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{"status": "completed", "conte {"status": "completed", "content": "Criminal Law \nLicensing Information \nThis text was adapted by Saylor Academy under a Creative Commons Attribution- \nNonCommercial-ShareAlike 3.0 License without attribution as requested by the work's original \ncreator or licensor. \n \nSaylor Academy would like to thank Andy Schmitz for his work in maintaining and improving \nthe HTML versions of these textbooks. This textbook is adapted from his HTML version, and his \nproject can be found here. \nHow to cite this work: \n\u2022 Publisher: Saylor Academy \n\u2022 Year Published: 2012 \nPreface \nWelcome to Criminal Law, your guide to a fascinating yet challenging topic. This engaging and \ninteractive textbook will enhance your ability to be successful in academics or a career in \ncriminal justice. \nContent \nCriminal Law begins with the foundations of law and the legal system and then \nextensively explores criminal laws and defenses using general state principles, \nfederal law, the Constitution, and the Model Penal Code as guidelines. Although it is \nneither possible nor desirable to discuss every criminal law, this textbook provides a basic yet thorough overview of the American criminal justice system. After \ncompleting Criminal Law, you will be familiar with the nature and sources of law, \nthe court system, the adversarial process, the most prominent crimes, and \naccompanying criminal defenses. \nApproach \nCriminal Law uses a two-step process to augment learning, called \nthe applied approach. First, after building a strong foundation from \nscratch, Criminal Law introduces you to crimes and defenses that have been broken \ndown into separate components. It is so much easier to memorize and comprehend \nthe subject matter when it is simplified this way. However, becoming proficient in \nthe law takes more than just memorization. You must be trained to take the laws you \nhave studied and apply them to various fact patterns. Most students are expected to \ndo this automatically, but application must be seen, experienced, and practiced \nbefore it comes naturally. Thus the second step of the applied approach is reviewing \nexamples of the application of law to facts after dissecting and analyzing each legal \nconcept. Some of the examples come from cases, and some are purely fictional. All \nthe examples are memorable, even quirky, so they will stick in your mind and be \navailable when you need them the most (like during an exam). After a few chapters, \nyou will notice that you no longer obsess over an explanation that doesn't \ncompletely make sense the first time you read it\u2014you will just skip to the example. \nThe examples clarify the principles for you, lightening the workload significantly. \nFeatures \nLet's face it, legal textbooks can be dry. This is unfortunate because law, especially \ncriminal law, is an intrinsically compelling topic. To hold your attention and keep \nyou alert, Criminal Law employs a variety of instructional techniques that should \nengage you from start to finish. First, chapters contain embedded videos, ethical scenarios, charts, diagrams, and \ntables to demonstrate the legal concepts and examples provided. These \nenhancements break up the text and also appeal to various learning styles. \nIn addition, instead of wasting valuable textbook space by reprinting edited cases, \nCriminal Law links to cases online. You can read more cases that way, and cases \nare like examples\u2014they demonstrate the application of law to facts. Also, you can \nread the entire case exactly the way the judge wrote it, instead of an edited version \nthat has been shrunk to fit into a limited amount of pages. \nHave you ever tried to check your answers to review questions in a textbook, only to \nfind that the correct answers are nowhere in sight? Criminal Law gives you the \nanswer to every question at the end of each chapter. Go ahead and check the \nanswers first. Contrary to popular belief, this actually improves\u2014and does not \ndetract from\u2014 learning. \nIn addition, Criminal Law includes hundreds of footnotes that link to online \ncases and statutes; supplementary links to articles, websites, and statistics online; \nand plenty of reference material for a term paper or other research project. In \nshort, Criminal Law should contain everything you need to successfully complete \nyour course. It is also a valuable guide to which you can refer throughout your \ncriminal justice career. \nGoals \nAlthough academic success is important, I wrote Criminal Law to increase your \nawareness as you read the newspaper (or read the news online), watch television, or \ndiscuss legal situations with friends and colleagues. Law is an integral part of life, \nyet most people lack the most fundamental understanding of legal concepts. My \nsincere hope is that once you have finished reading Criminal Law, you will become \nyour own most trusted legal authority. Chapter 1Introduction to Criminal Law Source: Image courtesy of Tara Storm. \nElementary notions of fairness enshrined in our constitutional jurisprudence \ndictate that a person receive fair notice not only of the conduct that will subject him \nto punishment but also of the severity of the penalty that a State may impose. \nBMW of North America, Inc. v. Gore, cited in Section 1 \"Damages\" \n1.1 Introduction \nLEARNING OBJECTIVE \n1. Define a crime. \nThis textbook introduces you to our legal system in the United States, the basic elements of a \ncrime, the specific elements of commonly encountered crimes, and most criminal defenses. \nCriminal law always involves the government and government action, so you will also review the \npertinent sections of the United States Constitution and its principles as they apply to criminal \nlaw. By the end of the book, you will be comfortable with the legal framework that governs the \ncareers of criminal justice professionals. \nDefinition of a Crime \nLet's begin at the beginning by defining a crime. The most basic definition of a crime \nis \"an act committed in violation of a law prohibiting it, or omitted in violation of a \nlaw ordering it.\"Yourdictionary.com, \"Definition of Crime,\" accessed August 15, \n2010, http://www.yourdictionary.com/crime. You learn about criminal act and \nomission to act in Chapter 4 \"The Elements of a Crime\". For now, it is important to \nunderstand that criminal act, omission to act, and criminal intent are elements or \nparts of every crime. Illegality is also an element of every crime. Generally, the \ngovernment must enact a criminal law specifying a crime and its elements before it \ncan punish an individual for criminal behavior. Criminal laws are the primary focus \nof this book. As you slowly start to build your knowledge and understanding of criminal law, you will notice some unique characteristics of the United States' legal \nsystem. \nLaws differ significantly from state to state. Throughout the United States, each state \nand the federal government criminalize different behaviors. Although this plethora \nof laws makes American legal studies more complicated for teachers and students, \nthe size, cultural makeup, and geographic variety of our country demand this type of \nlegal system. \nLaws in a democratic society, unlike laws of nature, are created by people and are \nfounded in religious, cultural, and historical value systems. People from varying \nbackgrounds live in different regions of this country. Thus you will see that different \npeople enact distinct laws that best suit their needs. This book is intended for use in \nall states. However, the bulk of any criminal law overview is an examination of \ndifferent crimes and their elements. To be accurate and representative, this book \nfocuses on general principles that many states follow and provides frequent \nreferences to specific state laws for illustrative purposes. Always check the most \ncurrent version of your state's law because it may vary from the law presented in this \nbook. \nLaws are not static. As society changes, so do the laws that govern behavior. Evolving \nvalue systems naturally lead to new laws and regulations supporting modern beliefs. \nAlthough a certain stability is essential to the enforcement of rules, occasionally the \nrules must change. \nTry to maintain an open mind when reviewing the different and often contradictory \nlaws set forth in this book. Law is not exact, like science or math. Also try to become \ncomfortable with the gray area, rather than viewing situations as black or white. \nKEY TAKEAWAY \n\u2022 A crime is an act committed in violation of a law prohibiting it or omitted in violation of a law ordering it. In general, the criminal law must be enacted before the crime is committed. \nEXERCISE \nAnswer the following question. Check your answer using the answer key at the end \nof the chapter. \n1. Read Gonzales v. Oregon, 546 U.S. 243 (2006). Did the US Supreme Court preserve Oregon's \nright to legalize physician-assisted suicide? \n1.2 Criminal Law and Criminal Procedure \nLEARNING OBJECTIVE \n1. Compare criminal law and criminal procedure. \nThis book focuses on criminal law, but it occasionally touches on issues of criminal procedure, so \nit is important to differentiate between the two. \nCriminal law generally defines the rights and obligations of individuals in society. Some common \nissues in criminal law are the elements of specific crimes and the elements of various criminal \ndefenses. Criminal procedure generally concerns the enforcement of individuals' rights during \nthe criminal process. Examples of procedural issues are individuals' rights during law \nenforcement investigation, arrest, filing of charges, trial, and appeal. \nExample of Criminal Law Issues \nClara and Linda go on a shopping spree. Linda insists that they browse an expensive \ndepartment store. Moments after they enter the lingerie department, Linda \nsurreptitiously places a bra in her purse. Clara watches, horrified, but does not say \nanything, even though a security guard is standing nearby. This example illustrates \ntwo issues of criminal law: (1) Which crime did Linda commit when she shoplifted \nthe bra? (2) Did Clara commit a crime when she failed to alert the security guard to \nLinda's shoplifting? You learn the answer to issue (1) in Chapter 11 \"Crimes against Property\" and issue (2) in Chapter 4 \"The Elements of a Crime\" and Chapter 7 \n\"Parties to Crime\". \nExample of Criminal Procedure Issues \nReview the example in Section 1.2.1 \"Example of Criminal Law Issues\". Assume that \nLinda and Clara attempt to leave the store and an alarm is activated. Linda begins \nsprinting down the street. Colin, a police officer, just happens to be driving by with \nthe window of his patrol car open. He hears the store alarm, sees Linda running, and \nbegins shooting at Linda from the car. Linda is shot in the leg and collapses. Linda is \ntreated at the hospital for her injury, and when she is released, Colin arrests her and \ntransports her to the police station. He brings her to an isolated room and leaves her \nthere alone. Twelve hours later, he reenters the room and begins questioning Linda. \nLinda immediately requests an attorney. Colin ignores this request and continues to \nquestion Linda about the reason the department store alarm went off. Whether Colin \nproperly arrested and interrogated Linda are criminal procedure issues beyond \nthe scope of this book. However, this example does illustrate one criminal law issue: \ndid Colin commit a crime when he shot Linda in the leg? You learn the answer to \nthis question in Chapter 5 \"Criminal Defenses, Part 1\". Figure 1.1 Criminal Law and \nCriminal Procedure KEY TAKEAWAY \n\u2022 Criminal law generally defines the rights and obligations of individuals in society. Criminal \nprocedure generally concerns the enforcement of individuals' rights during the criminal \nprocess. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the end \nof the chapter. \n1. Paul, a law enforcement officer, arrests Barney for creating a disturbance at a subway \nstation. While Barney is handcuffed facedown on the ground, Paul shoots and kills him. Paul \nclaims that he accidentally grabbed his gun instead of his Taser. Is this an issue of criminal \nlaw or criminal procedure? \n2. Read Payton v. New York, 445 U.S. 573 (1980). In Payton, the US Supreme Court held a New \nYork statute unconstitutional under the Fourth Amendment. Did the Payton ruling focus on \ncriminal law or criminal procedure? \n1.3 The Difference between Civil and Criminal Law \nLEARNING OBJECTIVES \n1. Compare civil and criminal law. \n2. Ascertain the primary differences between civil litigation and a criminal prosecution. \nLaw can be classified in a variety of ways. One of the most general classifications divides law into \ncivil and criminal. A basic definition of civil law is \"the body of law having to do with the private \nrights of individuals.\"Yourdictionary.com, \"Definition of Civil Law,\" accessed August 16, 2010, \nhttp://www.yourdictionary.com/civil-law. As this definition indicates, civil law is between \nindividuals, not the government. Criminal law involves regulations enacted and enforced by \ngovernment action, while civil law provides a remedy for individuals who need to enforce private \nrights against other individuals. Some examples of civil law are family law, wills and trusts, and \ncontract law. If individuals need to resolve a civil dispute, this is called civil litigation, or a civil \nlawsuit. When the type of civil litigation involves an injury, the injury action is called a tort. Characteristics of Civil Litigation \nIt is important to distinguish between civil litigation and criminal prosecution. Civil \nand criminal cases share the same courts, but they have very different goals, \npurposes, and results. Sometimes, one set of facts gives way to a civil lawsuit and a \ncriminal prosecution. This does not violate double jeopardy and is actually quite \ncommon. \nParties in Civil Litigation \nIn civil litigation, an injured party sues to receive a court-ordered remedy, such as \nmoney, property, or some sort of performance. Anyone who is injured\u2014an \nindividual, corporation, or other business entity\u2014can sue civilly. In a civil litigation \nmatter, the injured party that is suing is called the plaintiff. A plaintiff must hire and \npay for an attorney or represent himself or herself. Hiring an attorney is one of the \nmany costs of litigation and should be carefully contemplated before jumping into a \nlawsuit. \nThe alleged wrongdoer and the person or entity being sued are called the defendant. \nWhile the term plaintiff is always associated with civil litigation, the wrongdoer is \ncalled a defendant in both civil litigation and a criminal prosecution, so this can be \nconfusing. 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 \nmatter must hire and pay for an attorney even if that defendant did nothing wrong. \nThe right to a free attorney does not apply in civil litigation, so a defendant who \ncannot afford an attorney must represent himself or herself. \nGoal of Civil Litigation \nThe goal of civil litigation is to compensate the plaintiff for any injuries and to put \nthe plaintiff back in the position that person held before the injury occurred. This \ngoal produces interesting results. It occasionally creates liability or an obligation to \npay when there is no fault on behalf of the defendant. The goal is to make the plaintiff whole, not to punish, so fault is not really an issue. If the defendant has the \nresources to pay, sometimes the law requires the defendant to pay so that society \ndoes not bear the cost of the plaintiff's injury. \nA defendant may be liable without fault in two situations. First, the law that the \ndefendant violated may not require fault. Usually, this is referred to as strict liability. \nStrict liability torts do not require fault because they do not include an intent \ncomponent. Strict liability and other intent issues are discussed in detail in Chapter 4 \n\"The Elements of a Crime\". Another situation where the defendant may be liable \nwithout fault is if the defendant did not actually commit any act but is associated \nwith the acting defendant through a special relationship. The policy of holding a \nseparate entity or individual liable for the defendant's action is called vicarious \nliability. An example of vicarious liability is employer-employee liability, also \nreferred to as respondeat superior. If an employee injures a plaintiff while on the job, \nthe employer may be liable for the plaintiff's injuries, whether or not the employer is \nat fault. Clearly, between the employer and the employee, the employer generally has \nthe better ability to pay. \nExample of Respondeat Superior \nChris begins the first day at his new job as a cashier at a local McDonald's restaurant. \nChris attempts to multitask and pour hot coffee while simultaneously handing out \nchange. He loses his grip on the coffee pot and spills steaming-hot coffee on his \ncustomer Geoff's hand. In this case, Geoff can sue McDonald's and Chris if he \nsustains injuries. McDonald's is not technically at fault, but it may be liable for \nGeoff's injuries under a theory of respondeat superior. \nHarm Requirement \nThe goal of civil litigation is to compensate the plaintiff for injuries, so the plaintiff \nmust be a bona fide victim that can prove harm. If there is no evidence of harm, the \nplaintiff has no basis for the civil litigation matter. An example would be when a \ndefendant rear-ends a plaintiff in an automobile accident without causing damage to the vehicle (property damage) or physical injury. Even if the defendant is at fault for \nthe automobile accident, the plaintiff cannot sue because the plaintiff does not need \ncompensation for any injuries or losses. \nDamages \nOften the plaintiff sues the defendant for money rather than a different, \nperformance-oriented remedy. In a civil litigation matter, any money the court \nawards to the plaintiff is called damages. Several kinds of damages may be \nappropriate. The plaintiff can sue for compensatory damages, which compensate for \ninjuries, costs, which repay the lawsuit expenses, and in some cases, punitive \ndamages. Punitive damages, also referred to as exemplary damages, are not \ndesigned to compensate the plaintiff but instead focus on punishing the defendant \nfor causing the injury.BMW of North America, Inc. v. Gore, 517 U.S. 559 \n(1996), accessed February 13, 2010, \nhttp://www.law.cornell.edu/supct/html/94896.ZO.html. \nCharacteristics of a Criminal Prosecution \nA criminal prosecution takes place after a defendant violates a federal or state \ncriminal statute, or in some jurisdictions, after a defendant commits a common-law \ncrime. Statutes and common-law crimes are discussed in Section 1.6 \"Sources of \nLaw\". \nParties in a Criminal Prosecution \nThe government institutes the criminal prosecution, rather than an individual \nplaintiff. If the defendant commits a federal crime, the United States of America \npursues the criminal prosecution. If the defendant commits a state crime, the state \ngovernment, often called the People of the State pursues the criminal prosecution. \nAs in a civil lawsuit, the alleged wrongdoer is called the defendant and can be an \nindividual, corporation, or other business entity. The attorney who represents the government controls the criminal prosecution. In a \nfederal criminal prosecution, this is the United States Attorney.United States \nDepartment of Justice, \"United States Attorneys,\" accessed February 15, \n2010, http://www.justice.gov/usao. In a state criminal prosecution, this is generally \na state prosecutor or a district attorney.\"United States' Prosecuting Attorneys,\" \nGalaxy.com website, accessed February 15, \n2010, http://www.galaxy.com/dir968533/United_States.htm. A state prosecutor \nworks for the state but is typically an elected official who represents the county \nwhere the defendant allegedly committed the crime. \nApplicability of the Constitution in a Criminal Prosecution \nThe defendant in a criminal prosecution can be represented by a private attorney or a \nfree attorney paid for by the state or federal government if he or she is unable to \nafford attorney's fees and facing incarceration.Alabama v. Shelton, 535 U.S. 654 \n(2002), accessed August 16, 2010, \nhttp://www.law.cornell.edu/supct/html/001214.ZO.html. Attorneys provided by the \ngovernment are called public defenders.18 \nU.S.C. \u00a7 3006A, accessed February 15, \n2010, http://www.law.cornell.edu/uscode/18/3006A.html. This is a significant \ndifference from a civil litigation matter, where both the plaintiff and the defendant \nmust hire and pay for their own private attorneys. The court appoints a free attorney \nto represent the defendant in a criminal prosecution because the Constitution is in \neffect in any criminal proceeding. The Constitution provides for the assistance of \ncounsel in the Sixth Amendment, so every criminal defendant facing incarceration \nhas the right to legal representation, regardless of wealth. \nThe presence of the Constitution at every phase of a criminal prosecution changes \nthe proceedings significantly from the civil lawsuit. The criminal defendant receives \nmany constitutional protections, including the right to remain silent, the right to due \nprocess of law, the freedom from double jeopardy, and the right to a jury trial, among \nothers. Goal of a Criminal Prosecution \nAnother substantial difference between civil litigation and criminal prosecution is the \ngoal. Recall that the goal of civil litigation is to compensate the plaintiff for injuries. \nIn contrast, the goal of a criminal prosecution is to punish the defendant. \nOne consequence of the goal of punishment in a criminal prosecution is that fault is \nalmost always an element in any criminal proceeding. This is unlike civil litigation, \nwhere the ability to pay is a priority consideration. Clearly, it is unfair to punish a \ndefendant who did nothing wrong. This makes criminal law justice oriented and very \nsatisfying for most students. \nInjury and a victim are not necessary components of a criminal prosecution because \npunishment is the objective, and there is no plaintiff. Thus behavior can be criminal \neven if it is essentially harmless. Society does not condone or pardon conduct simply \nbecause it fails to produce a tangible loss. \nExamples of Victimless and Harmless Crimes \nSteven is angry because his friend Bob broke his skateboard. Steven gets his gun, \nwhich has a silencer on it, and puts it in the glove compartment of his car. He then \nbegins driving to Bob's house. While Steven is driving, he exceeds the speed limit on \nthree different occasions. Steven arrives at Bob's house and then he hides in the \nbushes by the mailbox and waits. After an hour, Bob opens the front door and walks \nto the mailbox. Bob gets his mail, turns around, and begins walking back to the \nhouse. Steven shoots at Bob three different times but misses, and the bullets end up \nlanding 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 \nspecial permit to carry a concealed weapon, putting the gun in his glove \ncompartment is probably a crime in most states. (2) If Steven does not have a special \npermit to own a silencer for his gun, this is probably a crime in most states. (3) If \nSteven does not put the gun in a locked container when he transports it, this is probably a crime in most states. (4) Steven committed a crime each time he exceeded \nthe speed limit. (5) Each time Steven shot at Bob and missed, he probably committed \nthe crime of attempted murder or assault with a deadly weapon in most states. \nNotice that none of the crimes Steven committed caused any discernible harm. \nHowever, common sense dictates that Steven should be punished so he does not \ncommit a criminal act in the future that may result in harm. \nTable 1.1 Comparison of Criminal Prosecution and Civil Litigation \nFeature Criminal Prosecution Civil Litigation \nVictim No Yes. This is the plaintiff. \nHarm No Yes. This is the basis for \ndamages. \nInitiator of lawsuit Federal or state government Plaintiff \nAttorney for the initiator US Attorney or state prosecutor Private attorney \nAttorney for the \ndefendant \nPrivate attorney or public \ndefender \nPrivate attorney \nConstitutional protections Yes No \nFigure 1.2 Crack the Code LAW AND ETHICS: THE O. J. SIMPSON CASE \nTwo Different Trials\u2014Two Different Results \nO. J. Simpson was prosecuted criminally and sued civilly for the murder and wrongful \ndeath of victims Ron Goldman and his ex-wife, Nicole Brown Simpson. In the criminal \nprosecution, which came first, the US Constitution provided O. J. Simpson with the \nright to a fair trial (due process) and the right to remain silent (privilege against \nselfincrimination). Thus the burden of proof was beyond a reasonable doubt, and O. \nJ. Simpson did not have to testify. O. J. Simpson was acquitted, or found not guilty, in \nthe criminal trial.Doug Linder, \"The Trial of Orenthal James Simpson,\" UMKC website, \naccessed August 18, \n2010, http://www.law.umkc.edu/faculty/projects/ftrials/Simpson/Simpsonaccount.h \ntm. \nIn the subsequent civil lawsuit, the burden of proof was preponderance of evidence, \nwhich is 51\u201349 percent, and O. J. Simpson was forced to testify. O. J. Simpson was \nfound liable in the civil lawsuit. The jury awarded $8.5 million in compensatory \ndamages to Fred Goldman (Ron Goldman's father) and his ex-wife Sharon Rufo. A few \ndays later, the jury awarded punitive damages of $25 million to be shared between \nNicole Brown Simpson's children and Fred Goldman.Thomas L. Jones, \n\"Justice for the Dead,\" TruTV website, accessed August 18, \n2010, http://www.trutv.com/library/crime/notorious_murders/famous/simpson/dea \nd_16.html. \n1. Do you think it is ethical to give criminal defendants more legal protection than civil \ndefendants? Why or why not? \n2. Why do you think the criminal trial of O. J. Simpson took place before the civil trial? Check \nyour answers to both questions using the answer key at the end of the chapter. \nJohnny Cochran Video \nJohnny Cochran: If the Gloves Don't Fit\u2026 This video presents defense attorney Johnny Cochran's closing argument in the O. J. \nSimpson criminal prosecution: \n(click to see video) \nKEY TAKEAWAYS \n\u2022 Civil law regulates the private rights of individuals. Criminal law regulates individuals' \n conduct to protect the public. \n\u2022 Civil litigation is a legal action between individuals to resolve a civil dispute. Criminal \nprosecution is when the government prosecutes a defendant to punish illegal conduct. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the end \nof the chapter. \n1. Jerry, a law enforcement officer, pulls Juanita over for speeding. When Jerry begins writing \nJuanita's traffic ticket, she starts to berate him and accuse him of racial profiling. Jerry \nsurreptitiously reaches into his pocket and activates a tape recorder. Juanita later calls the \nhighway patrol where Jerry works and files a false complaint against Jerry. Jerry sues Juanita \nfor $500 in small claims court for filing the false report. He uses the tape recording as \nevidence. Is this a civil litigation matter or a criminal prosecution? \n2. Read Johnson v. Pearce, 148 N.C.App. 199 (2001). In this case, the plaintiff sued the defendant \nfor criminal conversation. Is this a civil litigation matter or a criminal prosecution? \n1.4 Classification of Crimes \nLEARNING OBJECTIVES \n1. Ascertain the basis for grading. \n2. Compare malum in se and malum prohibitum crimes. \n3. Compare the punishment options for felonies, misdemeanors, felony-misdemeanors, and \ninfractions. \n4. Compare jail and prison. \nCrimes can be classified in many ways. Crimes also can be grouped by subject matter. For \nexample, a crime like assault, battery, or rape tends to injure another person's body, so it can be \nclassified as a \"crime against the person.\" If a crime tends to injure a person by depriving him or her of property or by damaging property, it can be classified as a \"crime against property.\" These \nclassifications are basically for convenience and are not imperative to the study of criminal law. \nMore important and substantive is the classification of crimes according to the severity of \npunishment. This is called grading. Crimes are generally graded into four categories: felonies, \nmisdemeanors, felony-misdemeanors, and infractions. Often the criminal intent element \naffects a crime's grading. Malum in se crimes, murder, for example, are evil in their nature \nand are generally graded higher than malum prohibitum crimes, which are regulatory, like a \nfailure to pay income taxes. \nFelonies \nFelonies are the most serious crimes. They are either supported by a heinous \nintent, like the intent to kill, or accompanied by an extremely serious result, such as \nloss of life, grievous injury, or destruction of property. Felonies are serious, so they \nare 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 \nalternative sentencing such as probation, rehabilitation, and home confinement. \nPotential consequences of a felony conviction also include the inability to vote, own a \nweapon, or even participate in certain careers. \nMisdemeanors \nMisdemeanors are less serious than felonies, either because the intent \nrequirement is of a lower level or because the result is less extreme. Misdemeanors \nare usually punishable by jail time of one year or less per misdemeanor, a fine, or \nalternative sentencing like probation, rehabilitation, or community service. Note that \nincarceration for a misdemeanor is in jail rather than prison. The difference between \njail 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 \nconfinement also differs between jail and prison. Jails are for defendants who have \ncommitted less serious offenses, so they are generally less restrictive than prisons. Felony-Misdemeanors \nFelony-misdemeanors are crimes that the government can prosecute and punish \nas either a felony or a misdemeanor, depending on the particular circumstances \naccompanying the offense. The discretion whether to prosecute the crime as a felony \nor misdemeanor usually belongs to the judge, but in some instances the prosecutor \ncan make the decision. \nInfractions \nInfractions, which can also be called violations, are the least serious crimes and \ninclude minor offenses such as jaywalking and motor vehicle offenses that result in \na simple traffic ticket. Infractions are generally punishable by a fine or alternative \nsentencing such as traffic school. Figure 1.3 Diagram of Grading KEY TAKEAWAYS \n\u2022 Grading is based on the severity of punishment. \n\u2022 Malum in se crimes are evil in their nature, like murder. Malum prohibitum crimes are \nregulatory, like a failure to pay income taxes. \n\u2022 Felonies are graded the highest. Punishment options for felonies include the \n following: \no Execution \no Prison time \no Fines \no Alternative sentencing such as probation, rehabilitation, and home confinement \n\u2022 Misdemeanors are graded lower than felonies. Punishment options for \nmisdemeanors include the following: \no Jail time of one year or less per misdemeanor \no Fines \no Alternative sentencing such as probation, rehabilitation, and community service \n\u2022 Felony-misdemeanors are punished as either a felony or a misdemeanor. \n\u2022 Infractions, also called violations, are graded lower than misdemeanors and \n have less severe punishment options: \no Fines \no Alternative sentencing, such as traffic school \n\u2022 One difference between jail and prison is that cities and counties operate jails, and the state \nor federal government operates prisons, depending on the crime. The restrictive nature of \nthe confinement is another difference. Jails are for defendants who have committed less \nserious offenses, so they are generally less restrictive than prisons. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the end \nof the chapter. \n1. Harrison kills Calista and is prosecuted and sentenced to one year in jail. Did Harrison commit a felony or a misdemeanor? \n2. Read State v. Gillison, 766 N.W. 2d 649 (2009). In Gillison, why did the Iowa Court of Appeals \nrule that the defendant's prior convictions were felony convictions? What impact did this \nruling have on the defendant's sentence? \n1.5 The Purposes of Punishment \nLEARNING OBJECTIVE \n1. Ascertain the effects of specific and general deterrence, incapacitation, rehabilitation, \nretribution, and restitution. \nPunishment has five recognized purposes: deterrence, incapacitation, \nrehabilitation, retribution, and restitution. \nSpecific and General Deterrence \nDeterrence prevents future crime by frightening the defendant or the public. The two \ntypes of deterrence are specific and general deterrence. Specific deterrence applies to \nan individual defendant. When the government punishes an individual defendant, \nhe 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 \nlarge. When the public learns of an individual defendant's punishment, the public is \ntheoretically less likely to commit a crime because of fear of the punishment the \ndefendant experienced. When the public learns, for example, that an individual \ndefendant was severely punished by a sentence of life in prison or the death penalty, \nthis knowledge can inspire a deep fear of criminal prosecution. Incapacitation \nIncapacitation prevents future crime by removing the defendant from society. \nExamples of incapacitation are incarceration, house arrest, or execution pursuant to \nthe death penalty. Rehabilitation \nRehabilitation prevents future crime by altering a defendant's behavior. Examples of \nrehabilitation include educational and vocational programs, treatment center \nplacement, and counseling. The court can combine rehabilitation with incarceration \nor with probation or parole. In some states, for example, nonviolent drug offenders \nmust participate in rehabilitation in combination with probation, rather than \nsubmitting to incarceration.Ariz. Rev. Stat. \u00a713-901.01, accessed February 15, 2010, \nhttp://law.justia.com/arizona/codes/title13/00901-01.html. This lightens the load \nof jails and prisons while lowering recidivism, which means reoffending. \nRetribution \nRetribution prevents future crime by removing the desire for personal avengement \n(in the form of assault, battery, and criminal homicide, for example) against the \ndefendant. When victims or society discover that the defendant has been adequately \npunished for a crime, they achieve a certain satisfaction that our criminal procedure \nis working effectively, which enhances faith in law enforcement and our government. \nRestitution \nRestitution prevents future crime by punishing the defendant financially. Restitution \nis when the court orders the criminal defendant to pay the victim for any harm and \nresembles a civil litigation damages award. Restitution can be for physical injuries, \nloss of property or money, and rarely, emotional distress. It can also be a fine that \ncovers some of the costs of the criminal prosecution and punishment. \nFigure 1.4 Different Punishments and Their Purpose KEY TAKEAWAYS \n\u2022 Specific deterrence prevents crime by frightening an individual defendant with punishment. \nGeneral deterrence prevents crime by frightening the public with the punishment of an \n individual defendant. \n\u2022 Incapacitation prevents crime by removing a defendant from society. \n\u2022 Rehabilitation prevents crime by altering a defendant's behavior. \n\u2022 Retribution prevents crime by giving victims or society a feeling of avengement. \n\u2022 Restitution prevents crime by punishing the defendant financially. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the end \nof the chapter. \n1. What is one difference between criminal victims' restitution and civil damages? \n2. Read Campbell v. State, 5 S.W.3d 693 (1999). Why did the defendant in this case claim that the \nrestitution award was too high? Did the Texas Court of Criminal Appeals agree with the \ndefendant's claim? \n1.6 Sources of Law \nLEARNING OBJECTIVES \n1. Identify the three sources of law. \n2. Rank the three sources of law, from highest to lowest. \n3. Ascertain the purpose of the US and state constitutions. \n4. Ascertain one purpose of statutory law. \n5. Ascertain the purpose of case law. \n6. Define judicial review. \n7. Diagram and explain the components of a case brief. \nLaw comes from three places, which are referred to as the sources of law. Constitutional Law \nThe first source of law is constitutional law. Two constitutions are applicable in \nevery state: the federal or US Constitution, which is in force throughout the United \nStates of America, and the state's constitution. The US Constitution created our legal \nsystem, as is discussed in Chapter 2 \"The Legal System in the United States\". States' \nconstitutions typically focus on issues of local concern. \nThe purpose of federal and state constitutions is to regulate government action. \nPrivate individuals are protected by the Constitution, but they do not have to follow \nit themselves. \nExample of Government and Private Action \nCora stands on a public sidewalk and criticizes President Obama's health-care plan. \nAlthough other individuals may be annoyed by Cora's words, the \ngovernment cannot arrest or criminally prosecute Cora for her speech because the \nFirst Amendment of the US Constitution guarantees each individual the right to \nspeak freely. On the other hand, if Cora walks into a Macy's department store and \ncriticizes the owner of Macy's, Macy's could eject Cora immediately. Macy's and its \npersonnel are private, not government, and they do not have to abide by the \nConstitution. \nExceptions to the Constitution \nThe federal and state constitutions are both written with words that can be subject to \nmore than one interpretation. Thus there are many exceptions to any constitution's \nprotections. Constitutional protections and exceptions are discussed in detail in \nChapter 3 \"Constitutional Protections\". \nFor safety and security reasons, we see more exceptions to constitutional protections \nin public schools and prisons. For example, public schools and prisons can mandate \na certain style of dress for the purpose of ensuring safety. Technically, forcing an individual to dress a specific way could violate the right to self-expression, which the \nFirst Amendment guarantees. However, if wearing a uniform can lower gang-related \nconflicts in school and prevent prisoners from successfully escaping, the government \ncan constitutionally suppress free speech in these locations. \nSuperiority of the Constitution \nOf the three sources of law, constitutional law is considered the highest and should \nnot be supplanted by either of the other two sources of law. Pursuant to principles of \nfederal supremacy, the federal or US Constitution is the most preeminent source of \nlaw, and state constitutions cannot supersede it. Federal constitutional protections \nand federal supremacy are discussed in Chapter 2 \"The Legal System in the United \nStates\" and Chapter 3 \"Constitutional Protections\". \nStatutory Law \nThe second source of law is statutory law. While the Constitution applies to \ngovernment action, statutes apply to and regulate individual or private action. \nA statute is a written (and published) law that can be enacted in one of two ways. \nMost statutes are written and voted into law by the legislative branch of government. \nThis is simply a group of individuals elected for this purpose. The US legislative \nbranch is called Congress, and Congress votes federal statutes into law. Every state \nhas a legislative branch as well, called a state legislature, and a state legislature votes \nstate 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 \nmost state statutes, citizens voting on a ballot can enact some very important \nstatutes. For example, a majority of California's citizens voted to enact California's \nmedicinal marijuana law.California Compassionate Use Act of 1996, Cal. Health and \nSafety Code \u00a7 11362.5, accessed February 15, \n2010, http://www.cdph.ca.gov/programs/mmp/Pages/Medical%20Marijuana%20P \nrogram.aspx. California's three-strikes law was voted into law by both the state \nlegislature and California's citizens and actually appears in the California Penal Code in two separate places.Brian Brown and Greg Jolivette, \"A Primer: Three Strikes\u2014 \nThe Impact after More Than a Decade,\" Legislative Analyst's Office website, accessed \nFebruary 15, 2010, http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm. \nStatutory Law's Inferiority \nStatutory law is inferior to constitutional law, which means that a statute \ncannot conflict with or attempt to supersede constitutional rights. If a conflict exists \nbetween constitutional and statutory law, the courts must resolve the conflict. Courts \ncan invalidate unconstitutional statutes pursuant to their power of judicial review, \nwhich is discussed in an upcoming section. \nAdministrative Laws and Ordinances \nOther written and published laws that apply to individuals are administrative laws \nand ordinances. Administrative laws and ordinances should not supersede or \nconflict with statutory law. \nAdministrative laws are enacted by administrative agencies, which are governmental \nagencies designed to regulate in specific areas. Administrative agencies can be \nfederal or state and contain not only a legislative branch but also an executive \n(enforcement) branch and judicial (court) branch. The Food and Drug \nAdministration (FDA) is an example of a federal administrative agency. The FDA \nregulates any food products or drugs produced and marketed in the United States. \nOrdinances are similar to statutes, except that cities and counties vote them into law, \nrather than a state's legislature or a state's citizens. Ordinances usually relate to \nhealth, safety, or welfare, and violations of them are typically classified as \ninfractions or misdemeanors, rather than felonies. A written law prohibiting \njaywalking within a city's or county's limits is an example of an ordinance. Model Penal Code \nState criminal laws differ significantly, so in the early 1960s a group of legal scholars, \nlawyers, and judges who were members of the American Law Institute drafted a set \nof suggested criminal statutes called the Model Penal Code. The intent of the Model \nPenal Code was to provide a standardized set of criminal statutes that all states could \nadopt, thus simplifying the diversity effect of the United States' legal system. While \nthe Model Penal Code has not been universally adopted, a majority of the states have \nincorporated portions of it into their penal codes, and the Model Penal Code survives \nas a guideline and focal point for discussion when state legislatures modify their \ncriminal statutes. \nCase Law \nThe third source of law is case law. When judges rule on the facts of a particular \ncase, they create case law. Federal case law comes from federal courts, and state case \nlaw comes from state courts. Case law has its origins in English common law. \nEnglish Common Law \nIn Old England, before the settlement of the United States, case law was the most \nprevalent source of law. This was in contrast to countries that followed the Roman \nLaw system, which primarily relied on written codes of conduct enacted by \nlegislature. Case law in England was mired in tradition and local customs. Societal \nprinciples of law and equity were the guidelines when courts issued their rulings. In \nan effort to be consistent, English judges made it a policy to follow previous judicial \ndecisions, thereby creating a uniform system of laws throughout the country for the \nfirst time. Case law was named common law because it was common to the entire \nnation.Lloyd Duhaime, \"Common Law Definition,\" Duhaime.org website, accessed \nSeptember 26, \n2010, http://www.duhaime.org/LegalDictionary/C/CommonLaw.aspx. The English system of jurisprudence made its way to the United States with the \noriginal colonists. Initially, the thirteen colonies unanimously adopted common law \nas the law of the land. All crimes were common-law crimes, and cases determined \ncriminal elements, defenses, and punishment schemes. Gradually, after the \nRevolutionary War, hostility toward England and modern reform led to the erosion \nof common-law crimes and a movement toward codification. States began replacing \ncommon-law crimes with statutes enacted by state legislatures. Oxford professor Sir \nWilliam Blackstone's Commentaries on the Law of England, which interpreted and \nsummarized English common law, became an essential reference as the nation began \nthe process of converting common-law principles into written statutes, ordinances, \nand penal codes.Lloyd Duhaime, \"Common Law Definition,\" Duhaime.org website, \naccessed September 26, \n2010, http://www.duhaime.org/LegalDictionary/C/CommonLaw.aspx. \nLimitations on Common-Law Crimes \nIn modern society, in many states and the federal government,United States v. \nHudson & Goodwin, 11 U.S. 32 (1812), accessed September 24, 2010, \nhttp://openjurist.org/11/us/32/the-united-states-v-hudson-andgoodwin. judges \ncannot create crimes. This violates notions of fairness. Making up a new crime and \npunishing the defendant for it does not provide consistency or predictability to our \nlegal system. It also violates the principle of legality, a core concept of American \ncriminal justice embodied in this phrase: \"Nullum crimen sine lege, nulla poena \nsine crimen\" (No crime without law, no punishment without crime). \nIn states that do not allow common-law crimes, statutes must define criminal \nconduct. If no statute exists to criminalize the defendant's behavior, the defendant \ncannot be criminally prosecuted, even if the behavior is abhorrent. As the Model \nPenal Code states, \"[n]o conduct constitutes an offense unless it is a crime or \nviolation under this Code or another statute of this State\" (Model Penal Code \u00a7 \n1.05(1)). The common law still plays an important role in criminal lawmaking, even though \nmost crimes are now embodied in statutes. Classification of crimes as felonies and \nmisdemeanors is a reflection of English common law. Legislatures often create \nstatutes out of former common-law crimes. Judges look to the common law when \ndefining statutory terms, establishing criminal procedure, and creating defenses to \ncrimes. The United States is considered a common-law country. Every state except \nLouisiana, which is based on the French Civil Code, adopts the common law as the \nlaw of the state except where a statute provides otherwise.Legal Definition, \n\"Common Law,\" Lectlaw.com website, accessed September 26, 2010, \nhttp://www.lectlaw.com/def/c070.htm. \nExample of a Court's Refusal to Create a Common-Law Crime \nRead Keeler v. Superior Court, 470 P.2d 617 (1970). In Keeler, the defendant \nattacked his pregnant ex-wife, and her baby was thereafter stillborn. The California \nSupreme Court disallowed a murder charge against Keeler under California Penal \nCode \u00a7 187 because the statute criminalized only the malicious killing of a \"human \nbeing.\" The court reached its decision after examining the common-law definition of \nhuman being and determining that the definition did not include a fetus. The court \nreasoned that it could not create a new crime without violating the due process \nclause, separation of powers, and California Penal Code \u00a7 6, which prohibits the \ncreation of common-law crimes. After the Keeler decision, the California Legislature \nchanged Penal Code \u00a7 187 to include a fetus, excepting abortion.Cal. Penal Code \n\u00a7 187, accessed August 23, \n2010, http://codes.lp.findlaw.com/cacode/PEN/3/1/8/1/s187. \nPowerful Nature of Case Law \nGenerally, if there is a statute on an issue, the statute is superior to case law, just as \nthe Constitution is superior to statutory law. However, \njudges 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 can also interpret a statute in a way that makes it \nunconstitutional and unenforceable. This is called the power of judicial \nreview.Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), accessed February 15, \n2010, http://www.law.cornell.edu/supct/html/historics/USSC_CR_0005_0137_ZS. \nhtml. \nExample of Judicial Review \nAn example of judicial review is set forth in Texas v. Johnson, 491 U.S. 397 (1989). In \nJohnson, the US Supreme Court ruled that burning a flag is protected selfexpression \nunder the First Amendment to the US Constitution. Thus the Court reversed the \ndefendant's conviction under a Texas statute that criminalized the desecration of a \nvenerated object. Note how Johnson not only invalidates a state statute as being \ninferior to the US Constitution but also changes the US Constitution by adding flag \nburning to the First Amendment's protection of speech. \nFigure 1.5 Diagram and Hierarchy of the Sources of Law Stare Decisis and Precedent \nCases are diverse, and case law is not really law until the judge rules on the case, so \nthere must be a way to ensure case law's predictability. It would not be fair to \npunish someone for conduct that is not yet illegal. Thus judges adhere to a policy \ncalled 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 \njudges have issued a ruling on a particular case, the public can be assured that the \nresulting precedent will continue to be followed by other judges. Stare decisis is not \nabsolute; judges can deviate from it to update the law to conform to society's \nmodern expectations. \nRules of Stare Decisis and Use of Precedent \nCase precedent is generally an appeal rather than a trial. There is often more than \none level of appeal, so some appeals come from higher courts than others. This book \ndiscusses the court system, including the appellate courts, in Chapter 2 \"The Legal \nSystem in the United States\". \nMany complex rules govern the use of precedent. Lawyers primarily use precedent \nin their arguments, rather than statutes or the Constitution, because it is so \nspecific. With proper research, lawyers can usually find precedent that matches or \ncomes very close to matching the facts of any particular case. In the most general \nsense, judges tend to follow precedent that is newer, from a high court, and from \nthe same court system, either federal or state. \nExample of Stare Decisis and Use of Precedent \nGeoffrey is a defense attorney for Conrad, who is on trial for first-degree murder. \nThe murder prosecution is taking place in New Mexico. Geoffrey finds case \nprecedent from a New York Court of Appeals, dated 1999, indicating that Conrad \nshould have been prosecuted for voluntary manslaughter, not first-degree murder. Brandon, the prosecuting attorney, finds case precedent from the New Mexico \nSupreme Court, dated 2008, indicating that a first-degree murder prosecution is \nappropriate. 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 \nas the trial. \nCase Citation \nCases must be published to become case law. A published case is also called a \njudicial opinion. This book exposes you to many judicial opinions that you have the \noption of reading on the Internet. It is essential to understand the meaning of the \ncase citation. The case citation is the series of numbers and letters after the title of \nthe case and it denotes the case's published location. For example, let's analyze the \ncase citation for Keeler v. Superior Court, 470 P.2d 617 (1970). \nFigure 1.6 Keeler Case Citation As you can see from the diagram, the number 470 is the volume number of the \nbook that published the Keeler case. The name of that book is \"P.2d\" (this is an \nabbreviation for Pacific Reports, 2d Series). The number 617 is the page number of \nthe Keeler case. The date (1970) is the date the California Supreme Court ruled on \nthe case. \nCase Briefing \nIt is useful to condense judicial opinions into case brief format. The Keeler case \nbrief is shown in Figure 1.7 \"Keeler Case Brief\". \nFigure 1.7 Keeler Case Brief Read this case at the following link: \nhttp://scholar.google.com/scholar_case?case=2140632244672927312&hl=en&as_sdt \n=2&as_vis=1&oi=scholarr. \nPublished judicial opinions are written by judges and can be lengthy. They can also \ncontain more than one case law, depending on the number of issues addressed. Case \nbriefs reduce a judicial opinion to its essentials and can be instrumental in \nunderstanding the most important aspects of the case. Standard case brief formats \ncan differ, but one format that attorneys and paralegals commonly use is explained \nin the following paragraph. \nReview the Keeler case brief. The case brief should begin with the title of the case, \nincluding the citation. The next component of the case brief should be the \nprocedural facts. The procedural facts should include two pieces of information: \nwho is appealing and which court the case is in. As you can see from the Keeler \ncase brief, Keeler brought an application for a writ of prohibition, and the court is \nthe California Supreme Court. Following the procedural facts are the substantive \nfacts, which should be a short description of the facts that instigated the court trial \nand appeal. The procedural and substantive facts are followed by the issue. The \nissue is the question the court is examining, which is usually the grounds for appeal. \nThe case brief should phrase the issue as a question. Cases usually have more than \none issue. The case brief can state all the issues or only the issue that is most \nimportant. The substantive holding comes after the issue, is actually the case \nlaw, and answers the issue question. If more than one issue is presented in the case \nbrief, a substantive holding should address each issue. \nFigure 1.8 Example of a Substantive Holding Marbury v. Madison, 5 U.S. (1 Cranch) 137 \n(1803), http://www.law.cornell.edu/supct/html/historics/USSC_CR_0005_0137_ZS.html \n. \nA procedural holding should follow the substantive holding. The procedural \nholding discusses what the court did procedurally with the case. This could include \nreversing the lower court's ruling, affirming the lower court's ruling, or adjusting a \nsentence issued by the lower court. This book discusses court procedure in detail in \nChapter 2 \"The Legal System in the United States\". Last, but still vital to the case \nbrief, is the rationale. The rationale discusses the reasoning of the judges when \nruling on the case. Rationales can set policy, which is not technically case law but can \nstill be used as precedent in certain instances. \nOne judge writes the judicial opinion. Judges vote how to rule, and not all cases are \nsupported by a unanimous ruling. Occasionally, other judges will want to add to the \njudicial opinion. If a judge agrees with the judicial opinion, the judge could write a \nconcurring opinion, which explains why the judge agrees. If a judge disagrees \nwith the judicial opinion, the judge could write a dissenting opinion explaining \nwhy the judge disagrees. The dissenting opinion will not change the judicial opinion, \nbut it may also be used as precedent in a future case if there are grounds for changing \nthe law. \nKEY TAKEAWAYS \n\u2022 The three sources of law are constitutional, statutory, and case law. \n\u2022 \nThe sources of law are ranked as follows: first, constitutional; second, statutory; and third, \ncase law. Although it is technically ranked the lowest, judicial review makes case law an \nextremely powerful source of law. \n\u2022 The purpose of the US and state constitutions is to regulate government action. \n\u2022 One purpose of statutory law is to regulate individual or private action. \n\u2022 The purpose of case law is to supplement the law when there is no statute on point and also \nto interpret statutes and the constitution(s). \n\u2022 The court's power to invalidate statutes as unconstitutional is called judicial review. \u2022 The components of a case brief are the following: \no The title, plus citation. The citation indicates where to find the case. \no The procedural facts of the case. The procedural facts discuss who is appealing and in \nwhich court the case is located. \no The substantive facts. The substantive facts discuss what happened to instigate the \ncase. \no The issue. The issue is the question the court is examining. \no The substantive holding. The substantive holding answers the issue question and is \nthe case law. \no The procedural holding. The procedural holding discusses what the court did \nprocedurally with the case. \no The rationale. The rationale is the reason the court held the way it did. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the end \nof the chapter. \n1. Hal invents a new drug that creates a state of euphoria when ingested. Can Hal be criminally \nprosecuted for ingesting his new drug? \n2. Read Shaw v. Murphy, 532 U.S. 223 (2001). Did the US Supreme Court allow prison inmates \nthe First Amendment right to give other inmates legal advice? Why or why not? The case is \navailable at this \nlink: http://scholar.google.com/scholar_case?case=9536800826824133166&hl=en&as_sdt=2 \n&as_vis=1&oi=scholarr. \n3. Read Justice Scalia's dissenting opinion in Lawrence v. Texas, 539 U.S. 558 (2003). What is \nthe primary reason Justice Scalia dissented to the US Supreme Court's opinion in Lawrence? \n1.7 End-of-Chapter Material \nSummary \nA crime is action or inaction in violation of a criminal law. Criminal laws vary from \nstate to state and from state to federal. The study of criminal law defines crimes and defenses to crimes. The study of \ncriminal procedure focuses on the enforcement of rights by individuals while \nsubmitting to government investigation, arrest, interrogation, trial, and appeal. \nA civil lawsuit or civil litigation matter resolves a dispute between individuals, called \na plaintiff (the injured party) and defendant (the alleged wrongdoer). Every civil \nlitigation matter includes a victim (the plaintiff), which has suffered harm. The goal \nof the civil litigation matter is to compensate the plaintiff for injury. The court can \ncompensate the plaintiff by awarding money, which is called damages. Both parties \nin a civil litigation matter must represent themselves or hire private attorneys. \nA criminal prosecution takes place when the government, represented by a \nprosecutor, takes legal action against the defendant (the alleged wrongdoer) for \ncommitting a crime. Some criminal prosecutions do not include a victim, or harm, \nbecause the goal of the criminal prosecution is punishment, not compensation. Every \ncriminal prosecution involves the government, so the US and state constitutions \nprovide the criminal defendant with extra protections not present in a civil lawsuit, \nsuch as free counsel when the defendant is indigent and facing incarceration. \nCrimes can be classified according to the severity of punishment. The most serious \ncrimes with the entire range of sentencing options available are felonies. \nMisdemeanors are less serious than felonies and have less severe sentencing options. \nFelony-misdemeanors can be prosecuted and punished as a felony or a \nmisdemeanor, depending on the circumstances. Infractions, also called violations, \nare the least serious crimes and generally do not involve incarceration. The purposes \nof punishing a criminal defendant are both specific and general deterrence, \nincapacitation, rehabilitation, retribution, and restitution. \nLaw comes from three sources: the Constitution, a statute, or a case. The \nConstitution is the highest source of law but is only applicable when there is \ngovernment action. Statutory law applies to individuals but is inferior to \nconstitutional law. Case law is law made by judges when they rule on the facts of a \ncase. Although case law is technically inferior to statutory 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 \nreview. Case law stays consistent because judges follow previous court decisions, \ncalled precedent. This policy, called stare decisis, lends predictability to case law but \nis not absolute, and courts can deviate from it to update the law. \nYOU BE THE LAWYER \nRead the prompt, review the case, and then decide whether you would accept or \nreject the case if you were the lawyer. Check your answers using the answer key at \nthe end of the chapter. \n1. You are an expert in criminal law, not civil litigation. Would you accept or reject this case? \nRead Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004). The case is available at this \nlink: http://scholar.google.com/scholar_case?case=14748284771413043760&hl=en&as_sdt= \n2&as_vis=1&oi=scholarr. \n2. You are an expert in criminal law, not criminal procedure. Would you accept or reject this \ncase? Read People v. Wrotten, 2010 N.Y. Slip Op 04501 (2010). The case is available at this \nlink: http://law.justia.com/cases/new-york/appellate-division-first-department/2010/2010- \n04501.html \n3. You are an expert in constitutional law. Would you accept or reject this case? Read Wilson v. \nLayne, 526 U.S. 603 (1999). The case is available at this \nlink: http://www.law.cornell.edu/supct/html/98-83.ZS.html. \n4. Reread question 3. Change your expertise to constitutional law as it applies to criminal \nprosecutions. Would you accept or reject the Wilson case? \nCases of Interest \n\u2022 Padilla v. Gonzales, 397 F.3d 1016 (2005), discusses malum in se and malum \nprohibitum \ncrimes: http://scholar.google.com/scholar_case?case=5187582705718052419&q= \nmalum+in+se+ \nmalum+in+prohibitum&hl=en&as_sdt=2,5&as_ylo=2004&as_vis=1. \n\u2022 \nRogers v. Tennessee, 532 U.S. 451 (2001), discusses a state's ability to create a \ncommon-law crime: http://www.law.cornell.edu/supct/html/99-6218.ZS.html. \u2022 \nRoe v. Wade, 410 U.S. 113 (1973), is the case in which the US Supreme Court \ninvalidates a state statute criminalizing abortion: \nhttp://www.law.cornell.edu/supct/html/historics/USSC_CR_0410_0113_ ZO.html. \nArticles of Interest \n\u2022 Model Penal Code: http://legal- \n dictionary.thefreedictionary.com/Model+Penal+Code \n\u2022 Stare decisis: http://civilliberty.about.com/od/historyprofiles/g/stare_decisis.htm \nWebsites of Interest \n\u2022 Federal criminal statutes: http://www.law.cornell.edu/uscode/18 \n\u2022 State criminal statutes: http://www.legallawhelp.com/state_law.html \n\u2022 Government agencies in alphabetical order: \nhttp://www.usa.gov/Agencies/Federal/All_Agencies/index.shtml \n\u2022 Complete federal Constitution: http://topics.law.cornell.edu/constitution \n\u2022 State constitutions: http://www.findlaw.com/11stategov/indexconst.html \nStatistics of Interest \n\u2022 State prosecutors in the United \n States: http://bjs.ojp.usdoj.gov/index.cfm?ty=pbse&sid=9 \n\u2022 Felony convictions in the US state courts: \nhttp://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=2152 \n\u2022 Estimated crime statistics in the United \nStates: http://www.ucrdatatool.gov/Search/Crime/State/RunCrimeStatebyState.cfm \nAnswer to Exercise \nFrom Section 1.1 \"Introduction\" \n1. The US Supreme Court held that the attorney general cannot criminalize the use of \ndrugs under Oregon's Death With Dignity Act by enforcing the Controlled Substances \nAct. The Controlled Substances Act is targeted at preventing recreational drug use, \nand, therefore, the Court upheld Oregon's ability to legalize assisted suicide. \nAnswers to Exercises \nFrom Section 1.2 \"Criminal Law and Criminal Procedure\" 1. This is an issue of criminal law. Although Paul is a law enforcement officer, when he \nshoots Barney while he is facedown in handcuffs, he may be committing a crime. The \nquestion in this case is not whether the arrest was executed properly, but whether \na crime was committed after the arrest. \n2. Payton reviews a New York statute allowing law enforcement to arrest a defendant in \nthe home without a warrant. This case focuses on law enforcement arrest, so it \nexamines an issue of criminal procedure. \nAnswers to Exercises \nFrom Section 1.3 \"The Difference between Civil and Criminal Law\" \n1. This is a civil litigation matter. Although the incident involves Jerry, who is a law \nenforcement officer, and it takes place while Jerry is writing a traffic ticket, Jerry is \nsuing Juanita for damages. Thus this is civil litigation, not criminal prosecution. If \nJuanita is prosecuted for the crime of filing a false police report, then this would be a \ncriminal prosecution. \n2. The Johnson case reviews an award of damages and is thus a civil litigation matter. \nCriminal conversation is the tort of adultery in North Carolina. \nAnswers to Exercises \nFrom Section 1.4 \"Classification of Crimes\" \n1. This crime is probably a misdemeanor because Harrison was sentenced to one year \nin jail, rather than prison. Although the result, Calista's death, is very serious, the \nmethod of killing may have been accidental. Criminal homicide is discussed \nin Chapter 9 \"Criminal Homicide\". \n2. The Iowa Court of Appeals based its ruling on New Jersey law. Although New Jersey \nnamed the offenses \"high misdemeanors,\" New Jersey case law indicates that any \noffense with a sentence of one year or more incarceration is a common-law felony. \nThis triggered a sentencing enhancement increasing the defendant's sentence to an \nindeterminate sentence of incarceration not to exceed fifteen years. \nAnswers to Exercises \nFrom Section 1.5 \"The Purposes of Punishment\" 1. The court awards criminal restitution to the victim after a state or federal prosecutor \nis successful in a criminal trial. Thus the victim receives the restitution award without \npaying for a private attorney. A plaintiff that receives damages has to pay a private \nattorney to win the civil litigation matter. \n2. In Campbell, the defendant entered a plea agreement specifying that he had \ncommitted theft in an amount under $100,000. The trial court determined that the \ndefendant had actually stolen $100,000 and awarded restitution of $100,000 to \nvarious 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 \nCourt of Criminal Appeals disagreed and held that the discretion of how much \nrestitution to award belongs to the judge. As long as the judge properly ascertained \nthis amount based on the facts, restitution could exceed the amount specified in the \ncriminal statute the defendant was convicted of violating. \nAnswers to Exercises \nFrom Section 1.6 \"Sources of Law\" \n1. Hal can be prosecuted for ingesting his new drug only if he is in a state that allows for \ncommon-law crimes. The drug is new, so the state legislature will probably not have \ncriminalized it by enacting a statute. \n2. The US Supreme Court held that inmates do not have the First Amendment right to \ngive other inmates legal advice. The Court based its ruling on the prison's interest in \nensuring prison order, security, and inmate rehabilitation. The Court stated, \"We \nnonetheless have maintained that the constitutional rights that prisoners possess are \nmore limited in scope than the constitutional rights held by individuals in society at \nlarge.