statute to omit a criminal intent\nrequirement, and this revision is constitutional even though the law disfavors strict liability criminal statutes.\nThus you should vote for the proposed statute and you will keep your perfect record.\n\n\x0cChapter 13: Crimes against the Government\n\nSource: Image courtesy of Tara Storm.\n\nBribery, of course, connotes a voluntary offer to obtain gain, where extortion connotes some form of coercion.\n\xe2\x80\x94U.S. v. Adcock, cited in Section 13.3.2 \xe2\x80\x9cBribery Elements\xe2\x80\x9d\n\n471\n\n\x0c13.1 Crimes Involving National Security\n\nLearning Objectives\n1.\n\nDefine the elements of treason, and analyze treason\xe2\x80\x99s evidentiary requirements and grading.\n\n2.\n\nDefine the elements of sedition, and analyze sedition grading.\n\n3.\n\nDefine the elements of various forms of sabotage, and analyze sabotage grading.\n\n4.\n\nDefine the elements of espionage, and analyze espionage grading.\n\nThe government is tasked with keeping the nation safe from domestic and international attacks on the government\nand citizens. National security is an issue that affects the entire country, so most of the regulation in this area\nis federal, rather than state (Pennsylvania v. Nelson, 2011). Criminal statutes protecting the government can\nencroach on the individual freedom to protest government action and can also affect privacy interests, which\nsubjects them to enhanced constitutional scrutiny similar to the crimes against the public reviewed in Chapter 12\n\xe2\x80\x9cCrimes against the Public\xe2\x80\x9d. This section explores crimes against the nation, such as treason, sedition, sabotage,\nand espionage. Section 13.2 \xe2\x80\x9cCrimes Involving Terrorism\xe2\x80\x9d examines terrorism and the USA PATRIOT Act. The\nlast section of this chapter discusses other crimes against the government that are primarily state regulated, such\nas perjury, bribery, and obstruction of justice.\n\nTreason\nArticle III \xc2\xa7 3 of the US Constitution defines treason and specifies the evidentiary requirements for any treason\ntrial. The founding fathers wanted to ensure that the government would not charge an individual with treason\nwithout significant and reliable proof. Treason was punishable by death in England, so it was a constant threat to\nanyone who disagreed with the ruling party. Although the treason clause in the Constitution is modeled after the\nearly English law defining treason, it omits a section that criminalized \xe2\x80\x9cimagining the death of the King\xe2\x80\x9d and also\nlimits Congress\xe2\x80\x99s authority to extend or expand the crime of treason or to lighten the evidentiary requirements.\nThe pertinent section of the Constitution states, \xe2\x80\x9cTreason against the United States shall consist only in levying\nWar against them, or, in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted\nof Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.\xe2\x80\x9d\n\nTreason Elements and Grading\nThe criminal act element required for treason is levying war against the United States or adhering to the enemy\nby giving aid and comfort (18 U.S.C. \xc2\xa7 2381, 2011). Prosecutions for treason are practically nonexistent, so\n472\n\n\x0c13.1 Crimes Involving National Security 473\n\ncase law in this area is dated, yet still constitutes viable precedent. In U.S. v. Burr, 25 F Cas 55 (1807), a case\ninvolving then-vice president Aaron Burr\xe2\x80\x99s prosecution for treason, the US Supreme Court held that levying war\nmeans an actual assembling of men, not a conspiracy to levy war, nor a mere enlistment of men. In Haupt v.\nU.S., 330 U.S. 631 (1947), the US Supreme Court held that the defendant\xe2\x80\x99s acts of harboring and sheltering his\nson in his home, helping him to purchase an automobile, and obtain employment constituted providing aid and\ncomfort to the enemy because the defendant\xe2\x80\x99s son was a spy and saboteur. The criminal intent element required\nfor treason is most likely the general intent or knowingly to commit an act of levying war or the specific intent\nor purposely to betray the United States by giving aid and comfort to enemies (Cramer v. U.S., 1945). The\nConstitution specifies the evidentiary requirements that two witnesses testify to an overt act of treason or that the\ndefendant confess in open court, although this is not set forth in the federal treason statute (18 U.S.C., 2011).\nAs stated in Cramer v. U.S., 325 U.S. 1, 34, 35 (1945), \xe2\x80\x9cEvery act, movement, deed, and word of the defendant\ncharged to constitute treason must be supported by the testimony of two witnesses,\xe2\x80\x9d and it is not enough that the\nelements of treason can be inferred from the witness statements. Treason is graded as a felony that can merit the\ndeath penalty or prohibit the defendant from ever holding federal office (18 U.S.C. \xc2\xa7 2381, 2011).\n\nExample of a Case Lacking Treason Elements and Evidentiary\nRequirements\nBenedict is identified as a person of interest in a treason case. A government agent posing as an enemy spy invites\nBenedict to dinner, and they discuss the decline of the United States and whether or not they should \xe2\x80\x9cdo something\nabout it.\xe2\x80\x9d At the conclusion of the dinner, Benedict picks up the tab. Thereafter, Benedict is arrested for treason\nand refuses to incriminate himself by responding to law enforcement interrogation. It is unlikely that Benedict\nwill be convicted of treason in this case. Benedict paid for the government agent\xe2\x80\x99s dinner, which could constitute\nproviding aid to the enemy. However, Benedict indicated a hesitancy to take further action, which does not satisfy\nthe requirement that he act with the specific intent or purposely to betray the United States. In addition, only\nthe government agent can testify as to Benedict\xe2\x80\x99s act of paying for a meal because Benedict is asserting his right\nto remain silent. Therefore, the constitutional requirement that two witnesses testify about the overt act charged\nas treason is not satisfied. The intent element and evidentiary requirement for treason are lacking, so Benedict\nprobably will not be subject to prosecution for and conviction of this offense.\nFigure 13.1 Crack the Code\n\n\x0c474 Criminal Law\n\nSedition\nSedition criminalizes the incitement of insurrection or revolution by seditious speech or writings and, as such,\nis subject to the restrictions set forth in the First Amendment. The first federal law prohibiting sedition was the\n\n\x0c13.1 Crimes Involving National Security 475\n\nSedition Act enacted in 1798 and repealed by Thomas Jefferson after his election as president. The current federal\nstatute criminalizing sedition was originally enacted in 1940 and is codified at 18 U.S.C. \xc2\xa7 2385. Conspiracy to\ncommit sedition is codified at 18 U.S.C. \xc2\xa7 2384. Many states have similar provisions (51 Pa. Cons. Stat. Ann. \xc2\xa7\n6018, 2011). Like treason, sedition is rarely prosecuted.\nThe criminal act element required for sedition is either advocating, aiding, teaching, organizing or printing,\npublishing, or circulating written matter that advocates, aids, or teaches the overthrow of the US government or\nany state, district, or territory thereof by force or violence (18 U.S.C. \xc2\xa7 2385, 2011). The criminal intent element\nrequired for sedition is the general intent or knowingly to advocate, aid, teach, or organize, or the specific intent\nor purposely to print, publish, or circulate written matter that advocates, aids, or teaches the violent government\noverthrow. In Yates v. U.S., 354 U.S. 298 (1957), the US Supreme Court held that only advocacy directed at\npromoting unlawful action could be constitutionally prohibited. Advocacy of an \xe2\x80\x9cabstract doctrine\xe2\x80\x9d was protected\nby the First Amendment as free speech (Yates v. U.S., 2011). Sedition is graded as a felony that can prohibit the\ndefendant from obtaining employment with the US government for a minimum of five years postconviction (18\nU.S.C. \xc2\xa7 2385, 2011).\n\nExample of Sedition\nMo, a disgruntled immigrant who has been denied citizenship, decides he wants to overthrow the US government\nand supplant it with a new government that will grant the citizenship privileges he desires. Mo prints up leaflets\nadvocating the overthrow of the government by placing a series of bombs in strategic and specifically named\nplaces and passes them out every Saturday in front of varied places known for ethnic diversity throughout the city.\nMo has most likely committed sedition in this example. Mo printed written matter advocating the overthrow\nof the US government by unlawful action, using force and violence. Mo\xe2\x80\x99s intent was to get rid of the current\ngovernment so that he could gain citizenship, which is specific intent or purposely. Thus Mo\xe2\x80\x99s conduct probably\nconstitutes sedition, and he may be subject to prosecution for and conviction of several counts of this offense.\nFigure 13.2 Diagram of Sedition\n\n\x0c476 Criminal Law\n\nSabotage\nSabotage is criminalized at 18 U.S.C. \xc2\xa7 2151 et seq., which includes several different forms of this offense.\nMany states have similar provisions (RCW \xc2\xa7 9.05.060, 2011). In general, sabotage is destroying, damaging, or\ndefectively producing (criminal act and harm) property with the specific intent or purposely, general intent or\nknowingly, or negligently to impede the nation\xe2\x80\x99s ability to prepare for or participate in war and national defense\nand is detailed in the following United States Codes:\n\xe2\x80\xa2 18 U.S.C. \xc2\xa7 2152 focuses on destroying or damaging harbor-defense property.\n\xe2\x80\xa2 18 U.S.C. \xc2\xa7 2153 focuses on destroying or damaging war material, premises, or utilities.\n\xe2\x80\xa2 18 U.S.C. \xc2\xa7 2154 focuses on producing defective war materials, premises, or utilities.\n\xe2\x80\xa2 18 U.S.C. \xc2\xa7 2155 focuses on destroying or damaging national defense material, premises, or utilities.\n\xe2\x80\xa2 18 U.S.C. \xc2\xa7 2156 focuses on producing defective national defense material, premises, or utilities.\nBoth 18 U.S.C. \xc2\xa7\xc2\xa7 2153 and 2154 have the attendant circumstance that the conduct occur during war or a\nnational emergency. All the sabotage statutes grade sabotage as a felony, with sentences ranging from five to\nthirty years\xe2\x80\x99 incarceration in federal prison.\nSabotage is prosecuted more often than treason and sedition, and there have been some extremely interesting\ncriminal sabotage cases, including sabotage indictments against a corporation manufacturing defective raincoats\nfor the armed forces during wartime, a sabotage trial for the burning of an ROTC building on the Washington\n\n\x0c13.1 Crimes Involving National Security 477\n\nUniversity campus after the Kent State University riots, a sabotage trial for defendants who stole copper wire\nfrom a railroad track that was used to ship war materials, and the sabotage indictment of Osama bin Laden for\nextraterritorial (outside the United States) activity.\n\nExample of Sabotage\nReview the example in Section 13 \xe2\x80\x9cExample of Sedition\xe2\x80\x9d with Mo. Add to this example and imagine that Mo\ngets no response to his fliers and becomes enraged. He decides to get back at the United States for not allowing\nhim to become a US citizen by harming its national security and exposing it to attack by enemy forces. He\nthereafter hacks into the computer system used by the US Department of Defense and damages it so that it is\nout of commission for two weeks. Mo has most likely committed the federal crime of sabotage. Mo damaged\nnational defense material with the specific intent or purposely to interfere with the nation\xe2\x80\x99s security and defense,\nwhich is prohibited under 18 U.S.C. \xc2\xa7 2155, whether or not it is wartime or during a national emergency. Thus\nMo may be subject to prosecution for and conviction of this offense and could face many years of incarceration\nfor his conduct.\nFigure 13.3 Diagram of Sabotage\n\n\x0c478 Criminal Law\n\nEspionage\nEspionage, also known as \xe2\x80\x9cspying,\xe2\x80\x9d is criminalized at 18 U.S.C. \xc2\xa7 792 et seq. Originally part of one of the\nearly versions of the Sedition Act of 1918, the crime of espionage has a colorful history and many interesting\ncriminal prosecutions similar to criminal sabotage. Federal espionage statutes criminalize various acts, depending\non whether the conduct occurs during peace or during war. During times of peace, it is criminal espionage\nto gather, transmit, or attempt to gather or transmit defense information (criminal act) with general intent or\nknowingly, or with the specific intent or purposely that it will be used to damage the United States or assist any\nforeign nation (18 U.S.C. \xc2\xa7 793, 2011). During times of war, it is criminal espionage to collect, record, publish,\nor communicate information about military activities or to attempt any of the foregoing (criminal act) with the\nspecific intent or purposely that the information will be transmitted to the enemy (18 U.S.C. \xc2\xa7 794(b), 2011).\nEspionage is graded as a felony, with potential sentencing of life in prison or the death penalty (18 U.S.C. \xc2\xa7 792\net seq., 2011).\nSome interesting criminal espionage cases are the Rosenberg case, where a married couple conspired to pass\n\n\x0c13.1 Crimes Involving National Security 479\n\nnuclear secrets to the Soviets and were later executed pursuant to the death penalty, the Hanssen case, where an\nFBI agent sold state secrets to Moscow for $1.4 million in cash and diamonds, and the Aragoncillo case, where\na White House employee stole intelligence documents from White House computers and e-mailed them to the\nPhilippines.\n\nExample of Espionage\nReview the example given in Section 13 \xe2\x80\x9cExample of Sabotage\xe2\x80\x9d with Mo and his computer hacking. Change the\nexample so that before Mo damages the US Department of Defense computer system, he copies some information\nfrom different top-secret sites and sends them to operatives in an enemy nation with this message: \xe2\x80\x9cI have stolen\nthis information directly from the US Department of Defense. I have also disabled their computer system, which\nwill probably take some time to repair. Now is an excellent time to attack the United States.