\"Shaw v. Murphy, 532 U.S. 223, 229 (2001), accessed October 4, \n2010, http://scholar.google.com/scholar_case?case=9536800826824133166&hl=en \n&as_sdt=2&as_vis=1&oi=scholarr. \n3. Justice Scalia criticized the US Supreme Court majority for not adhering to stare \ndecisis. According to Justice Scalia, the Court did not follow a recent (seventeen-\nyearold) precedent set in Bowers v. Hardwick. \nAnswers to Law and Ethics Questions \n1. The reason criminal defendants get special protections not extended to civil litigation defendants is the harshness of the punishment and the inequality of the criminal \nprosecution itself. Criminal defendants may lose their life or their liberty. Civil \nlitigation defendants risk only a loss of money. In addition, criminal defendants face \nthe intimidating prospect of fighting the government and all its vast resources. Civil \nlitigation defendants are squaring off against another individual. As a society, we \nbelieve that there is nothing as unjust as punishing an innocent person. Thus we give \ncriminal defendants special protections to level the playing field. \n2. The criminal trial took place first because O. J. Simpson was a criminal defendant and \ntherefore had the benefit of the Sixth Amendment right to a speedy trial. \nConstitutional protections are discussed in Chapter 3 \"Constitutional Protections\". \nAnswers to You Be the Lawyer \n1. In this case, the plaintiffs are seeking an injunction. The plaintiffs are not \nthe government; they are a group of fish. They are not suing for the goal of \npunishment, but rather to compel the president of the United States and the secretary \nof defense to review the use of certain naval equipment. Thus this is a civil \nlitigation matter and you should reject the case. \n2. The Court is reviewing the Sixth Amendment right to confront accusers. In this case, \na witness who was too ill to travel was permitted to testify via live, two-way video \ninstead of testifying in the courtroom in front of the defendant. The New York \nSupreme Court held that under the circumstances, this testimony complied with the \nSixth Amendment. This case focuses on the defendant's constitutional rights during \nhis criminal trial, so this is a criminal procedure issue and you should reject the \ncase. \n3. The US Supreme Court held that it is unconstitutional under the Fourth Amendment \nwhen law enforcement brings media along while executing a search. Thus this is a \nfederal constitutional issue and you should accept the case. \n4. In Wilson, the Court decided that the plaintiff was not entitled to damages when \nsuing law enforcement under 42 U.S.C. \u00a7 1983. Thus although this case involves the \nFourth Amendment, it is essentially a civil litigation matter, and you should reject \nthe case. \nChapter 2The Legal System in the United States Source: Image courtesy of Tara Storm. \nThe requirement of proof beyond a reasonable doubt has this vital role in our \ncriminal procedure for cogent reasons. The accused, during a criminal prosecution, \nhas at stake interests of immense importance, both because of the possibility that he \nmay lose his liberty upon conviction and because of the certainty that he would be \nstigmatized by the conviction. \nIn re: Winship, cited in Section 2 \"Burden of Proof in a Criminal Prosecution\" \n2.1 Federalism \nLEARNING OBJECTIVES \n1. Define federalism. \n2. Ascertain the sections of the Constitution that give Congress regulatory authority. \n3. Ascertain the basis for Congress's authority to enact criminal laws. \n4. Compare federal regulatory authority with state regulatory authority. \n5. Compare federal criminal laws with state criminal laws. \n6. Define federal supremacy. \nThe United States' system of government is called federalism. Federalism, as set forth in the US \nConstitution, divides governmental power between the federal government and each of the \nstates. This prevents a concentrated source of governmental power in one individual or small \ngroup of individuals. Because of federalism, the United States has one federal legal system, and \neach state has its own state legal system. Thus in the United States, a plethora of legal systems all \noperate harmoniously at the same time. \nThe Scope of Federal Law \nThe government's power to regulate comes from the US Constitution. \nThe federal government derives its authority to create law from Article I, \u00a7 8, which \ndiscusses federal Congress's exclusive or delegated powers. These include the power to regulate currency and coin, establish a post office, promote science and art \nby regulating the rights to discoveries and writings, declare war and raise armies, \nconduct foreign affairs, regulate interstate and foreign commerce, and make laws \nnecessary and proper to execute other powers expressly granted in the Constitution. \nCourts have interpreted the last two powers mentioned in the commerce clause and \nthe necessary and proper clause to be the broadest sources of federal regulatory \nauthority. \nTo simplify and summarize precedent defining federal regulatory authority, federal \nlaws are meant to regulate in two areas. First, federal laws regulate issues that \nconcern the country, rather than just one city, county, or state. The federal \ngovernment regulates in the area of foreign affairs, for example, because this affects \nthe United States of America, not just one particular region. Second, federal laws \nregulate commerce, which is economic activity, that crosses from state to state. \nSome common examples are television broadcasts, the Internet, and any form of \ntransportation such as the airlines. \nFederal Criminal Laws \nThe original intent was for the federal government to be a limited government, with \nthe bulk of regulatory authority residing in the states. The only crimes Congress is \nspecifically authorized to punish are piracies and felonies on the high seas, \ncounterfeiting, and treason; however, case precedent has expanded the federal \ngovernment's power to enact criminal laws based on the commerce clause and the \nnecessary and proper clause.McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), \naccessed August 28, \n2010, http://www.law.cornell.edu/supct/html/historics/USSC_CR_0017_0316_ZS. \nhtml. Still, there must be some connection to an issue of national character and \ninterstate commerce, or the federal government will overstep its authority. In \ngeneral, federal criminal laws target conduct that occurs on federal property or \nconduct involving federal employees, currency, coin, treason, national security, rights secured by the Constitution, or commerce that crosses state lines. Currently, \nover five hundred crimes are listed in Part I, Title 18 of the United States Code, which \ncodifies criminal laws for the federal government. \nFigure 2.1 Diagram of Federal Laws The Scope of State Law \nThe US Constitution designates the states as the primary regulatory authority. This \nis clarified in the Tenth Amendment, which reads, \"The powers not delegated to the \nUnited States by the Constitution, nor prohibited to it by the States, are reserved to \nthe States respectively, or the people.\" State laws are also supposed to regulate in \ntwo areas. First, state laws regulate issues of a local character or concern. A state \nmay regulate, for example, its water ownership and use because water can be scarce \nand is not generally provided to other states. Second, state laws regulate issues or \nthings that remain within a state's border. A state generally regulates, for example, \nthe operation of a small business whose products are only sold locally and not \nshipped out of the state. \nFederal laws are the same in every state, but state laws differ from state to state. \nSomething that is legal in one state may be illegal in another state. This \ninconsistency makes our system of federalism complicated for students (and \nlawyers). However, with a country as large and varied as the United States, it is \nsensible to allow each state to choose for itself which laws will be most suitable. \nState Criminal Laws \nThe power to enact criminal laws belongs almost exclusively to the states. This is \nbecause of the Tenth Amendment, which vests in states a police power to provide for \nthe health, safety, and welfare of state citizens. Approximately 90 percent of all \ncriminal 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 \ngovernment without violating the principle of double jeopardy. \nExample of the Diversity of State Laws \nIn Nevada, prostitution is legal under certain circumstances.N.R.S. \u00a7 201.354, \naccessed September 24, 2010, http://www.leg.state.nv.us/nrs/NRS201.html#NRS201Sec354. An individual who \nengages in prostitution inside a licensed \"house of prostitution\" in Nevada is not \nexposed to criminal liability. However, if the same individual engages in \nprostitution in a different state, he or she may be subject to a criminal prosecution. \nProstitution will be discussed in detail in Chapter 12 \"Crimes against the Public\". \nFigure 2.2 Crack the Code Federal Supremacy \nOur legal system is divided up to conform to the principle of federalism, so a \npotential exists for conflict between federal law and state law. A federal law may \nmake something illegal; a state law may insist that it is legal. Whenever a conflict \noccurs between federal and state law, courts must follow the federal law. This is \ncalled federal supremacy. As the Supremacy Clause of Article VI of the federal \nConstitution states, \"This Constitution, and the Laws of the United States which \nshall be made in Pursuance thereof; and all Treaties made, or which shall be made, \nunder the Authority of the United States, shall be the supreme Law of the Land; and \nthe Judges in every State shall be bound thereby, any Thing in the Constitution or \nLaws of any State to the Contrary notwithstanding.\" \nExample of Federal Supremacy \nIn Washington and several other states, an individual may possess and use \nmarijuana for medicinal purposes with a prescription.Washington State Medicinal \nMarijuana Act, Chapter 69.51A RCW, accessed August 28, \n2010, http://apps.leg.wa.gov/RCW/default.aspx?cite=69.51a&full=true; see all \nstates that legalize medicinal marijuana: \"16 Legal Medical Marijuana States and \nDC,\" ProCon.org website, accessed August 28, \n2010, \nhttp://medicalmarijuana.procon.org/view.resource.php?resourceID=000881. \nFederal law prohibits possession and use of marijuana under any circumstances.21 \nU.S.C. Ch. 13 \u00a7 801 et. seq., accessed October 1, \n2010, http://www.deadiversion.usdoj.gov/21cfr/21usc/index.html. Technically, this \ncould be a conflict that violates federal supremacy. Until the courts address the \nfederal supremacy issue, however, medical marijuana statutes can continue to stay \nin effect. Read about a recent ruling regarding the constitutionality of Michigan's \nmedicinal marijuana law under the Supremacy \nClause: http://www.pressandguide.com/articles/2011/04/09/news/doc4d9f557b8a \nb37805648033.txt. Figure 2.3 Diagram of State Laws LAW AND ETHICS: THE ARIZONA IMMIGRATION LAW \nCan a State Regulate Immigration? \nArizona passed a comprehensive immigration law designed to seek out and deport \nillegal immigrants. This law created a national furor, and its detractors insisted it \nwould lead to unethical racial profiling. The federal government attacked the law in \nFederal District Court.Randal C. Archibold, \"Judge Blocks Arizona's Immigration Law,\" \nThe New York Times website, accessed October 1, \n2010, http://www.nytimes.com/2010/07/29/us/29arizona.html. Judge Susan Bolton \nissued a preliminary injunction that stopped enforcement of the sections of the law \nthat required state law enforcement to check an immigrant's status while enforcing \nother laws and that required immigrants to prove they were in the country legally or \nrisk state charges.Randal C. Archibold, \"Judge Blocks Arizona's Immigration Law,\" \nThe New York Times website, accessed October 1, \n2010, http://www.nytimes.com/2010/07/29/us/29arizona.html. Read the District \nCourt's preliminary injunction ruling, which is available at this \nlink: http://graphics8.nytimes.com/packages/pdf/national/20100729_ARIZONA_DOC \n.pdf. \n1. What is the basis for Judge Bolton's decision? Check your answer using the answer key at the \nend of the chapter. \nRead about the most recent ruling on Arizona's immigration law by the US Court of \nAppeals for the Ninth Circuit: http://latindispatch.com/2011/05/10/arizonas-jan- \nbrewer-to-appeal-immigration-law-to-u-s-supreme-court/. \nRead about Utah's immigration law: http://articles.cnn.com/2011-\n0511/politics/utah.immigration.bill_1_utah-law-gary-herbert-\nutahgov?_s=PM:POLITICS. \nRead about Alabama's immigration \nlaw: \nhttp://www.reuters.com/article/2011/06/10/tagblogsfindlawcom2011freeenterprise-\nidUS123058502120110610. U.S. v. State of Arizona Video \n10-16645 U.S. v. State of Arizona \nThis video is the Arizona governor's appeal of the district court preliminary \ninjunction: \n(click to see video) \nKEY TAKEAWAYS \n\u2022 Federalism is a system of government in which power is divided between one national, \nfederal government and several independent state governments. \n\u2022 Congress gets its regulatory authority from Article I \u00a7 8 of the federal \nConstitution. This includes several delegated powers, the commerce clause, \n and the necessary and proper clause. \no The commerce clause gives Congress the power to regulate commerce that crosses \nstate lines. \no The necessary and proper clause gives Congress the power to regulate if necessary to \ncarry out all other powers listed in the Constitution. \n\u2022 The Constitution specifically authorizes Congress to punish piracies and felonies on the high \nseas, counterfeiting, and treason. Case precedent has also expanded the federal \ngovernment's power to enact criminal laws based on the commerce clause and the necessary \n and proper clause. \n\u2022 The federal government is intended to be limited, with the bulk of regulatory authority \nresiding in the states. The federal government is restricted to regulating in the areas \ndesignated in Article I \u00a7 8 of the federal Constitution. The states can regulate for the health, \nsafety, and welfare of citizens pursuant to their police power, which is set forth in the Tenth \nAmendment of the federal Constitution. \n\u2022 \nFederal criminal laws criminalize conduct that occurs on federal property or involves federal \nemployees, currency, coin, treason, national security, rights secured by the Constitution, or \ncommerce that crosses state lines. State criminal laws make up 90 percent of all criminal \n \nlaws, are designed to protect state citizens' health, safety, and welfare, and often criminalize \nthe same conduct as federal criminal laws. \u2022 Federal supremacy, which is set forth in the Supremacy Clause of the federal Constitution, \nrequires courts to follow federal laws if there is a conflict between a federal and state law. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the end \nof the chapter. \n1. Congress passes a law criminalizing the posting of child pornography on the Internet. Where \ndoes Congress get the authority to pass this criminal law? If a state has a criminal law \ncriminalizing the same conduct, can both the state and federal government prosecute a \ndefendant for one act of downloading child pornography? \n2. Read U.S. v. Morrison, 529 U.S. 518 (2000). Which part(s) of the Constitution did the US \nSupreme Court rely on when it held that 42 U.S.C. \u00a7 13981 is unconstitutional? The case is \navailable at this link: http://www.law.cornell.edu/supct/html/99-5.ZS.html. \n3. Read Pennsylvania v. Nelson, 350 U.S. 497 (1956). Why did the US Supreme Court invalidate \nthe Pennsylvania Sedition Act? \n2.2 The Branches of Government \nLEARNING OBJECTIVES \n1. Identify the three branches of government. \n2. Ascertain the head of the federal and state legislative branches of government. \n3. Compare the Senate and the House of Representatives. \n4. Ascertain the head of the federal and state executive branches of government. \n5. Ascertain the head of the federal and state judicial branches of government. \nThe federal Constitution was written to ensure that government power is distributed and never \nconcentrated in one or more areas. This philosophy is served by federalism, where the federal \ngovernment shares power with the states. It is also further served by dividing the government \ninto three branches, all responsible for different government duties and all checking and \nbalancing each other. The three branches of government are detailed in Articles I\u2013III of the \nfederal Constitution and are the legislative branch, the executive branch, and the judicial branch. \nWhile the federal Constitution identifies only the federal branches of government, the principle of checks and balances applies to the states as well. Most states identify the three state branches \nof government in their state constitution. \nEach branch of government has a distinct authority. When one branch encroaches on the duties \nof another, this is called a violation of separation of powers. The courts decide whether a \ngovernment branch has overstepped its boundaries because courts interpret the Constitution, \nwhich describes each branch's sphere of influence. Thus the judicial branch, which consists of all \nthe courts, retains the balance of power. \nThe Legislative Branch \nThe legislative branch is responsible for creating statutory laws. Citizens of a state \ncan vote for some state statutes by ballot, but the federal legislative \nbranch enacts all federal statutes. In the federal government, the legislative branch \nis headed by Congress. States' legislative branches are headed by a state legislature. \nCongress is bicameral, which means it is made up of two houses. This system \nprovides equal representation among the several states and by citizens of the United \nStates. States are represented by the Senate. Every state, no matter how large or \nsmall, gets two senators. Citizens are represented by the House of Representatives. \nMembership in the House of Representatives is based on population. A heavily \npopulated state, like California, has more representatives than a sparsely populated \nstate, like Alaska. States' legislatures are generally bicameral and have a similar \nstructure to the federal system. \nFigure 2.4 Diagram of the Legislative Branch Examples of Legislative Branch Checks and Balances \nThe legislative branch can check and balance both the executive branch and the \njudicial branch. Congress can impeach the president of the United States, which is \nthe first step toward removal from office. Congress can also enact statutes that \nsupersede judicial opinions, as discussed in Chapter 1 \"Introduction to Criminal Law\". Similarly, state legislature can also impeach a governor or enact a state \nstatute that supersedes a state case law. \nThe Executive Branch \nThe executive branch is responsible for enforcing the statutes enacted by the \nlegislative branch. In the federal government, the executive branch is headed by the \npresident of the United States. States' executive branches are headed by the governor \nof the state. \nFigure 2.5 Diagram of the Executive Branch Examples of Executive Branch Checks and Balances \nThe executive branch can check and balance both the legislative branch and the \njudicial branch. The president of the United States can veto statutes proposed by \nCongress. The president also has the authority to nominate federal justices and \njudges, who thereafter serve for life. State executive branches have similar check \nand balancing authority; a governor can generally veto statutes proposed by state \nlegislature and can appoint some state justices and judges. \nThe Judicial Branch \nThe judicial branch is responsible for interpreting all laws, including statutes, \ncodes, ordinances, and the federal and state constitutions. This power is all \nencompassing and is the basis for judicial review, referenced in Chapter 1 \n\"Introduction to Criminal Law\". It allows the judicial branch to invalidate any \nunconstitutional law in the statutory source of law and also to change the federal \nand state constitutions by interpretation. For example, when a court creates an \nexception to an amendment to the constitution, it has made an informal change \nwithout the necessity of a national or state consensus. The federal judicial branch is \nheaded by the US Supreme Court. Each state's judicial branch is headed by the \nhighest-level state appellate court. Members of the judicial branch include all judges \nand justices of every federal and state court in the court system, which is discussed \nshortly. \nFigure 2.6 Diagram of the Judicial Branch Examples of Judicial Branch Checks and Balances \nThe judicial branch can check and balance both the legislative branch and the \nexecutive branch. The US Supreme Court can invalidate statutes enacted by \nCongress if they conflict with the Constitution. The US Supreme Court can also \nprevent the president from taking action if that action violates separation of \npowers. The state courts can likewise nullify unconstitutional statutes passed by the \nstate legislature and void other executive branch actions that are unconstitutional. \nTable 2.1 The Most Prominent Checks and Balances between the Branches \nGovernment \nBranch \nDuty or Authority Check and Balance Government Branch \nChecking and \nBalancing \nLegislative Create statutes President can veto Executive \nExecutive Enforce statutes Congress can override presidential \nveto by 2/3 majority \nLegislative \nJudicial Interpret statutes \nand Constitution \nPresident nominates federal judges \nand justices \nExecutive \nExecutive Enforce statutes Senate can confirm or reject \npresidential nomination of federal \njudges and justices \nLegislative \nExecutive Enforce statutes Congress can impeach the president Legislative \nLegislative Create statutes Courts can invalidate \nunconstitutional statutes \nJudicial \nExecutive Enforce statutes Courts can invalidate \nunconstitutional executive action \nJudicial \nJudicial Interpret statutes \nand Constitution \nStatutes can supersede case law Legislative \nKEY TAKEAWAYS \n\u2022 The three branches of government are the legislative branch, the executive branch, and the judicial branch. \n\u2022 The head of the federal legislative branch of government is Congress. The head of the state \nlegislative branch of government is the state legislature. \n\u2022 \nThe Senate represents every state equally because each state has two senators. The House \nof Representatives represents each citizen equally because states are assigned \nrepresentatives based on their population. \n\u2022 The head of the federal executive branch of government is the president. The head of each \nstate executive branch of government is the governor. \n\u2022 The head of the federal judicial branch of government is the US Supreme Court. The head of \neach state judicial branch of government is the highest-level state appellate court. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the end \nof the chapter. \n1. A mayor enacts a policy that prohibits police officers in his city from enforcing a state law \nprohibiting the possession and use of marijuana. The mayor's policy specifically states that \nwithin the city limits, marijuana is legal to possess and use. Which constitutional principle is \nthe mayor violating? Which branch of government should check and balance the mayor's \nbehavior in this matter? \n2. Read Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). In Youngstown, President \nTruman seized control of steel mills to avert a strike, using his authority as commander in \nchief of the armed forces. President Truman wanted to ensure steel production during the \nKorean War. Did the US Supreme Court uphold President Truman's action? Why or why not? \nThe case is available at this link: http://supreme.justia.com/us/343/579/. \n3. Read Hamdi v. Rumsfeld, 542 U.S. 507 (2004). In Hamdi, the US Supreme Court reviewed the \nUS Court of Appeals for the Fourth Circuit's decision prohibiting the release of a US citizen \nwho was held as an enemy combatant in Virginia during the Afghanistan War. The citizen's \ndetention was based on a federal statute that deprived him of the opportunity to consult \nwith an attorney or have a trial. Did the US Supreme Court defer to the federal statute? Why \nor why not? 2.3 The Court System \nLEARNING OBJECTIVES \n1. Compare federal and state courts. \n2. Define jurisdiction. \n3. Compare original and appellate jurisdiction. \n4. Identify the federal courts and determine each court's jurisdiction. \n5. Identify the state courts and determine each court's jurisdiction. \nEvery state has two court systems: the federal court system, which is the same in all fifty states, \nand the state court system, which varies slightly in each state. Federal courts are fewer in number \nthan state courts. Because of the Tenth Amendment, discussed earlier in Section 2.1.2 \"The Scope \nof State Law\", most laws are state laws and therefore most legal disputes go through the state \ncourt system. \nFederal courts are exclusive; they adjudicate only federal matters. This means that a case can go \nthrough the federal court system only if it is based on a federal statute or the federal \nConstitution. One exception is called diversity of citizenship.28 U.S.C. \u00a7 1332, accessed \nAugust 30, 2010, http://www.law.cornell.edu/uscode/28/1332.html. If citizens from different \nstates are involved in a civil lawsuit and the amount in controversy exceeds $75,000, the lawsuit \ncan take place in federal court. All federal criminal prosecutions take place in federal courts. \nState courts are nonexclusive; they can adjudicate state or federal matters. Thus an individual \nwho wants to sue civilly for a federal matter has the option of proceeding in state or federal court. \nIn addition, someone involved in a lawsuit based on a federal statute or the federal Constitution \ncan remove a lawsuit filed in state court to federal court.28 U.S.C. \u00a7 1441 et. seq., accessed August \n30, 2010, http://www.law.cornell.edu/uscode/28/1441.html. All state criminal prosecutions take \nplace in state courts. Jurisdiction \nDetermining which court is appropriate for a particular lawsuit depends on the \nconcept of jurisdiction. Jurisdiction has two meanings. A court's jurisdiction is the \npower or authority to hear the case in front of it. If a court does not have jurisdiction, \nit cannot hear the case. Jurisdiction can also be a geographic area over which the \ncourt's authority extends. \nThere are two prominent types of court jurisdiction. Original jurisdiction means that \nthe court has the power to hear a trial. Usually, only one opportunity exists for a trial, \nalthough some actions result in both a criminal and a civil trial, discussed previously \nin Chapter 1 \"Introduction to Criminal Law\". During the trial, evidence is presented \nto a trier of fact, which can be either a judge or a jury. The trier of fact determines the \nfacts of a dispute and decides which party prevails at trial by applying the law to \nthose facts. Once the trial has concluded, the next step is an appeal. During an \nappeal, 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 \nappellate jurisdiction review the trial record for error. The trial record includes a \ncourt reporter's transcript, which is typed notes of the words spoken during the \ntrial and pretrial hearings. In general, with exceptions, appellate courts cannot \nreview a trial record until the trial has ended with a final judgment. Once the \nappellate court has made its review, it has the ability to take three actions. If it finds \nno compelling or prejudicial errors, it can affirm the judgment of the trial court, \nwhich means that the judgment remains the same. If it finds a significant error, it \ncan reverse the judgment of the trial court, which means that the judgment becomes \nthe opposite (the winner loses, the loser wins). It can also remand, which means send \nthe case back to the trial court, with instructions. After remand, the trial court can \ntake action that the appellate court cannot, such as adjust a sentence or order a new \ntrial. Some courts have only original jurisdiction, but most courts have a little of original \nand appellate jurisdiction. The US Supreme Court, for example, is primarily an \nappellate court with appellate jurisdiction. However, it also has original jurisdiction \nin some cases, as stated in the Constitution, Article III, \u00a7 2, clause 2: \"In all Cases \naffecting Ambassadors, other public Ministers and Consuls, and those in which a \nState shall be Party, the supreme Court shall have original Jurisdiction. In all the \nother Cases before mentioned, the supreme Court shall have appellate jurisdiction.\" \nExample of Original and Appellate Jurisdiction \nPaulina is prosecuted for the attempted murder of Ariana. Paulina is represented by \npublic defender Pedro. At Paulina's trial, in spite of Pedro's objections, the judge \nrules that Paulina's polygraph examination results are admissible, but prohibits the \nadmission of certain witness testimony. Paulina is found guilty and appeals, based on \nthe judge's evidentiary rulings. While Pedro is writing the appellate brief, he \ndiscovers case precedent barring the admission of polygraph examination results. \nPedro can include the case precedent in his appellate brief but not the prohibited \nwitness testimony. The appellate court has the jurisdiction to hold that the objection \nwas improperly overruled by the trial court, but is limited to reviewing the trial \nrecord for error. The appellate court lacks the jurisdiction to admit new evidence not \nincluded in the trial record. \nThe Federal Courts \nFor the purpose of this book, the focus is the federal trial court and the intermediate \nand highest level appellate courts because these courts are most frequently \nencountered in a criminal prosecution. Other federal specialty courts do exist but are \nnot 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 \nCalifornia have more than one district court, while smaller states may have only one. \nDistrict courts hear all the federal trials, including civil and 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 \nexception for civil lawsuits. \nAfter a trial in district court, the loser gets one appeal of right. This means that the \nintermediate appellate federal court must hear an appeal of the district court trial if \nthere are sufficient grounds. The intermediate appellate court in the federal system is \nthe United States Court of Appeals. There is less federal law than state law, so \nonly thirteen US Courts of Appeals exist for all fifty states. The US Courts of Appeals \nare spread out over thirteen judicial circuits and are also referred to as Circuit \nCourts. \nCircuit Courts have appellate jurisdiction and can review the district court criminal \nand civil trials for error. The Circuit Court reviews only trials that are federal in \nnature, with the exception of civil lawsuits brought to the district court under \ndiversity of citizenship. As noted in Chapter 1 \"Introduction to Criminal Law\", the \nfederal Constitution governs criminal trials, so only a guilty defendant can appeal. \nIn general, with exceptions, appeal of a not-guilty verdict (also called an acquittal) \nviolates a defendant's double jeopardy protection. \nAfter a Circuit Court appeal, the loser has one more opportunity to appeal to the \nhighest-level federal appellate court, which is the United States Supreme Court. \nThe US Supreme Court is the highest court in the country and is located in \nWashington, DC, the nation's capital. The US Supreme Court has eight associate \njustices and one chief justice: all serve a lifetime appointment. \nThe US Supreme Court is a discretionary court, meaning it does not have to hear \nappeals. Unlike the Circuit Courts, the US Supreme Court can pick and choose which \nappeals it wants to review. The method of applying for review with the US Supreme \nCourt is called filing a petition for a writ of certiorari. Any case from a Circuit Court, or a case with a federal matter at issue from a state's \nhighest-level appellate court, can petition for a writ of certiorari. If the writ is \ngranted, the US Supreme Court reviews the appeal. If the writ is denied, which it is \nthe majority of the time, the ruling of the Circuit Court or state high court is the final \nruling. For this reason, the US Supreme Court reverses many cases that are accepted \nfor review. If the US Supreme Court wants to \"affirm\" the intermediate appellate \ncourt ruling, all it has to do is deny the petition and let the lower court ruling stand. \nThe State Courts \nFor the purpose of this book, a representative state court system is reviewed. Slight \nvariations in this system may occur from state to state. \nMost states offer their citizens a \"people's court,\" typically called small claims court. \nSmall claims court is a civil court designed to provide state citizens with a low-\ncost option to resolve disputes where the amount in controversy is minimal. A \ntraditional small claims court only has the jurisdiction to award money damages. \nThis means that it cannot adjudicate criminal matters or family court matters such as \ngranting a petition for divorce. Small claims courts also limit the amount of money \ndamages available, typically less than $10,000. \nSmall claims court has special rules that make it amenable to the average individual. \nAttorneys cannot represent clients in small claims court, although they certainly can \nrepresent themselves just like any other individual. Small claims court proceedings \nare generally informal, and usually no court reporter types what is said. Therefore, \nno court record exits for appeal. Small claims court appeals are the exception to the \ngeneral rule and are usually new trials where evidence is accepted. \nStates generally have a state trial court that can also be the appellate court for \nsmall claims court appeals. This trial court is usually called superior court, circuit \ncourt, or county court. State trial courts are generally all-purpose and hear civil \nlitigation matters, state criminal trials, and nonlitigation cases including family law, wills and probate, foreclosures, and juvenile adjudications. States can, however, \ncreate \"specialty courts\" to hear special matters and free up the trial courts for basic \ncriminal prosecutions and civil litigation trials. Some states divide their trial courts \ninto lower and higher levels. The lower-level trial court adjudicates infractions and \nmisdemeanors, along with civil lawsuits with a smaller amount in controversy. The \nhigher-level trial court adjudicates felonies and civil lawsuits with a higher amount in \ncontroversy. \nThe intermediate appellate court for the state court system is usually called the state \ncourt of appeals, although some smaller or low-population states may have only \none appellate court called the state supreme court. The state courts of appeal \nprovide appeals of right, meaning they must hear an appeal coming from the state's \ntrial court if adequate grounds are present. Appeals can be of any case adjudicated in \nthe state trial court. In state criminal prosecutions, as stated earlier in the discussion \nof federal appeals, only a guilty defendant can appeal without violating the protection \nagainst 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 \nnew trials or accept evidence. \nThe highest appellate court for the state court system is usually called the state \nsupreme court. In states that have both intermediate and high-level appellate courts, \nthe state supreme court is a discretionary court that gets to select the appeals it \nhears, very similar to the US Supreme Court. The state supreme court generally \ngrants a petition for writ of certiorari, or a petition for review, if it decides to hear \na civil or criminal case coming out of the state court of appeal. If review is denied, the \nstate court of appeal ruling is the final ruling on the case. If review is granted and the \nstate supreme court rules on the case, the loser has one more chance to appeal, if \nthere is a federal matter, to the US Supreme Court. \nFigure 2.7 Diagram of the Court System KEY TAKEAWAYS \n\u2022 Federal courts are exclusive and hear only federal matters or cases involving diversity of \ncitizenship. State courts are nonexclusive and can hear state and federal matters. All federal \ncriminal prosecutions take place in federal court, and all state criminal prosecutions take \n place in state court. \n\u2022 Jurisdiction is either the court's power to hear a matter or a geographic area over which a \ncourt has authority. \n\u2022 Original jurisdiction is a court's power to hear a trial and accept evidence. Appellate \njurisdiction is a court's power to hear an appeal and review the trial for error. \n\u2022 Three federal courts adjudicate criminal matters: the trial court, which is called the United \nStates District Court; the intermediate court of appeal, which is called the United States \nCourt of Appeals or Circuit Court; and the high court of appeal, which is called the United \nStates Supreme Court. The district court has original jurisdiction; the Circuit Court and US \nSupreme Court have primarily appellate jurisdiction. \n\u2022 \nState courts are usually limited to four, and only three adjudicate criminal matters. Small \nclaims court is a \"people's court\" and hears only civil matters with a low threshold of \ndamages. The state trial court, often called superior, circuit, or county court, is the trial court \nfor the state system. Some states have an intermediate court of appeal, which is generally \ncalled the state court of appeals. Some states have a high court of appeal, which is generally \ncalled the state supreme court. The trial court has original jurisdiction; the state court of \nappeal and state supreme court primarily have appellate jurisdiction. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the end \nof the chapter. \n1. Jenna sues Max for $25,000, based on a car accident that occurs in Indiana. Jenna loses at \ntrial and appeals to the highest state appellate court in Indiana, where she loses again. Can \nJenna appeal her case to the US Supreme Court? Why or why not? \n2. Read United States v. P.H.E., Inc., 965 F.2d 848 (1992). In P.H.E., Inc., the defendant never \nwent to trial but was indicted. The defendant challenged the indictment, which was upheld by the trial court. The government claimed that the Court of Appeals for the Tenth Circuit \ncould not hear an appeal of the trial court's decision, because there was never a \"final \njudgment.\" Did the Circuit Court agree? Why or why not? The case is available at this link: \nhttp://scholar.google.com/scholar_case?case=16482877108359401771&hl=en&as_sdt= \n2&as_vis=1&oi=scholarr. \n3. Read 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? \n2.4 The Burden of Proof \nLEARNING OBJECTIVES \n1. Define the burden of proof. \n2. Distinguish between the burden of production and the burden of persuasion. \n3. Compare the civil and criminal burden of proof. \n4. Compare inference and presumption. \n5. Compare circumstantial and direct evidence. \nThe key to the success of a civil or criminal trial is meeting the burden of proof. A failure to meet \nthe burden of proof is also a common ground for appeal. In this section, you learn the burden of \nproof for the plaintiff, prosecution, and defendant. You also are introduced to different \nclassifications of evidence and evidentiary rules that can change the outcome of the trial. \nDefinition of the Burden of Proof \nThe burden of proof is a party's responsibility to prove a disputed charge, allegation, \nor defense.Yourdictionary.com, \"Definition of Burden of Proof,\" accessed September \n26, 2010, http://www.yourdictionary.com/burden-of-proof. The burden of proof has \ntwo components: the burden of production and the burden of persuasion. The \nburden of production is the obligation to present evidence to the judge or jury. The \nburden of persuasion is the duty to convince the judge or jury to a certain standard, \nsuch as beyond a reasonable doubt, which is defined shortly. This standard is simply \na measuring point and is determined by examining the quantity and quality of the evidence presented. \"Meeting the burden of proof\" means that a party has introduced \nenough compelling evidence to reach the standard defined in the burden of \npersuasion. \nThe plaintiff or prosecutor generally has the burden of proving the case, including \nevery element of it. The defendant often has the burden of proving any defense. The \ntrier of fact determines whether a party met the burden of proof at trial. The trier of \nfact would be a judge in a nonjury or bench trial. In a criminal case, the trier of fact is \nalmost always a jury because of the right to a jury trial in the Sixth Amendment. \nJurors are not legal experts, so the judge explains the burden of proof in jury \ninstructions, which are a common source of appeal. \nBurden of Proof in a Civil Case \nBurdens of proof vary, depending on the type of case being tried. The plaintiff's \nburden of proof in a civil case is called preponderance of evidence. Preponderance of \nevidence requires the plaintiff to introduce slightly more or slightly better evidence \nthan the defense. This can be as low as 51 percent plaintiff to 49 percent defendant. \nWhen preponderance of evidence is the burden of proof, the judge or jury must be \nconvinced that it is \"more likely than not\" that the defendant is liable for the \nplaintiff's injuries. Preponderance of evidence is a fairly low standard, but the \nplaintiff must still produce more and better evidence than the defense. If the plaintiff \noffers evidence of questionable quality, the judge or jury can find that the burden of \nproof is not met and the plaintiff loses the case. \nThe defendant's burden of proof when proving a defense in a civil case is also \npreponderance of evidence. For example, in the O. J. Simpson civil case discussed in \nChapter 1 \"Introduction to Criminal Law\", O. J. Simpson failed to meet the burden of \nproving 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 \nvictorious without having to present any evidence at all. Burden of Proof in a Criminal Prosecution \nThe prosecution's burden of proof in a criminal case is the most challenging burden \nof proof in law; it is beyond a reasonable doubt. Judges have struggled with a \ndefinition for this burden of proof. As Chief Justice Shaw stated nearly a century ago, \n[w]hat is reasonable doubt? It is a term often used, probably pretty well understood, \nbut not easily defined. It is not mere possible doubt; because every thing relating to \nhuman affairs, and depending on moral evidence, is open to some possible or \nimaginary 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 \nthey cannot say they feel an abiding conviction, to a moral certainty, of the truth of \nthe charge.Commonwealth v. Webster, 59 Mass. 295, 320 (1850), accessed \nSeptember 26, 2010, http://masscases.com/cases/sjc/59/59mass295.html. \nIn general, the prosecution's evidence must overcome the defendant's presumption \nof innocence, which the Constitution guarantees as due process of law.In re Winship, \n397 U.S. 358 (1970), accessed September 26, \n2010, http://www.law.cornell.edu/supct/html/historics/USSC_CR_0397_0358_ZO \n.html. This fulfills the policy of criminal prosecutions, which is to punish the guilty, \nnot the innocent. If even a slight chance exists that the defendant is innocent, the \ncase most likely lacks convincing and credible evidence, and the trier of fact should \nacquit the defendant. \nStates vary as to their requirements for the defendant's burden of proof when \nasserting a defense in a criminal prosecution.Findlaw.com, \"The Insanity Defense \namong the States,\" findlaw.com website, accessed October 1, \n2010, http://criminal.findlaw.com/crimes/more-criminal-\ntopics/insanitydefense/the-insanity-defense-among-the-states.html. Different \ndefenses also have different burdens of proof, as is discussed in detail in Chapter 5 \n\"Criminal Defenses, Part 1\" and Chapter 6 \"Criminal Defenses, Part 2\". Some states \nrequire the defendant to meet the burden of production, but require the prosecution \nto thereafter meet the burden of persuasion, disproving the defense to a preponderance of evidence or, in some states, beyond a reasonable doubt. Other \nstates require the defendant to meet the burden of production and the burden of \npersuasion. In these states, the defendant's standard is typically preponderance of \nevidence, not beyond a reasonable doubt. The defendant does not always have to \nprove a defense in a criminal prosecution. If the prosecution does not meet the \nburden of proof, the defendant is acquitted without having to present any evidence at \nall. \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's trial is \nthe murder weapon, which was discovered in Ann's dresser drawer during a law \nenforcement search. Before Ann's trial, the defense makes a motion to suppress the \nmurder weapon evidence because the search warrant in Ann's case was signed by a \njudge who was inebriated and mentally incompetent. The defense is successful with \nthis motion, and the judge rules that the murder weapon is inadmissible at trial. The \nprosecution decides to proceed anyway. If there is no other convincing and credible \nevidence of Ann's 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 Inference and Presumption \nParties can use two tools to help meet the burden of \nproof: inference and presumption. Jury instructions can include inferences and \npresumptions 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 \ncircumstances. An inference is never mandatory but is a choice. For example, if the \nprosecution proves that the defendant punched the victim in the face after \nscreaming, \"I hate you!\" the judge or jury can infer that the punch was thrown \nintentionally. \nA presumption is a conclusion that the judge or jury must make under the \ncircumstances. As stated previously, all criminal defendants are presumed innocent. \nThus the judge or jury must begin any criminal trial concluding that the defendant is \nnot guilty. \nPresumptions can be rebuttable or irrebuttable. A party can disprove \na rebuttable presumption. The prosecution can rebut the presumption of innocence \nwith evidence proving beyond a reasonable doubt that the defendant is guilty. An \nirrebuttable presumption is irrefutable and cannot be disproved. In some \njurisdictions, it is an irrebuttable presumption that children under the age of seven \nare incapable of forming criminal intent. Thus in these jurisdictions children under \nthe age of seven cannot be criminally prosecuted (although they may be subject to a \njuvenile adjudication proceeding). \nCircumstantial and Direct Evidence \nTwo primary classifications are used for evidence: circumstantial evidence or direct \nevidence. \nCircumstantial evidence indirectly proves a fact. Fingerprint evidence is usually \ncircumstantial. A defendant's fingerprint at the scene of the crime directly proves \nthat the defendant placed a finger at that location. It indirectly 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 \nevidence, DNA evidence, and blood evidence. Criminal cases relying on \ncircumstantial evidence are more difficult for the prosecution because circumstantial \nevidence leaves room for doubt in a judge's or juror's mind. However, circumstantial \nevidence such as DNA evidence can be very reliable and compelling, so the \nprosecution can and often does meet the burden of proof using only circumstantial \nevidence. \nDirect evidence directly proves a fact. For example, eyewitness testimony is often \ndirect evidence. An eyewitness testifying that he or she saw the defendant commit \nthe crime directly proves that the defendant committed the crime. Common \nexamples of direct evidence are eyewitness testimony, a defendant's confession, or a \nvideo or photograph of the defendant committing the crime. Criminal cases relying \non direct evidence are easier to prove because there is less potential for reasonable \ndoubt. However, direct evidence can be unreliable and is not necessarily preferable \nto circumstantial evidence. If an eyewitness is impeached, which means he or she \nloses credibility, the witness's testimony lacks the evidentiary value of reliable \ncircumstantial evidence such as DNA evidence. \nTable 2.2 Comparison of Circumstantial and Direct Evidence in a Burglary Case \nEvidence Circumstantial Direct \nFiber from the defendant's coat \nfound in a residence that has been \nburglarized \nYes No\u2014directly proves presence at the scene, \nnot that the defendant committed \nburglary \nGPS evidence indicating the \ndefendant drove to the burglarized \nresidence \nYes No\u2014same explanation as fiber evidence \nTestimony from an eyewitness that \nshe saw the defendant go into the \nbackyard of the burglarized residence \nYes No\u2014could prove trespassing because it \ndirectly proves presence at the scene, but \nit does not directly prove burglary Evidence Circumstantial Direct \nSurveillance camera footage of the \ndefendant purchasing burglar tools \nYes No\u2014does not directly prove they were \nused on the residence \nCell phone photograph of the \ndefendant burglarizing the residence \nNo Yes\u2014directly proves that the defendant \ncommitted the crime \nWitness testimony that the \ndefendant confessed to burglarizing \nthe residence \nNo Yes\u2014directly proves that the defendant \ncommitted the crime \nPawn shop receipt found in the \ndefendant's pocket for items stolen \nfrom the residence \nYes No\u2014directly proves that the items were \npawned, not stolen \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. \nCasey Anthony was acquitted of murder, manslaughter, and child abuse of her \ndaughter, Caylee Anthony. The evidence in the case was all circumstantial, and the \ncoroner did not determine the cause of the victim's death.David Lohr, \"Casey \nAnthony Verdict: NOT GUILTY of First-Degree Murder,\" Huffingtonpost.com \nwebsite, accessed August 24, \n2011, http://www.huffingtonpost.com/2011/07/05/casey-anthony-\ntrialverdict_n_890173.html#s303265&title=Casey_Anthony_Verdict. \n(click to see video) \nKEY TAKEAWAYS \n\u2022 The burden of proof is a party's obligation to prove a charge, allegation, or defense. \n\u2022 \nThe burden of production is the duty to present evidence to the trier of fact. The burden of \npersuasion is the duty to convince the trier of fact to a certain standard, such as \npreponderance of evidence or beyond a reasonable doubt. \u2022 The civil burden of proof is preponderance of evidence, for both the plaintiff \nand the defendant. The criminal burden of proof for the prosecution is beyond \n a reasonable doubt. \no \nThe criminal burden of proof for the defense is generally preponderance of \nevidence. States vary on whether they require the criminal defendant to meet \nboth the burden of production and persuasion or just the burden of \nproduction. Different defenses also require different burdens of proof. \no \nIn states that require the defendant to meet only the burden of production, \nthe prosecution must disprove the defense to a preponderance of evidence or \nbeyond a reasonable doubt, depending on the state and on the defense. \n\u2022 An inference is a conclusion the trier of fact may make, if it chooses to. A \npresumption is a \nconclusion the trier of fact must make. A rebuttable presumption can be disproved; an \n irrebuttable presumption cannot. \n\u2022 \nCircumstantial evidence indirectly proves a fact. A fingerprint at the scene of the crime, for \nexample, indirectly proves that because the defendant was present at the scene, the \ndefendant committed the crime. Direct evidence directly proves a fact. If the defendant \nconfesses to a crime, for example, this is direct evidence that the defendant committed the \ncrime. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the end \nof the chapter. \n1. Bria is asserting the insanity defense in her criminal prosecution for murder. In Bria's state, \ndefendants have the burden of production and persuasion to a preponderance of evidence \nwhen proving the insanity defense. Bria offers her own testimony that she is insane and \nincapable of forming criminal intent. Will Bria be successful with her defense? Why or why \nnot? \n2. Read Patterson v. New York, 432 U.S. 197 (1977). In Patterson, the defendant was on trial for \nmurder. New York law reduced murder to manslaughter if the defendant proved extreme \nemotional disturbance to a preponderance of evidence. Did the US Supreme Court hold that \nit is constitutional to put this burden on the defense, rather than forcing the prosecution to disprove extreme emotional disturbance beyond a reasonable doubt? Which part of the \nConstitution did the Court analyze to justify its holding? The case is available at this \nlink: http://supreme.justia.com/us/432/197/case.html. \n3. Read 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 \nthis was a prejudicial error requiring reversal of the defendant's conviction for murder? \nWhich part of the Constitution did the Court rely on in its holding? \n2.5 End-of-Chapter Material \nSummary \nThe United States' system of government is called federalism and consists of one \nfederal government regulating issues of a national concern and separate state \ngovernments regulating local issues. The bulk of criminal lawmaking resides with \nthe states because of the police power granted to the states in the Tenth Amendment. \nNinety percent of all criminal laws are state laws. Many federal crimes are also state \ncrimes, and a defendant can be prosecuted federally and by a state without \ntriggering double jeopardy protection. If a federal statute exists on an issue, a state \nstatute cannot conflict with it because of the Constitution's Supremacy Clause. \nThe Constitution sets forth three branches of government. The legislative branch \nconsists of Congress and has the authority to create laws. The executive branch is \nheaded by the president of the United States and has the authority to enforce the \nlaws created by the legislative branch. The judicial branch is headed by the US \nSupreme Court and has the authority to interpret laws and the Constitution. Each \nbranch checks and balances each other, and the judicial branch ensures that no \nbranch oversteps its authority and violates separation of powers. State governments \nmimic the federal branches of government at the state level and set forth authorities \nin each state's constitution. \nThe federal court system exclusively adjudicates federal matters and consists \nprimarily of the US District Court, the US Court of Appeals or Circuit Court, and the US Supreme Court. Each state has its own court system consisting primarily of a trial \ncourt, intermediate court of appeal, and possibly a high court of appeal. Trial courts \nhave original jurisdiction and can accept evidence. Appellate courts have appellate \njurisdiction and are limited to reviewing the trial courts' decisions for error. \nEach party in a civil or criminal trial must meet a burden of proof, which consists of a \nburden of producing evidence and a burden of persuading the trier of fact. The \nburden of proof for a civil plaintiff or defendant is preponderance of evidence, which \nmeans that the trier of fact must be convinced it is more likely than not that a party \nshould prevail. The burden of proof for the prosecution in a criminal case is beyond a \nreasonable doubt, which is a stricter standard than preponderance of evidence and \nconsists of enough compelling evidence to rebut the defendant's presumption of \ninnocence. The burden of proof for a criminal defense varies but is often \npreponderance of evidence. Inferences, which are conclusions the trier of fact may \nmake, and presumptions, which are conclusions the trier of fact must make, can help \nmeet the burden of proof. The evidence presented to meet the burden of proof can be \ncircumstantial, which indirectly proves a fact, or direct, which directly proves a fact. \nCircumstantial evidence leaves room for reasonable doubt, but it can be reliable and \nthe basis of a successful criminal prosecution. \nYOU BE THE JUROR \nRead the prompt, review the case, and then decide whether enough evidence exists to \nmeet the burden of proof. Check your answers using the answer key at the end of \nthe chapter. \n1. The defendant was convicted of possession of a handgun with an altered serial number. The \ndefendant contended that he did not know the serial number had been altered. The \nprosecution offered evidence that the gun was \"shiny\" in the location of the serial number. \nThe prosecution also proved that the defendant was in possession of the handgun for a \nweek. Is this sufficient evidence to prove beyond a reasonable doubt that the defendant \nknew the serial number had been altered? Read Robles v. State, 758 N.E.2d 581 (2001). The \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. The defendant was convicted of attempted first-degree murder of a peace officer when he \nshot a sheriff. The defendant contended that he did not know the victim was a peace officer. \nThe sheriff was in a vehicle with a whip antenna, was armed, and was well known as a sheriff \nin Angola Prison, where the defendant was incarcerated previous to the shooting incident. \nHowever, the sheriff was in an unmarked car with the red light covered, out of uniform, and \nhis badge was obscured. Is this sufficient evidence to prove beyond a reasonable doubt that \nthe defendant knew the victim was a peace officer? Read Donahue v. Burl Cain, 231 F.3d \n1000 (2000). The case is available at this link: http://openjurist.org/231/f3d/1000/larry- \ndonahue-v-burl-cain. \n3. The defendant was convicted of third-degree robbery, which requires a threat of immediate \nuse of physical force. The defendant entered a McDonald's restaurant twenty minutes \nbefore closing dressed in sunglasses, a leather jacket, and a bandana that covered his hair. \nThe defendant beckoned the clerk and thereafter demanded that she put money from \ndifferent cash register drawers into his bag. The defendant did not appear armed, nor did he \nraise his voice or verbally threaten the clerk. Is this sufficient evidence to prove beyond a \nreasonable doubt that the defendant threatened immediate use of physical force? Read \nState v. Hall, \n966 P.2d 208 (1998). The case is available at this \nlink: http://www.publications.ojd.state.or.us/S44712.htm. \n4. The defendant was convicted of possession of cocaine with intent to sell. The defendant \npossessed seven individual packages of white powdery substance, but only one package was \ntested (and it tested positive for cocaine). Is this sufficient evidence to prove beyond a \nreasonable doubt that the defendant possessed cocaine with intent to sell? Read Richards v. \nFlorida, No. 4008-4216 (2010). The case is available at this link: \nhttp://www.4dca.org/opinions/June%202010/06-09-10/4D08-4216.op.w-dissent.pdf. \nCases of Interest \n\u2022 Clinton v. Jones, 520 U.S. 681 (1997), discusses separation of \npowers: http://scholar.google.com/scholar_case?case=1768307810279741111&q= \nClinton+v.+Jones&hl=en&as_sdt=2,5. \u2022 \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\u2022 \nSabri v. United States, 541 U.S. 600 (2004), discusses the federal government's \nability to criminalize bribery of a local government official: \nhttp://www.law.cornell.edu/supct/html/03-44.ZS.html. \n\u2022 U.S. v. Comstock, 627 F.3d 513 (2010), discusses criminal and civil burdens of \nproof: http://scholar.google.com/scholar_case?case=15669334228411787012&q= \n%22criminal+burden+of+proof%22&hl=en&as_sdt=2,5&as_ylo=2000. \nArticles of Interest \n\u2022 Connections between federalism and homeland \n security: http://www.hsaj.org/?fullarticle=2.3.4 \n\u2022 Video court: http://www.businessweek.com/ap/financialnews/D9N3D24G0.htm \n\u2022 Burden of proof: http://law.jrank.org/pages/18346/Burden-Proof-Criminal- \nCivil.html \n\u2022 Federal and state court systems: \nhttp://www.uscourts.gov/EducationalResources/FederalCourtBasics/Court \nStructure/UnderstandingFederalAndStateCourts.aspx \nWebsites of Interest \n\u2022 US Supreme Court: http://www.supremecourt.gov \n\u2022 Federal courts: http://www.uscourts.gov/Home.aspx \n\u2022 Civic participation: http://www.congress.org \nStatistics of Interest \n\u2022 US Supreme \nCourt: http://www.allcountries.org/uscensus/356_u_s_supreme_court_cases_filed. \nhtml \nAnswers to Exercises \nFrom Section 2.1 \"Federalism\" \n1. Congress gets the authority to criminalize conduct involving the Internet from the commerce clause because the Internet includes economic activity and crosses state \nlines. Both the federal and state government can prosecute the defendant under \nfederal and state criminal statutes for one act without violating double jeopardy. 2. \nThe US Supreme Court relied on the commerce clause and the Fourteenth \nAmendment. Specifically, the Court ruled that gender-motivated crimes of violence \nare not economic activity and do not have a national effect, so the commerce clause \ndoes not support federal legislation in this area. Furthermore, the Court held that the \nFourteenth Amendment due process clause is targeted at state government action, \nnot individual defendants, so it is likewise inapplicable. \n3. The US Supreme Court held that the Pennsylvania Sedition Act is superseded by the \nSmith Act, 18 U.S.C. \u00a7 2385. Specifically, the Court referenced the supremacy of \nfederal law on the same topic, thereby preempting the state statute. \nAnswers to Exercises \nFrom Section 2.2 \"The Branches of Government\" \n1. The mayor is violating separation of powers because members of the executive \nbranch cannot invalidate or supersede laws passed by the legislative branch; only \nthe judicial branch is entitled to do this via judicial review. The judicial branch \nshould check and balance this action, if someone attacks the mayor's policy in court. \n2. The US Supreme Court did not uphold President Truman's action and ruled that he \nwas violating separation of powers. A statute on point already disallowed the \npresident's action (the Taft-Hartley Act). The president cannot supersede Congress's \nauthority by ignoring a constitutional statute that Congress enacted, even during \nwartime. \n3. The US Supreme Court reversed the US Court of Appeals for the Fourth Circuit. The \nCourt held that the judicial branch is not required to allow unconstitutional federal \nstatutes to remain in effect during wartime because of separation of powers. The \nCourt determined that the detainee's constitutional right to due process allowed him \naccess to an attorney and a court trial, in spite of the federal statute. \nAnswers to Exercises \nFrom Section 2.3 \"The Court System\" 1. Jenna cannot appeal to the US Supreme Court because she does not appear to have \na federal issue. Parties can appeal from a state's highest level appellate court directly \ninto the US Supreme Court, but the US Supreme Court is a federal court and only has \nthe jurisdiction to hear federal matters. Jenna cannot meet the criteria of diversity \njurisdiction 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). \n2. The US Court of Appeals for the Tenth Circuit held that there was jurisdiction, in \nspite of the absence of a trial. The court also held that the extraordinary \ncircumstances compelled a reversal of the district court order denying a motion to \ndismiss the defendants' indictment. The court essentially ruled that the defendants \nhad a right not to be tried. \n3. The US Supreme Court held that a corporation is a citizen of its state of incorporation \nand the state in which its principal place of business is located. The principal place of \nbusiness is the \"nerve center state,\" which is the state that houses the corporate \nheadquarters. \nAnswers to Exercises \nFrom Section 2.4 \"The Burden of Proof\" \n1. Bria will not be successful with the insanity defense because she cannot meet the \nburden of proof, which is preponderance of evidence. Preponderance of evidence \nis a fairly low standard, but Bria must still convince the trier of fact that it is more \nlikely than not she is insane. She cannot do this with her testimony, standing alone. \nClearly, Bria has an important self-interest in eliminating her criminal responsibility \nin this case. Thus her subjective testimony regarding her own mental state is not compelling enough to meet the 51 percent to 49 percent standard. \n2. The US Supreme Court held that it is constitutional to put the burden of proving \nextreme emotional disturbance on the defendant, reducing murder to manslaughter. \nThe Court held that this did not relieve the prosecution of the burden of proving every \nelement of murder beyond a reasonable doubt and thus was in compliance with the \ndue process clause of the Constitution. \n3. The US Supreme Court held that a constitutionally deficient jury instruction on the \ndefinition of beyond a reasonable doubt was a prejudicial error and required a \nreversal of the defendant's conviction for murder. The Court determined that the \nimproper jury instruction deprived the defendant of his Sixth Amendment right to a \njury trial. \nAnswer to Law and Ethics Question \n1. The federal judge Susan Bolton based her decision on federal preemption and \nan impermissible state burden on legal resident aliens. The judge reasoned that \nfederal authority to make law in the area of immigration has been confirmed by the \nUS Supreme Court, based on enumerated and implied powers, and the designated \nsections of the Arizona law conflicted with this authority and are thus \npreempted.Order, U.S. v. Arizona, No. CV 10-1413-PHX-SRB, U.S. District Court, \naccessed October 1, \n2010, http://graphics8.nytimes.com/packages/pdf/national/20100729_ARIZONA_ \nDOC.pdf. The judge further held that enforcement of the enjoined sections of the \nArizona law would divert federal resourcesOrder, U.S. v. Arizona, No. CV 10-1413- \nPHX-SRB, U.S. District Court, accessed October 1, \n2010, http://graphics8.nytimes.com/packages/pdf/national/20100729_ARIZONA_ \nDOC.pdf. and also impermissibly burden legal resident aliens by restricting their \nliberty while their status is checked.Order, U.S. v. Arizona, No. CV 10-1413-PHX- \nSRB, U.S. District Court, accessed October 1, \n2010, http://graphics8.nytimes.com/packages/pdf/national/20100729_ARIZONA_ \nDOC.pdf. Answers to You Be the Juror \n1. The Indiana Court of Appeals held that there was sufficient evidence to prove \nbeyond a reasonable doubt that the defendant knew the serial numbers on the gun \nhad been altered. The appearance of the gun and the defendant's week-long \npossession were enough for a reasonable juror to infer knowledge. \n2. The US Court of Appeals for the Fifth Circuit held that there was insufficient \nevidence to prove beyond a reasonable doubt that the defendant knew the victim was \na peace officer. The court held that a reasonable juror could not infer knowledge from \nthe whip antennae and the victim's job at Angola prison. \n3. The Supreme Court of Oregon held that there was sufficient evidence to prove \nbeyond a reasonable doubt that the defendant threatened immediate use of physical \nforce. The court held that the defendant's appearance, combined with the lateness of \nthe hour and the demands for money, could be an implicit threat under the \ncircumstances. \n4. The District Court of Appeal of Florida held that there was sufficient evidence to \nprove beyond a reasonable doubt that the defendant possessed cocaine with the \nintent to sell. The court pointed out that the criminal statute at issue did not require a \nspecified quantity of cocaine. The court also reasoned that a jury could infer from the \npackaging and expert testimony that the other packages also contained cocaine. \nChapter 3Constitutional Protections Source: Image courtesy of Tara Storm. \nThose who wrote our constitutions knew from history and experience that it was \nnecessary to protect against unfounded criminal charges brought to eliminate \nenemies and against judges too responsive to the voice of higher authority. \nDuncan v. Louisiana, cited in Section 3.2 \"The Due Process and Equal Protection \nClauses\" \n3.1 Applicability of the Constitution \nLEARNING OBJECTIVES \n1. Distinguish between the two types of constitutional protections. \n2. Compare unconstitutional on its face with unconstitutional as applied. \n3. Distinguish among different standards of judicial review. \n4. Compare bill of attainder with ex post facto laws. \n5. Ascertain the three types of ex post facto laws. \nIn addition to statutory and common-law defenses, a criminal defendant has extensive \nprotections that are set forth in the United States Constitution. As stated earlier in this book, the \nfederal Constitution is applicable in all criminal cases because the government is prosecuting. \nState constitutions typically mirror the federal Constitution because it sets the minimum \nstandard of protection that is guaranteed to all citizens. States can and often do provide more \nconstitutional protections to criminal defendants than the federal Constitution, as long as those \nstate protections do not violate notions of federal supremacy. In this chapter, the federal \nConstitution is analyzed with reference to state constitutional protections when relevant. \nConstitutional Protections \nGenerally, two types of constitutional protections exist. First, a defendant can \nchallenge the constitutionality of a criminal statute or ordinance (from this point \nforward, the term statute includes ordinances unless otherwise noted). Recall from Chapter 1 \"Introduction to Criminal Law\" that these codified laws cannot conflict \nwith or attempt to supersede the Constitution. An attack on the constitutionality of \na statute can be a claim that the statute is unconstitutional on its face, is \nunconstitutional as applied, or both. A statute is unconstitutional on its face when \nits wording is unconstitutional. A statute is unconstitutional as applied when its \nenforcement is unconstitutional. The difference between the two is significant. If a \nstatute is unconstitutional on its face, it is invalid under any circumstances. If the \nstatute is unconstitutional as applied, it is only unconstitutional under certain \ncircumstances. \nA second type of constitutional protection is procedural. The defendant can protest \nan unconstitutional procedure that occurs during prosecution. Procedure during \nprosecution includes, but is not limited to, arrest, interrogation, search, filing of \ncharges, 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 \nreverse a conviction, among other remedies. \nThis book concentrates on criminal law rather than criminal procedure, so the bulk \nof this chapter is devoted to unconstitutional criminal statutes, rather than \nunconstitutional procedures. The exception is the right to a jury trial, which is \ndiscussed shortly. \nExample of Constitutional Protections \nBill is on trial for obstructing a public sidewalk. Bill was arrested for standing in front \nof a restaurant's entrance with a sign stating \"will eat any and all leftovers.\" The city \nordinance Bill violated makes it a misdemeanor to \"stand or sit on a public sidewalk \nwith a sign.\" To save money, the judge presiding over Bill's trial declares that Bill will \nhave a bench trial, rather than a jury trial. In this example, Bill can constitutionally \nattack the city ordinance for violating his freedom of speech because it prohibits \nholding a sign. The city ordinance appears unconstitutional on its face and as \napplied to Bill. Bill can also constitutionally attack his bench trial because he has the right to a jury trial. He could do this by making a motion to declare a mistrial, by \npetitioning an appellate court to halt the trial, or by appeal after a judgment of \nconviction. \nFigure 3.1 Constitutional Protections \nJudicial Review \nAs stated previously in this book, courts review statutes to ensure that they conform \nto the Constitution pursuant to their power of judicial review. Courts generally use different standards of review when constitutional protections are at stake. Typically, \na court balances the government's interest in regulating certain conduct against an \nindividual's interest in a constitutionally protected right. This balancing of interests \nvaries depending on the right at stake. If a constitutional right is fundamental, the \ncourt uses strict scrutiny to analyze the statute at issue. A statute that violates or \ninhibits fundamental constitutional protections is presumptively invalid and can be \nupheld only if it uses the least restrictive means possible. The government also must \nprove the statute is supported by a compelling government interest. When the \nchallenge is based on discrimination under the equal protection clause, the court \nmay use a lower standard, called the rational basis test. The rational basis test allows \na statute to discriminate if the statute is rationally related to a legitimate government \ninterest. Most constitutional rights are considered fundamental and trigger the strict \nscrutiny of the courts. \nExample of Strict Scrutiny \nReview the example regarding Bill, who was arrested essentially for standing and \nholding a sign. The US Supreme Court has held that freedom of speech is a \nfundamental right. Thus a court reviewing the ordinance in Bill's case will hold the \nordinance presumptively invalid, unless the government can demonstrate a \ncompelling interest in enacting it, and that it used the least restrictive means \npossible. The ordinance is broadly written to include all signs, and preventing \nindividuals from holding signs does not serve a compelling government interest, so \nthis difficult standard will probably result in the court holding the ordinance \nunconstitutional. \nThe Legislative Branch's Prohibited Powers \nThe legislative branch cannot punish defendants without a trial or enact retroactive \ncriminal statutes pursuant to the Constitution's prohibition against bill of attainder \nand ex post facto laws. Article 1, \u00a7 9, clause 3 states, in pertinent part, \"No Bill of Attainder or ex post facto Law shall be passed.\" The prohibition on bill of attainder \nand ex post facto laws is extended to the states in Article 1, \u00a7 10, clause 1: \n\"No State shall\u2026pass any Bill of Attainder, ex post facto Law.\" Many state \nconstitutions also prohibit ex post facto legislative action, mirroring the federal \nConstitution.Indiana Constitution, art. I, \u00a7 24, accessed October 4, 2010, \nhttp://www.law.indiana.edu/uslawdocs/inconst/art-1.html. \nBill of Attainder \nBill of attainder is when the legislative branch of government punishes the \ndefendant without a trial. The drafters of the Constitution wanted to ensure that \ncriminal defendants have a full and fair adjudication of their rights before the \ngovernment imposes punishment. Bill of attainder is usually accomplished by a \nstatute that targets an individual or group of individuals for some type of \ngovernment sanction. Bill of attainder protection enforces separation of powers by \neliminating the ability of the legislature to impose criminal punishment without a \ntrial conducted by the judicial branch.U.S. v. Brown, 381 U.S. 437 (1965), accessed \nOctober 2, 2010, http://supreme.justia.com/us/381/437/case.html. \nExample of Bill of Attainder \nBrianne is a member of the Communist party. Brianne applies for a job as a teacher \nat her local elementary school and is refused, based on this statute: \"Members of any \nsubversive group, including the Communist party, cannot hold public office nor \nteach for a public institution.\" Brianne could attack this statute as a bill of attainder. \nIts provisions, targeting members of the Communist party or any other subversive \ngroup, punish by eliminating career opportunities. The members targeted are \npunished without a trial or any adjudication of their rights. Thus this statute allows \nthe legislature to impose a sanction without a trial in violation of the Constitution's \nprohibited powers. Ex Post Facto \nAn ex post facto law punishes an individual retroactively, and severely encroaches \non notions of fairness. There are three types of ex post facto laws. First, a law is ex \npost facto if it punishes behavior that occurred before the law was in effect. Second, \nex post facto laws may increase the punishment for the offense after the crime \noccurred. Third, a law can be ex post facto if it increases the possibility of conviction \nafter the crime occurred. \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. \nThe state legislature amends this statute to include the killing of a fetus, with the \nexception of abortion. The amendment extends the application of the statute to all \ncriminal fetus killings that occurred before the statute was changed. This language \npunishes defendants for behavior that was legal when committed. If the state \nattempts to include this language, a court can strike the statute for violating the \nprohibition against ex post facto laws. \nExample of an Ex Post Facto Law Increasing Punishment Retroactively \nIn the preceding example about amending the murder statute, the state also amends \nthe statute to increase the penalty for murder to the death penalty. Before the \namendment, the penalty for murder was life in prison without the possibility of \nparole. The state cannot give the death penalty to defendants who committed murder \nbefore the statute was amended. This is considered ex post facto because it increases \nthe punishment for the offense after the crime is committed. \nExample of an Ex Post Facto Law Increasing the Possibility of Conviction \nRetroactively \nIn the preceding example, the state amends the murder statute to remove the statute \nof limitations, which is the time limit on prosecution. Before the amendment, the statute of limitations was fifty years. The state cannot prosecute defendants who \ncommitted 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 \nis committed. \nChanges That Benefit a Defendant Retroactively \nChanges that benefit a criminal defendant are not considered ex post facto and may \nbe applied retroactively. In the preceding example, if the state amended the murder \nstatute to shorten the statute of limitations, this change actually benefits defendants \nby making it more difficult to convict them. Thus this amendment would be \nconstitutional. \nEx Post Facto Applies Only to Criminal Laws \nEx post facto protection applies only to criminal laws. Laws that raise fees or taxes \nafter payment are civil rather than criminal in nature. Thus these retroactive \nincreases do not exceed governmental authority and are constitutional. \nFigure 3.2 The Constitution's Prohibited Powers KEY TAKEAWAYS \n\u2022 The Constitution protects individuals from certain statutes and certain governmental \n procedures. \n\u2022 A statute is unconstitutional on its face when its wording is unconstitutional. A statute is \nunconstitutional as applied when its enforcement is unconstitutional. \n\u2022 \nA court reviews a statute for constitutionality using strict scrutiny if the statute inhibits a \nfundamental constitutional right. Strict scrutiny means that the statute is presumptively \ninvalid, and the government must prove it is supported by a compelling government interest \nand uses the least restrictive means. Occasionally, a court reviews a statute for \nconstitutionality under the equal protection clause using the rational basis test, which means \nthat the statute is constitutional if rationally related to a legitimate government interest. \n\u2022 A bill of attainder is when the legislative branch punishes a defendant without a trial. Ex post \nfacto laws punish criminal defendants retroactively. \n\u2022 \nEx post facto laws punish defendants for acts that were not criminal when committed, \nincrease the punishment for a crime retroactively, or increase the chance of criminal \nconviction retroactively. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the end \nof the chapter. \n1. A public university raises tuition in the middle of the semester after students have already \npaid and sends all registered students a bill for \"fees past due.\" Does this violate the \nprohibition on ex post facto laws? Why or why not? \n2. Read Smith v. Doe, 538 U.S. 84 (2003). Why did the US Supreme Court hold that Alaska's \nMegan's Law is constitutional? The case is available at this \nlink: http://scholar.google.com/scholar_case?case=14879258853492825339&hl=en&as_sdt= \n2&as_vis=1&oi=scholarr. \n3. Read Stogner v. California, 539 U.S. 607 (2003). Why did the US Supreme Court hold that \nCalifornia's Sex Offender statute of limitations was unconstitutional? \n3.2 The Due Process and Equal Protection Clauses LEARNING OBJECTIVES \n1. Define the Bill of Rights. \n2. Define the principle of selective incorporation. \n3. Distinguish between substantive and procedural due process. \n4. Compare void for vagueness and overbreadth. \n5. Ascertain the purpose of the equal protection clause as it applies to criminal laws. \nAlthough the legislative branch's prohibited powers are in Article I of the Constitution, the Bill of \nRights contains most of the constitutional protections afforded to criminal defendants. The Bill of \nRights is the first ten amendments to the Constitution. In addition, the Fourteenth Amendment, \nwhich was added to the Constitution after the Civil War, has a plethora of protections for \ncriminal defendants in the due process and equal protection clauses. \nThe Bill of Rights was originally written to apply to the federal government. However, US \nSupreme Court precedent has held that any constitutional amendment that is implicit to due \nprocess's concept of ordered liberty must be incorporated into the Fourteenth Amendment's \nprotections and applied to the states.Duncan v. Louisiana, 391 U.S. 145 (1968), accessed October \n20, 2010, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=391&invol=145. This \ndoctrine is called selective incorporation, and it includes virtually all the constitutional \nprotections in the Bill of Rights. Thus although the original focus of the Bill of Rights may have \nbeen limiting the federal government, modern interpretations of the Constitution ensure that its \nprotections also extend to all levels of state and local government. \nThe Meaning of Due Process of Law \nThe due process clause states, \"No person shall\u2026be deprived of life, liberty, or \nproperty, without due process of law.\" The due process clause in the Fifth \nAmendment applies to federal crimes and federal criminal prosecutions. The federal \ndue process clause is mirrored in the Fourteenth Amendment, which guarantees due \nprocess of law in state criminal prosecutions. Most states have a similar provision in their constitutions.Missouri Constitution, art. I, \u00a7 10, accessed October 10, 2010, \nhttp://www.sos.mo.gov/pubs/missouri_constitution.pdf. \nSubstantive due process protects individuals from an unreasonable loss of \nsubstantive rights, such as the right to speak freely and the right to \nprivacy. Procedural due process protects individuals from being criminally punished \nwithout notice and an opportunity to be heard. Both substantive and procedural due \nprocesses ensure that individuals are not denied their life (capital punishment), \nliberty (incarceration), or property (forfeiture) arbitrarily. \nVoid for Vagueness \nVoid for vagueness challenges the wording of a statute under the due process clause. \nA statute is void for vagueness if it uses words that are indefinite or ambiguous. \nStatutes that are not precisely drafted do not provide notice to the public of exactly \nwhat 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, 882 \nF.2d 250 (1989), accessed October 6, \n2010, http://scholar.google.com/scholar_case?case=12667022335593752485&hl=e \nn&as_sdt=2&as_vis=1&oi=scholarr. With a void for vagueness challenge, the statute \nmust be so unclear that \"men of common intelligence must guess at its \nmeaning,\"Connally v. General Construction Co., 269 U.S. 385 (1926), accessed \nOctober 3, 2010, http://supreme.justia.com/us/269/385/case.html. which is an \nobjective standard. \nExample of a Statute That Is Void for Vagueness \nA state legislature enacts a statute that criminalizes \"inappropriate attire on public \nbeaches.\" Larry, a law enforcement officer, arrests Kathy for wearing a two-piece \nbathing suit at the beach because in his belief, women should wear one-piece bathing \nsuits. 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 \nnot be seen in public in bathing suits. Kathy and Sarah can attack the statute on its face and as applied as void for vagueness. The term \"inappropriate\" is unclear and \ncan 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 \nthe public adequate notice of what behavior is criminal. \nOverbreadth \nA statute is overbroad if it criminalizes both constitutionally protected and \nconstitutionally unprotected conduct. This challenge is different from void for \nvagueness, although certain statutes can be attacked on both grounds. An \noverbroad statute criminalizes too much and needs to be revised to target only \nconduct that is outside the Constitution's parameters. \nExample of an Overbroad Statute \nA state legislature enacts a statute that makes it criminal to photograph \"nude \nindividuals who are under the age of eighteen.\" This statute is probably overbroad \nand violates due process. While it prohibits constitutionally unprotected conduct, \nsuch 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 The Equal Protection Clause \nThe Fourteenth Amendment states in relevant part, \"nor shall any State\u2026deny to \nany person within its jurisdiction the equal protection of the laws.\" The equal \nprotection clause applies to the state government. State constitutions generally have \na similar provision.California Constitution, art. I, \u00a7 7, accessed October 4, \n2010, http://www.leginfo.ca.gov/.const/.article_1. The equal protection clause \nprevents the state government from enacting criminal laws that discriminate in an \nunreasonable and unjustified manner. The Fifth Amendment due process clause \nprohibits the federal government from discrimination if the discrimination is so \nunjustifiable that it violates due process of law.Bolling v. Sharpe, 347 U.S. 497 \n(1954), accessed October 4, \n2010, \nhttp://scholar.google.com/scholar_case?case=16234924501041992561&hl=en \n&as_sdt=2&as_vis=1&oi=scholarr. \nThe prohibition on governmental discrimination is not absolute; it depends on \nthe class of persons targeted for special treatment. In general, court scrutiny is \nheightened according to a sliding scale when the subject of discrimination is an \narbitrary classification. Arbitrary means random and often includes \ncharacteristics an individual is born with, such as race or national origin. The \nmost arbitrary classifications demand strict scrutiny, which means the criminal \nstatute must be supported by a compelling government interest. Statutes \ncontaining classifications that are not arbitrary must have a rational basis and \nbe supported by a legitimate government interest. \nCriminal statutes that classify individuals based on their race must be given strict \nscrutiny because race is an arbitrary classification that cannot be justified. Modern \ncourts do not uphold criminal statutes that classify based on race because there is no \ngovernment interest in treating citizens of a different race more or less \nharshly.Loving v. Virginia, 388 U.S. 1 (1967), accessed October 4, 2010, \nhttp://www.law.cornell.edu/supct/html/historics/USSC_CR_0388_0001_ZO \n.html. \nCriminal statutes that have a rational basis for discrimination and are supported by \na legitimate government interest can discriminate, and frequently do. Criminal \nstatutes that punish felons more severely when they have a history of criminal \nbehavior, for example, three-strikes statutes, are supported by the legitimate \ngovernment interests of specific and general deterrence and incapacitation. Note \nthat the basis of the discrimination, a criminal defendant's status as a convicted \nfelon, is rational, not arbitrary like race. Thus although these statutes discriminate, \nthey are constitutional pursuant to the equal protection clause. \nFigure 3.4 The Equal Protection Clause KEY TAKEAWAYS \n\u2022 The Bill of Rights is the first ten amendments to the Constitution and contains many \n protections for criminal defendants. \n\u2022 Selective incorporation applies most of the constitutional protections in the Bill of Rights to \nthe states. \n\u2022 \nSubstantive due process protects criminal defendants from unreasonable government \nintrusion on their substantive constitutional rights. Procedural due process provides criminal \ndefendants with notice and an opportunity to be heard before imposition of a criminal \npunishment. \n\u2022 \nA statute that is void for vagueness is so imprecisely worded that it gives too much discretion \nto law enforcement, is unevenly applied, and does not provide notice of what is criminal. A \nstatute that is overbroad includes constitutionally protected conduct and therefore \nunreasonably encroaches upon individual rights. \n\u2022 \nThe equal protection clause prevents the state government from enacting criminal laws that \narbitrarily discriminate. The Fifth Amendment due process clause extends this prohibition to \nthe federal government if the discrimination violates due process of law. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the end \nof the chapter. \n1. A local ordinance makes it a misdemeanor to dress in \"gang attire.\" Is this ordinance \nconstitutional? Why or why not? \n2. Read 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: \nhttp://scholar.google.com/scholar_case?case=14723025391522670978&hl=en&as_sdt= \n2&as_vis=1&oi=scholarr. \n3. Read Grayned v. City of Rockford, 408 U.S. 104 (1972). In Grayned, the US Supreme Court \nanalyzed an ordinance prohibiting individuals from willfully making a noise or disturbance on \ngrounds adjacent to a school building that disturbs the peace or good order of the school session. Did the Court hold that this ordinance was constitutional? Why or why not? The case \nis available at this link: http://supreme.justia.com/us/408/104/case.html. \n4. Read Justice Sandra Day O'Connor's concurring opinion in Lawrence v. Texas, 539 U.S. 558 \n(2003). Why did Justice O'Conner feel that Texas's sodomy law was unconstitutional? \n3.3 Freedom of Speech \nLEARNING OBJECTIVES \n1. Define speech under the First Amendment. \n2. Identify five types of speech that can be governmentally regulated in spite of the First \nAmendment. \n3. Ascertain the constitutional parameters for statutes that criminalize speech. \nThe First Amendment states, in relevant part, \"Congress shall make no law\u2026abridging the \nfreedom of speech.\" Although this language specifically targets federal Congress, the First \nAmendment has been held applicable to the states by virtue of selective incorporation.Gitlow v. \nNew York, 268 U.S. 652 (1925), accessed October 5, \n2010, http://supreme.justia.com/us/268/652/case.html. Most state constitutions have a similar \nprovision protecting freedom of speech.Illinois Constitution, art. I, \u00a7 4, accessed October 9, 2010, \nhttp://www.ilga.gov/commission/lrb/con1.htm. \nFreedom of speech has been the focus of countless judicial opinions. To summarize US Supreme \nCourt precedent, the word speech has been interpreted to cover virtually any form of expression, \nincluding verbal and written words, pictures, photographs, videos, and songs. First Amendment \nspeech also includes expressive conduct such as dressing a certain way,Tinker v. Des Moines \nIndependent Community School District, 393 U.S. 503 (1969), accessed October 8, \n201, http://supreme.justia.com/us/393/503/case.html. flag burning,Texas v. Johnson, 491 U.S. \n397 (1989), accessed October 5, \n2010, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=491&invol=397. and cross \nburning.R.A.V. v. St. Paul, 505 U.S. 377 (1992), accessed October 5, \n2010, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=505&invol=377. Exceptions to the First Amendment's Protection of Free Speech \nIn general, courts have examined the history of the Constitution and the policy \nsupporting freedom of speech when creating exceptions to its coverage. Modern \ndecisions afford freedom of speech the strictest level of scrutiny; only a compelling \ngovernment interest can justify an exception, which must use the least restrictive \nmeans possible.Sable Communis. of California, Inc. v. FCC, 492 U.S. 115 (1989), \naccessed October 5, 2010, http://supreme.justia.com/us/492/115/case.html. For the \npurpose of brevity, this book reviews the constitutional exceptions to free speech in \nstatutes criminalizing fighting words, incitement to riot, hate crimes, and \nobscenity. \nFigure 3.5 The First Amendment Fighting Words \nAlthough the First Amendment protects peaceful speech and assembly, if speech \ncreates a clear and present danger to the public, it can be regulated.Schenck v. \nU.S., 249 U.S. 47 (1919), accessed October 5, \n2010, http://supreme.justia.com/us/249/47/case.html. This includes fighting words, \n\"those which by their very utterance inflict injury or tend to incite an immediate \nbreach of the peace.\"Chaplinsky v. New Hampshire, 315 U.S. 568, 572 \n(1942), accessed October 6, 2010, \nhttp://caselaw.lp.findlaw.com/cgibin/getcase.pl?friend=wisbar&navby=case&court=\nus&vol=315&invol=568&pageno= 574. \nAny criminal statute prohibiting fighting words must be narrowly tailored and focus \non imminent rather than future harm. Modern US Supreme Court decisions indicate \na tendency to favor freedom of speech over the government's interest in regulating \nfighting words, and many fighting words statutes have been deemed unconstitutional \nunder the First Amendment or void for vagueness and overbreadth under the Fifth \nAmendment and Fourteenth Amendment due process clause.Lewis v. City of New \nOrleans, 415 U.S. 130 (1974), accessed October 7, \n2010, http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol= \n415&invol=130. \nExample of an Unconstitutional Fighting Words Statute \nGeorgia enacted the following criminal statute: \"Any person who shall, without \nprovocation, use to or of another, and in his presence\u2026opprobrious words or abusive \nlanguage, tending to cause a breach of the peace\u2026shall be guilty of a misdemeanor\" \n(Ga. Code \u00a7 26-6303). The US Supreme Court determined that this statute was \noverbroad, void for vagueness, and unconstitutional under the First \nAmendment.Gooding v. Wilson, 405 U.S. 518 (1972), accessed October 7, \n2010, http://scholar.google.com/scholar_case?case=3138831397470557431&hl=en \n&as_sdt=2&as_vis=1&oi=scholarr. The Court held that the dictionary definitions of \"opprobrious\" and \"abusive\" give \nthem greater reach than fighting words. Thus the statute is overbroad and does \nnot restrict its prohibition to imminent harm. Opprobrious and abusive have \nvarious meanings, so the statute is also subject to uneven enforcement and is void \nfor vagueness. As the Court stated, this language \"licenses the jury to create its \nown standard in each case.\"Gooding v. Wilson, 405 U.S. 518, 528 (1972), quoting \nHerndon v. Lowry, 301 U.S. 242, 263 (1937), accessed October 7, \n2010, http://scholar.google.com/scholar_case?case=3138831397470557431&hl=en \n&as_sdt=2&as_vis=1&oi=scholarr. \nIncitement to Riot \nIncitement to riot can also be regulated under the clear and present danger \nexception. Similar to fighting words, an incitement to riot statute must \nprohibit imminent lawless action.Brandenburg v. Ohio, 395 U.S. 444 (1969), \naccessed October 6, \n2010, http://supreme.justia.com/us/395/444/case.html. Statutes that prohibit \nsimple advocacy with no imminent threat or harm cannot withstand the First \nAmendment's heightened scrutiny. \nExample of an Unconstitutional Incitement to Riot Statute \nOhio enacted a statute that criminalized \"advocat[ing]\u2026the duty, necessity, or \npropriety of crime, sabotage, violence, or unlawful methods of terrorism as a means \nof accomplishing industrial or political reform\" and \"voluntarily assembl[ing] with \nany society, group or assemblage of persons formed to teach or advocate the \ndoctrines of criminal syndicalism\" (Ohio Rev. Code Ann. \u00a7 2923.13). A Ku Klux Klan \nleader was convicted under the statute after the media broadcast films of him leading \na KKK meeting. The US Supreme Court held, \"Accordingly, we are here confronted \nwith a statute which, by its own words and as applied, purports to punish mere \nadvocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action. [Footnote 4] Such a statute falls within the \ncondemnation of the First and Fourteenth Amendments.\"Brandenburg v. Ohio, 395 \nU.S. 444, 449 (1969), accessed October 6, \n2010, http://supreme.justia.com/us/395/444/case.html. \nHate Crimes \nMany states and the federal government have enacted hate crimes statutes. When \nhate crimes statutes criminalize speech, including expressive conduct, a First \nAmendment analysis is appropriate. When hate crimes statutes enhance a penalty \nfor criminal conduct that is not expressive, the First Amendment is not \napplicable.Wisconsin v. Mitchell, 508 U.S. 47 (1993), accessed October 7, 2010, \nhttp://www.law.cornell.edu/supct/html/92-515.ZO.html. \nHate crimes statutes punish conduct that is targeted at specific classifications of \npeople. These classifications are listed in the statute and can include race, ethnicity, \ngender, sexual orientation, or religion. Hate crimes statutes that criminalize speech \ncan be constitutional under the clear and present danger exception if they are \ntailored to apply only to speech or expressive conduct that is supported by the intent \nto intimidate.Virginia v. Black, 535 U.S. 343 (2003), accessed October 5, \n2010, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=0 \n1-1107. This can include speech and expressive conduct such as threats of imminent \nbodily injury, death, or cross burning. Hate crimes statutes must be narrowly \ndrafted, and cannot be void for vagueness or overbroad. \nHate crimes statutes that criminalize the content of speech, like a \nprejudicial opinion about a certain race, ethnicity, gender, sexual orientation, or \nreligion are unconstitutional under the First Amendment.R.A.V. v. St. Paul, 505 U.S. \n377 (1992), accessed October 5, \n2010, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=505&invol=3 \n77. Statutes of this nature have been held to have a \"chilling effect\" on free \nexpression by deterring individuals from expressing unpopular views, which is the \nessence of free speech protection. Although this type of 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 \na compelling government interest. \nExample of an Unconstitutional Statute Prohibiting Cross Burning \nSt. Paul, Minnesota, enacted the Bias-Motivated Crime Ordinance, which prohibited \nthe display of a symbol that a person knows or has reason to know \"arouses anger, \nalarm or resentment in others on the basis of race, color, creed, religion or gender\" \n(Ordinance, St. Paul, Minn., Legis. Code \u00a7 292.02 (1990)). In R.A.V. v. St. Paul, 505 \nU.S. 377 (1992), the US Supreme Court held that this ordinance was unconstitutional \non its face because regulation was based on the content of speech, with no additional \nrequirement for imminent lawless action. The Court held that the ordinance did not \nproscribe the use of fighting words (the display of a symbol) toward specific groups \nof individuals, which would be an equal protection clause challenge. Instead, the \nCourt determined that the statute prohibited the use of specific types of fighting \nwords, for example, words that promote racial hatred, and this is impermissible as \nviewpoint-based censorship. As the Court stated, \"[c]ontent-based regulations are \npresumptively invalid.\"R.A.V. v. St. Paul, 505 U.S. 377, 382 (1992), accessed October \n5, \n2010, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=505&invol=3 \n77. \nExample of a Constitutional Statute Prohibiting Cross Burning \nVirginia enacted a statute that makes it criminal \"for any person\u2026, with the intent of \nintimidating any person or group\u2026, to burn\u2026a cross on the property of another, a \nhighway or other public place\" (Va. Code Ann. \u00a7 18.2-423). The US Supreme Court \nheld this statute constitutional under the First Amendment because it did not single \nout cross burning indicating racial hatred, as the Minnesota cross-burning \nordinance did. The Court stated, \"Unlike the statute at issue in R. A. V., the Virginia \nstatute does not single out for opprobrium only that speech directed toward 'one of \nthe specified disfavored topics.' Id., at 391.\" It does not matter whether an individual burns a cross with intent to intimidate because of the victim's race, gender, or \nreligion, or because of the victim's \"political affiliation, union membership, or \nhomosexuality.\"Virginia v. Black, 535 U.S. 343, 359 (2003), accessed October 5, \n2010, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=0 \n1-1107. \nObscenity \nAnother exception to free speech is obscenity. Obscenity is usually conveyed by \nspeech, such as words, pictures, photographs, songs, videos, and live performances. \nHowever, obscenity is not protected speech under the First Amendment.Roth v. \nUnited States, 354 U.S. 476 (1957), accessed October 7, \n2010, http://supreme.justia.com/us/354/476/case.html. \nIn Miller v. California, 413 U.S. 15 (1973), the US Supreme Court devised a threepart \ntest to ascertain if speech is obscene and subject to government regulation. \nGenerally, speech is obscene if (1) the average person, applying contemporary \ncommunity standards would find that the work, taken as a whole, appeals to the \nprurient interest in sex; (2) it depicts sexual conduct specifically defined by the \napplicable state law in a patently offensive way; and (3) it lacks serious literary, \nartistic, political, or scientific value.Miller v. California, 413 U.S. 15 (1973), accessed \nOctober 7, \n2010, http://scholar.google.com/scholar_case?case=287180442152313659&hl=en& \nas_sdt=2&as_vis=1&oi=scholarr. \nExample of Speech That Is Not Obscene \nIn Jenkins v. Georgia, 418 U.S. 153 (1974), the US Supreme Court viewed the film \nCarnal Knowledge to determine whether the defendant could be constitutionally \nconvicted under an obscenity statute for showing it at a local theater. The Court \nconcluded that most of the film's sexual content was suggestive rather than explicit, \nand the only direct portrayal of nudity was a woman's bare midriff. Thus although a \njury convicted the defendant after viewing the film, the Court reversed the conviction, stating that the film does not constitute the hard-core pornography that \nthe three-part test for obscenity isolates from the First \nAmendment's protection. The Court stated, \"Appellant's showing of the film 'Carnal \nKnowledge' is simply not the 'public portrayal of hard core sexual conduct for its own \nsake, and for the ensuing commercial gain' which we said was punishable in Miller, \nId., at 35.