\xe2\x80\x9d He thereafter\nseverely damages the computer system. In this example, Mo has most likely committed both sabotage and\nespionage. As stated in Section 13 \xe2\x80\x9cExample of Sabotage\xe2\x80\x9d, Mo probably committed sabotage when he damaged\nnational defense material with the specific intent or purposely to interfere with the nation\xe2\x80\x99s security and defense.\nWhen Mo copied top-secret information and sent it to an enemy nation, along with informing the nation that the\nUS Department of Defense computer system was disabled, he gathered and transmitted information with the\nspecific intent or purposely that it be used to injure the United States. Thus Mo has probably committed both\nsabotage and espionage and may be subject to prosecution for and conviction of these offenses.\n\nVideo of the President Informing the Nation bin Laden Is Dead\nPresident Obama on the Death of Osama bin Laden\nPresident Obama\xe2\x80\x99s speech explaining Osama bin Laden\xe2\x80\x99s death is shown in this video:\n" href="http://www.youtube.com/watch?v=ZNYmK19-d0U" class="replaced-iframe" onclick="return\nreplaceIframe(this)" data-url="http://www.youtube.com/watch?v=ZNYmK19-d0U">(click to see video)\nTable 13.1 Comparing Treason, Sedition, Sabotage, and Espionage\n\n\x0c480 Criminal Law\n\nAttendant\nCircumstance(s)\n\nCrime\n\nCriminal Act or Harm\n\nCriminal Intent\n\nTreason*\n\nLevy war, or give aid and\ncomfort to enemies\n\nMost likely, general intent or knowingly to levy\nwar, specific intent or purposely to betray the\nUnited States with aid and comfort\n\nSedition\n\nAdvocating or printing matter\nthat advocates the forceful or\nviolent overthrow of the US\ngovernment\n\nGeneral intent or knowingly to advocate, specific\nintent or purposely when printing matter that\nadvocates the forceful or violent overthrow of the\nUS government\n\nSabotage\n\nVaries: either destroying,\ndamaging, or producing\ndefective property that impedes\nUS defense capabilities\n\nVaries: specific intent or purposely, general intent\nor knowingly or negligently\n\nCertain conduct\nmust take place\nduring war or a\nnational emergency\n\nVaries: either general intent or knowingly, or\nspecific intent or purposely that information will\nbe transmitted to the enemy\n\nCertain conduct\nmust take place\nduring war\n\nEspionage Spying\n\n*Includes the evidentiary requirement of the testimony of two witnesses or the defendant\xe2\x80\x99s confession in open court\n\nKey Takeaways\n\xe2\x80\xa2\n\nThe criminal act element required for treason is levying war against the United States or adhering to the\nenemy by giving the enemy aid and comfort. The criminal intent element required for treason is most likely\nthe general intent or knowingly to commit an act of levying war, or the specific intent or purposely to betray\nthe United States by giving aid and comfort to enemies. Treason also has the constitutional evidentiary\nrequirement that two witnesses corroborate the acts of treason or that the defendant confess in open court.\nTreason is graded as a felony.\n\n\xe2\x80\xa2\n\nThe criminal act element required for sedition is advocating, aiding, teaching, organizing, or printing,\npublishing, or circulating written matter that advocates, aids, or teaches the overthrow of the US government\nby force or violence. The criminal intent element required for sedition is the general intent or knowingly to\nadvocate, aid, teach, or organize or the specific intent or purposely to print, publish, or circulate written\nmatter that advocates, aids, or teaches the forceful or violent government overthrow. Sedition is graded as a\nfelony.\n\n\xe2\x80\xa2\n\nThe criminal act and harm elements required for sabotage vary but are generally damaging, destroying, or\nproducing defective property that impedes the US national defense or ability to participate in or prepare for\nwar. The criminal intent element required for sabotage also varies but is either specific intent or purposely,\ngeneral intent or knowingly, or negligent intent, depending on the criminal act. Some forms of sabotage\nrequire the attendant circumstance that the conduct occurs during wartime or a national emergency.\nSabotage is graded as a felony.\n\n\xe2\x80\xa2\n\nEspionage is spying (criminal act) with general intent or knowingly, or the specific intent or purposely to\ntransmit information to another nation. Some forms of espionage require the attendant circumstance that the\nconduct occurs during wartime. Espionage is graded as a felony.\n\n\x0c13.1 Crimes Involving National Security 481\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nStephanie stands in front of a mosque and advocates for the overthrow of the US government. Is\nStephanie committing sedition? Why or why not?\n\n2.\n\nRead U.S. v. Kabat, 797 Fed.2d 580 (1986). Did the US Court of Appeals for the Eighth Circuit uphold\nthe defendants\xe2\x80\x99 convictions for sabotage when, as nuclear protestors, they intentionally damaged US\nmissiles? Why or why not? The case is available at this link: http://scholar.google.com/\nscholar_case?case=5276967647790252481&q=\nsabotage+%222155%22&hl=en&as_sdt=2,5&as_ylo=1992.\n\n3.\n\nRead In re Squillacote, 790 A.2d 514 (2002). Did the District of Columbia Court of Appeals hold that\nconspiracy to commit espionage and attempted espionage are crimes of moral turpitude that could support\nthe defendant\xe2\x80\x99s disbarment? The case is available at this link: http://scholar.google.com/\nscholar_case?case=8408409521873710428&q=\nespionage+%22793%22&hl=en&as_sdt=2,5&as_ylo=2000.\n\nReferences\nCramer v. U.S., 325 U.S. 1 (1945), http://supreme.justia.com/us/325/1.\nPennsylvania v. Nelson, accessed May 1, 2011, 350 U.S. 497 (1956), http://supreme.justia.com/us/350/497/\ncase.html.\nRCW \xc2\xa7 9.05.060, accessed May 1, 2011, http://apps.leg.wa.gov/rcw/default.aspx?cite=9.05.060.\nYates v. U.S., 354 U.S. 298, 318 (1957), accessed April 30, 2011, http://scholar.google.com/\nscholar_case?case=14369441513839511604&q= Yates+v.+U.S.&hl=en&as_sdt=2,5.\n18 U.S.C. \xc2\xa7 792 et seq., accessed May 1, 2011, http://www.law.cornell.edu/uscode/718/\nusc_sup_01_18_10_I_20_37.html.\n18\nU.S.C.\n\xc2\xa7 793,\naccessed\nMay\n1,\n2011,\nhttp://www.law.cornell.edu/uscode/718/\nusc_sec_18_00000793\xe2\x80\x94-000-.html.\n18\nU.S.C.\n\xc2\xa7 794(b),\naccessed\nMay\n1,\n2011,\nhttp://www.law.cornell.edu/uscode/718/\nusc_sec_18_00000794\xe2\x80\x94-000-.html.\n18\nU.S.C.\n\xc2\xa7 2381,\naccessed\nApril\n29,\n2011,\nhttp://www.law.cornell.edu/uscode/718/\nusc_sec_18_00002381\xe2\x80\x94-000-.html.\n18\nU.S.C.\n\xc2\xa7 2385,\naccessed\nApril\n30,\n2011,\nhttp://www.law.cornell.edu/uscode/718/\nusc_sec_18_00002385\xe2\x80\x94-000-.html.\n51 Pa. Cons. Stat. Ann. \xc2\xa7 6018, accessed April 30, 2011, http://law.onecle.com/pennsylvania/military-affairs/\n00.060.018.000.html.\n\n\x0c13.2 Crimes Involving Terrorism\n\nLearning Objectives\n1.\n\nIdentify three federal statutory schemes targeting terroristic conduct.\n\n2.\n\nAscertain the function of the Department of Homeland Security.\n\n3.\n\nDefine international and domestic terrorism.\n\n4.\n\nIdentify crimes involving terrorism.\n\n5.\n\nIdentify potential constitutional challenges to the USA PATRIOT Act.\n\nIn recent years, crimes involving terrorism have escalated both in the United States and abroad. The federal\ngovernment\xe2\x80\x99s response has been to enact comprehensive criminal statutes with severe penalties targeting\nterroristic conduct. In this section, federal statutes criminalizing acts of terrorism are reviewed, along with\npotential constitutional challenges.\n\nStatutory Schemes Targeting Terrorism\nBefore the September 11, 2001, terrorist attacks on the United States, the primary federal statutes criminalizing\nterrorism were the Omnibus Diplomatic Security and Antiterrorism Act of 1986 and the Antiterrorism and\nEffective Death Penalty Act of 1996 (AEDPA), which was enacted after the Oklahoma City bombings. After\nSeptember 11, 2001, Congress enacted the USA PATRIOT Act, which stands for Uniting and Strengthening\nAmerica by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.\nThe USA PATRIOT Act changed and strengthened existing laws targeting terrorism and enhanced US\ncapabilities to prosecute terrorism committed abroad. Specifically, the USA PATRIOT Act increases federal\njurisdiction over crimes committed outside the United States (USA PATRIOT Act, Tit. VIII \xc2\xa7 804, 2011), creates\nnew crimes involving financial support of terrorism or terrorists abroad (USA PATRIOT Act, Tit. VIII \xc2\xa7 805,\n2011), and provides for the civil forfeiture of assets connected to terrorism (USA PATRIOT Act, Tit. VIII \xc2\xa7\n806, 2011). Other fundamental changes incorporated in the USA PATRIOT Act are the expansion of government\nsurveillance capabilities, including telephone interception and scrutiny of e-mails (USA PATRIOT Act, Tit. II, \xc2\xa7\n203 et seq.).\nIn 2002, Congress created the Department of Homeland Security (DHS) under the authority of the Homeland\nSecurity Act. DHS enforces provisions of federal laws against terrorism and includes the following agencies: the\nSecret Service, Customs, the Federal Emergency Management Agency, United States Coast Guard, Border Patrol,\nTransportation Security Administration, and Citizenship and Immigration Services (Department of Homeland\nSecurity website, 2011).\n\n482\n\n\x0c13.2 Crimes Involving Terrorism 483\n\nCriminal Terroristic Conduct\nInternational terrorism is defined as violent acts committed outside the United States that would be criminal if\ncommitted in the United States, and that appear to be intended to influence a civilian population or government by\nintimidation, or to affect the conduct of government by mass destruction, assassination, or kidnapping (18 U.S.C.\n\xc2\xa7 2331(1), 2011). Specific crimes such as murder, attempted murder, and conspiracy to commit murder committed\nagainst an American national (defined as an American citizen or individual who owes permanent allegiance to\nthe United States)(18 U.S.C. \xc2\xa7 1101(a), 2011) while outside the United States are graded as high-level felonies\nwith all ranges of sentencing options available, including the death penalty (18 U.S.C. \xc2\xa7 2332, 2011).Domestic\nterrorism is defined exactly the same as international terrorism, except that the violent acts are committed within\nthe territorial jurisdiction of the United States (18 U.S.C. \xc2\xa7 2331(5), 2011). Prohibited as terrorism are the use of\na weapon of mass destruction, which is defined as any destructive device or weapon designed to cause death\nor serious bodily injury through the release of chemicals, toxins, or radioactivity (18 U.S.C. \xc2\xa7 2332A(c), 2011),\nbombings of places of public use\xe2\x80\x94including public transportation systems (18 U.S.C. \xc2\xa7 2332F, 2011)\xe2\x80\x94financing\nof terrorism (18 U.S.C. \xc2\xa7 2339C, 2011), harboring or concealing terrorists (18 U.S.C. \xc2\xa7 2339, 2011), or attempt or\nconspiracy to do any of the foregoing. All these crimes are graded as serious felonies.\n\nExample of Terrorism\nZacarias Moussaoui, a French citizen, was the only defendant prosecuted for the September 11, 2001, terrorist\nattacks. Although Moussaoui was not onboard any of the planes that crashed into the World Trade Center,\nPentagon, and a Pennsylvania field because he was in federal custody, he was indicted (Zacarias Moussaoui\nindictment, 2011) for several counts of conspiracy to commit terrorism and aircraft piracy and pleaded guilty to\nall charges. Specifically, Moussaoui pleaded guilty to conspiracy to commit acts of terrorism transcending national\nboundaries, conspiracy to commit aircraft piracy, conspiracy to destroy aircraft, conspiracy to use weapons of\nmass destruction, conspiracy to murder US employees, and conspiracy to destroy property of the United States.\nAfter the extended trial, during which Moussaoui attempted to represent himself, and the resulting guilty pleas,\nthe jury carefully considered and recommended against the death penalty for Moussaoui, who was thereafter\nsentenced to life in prison (Markon, J. & Dwyer, T., 2011). Moussaoui later moved to withdraw his guilty pleas,\nbut his motion was rejected by the US District Court for the Eastern District of Virginia (U.S. v. Moussaoui, 2011),\nwhose decision was later affirmed by the US Court of Appeals for the Fourth Circuit (U.S. v. Moussaoui, 2011).\nFigure 13.4 Moussaoui Indictment\n\n\x0c484 Criminal Law\n\nConstitutional Challenges to the USA PATRIOT Act\nPortions of the USA PATRIOT Act provide for enhanced government surveillance capabilities, which are\nconsidered a search, so constitutional implications are present pursuant to the Fourth Amendment, which\nprohibits unreasonable search and seizure. In addition, provisions of the Act that prohibit financing terrorists and\nterrorism have been attacked as violative of the First Amendment\xe2\x80\x99s protection of free speech, free association,\nand freedom of religion. Litigation involving these challenges is ongoing and was filed on behalf of citizens by\nthe American Civil Liberties Union (ACLU) (Kranich, N., 2011).\nFigure 13.5 Diagram of Crimes Involving National Security and Terrorism\n\n\x0c13.2 Crimes Involving Terrorism 485\n\nKey Takeaways\n\xe2\x80\xa2\n\n\xe2\x80\xa2\n\nThree statutory schemes targeting terroristic conduct are the Omnibus Diplomatic Security and\nAntiterrorism Act of 1986, the Antiterrorism and Effective Death Penalty Act of 1996, and the USA\nPATRIOT Act.\nThe Department of Homeland Security enforces terrorism laws.\n\n\xe2\x80\xa2\n\nThe definition of international terrorism is violent acts committed outside the United States that would be\ncriminal if committed in the United States and that appear to be intended to influence a civilian population\nor government by intimidation, or to affect the conduct of government by mass destruction, assassination, or\nkidnapping. The definition of domestic terrorism is exactly the same, except the criminal acts take place\nwithin the territorial jurisdiction of the United States.\n\n\xe2\x80\xa2\n\nExamples of crimes involving terroristic conduct are murder, use of a weapon of mass destruction,\nbombing places of public use, financing terrorism, harboring a terrorist, and conspiracy or attempt to\ncommit any of the foregoing.\n\n\xe2\x80\xa2\n\nThe USA PATRIOT Act expands government surveillance capabilities, so it is subject to a Fourth\nAmendment challenge as an unreasonable search, and also prohibits financing terrorism, so it is subject to a\nFirst Amendment challenge as a prohibition on free speech, freedom of religion, and freedom to associate.\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nJoshua shoots and kills Khalid in front of the Pakistani Embassy in Washington, DC. Is this an act of\ndomestic terrorism? Why or why not?\n\n2.\n\nRead Humanitarian Law Project v. Reno, 205 F.3d 1130 (2000). Did the US Court of Appeals for the\nNinth Circuit uphold 18 U.S.C. \xc2\xa7 2339, which prohibits providing material support to terrorists? What were\nthe constitutional challenges to this federal statute? The case is available at this link:\nhttp://scholar.google.com/scholar_case?case=6926778734800618484&q=\nconvicted+%222339%22&hl=en&as_sdt=2,5&as_ylo=2000.\n\n3.\n\nRead Humanitarian Law Project v. U.S. Department of Justice, 352 F.3d 382 (2003). In this case, the\nsame federal statute was analyzed (18 U.S.C. \xc2\xa7 2339) as in Humanitarian Law Project v. Reno, in Exercise\n2. Did the US Court of Appeals for the Ninth Circuit uphold the statute in the face of a Fifth Amendment\nchallenge that the statute deprived the defendants of due process of law? Why or why not? The case is\n\n\x0c486 Criminal Law\n\navailable at this link: http://scholar.google.com/scholar_case?case=2048259608876560530&q=\nconvicted+%222339%22&hl=en&as_sdt=2,5&as_ylo=2000.\n\nReferences\nDepartment of Homeland Security website, accessed May 4, 2011, http://www.dhs.gov/index.shtm.\nKranich, N., \xe2\x80\x9cThe Impact of the USA PATRIOT Act: An Update,\xe2\x80\x9d Fepproject.org website, accessed May 4,\n2011, http://www.fepproject.org/commentaries/patriotactupdate.html.\nMarkon, J., Timothy Dwyer, \xe2\x80\x9cJurors Reject Death Penalty for Moussaoui,\xe2\x80\x9d Washington Post website, accessed\nMay 11, 2011, http://www.washingtonpost.com/wp-dyn/content/article/2006/05/03/AR2006050300324.html.\nU.S. v. Moussaoui, Criminal No. 01-455-A (2003), accessed May 4, 2011, http://law2.umkc.edu/faculty/\nprojects/ftrials/moussaoui/withdrawguilty.pdf.\nUSA\nPATRIOT\nAct,\nTit.\nII,\n\xc2\xa7 203\net\nseq.,\nhttp://frwebgate.access.gpo.gov/cgi-bin/\ngetdoc.cgi?dbname=107_cong_public_laws&docid=f:publ056.107.pdf.\nUSA PATRIOT Act, Tit. VIII \xc2\xa7 804, accessed May 4, 2011, http://frwebgate.access.gpo.gov/cgibin/\ngetdoc.cgi?dbname=107_cong_public_laws&docid=f:publ056.107.pdf.\nUSA PATRIOT Act, Tit. VIII \xc2\xa7 805, accessed May 4, 2011, http://frwebgate.access.gpo.gov/cgi-bin/\ngetdoc.cgi?dbname=107_cong_public_laws&docid=f:publ056.107.pdf.\nUSA PATRIOT Act, Tit. VIII \xc2\xa7 806, accessed May 4, 2011, http://frwebgate.access.gpo.gov/cgi-bin/\ngetdoc.cgi?dbname=107_cong_public_laws&docid=f:publ056.107.pdf.\nZacarias Moussaoui indictment, Justice.gov website, accessed May 4, 2011, http://www.justice.gov/ag/\nmoussaouiindictment.htm.\n18 U.S.C. \xc2\xa7 1101(a) (22), accessed May 3, 2011, http://www.law.cornell.edu/uscode/html/uscode08/\nusc_sec_08_00001101\xe2\x80\x94-000-.html.\n18\nU.S.C.\n\xc2\xa7 2331(1),\naccessed\nMay\n3,\n2011,\nhttp://www.law.cornell.edu/uscode/718/\nusc_sec_18_00002331\xe2\x80\x94-000-.html.\n18\nU.S.C.\n\xc2\xa7 2331(5),\naccessed\nMay\n3,\n2011,\nhttp://www.law.cornell.edu/uscode/718/\nusc_sec_18_00002331\xe2\x80\x94-000-.html.\n18\nU.S.C.\n\xc2\xa7 2332,\naccessed\nMay\n3,\n2011,\nhttp://www.law.cornell.edu/uscode/718/\nusc_sec_18_00002332\xe2\x80\x94-000-.html.\n18 U.S.C. \xc2\xa7 2332A(c) (2), accessed May 4, 2011, http://www.law.cornell.edu/uscode/718/\nusc_sec_18_00002332\xe2\x80\x94a000-.html.\n18\nU.S.C.\n\xc2\xa7 2332F,\naccessed\nMay\n4,\n2011,\nhttp://www.law.cornell.edu/uscode/718/\nusc_sec_18_00002332\xe2\x80\x94f000-.html.\n18\nU.S.C.\n\xc2\xa7 2339,\naccessed\nMay\n3,\n2011,\nhttp://www.law.cornell.edu/uscode/718/\nusc_sec_18_00002339\xe2\x80\x94-000-.html.\n18\nU.S.C.\n\xc2\xa7 2339C,\naccessed\nMay\n3,\n2011,\nhttp://www.law.cornell.edu/uscode/718/\nusc_sec_18_00002339\xe2\x80\x94C000-.html.\n\n\x0c13.3 Perjury, Bribery, and Obstruction of Justice\n\nLearning Objectives\n1.\n\nDefine the elements of perjury.\n\n2.\n\nIdentify the issues commonly encountered in a perjury prosecution.\n\n3.\n\nIdentify a potential defense to perjury.\n\n4.\n\nDefine perjury by inconsistent statements and subornation of perjury.\n\n5.\n\nAnalyze perjury and subornation of perjury grading.\n\n6.\n7.\n\nDefine the elements of bribery, identify the primary difficulty in a prosecution for this offense, and\nanalyze bribery grading.\nDefine the elements of various forms of obstruction of justice, and analyze obstruction of justice grading.\n\nCrimes against the administration of justice impede the government\xe2\x80\x99s ability to carry out the important functions\nof prosecuting and convicting criminals, which, in turn, destroys citizens\xe2\x80\x99 confidence that the US legal system\nis effective in ensuring individual safety and security. This section analyzes perjury, bribery, and obstruction\nof justice, along with the issues commonly encountered when prosecuting these offenses. Additional statutes\ncriminalizing contempt of court, resisting arrest, and escape are also available for review.\n\nPerjury History and Elements\nWitness testimony is important in a variety of settings. Juries depend on witness testimony to reach a fair and\nimpartial verdict in civil and criminal trials, and grand juries depend on witness testimony to indict defendants for\ncriminal conduct. Thus modern laws of perjury are calculated to ensure that witnesses testify truthfully so that\njustice can be done in each individual case.\nIn the Middle Ages, the witnesses were the jurors, so the criminalization of false witness testimony did not\noccur until the sixteenth century when the idea of a trial by an impartial jury emerged. The first common-law\nprohibition against witness perjury criminalized false testimony, given under oath, in a judicial proceeding,\nabout a material issue. This definition was also incorporated into early American common law (Jrank.org, 2011).\nIn modern times, every state prohibits perjury, as well as the federal government (18 U.S.C. \xc2\xa7 1621, 2011).\nMost state statutes or state common law, in states that allow common-law crimes, define perjury as a false\nmaterial statement (criminal act), made with the specific intent or purposely to deceive, or the general intent\nor knowingly that the statement was false, in a judicial or official proceeding (attendant circumstance), under\noath (attendant circumstance) (Ga. Code tit. 16 \xc2\xa7 16-10-70, 2011). The Model Penal Code defines perjury as a\nfalse material statement, that the defendant does not believe to be true, made under oath in any official proceeding\n(Model Penal Code \xc2\xa7 241.1(1)). The biggest issues commonly encountered in any perjury prosecution are proving\n487\n\n\x0c488 Criminal Law\n\nthe validity of the oath, the defendant\xe2\x80\x99s criminal intent, the materiality of the false statement, and any requirement\nof corroborative evidence.\n\nNecessity of a Valid Oath\nThe defendant must be under oath when making the statement at issue in any perjury prosecution, and the\noath must be administered by someone of legal authority or someone authorized to take evidence under oath\n(Connecticut Jury Instructions \xc2\xa7 531-156, 2011), including a referee, hearing examiner, commissioner, notary,\nor other person authorized to take evidence in connection with an official or judicial proceeding (Connecticut\nJury Instructions \xc2\xa7 53a-156, 2011). Federally and in many jurisdictions, the false statement can be written, as\nlong as it is certified, such as a signature on an income tax return (18 U.S.C. \xc2\xa7 6065, 2011) or a report (Cal.\nPenal Code \xc2\xa7 129, 2011). The Model Penal Code also considers a false written statement perjury, as long as the\ndocument containing the statement is made upon oath or affirmation (Model Penal Code \xc2\xa7 241.1(3)). In spite of\nthe attendant circumstance requirement that the statement be made under oath, many jurisdictions disallow a\ndefense to a prosecution for perjury based on the assertion that the oath or affirmation was administered or taken\nin an irregular manner (Ala. Code \xc2\xa7 13A-10-108, 2011). The Model Penal Code has a similar provision (Model\nPenal Code \xc2\xa7 241.1(3)). In addition, many jurisdictions have a provision that witnesses who refuse to take an oath\nshall have the option of making a nonreligous affirmation that has the same legal effect as the oath (42 Pa. Cons.\nStat. Ann. \xc2\xa7 5901, 2011). The Model Penal Code allows for an \xe2\x80\x9coath or equivalent affirmation\xe2\x80\x9d (Model Penal\nCode \xc2\xa7 241.1(1)).\n\nPerjury Criminal Intent\nAs stated previously, in many jurisdictions, the defendant must know that a statement is false or must make\nthe statement with the specific intent or purposely to deceive. When the intent requirement is general intent or\nknowledge that the statement is false, proof that the statement is false could give rise to an inference of intent\n(State v. Kimber, 2011).\n\nMateriality Requirement\nPerjury generally requires a false statement that is material, which means that it substantially affected or could\nsubstantially affect the outcome of the proceeding (Mo. Ann. Stat. \xc2\xa7 575.040, 2011). In many jurisdictions and\nfederally, materiality is a question of fact for the trier of fact, which could be a jury (U.S. v. Guadin, 2011).\nThe Model Penal Code defines materiality as a statement that could have affected the course or outcome of the\nproceeding and declares that materiality should be a question of law, which means it should be determined by a\njudge, not a jury (Model Penal Code \xc2\xa7 241.1(2)). Typically, it is not a defense to perjury that the defendant did not\nknow that the statement was material (Mo. Ann. Stat. \xc2\xa7 575.040(3), 2011). The Model Penal Code has a similar\nprovision (Model Penal Code \xc2\xa7 241.1(2)).\n\n\x0c13.3 Perjury, Bribery, and Obstruction of Justice 489\n\nCorroborative Evidence Requirement\nSome jurisdictions have a requirement of corroborative evidence for perjury, which necessitates the testimony of\ntwo witnesses to support a conviction, similar to a treason conviction (Tex. Code of Criminal Procedure, \xc2\xa7 38.18,\n2011). The Model Penal Code also has this corroborative evidence requirement (Model Penal Code \xc2\xa7 241.1(6)).\n\nDefense of Retraction\nMany jurisdictions provide a defense to perjury if the defendant retracts his or her false statement in the course of\nthe same proceeding in which it was made before it becomes manifest that the falsification will be exposed (Ala.\nCode \xc2\xa7 13A-10-107, 2011). The Model Penal Code has a similar provision (Model Penal Code \xc2\xa7 241.1(4)).\n\nExample of a Case Lacking an Element of Perjury\nMarcus is a witness in a civil suit for damages against Lindsay. Macy\xe2\x80\x99s department store is suing Lindsay for\nthe alleged theft of a diamond necklace. Marcus takes an oath sworn by the court commissioner. He thereafter\ntestifies that he saw Lindsay try on the necklace and then walk out of the store without paying for it. When the\nMacy\xe2\x80\x99s attorney asks Marcus what he was doing at Macy\xe2\x80\x99s, Marcus responds that he was buying some jewelry\nas a gift for his wife. In actuality, Marcus was shopping for jewelry as a gift for his girlfriend. Marcus has\nprobably not committed perjury in this case. Marcus is testifying as a witness in a civil rather than criminal trial,\nbut this satisfies the perjury requirement that the testimony be offered during a judicial or official proceeding.\nBefore testifying, Marcus took an oath that was administered by a court commissioner, also satisfying the perjury\nrequirement that the defendant take an oath administered by someone with the legal authority or authorization\nto take evidence under oath. Marcus\xe2\x80\x99s statement is false, and he made the statement with knowledge of its\nfalsity, which satisfies the perjury criminal intent requirement. However, Marcus\xe2\x80\x99s statement does not appear to\nbe material to this judicial proceeding because the reason for Marcus\xe2\x80\x99s presence at Macy\xe2\x80\x99s will not affect the\noutcome of Lindsay\xe2\x80\x99s civil theft trial (usually called the tort of conversion). Thus Marcus is probably not subject\nto prosecution for and conviction of perjury, based on his testimony in this case.\n\nExample of Perjury\nReview the example in Section 13 \xe2\x80\x9cExample of a Case Lacking an Element of Perjury\xe2\x80\x9d with Marcus. Change\nthis example so that Marcus testifies that he did not see Lindsay walk out of the Macy\xe2\x80\x99s department store without\npaying for the necklace because he does not want to admit that he was shopping for jewelry to buy his girlfriend.\nAnthony, the Macy\xe2\x80\x99s civil trial attorney, cross-examines Marcus, and forces him to admit that he saw Lindsay steal\nthe necklace, and that he was lying previously. Marcus has most likely committed perjury in this example. Marcus\nmade a false statement, under a validly administered oath, in a judicial proceeding, with knowledge of its falsity.\nMarcus\xe2\x80\x99s statement was material because, if believed, it would have helped exonerate Lindsay in her civil case.