\"Jenkins v. Georgia, 418 U.S. 153, 161 (1974), accessed October 7, 2010, \nhttp://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol= \n418&invol=153. \nNude Dancing \nStatutes that regulate nude dancing have also been attacked under the First \nAmendment. Although the US Supreme Court has ruled that nude dancing is \nconstitutionally protected expression, it has also upheld reasonable restrictions on \nnudity, such as requirements that nude dancers wear pasties and a g-string.City of \nErie et al v. Pap's A.M., 529 U.S. 277 (2000), accessed October 11, \n2010, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=9 \n8-1161. \nTable 3.1 Statutes Prohibiting Speech under a First Amendment Exception \nConduct \nProhibited \nPotential \nConstitutional \nChallenge \nNecessary Statutory Requirements \nFighting \nwords \nFirst Amendment, \nvague, overbreadth \nMust proscribe imminent lawless action, be narrowly \ndrafted, precise \nIncitement to \nriot \nFirst Amendment, \nvague, overbreadth \nMust proscribe imminent lawless action, be narrowly \ndrafted, precise; cannot prohibit simple advocacy \nHate speech First Amendment, \nvague, overbreadth \nMust be narrowly drafted, precise; must target speech \nsupported by the intent to intimidate; cannot be content \nbased without a compelling government interest Obscenity First Amendment, \nvague, overbreadth \nMust be narrowly drafted, precise; must target speech that \nappeals to a prurient interest in sex, depicts sex in a patently \noffensive way, lacks serious social value \nConduct \nProhibited \nPotential \nConstitutional \nChallenge \nNecessary Statutory Requirements \nNude dancing First Amendment, \nvague, overbreadth \nCan be reasonably restricted \nLAW AND ETHICS \nShould Depictions of Animal Cruelty Be Protected by the First Amendment? \nCongress enacted 18 U.S.C. \u00a7 48, which criminalizes commercial creation, sale, or \npossession of a visual or auditory depiction in which a living animal is intentionally \nmaimed, mutilated, tortured, wounded, or killed, if that conduct violates federal or \nstate law where the creation, sale, or possession takes place. In United States v. \nStevens, 552 U.S. 442 (2010), the US Supreme Court held that this statute is facially \noverbroad and violative of the First Amendment. Specifically, the Court held that \ndepictions of animal cruelty are entitled to First Amendment protection, and the \nstatute is presumptively invalid because it is content based. In addition, the Court \nstated that the government's interest in censoring this type of material is not \ncompelling enough to outweigh the prohibition on protected speech and that the \nstatute on its face included material that may have redeeming social value. The \nCourt's opinion is available at this link: \nhttp://www.law.cornell.edu/supct/html/08769.ZO.html. \n1. Do you think the First Amendment should protect material depicting animal cruelty? Why or \nwhy not? \n2. What are some possible consequences of criminalizing this type of speech? \nCheck your answers to both questions using the answer key at the end of the \nchapter. U.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 \ncase: \n(click to see video) \nKEY TAKEAWAYS \n\u2022 Speech under the First Amendment is any form of expression, such as verbal or written \nwords, pictures, videos, and songs. Expressive conduct, such as dressing a certain way, flag \n burning, and cross burning, is also considered First Amendment speech. \n\u2022 Five types of speech that can be governmentally regulated are fighting words, incitement to \nriot, hate speech, obscenity, and nude dancing. \n\u2022 \nStatutes that prohibit fighting words and incitement to riot must be narrowly drafted to \ninclude only speech that incites imminent unlawful action, not future harm or general \nadvocacy. Statutes that prohibit hate speech must be narrowly drafted to include only \nspeech that is supported by the intent to intimidate. Statutes that prohibit obscenity must \ntarget speech that appeals to a prurient interest in sex, depicts sexual conduct in a patently \noffensive way, and has little or no literary, artistic, political, or scientific value. Nude dancing \ncan be regulated as long as the regulation is reasonable, such as requiring dancers to wear \npasties and a g-string. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the end \nof the chapter. \n1. A state statute enhances the penalty for battery if the crime is committed \"because of the \nvictim's race.\" To prove race-biased intent, it is frequently necessary to admit evidence of the \ndefendant's statements indicating racial hatred and intolerance. Does this statute violate the \nFirst Amendment's free speech protection? Why or why not? Read the case on which this \nquestion is based, Wisconsin v. Mitchell, 508 U.S. 47 (1993). The case is available at this link: http://www.law.cornell.edu/supct/html/92-515.ZO.html. \n2. Read Reno v. American Civ. Liberties Union, 521 U.S. 844 (1997). This case reviews the \nconstitutionality of a federal statute regulating Internet activity to protect minors. Why did \nthe US Supreme Court hold that certain provisions of the federal Communications Decency \nAct of 1996 were unconstitutional? The case is available at this link: \nhttp://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=96-511. \n3. Read Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010). Did the US Supreme Court \nuphold a federal statute prohibiting aid to terrorist groups? Why or why not? \n3.4 The Right to Privacy \nLEARNING OBJECTIVES \n1. Ascertain the constitutional amendments that support a right to privacy. \n2. Ascertain three constitutionally protected individual interests that are included in the right to \nprivacy. \nThe federal Constitution does not explicitly protect privacy. However, several of the amendments \nin the Bill of Rights ensure and protect individual decision making and autonomy from \ngovernmental intrusion. Thus modern interpretations of the Constitution by the US Supreme \nCourt have created a right to privacy.Griswold v. Connecticut, 381 U.S. 479 (1965), accessed \nOctober 9, \n2010, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=381&invol=479. This \nright is considered fundamental and subject to strict scrutiny; only a compelling government \ninterest can justify a statute encroaching on its protections. Many states include an explicit right \nto privacy in their state constitutions.Hawaii Constitution, art. I, \u00a7 6, accessed October 9, 2010, \nhttp://hawaii.gov/lrb/con/conart1.html. \nThe Constitutional Amendments Protecting Privacy \nUS Supreme Court precedent has held that the right to privacy comes from the First, \nThird, Fourth, Fifth, Ninth, and Fourteenth Amendments. The First Amendment \nprotects the right to speak freely, assemble peacefully, and worship according to \nindividual choice. The Third Amendment prohibits the government from forcing individuals to quarter, house, or feed soldiers. The Fourth Amendment prevents the \ngovernment from unreasonably searching or seizing an individual or an individual's \nproperty. The Fifth and Fourteenth Amendments provide due process of law before \nthe government can deprive an individual of life, liberty, or property. The Ninth \nAmendment states that rights not explicitly set forth in the Constitution may still \nexist. Taken together, these amendments indicate that the Constitution was written \nto erect a barrier between individuals and an overly \nintrusive and regulatory government. In modern society, this right to privacy \nguarantees the right to use birth control, the right to an abortion, and the right to \nparticipate in consensual sexual relations. \nThe Right to Use Birth Control \nThe right to privacy was first established in the US Supreme Court case of Griswold \nv. Connecticut, 381 U.S. 479 (1965). In Griswold, the defendants, Planned \nParenthood employees, were convicted of prescribing birth control as accessories \nunder two Connecticut statutes that criminalized the use of birth control. The Court \nfound the statutes unconstitutional, holding that the First, Third, Fourth, Fifth, and \nNinth Amendments created a \"penumbra\" of unenumerated constitutional rights, \nincluding zones of privacy.Griswold v. Connecticut, 381 U.S. 479, 483 (1965), \naccessed October 9, \n2010, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=381&invol=4 \n79. The Court stated that marital privacy, especially, deserved the utmost protection \nfrom governmental intrusion. The Griswold case set the stage for other fundamental \nprivacy rights related to intimacy, including the right to an abortion and the right to \nconsensual sexual relations. \nThe Right to an Abortion \nThe right to an abortion was set forth in the seminal US Supreme Court case of Roe \nv. Wade, 410 U.S. 113 (1973). In Roe, which examined a Texas statute criminalizing \nabortion, the Court held that every woman has the right to a legal abortion through the first trimester of pregnancy. In the aftermath of the Roe decision, more than half \nof the nation's state laws criminalizing abortion became unconstitutional and \nunenforceable. The Court held that state government has a legitimate interest in \nprotecting a pregnant woman and her fetus from harm, which becomes a \ncompelling interest when she has reached full term. However, during the first \ntrimester, health concerns from abortion do not justify the erosion of a woman's \nright to make the abortion decision.Roe v. Wade, 410 U.S. 113, 162 (1973), accessed \nOctober 10, \n2010, http://www.law.cornell.edu/supct/html/historics/USSC_CR_0410_0113_ZO. \nhtml. The Court thereafter struck down the Texas antiabortion statute as overbroad \nunder the Fourteenth Amendment due process clause. Specifically, the Court held \nthat during the first trimester of pregnancy, the abortion decision must be left to the \npregnant woman and her attending physician.Roe v. Wade, 410 U.S. 113, 164 (1973), \naccessed October 10, \n2010, http://www.law.cornell.edu/supct/html/historics/USSC_CR_0410_0113_ZO. \nhtml. In a recent decision post-Roe, the Court upheld a federal statute criminalizing \npartial-birth abortion, on the grounds that it was not void for vagueness or overbroad \nunder the Fifth Amendment due process clause.Gonzales v. Carhart, 127 S. Ct. 1610 \n(2007), accessed October 11, \n2010, http://scholar.google.com/scholar_case?case=7079370668659431881&hl=en \n&as_sdt=2&as_vis=1&oi=scholarr. \nThe Right to Consensual Sexual Relations \nEven in the aftermath of Roe v. Wade, courts were reluctant to interfere with states' \ninterests in enacting and enforcing statutes that criminalized sexual conduct. \nIn Bowers v. Hardwick, 478 U.S. 186 (1986), the US Supreme Court upheld a \nGeorgia statute that made it a crime to engage in consensual sodomy.Bowers v. \nHardwick, 478 U.S. 186 (1986), accessed October 11, \n2010, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=478&invol=1 \n86. The Court stated that there is no fundamental right to engage in sodomy and that \nthe history of protecting marriage and family relationships should not be extended in this fashion.Bowers v. Hardwick, 478 U.S. 186, 194\u2013195 (1986), accessed October \n11, \n2010, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=478&invol=1 \n86. Many years later, the Court changed its stance and \noverruled 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 \ntwo men who were discovered engaging in sex in their bedroom during a law \nenforcement search for weapons. The Lawrence decision rested on the due process \nclause of the Fourteenth Amendment. The Court held that intimate choices are a \nform of liberty protected by the due process clause, whether or not consenting \nindividuals are married. The Court thereafter struck down the Texas sodomy statute \nbecause it was not justified by a sufficient government interest.Lawrence v. Texas, \n539 U.S. 558 (2003), accessed October 11, \n2010, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=0 \n2-102. \nExample of a Right to Privacy Analysis \nMost states have statutes criminalizing consensual incest, which is sexual intercourse \nbetween family members who cannot legally marry. If an individual attacks a \nconsensual incest statute as unconstitutional under the right to privacy, the court will \nbalance the state's interest in preventing harm to an infant, such as birth defects, \nwith an individual's interest in having consensual sexual intercourse with a family \nmember, using strict scrutiny. If the court finds that the government interest is \ncompelling, it can uphold the statute as long as it is not vague or overbroad. \nFigure 3.6 The Right to Privacy KEY TAKEAWAYS \n\u2022 The constitutional amendments supporting the right to privacy are the First, Third, Fourth, \n Fifth, Ninth, and Fourteenth Amendments. \n\u2022 The right to privacy in the Constitution protects an individual's right to use contraceptives, to \nreceive an abortion through the first trimester, and to engage in consensual sexual relations. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the end \nof the chapter. \n1. A state statute prohibits inmates in state prison from engaging in consensual sodomy. An \ninmate is prosecuted under the statute. How will a court determine whether this statute is \nconstitutional? Read the statute on which this exercise is based: California Penal Code \n\u00a7 286(e), http://law.onecle.com/california/penal/286.html. \n2. Read Planned Parenthood v. Casey, 505 U.S. 833 (1992). In Casey, Pennsylvania modified its \nabortion statute to include a twenty-four-hour waiting period and informed consent for \nminors. Did the US Supreme Court uphold the Pennsylvania abortion statute? \n3.5 The Right to Bear Arms \nLEARNING OBJECTIVE \n1. Ascertain the constitutional parameters of an individual's right to possess a handgun under \nthe Second Amendment. \nAlthough the federal Constitution specifically references a right to bear arms in the Second \nAmendment, the US Supreme Court has not interpreted this amendment in a significant fashion \nuntil recently. The Second Amendment provides \"[a] well regulated Militia, being necessary to \nthe security of a free state, the right of the people to keep and bear Arms, shall not be infringed.\" \nMany state constitutions have a similar provision.Eugene Volokh, \"State Constitutional Right to \nKeep and Bear Arms Provisions,\" UCLA website, accessed October 22, \n2010, http://www.law.ucla.edu/volokh/beararms/statecon.htm. In 2008, the US Supreme Court \nexplored the Second Amendment and its effect on weapons possession in a case attacking \nWashington, DC, firearms legislation.District of Columbia v. Heller, 128 S. Ct. 2783 (2008), \naccessed October 13, 2010, http://www.law.cornell.edu/supct/html/07-290.ZO.html. In District of Columbia v. Heller, 128 S. Ct. 2783 (2008), the Court affirmed the Court of Appeals \nfor the D.C. Circuit in striking provisions of the Firearms Control Regulations Act of 1975. The \nCourt struck the portions of this act that banned the possession of handguns and mandated that \nall legal firearms must be kept unloaded and disassembled while in the home. Although the \nDistrict Court held that the Second Amendment applies only to the militia, the US Supreme \nCourt emphasized that the Second Amendment is exercised individually and belongs to all \nAmericans. The Court also expanded previous interpretations of the Second Amendment to cover \nan individual's right to possess a usable handgun in the home for self-defense. The Heller case is \nunprecedented and is the first to address individual handgun possession under the Second \nAmendment. However, the Heller ruling is narrow and specifically excludes firearms restrictions \non felons, the mentally ill, firearm possession in or near schools or government buildings, and \nthe commercial sale of firearms. The Heller decision also fails to extend the Second \nAmendment's 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 \npossession issue by reviewing and rejecting as unconstitutional a handgun ban in the city of \nChicago, Illinois. In McDonald, the Court took the extra step of extending the Heller ruling to the \nstates, holding that the Second Amendment applies to the states via its selective \nincorporation into the due process clause. However, McDonald did not expand the ruling in \nHeller in other ways and reemphasized the Heller exceptions of firearms restrictions on felons, \nthe mentally ill, firearm possession in or near schools or government buildings, and the \ncommercial sale of firearms. \nExample of an Appropriate Restriction on Firearms \nDirk is a public middle-school janitor. Occasionally, with the permission of the \nprincipal, Dirk stays overnight in an outbuilding on campus when he works a \nparticularly late shift. Dirk wants to keep a handgun in the outbuilding, for \nprotection. If Dirk's state has a statute prohibiting the possession of a handgun \nwithin one mile of any public school, Dirk cannot keep a handgun in the outbuilding \nfor self-defense. Modern US Supreme Court precedent holds that the Second \nAmendment protects an individual's right to possess a handgun in the home for \nselfdefense. However, this precedent specifically exempts firearm possession near schools. Unless newer precedent expands the ruling to include firearm possession \nnear schools, the statute in Dirk's state is constitutional. \nFigure 3.7 The Second Amendment KEY TAKEAWAY \n\u2022 Pursuant to recent US Supreme Court precedent, the Second Amendment protects an \nindividual's right to possess a usable handgun in the home for self-defense. This protection \ndoes not cover felons, the mentally ill, firearm possession near schools and government \nbuildings, or the commercial sale of firearms. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the end \nof the chapter. \n1. A state court order forbids the defendant from possessing a handgun while on probation. \nThis makes it impossible for the defendant to resume his career as a police officer. How will \nthis court order be analyzed under recent US Supreme Court precedent interpreting the \nSecond Amendment? \n2. Read Lewis v. U.S., 445 U.S. 55 (1980). In Lewis, the defendant, a felon, was convicted under \na federal statute for possession of a firearm by a convicted felon. The defendant claimed that \nthis was unconstitutional because he was not represented by counsel during his trial on the \noriginal felony. The defendant never sought a pardon or reversal of his conviction for the \noriginal felony on appeal. Did the US Supreme Court uphold the defendant's conviction for \npossession of a firearm by a convicted felon? The case is available at this \nlink: http://scholar.google.com/scholar_case?case=1988023855177829800&hl=en&as_sdt=2 \n&as_vis=1&oi=scholarr. \n3. Read U.S. v. Lopez, 514 U.S. 549 (1995). In Lopez, the US Supreme Court held that a federal \nstatute prohibiting firearms near schools was unconstitutional because it regulated conduct \nthat had no effect on interstate commerce and thus exceeded Congress's authority under the \ncommerce clause. If a state enacts a similar statute, would this be constitutional under \nthe Second Amendment? \n3.6 Excessive Punishment \nLEARNING OBJECTIVES \n1. Compare an inhumane procedure with disproportionate punishment under the Eighth Amendment. \n2. Identify the most prevalent method of execution pursuant to the death penalty. \n3. Ascertain crime(s) that merit capital punishment. \n4. Identify three classifications of criminal defendants who cannot be constitutionally punished \nby execution. \n5. Define three-strikes laws, and ascertain if they constitute cruel and unusual punishment \npursuant to the Eighth Amendment. \n6. Ascertain the constitutionality of sentencing enhancements under the Sixth Amendment \nright to a jury trial. \nThe prohibition against cruel and unusual punishment comes from the Eighth Amendment, \nwhich states, \"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and \nunusual punishments inflicted.\" State constitutions often have similar provisions.Texas \nConstitution, art. I, \u00a7 13, accessed October 22, \n2010, http://www.statutes.legis.state.tx.us/SOTWDocs/CN/htm/CN.1.htm. Although the ban on \ncruel and unusual punishment relates directly to sentencing, which is a criminal procedure \nissue, criminal statutes mandating various penalties can be held unconstitutional under the \nEighth Amendment just like statutes offending the due process clause, so a brief discussion is \nrelevant to this chapter. Another facet of excessive punishment is a criminal sentencing \nenhancement that is based on facts not found beyond a reasonable doubt by a jury. This has been \nheld to violate the Sixth Amendment, which states, \"In all criminal prosecutions, the accused \nshall enjoy the right to a\u2026trial, by an impartial jury of the State and district wherein the crime \nshall have been committed.\" \nIn this section, three issues are analyzed and discussed: the infliction of cruel punishment, a \ncriminal sentence that is too severe, and a criminal sentence that is invalid under the right to a \njury trial. \nInfliction of Cruel Punishment \nIn general, the government must refrain from inflicting cruel or barbaric \npunishments on criminal defendants in violation of the Eighth Amendment. In particular, cases asserting that a criminal punishment is inhumane often focus on \ncapital punishment, which is the death penalty. \nSynopsis of the History of Capital Punishment \nThe death penalty has been used as a criminal punishment since the eighteenth \ncentury BC. American death penalty law is influenced by the British because the \ncolonists brought English common-law principles, including capital punishment, \nwith them to the New World. The first execution in America took place in 1608, for \nspying.Death Penalty Information Center, \"Introduction to the Death Penalty,\" \ndeathpenaltyinfo.org website, accessed October 17, \n2010, http://www.deathpenaltyinfo.org/part-i-history-death-penalty. Methods of \nexecution and capital crimes varied from colony to colony. In the late 1700s, a \nmovement to abolish the death penalty began, and in 1846 Michigan was the first \nstate to eliminate the death penalty for all crimes except treason.Death Penalty \nInformation Center, \"Introduction to the Death Penalty,\" deathpenaltyinfo.org \nwebsite, accessed October 17, 2010, http://www.deathpenaltyinfo.org/part-i-\nhistorydeath-penalty. Throughout the nineteenth and twentieth centuries, the \nUnited States fluctuated in its attitude toward capital punishment. Executions were \nat an all-time high in the 1930s.Death Penalty Information Center, \"Introduction to \nthe Death \nPenalty,\" deathpenaltyinfo.org website, accessed October 17, \n2010, http://www.deathpenaltyinfo.org/part-i-history-death-penalty. However, in \n1972, in the landmark decision of Furman v. Georgia, 408 U.S. 238 (1972), the US \nSupreme Court held that Georgia's death penalty statute, which gave the jury \ncomplete discretion to sentence a criminal defendant to death, was arbitrary and \ntherefore authorized cruel and unusual punishment in violation of the Eighth \nAmendment. This decision invalidated death penalty statutes in forty states. Later, in \n1976, the US Supreme Court case of Gregg v. Georgia, 428 U.S. 153 (1976), affirmed \nthe procedure of a bifurcated trial, separating the guilt phase from the penalty phase \nfor death penalty cases. Gregg also affirmed the death penalty's constitutionality under the Eighth Amendment. Currently, thirty -four states and the federal \ngovernment authorize the death penalty, while sixteen states and the District of \nColumbia do not.Death Penalty Information Center, \"States with and without the \nDeath Penalty,\" deathpenaltyinfo.org website, accessed October 14, \n2010, http://www.deathpenaltyinfo.org/states-and-without-death-penalty. \nInhumane Capital Punishment \nA claim that capital punishment is inhumane and therefore unconstitutional under \nthe Eighth Amendment focuses on the method of execution. Throughout the history \nof the death penalty, many methods of execution have been employed, including \nshooting, hanging, electrocution, the gas chamber, and lethal injection. At the time \nof this writing, the law is in a state of flux as to which methods of execution are \nconstitutional because many state and federal decisions have stricken virtually every \nmethod available. The current focus of the courts is lethal injection because it is one \nof the few methods that has not been condemned as unconstitutional. Most states \nthat authorize the death penalty use lethal injection as the primary method of \nexecution. In a recent statement on this issue, the US Supreme Court in Baze v. \nRees, 128 S. Ct. 1520 (2008), held that Kentucky's four-drug lethal injection \nprocedure was not cruel and unusual punishment under the Eighth Amendment. In \nother states, including Missouri and Tennessee, federal courts using different facts \nhave ruled the multidrug procedure unconstitutional.Death Penalty Information \nCenter, \"Lethal Injection: Constitutional Issue,\" deathpenaltyinfo.org website, \naccessed October 14, 2010, http://www.deathpenaltyinfo.org/lethal-injection-\nconstitutionalissue. It is impossible to predict the future of death penalty \nmethodology under the Eighth Amendment because each case will be decided based \non the circumstances presented. However, it is clear that the law in this area is ripe \nfor a definitive statement of constitutionality under the Eighth Amendment's cruel \nand unusual punishment clause. Disproportionate Punishment \nDisproportionate punishment is a different issue than inhumane punishment, but it \nis still within the parameters of the Eighth Amendment. Disproportionate \npunishment asserts that a criminal punishment is too severe for the crime. Two \ncriminal punishments garner many disproportionate punishment claims: capital \npunishment and punishment pursuant to three-strikes statutes. \nCapital Punishment as Disproportionate \nCapital punishment can be disproportionate because it is too severe for the crime or \nbecause it is too severe for the criminal defendant. \nExamples of Capital Punishment That Is Disproportionate to the Crime \nDeath is the ultimate punishment, so it must be equivalent to the crime the \ndefendant committed. Although the states and the federal government have \ndesignated many capital crimes that may not result in death, for example, treason \nthat does not lead to death, the US Supreme Court has confirmed that the death \npenalty is too severe for most crimes. In Coker v. Georgia, 433 U.S. 584 (1977), the \nCourt held that capital punishment is disproportionate for the crime of raping an \nadult 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 \nchild rape. Kennedy maintained the distinction between crimes committed against \nindividuals and crimes committed against the government, like treason. The only \ncrime against an individual that currently merits the death penalty is criminal \nhomicide, which is the unlawful killing of one human being by another. Criminal \nhomicide is discussed in detail in Chapter 9 \"Criminal Homicide\". \nFigure 3.8 Crack the Code Examples of Capital Punishment That Are Disproportionate to the Criminal \nDefendant \nRecent US Supreme Court precedent has targeted specific classifications of criminal \ndefendants for whom capital punishment is overly severe. Recent cases hold that \nthe death penalty is cruel and unusual punishment for a criminal defendant who \nwas a juvenile when the crime was committed,Roper v. Simmons, 543 U.S. 551 \n(2005), accessed October 15, \n2010, http://scholar.google.com/scholar_case?case=16987406842050815187&hl=e \nn&as_sdt=2&as_vis=1&oi=scholarr. who is mentally ill,Ford v. Wainwright, 477 \nU.S. 399 (1986), accessed October 15, \n2010, \nhttp://scholar.google.com/scholar_case?case=7904262174469084060&hl=en \n&as_sdt=2&as_vis=1&oi=scholarr. or has an intellectual disabilityAtkins v. \nVirginia, 536 U.S. 304 (2002), accessed October 15, \n2010, \nhttp://scholar.google.com/scholar_case?case=2043469055777796288&hl=en \n&as_sdt=2&as_vis=1&oi=scholarr. at the time of the scheduled execution. Although \nstates vary in their classifications of juveniles (discussed in detail in Chapter 6 \n\"Criminal Defenses, Part 2\"), the Eighth Amendment prohibits capital punishment \nfor an individual who was under eighteen years of age when he or she committed \ncriminal homicide. Mental illness could cover a variety of disorders, but the US \nSupreme Court has held that a criminal defendant has a constitutional right to a \ndetermination of sanity before execution.Ford v. Wainwright, 477 U.S. 399, 401 \n(1986), accessed October 15, \n2010, \nhttp://scholar.google.com/scholar_case?case=7904262174469084060&hl=en \n&as_sdt=2&as_vis=1&oi=scholarr. Intellectual disability is distinct from mental \nillness and is defined by the US Supreme Court as a substantial intellectual \nimpairment that impacts everyday life, and was present at the defendant's birth or \nduring childhood.Atkins v. Virginia, 536 U.S. 304, 318 (2002), accessed October 15, 2010, \nhttp://scholar.google.com/scholar_case?case=2043469055777796288&hl=en \n&as_sdt=2&as_vis=1&oi=scholarr. However, this standard is broad, so states vary \nin their legislative definitions of this classification.Death Penalty Information \nCenter, \n\"State Statutes Prohibiting the Death Penalty for People with Mental Retardation,\" \ndeathpenaltyinfo.org website, accessed October 14, \n2010, http://www.deathpenaltyinfo.org/state-statutes-prohibiting-death-\npenaltypeople-mental-retardation. \nExample of Capital Punishment That Is Inhumane and Disproportionate to the \nCrime and the Criminal Defendant \nJerry is sentenced to death for rape. The state death penalty statute specifies death \nby decapitation. While on death row, Jerry begins to hear voices and is diagnosed as \nschizophrenic by the prison psychiatrist. The state schedules the execution anyway. \nIn 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 \nalso disproportionate to the crime because execution is not a constitutional \npunishment for the crime of rape. Lastly, the death penalty statute \nis disproportionate to Jerry, the criminal defendant, because it is cruel and unusual \nto execute someone who is mentally ill. \nDisproportionate Punishment Pursuant to Three-Strikes Laws \nCalifornia was the first state to enact a \"three strikes and you're out\" law.Cal. Penal \nCode \u00a7 667, accessed October 15, \n2010, http://www.threestrikes.org/tslaw.html. Generally, three-strikes statutes \npunish habitual offenders more harshly when they commit a second or third felony \nafter an initial serious or violent felony.Cal. Penal Code \u00a7 667, accessed October 15, \n2010, http://www.threestrikes.org/tslaw.html. To date, California's three-strikes \nlaw is the toughest in the nation; it mandates a minimum twenty-five-year- to life \nsentence for felons convicted of a third strike. California enacted its three-strikes legislation after the kidnapping, rape, and murder of Polly Klaas by a habitual \noffender. Twenty-four states followed, indicating public support for the \nincapacitation of career criminals.Three Strikes and You're Out, \"States That Have \nThree Strikes Laws,\" threestrikes.org website, accessed October 15, \n2010, http://www.threestrikes.org/3strikestates.html. \nThree-strikes statutes vary, but those most likely to be attacked as disproportionate \ncount any felony as a strike after an initial serious or violent felony. Counting any \nfelony might levy a sentence of life in prison against a criminal defendant who \ncommits a nonviolent felony. However, the US Supreme Court has upheld lengthy \nprison sentences under three-strikes statutes for relatively minor second or third \noffenses, holding that they are not cruel and unusual punishment under the Eighth \nAmendment.Ewing v. California, 538 U.S. 11 (2003), accessed October 15, 2010, \nhttp://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=0 1-\n6978. \nFigure 3.9 The Eighth Amendment Sentencing that Violates the Right to a Jury Trial \nModern US Supreme Court precedent has expanded the jury's role in sentencing \npursuant to the Sixth Amendment. Although a detailed discussion of sentencing \nprocedure is beyond the scope of this book, a brief overview of sentencing and the \nroles of the judge and jury is necessary to a fundamental understanding of this \nimportant trial right, as is set forth in the following section. \nThe Role of the Judge and Jury in Sentencing Fact-Finding \nAs stated in Chapter 2 \"The Legal System in the United States\", the trier of fact \ndecides the facts and renders a decision on innocence or guilt using beyond a \nreasonable doubt as the standard for the burden of proof. The trier of fact in a \ncriminal prosecution is almost always a jury because of the right to a jury trial in the \nSixth Amendment. Occasionally, the defendant waives the right to a jury trial and \nhas a bench trial with a judge playing the role of trier of fact. Although the jury \ndetermines 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 \nexception to the jury's limited role in sentencing; a jury must decide whether to \nsentence the defendant to death at a separate hearing after the trial has concluded. \nGenerally, criminal sentencing takes place after the trial. Although the sentencing \nprocedure varies from state to state and from state to federal, a sentencing hearing is \ntypically held after guilt has been determined at trial or after a guilty plea. For many \nyears, judges have had almost exclusive control of sentencing. Although judges are \nrestricted by the fact-finding done at trial, they can receive new evidence at \nsentencing if it is relevant. For example, a judge is bound by a jury determination \nthat the defendant used a weapon when committing an armed robbery. However, \nthe judge can accept new evidence at sentencing that reveals the defendant had two prior convictions for armed robbery and can enhance the sentence under a habitual \noffender or three-strikes statute. \nSentencing Enhancement by Judges \nUntil recently, judges could use evidence received at the sentencing hearing to \nenhance a sentence beyond the statutory maximum by making a determination of \nthe new facts to a preponderance of evidence. However, in Apprendi v. New \nJersey, 530 U.S. 466 (2000), the US Supreme Court held that the right to a jury trial \nprohibits judges from enhancing criminal sentences beyond the statutory maximum \nbased on facts not determined by a jury beyond a reasonable doubt. \nIn Apprendi, the trial court enhanced the defendant's sentence beyond the statutory \nmaximum for possession of a firearm with an unlawful purpose under New Jersey's \nhate crimes statute. Although the jury did not determine that the defendant's crime \nwas a hate crime, the judge accepted new evidence at sentencing that indicated the \ndefendant's shooting into a residence was racially motivated. The US Supreme Court \nreversed the New Jersey Supreme Court, which upheld the sentencing procedure. \nThe Court held that other than evidence of a prior conviction, a judge cannot \nenhance a defendant's sentence beyond the statutory maximum unless there has \nbeen a factual determination by a jury beyond a reasonable doubt of the facts \nsupporting the sentencing enhancement. The Court based its holding on the Sixth \nAmendment right to a jury trial as incorporated and applied to the states through \nthe Fourteenth Amendment due process clause. \nPost-Apprendi, this holding was extended to federal sentencing guidelines in U.S. v. \nBooker, 543 U.S. 220 (2005). In Booker, a federal judge enhanced a sentence \nfollowing mandatory US Sentencing Guidelines, which permitted judges to find the \nsentencing enhancement facts using the preponderance of evidence standard. The \nUS Supreme Court ruled that the enhancement was invalid under the Sixth \nAmendment right to a jury trial and held that the US Sentencing Guidelines would be advisory only, never mandatory. Booker was based on Blakely v. Washington, \n542 U.S. 296 (2004), which invalidated a similar Washington State sentencing \nprocedure. \nPursuant to Apprendi, Booker, and Blakely, a criminal defendant's sentence is \nunconstitutional under the Sixth Amendment right to a jury trial if it is enhanced \nbeyond the statutory maximum by facts that were not determined by a jury beyond \na reasonable doubt. This premise applies in federal and state courts and also to \nguilty pleas rather than jury verdicts.Blakely v. Washington, 542 U.S. 296 \n(2004), accessed October 18, 2010, \nhttp://www.law.cornell.edu/supct/html/021632.ZO.html. \nExample of an Unconstitutional Sentence Enhancement \nRoss is tried and convicted by a jury of simple kidnapping. The maximum sentence \nfor simple kidnapping is five years. At Ross's sentencing hearing, the judge hears \ntestimony from Ross's kidnapping victim about the physical and mental torture Ross \ninflicted during the kidnapping. The victim did not testify at trial. The judge finds \nthat the victim's testimony is credible and rules that Ross used cruelty during the \nkidnapping by a preponderance of evidence. The judge thereafter enhances \nRoss's sentence to eight years, based on a statutory sentencing enhancement of \nthree years for \"deliberate cruelty inflicted during the commission of a crime.