\n\n\x0c490 Criminal Law\n\nIn many jurisdictions, the trier of fact, which could be a judge or jury, determines whether or not the statement\nis material. Marcus\xe2\x80\x99s admission that he was lying is not a retraction that could serve as a defense because it was\nnot made until the lie was about to be exposed. Thus all the elements of perjury appear to be present, and Marcus\nmay be subject to prosecution for and conviction of this offense.\nFigure 13.6 Diagram of Defenses to Perjury\n\nPerjury by Inconsistent Statements\nSome jurisdictions criminalize perjury by inconsistent or contradictory statements, which is slightly different\nfrom criminal perjury (Ala. Code \xc2\xa7 13-10-104, 2011).3 Perjury by inconsistent statements is easier to prove than\ntraditional perjury because the prosecution can simply offer evidence that the defendant made statements that\nare inconsistent, in a judicial proceeding, after taking a validly administered oath. Corroborative evidence is not\nrequired, and the prosecution does not have the burden of proving that one of the statements is false, just that one\nor the other was false and not believed by the defendant to be true (Ala. Code \xc2\xa7 13A-10-104, 2011). The Model\nPenal Code has a similar provision (Model Penal Code \xc2\xa7 241.1(5)).\n\nExample of Perjury by Inconsistent Statements\nReview the example with Marcus in Section 13 \xe2\x80\x9cExample of Perjury\xe2\x80\x9d. If Marcus\xe2\x80\x99s jurisdiction criminalizes\nperjury by inconsistent statements, Marcus could most likely be prosecuted for this offense. Marcus made two\ninconsistent statements while under a validly administered oath in Lindsay\xe2\x80\x99s conversion trial, which is a judicial\n\n\x0c13.3 Perjury, Bribery, and Obstruction of Justice 491\n\nproceeding. In Marcus\xe2\x80\x99s criminal perjury by inconsistent statements prosecution, the prosecutor need only offer\nevidence of the inconsistent statements to the trier of fact. The prosecutor does not have to provide corroborative\nevidence and does not have the burden of proving that the first statement was false, which will simplify and\nexpedite the trial and may subject Marcus to conviction of this offense.\n\nSubornation of Perjury\nMost jurisdictions criminalize subornation of perjury, which is typically procuring another to commit perjury\n(criminal act) with specific intent or purposely, or general intent or knowingly, and factually and legally\ncausing the resulting harm that perjury is in fact committed (N.C. Gen. Stat. \xc2\xa7 14-210, 2011).\n\nExample of a Case Lacking an Element of Subornation of Perjury\nReview the example given with Marcus in Section 13 \xe2\x80\x9cExample of Perjury\xe2\x80\x9d. Add to this example and assume that\nMarcus begs Janelle, another witness in Lindsay\xe2\x80\x99s conversion trial, to say that she did not see him at Macy\xe2\x80\x99s the\nday Lindsay stole the necklace. Janelle flatly refuses. Marcus has not committed subornation of perjury in this\ncase. Although Marcus tried to procure Janelle to commit perjury, with specific intent or purposely, Janelle did\nnot cooperate and did not commit the perjury. Thus the harm element of subornation of perjury is lacking, and\nMarcus can be prosecuted only for attempted subornation of perjury or solicitation to commit perjury, rather than\nthe completed offense.\nFigure 13.7 Comparison of Perjury by Inconsistent Statements and Subornation of Perjury\n\n\x0c492 Criminal Law\n\nPerjury Grading\nPerjury is generally graded as a felony (N.C. Gen. Stat. \xc2\xa7 14-209, 2011), with a potential sentencing enhancement\nfor committing perjury that causes another to be sentenced to prison or the death penalty (Ga. Code tit. 16,\n\xc2\xa7 16-10-70, 2011). The Model Penal Code grades perjury as a felony of the third degree (Model Penal Code\n\xc2\xa7 241.1(1)). Subornation of perjury is also graded as a felony (N.C. Gen. Stat. \xc2\xa7 14-210, 2011). However, because\nof the procedural difficulties in successfully convicting a defendant of perjury and subornation of perjury, these\ncrimes are not often prosecuted. Nonetheless, the threat of a felony conviction still serves as a deterrent and\nhelps to ensure that witnesses testify truthfully in judicial and official proceedings and give accurate statements in\ncertified writings.\n\nBribery Elements\nBribery is often compared to extortion, yet extortion is considered a crime of threatened force or violence, while\nbribery involves financial inducement (U.S. v. Adcock, 2011). At early common law, bribery was the receiving\nor offering any undue reward by or to any person in a public office in order to influence his or her behavior\nin office and induce him or her to act contrary to the known rules of honesty and integrity (Legal definition of\nbribery, 2011). In modern times, many criminal statutes define bribery as conferring, offering, agreeing to confer,\nor soliciting, accepting, or agreeing to accept any benefit upon a public official (criminal act) with the specific\nintent or purposely or the general intent or knowingly to form an agreement or understanding that the public\nofficial\xe2\x80\x99s vote, opinion, judgment, action, decision, or exercise of discretion will be influenced by the benefit\n(N.Y. Penal Law \xc2\xa7 200.00, 2011; N.Y. Penal Law \xc2\xa7 200.10). The crime of bribery is often extended to apply to\npersons other than public officials, such as employees, agents, or fiduciaries for the purpose of influencing the\nbribed individual\xe2\x80\x99s on-the-job conduct (N.Y. Penal Law \xc2\xa7 180.00, 2011). This type of bribery is typically called\ncommercial bribery (N.Y. Penal Law \xc2\xa7 180.00, 2011). Bribery can also cover members of a state legislature (Cal.\nPenal Code \xc2\xa7 85, 2011; Cal. Penal Code \xc2\xa7 86; Cal. Penal Code \xc2\xa7 93), any judicial officer, juror, referee, umpire\n(Cal. Penal Code \xc2\xa7 92, 2011), or witness (Or. Rev. Stat. \xc2\xa7 162.265, 2011; Or. Rev. Stat. \xc2\xa7162.275, 2011) when\na bribe is conferred or offered, asked for, received, or agreed to be received to influence their vote or decision.\nThe Model Penal Code criminalizes as bribery the act of conferring, offering, agreeing to confer, soliciting,\naccepting, or agreeing to accept any pecuniary (which means monetary) benefit in exchange for a public servant,\nparty official, voter\xe2\x80\x99s decision, opinion, recommendation, vote, or other exercise of discretion (Model Penal\nCode \xc2\xa7 240.1(1)). The Model Penal Code also criminalizes as bribery the act of conferring, offering, agreeing to\nconfer, soliciting, accepting, or agreeing to accept any benefit in exchange for a judicial or administrative officer\xe2\x80\x99s\ndecision, vote, recommendation, or other exercise of official discretion (Model Penal Code \xc2\xa7 240.1(2)).\n\nProsecutorial Burden in Bribery Prosecutions\nSimilar to perjury, bribery is notoriously difficult to prove, which is a factor prosecutors must consider when\ndeciding whether or not to charge an individual(s) with this offense. The most difficult bribery element to prove\n\n\x0c13.3 Perjury, Bribery, and Obstruction of Justice 493\n\nbeyond a reasonable doubt is the criminal intent element of specific intent or purposely or general intent or\nknowingly to enter into an agreement that influences the bribed individual\xe2\x80\x99s decision.\n\nExample of Bribery\nIsabel, a defendant on trial for perjury, notices the judge presiding in her case shopping at Macy\xe2\x80\x99s department\nstore. Isabel thereafter buys an expensive watch, has it wrapped, walks up to the judge, and offers it to him as a\ngift. Isabel has most likely committed bribery in this case. Although the judge did not accept Isabel\xe2\x80\x99s \xe2\x80\x9cgift,\xe2\x80\x9d most\nstates criminalize as bribery the offer of any benefit, so the act of bribery is complete when Isabel proffers the\nwatch. In addition, based on these facts, Isabel\xe2\x80\x99s connection to the judge is only through her perjury prosecution,\nso her act appears calculated to influence his decision in that case, especially because the watch is expensive and\nnot merely a token. Note that a prosecutor is required to prove beyond a reasonable doubt Isabel\xe2\x80\x99s specific intent\nor purposely or general intent or knowingly to enter into an agreement with the judge influencing his decision,\nwhich is challenging even under the obvious circumstances apparent in this case.\n\nAnother Example of Bribery\nReview the example with Isabel in Section 13 \xe2\x80\x9cExample of Bribery\xe2\x80\x9d. Add to this example and assume that the\njudge graciously accepts Isabel\xe2\x80\x99s gift and thereafter rules in her favor, acquitting her of perjury. In this example,\nboth the judge and Isabel have likely committed bribery because most states criminalize the conferring, offering,\nand accepting and receiving a bribe as the criminal act elements. Thus both Isabel and the judge may be subject\nto prosecution for and conviction of this offense, and the judge\xe2\x80\x99s acquittal of Isabel will ease the prosecutor\xe2\x80\x99s\nburden in proving the specific intent or purposely or general intent or knowingly to enter into an agreement\ncorruptly influencing the decision making in this case.\n\nExample of a Case Lacking an Element of Bribery\nIsabel notices a gentleman struggling to pay his bill at a local coffee shop. Isabel steps up and charitably offers\nto pay the gentleman\xe2\x80\x99s bill. Later in the day, while watching her son\xe2\x80\x99s professional baseball game, Isabel notices\nthat the umpire looks familiar. After pondering it for a few minutes, she realizes that he is the same gentleman\nwho could not pay his bill at the coffee shop. Isabel and the umpire probably have not committed bribery in this\ncase. Although Isabel gave the umpire money, and he was the decision maker in her son\xe2\x80\x99s baseball game, Isabel\ndid not give the money, nor did the umpire accept it, with the specific intent or purposely or general intent or\nknowingly to enter into an agreement influencing the umpire\xe2\x80\x99s decisions. Thus the criminal intent element for\nbribery appears to be lacking, and neither Isabel nor the umpire are subject to prosecution for and conviction of\nthis offense.\n\n\x0c494 Criminal Law\n\nBribery When No Authority to Act Is Present\nIn many states and under the Model Penal Code, it is no defense to bribery that the individual bribed does not have\nthe authority to act or make the decision that is the subject of the bribe (Model Penal Code \xc2\xa7 240.1) (Ala. Code\n\xc2\xa7 13A-10-61, 2011).\n\nExample of Bribery When No Authority to Act Is Present\nReview the example with Isabel and the judge in Section 13 \xe2\x80\x9cAnother Example of Bribery\xe2\x80\x9d. Change this example\nand assume that the \xe2\x80\x9cjudge\xe2\x80\x9d in question is an imposter who is merely masquerading as a judge to live out a lifelong\nfantasy. Isabel and the \xe2\x80\x9cjudge\xe2\x80\x9d may still be prosecuted for and convicted of bribery in many jurisdictions and\nunder the Model Penal Code because lack of authority is typically not a defense to bribery under modern statutes\ncriminalizing this offense.\nFigure 13.8 Diagram of Defenses to Bribery\n\n\x0c13.3 Perjury, Bribery, and Obstruction of Justice 495\n\nBribery Grading\nBribery is typically graded as a felony (N.Y. Penal Law \xc2\xa7 200.00, 2011) with enhancements for bribery that is\ncarried out with a larger sum of money (N.Y. Penal Law \xc2\xa7 200.03, 2011) or bribery that results in someone\xe2\x80\x99s\nprosecution or incarceration for a felony (N.Y. Penal Law \xc2\xa7 200.04, 2011). When a state legislator (Cal. Penal\nCode \xc2\xa7 88, 2011) or a public official (Cal. Penal Code \xc2\xa7 74, 2011) commits bribery, it is typical to disqualify that\nindividual from his or her office for life, in addition to any other sentence.\n\nObstruction of Justice\nObstruction of justice takes many forms and is a classic example of an offense against the administration of\njustice. States and the federal government exercise broad latitude in enacting statutes that criminalize interference\nwith any aspect of law enforcement procedure or the prosecution and conviction of criminal offenders. Some\ntypical examples of obstruction of justice are as follows: giving false identification to a law enforcement officer\n(720 ILCS \xc2\xa7 5/31-4.5, 2011), impersonating a law enforcement officer (Fla. Stat. Ann. \xc2\xa7 843.08, 2011), refusing to\naid a law enforcement officer when requested (N.Y. Penal Law \xc2\xa7 295.10, 2011), giving false evidence (720 ILCS\n\xc2\xa7 5/31-4, 2011), hiding or concealing oneself and refusing to give evidence (720 ILCS \xc2\xa7 5/31-4, 2011), tampering\nwith evidence (Or. Rev. Stat. \xc2\xa7 162.295, 2011), and tampering with a witness (18 U.S.C. \xc2\xa7 1512, 2011) or juror\n(Ariz. Rev. Stat. \xc2\xa7 13-2807, 2011). All these acts are generally supported by specific intent or purposely or\ngeneral intent or knowingly. The Model Penal Code prohibits threatening unlawful harm to any person or public\nservant with purpose to influence his decision, opinion, recommendation, vote, or other exercise of discretion\n(Model Penal Code \xc2\xa7 240.2). Obstruction of justice offenses are most often graded as a misdemeanor or felony,\ndepending on the offense.\n\nExample of Obstruction of Justice\nBarry Bonds, a baseball player and record-breaking home run hitter for the San Francisco Giants, was found\nguilty by a federal jury for obstruction of justice, based on his refusal to answer a question during a grand jury\ninvestigation of his steroid use (Macur, J., 2011). Bonds was also charged with three counts of perjury, but the\njury could not agree to convict, resulting in a mistrial on all three counts (Ortiz, J. L., 2011). The perjury charges\nstemmed from Bonds\xe2\x80\x99s claim while testifying under oath that he never knowingly used steroids, never knowingly\nused human growth hormones, and was never injected with a substance by anyone other than his trainer. The\nobstruction of justice conviction resulted from Bonds\xe2\x80\x99s evasive answer to the question of whether his personal\ntrainer had ever injected him with steroids (Macur, J., 2011). Instead of answering yes or no to this question,\nBonds began reminiscing about his friendship with the trainer, who went to prison four times in five years for also\nrefusing to testify in the investigation (Macur, J., 2011). The perjury charges support the obstruction of justice\ncharge, so the defense asked for a court dismissal of the obstruction of justice conviction in order to clear the way\nfor an appeal (Ortiz, J. L., 2011). Note that Bonds\xe2\x80\x99s obstruction of justice charge of evading the question and\nrefusing to give evidence appears easier to prove than the perjury charges, which have a daunting criminal intent\nrequirement, as discussed in Section 13 \xe2\x80\x9cPerjury Criminal Intent\xe2\x80\x9d.\n\n\x0c496 Criminal Law\n\nThe Barry Bonds Verdict Video\nAssociated Press: Bonds Guilty of Obstruction, Jury Hung on Others\nThe verdict in the federal Barry Bonds case is explained in this video:\n" href="http://www.youtube.com/watch?v=KwcxpgJA6o4" class="replaced-iframe" onclick="return\nreplaceIframe(this)" data-url="http://www.youtube.com/watch?v=KwcxpgJA6o4">(click to see video)\n\nAdditional Crimes against the Government\nAdditional crimes against the government that impair the orderly administration of justice are contempt (N.C.\nGen. Stat. \xc2\xa7 5A-11, et seq., 2011), resisting arrest (18 Pa. Cons. Stat. Ann. \xc2\xa7 5104, 2011), and escape (Tex. Penal\nCode \xc2\xa7 38.06, 2011). Review the statutes in the endnotes for common elements and grading of these offenses.\nFigure 13.9 Diagram of Perjury, Bribery, and Obstruction of Justice\n\n\x0c13.3 Perjury, Bribery, and Obstruction of Justice 497\n\nKey Takeaways\n\xe2\x80\xa2\n\nMost jurisdictions define perjury as a false material statement (criminal act), made with specific intent or\npurposely to deceive, or the general intent or knowingly that the statement was false, in a judicial or official\nproceeding, or in a certified writing (attendant circumstance), under oath (attendant circumstance).\n\n\xe2\x80\xa2\n\nThe issues commonly encountered in any perjury prosecution are proving the validity of the oath, the\ndefendant\xe2\x80\x99s criminal intent, or the materiality of the false statement, and any requirement of corroborative\nevidence.\n\n\x0c498 Criminal Law\n\n\xe2\x80\xa2\n\nMany jurisdictions provide a defense to perjury if the defendant retracts his or her false statement in the\ncourse of the same proceeding in which it was made before it becomes manifest that the falsification will be\nexposed.\n\n\xe2\x80\xa2\n\nPerjury by inconsistent statements is when the defendant makes statements that are inconsistent (criminal\nact), in a judicial proceeding (attendant circumstance), after taking a validly administered oath (attendant\ncircumstance). The prosecution does not need to prove which statement is false for this offense. Subornation\nof perjury is procuring another to commit perjury (criminal act), with specific intent or purposely, or general\nintent or knowingly, and factually and legally causing the resulting harm that perjury is actually committed.\n\n\xe2\x80\xa2\n\nPerjury is generally graded as a felony, with a potential sentencing enhancement for committing perjury\nthat causes another to be sentenced to prison or the death penalty. Subornation of perjury is also graded as a\nfelony.\n\n\xe2\x80\xa2\n\nMany criminal statutes define bribery as conferring, offering, agreeing to confer, or soliciting, accepting,\nor agreeing to accept, any benefit upon a public official (criminal act) with the specific intent or purposely,\nor the general intent or knowingly to form an agreement or understanding that the public official\xe2\x80\x99s decision\nmaking will be influenced by the benefit. The crime of bribery is often extended to apply to persons other\nthan public officials, such as employees, agents, or fiduciaries for the purpose of influencing the bribed\nindividual\xe2\x80\x99s on-the-job conduct, which is called commercial bribery. Bribery can also cover members of a\nstate legislature, any judicial officer, juror, referee, umpire, or witness. The primary issue in a bribery\nprosecution is proving the defendant\xe2\x80\x99s criminal intent to enter into an agreement that influences the bribed\nindividual\xe2\x80\x99s decision making. Bribery is typically graded as a felony, with enhancements for a bribe that is a\nlarge sum of money or bribery that results in incarceration for a felony, along with a disqualification from\noffice.\n\n\xe2\x80\xa2\n\nSome typical examples of obstruction of justice are as follows: giving false identification to a law\nenforcement officer, impersonating a law enforcement officer, refusing to aid a law enforcement officer\nwhen requested, giving false evidence, hiding or concealing oneself and refusing to give evidence,\ntampering with evidence, and tampering with a witness or juror. All these acts are generally supported by\nspecific intent or purposely, or general intent or knowingly. Obstruction of justice is graded anywhere from\na misdemeanor to a felony, depending on the offense.\n\nExercises\nAnswer the following questions. Check your answers using the answer key at the end of the chapter.\n1.\n\nSusannah, a Hollywood movie star, is a witness in a civil personal injury case. Susannah saw a car\naccident and is subpoenaed to testify that the defendant was at fault. After the court commissioner\nadministers an oath to tell the truth, Susannah takes the witness stand. She knows the case will generate\nsignificant publicity, so Susannah shaves ten years off of her age when asked routine background questions\nby the prosecutor. If Susannah is thereafter caught in this lie and prosecuted for perjury, what will be the\nprimary issue in her perjury prosecution? How will this issue be resolved?\n\n2.\n\nRead State v. Carr, 172 Conn. 458 (1977). In this case, the defendant was convicted of bribery when he\npaid an undercover detective to refrain from investigating narcotics crimes in the area. The defendant\nappealed, claiming the jury should have been instructed on the lesser included offense of offering gifts to\nstate police officers. Did the Supreme Court of Connecticut uphold the defendant\xe2\x80\x99s bribery conviction? Why\nor why not? The case is available at this link: http://scholar.google.com/\nscholar_case?case=14705028387089517508&q= %22State+v.+Carr%22&hl=en&as_sdt=2,5.\n\n3.\n\nRead People v. Silverberg, 771 N.Y.S. 2d 274 (2003). In this case, the defendant was convicted of witness\ntampering for a single telephone call he made to an attorney that implied he would send letters to a\n\n\x0c13.3 Perjury, Bribery, and Obstruction of Justice 499\n\ngrievance committee if the attorney did not drop charges against him. Did the Supreme Court of New York\nuphold the defendant\xe2\x80\x99s conviction? Why or why not? The case is available at this link:\nhttp://scholar.google.com/scholar_case?case=3089258849772766127&q=\n%22witness+tampering%22&hl=en&as_sdt=4,33&as_ylo=2003.\n\nLaw and Ethics\nShould Former President Clinton Have Been Criminally Prosecuted for Perjury and Obstruction of Justice?\nOn May 6, 1994, Paula Jones filed a civil lawsuit for sexual harassment against then-president Bill Clinton. The US\nSupreme Court ruled that the president was not immune to this lawsuit, allowing it to continue (Clinton v. Jones, 2011).\nAn investigation pursuant to the Jones lawsuit revealed that the president was currently having an affair with a White\nHouse intern, Monica Lewinsky (Historyplace.com website, 2011). During a Jones lawsuit deposition, the president\nstated under oath that he did not have sexual relations with Ms. Lewinsky pursuant to the definition of sexual relations\ngiven by the questioning attorneys (Deposition excerpts, 2011). He also stated that he could not recall ever being alone\nwith Lewinsky at the White House (Deposition excerpts, 2011). After the deposition, he was involved in an effort to get\nMs. Lewinsky a federal job outside Washington, DC (Historyplace.com, 2011). Although the Jones lawsuit was\ndismissed, the president was evasive when asked questions regarding the Lewinsky affair during a grand jury\ninvestigation instigated by Prosecutor and former Solicitor General Kenneth Starr. The evening of the grand jury\ninvestigation, the president appeared on national TV and admitted, \xe2\x80\x9cIndeed, I did have a relationship with Ms. Lewinsky\nthat was not appropriate. In fact, it was wrong. It constituted a critical lapse in judgment and a personal failure on my\npart for which I am solely and completely responsible\xe2\x80\x9d (Historyplace.com, 2011). The House of Representatives later\nimpeached Clinton for perjury and obstruction of justice, based on the statements he made at the grand jury\ninvestigation and his conduct during the Jones deposition. After a trial in the Senate, he was acquitted of both counts\nand thereafter served out his term as president (Historyplace.com, 2011). He was never criminally prosecuted for\nperjury or obstruction of justice outside the impeachment procedure, although he was later disbarred for his behavior\n(Gearan, A., 2011).\n1.\n\nIs it ethical to allow the president to avoid a criminal prosecution for perjury and obstruction of justice\nwhile he is in office? Why or why not?\n\nCheck your answer using the answer key at the end of the chapter.\n\nClinton Declaration and Admission Videos\nClinton: \xe2\x80\x9cI did not have sexual relations with that woman\xe2\x80\xa6\xe2\x80\x9d\nIn this video, President Clinton denies that he had sexual relations with Monica Lewinsky:\n" href="http://www.youtube.com/watch?v=KiIP_KDQmXs" class="replaced-iframe" onclick="return\nreplaceIframe(this)" data-url="http://www.youtube.com/watch?v=KiIP_KDQmXs">(click to see video)\nPresident Clinton Apologizes to the Nation\nIn this video, President Clinton admits that he had an inappropriate relationship with Monica Lewinsky:\n" href="http://www.youtube.com/watch?v=7r4e5Wg4PDI" class="replaced-iframe" onclick="return\nreplaceIframe(this)" data-url="http://www.youtube.com/watch?v=7r4e5Wg4PDI">(click to see video)\n\n\x0c500 Criminal Law\n\nReferences\nAla. Code \xc2\xa7 13A-10-104, accessed May 6, 2011, http://law.onecle.com/alabama/criminal-code/13A-10-104.html.\nAla. Code \xc2\xa7 13A-10-107, accessed May 6, 2011, http://law.onecle.com/alabama/criminal-code/\n13A-10-107.html.\nAla. Code \xc2\xa7 13A-10-108, accessed May 5, 2011, http://law.onecle.com/alabama/criminal-code/\n13A-10-108.html.\nAla. Code \xc2\xa7 13A-10-61, accessed May 7, 2011, http://law.onecle.com/alabama/criminal-code/13A-10-61.html.\nAriz. Rev. Stat. \xc2\xa7 13-2807, accessed May 7, 2011, http://law.onecle.com/arizona/criminal-code/13-2807.html.\nCal. Penal Code \xc2\xa7 129, accessed May 5, 2011, http://law.onecle.com/california/penal/129.html.\nCal. Penal Code \xc2\xa7 74, accessed May 7, 2011, http://law.onecle.com/california/penal/74.html.\nCal. Penal Code \xc2\xa7 85, accessed May 6, 2011, http://law.onecle.com/california/penal/85.html.\nCal. Penal Code \xc2\xa7 86, http://law.onecle.com/california/penal/86.html.\nCal. Penal Code \xc2\xa7 88, accessed May 7, 2011, http://law.onecle.com/california/penal/88.html.\nCal. Penal Code \xc2\xa7 92, accessed May 6, 2011, http://law.onecle.com/california/penal/92.html.\nCal. Penal Code \xc2\xa7 93, http://law.onecle.com/california/penal/93.html.\nClinton v. Jones, 520 U.S. 681 (1997), accessed May 9, 2011, http://www.law.cornell.edu/supct/html/\n95-1853.ZS.html.\nConnecticut Jury Instructions \xc2\xa7 53a-156, accessed May 5, 2011, http://www.jud.ct.gov/ji/criminal/part4/\n4.5-9.htm.\nDeposition excerpts, Jones v. Clinton deposition, Historyplace.com website, accessed May 9, 2011,\nhttp://www.historyplace.com/unitedstates/impeachments/jones-deposition.htm.\nFla. Stat. Ann. \xc2\xa7 843.08, accessed May 7, 2011, http://law.onecle.com/florida/crimes/843.08.html.\nGa. Code tit. 16 \xc2\xa7 16-10-70, accessed May 5, 2011, http://law.onecle.com/georgia/16/16-10-70.html.\nGearan, A., \xe2\x80\x9cClinton Disbarred by Supreme Court,\xe2\x80\x9d Famguardian.org website, accessed May 9, 2011,\nhttp://famguardian.org/Subjects/LawAndGovt/News/ClintonDisbar-011001.htm.\nHistoryplace.com website, \xe2\x80\x9cPresidential Impeachment Proceedings,\xe2\x80\x9d accessed May 9, 2011,\nhttp://www.historyplace.com/unitedstates/impeachments/clinton.htm.\nJrank.org website, \xe2\x80\x9cPerjury\xe2\x80\x94Perjury at Common Law,\xe2\x80\x9d accessed May 5, 2011, http://law.jrank.org/pages/1632/\nPerjury-Perjury-at-common-law.html.\nLegal definition of bribery, Duhaime.org website, accessed May 6, 2011, http://www.duhaime.org/\nLegalDictionary/B/Bribery.aspx.\nMacur, J., \xe2\x80\x9cBonds Guilty of Obstruction, but Not of Perjury,\xe2\x80\x9d New York Times website, accessed May 8, 2011,\nhttp://www.nytimes.com/2011/04/14/sports/baseball/14bonds.html?pagewanted=1&_r=1.\nMo. Ann. Stat. \xc2\xa7 575.040, accessed May 5, 2011, http://www1.law.umkc.edu/suni/CrimLaw/calendar/\nClass_4_Mo_perjury.htm.\nMo. Ann. Stat. \xc2\xa7 575.040(3) (1), accessed May 5, 2011, http://www1.law.umkc.edu/suni/CrimLaw/calendar/\nClass_4_Mo_perjury.htm.\nN.C. Gen. Stat. \xc2\xa7 14-209, accessed May 6, 2011, http://law.onecle.com/north-carolina/14-criminal-law/\n14-209.html.\nN.C. Gen. Stat. \xc2\xa7 14-210, accessed May 6, 2011, http://law.onecle.com/north-carolina/14-criminal-law/\n14-210.html.\n\n\x0c13.3 Perjury, Bribery, and Obstruction of Justice 501\n\nN.C. Gen. Stat. \xc2\xa7 5A-11, et seq., accessed May 8, 2011, http://law.onecle.com/north-carolina/5a-contempt/\nindex.html.\nN.Y. Penal Law \xc2\xa7 180.00, accessed May 6, 2011, http://law.onecle.com/new-york/penal/\nPEN0180.00_180.00.html.\nN.Y. Penal Law \xc2\xa7 195.10, accessed May 7, 2011, http://law.onecle.com/new-york/penal/\nPEN0195.10_195.10.html.\nN.Y. Penal Law \xc2\xa7 200.00, accessed May 6, 2011, http://law.onecle.com/new-york/penal/\nPEN0200.00_200.00.html.\nN.Y. Penal Law \xc2\xa7 200.03, accessed May 6, 2011, http://law.onecle.com/new-york/penal/\nPEN0200.03_200.03.html.\nN.Y. Penal Law \xc2\xa7 200.04, accessed May 6, 2011, http://law.onecle.com/new-york/penal/\nPEN0200.04_200.04.html.\nN.Y. Penal Law \xc2\xa7 200.10, http://law.onecle.com/new-york/penal/PEN0200.10_200.10.html.