\" The \nthreeyear sentencing enhancement is most likely unconstitutional. Under the Sixth \nAmendment right to a jury trial, the jury must find deliberate cruelty beyond a \nreasonable doubt. A court can strike the enhancement of three years on appeal, \nand on remand, the trial court cannot increase the sentence beyond the five-year \nmaximum. \nFigure 3.10 The Sixth Amendment Figure 3.11 Diagram of Constitutional Defenses KEY TAKEAWAYS \n\u2022 An inhumane procedure punishes a defendant too severely for any crime. A disproportionate \n punishment punishes a defendant too severely for the crime he or she committed. \n\u2022 Lethal injection is the most prevalent method of execution pursuant to the death penalty. \n\u2022 Criminal homicide is the only crime against an individual that merits capital punishment. \n\u2022 Criminal defendants who were juveniles when the crime was committed, are mentally \nincompetent, or have an intellectual disability cannot be subjected to capital punishment. \n\u2022 \nThree-strikes laws punish criminal defendants more severely for committing a felony after \nthey have committed one or two serious or violent felonies. Three-strikes laws have been \nheld constitutional under the Eighth Amendment, even when they levy long prison sentences \nfor relatively minor felonies. \n\u2022 Sentencing enhancements beyond the statutory maximum are unconstitutional unless they \nare based on facts determined by a jury beyond a reasonable doubt under the Sixth \nAmendment right to a jury trial. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the end \nof the chapter. \n1. Andrew is sentenced to death for torture. In Andrew's state, there is an \"eye-for-an-eye\" \nstatute that mandates punishment that mimics the crime the defendant committed. \nPursuant to this statute, Andrew will be tortured to death. Is the state's eye-for-an-eye \nstatute constitutional under the Eighth Amendment? Why or why not? \n2. Read Lockyer v. Andrade, 538 U.S. 63 (2003). What was the defendant's sentence in Lockyer? \nWhat was the defendant's crime? Did the US Supreme Court hold that the defendant's \nsentence was constitutional under the Eighth Amendment? The case is available at this link: \nhttp://scholar.google.com/scholar_case?case=1810564739536423477&hl=en&as_sdt=2 \n&as_vis=1&oi=scholarr. \n3. Read Fierro v. Gomez, 77 F.3d 301 (1996). Did the US Court of Appeals for the Ninth Circuit \nhold that the gas chamber procedure in California was constitutional under the Eighth \nAmendment? The case is available at this link: http://scholar.google.com/scholar_case?case=26906922262871934&hl=en&as_sdt=2& \nas_vis=1&oi=scholarr. \n4. Read Gall v. U.S., 128 S. Ct. 586 (2007). In Gall, the federal judge departed from the US \nSentencing Guidelines and imposed a sentence of probation because the defendant had \nreformed and rejected his criminal lifestyle. Did the US Supreme Court uphold this sentence? \nWhy or why not? \n 3.7 End-of-Chapter Material \nSummary \nThe US Constitution protects criminal defendants from certain statutes and \nprocedures. State constitutions usually mirror the federal and occasionally provide \nmore protection to criminal defendants than the federal Constitution, as long as the \nstate constitutions do not violate federal supremacy. Statutes can be unconstitutional \nas written or as enforced and must be supported by a sufficient government interest. \nStatutes that punish without a trial (bills of attainder) or criminal statutes that are \napplied retroactively (ex post facto) are unconstitutional under Article 1 \u00a7\u00a7 9 and 10. \nOther constitutional protections are in the Bill of Rights, which is the first ten \namendments, and the Fourteenth Amendment, which contains the due process \nclause and the equal protection clause. \nThe due process clause prohibits the government from taking an individual's life, \nliberty, or property arbitrarily, without notice and an opportunity to be heard. \nStatutes that are vague or criminalize constitutionally protected conduct (overbroad) \nviolate due process. The Fifth Amendment due process clause applies to the federal \ngovernment, and the Fourteenth Amendment due process clause applies to the \nstates. The Fourteenth Amendment due process clause also selectively incorporates \nfundamental rights from the Bill of Rights and applies them to the states. Rights \nincorporated and applied to the states are the right to free speech, the right to \nprivacy, the right to bear arms, the right to be free from cruel and unusual \npunishment, and the right to a jury trial. The Fourteenth Amendment also contains the equal protection clause, which prevents the government from enacting statutes \nthat discriminate without a sufficient government interest. \nThe First Amendment protects speech, expression, and expressive conduct from \nbeing criminalized without a compelling government interest and a statute that uses \nthe least restrictive means possible. Some exceptions to the First Amendment are \nprecise statutes targeting fighting words, incitement to riot, hate crimes, obscenity, \nand nude dancing. The First, Third, Fourth, Fifth, Ninth, and Fourteenth \nAmendments also create a right to privacy that prevents the government from \ncriminalizing the use of birth control, abortion, or consensual sexual relations. \nThe Second Amendment protects an individual's right to possess a usable handgun in \nthe home for self-defense. This right is not extended to convicted felons, the mentally \nill, commercial sale of firearms, and firearm possession near schools and government \nbuildings. The Eighth Amendment protects criminal defendants from inhumane and \nexcessive punishments. The Sixth Amendment ensures that all facts used to extend a \ncriminal defendant's sentencing beyond the statutory maximum must be determined \nby a jury beyond a reasonable doubt. \nYOU BE THE LEGISLATIVE ANALYST \nYou are an expert on constitutional law. Your state's legislature has hired you to \nanalyze some proposed statutes to ensure that they are constitutional. Read each \nproposed statute and determine the following: (1) which part of the constitution is \nrelevant, (2) whether the statute is constitutional, and (3) your reasoning. Check \nyour answers using the answer key at the end of the chapter. \n1. The proposed statute increases penalties for overdue state income tax retroactively. Is the \nproposed statute constitutional? \n2. The proposed statute makes it a misdemeanor to display nude art in a public place. Is the \nproposed statute constitutional? \n3. The proposed statute enhances the sentence for rape by three years of imprisonment if the \ndefendant is infected with AIDS. Is the proposed statute constitutional? 4. The proposed statute prohibits a defendant with a conviction for any crime \ninvolving alcohol to possess a handgun in the home. Is the proposed statute constitutional? \n5. The proposed statute mandates fifteen years of solitary confinement in prison if the \ndefendant is convicted of forcible rape. Is the proposed statute constitutional? \nCases of Interest \n\u2022 South Dakota v. Asmussen, 668 N.W.2d 725 (2003), discusses void for vagueness \nand \noverbreadth: http://www.lexisone.com/lx1/caselaw/freecaselaw?action=OCLGetCas \neDetail&format= \nFULL&sourceID=beehfd&searchTerm=ejDa.ecea.aadj.eddQ&searchFlag=y&l1loc=F \n CLOW. \n\u2022 Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010), discusses the First \nAmendment: http://scholar.google.com/scholar_case?case=1077219466409633670 \n2&q= Christian+Legal+Society+v.+Martinez&hl=en&as_sdt=2,5. \n\u2022 \nU.S. v. Alvarez, 617 F.3d 1198 (2010), discusses freedom of speech: \nhttp://scholar.google.com/scholar_case?case=3332503989513069132&q= \nU.S.+v.+Alvarez&hl=en&as_sdt=2,5&as_ylo=2010. \n\u2022 Snyder v. Phelps, No. 09-751 (2011), discusses the First \nAmendment: http://www.law.cornell.edu/supct/html/09-751.ZO.html. \n\u2022 \nRobinson v. California, 370 U.S. 660 (1962), discusses cruel and unusual \npunishment: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=370&i \nnvol=660. \nArticles of Interest \n\u2022 Selective \nincorporation: http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/incorp.ht \n m \n\u2022 \nViolent video games and the First \nAmendment: http://www.huffingtonpost.com/2011/06/27/supreme-court-\nviolentvideo-games_n_884991.html \n\u2022 \nOhio abortion bill: http://abcnews.go.com/Politics/ohio-heartbeat-bill-\nabortionpaves-roe-wade -challenge/story?id=12876224 \u2022 Second Amendment and gun control: \nhttp://usgovinfo.about.com/od/guncontrol/Gun_Control \n_and_the_Second_Amendment.htm \n\u2022 Recent US Supreme Court case on three strikes and its application to juveniles: \nhttp://www.correctionsone.com/juvenile-offenders/articles/2050079- \nHigh-Court-Calif-can-apply-3-strikes-law-to-juveniles \nWebsites of Interest \n\u2022 First Amendment information: http://www.firstamendmentcenter.org/default.aspx \n\u2022 Hate crimes: \nhttp://www.fbi.gov/aboutus/investigate/civilrights/hate_crimes/hate_crimes \n\u2022 Death penalty information: http://www.deathpenaltyinfo.org \nStatistics of Interest \n\u2022 Hate crimes in the United States: http://www2.fbi.gov/ucr/hc2009/index.html \n\u2022 US executions pursuant to the death penalty: \nhttp://www.deathpenaltyinfo.org/number-executions -state-and-region- \n1976 \nAnswers to Exercises \nFrom Section 3.1 \"Applicability of the Constitution\" \n1. The public university can impose a retroactive tuition because this is not \na criminal statute or procedure and does not violate the prohibition against ex post \nfacto laws. \n2. In Smith, the US Supreme Court held that Alaska's Megan's Law statute was not \ncriminal, but part of a civil regulatory scheme, and thus did not violate the \nprohibition against ex post facto laws. \n3. In Stogner, the US Supreme Court held that California cannot eliminate a statute of \nlimitations and thereafter prosecute defendants who would have been time-barred \nfrom prosecution because this action violates the prohibition against ex post facto \nlaws. The Court held that this statute increased the chances of conviction \nretroactively. Answers to Exercises \nFrom Section 3.2 \"The Due Process and Equal Protection Clauses\" \n1. The ordinance is void for vagueness and overbroad, violating the First Amendment \nand the Fourteenth Amendment due process clause. The term gang attire is void for \nvagueness because it is imprecise, can mean different things to different people, \nfails to give notice of what is criminal, and gives too much discretion to law \nenforcement. The ordinance is overbroad because prohibiting all individuals from \nwearing gang attire probably includes First Amendment constitutionally protected \nconduct, such as wearing a gang-related Halloween costume or wearing a costume to \nact in a play or movie. \n2. In Smith, the US Supreme Court held that the flag misuse statute was void \nfor vagueness. The Court stated, \nBut there is no comparable reason for committing broad discretion to law \nenforcement officials in the area of flag contempt. Indeed, because display of \nthe flag is so common and takes so many forms, changing from one generation \nto another and often difficult to distinguish in principle, a legislature should \ndefine with some care the flag behavior it intends to outlaw.Smith v. Goguen, \n415 U.S. 566, 582 (1974), accessed October 3, \n2010, http://scholar.google.com/scholar_case?case=14723025391522670978 \n&hl=en&as_sdt=2&as_vis=1&oi=scholarr. \n3. In Grayned, the US Supreme Court held that the ordinance was not void for \nvagueness because, with fair warning, it criminalized actual or imminent and willful \ninterference with school activity. The Court also held that the statute was not \noverbroad because it prohibited only acts that \"materially interfered with \nschoolwork,\" which is not protected by the First Amendment. \n4. Justice O'Connor said that the Texas sodomy statute was unconstitutional pursuant \nto the equal protection clause. The statute only criminalized sodomy between \npersons of the same sex, so it targeted gay couples without a rational basis. \nAnswers to Exercises \nFrom Section 3.3 \"Freedom of Speech\" 1. The statute does not violate the First Amendment's free speech protection \nbecause battery is not speech and is not covered by the First Amendment. \n2. The US Supreme Court held that the provisions were unconstitutional under the First \nAmendment because they were vague and content based. The Act did not specifically \ndefine \"indecent\" communications, or demonstrate that offensive material lacks any \nvalue under the three-part test for obscenity set forth in Miller. \n3. The US Supreme Court upheld 18 U.S.C. \u00a7 2339B (a) (1) as applied. The Court ruled \nthat the federal government can prohibit aid to terrorist groups, even if it consists of \ntraining and advice on legal activities, without violating the First Amendment. \nAnswers to Exercises \nFrom Section 3.4 \"The Right to Privacy\" \n1. The court will probably analyze whether the statute is constitutional under the right \nto privacy and the equal protection clause. The right to privacy analysis will \nuse strict scrutiny because the right to privacy is fundamental. The state must \ndemonstrate a compelling state interest in regulating sex in prison. The state's \narguments will probably focus on maintaining integrity, safety, and security in the \ninstitution. Under the equal protection clause analysis, the state has to show \na legitimate state interest pursuant to the rational basis test because the category \ntargeted\u2014inmates in prison\u2014is rational, not arbitrary. \n2. The Court upheld the statute, even though this case was post-Roe v. Wade. The Court \nreaffirmed Roe, but imposed a new standard for abortion laws. The new standard \nanalyzes whether a state abortion law places an undue burden on a woman seeking an \nabortion. The Court held that the twenty-four-hour waiting period and informed \nconsent for minors do not place such a burden. The Court did strike a separate \nrequirement, which mandated husband notification before an abortion could take \nplace. \nAnswers to Exercises \nFrom Section 3.5 \"The Right to Bear Arms\" \n1. The court will uphold the order under the Second Amendment if the defendant was convicted of a felony. The recent US Supreme Court precedent \nin Heller and McDonald both exclude convicted felons from their holdings. However, \nif the defendant was convicted of a misdemeanor, the court has to determine \nwhether Heller and McDonald extend the Second Amendment's right to possess a \nusable handgun in the home for self-defense to a convicted police officer who wants \nto resume his career. \n2. The US Supreme Court upheld the conviction, stating that a defendant convicted \nunconstitutionally can and should challenge that conviction before owning or \npossessing a firearm. \n3. A state could criminalize firearm possession near schools because two recent US \nSupreme Court rulings (Heller and McDonald) both exempt firearms near schools \nfrom their protection of individual gun ownership and possession. \nAnswers to Exercises \nFrom Section 3.6 \"Excessive Punishment\" \n1. The eye-for-an-eye statute is unconstitutional because it mandates an inhumane \npunishment under the Eighth Amendment. Torture is too severe a punishment \nfor any crime. \n2. The defendant's sentence was two consecutive terms of twenty-five years to life in \nprison under California's three-strikes statute. The defendant's crime(s) were stealing \nfive videotapes from Kmart worth $84.70 on one occasion and stealing four \nvideotapes from Kmart worth $68.84 on another, with two previous strikes. The US \nSupreme Court upheld the sentence and denied the defendant's petition for habeas \ncorpus. \n3. The US Court of Appeals for the Ninth Circuit held that the gas chamber under \nCalifornia's protocol was cruel and unusual punishment in violation of the Eighth \nAmendment. \n4. The US Supreme Court reversed the US Court of Appeals for the Eighth Circuit, which \nheld that the sentence was unreasonable according to the US Sentencing Guidelines. \nThe Court reaffirmed that the Guidelines were advisory, but stated that the trial court \nhas great discretion in setting the sentence, as long as the basis of the sentence is \nexplained on the record. Answers to Law and Ethics Questions \n1. The categorization of some speech as outside the First Amendment's protection \ngenerally focuses on speech that can produce immediate or imminent harm or \nlawless action, like fighting words, or speech that is devoid of social value, \nlike obscenity. Depictions of animal cruelty probably fall within the second \ncategory. Whether you believe depictions of animal cruelty should be criminalized \ndepends on whether you feel another category should be added to the list. The US \nSupreme Court was reluctant to expand categorization, indicating that First \nAmendment protections far exceed government interests in content-based \nregulations. \n2. Some possible consequences of expanding categorization are the increase of \ngovernment censorship into areas that may have value, either literary, artistic, \npolitical, or scientific. Any time case precedent limits the First Amendment, \nindividual rights of expression are likewise inhibited, and the government's power to \nregulate and enact laws encroaching upon individual freedoms is enhanced. \nAnswers to You Be the Legislative Analyst \n1. (1) The ex post facto clause is relevant. (2) The statute is most \nlikely constitutional. (3) Even though the statute is retroactive, the statute is not a criminal law, but a tax increase, so there is no violation of the ex post facto clause. \n2. (1) The First Amendment and the due process clause in the Fourteenth \nAmendment are relevant. (2) The proposed statute is most likely unconstitutional. \n(3) The statute is probably void for vagueness and overbroad. The word \"art\" can be \ninterpreted differently by different people, so it leads to uneven application by law \nenforcement. The statute also fails to give the public notice of what is criminal. In \naddition, because the statute criminalizes the display of \"art,\" it is overbroad and \nincludes expressive works that may have artistic value and are protected under the \nFirst Amendment pursuant to the Miller test of obscenity. \n3. (1) The equal protection clause of the Fourteenth Amendment is relevant. (2) The \nproposed statute is most likely constitutional. (3) The statute discriminates against \ncriminal defendants infected with the AIDS virus. However, this classification has a \nrational basis and is not arbitrary. The state government has an interest in preventing \nthe spread of AIDS, so the statute will probably be upheld under the equal protection \nclause, even though it is discriminatory. \n4. (1) The Second Amendment and the due process clause in the Fourteenth \nAmendment are relevant. (2) The proposed statute is most likely unconstitutional. \n(3) The US Supreme Court has held that the Second Amendment, as applied to the \nstates through the Fourteenth Amendment, protects an individual's right to possess a \nusable handgun in the home for self-defense. Although the Court held that an \nexception could be made for convicted felons, the proposed statute covers any crime \nthat involves alcohol, including misdemeanors (such as misdemeanor DUI). Thus it is \noverbroad and encroaches on the Second Amendment's guarantee of the right to bear \narms. \n5. (1) The Eighth Amendment and the due process clause in the Fourteenth \nAmendment are relevant. (2) The proposed statute is most likely unconstitutional. \n(3) The proposed statute appears to be inhumane and excessive for the crime, which \nmakes it cruel and unusual punishment. \nChapter 4The Elements of a Crime Source: Image courtesy of Tara Storm. \nThus, an Olympic swimmer may be deemed by the community as a shameful \ncoward, or worse, for not rescuing a drowning child in the neighbor's pool, but she \nis not a criminal. \nState ex rel. Kuntz v. Thirteenth Jud. Dist., cited in Section 4 \"Duty to Act Based on \na Special Relationship\" \n4.1 Criminal Elements \nLEARNING OBJECTIVES \n1. List the elements of a crime. \n2. Define the criminal act element. \n3. Identify three requirements of criminal act. \n4. Describe an exception to the criminal act element. \n5. Ascertain three situations where an omission to act could be criminal. \n6. Distinguish between actual and constructive possession. \n7. Identify the criminal intent element required when possession is the criminal act. \nCrimes can be broken down into elements, which the prosecution must prove beyond a \nreasonable doubt. Criminal elements are set forth in criminal statutes, or cases in jurisdictions \nthat allow for common-law crimes. With exceptions, every crime has at least three elements: a \ncriminal act, also called actus reus; a criminal intent, also called mens rea; and concurrence \nof the two. The term conduct is often used to reflect the criminal act and intent elements. As \nthe Model Penal Code explains, \"'conduct' means an action or omission and its accompanying \nstate of mind\" (Model Penal Code \u00a7 1.13(5)). \nFigure 4.1 Criminal Code of Georgia Recall from Chapter 1 \"Introduction to Criminal Law\" that not all crimes require a bad result. If a \ncrime does require a bad result, the prosecution must also prove the additional elements of \ncausation and harm. \nAnother requirement of some crimes is attendant circumstances. Attendant circumstances are \nspecified factors that must be present when the crime is committed. These could include the \ncrime's methodology, location or setting, and victim characteristics, among others. \nThis chapter analyzes the elements of every crime. Chapter 7 \"Parties to Crime\" through Chapter \n13 \"Crimes against the Government\" analyze the elements of specific crimes, using a general \noverview of most states' laws, the Model Penal Code, and federal law when appropriate. \nExample of a Crime That Has Only Three Elements \nJanine gets into a fight with her boyfriend Conrad after the senior prom. She grabs \nConrad's car keys out of his hand, jumps into his car, and locks all the doors. When \nConrad strides over to the car, she starts the engine, puts the car into drive, and tries \nto run him down. It is dark and difficult for Janine to see, so Conrad easily gets out of \nher way and is unharmed. However, Janine is thereafter arrested and charged with \nattempted murder. In this case, the prosecution has to prove the elements of \ncriminal act, criminal intent, and concurrence for attempted murder. The \nprosecution does not have to prove causation or that Conrad was harmed because \nattempt crimes, including attempted murder, do not have a bad result requirement. \nAttempt and other incomplete or inchoate crimes are discussed in Chapter 8 \n\"Inchoate Offenses\". \nCriminal Act \nCriminal act, or actus reus, is generally defined as an unlawful bodily \nmovement.N.Y. Penal Law \u00a7 15.00, accessed October 25, \n2010, http://law.onecle.com/new-york/penal/PEN015.00_15.00.html. The criminal \nstatute, or case in jurisdictions that allow common-law crimes, describes the \ncriminal act element. Figure 4.2 Alabama Criminal Code \n \nThe Requirement of Voluntariness \nOne requirement of criminal act is that the defendant perform it voluntarily. In \nother words, the defendant must control the act. It would not serve the policy of \nspecific deterrence to punish the defendant for irrepressible acts. The Model Penal \nCode gives the following examples of acts that are not voluntary and, therefore, not \ncriminal: reflexes, convulsions, bodily movements during unconsciousness or sleep, \nconduct during hypnosis or resulting from hypnotic suggestion, or a bodily \nmovement that otherwise is not a product of the effort or determination of the actor, \neither conscious or habitual (Model Penal Code \u00a7 2.01 (2)). One voluntary act is \nenough to fulfill the voluntary act requirement. Thus if a voluntary act is followed by \nan involuntary one, the court may still impose criminal liability depending on the \ncircumstances.Govt. of Virgin Islands v. Smith, 278 F.2d 169 (1960), accessed \nOctober 26, 2010, http://openjurist.org/278/f2d/169/government-of-the-\nvirginislands-v-smith. \nExample of an Involuntary and Noncriminal Act \nPerry is hypnotized at the local county fair. The hypnotist directs Perry to smash a \nbanana cream pie into his girlfriend Shelley's face. Smashing a pie into a person's \nface is probably battery in most states, but Perry did not commit the act voluntarily, \nso he should not be convicted of a crime. Punishing Perry for battery would not \nspecifically deter Perry from performing the act again while hypnotized because he is \nnot in control of his behavior when experiencing this mental state. \nExample of a Voluntary Act Followed by a Nonvoluntary Act \nTimothy attends a party at a friend's house and consumes several glasses of red wine. \nTimothy then attempts to drive his vehicle home. While driving, Timothy passes out \nat the wheel and hits another vehicle, killing its occupant. Timothy can probably be convicted of one or more crimes in this situation. Timothy's acts of drinking several \nglasses of wine and then driving a vehicle are voluntary. Thus even though Timothy \ngot into a car accident while unconscious, his involuntary act was preceded by \nconscious, controllable, and voluntary action. A punishment in this instance could \nspecifically deter Timothy from drinking and driving on another occasion and is \nappropriate based on the circumstances. \nStatus as a Criminal Act \nGenerally, a defendant's status in society is not a criminal act. Status is who the \ndefendant is, not what the defendant does. Similar to punishment for an involuntary \nact, when the government punishes an individual for status, it is essentially targeting \nthat 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 \ndisproportionate to the defendant's behavior. \nIn Robinson v. California, 370 U.S. 660 (1962), the US Supreme Court held that it is \nunconstitutional as cruel and unusual punishment pursuant to the Eighth \nAmendment to punish an individual for the status of being a drug addict\u2014even if \nthe drugs to which the defendant is addicted are illegal. The Court compared drug \naddiction to an illness, such as leprosy or venereal disease. Punishing a defendant for \nbeing sick not only is inhumane but also does not specifically deter, similar to a \npunishment for an involuntary act. \nIf the defendant can control the actions at issue in spite of his or her status, the \ndefendant's conduct can be constitutionally criminalized and punished pursuant to \nthe Eighth Amendment. In Powell v. Texas, 392 U.S. 514 (1968), the US Supreme \nCourt upheld the defendant's conviction for \"drunk in public,\" in spite of the \ndefendant's status as an alcoholic. The Court held that it is difficult but not \nimpossible for an alcoholic to resist the urge to drink, so the behavior the statute \ncriminalized was voluntary. Also, the Court ruled that the state has an interest in \ntreating alcoholism and preventing alcohol-related crimes that could injure the defendant and others. Pursuant to Powell, statutes that criminalize voluntary acts \nthat arise from status are constitutional under the Eighth Amendment. \nExample of a Constitutional Statute Related to Status \nRefer to the example in Section 4 \"Example of a Voluntary Act Followed by a \nNonvoluntary Act\", where Timothy drives under the influence of alcohol and kills \nanother. A state statute that criminalizes killing another person while driving under \nthe influence is constitutional as applied to Timothy, even if Timothy is an alcoholic. \nThe state has an interest in treating alcoholism and preventing alcohol-related \ncrimes that could injure or kill Timothy or another person. Timothy's act of driving \nwhile intoxicated is voluntary, even if his status as an alcoholic makes it more \ndifficult for Timothy to control his drinking. Thus Timothy and other alcoholic \ndefendants can be prosecuted and punished for killing another person while driving \nunder the influence without violating the Eighth Amendment. \nThoughts as Criminal Acts \nThoughts are a part of criminal intent, not criminal act. Thoughts cannot be \ncriminalized. \nExample of Noncriminal Thoughts \nBrianna, a housecleaner, fantasizes about killing her elderly client Phoebe and \nstealing all her jewelry. Brianna writes her thoughts in a diary, documenting how she \nintends to rig the gas line so that gas is pumped into the house all night while Phoebe \nis sleeping. Brianna includes the date that she wants to kill Phoebe in her most \nrecent diary entry. As Brianna leaves Phoebe's house, her diary accidentally falls out \nof her purse. Later, Phoebe finds the diary on the floor and reads it. Phoebe calls the \npolice, gives them Brianna's diary, and insists they arrest Brianna for attempted \nmurder. Although Brianna's murder plot is sinister and is documented in her diary, \nan arrest is improper in this case. Brianna cannot be punished for her thoughts \nalone. If Brianna took substantial steps toward killing Phoebe, an attempted murder charge \nmight be appropriate. However, at this stage, Brianna is only planning a crime, not \ncommitting a crime. Phoebe may be able to go to court and get a restraining order \nagainst Brianna to prevent her from carrying out her murder plot, but Brianna \ncannot be incapacitated by arrest and prosecution for attempted murder in this case. \nOmission to Act \nAn exception to the requirement of a criminal act element is omission to act. \nCriminal prosecution for a failure to act is rare because the government is reluctant \nto compel individuals to put themselves in harm's way. However, under certain \nspecific 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. \nPenal Law \u00a7 15.00, accessed October 25, 2010, \nhttp://law.onecle.com/newyork/penal/PEN015.00_15.00.html. This legal duty to \nact becomes an element of the crime, and the prosecution must prove it beyond a \nreasonable doubt, along with proving the defendant's inaction under the \ncircumstances. Failure or omission to act is only criminal in three situations: (1) \nwhen there is a statute that creates a legal duty to act, (2) when there is a contract \nthat creates a legal duty to act, or (3) when there is a special relationship \nbetween the parties that creates a legal duty to act. Legal duties to act vary from \nstate to state and from state to federal. \nDuty to Act Based on a Statute \nWhen a duty to act is statutory, it usually concerns a government interest that is \nparamount. Some common examples of