\nOr. Rev. Stat. \xc2\xa7 162.265, accessed May 6, 2011, http://law.onecle.com/oregon/162-offenses-against-the-stateand/162.265.html.\nOr. Rev. Stat. \xc2\xa7 162.295, accessed May 7, 2011, http://law.onecle.com/oregon/162-offenses-against-the-stateand/162.295.html.\nOr. Rev. Stat. \xc2\xa7162.275, accessed May 7, 2011, http://law.onecle.com/oregon/162-offenses-against-the-stateand/162.275.html.\nOrtiz, J. L., \xe2\x80\x9cVerdict in: Bonds Found Guilty, but Case Not Closed Yet,\xe2\x80\x9d USA TODAY website, accessed May\n8, 2011, http://www.usatoday.com/sports/baseball/2011-04-13-verdict-barry-bonds-guilty_N.htm.\nState v. Kimber, 48 Conn. App. 234 (1998), accessed May 5, 2011, http://scholar.google.com/\nscholar_case?case=17399056576949304157&q= State+v.+Kimber+48&hl=en&as_sdt=2,5.\nTex. Code of Criminal Procedure, \xc2\xa7 38.18, accessed May 5, 2011, http://law.onecle.com/texas/criminalprocedure/38.18.00.html.\nTex. Penal Code \xc2\xa7 38.06, accessed May 8, 2011, http://law.onecle.com/texas/penal/38.06.00.html.\nU.S. v. Adcock, 558 F.2d 397 (1977), accessed May 6, 2011, http://scholar.google.com/\nscholar_case?case=189694239263939940&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\nU.S. v. Gaudin, 515 U.S. 506 (1995), accessed May 5, 2011, http://scholar.google.com/\nscholar_case?case=12281686524757008977&hl=en&as_sdt=2&as_vis=1&oi=scholarr.\n18 Pa. Cons. Stat. Ann. \xc2\xa7 5104, accessed May 8, 2011, http://law.onecle.com/pennsylvania/crimes-andoffenses/00.051.004.000.html.\n18\nU.S.C.\n\xc2\xa7 1512,\naccessed\nMay\n7,\n2011,\nhttp://www.law.cornell.edu/uscode/718/\nusc_sec_18_00001512\xe2\x80\x94-000-.html.\n18\nU.S.C.\n\xc2\xa7 1621,\naccessed\nMay\n5,\n2011,\nhttp://www.law.cornell.edu/uscode/718/\nusc_sec_18_00001621\xe2\x80\x94-000-.html.\n18\nU.S.C.\n\xc2\xa7 6065,\naccessed\nMay\n5,\n2011,\nhttp://www.law.cornell.edu/uscode/26/\nusc_sec_26_00006065\xe2\x80\x94-000-.html.\n42 Pa. Cons. Stat. Ann. \xc2\xa7 5901, accessed May 5, 2011, http://law.onecle.com/pennsylvania/judiciary-andjudicial-procedure/00.059.001.000.html.\n720 ILCS \xc2\xa7 5/31-4, accessed May 7, 2011, http://law.onecle.com/illinois/720ilcs5/31-4.html.\n720 ILCS \xc2\xa7 5/31-4.5, accessed May 7, 2011, http://law.onecle.com/illinois/720ilcs5/31-4.5.html.\n\n\x0c13.4 End-of-Chapter Material\n\nSummary\nThe federal government protects national security by primarily regulating crimes against the United States. One of the\nonly crimes defined in the Constitution, treason, prohibits levying war against the United States, most likely with\ngeneral intent or knowingly, or providing aid and comfort to the enemy with the specific intent or purposely to betray\nthe United States, and is graded as a serious felony with all sentencing options available, including capital punishment.\nThe Constitution specifies the evidentiary requirement that treason be proven by the testimony of two witnesses or the\ndefendant\xe2\x80\x99s confession in open court. Sedition criminalizes the advocating, aiding, organizing, or teaching with general\nintent or knowingly, or publishing, printing, or circulating writings that advocate, aid, or teach with specific intent or\npurposely the forceful or violent overthrow of the US government and is graded as a serious felony that can prohibit the\ndefendant from holding federal office for five years postconviction. Sabotage is destroying, damaging, or defectively\nproducing specified property with specific intent or purposely, general intent or knowingly, or negligently to impede\nnational defense and is graded as a serious felony. Espionage is gathering or transmitting defense information with\ngeneral intent or knowingly or the specific intent or purposely to damage the United States or assist any foreign nation,\nduring peace or war, and is graded as a serious felony with all range of sentencing options available, including capital\npunishment.\nThe federal government also primarily regulates terrorism and terroristic acts using the Omnibus Diplomatic Security\nand Antiterrorism Act of 1986, the Antiterrorism and Effective Death Penalty Act of 1996, and the USA PATRIOT Act.\nThe Department of Homeland Security enforces criminal laws targeting terrorism. Terrorism is violent acts committed\ninside (domestic) or outside (international) the United States that appear to be intended to influence a civilian population\nor government by intimidation or to affect the conduct of government by mass destruction, assassination, or kidnapping.\nCurrently prohibited as terrorism or terroristic conduct are murder, use of a weapon of mass destruction, bombing places\nof public use, financing terrorism, harboring a terrorist, and conspiracy or attempt to commit any of the foregoing. The\nUSA PATRIOT Act expands government surveillance capabilities, so it is subject to a Fourth Amendment challenge as\nan unreasonable search, and also prohibits financing terrorism, so it is subject to a First Amendment challenge as a\nprohibition on free speech, freedom of religion, and freedom to associate.\nThe state and federal government both criminalize conduct that impedes the administration of justice, including\nperjury, bribery, and obstruction of justice. Perjury is typically defined as a false material oral or written statement made\nunder oath or affirmation with the specific intent or purposely to deceive, or the general intent or knowingly that the\nstatement is false, in a judicial or official proceeding or in a certified writing. The biggest issues encountered in a\nperjury prosecution are proving the validity of the oath, the defendant\xe2\x80\x99s criminal intent, the materiality of the false\nstatement, and any requirement of corroborative evidence. One defense to perjury is retraction of the false material\nstatement during the same judicial or official proceeding before it becomes manifest that the falsity will be exposed.\nMany jurisdictions also criminalize perjury committed by inconsistent statements made under oath or affirmation in an\nofficial or judicial proceeding and subornation of perjury, which is procuring another to commit perjury with specific\nintent or purposely. Perjury and subornation of perjury are typically graded as felonies. Bribery is conferring, offering,\nagreeing to confer, or soliciting, accepting, or agreeing to accept a benefit upon a public official, employee, legislator,\nparticipant in a judicial proceeding, or sports official with the specific intent or purposely, or the general intent or\nknowingly to influence the bribed individual\xe2\x80\x99s decision making. The most difficult bribery element to prove is the\ncriminal intent element. Bribery is typically graded as a felony. Obstruction of justice crimes interfere with the orderly\nadministration of justice. Examples of obstruction of justice offenses are giving false identification to a law enforcement\nofficer, impersonating a law enforcement officer, refusing to aid a law enforcement officer when requested, giving false\nevidence, hiding or concealing oneself and refusing to give evidence, tampering with evidence, and tampering with a\nwitness or juror, with specific intent or purposely, or general intent or knowingly. Obstruction of justice is graded as a\nmisdemeanor or felony, depending on the offense.\n\n502\n\n\x0c13.4 End-of-Chapter Material 503\n\nYou Be the USA\nYou are an assistant US attorney starting your first day on the job. You have been presented with four case files and\ntold to review them and recommend criminal prosecutions based on the facts. Read each one and then decide which\ncrime should be prosecuted. Check your answers using the answer key at the end of the chapter.\n1.\n\nThe defendant, an army intelligence analyst stationed near Baghdad, Iraq, downloaded thousands of\nclassified Iraq and Afghanistan documents and confidential cables and released them to an ex-computer\nhacker who thereafter exposed them to the public. Which crime should be prosecuted: treason or\nobstruction of justice? Read about this case at this link: http://coto2.wordpress.com/2011/03/02/bradleymanning-charged-with-22-crimes-including-capital-offense-aiding-the-enemy.\n\n2.\n\nThe defendant typed up notes while her husband was analyzing sketches of a top-secret bomb\xe2\x80\x99s design for\nthe purpose of passing the design on to another nation. Which crime should be prosecuted: conspiracy to\ncommit espionage or sabotage? Read about this case at this link: http://law2.umkc.edu/faculty/projects/\nftrials/rosenb/ROS_ACCT.HTM.\n\n3.\n\nThe defendant, a cosmetic company, paid Chinese officials to obtain direct licensing of its product in\nChina. Which crime should be prosecuted: harboring terrorists abroad or bribery? Read about this case\nat this link: http://fortune.com/2014/12/17/avon-bribery-probe-settlement/.\n\n4.\n\nThe defendant, a corrections officer, lied to federal law enforcement during an investigation of her role in\nthe assault of an inmate. Which crime should be prosecuted: perjury or obstruction of justice? Read about\nthis case at this link: http://www.stltoday.com/news/local/crime-and-courts/article_3d7cd11a-8f67-11dfbc07-00127992bc8b.html.\n\nCases of Interest\n\xe2\x80\xa2\n\nKawakita v. U.S., 343 U.S. 717 (1952), discusses a treason conviction based on the treatment of American\nPOWs: http://scholar.google.com/scholar_case?case=14270191881160802490&q=\n%22treason%22&hl=en&as_sdt=2,5.\n\n\xe2\x80\xa2\n\nU.S. v. Rosen, 445 F.Supp.2d 602 (2006), discusses prosecution under the Espionage Act:\nhttp://scholar.google.com/scholar_case?case=18013989744527722325&q=\n%2218+U.S.C.+793%22&hl=en&as_sdt=2,5.\n\n\xe2\x80\xa2\n\nSchultz v. Sykes, 638 N.W. 2d 604 (2001), discusses the dismissal of a civil case based on subornation of\nperjury: http://scholar.google.com/scholar_case?case=3885876526561644390&q=%22subornation\n+of+perjury%22&hl=en&as_sdt=2,5&as_ylo=2000.\n\nArticles of Interest\n\xe2\x80\xa2\n\nTreason prosecutions in modern times: http://www.nysun.com/editorials/time-of-treason/41533\n\n\xe2\x80\xa2\n\nThe trial of Faisal Shahzad: http://www.csmonitor.com/USA/Justice/2010/1005/Life-sentence-for -FaisalShahzad-could-join-shoe-bomber-in-Colorado\n\n\xe2\x80\xa2\n\nThe extension of certain portions of the USA PATRIOT Act: http://www.washingtonpost.com/politics/\npatriot-act-extension-signed-into-law-despite-bipartisan-resistance-in-congress/2011/05/27/\n\n\x0c504 Criminal Law\n\nAGbVlsCH_story.html\n\xe2\x80\xa2\n\nThe famous perjury trial of Alger Hiss: http://www.history.com/this-day-in-history/alger-hiss -convictedof-perjury\n\n\xe2\x80\xa2\n\nHigh-profile bribery cases: http://www.reuters.com/article/2010/04/01/bribery-usa-cases-idUSN\n0121072820100401\n\n\xe2\x80\xa2\n\nThe criminal prosecution of a sitting president: http://www.justice.gov/sites/default/files/olc/opinions/\n2000/10/31/op-olc-v024-p0222.pdf\n\nWebsites of Interest\n\xe2\x80\xa2\n\nThe U.S. v. Lindh case: http://notablecases.vaed.uscourts.gov/1:02-cr-00037/Index.html\n\n\xe2\x80\xa2\n\nInformation about terrorism: http://www.fema.gov/pdf/areyouready/terrorism.pdf\n\n\xe2\x80\xa2\n\nInformation about the USA PATRIOT Act: http://civilrights.uslegal.com/usa-patriot-act\n\n\xe2\x80\xa2\n\nThe Department of Homeland Security: http://www.dhs.gov/index.shtm\n\nStatistics of Interest\n\xe2\x80\xa2\n\nTerrorism: http://www.fbi.gov/stats-services/publications\n\n\xe2\x80\xa2\n\nBribery: http://www.oecd.org/corruption/\n\nAnswers to Exercises\nFrom Section 13.1 \xe2\x80\x9cCrimes Involving National Security\xe2\x80\x9d\n1.\n\nStephanie has not committed sedition because she did not advocate for the use of force or violence or the\ncommission of an unlawful act. Stephanie\xe2\x80\x99s speech is most likely protected because she might be\nenvisioning a peaceful government overthrow by legitimate means.\n\n2.\n\nThe US Court of Appeals for the Eighth Circuit upheld the defendants\xe2\x80\x99 convictions for sabotage, stating\nthat the specific intent or purposely to impede the US national defense could be gleaned from the\ndefendants\xe2\x80\x99 conduct in deliberately damaging the missiles.\n\n3.\n\nThe District of Columbia Court of Appeals upheld the defendant\xe2\x80\x99s disbarment based on convictions for\ncrimes of moral turpitude, and stated that other than treason, no act was more base, vile, or depraved than an\nintentional act to breach the confidentiality of national defense secrets that have come into the hands of an\nindividual.\n\n\x0c13.4 End-of-Chapter Material 505\n\nclass=\xe2\x80\x9dtitle\xe2\x80\x9d>Answers to Exercises\nFrom Section 13.2 \xe2\x80\x9cCrimes Involving Terrorism\xe2\x80\x9d\n1.\n\nWhether or not this is an act of terrorism requires more information. Although the killing takes place in\nfront of the Pakistani Embassy within the territory of the United States, this evidence is not enough to prove\nthat Joshua intended his conduct to influence a civilian population or government by intimidation or to\naffect the government\xe2\x80\x99s conduct by assassination. The location of the shooting could be a pure coincidence,\nand Joshua could have a nonterroristic motive for the killing, such as a personal hatred or malice toward\nKhalid.\n\n2.\n\nThe US Court of Appeals for the Ninth Circuit upheld the statute, which was in place before September\n11, 2001, and under AEDPA prohibited domestic material support to terrorists and terroristic organizations.\nThe court held that the statute was not an unconstitutional prohibition on the right of free association or\nexpression under the First Amendment, nor did it violate federal due process under the Fifth Amendment by\ngranting the secretary of state unfettered and unreviewable authority to designate organizations as terroristic.\nHowever, the court affirmed the US District Court\xe2\x80\x99s decision that portions of the statute defining\n\xe2\x80\x9cpersonnel\xe2\x80\x9d and \xe2\x80\x9ctraining\xe2\x80\x9d were unconstitutionally vague.\n\n3.\n\nThe US Court of Appeals for the Ninth Circuit upheld the statute against a Fifth Amendment due process\nchallenge by construing the statute to require proof that the defendant act with the general intent or\nknowledge of the terrorist organization\xe2\x80\x99s designation or of the unlawful activities that caused it to be so\ndesignated.\n\nAnswers to Exercises\nFrom Section 13.3 \xe2\x80\x9cPerjury, Bribery, and Obstruction of Justice\xe2\x80\x9d\n1.\n\nThe primary issue in Susannah\xe2\x80\x99s perjury prosecution is the materiality of her false statement made under\noath in a judicial proceeding. While Susannah was asked her age during routine background questions, her\nlie might still be material if her advanced age affected her vision because Susannah is testifying about an\nimportant personal observation. In many jurisdictions, the trier of fact, which could be a jury, determines\nthe materiality of this statement.\n\n2.\n\nThe Supreme Court of Connecticut upheld the defendant\xe2\x80\x99s bribery conviction, holding that offering gifts\nto state police officers is not a lesser included offense of bribery because it requires specific intent, and\nbribery under Connecticut law is not a specific intent crime.\n\n3.\n\nThe New York Supreme Court reversed the defendant\xe2\x80\x99s conviction because the defendant did not have a\ncomplaint filed against him, so the \xe2\x80\x9cwitness\xe2\x80\x9d was not about to testify in a judicial proceeding, which is\nrequired under the witness tampering statute.\n\nAnswer to Law and Ethics Question\n1.\n\nThe criminal prosecution of a sitting president would set a good example for the citizens of the United\nStates, but it would pose an immense disruption to the orderly functioning of the government without a\nleader or commander in chief of the armed forces and would also expose the nation to a security risk. The\nUS Supreme Court decision to allow a civil lawsuit against the president forced him to spend time away\n\n\x0c506 Criminal Law\n\nfrom office attending depositions that were protracted and inordinately time consuming. If the case had not\nbeen dismissed, the president would have expended an additional amount of time and effort in preparing for\nand defending against the Jones lawsuit. A similar and even more time-consuming disruptive process would\nensue if a sitting president were to be criminally prosecuted. Not only would the criminal prosecution\nrequire a series of procedures from arrest, indictment, and discovery through pretrial motions, hearings, and\nthe trial itself, but if the president were to be convicted, the consequences to the nation would be\nirreparable. It might not be ethical to spare a sitting president a criminal prosecution when a \xe2\x80\x9cnormal\nperson\xe2\x80\x9d would not be spared, but the ethical concerns are outweighed by the important interests at stake, and\nmost countries would protect their leaders from this type of legal action while in office.\n\nAnswers to You Be the USA\n1.\n\nThis conduct aids the enemy, rather than impeding the administration of justice by interfering with law\nenforcement procedure, criminal prosecution, or conviction, so the proper crime to prosecute is treason.\n\n2.\n\nCopying a top-secret design and providing it to another nation is spying, rather than destroying,\ndamaging, or producing defective property to impede national defense, so the proper crime to prosecute is\nconspiracy to commit espionage.\n\n3.\n\nThis payment is made for the purpose of influencing a public official\xe2\x80\x99s decision, rather than harboring a\nterrorist abroad, so the proper crime to prosecute is bribery.\n\n4.\n\nThe defendant was not under oath when she made the false statement. She was giving false evidence and\nimpeding a law enforcement investigation, so the proper crime to prosecute is obstruction of justice.\n\n\x0cChapter 14: Appendix A: Case Listings\n\nChapter 1 \xe2\x80\x9cIntroduction to Criminal Law\xe2\x80\x9d\n\xe2\x80\xa2\n\nBMW of North America, Inc. v. Gore, 517 U.S. 559 (1996)\n\n\xe2\x80\xa2\n\nGonzales v. Oregon, 546 U.S. 243 (2006)\n\n\xe2\x80\xa2\n\nPayton v. New York, 445 U.S. 573 (1980)\n\n\xe2\x80\xa2\n\nJohnson v. Pearce, 148 N.C.App. 199 (2001)\n\n\xe2\x80\xa2\n\nState v. Gillison, 766 N.W. 2d 649 (2009)\n\n\xe2\x80\xa2\n\nCampbell v. State, 5 S.W.3d 693 (1999)\n\n\xe2\x80\xa2\n\nKeeler v. Superior Court, 470 P.2d 617 (1970)\n\n\xe2\x80\xa2\n\nTexas v. Johnson, 491 U.S. 397 (1989)\n\n\xe2\x80\xa2\n\nMarbury v. Madison, 5 U.S. (1Cranch) 137 (1803)\n\n\xe2\x80\xa2\n\nShaw v. Murphy, 532 U.S. 223 (2001)\n\n\xe2\x80\xa2\n\nLawrence v. Texas, 539 U.S. 558 (2003)\n\n\xe2\x80\xa2\n\nCetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004)\n\n\xe2\x80\xa2\n\nPeople v. Wrotten, 2010 NY Slip Op 04501 (2010)\n\n\xe2\x80\xa2\n\nWilson v. Layne, 526 U.S. 603 (1999)\n\n\xe2\x80\xa2\n\nPadilla v. Gonzales, 397 F.3d 1016 (2005)\n\n\xe2\x80\xa2\n\nRogers v. Tennessee, 532 U.S. 451 (2001)\n\n\xe2\x80\xa2\n\nRoe v. Wade, 410 U.S. 113 (1973)\n\n\xe2\x80\xa2\n\nBowers v. Hardwick, 478 U.S. 186 (1986)\n\n\xe2\x80\xa2\n\nUnited States v. Hudson & Goodwin, 11 U.S. 32 (1812)\n\n\xe2\x80\xa2\n\nAlabama v. Shelton, 535 U.S. 654 (2002)\n\nChapter 2 \xe2\x80\x9cThe Legal System in the United States\xe2\x80\x9d\n\xe2\x80\xa2\n\nGonzales v. Raich, 545 U.S. 1 (2005)\n\n\xe2\x80\xa2\n\nU.S. v. Morrison, 529 U.S. 518 (2000)\n\n\xe2\x80\xa2\n\nPennsylvania v. Nelson, 350 U.S. 497 (1956)\n\n\xe2\x80\xa2\n\nYoungstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)\n\n\xe2\x80\xa2\n\nHamdi v. Rumsfeld, 542 U.S. 507 (2004)\n\n\xe2\x80\xa2\n\nUnited States v. P.H.E., Inc., 965 F.2d 848 (1992)\n\n507\n\n\x0c508 Criminal Law\n\n\xe2\x80\xa2\n\nHertz Corp. v. Friend, 130 S.Ct. 1181 (2010)\n\n\xe2\x80\xa2\n\nPatterson v. New York, 432 U.S. 197 (1977)\n\n\xe2\x80\xa2\n\nSullivan v. Louisiana, 508 U.S. 275 (1993)\n\n\xe2\x80\xa2\n\nRobles v. State, 758 N.E. 2d 581 (2001)\n\n\xe2\x80\xa2\n\nDonahue v. Burl Cain, 231 F.3d 1000 (2000)\n\n\xe2\x80\xa2\n\nState v. Hall, 966 P.2d 208 (1998)\n\n\xe2\x80\xa2\n\nRichards v. Florida, No. 4008-4216 (2010)\n\n\xe2\x80\xa2\n\nClinton v. Jones, 520 U.S. 681 (1997)\n\n\xe2\x80\xa2\n\nSabri v. United States, 541 U.S. 600 (2004)\n\n\xe2\x80\xa2\n\nU.S. v. Comstock, 627 F.3d 513 (2010)\n\n\xe2\x80\xa2\n\nMcCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)\n\n\xe2\x80\xa2\n\nCommonwealth v. Webster, 59 Mass. 295 (1850)\n\n\xe2\x80\xa2\n\nIn re Winship, 397 U.S. 358 (1970)\n\n\xe2\x80\xa2\n\nU.S. v. Arizona, No. CV 10-1413-PHX-SRB (2010)\n\nChapter 3 \xe2\x80\x9cConstitutional Protections\xe2\x80\x9d\n\xe2\x80\xa2\n\nDuncan v. Louisiana, 391 U.S. 145 (1968)\n\n\xe2\x80\xa2\n\nSmith v. Doe, 538 U.S. 84 (2003)\n\n\xe2\x80\xa2\n\nStogner v. California, 539 U.S. 607 (2003)\n\n\xe2\x80\xa2\n\nSmith v. Goguen, 415 U.S. 566 (1974)\n\n\xe2\x80\xa2\n\nGrayned v. City of Rockford, 408 U.S. 104 (1972)\n\n\xe2\x80\xa2\n\nLawrence v. Texas, 539 U.S. 558 (2003)\n\n\xe2\x80\xa2\n\nR.A.V. v. St. Paul, 505 U.S. 377 (1992)\n\n\xe2\x80\xa2\n\nMiller v. California, 413 U.S. 15 (1973)\n\n\xe2\x80\xa2\n\nJenkins v. Georgia, 418 U.S. 153 (1974)\n\n\xe2\x80\xa2\n\nUnited States v. Stevens, 552 U.S. 442 (2010)\n\n\xe2\x80\xa2\n\nWisconsin v. Mitchell, 508 U.S. 47 (1993)\n\n\xe2\x80\xa2\n\nReno v. American Civ. Liberties Union, 521 U.S. 844 (1997)\n\n\xe2\x80\xa2\n\nHolder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010)\n\n\xe2\x80\xa2\n\nGriswold v. Connecticut, 381 U.S. 479 (1965)\n\n\xe2\x80\xa2\n\nRoe v. Wade, 410 U.S. 113 (1973)\n\n\xe2\x80\xa2\n\nPlanned Parenthood v. Casey, 505 U.S. 833 (1992)\n\n\xe2\x80\xa2\n\nDistrict of Columbia v. Heller, 128 S.Ct. 2783 (2008)\n\n\xe2\x80\xa2\n\nMcDonald v. Chicago, No. 08-1521 (2010)\n\n\xe2\x80\xa2\n\nLewis v. U.S., 445 U.S. 55 (1980)\n\n\x0cChapter 14: Appendix A: Case Listings 509\n\n\xe2\x80\xa2\n\nU.S. v. Lopez, 514 U.S. 549 (1995)\n\n\xe2\x80\xa2\n\nFurman v. Georgia, 408 U.S. 238 (1972)\n\n\xe2\x80\xa2\n\nGregg v. Georgia, 428 U.S. 153 (1976)\n\n\xe2\x80\xa2\n\nBaze v. Rees, 128 S. Ct. 1520 (2008)\n\n\xe2\x80\xa2\n\nCoker v. Georgia, 433 U.S. 584 (1977)\n\n\xe2\x80\xa2\n\nKennedy v. Louisiana, 128 S. Ct. 2641 (2008)\n\n\xe2\x80\xa2\n\nApprendi v. New Jersey, 530 U.S. 466 (2000)\n\n\xe2\x80\xa2\n\nU.S. v. Booker, 543 U.S. 220 (2005)\n\n\xe2\x80\xa2\n\nBlakely v. Washington, 542 U.S. 296 (2004)\n\n\xe2\x80\xa2\n\nLockyer v. Andrade, 538 U.S. 63 (2003)\n\n\xe2\x80\xa2\n\nFierro v. Gomez, 77 F.3d 301 (1996)\n\n\xe2\x80\xa2\n\nGall v. U.S., 128 S. Ct. 586 (2007)\n\n\xe2\x80\xa2\n\nSouth Dakota v. Asmussen, 668 N.W.2d 725 (2003)\n\n\xe2\x80\xa2\n\nChristian Legal Society v. Martinez, 130 S. Ct. 2971 (2010)\n\n\xe2\x80\xa2\n\nU.S. v. Alvarez, 617 F.3d 1198 (2010)\n\n\xe2\x80\xa2\n\nSnyder v. Phelps, No. 09-751 (2011)\n\n\xe2\x80\xa2\n\nRobinson v. California, 370 U.S. 660 (1962)\n\n\xe2\x80\xa2\n\nU.S. v. Brown, 381 U.S. 437 (1965)\n\n\xe2\x80\xa2\n\nU.S. v. White, 882 F.2d 250 (1989)\n\n\xe2\x80\xa2\n\nConnally v. General Construction Co., 269 U.S. 385 (1926)\n\n\xe2\x80\xa2\n\nBolling v. Sharpe, 347 U.S. 497 (1954)\n\n\xe2\x80\xa2\n\nLoving v. Virginia, 388 U.S. 1 (1967)\n\n\xe2\x80\xa2\n\nGitlow v. New York, 268 U.S. 652 (1925)\n\n\xe2\x80\xa2\n\nTinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)\n\n\xe2\x80\xa2\n\nR.A.V. v. St. Paul, 505 U.S. 377 (1992)\n\n\xe2\x80\xa2\n\nSable Communis. of California, Inc. v. FCC, 492 U.S. 115 (1989)\n\n\xe2\x80\xa2\n\nSchenck v. U.S., 249 U.S. 47 (1919)\n\n\xe2\x80\xa2\n\nChaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)\n\n\xe2\x80\xa2\n\nLewis v. City of New Orleans, 415 U.S. 130 (1974)\n\n\xe2\x80\xa2\n\nGooding v. Wilson, 405 U.S. 518 (1972)\n\n\xe2\x80\xa2\n\nBrandenburg v. Ohio, 395 U.S. 444 (1969)\n\n\xe2\x80\xa2\n\nVirginia v. Black, 535 U.S. 343 (2003)\n\n\xe2\x80\xa2\n\nRoth v. United States, 354 U.S. 476 (1957)\n\n\xe2\x80\xa2\n\nCity of Erie et al v. Pap\xe2\x80\x99s A.M., 529 U.S. 277 (2000)\n\n\xe2\x80\xa2\n\nGonzales v. Carhart, 127 S.Ct. 1610 (2007)\n\n\xe2\x80\xa2\n\nRoper v. Simmons, 543 U.S. 551 (2005)\n\n\xe2\x80\xa2\n\nFord v. Wainwright, 477 U.S. 399 (1986)\n\n\xe2\x80\xa2\n\nAtkins v. Virginia, 536 U.S. 304 (2002)\n\n\x0c510 Criminal Law\n\n\xe2\x80\xa2\n\nEwing v. California, 538 U.S. 11 (2003)\n\nChapter 4 \xe2\x80\x9cThe Elements of a Crime\xe2\x80\x9d\n\xe2\x80\xa2\n\nState ex rel. Kuntz v. Thirteenth Jud. Dist., 995 P.2d 951 (2000)\n\n\xe2\x80\xa2\n\nRobinson v. California, 370 U.S. 660 (1962)\n\n\xe2\x80\xa2\n\nPowell v. Texas, 392 U.S. 514 (1968)\n\n\xe2\x80\xa2\n\nOler v. State, 998 S.W.2d 363 (1999)\n\n\xe2\x80\xa2\n\nStaples v. U.S., 511 U.S. 600 (1994)\n\n\xe2\x80\xa2\n\nMorissette v. U.S., 342 U.S. 246 (1952)\n\n\xe2\x80\xa2\n\nState v. Crosby, 154 P.3d 97 (2007)\n\n\xe2\x80\xa2\n\nState v. Horner, 126 Ohio St. 3d 466 (2010)\n\n\xe2\x80\xa2\n\nDean v. U.S., 129 S.Ct. 1849 (2009)\n\n\xe2\x80\xa2\n\nBullock v. State, 775 A.2d. 1043 (2001)\n\n\xe2\x80\xa2\n\nCommonwealth v. Casanova, 429 Mass. 293 (1999)\n\n\xe2\x80\xa2\n\nState v. Andrews, 572 S.E.2d 798 (2002)\n\n\xe2\x80\xa2\n\nState v. Sowry, 155 Ohio App. 3d 742 (2004)\n\n\xe2\x80\xa2\n\nRegalado v. U.S., 572 A.2d 416 (1990)\n\n\xe2\x80\xa2\n\nState v. Slayton, 154 P.3d 1057 (2007)\n\n\xe2\x80\xa2\n\nState v. Kanavy, 4 A.3d 991 (2010)\n\n\xe2\x80\xa2\n\nU.S. v. Grajeda, 581 F.3d 1186 (2009)\n\n\xe2\x80\xa2\n\nPeople v. Roberts, 826 P.2d 274 (1992)\n\n\xe2\x80\xa2\n\nGovt. of Virgin Islands v. Smith, 278 F.2d 169 (1960)\n\n\xe2\x80\xa2\n\nState ex rel. Kuntz v. Thirteenth Jud. Dist., 995 P.2d 951 (2000)\n\n\xe2\x80\xa2\n\nJones v. U.S., 308 F.2d 307 (1962)\n\n\xe2\x80\xa2\n\nState v. Davis, 84 Conn. App. 505 (2004)\n\n\xe2\x80\xa2\n\nU.S. v. Pompanio, 429 U.S. 10 (1976)\n\n\xe2\x80\xa2\n\nPeople v. McDaniel, 24 Cal. 3d 661 (1979)\n\n\xe2\x80\xa2\n\nCommonwealth v. Ely, 444 N.E. 2d 1276 (1983)\n\n\xe2\x80\xa2\n\nState v. Huff, 469 A.2d 1251 (1984)\n\n\xe2\x80\xa2\n\nKey v. State, 890 So. 2d 1043 (2002)\n\nChapter 5 \xe2\x80\x9cCriminal Defenses, Part 1\xe2\x80\x9d\n\xe2\x80\xa2\n\nState v. Burkhart, 565 S.E.2d 298 (2002)\n\n\x0cChapter 14: Appendix A: Case Listings 511\n\n\xe2\x80\xa2\n\nHoagland v. State, 240 P.3d 1043 (2010)\n\n\xe2\x80\xa2\n\nRodriguez v. State, 212 S.W.3d 819 (2006)\n\n\xe2\x80\xa2\n\nShuler v. Babbitt, 49 F.Supp.2d 1165 (1998)\n\n\xe2\x80\xa2\n\nMenendez v. Terhune, 422 F.3d 1012 (2005)\n\n\xe2\x80\xa2\n\nTennessee v. Garner, 471 U.S. 1 (1985)\n\n\xe2\x80\xa2\n\nCommonwealth v. Alexander, 531 S.E.2d 567 (2000)\n\n\xe2\x80\xa2\n\nDutton v. Hayes-Pupko, No. 03-06-00438 (2008)\n\n\xe2\x80\xa2\n\nPeople v. Lovercamp, 43 Cal. App. 3d 823 (1974)\n\n\xe2\x80\xa2\n\nState v. Daoud, 141 N.H. 142 (1996)\n\n\xe2\x80\xa2\n\nDonaldson v. Lungren, 2 Cal. App. 4th 1614 (1992)\n\n\xe2\x80\xa2\n\nRamey v. State, 417 S.E.2d 699 (1992)\n\n\xe2\x80\xa2\n\nState v. Perez, 840 P.2d 1118 (1992)\n\n\xe2\x80\xa2\n\nAllison v. Birmingham, 580 So.2d 1377 (1991)\n\n\xe2\x80\xa2\n\nRoy v. Inhabitants of Lewiston, 42 F.3d 691 (1994)\n\n\xe2\x80\xa2\n\nU.S. v. Oakland Cannabis Buyers\xe2\x80\x99 Cooperative, 532 U.S. 483 (2001)\n\n\xe2\x80\xa2\n\nAcers v. United States, 164 U.S. 388 (1896)\n\n\xe2\x80\xa2\n\nGraham v. Connor, 490 U.S. 386 (1989)\n\n\xe2\x80\xa2\n\nState v. Rogers, 912 S.W.2d 670 (1995)\n\n\xe2\x80\xa2\n\nState v. Williams 644 P.2d 889 (1982)\n\n\xe2\x80\xa2\n\nState v. Belgard, 410 So.2d 720 (1982)\n\n\xe2\x80\xa2\n\nState v. Taylor, 858 P.2d 1358 (1993)\n\n\xe2\x80\xa2\n\nBechtel v. State, 840 P.2d 1 (1992)\n\n\xe2\x80\xa2\n\nState v. Sandoval, 130 P.3d 808 (2006)\n\n\xe2\x80\xa2\n\nState v. Faulkner, 483 A.2d 759 (1984)\n\n\xe2\x80\xa2\n\nPeople v. Kurr, 654 N.W.2d 651 (2002)\n\n\xe2\x80\xa2\n\nCommonwealth v. Miranda, No. 08-P-2094 (2010)\n\n\xe2\x80\xa2\n\nState v. Curley, Docket # 0000011.WA, (Wash. App. 2010)\n\n\xe2\x80\xa2\n\nPeople v. Ceballos, 12 Cal.3d 470 (1974)\n\n\xe2\x80\xa2\n\nState v. Holmes, 129 Ohio Misc. 2d 38 (2004)\n\nChapter 6 \xe2\x80\x9cCriminal Defenses, Part 2\xe2\x80\x9d\n\xe2\x80\xa2\n\nDurham v. U.S., 214 F.2d 862 (1954)\n\n\xe2\x80\xa2\n\nU.S. v. Brawner, 471 F.2d 969 (1972)\n\n\xe2\x80\xa2\n\nState v. Guido, 191 A.2d 45 (1993)\n\n\xe2\x80\xa2\n\nState v. Hornsby, 484 S.E.2d 869 (1997)\n\n\x0c512 Criminal Law\n\n\xe2\x80\xa2\n\nPeople v. Register, 60 N.Y.2d 270 (1983)\n\n\xe2\x80\xa2\n\nGarnett v. State, 632 A.2d 797 (1993)\n\n\xe2\x80\xa2\n\nSosa v. Jones, 389 F.3d 644 (2004)\n\n\xe2\x80\xa2\n\nFarley v. State, 848 So.2d 393 (2003)\n\n\xe2\x80\xa2\n\nClark v. Arizona, 548 U.S. 735 (2006)\n\n\xe2\x80\xa2\n\nState v. Ramer, 86 P.3d 132 (2004)\n\n\xe2\x80\xa2\n\nPeople v. Garcia, 87 P.3d 159 (2003)\n\n\xe2\x80\xa2\n\nSebesta v. State, 783 S.W.2d 811 (1990)\n\n\xe2\x80\xa2\n\nU.S. v. Hinckley, 493 F.Supp. 2d 65 (2007)\n\n\xe2\x80\xa2\n\nLegue v. State, 688 N.E.2d 408 (1997)\n\n\xe2\x80\xa2\n\nU.S. v. Albertini, 830 F.2d 985 (1987)\n\n\xe2\x80\xa2\n\nQueen v. M\xe2\x80\x99Naghten, 10 Clark & F.200, 2 Eng. Rep. 718 (H.L. 1843)\n\n\xe2\x80\xa2\n\nState v. Crenshaw, 659 P.2d 488 (1983)\n\n\xe2\x80\xa2\n\nState v. Skaggs, 586 P.2d 1279 (1978)\n\n\xe2\x80\xa2\n\nState v. Worlock, 569 A.2d 1314 (1990)\n\n\xe2\x80\xa2\n\nState v. White, 270 P.2d 727 (1954)\n\n\xe2\x80\xa2\n\nKent v. United States, 383 U.S. 541 (1966)\n\n\xe2\x80\xa2\n\nHopkins v. State, 69 A.2d 456 (1949)\n\n\xe2\x80\xa2\n\nPeople v. Olsen, 685 P.2d 52 (1984)\n\n\xe2\x80\xa2\n\nPeople v. Barraza, 23 Cal.3d 675 (1979)\n\n\xe2\x80\xa2\n\nGraham v. Florida, 130 S.Ct. 2011 (2010)\n\nChapter 7 \xe2\x80\x9cParties to Crime\xe2\x80\x9d\n\xe2\x80\xa2\n\nNew York Central R. Co. v. U.S., 212 U.S. 481 (1909)\n\n\xe2\x80\xa2\n\nState v. Ulvinen, 313 N.W.2d 425 (1981)\n\n\xe2\x80\xa2\n\nPeople v. Premier House, Inc., 662 N.Y.S 2d 1006 (1997)\n\n\xe2\x80\xa2\n\nCommonwealth v. Life Care Centers of America, Inc., 456 Mass. 826 (2010)\n\n\xe2\x80\xa2\n\nU.S. v. Hill, 268 F.3d 1140 (2001)\n\n\xe2\x80\xa2\n\nState v. Truesdell, 620 P.2d 427 (1980)\n\n\xe2\x80\xa2\n\nCollins v. State, 438 So. 2d 1036 (1983)\n\n\xe2\x80\xa2\n\nState v. Jackson, 137 Wn. 2d 712 (1999)\n\n\xe2\x80\xa2\n\nU.S. v. L.E. Meyers Co., 562 F.3d 845 (2009)\n\n\xe2\x80\xa2\n\nState v. Melvin, No. 382PA09 (North Carolina 2010)\n\n\xe2\x80\xa2\n\nState v. Merida-Medina, 191 P.3d 708 (2008)\n\n\xe2\x80\xa2\n\nState v. Guminga, 395 N.W.2d 344 (1986)\n\n\x0cChapter 14: Appendix A: Case Listings 513\n\n\xe2\x80\xa2\n\nStaten v. State, 519 So. 2d 622 (1988)\n\n\xe2\x80\xa2\n\nCommonwealth v. Hargrave, 745 A.2d 20 (2000)\n\n\xe2\x80\xa2\n\nPeople v. Rolon, 160 Cal. App. 4th 1206 (2008)\n\n\xe2\x80\xa2\n\nPeople v. Lauria, 251 Cal. App. 2d 471 (1967)\n\n\xe2\x80\xa2\n\nBogdanov v. People, 941 P.2d 247, 251 n. 8 (1997)\n\n\xe2\x80\xa2\n\nStandefer v. U.S., 447 U.S. 10 (1980)\n\n\xe2\x80\xa2\n\nState v. Akers, 400 A.2d 38 (1979)\n\n\xe2\x80\xa2\n\nJoubert v. State, 235 S.W.3d 729 (2007)\n\nChapter 8 \xe2\x80\x9cInchoate Offenses\xe2\x80\x9d\n\xe2\x80\xa2\n\nPeople v. Hart, 176 Cal. App. 3d 662 (2009)\n\n\xe2\x80\xa2\n\nU.S. v. Guest, 383 U.S. 745 (1966)\n\n\xe2\x80\xa2\n\nReynolds v. State, 207 Tex. App. LEXIS 6139 (2007)\n\n\xe2\x80\xa2\n\nRex v. Scofield, Cald. 397 (1784)\n\n\xe2\x80\xa2\n\nRex v. Higgins, 102 Eng. Rep. 269 (K.B. 1801)\n\n\xe2\x80\xa2\n\nState v. Withrow, 8 S.W.3d 75 (1999)\n\n\xe2\x80\xa2\n\nPeople v. Strand, 539 N.W.2d 739 (1995)\n\n\xe2\x80\xa2\n\nPinkerton v. U.S., 328 U.S. 640 (1946)\n\n\xe2\x80\xa2\n\nState v. Blackmer, 816 A.2d 1014 (2003)\n\n\xe2\x80\xa2\n\nCommonwealth v. Roux, 350 A.2d 867 (1976)\n\n\xe2\x80\xa2\n\nPeople v. Han, 78 Cal. App. 4th 797 (2000)\n\n\xe2\x80\xa2\n\nPlanter v. State, 9 S.W. 3d 156 (1999)\n\n\xe2\x80\xa2\n\nPeople v. Dennis, 340 N.W.2d 81 (1983)\n\n\xe2\x80\xa2\n\nU.S. v. Contreras, 950 F.2d 232 (1991)\n\n\xe2\x80\xa2\n\nPeople v. Miller, 856 N.Y.S. 2d 443 (2008)\n\n\xe2\x80\xa2\n\nState v. Montgomery, 22 Conn. App. 340 (1990)\n\n\xe2\x80\xa2\n\nState v. Pinson, 895 P.2d 274 (1995)\n\n\xe2\x80\xa2\n\nGrill v. State, 337 Md. 91 (1995)\n\n\xe2\x80\xa2\n\nPeople v. Luna, 170 Cal. App. 4th 535 (2009)\n\n\xe2\x80\xa2\n\nCommonwealth v. Hamel, 52 Mass. App. Ct. 250 (2001)\n\n\xe2\x80\xa2\n\nPeople v. Dillon, 668 P.2d 697 (1983)\n\n\xe2\x80\xa2\n\nHamiel v. Wisconsin, 285 N.W.2d 639 (1979)\n\n\xe2\x80\xa2\n\nU.S. v. Mandujano, 499 F.2d 370, 373 fn. 5, (1974)\n\n\xe2\x80\xa2\n\nDennis v. U.S., 341 U.S. 494 (1951),\n\n\xe2\x80\xa2\n\nState v. Bond, 49 Conn. App. 183 (1998)\n\n\x0c514 Criminal Law\n\n\xe2\x80\xa2\n\nState v. Verive, 627 P.2d 721 (1981)\n\n\xe2\x80\xa2\n\nState v. Lewis, 220 Conn. 602 (1991)\n\n\xe2\x80\xa2\n\nU.S. v. Castaneda, 9 F.3d 761 (1993)\n\n\xe2\x80\xa2\n\nIanelli v. U.S, 420 U.S. 770, 785 (1975)\n\n\xe2\x80\xa2\n\nCallanan v. U.S., 364 U.S. 587 (1961)\n\n\xe2\x80\xa2\n\nClune v. U.S., 159 U.S. 590 (1895)\n\n\xe2\x80\xa2\n\nCommonwealth v. Barsell, 424 Mass. 737 (1997)\n\nChapter 9 \xe2\x80\x9cCriminal Homicide\xe2\x80\x9d\n\xe2\x80\xa2\n\nPeople v. Cole, 95 P.3d 811 (2004)\n\n\xe2\x80\xa2\n\nWashington v. Glucksberg, 521 U.S. 844 (1997)\n\n\xe2\x80\xa2\n\nU.S. v. Moore, 846 F.2d 1163 (1988)\n\n\xe2\x80\xa2\n\nState v. West, 844 S.W.2d 144 (1992)\n\n\xe2\x80\xa2\n\nU.S. v. Downs, 56 F.3d 973 (1995)\n\n\xe2\x80\xa2\n\nPeople v. Anderson, 666 N.W.2d 696 (2003)\n\n\xe2\x80\xa2\n\nEnmund v. Florida, 458 U.S. 782 (1982)\n\n\xe2\x80\xa2\n\nBerry v. Superior Court, 208 Cal. App. 3d 783 (1989)\n\n\xe2\x80\xa2\n\nDowda v. State, 776 So.2d 714 (2000)\n\n\xe2\x80\xa2\n\nStevens v. State, 691 N.E.2d 412 (1997)\n\n\xe2\x80\xa2\n\nTripp v. State, 374 A.2d 384 (1977)\n\n\xe2\x80\xa2\n\nWalker v. Superior Court, 47 Cal.3d 112 (1988)\n\n\xe2\x80\xa2\n\nPeople v. Taylor, 86 P.3d 881 (2004)\n\n\xe2\x80\xa2\n\nState v. Evangelista, 353 S.E.2d 375 (1987)\n\n\xe2\x80\xa2\n\nWood v. State, 620 S.E.2d 348 (2005)\n\n\xe2\x80\xa2\n\nState v. Warmke, 879 A.2d 30 (2005)\n\n\xe2\x80\xa2\n\nUnited States v. Watson, 501 A.2d 791 (1985)\n\n\xe2\x80\xa2\n\nCalderon v. Prunty, 59 F.3d 1005 (1995)\n\n\xe2\x80\xa2\n\nMullaney v. Wilbur, 421 U.S. 684 (1975)\n\n\xe2\x80\xa2\n\nPeople v. Ochoa, 966 P.2d 442 (1999)\n\n\xe2\x80\xa2\n\nKeeler v. Superior Court, 2 Cal.3d 619 (1970)\n\n\xe2\x80\xa2\n\nWashington v. Glucksberg, 521 U.S. 844 (1997)\n\n\xe2\x80\xa2\n\nPeople v. Carines, 597 N.W. 2d 130 (1999)\n\n\xe2\x80\xa2\n\nAcers v. United States, 164 U.S. 388 (1896)\n\n\xe2\x80\xa2\n\nHawthorne v. State, 835 So. 2d 14 (2003)\n\n\xe2\x80\xa2\n\nPeople v. Anderson, 447 P.2d 942 (1968)\n\n\x0cChapter 14: Appendix A: Case Listings 515\n\n\xe2\x80\xa2\n\nState v. Snowden, 313 P.2d 706 (1957)\n\n\xe2\x80\xa2\n\nCommonwealth v. Carroll, 412 Pa. 525 (1963)\n\n\xe2\x80\xa2\n\nState v. Schrader, 302 SE 2d 70 (1982)\n\n\xe2\x80\xa2\n\nKennedy v. Louisiana, 128 S. Ct. 2641 (2008)\n\n\xe2\x80\xa2\n\nState v. Hoang, 755 P.2d 7 (1988)\n\n\xe2\x80\xa2\n\nPeople v. Hernandez, 82 N.Y.2d 309 (1993)\n\n\xe2\x80\xa2\n\nState v. Canola, 73 N.J. 206 (1977)\n\n\xe2\x80\xa2\n\nPeople v. Young, 105 P.2d 487 (2005)\n\n\xe2\x80\xa2\n\nPeople v. Steele, 47 P.2d 225 (2002)\n\n\xe2\x80\xa2\n\nOhio v. Shane, 63 Ohio St.3d 630 (1992)\n\n\xe2\x80\xa2\n\nGirouard v. State, 583 A.2d 718 (1991)\n\n\xe2\x80\xa2\n\nState v. Cole, 338 S.C. 97 (2000)\n\n\xe2\x80\xa2\n\nState v. Doub III, 32 Kan.App.2d 1087 (2004)\n\nChapter 10 \xe2\x80\x9cSex Offenses and Crimes Involving Force, Fear, and Physical Restraint\xe2\x80\x9d\n\xe2\x80\xa2\n\nState v. Salaman, 949 A.2d 1092 (2008)\n\n\xe2\x80\xa2\n\nToomer v. State, 529 SE 2d 719 (2000)\n\n\xe2\x80\xa2\n\nFleming v. State, 323 SW 3d 540 (2010)\n\n\xe2\x80\xa2\n\nState v. Higgs, 601 N.W.2d 653 (1999)\n\n\xe2\x80\xa2\n\nCommonwealth v. Henson, 259 N.E.2d 769 (1970)\n\n\xe2\x80\xa2\n\nState v. Holbach, 2009 ND 37 (2009)\n\n\xe2\x80\xa2\n\nBurke v. State, 676 S.E.2d 766 (2009)\n\n\xe2\x80\xa2\n\nCommonwealth v. Rivera, 828 A.2d 1094 (2003)\n\n\xe2\x80\xa2\n\nU.S. v. Lanier, 520 U.S. 259 (1997)\n\n\xe2\x80\xa2\n\nOregon v. Rangel, 934 P.2d 1128 (1997)\n\n\xe2\x80\xa2\n\nChatwin v. U.S, 326 U.S. 455 (1946)\n\n\xe2\x80\xa2\n\nKennedy v. Louisiana, 128 S.Ct. 2641 (2008)\n\n\xe2\x80\xa2\n\nLawrence v. Texas, 539 U.S. 558 (2003)\n\n\xe2\x80\xa2\n\nIowa v. Vander Esch, 662 N.W. 2d 689 (2002)\n\n\xe2\x80\xa2\n\nBoro v. Superior Court, 163 Cal. App. 3d 1224 (1985)\n\n\xe2\x80\xa2\n\nIn re John Z., 29 Cal. 4th 756 (2003)\n\n\xe2\x80\xa2\n\nState v. Borthwick, 880 P.2d 1261 (1994)\n\n\xe2\x80\xa2\n\nState v. Lile, 699 P.2d 456 (1985)\n\n\xe2\x80\xa2\n\nPeople v. Mayberry, 542 P.2d 1337 (1975)\n\n\xe2\x80\xa2\n\nState v. Plunkett, 934 P.2d 113 (1997)\n\n\x0c516 Criminal Law\n\n\xe2\x80\xa2\n\nAssociated Press et. al. v. District Court for the Fifth Judicial District of Colorado, 542 U.S. 1301 (2004)\n\n\xe2\x80\xa2\n\nState of New Jersey in the Interest of M.T.S., 609 A.2d 1266 (1972)\n\n\xe2\x80\xa2\n\nPeople v. Liberta, 64 N.Y. 2d 152 (1984)\n\n\xe2\x80\xa2\n\nMichael M. v. Superior Court, 450 U.S. 464 (1981)\n\n\xe2\x80\xa2\n\nLawrence v. Texas, 539 U.S. 558 (2003)\n\n\xe2\x80\xa2\n\nCommonwealth v. Matthews, 205 PA Super 92 (2005)\n\n\xe2\x80\xa2\n\nPeople v. Nickens, 685 NW 2d 657 (2004)\n\n\xe2\x80\xa2\n\nClark v. Commonwealth, 676 S.E.2d 332 (2009)\n\n\xe2\x80\xa2\n\nCommonwealth v. Porro, 458 Mass. 526 (2010)\n\n\xe2\x80\xa2\n\nPeople v. Dominguez, 140 P.2d 866 (2006)\n\nChapter 11 \xe2\x80\x9cCrimes against Property\xe2\x80\x9d\n\xe2\x80\xa2\n\nState v. Larson, 605 N.W. 2d 706 (2000)\n\n\xe2\x80\xa2\n\nPeople v. Traster, 111 Cal. App. 4th 1377 (2003)\n\n\xe2\x80\xa2\n\nU.S. v. Ingles, 445 F.3d 830 (2006)\n\n\xe2\x80\xa2\n\nState v. Robertson, 531 S. E. 2d 490 (2000)\n\n\xe2\x80\xa2\n\nPeople v. Pratt, 656 N.W.2d 866 (2002)\n\n\xe2\x80\xa2\n\nButler v. Florida, (Fla: Dist. Court of Appeals, 2009)\n\n\xe2\x80\xa2\n\nIn the Matter of V.V.C., No. 04-07-00166 CV (Tex.: Court of Appeals, 2008)\n\n\xe2\x80\xa2\n\nPeople v. Beaver, 186 Cal. App. 4th 107 (2010)\n\n\xe2\x80\xa2\n\nState v. Castillo, Docket No. 29, 641 (NM: 2011)\n\n\xe2\x80\xa2\n\nPeople v. Nowack, 614 N.W.2d 78 (2000)\n\n\xe2\x80\xa2\n\nBritt v. Commonwealth, 667 S.E.2d 763 (2008)\n\n\xe2\x80\xa2\n\nCommonwealth v. Mills, 436 Mass. 387 (2002)\n\n\xe2\x80\xa2\n\nItin v. Ungar, 17 P.3d 129 (2000)\n\n\xe2\x80\xa2\n\nIn the Matter of Schwimmer, 108 P.3d 761 (2005)\n\n\xe2\x80\xa2\n\nPeople v. Lueth, 660 N.W.2d 322 (2002)\n\n\xe2\x80\xa2\n\nPeople v. Curtin, 22 Cal. App. 4th 528 (1994)\n\n\xe2\x80\xa2\n\nPeople v. Beaver, 186 Cal. App. 4th 107 (2010)\n\n\xe2\x80\xa2\n\nDurland v. U.S., 161 U.S. 306, 313 (1896),\n\n\xe2\x80\xa2\n\nU.S. v. McClelland, 868 F.2d 704 (1989)\n\n\xe2\x80\xa2\n\nS.W. v. State, 513 So. 2d 1088 (1987)\n\n\xe2\x80\xa2\n\nState v. Handburgh, 830 P.2d 641 (1992)\n\n\xe2\x80\xa2\n\nJones v. State, 652 So. 2d 346 (1995)\n\n\xe2\x80\xa2\n\nMetheny v. State, 755 A.2d 1088 (2000)\n\n\x0cChapter 14: Appendix A: Case Listings 517\n\n\xe2\x80\xa2\n\nWilliams v. State, 91 S.W. 3d 54 (2002)\n\n\xe2\x80\xa2\n\nCommonwealth v. Hallums, 61 Mass. App. Ct. 50 (2004)\n\n\xe2\x80\xa2\n\nPeople v. Nible, 200 Cal. App. 3d 838 (1988)\n\n\xe2\x80\xa2\n\nState v. Hall, 3 P.3d 582 (2000)\n\n\xe2\x80\xa2\n\nPeople v. Nunley, 168 Cal. App. 3d 225 (1985)\n\n\xe2\x80\xa2\n\nState v. Allen, 110 P. 3d 849 (2005)\n\n\xe2\x80\xa2\n\nState v. Reavis, 700 S.E.2d 33 (2010)\n\n\xe2\x80\xa2\n\nPeople v. Atkins, 25 Cal. 4th 76 (2001)\n\n\xe2\x80\xa2\n\nUrsulita v. State, Docket No. A10A1733 (Georgia 2011)\n\nChapter 12 \xe2\x80\x9cCrimes against the Public\xe2\x80\x9d\n\xe2\x80\xa2\n\nPeople v. Acuna, 14 Cal. 4th 1090 (1997)\n\n\xe2\x80\xa2\n\nPapachristou v. City of Jacksonville, 405 U.S. 156 (1972)\n\n\xe2\x80\xa2\n\nState v. Russell, 890 A.2d 453 (2006)\n\n\xe2\x80\xa2\n\nPeople v. Hoffstead, 905 N.Y.S.2d 736 (2010)\n\n\xe2\x80\xa2\n\nCity of Chicago v. Morales, 527 U.S. 41 (1999)\n\n\xe2\x80\xa2\n\nOrtiz v. NYS Parole in Bronx, 586 F.3d 149 (2009)\n\n\xe2\x80\xa2\n\nPeople v. Englebrecht, 88 Cal. App. 4th 1236 (2001)\n\n\xe2\x80\xa2\n\nPoindexter v. State, 153 S.W. 3d 402 (2005)\n\n\xe2\x80\xa2\n\nPeople v. Watson, No. 90962, (Ohio 2120 2009)\n\n\xe2\x80\xa2\n\nLove v. Superior Court, 226 Cal. App. 3d 736 (1990)\n\n\xe2\x80\xa2\n\nSatterfield v. State, 395 S.E. 2d 816 (1990)\n\n\xe2\x80\xa2\n\nSilvar v. Dist. Ct., 129 P.3d 682 (2006)\n\n\xe2\x80\xa2\n\nManduley v. Superior Court, 41 P.3d 3 (2002)\n\n\xe2\x80\xa2\n\nState v. Bradshaw, 98 P.3d 1190 (2004)\n\n\xe2\x80\xa2\n\nRoulette v. City of Seattle, 97 F.3d 300 (1996)\n\n\xe2\x80\xa2\n\nNoy v. State, 83 P.3d 538 (2003)\n\n\xe2\x80\xa2\n\nPhillips v. State, 25 So. 3d 404 (2010)\n\n\xe2\x80\xa2\n\nIn re BW, 313 S.W. 3d 818 (2010)\n\n\xe2\x80\xa2\n\nWolfe v. State, 24 P.3d 1252 (2001)\n\n\xe2\x80\xa2\n\nColten v. Kentucky, 407 U.S. 104 (1972)\n\n\xe2\x80\xa2\n\nEdwards v. California, 314 U.S. 160 (1941)\n\n\xe2\x80\xa2\n\nCity of Chicago v. Morales, 527 U.S. 41 (1999)\n\n\xe2\x80\xa2\n\nKolender v. Lawson, 461 U.S. 352 (1983)\n\n\xe2\x80\xa2\n\nGresham v. Peterson, 225 F.3d 899 (2000)\n\n\x0c518 Criminal Law\n\n\xe2\x80\xa2\n\nJones v. City of Los Angeles, 444 F.3d 1118 (2006)\n\n\xe2\x80\xa2\n\nPeople v. Sanchez, 888 N.Y.S. 2d 352 (2009)\n\n\xe2\x80\xa2\n\nRobinson v. California, 370 U.S. 660 (1962)\n\n\xe2\x80\xa2\n\nPeople v. Parra, 70 Cal. App. 4th 222 (1999)\n\n\xe2\x80\xa2\n\nGonzales v. Raich, 545 U.S. 1 (2005)\n\n\xe2\x80\xa2\n\nU.S. v. Oakland Cannabis Buyers\xe2\x80\x99 Cooperative, 532 U.S. 483 (2001)\n\nChapter 13 \xe2\x80\x9cCrimes against the Government\xe2\x80\x9d\n\xe2\x80\xa2\n\nU.S. v. Adcock, 558 F.2d 397 (1977)\n\n\xe2\x80\xa2\n\nU.S v. Burr, 25 F Cas 55 (1807)\n\n\xe2\x80\xa2\n\nHaupt v. U.S., 330 U.S. 631 (1947)\n\n\xe2\x80\xa2\n\nCramer v. U.S., 325 U.S. 1, 34, 35 (1945)\n\n\xe2\x80\xa2\n\nYates v. U.S., 354 U.S. 298 (1957)\n\n\xe2\x80\xa2\n\nU.S. v. Kabat, 797 Fed.2d 580 (1986)\n\n\xe2\x80\xa2\n\nIn re Squillacote, 790 A.2d 514 (2002)\n\n\xe2\x80\xa2\n\nHumanitarian Law Project v. Reno, 205 F.3d 1130 (2000)\n\n\xe2\x80\xa2\n\nHumanitarian Law Project v. U.S. Department of Justice, 352 F.3d 382 (2003)\n\n\xe2\x80\xa2\n\nState v. Carr, 172 Conn. 458 (1977)\n\n\xe2\x80\xa2\n\nPeople v. Silverberg, 771 N.Y.S. 2d 274 (2003)\n\n\xe2\x80\xa2\n\nKawakita v. U.S., 343 U.S. 717 (1952)\n\n\xe2\x80\xa2\n\nU.S. v. Rosen, 445 F.Supp.2d 602 (2006)\n\n\xe2\x80\xa2\n\nSchultz v. Sykes, 638 N.W. 2d 604 (2001)\n\n\xe2\x80\xa2\n\nPennsylvania v. Nelson, 350 U.S. 497 (1956)\n\n\xe2\x80\xa2\n\nU.S. v. Moussaoui, 591 F.3d 236 (2010)\n\n\xe2\x80\xa2\n\nState v. Kimber, 48 Conn. App. 234 (1998)\n\n\xe2\x80\xa2\n\nU.S. v. Gaudin, 515 U.S. 506 (1995)\n\n\xe2\x80\xa2\n\nClinton v. Jones, 520 U.S. 681 (1997)\n\n\x0c'