statutory duties to act are the duty to file \nstate or federal tax returns,26 U.S.C. \u00a7 7203, accessed October 25, \n2010, http://www.law.cornell.edu/uscode/26/usc_sec_26_00007203----000.html. \nthe duty of health-care personnel to report gunshot wounds,Fla. Stat. Ann. \n\u00a7 790.24, accessed October 25, 2010, http://law.onecle.com/florida/crimes/790.24.html. and the duty to report \nchild abuse.Ky. Rev. Stat. Ann. \u00a7 620.030, accessed October 25, 2010, \nhttp://www.lrc.ky.gov/krs/620-00/030.pdf. \nFigure 4.3 Kentucky Revised Statutes \n \nAt common law, it was not criminal to stand by and refuse to help someone in \ndanger. Some states supersede the common law by enacting Good Samaritan \nstatutes that create a duty to assist those involved in an accident or emergency \nsituation. Good Samaritan statutes typically contain provisions that insulate the \nactor from liability exposure when providing assistance.Minnesota Code \u00a7 604A.01, \naccessed October 25, \n2010, http://law.justia.com/minnesota/codes/2005/595/604a-s01.html. \nFigure 4.4 Minnesota Good Samaritan 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 \nliability of a Good Samaritan: \n(click to see video) \nDuty to Act Based on a Contract \nA duty to act can be based on a contract between the defendant and another party. \nThe most prevalent examples would be a physician's contractual duty to help a \npatient or a lifeguard's duty to save someone who is drowning. Keep in mind that \nexperts who are not contractually bound can ignore an individual's pleas for help \nwithout committing a crime, no matter how morally abhorrent that may seem. For example, an expert swimmer can watch someone drown if there is no statute, \ncontract, or special relationship that creates a legal duty to act. \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 \nspecial relationships are parent-child, spouse-spouse, and employer-employee. \nOften, the rationale for creating a legal duty to act when people are in a special \nrelationship is the dependence of one individual on another. A parent has the \nobligation by law to provide food, clothing, shelter, and medical care for his or her \nchildren, because children are dependent on their parents and do not have the ability \nto procure these items themselves. In addition, if someone puts another person in \nperil, there may be a duty to rescue that person.State ex rel. Kuntz v. Thirteenth Jud. \nDist., 995 P.2d 951 (2000), accessed October 25, \n2010, http://caselaw.findlaw.com/mt-supreme-court/1434948.html. Although this \nis not exactly a special relationship, the victim may be dependent on the person who \ncreated the dangerous situation because he or she may be the only one present and \nable to render aid. On a related note, some jurisdictions also impose a duty to \ncontinue to provide aid, once aid or assistance has started.Jones v. U.S., 308 F.2d \n307 (1962), accessed October 25, \n2010, http://scholar.google.com/scholar_case?case=14703438613582917232&hl=en \n&as_sdt=2002&as_vis=1. Similar to the duty to rescue a victim the defendant has \nput in peril, the duty to continue to provide aid is rooted in the victim's dependence \non the defendant and the unlikely chance that another person may come along to \nhelp once the defendant has begun providing assistance. \nExample of a Failure to Act That Is Noncriminal \nRecall the example from Chapter 1 \"Introduction to Criminal Law\", Section 1.2.1 \n\"Example of Criminal Law Issues\", where Clara and Linda are shopping together and \nClara stands by and watches as Linda shoplifts a bra. In this example, Clara does not \nhave a duty to report Linda for shoplifting. Clara does not have a contractual duty to \nreport a crime in this situation because she is not a law enforcement officer or security guard obligated by an employment contract. Nor does she have a special \nrelationship with the store mandating such a report. Unless \na statute or ordinance exists to force individuals to report crimes committed in their \npresence, which is extremely unlikely, Clara can legally observe Linda's shoplifting \nwithout reporting it. Of course, if Clara assists Linda with the shoplifting, she has \nthen performed a criminal act or actus reus, and a criminal prosecution is \nappropriate. \nExample of a Failure to Act That Is Criminal \nPenelope sta nds on the shore at a public beach and watches as a child drowns. If \nPenelope's state has a Good Samaritan law, she may have a duty to help the child based \non a statute. If Penelope is the lifeguard, she may have a duty to save the child based \non a contract. If Penelope is the child's mother, she may have a duty to provide \nassistance based on their special relationship. If Penelope threw the child in the ocean, \nshe may have a duty to rescue the child she put in peril. If Penelope is just a bystander, \nand no Good Samaritan law is in force, she has no duty to act and cannot be criminally \nprosecuted if the child suffers harm or drowns. Possession as a Criminal Act \nAlthough it is passive rather than active, possession is still considered a criminal act. \nThe most common objects that are criminal to possess are illegal contraband, drugs, \nand weapons. There are two types of possession: actual possession and constructive \npossession. 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 \ndefendant's person, but is within the defendant's area of control, such as inside a \nhouse or automobile with the defendant.State v. Davis, 84 Conn. App. 505 (2004), \naccessed February 13, \n2011, http://scholar.google.com/scholar_case?case=12496216636522596448&hl=en \n&as_sdt=2&as_vis=1&oi=scholarr. More than one defendant can be in possession of \nan object, although this would clearly be a constructive possession for at least one of \nthem. Because it is passive, possession should be knowing, meaning the defendant is aware \nthat he or she possesses the item.Connecticut Jury Instructions No. 2.11-1, accessed \nFebruary 13, 2011, http://www.jud.ct.gov/ji/criminal/part2/2.11-1.htm. As the \nModel Penal Code states in \u00a7 2.01(4), \"[p]ossession is an act, within the meaning of \nthis Section, if the possessor knowingly procured or received the thing possessed or \nwas aware of his control thereof for a sufficient period to have been able to terminate \nhis possession.\" In the vast majority of states, a statute permitting a conviction for \npossession without this knowledge or awareness lacks the criminal intent element \nand would be unenforceable. \nExample of an Unenforceable Possession Statute \nA state has a criminal statute that prohibits \"being within 100 feet of any quantity of \nmarijuana.\" Ricardo sits next to Jean on the subway. A law enforcement officer \nsmells marijuana and does a pat-down search of Jean. He discovers that Jean has a \nlarge baggie of marijuana in his jacket pocket and arrests Jean and Ricardo for \nmarijuana possession. Ricardo was within one hundred feet of marijuana as \nprohibited by the statute, but Ricardo should not be prosecuted for marijuana \npossession. 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 \nfor possession, and the state's possession statute should not be enforced against him. \nKEY TAKEAWAYS \n\u2022 The elements of a crime are criminal act, criminal intent, concurrence, causation, harm, and \nattendant circumstances. Only crimes that specify a bad result have the elements of \n causation and harm. \n\u2022 Criminal act is usually an unlawful bodily movement that is defined in a statute, or a case in \njurisdictions that allow common-law crimes. \n\u2022 The criminal act must be voluntary and cannot be based solely on the status of the \ndefendant or the defendant's thoughts. \n\u2022 An exception to the criminal act element is omission to act. \u2022 \nOmission to act could be criminal if there is a statute, contract, or special relationship that \ncreates a legal duty to act in the defendant's situation. \n\u2022 Actual possession means that the item is on or very near the defendant's person. \nConstructive possession means that the item is within the defendant's control, such as inside \na house or vehicle with the defendant. \n\u2022 In most states, the defendant must be aware that he or she possesses the item to be \nconvicted of possession. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the end \nof the chapter. \n1. Jacqueline is diagnosed with epilepsy two years after receiving her driver's license. While \ndriving to a concert, Jacqueline suffers an epileptic seizure and crashes into another vehicle, \ninjuring both of its occupants. Can Jacqueline be convicted of a crime in this situation? Why \nor why not? \n2. Read Oler v. State, 998 S.W.2d 363 (1999). In Oler, the defendant was convicted of \npossession of a controlled substance by misrepresentation. The defendant solicited and \nreceived prescriptions for Dilaudid, a controlled substance, from four different physicians \nwithout informing them that he already had a prescription for Dilaudid. The defendant \nappealed, arguing that he had no legal duty to disclose his previous receipt of the drug to the \nphysicians, and was therefore unlawfully punished for an omission to act. Did the Texas \nCourt of Appeals uphold the defendant's conviction? Why or why not? The case is available \nat this link: http://scholar.google.com/scholar_case?case=460187562193844690&q= \n998+S.W.2d+363&hl=en&as_sdt=10000000000002. \n3. Read Staples v. U.S., 511 U.S. 600 (1994). In Staples, the defendant was convicted of \npossession of an unregistered automatic weapon in violation of the National Firearms Act. \nThe defendant claimed the conviction was improper because the prosecution did not prove \nthat he knew the weapon was automatic, and the prosecution must prove this knowledge to \nconvict under the statute. Did the US Supreme Court reverse the defendant's conviction? \nWhy or why not? \n4.2 Criminal Intent LEARNING OBJECTIVES \n1. Describe one important function of criminal intent. \n2. List the three common-law criminal intents, ranking them in order of culpability. \n3. Compare specific and general intent. \n4. Describe an inference that makes it easier for the prosecution to prove a general intent \ncrime. \n5. Differentiate between motive and criminal intent. \n6. List and define the Model Penal Code mental states, ranking them in order of culpability. \n7. Identify an exception to the requirement that every crime contain a criminal intent element. \n8. Explain how transferred intent promotes justice. \n9. Describe the circumstances that give rise to vicarious criminal liability. \n10. Define concurrence of criminal act and intent. \nAlthough there are exceptions that are discussed shortly, criminal intent or mens rea is an \nessential element of most crimes. Under the common law, all crimes consisted of an act carried \nout with a guilty mind. In modern society, criminal intent can be the basis for fault, and \npunishment according to intent is a core premise of criminal justice. As stated in Chapter 1 \n\"Introduction to Criminal Law\", grading is often related to the criminal intent element. Crimes \nthat have an \"evil\" intent are malum in se and subject the defendant to the most severe \npunishment. Crimes that lack the intent element are less common and are usually graded lower, \nas either misdemeanors or infractions. Figure 4.5 New York Penal Law States and the federal government vary in their approach to defining criminal intent, and each \njurisdiction describes the criminal intent element in a criminal statute, or case, in jurisdictions \nthat allow common-law crimes. In this section, common-law definitions of criminal intent are \nexplored, along with definitions of the criminal mental states in the Model Penal Code. \nCommon-Law Criminal Intent \nThe common-law criminal intents ranked in order of culpability are malice \naforethought, specific intent, and general intent. Statutes and cases use different \nwords to indicate the appropriate level of intent for the criminal offense, so what \nfollows is a basic description of the intent definitions adopted by many jurisdictions. \nMalice Aforethought \nMalice aforethought is a special common-law intent designated for only one \ncrime: murder. The definition of malice aforethought is \"intent to kill.\" Society \nconsiders intent to kill the most evil of all intents, so malice aforethought crimes \nsuch as first- and second-degree murder generally mandate the most severe of \npunishments, including the death penalty in jurisdictions that allow for it. Malice \naforethought and criminal homicide are discussed in detail in Chapter 9 \"Criminal \nHomicide\". \nSpecific Intent \nSpecific intent is the intent with the highest level of culpability for crimes other \nthan murder. Unfortunately, criminal statutes rarely describe their intent element as \n\"specific\" or \"general,\" and a judge may be required to define the level of intent \nusing the common law or a dictionary to explain a word's ordinary meaning. \nTypically, specific intent means that the defendant acts with a more sophisticated \nlevel of awareness.Connecticut Jury Instructions No. 2.3-1, accessed February 14, \n2011, http://www.jud.ct.gov/ji/criminal/part2/2.3-1.htm. Crimes that require \nspecific intent usually fall into one of three categories: either the defendant intends \nto cause a certain bad result, the defendant intends to do something more than commit the criminal act, or the defendant acts with knowledge that his or her \nconduct is illegal, which is called scienter. \nExample of Specific Intent to Bring about a Bad Result \nA state statute defines mayhem as \"physical contact with another, inflicted with the \nintent to maim, disfigure, or scar.\" This statute describes a specific intent crime. To \nbe guilty of mayhem under the statute, the defendant must inflict the physical \ncontact with the intent of causing the bad result of maiming, disfigurement, or \nscarring. If the prosecution cannot prove this high-level intent, the defendant may \nbe acquitted (or charged and convicted of a lower-level intent crime like battery). \nSo if Pauline says, \"It's time to permanently mess up that pretty face,\" and thereafter \ntakes out a razor and slices Peter's cheek with it, Pauline might be found guilty of \nmayhem. On the other hand, if Pauline slaps Peter while he is shaving without \nmaking the comment, and the razor bites into his cheek, it is more challenging to \nprove that she intended a scarring, and Pauline might be found guilty only of \nbattery. \nExample of Specific Intent to Do More than the Criminal Act \nA state statute defines theft as \"a permanent taking of property belonging to \nanother.\" This statute describes a specific intent crime. To be guilty of theft under \nthe statute, the defendant must intend to do more than \"take the property of \nanother,\" which is the criminal act. The defendant must also intend to keep the \nproperty permanently. \nSo if Pauline borrows Peter's razor to shave her legs, she has \"taken the property of \nanother,\" but she has not committed theft for the simple reason that she intends to \nreturn the property after use. Example of Scienter \nAlthough the terms mens rea and scienter are sometimes used interchangeably, \nmany jurisdictions define scienter as knowledge that an act is illegal. Scienter can be \nthe basis of specific intent in some statutes. So a statute that makes it a crime to \n\"willfully file a false tax return\" may require knowledge that the tax return includes \nfalse information and that it will be unlawful to file it.U.S. v. Pompanio, 429 U.S. 10 \n(1976), accessed October 28, \n2010, http://supreme.justia.com/us/429/10/case.html. If the prosecution fails \nto prove beyond a reasonable doubt that the defendant knew his or her conduct \nwas illegal, this could nullify scienter, and the prosecution cannot prove specific \nintent. \nGeneral Intent \nGeneral intent is less sophisticated than specific intent. Thus general intent crimes \nare easier to prove and can also result in a less severe punishment. A basic definition \nof general intent is the intent to perform the criminal act or actus reus. If the \ndefendant acts intentionally but without the additional desire to bring about a \ncertain result, or do anything other than the criminal act itself, the defendant has \nacted with general intent.People v. McDaniel, 597 P.2d 124 (1979), accessed \nFebruary 14, \n2011, http://scholar.google.com/scholar_case?case=8266915507346002022&hl=en \n&as_sdt=2&as_vis=1&oi=scholarr. \nInference of General Intent \nIntent is a notoriously difficult element to prove because it is locked inside the \ndefendant's mind. Ordinarily, the only direct evidence of intent is a defendant's \nconfession, which the government cannot forcibly obtain because of the Fifth \nAmendment privilege against self-incrimination. Witnesses who hear the defendant \nexpress intent are often unable to testify about it because of evidentiary rules prohibiting hearsay. However, many jurisdictions allow an inference of general \nintent based on the criminal act.Commonwealth v. Ely, 444 N.E.2d 1276 (1983), \naccessed February 13, \n2011, http://scholar.google.com/scholar_case?case=369554378994187453&hl=en& \nas_sdt=2&as_vis=1&oi=scholarr. In essence, if the jury accepts the inference, the \nprosecution does not have the burden of proving intent for a general intent crime. \nExample of a General Intent Crime and an Inference of Intent \nA state statute defines battery as \"intentional harmful or offensive physical contact \nwith another.\" This statute describes a general intent crime. To be guilty of battery \nunder the statute, the defendant must only intend the harmful or offensive contact. \nThe 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 \nthe physical contact is illegal. \nIf Addie balls up her fist and punches Eddie in the jaw after Eddie calls her a \"stupid \nidiot,\" Addie has probably committed battery under the statute. A prosecutor could \nprove that Addie committed the act of harmful or offensive contact using Eddie's \ntestimony and a physician's report. The jury could thereafter be instructed to \"infer \nintent from proof of the act.\" If the jury accepts the inference and determines that \nAddie committed the criminal act, the jury could find Addie guilty of battery without \nadditional evidence of intent. \nFigure 4.6 Common Law Intents Motive \nIntent should not be confused with motive, which is the reason the defendant \ncommits the criminal act or actus reus. Motive can generate intent, support a \ndefense, and be used to determine sentencing. However, motive alone does not \nconstitute mens rea and does not act as a substitute for criminal intent. \nExample of Motive \nIsabella, a housewife with no criminal record, sits quietly in court waiting to hear \nthe jury verdict in a trial for the rape of her teenage daughter by Ignatius. Ignatius \nhas been convicted of child rape in three previous incidents. The jury foreman \nannounces the decision finding Ignatius not guilty. Ignatius looks over his shoulder \nat Isabella and smirks. Isabella calmly pulls a loaded revolver out of her purse, and \nthen shoots and kills Ignatius. In this case, Isabella's motive is revenge for the rape \nof her teenage daughter, or the desire to protect other women from Ignatius' \nconduct. This motive generated Isabella's criminal intent, which is malice \naforethought or intent to kill. In spite of Isabella's motive, which is probably \nunderstandable under the circumstances, Isabella can be found guilty of murder \nbecause she acted with the murder mens rea. However, Isabella's motive may be \nintroduced at sentencing and may result in a reduced sentence such as life in prison \nrather than the death penalty. In addition, Isabella's motive may affect a \nprosecutor's decision to seek the death penalty at all because this would probably be \ndisfavored by the public. \nModel Penal Code Criminal Intent \nThe Model Penal Code divides criminal intent into four states of mind listed in order \nof culpability: purposely, knowingly, recklessly, and negligently. Purposely \nA defendant who acts purposely intends to engage in conduct of that nature and \nintends to cause a certain result.N.H. Rev. Stat. Ann. \u00a7 626:2(II)(a), accessed \nFebruary 14, 2011, http://www.gencourt.state.nh.us/rsa/html/LXII/626/626- \n2.htm. Purposeful criminal intent resembles specific intent to cause harm, which \nwas discussed previously. As the Model Penal Code states, \"[a] person acts \npurposely with respect to a material element of an offense when: (i) if the element \ninvolves the nature of his conduct or a result thereof, it is his conscious object to \nengage in conduct of that nature or to cause such a result\" (Model Penal Code \u00a7 2.02 \n(2) (a)). \nExample of Purposely \nReview the example given in Section 4 \"Example of Specific Intent to Bring about \na Bad Result\", where Pauline takes out a razor and slices Peter's cheek. In this \nexample, Pauline is aware of the nature of the act (slicing someone's cheek with a \nrazor). Pauline also appears to be acting with the intent to cause a specific result, \nbased on her statement to Peter. Thus Pauline is acting with specific intent or \npurposely and can probably be convicted of some form of aggravated battery or \nmayhem in most jurisdictions. \nKnowingly \nKnowingly indicates that the defendant is aware of the nature of the act and its \nprobable consequences.Utah Code Ann. \u00a7 76-2-103(2), accessed February 14, 2011, \nhttp://le.utah.gov/~code/TITLE76/htm/76_02_010300.htm. Knowingly differs \nfrom purposely in that the defendant is not acting to cause a certain result but is \nacting with the awareness that the result is practically certain to occur.State v. \nHuff, 469 A.2d 1251 (1984), accessed February 14, \n2011, http://scholar.google.com/scholar_case?case=4287195880403875631&hl=en \n&as_sdt=2&as_vis=1&oi=scholarr. The Model Penal Code describes knowingly as follows: \"A person acts knowingly with respect to a material element of an offense \nwhen\u2026he is aware that his conduct is of that nature\u2026if the element involves a result \nof his conduct, he is aware that it is practically certain that his conduct will cause \nsuch a result\" (Model Penal Code in \u00a7 2.02(2) (b)). \nExample of Knowingly \nVictor brags to his girlfriend Tanya that he can shoot into a densely packed crowd of \npeople on the subway train without hitting any of them. Tanya dares Victor to try it. \nVictor removes a concealed weapon from his waistband and shoots, aiming at a \ngroup of people standing with their back to him. The shot kills Monica, who is \nstanding the closest to Victor. In this case, Victor did not intend to shoot Monica. In \nfact, Victor's goal was to shoot and miss all the standing subway passengers. \nHowever, Victor was aware that he was shooting a loaded gun (the nature of the \nact) and was also practically certain that shooting into a crowd would result in \nsomebody getting hurt or killed. Thus Victor acted knowingly according to the \nModel Penal Code. If the state in which Victor shoots Monica defines murder intent \nas knowingly under the Model Penal Code, then Victor has most likely committed \nmurder in this case. \nFigure 4.7 Crack the Code Recklessly \nRecklessly is a lower level of culpability than knowingly, and reckless intent crimes \nare not as common as offenses criminalizing purposeful, knowing conduct. The \ndegree of risk awareness is key to distinguishing a reckless intent crime from a \nknowing 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. \nStat. Ann. \u00a7 18-1-501(8), accessed February 14, \n2011, http://www.michie.com/colorado/lpext.dll?f=templates&fn=main- \nh.htm&cp=. This is different from a knowing intent crime, where the defendant \nmust be \"practically certain\" of the bad results. The reckless intent test is two \npronged. First, the defendant must consciously disregard a substantial risk of harm. \nThe standard is subjective; the defendant must know of the substantial risk. Second, \nthe defendant must take an unjustifiable risk, meaning that no valid reason exists \nfor the risk. The standard for this prong is objective; if a reasonable person would \nnot take the risk, then the defendant's action in taking it is reckless. As the Model \nPenal Code states, \"[t]he risk must be of such a nature and degree that\u2026its \ndisregard involves a gross deviation from the standard of conduct that a law-abiding \nperson would observe in the actor's situation\" (Model Penal Code \u00a7 2.02(2) (c)). \nExample of Recklessly \nReview the example in Section 4 \"Example of Knowingly\", where Victor shoots into \na crowd of subway travelers and kills Monica. Change the example, and imagine that \nthe subway train has only three passengers. Victor easily shoots in between them, \nyet the bullet ricochets off one of the seats and strikes Monica, killing her. Victor \nwould be acting with reckless rather than knowing intent in this situation. \nVictor's knowledge and awareness of the risk of injury or death when shooting a gun \ninside a subway car containing three passengers is probably substantial. A \nreasonable, lawabiding person would probably not take this action under these \ncircumstances. Thus Victor might be charged with a lower-level form of criminal homicide \nlike manslaughter in this case. The difference between murder and manslaughter \nis discussed in detail in Chapter 9 \"Criminal Homicide\". \nNegligently \nNegligent intent crimes are less culpable than reckless intent crimes and are also \nless common. The difference between reckless and negligent intent is the \ndefendant's lack of awareness. While defendants committing negligent intent \ncrimes are also faced with a substantial and unjustifiable risk, they are unaware \nof it, even though a reasonable person would be.Idaho Code Ann. \u00a7 18-101(2), \naccessed \nFebruary 14, 2011, \nhttp://www.legislature.idaho.gov/idstat/Title18/T18CH1SECT18101.htm. Thus the \nfirst prong of the reckless intent test is simply changed from a subjective to objective \nstandard. As the Model Penal Code states, \"[a] person acts negligently\u2026when he \nshould be aware of a substantial and unjustifiable risk that the material element \nexists or will result from his conduct\"(Model Penal Code \u00a7 2.02(2) (d)). \nExample of Negligently \nReview the example in Section 4 \"Example of Knowingly\", where Victor shoots into \na crowd of subway travelers and kills Monica. Change the example, and imagine that \nthe subway train has no passengers. Victor brags to Tanya that he can shoot a \ncrumpled napkin on the floor. Tanya challenges him to try it. Victor shoots at the \nnapkin and misses, and the bullet ricochets three times off three different seats, \ntravels backward, and strikes Tanya in the forehead, killing her instantly. In this \ncase, Victor may be unaware of the bullet's potential to ricochet several times and \nactually travel backward. However, the trier of fact can determine that a \"reasonable \nperson\" would be aware that shooting a gun inside a small subway train could result \nin injury or death. This would be a finding that Victor 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 Elements and Criminal Intent \nOccasionally, different criminal intents support the various elements of an offense. If \na crime requires more than one criminal intent, each criminal intent must be proven \nbeyond a reasonable doubt for each element. \nUnder the common law, every offense had just one criminal intent. In modern \nsociety, every offense has one criminal intent unless a statute specifies otherwise. As \nthe Model Penal Code states, \"[w]hen the law defining an offense prescribes the kind \nof culpability that is sufficient for the commission of an offense, without \ndistinguishing among the material elements thereof, such provision shall apply to all \nof the material elements of the offense, unless a contrary purpose plainly appears\" \n(Model Penal Code \u00a7 2.02(4)). \nExample of a Crime That Requires More Than One Criminal Intent \nA state statute defines burglary as \"breaking and entering into a residence at \nnighttime with the intent to commit a felony once inside.\" In this statute, the \nelements are the following: (1) breaking, (2) and entering, (3) into a residence, (4) at \nnighttime. Breaking and entering are two criminal act elements. They must be \ncommitted with the specific intent, or purposely, to commit a felony once inside the \nresidence. The elements of residence and nighttime are two attendant \ncircumstances, which most likely have the lower level of general \nintent or knowingly. Thus this statute has four separate criminal intents that the \nprosecution must prove beyond a reasonable doubt for conviction. \nStrict Liability \nAn exception to the requirement of a criminal intent element is strict liability. Strict \nliability offenses have no intent element.Ala. Code \u00a7 13A-2-3, accessed February 14, \n2011, http://law.onecle.com/alabama/criminal-code/13A-2-3.html. This is a modern \nstatutory trend, which abrogates the common-law approach that behavior is only \ncriminal when the defendant commits acts with a guilty mind. Sometimes the rationale for strict liability crimes is the protection of the public's health, safety, and \nwelfare. Thus strict liability offenses are often vehicle code or tax code violations, \nmandating a less severe punishment.Tex. Penal Code \u00a7 49.04, accessed February 14, \n2011, http://law.onecle.com/texas/penal/49.04.00.html. With a strict liability \ncrime, the prosecution has to prove only the criminal act and possibly causation and \nharm or attendant circumstances, depending on the elements of the offense. \nExample of a Strict Liability Offense \nA vehicle code provision makes it a crime to \"travel in a vehicle over the posted speed \nlimit.\" This is a strict liability offense. So if a law enforcement officer captures \nradar information that indicates Susie was traveling in a vehicle five miles per hour \nover the posted speed limit, Susie can probably be convicted of speeding under the \nstatute. Susie's protests that she \"didn't know she was traveling at that speed,\" are \nnot a valid defense. Susie's knowledge of the nature of the act is irrelevant. The \nprosecution only needs to prove the criminal act to convict Susie because this \nstatute is strict liability and does not require proof of criminal intent. \nTransferred Intent \nOccasionally, the defendant's criminal intent is not directed toward the victim. \nDepending on the jurisdiction, this may result in a transfer of the defendant's intent \nfrom the intended victim to the eventual victim, for the purpose of fairness.N.Y. \nPenal Law \u00a7 125.27(1), accessed February 14, 2011, \nhttp://www.nycourts.gov/cji/2PenalLaw/125/125.27/Capital-\nCrimes/AC.125.Transferred-Intent.pdf. Although this is a legal fiction, it can be \nnecessary to reach a just result. Transferred intent is only relevant in crimes that \nrequire a bad result or victim. In a case where intent is transferred, the defendant \ncould receive more than one criminal charge, such as a charge for \"attempting\" to \ncommit a crime against the intended victim. Attempt and transferred intent are \ndiscussed in detail in Chapter 8 \"Inchoate Offenses\". Example of Transferred Intent \nBilly and his brother Ronnie get into an argument at a crowded bar. Billy balls up his \nfist and swings, aiming for Ronnie's face. Ronnie ducks and Billy punches Amanda \nin the face instead. Billy did not intend to batter Amanda. However, it is unjust to \nallow this protective action of Ronnie's to excuse Billy's conduct. Thus Billy's intent \nto hit Ronnie transfers in some jurisdictions over to Amanda. Billy can also be \ncharged with attempted battery, which is assault, of Ronnie, resulting in two crimes \nrather than one under the transferred intent doctrine. \nVicarious Liability \nVicarious liability is similar to respondeat superior, a civil law concept discussed in \nChapter 1 \"Introduction to Criminal Law\". Vicarious liability transfers a defendant's \nresponsibility for the crime to a different defendant, on the basis of a special \nrelationship. Under a theory of vicarious liability, the defendant does not need to \ncommit the criminal act supported by criminal intent. The defendant just has to be \ninvolved with the criminal actor in a legally defined relationship. As in civil law, \nvicarious liability is common between employers and employees. \nCorporate liability is a type of vicarious liability that allows a corporation to be \nprosecuted for a crime apart from its owners, agents, and employees.720 ILCS 5/5-4, \naccessed February 14, 2011, http://law.onecle.com/illinois/720ilcs5/5-4.html. This \nis a modern concept that did not exist at early common law. Although corporations \ncannot be incarcerated, they can be fined. Vicarious liability and corporate liability \nare discussed in more detail in Chapter 7 \"Parties to Crime\". \nExample of Vicarious Liability \nDon hires James to work in his liquor store. James is specially trained to ask for the \nidentification of any individual who appears to be under the age of thirty and \nattempts to buy alcohol. One night, James sells alcohol to Ashley and does not \nrequest identification because Ashley is attractive and James wants to ask her out on a date. Unfortunately, Ashley is underage and is participating in a sting operation \nwith local law enforcement. Certain statutes could subject Don to criminal \nprosecution for selling alcohol to an underage person like Ashley, even though Don \ndid not personally participate in the sale. Because Don is James's employer, he may \nbe vicariously liable for James's on-the-job conduct in this instance. \nConcurrence of Act and Intent \nAnother element of most criminal offenses is the requirement that the criminal act \nand criminal intent exist at the same moment.California Criminal Jury Instructions \nNo. 252, accessed February 14, \n2011, http://www.justia.com/criminal/docs/calcrim/200/252.html. This element is \ncalled concurrence. Concurrence is rarely an issue in a criminal prosecution because \nthe criminal intent usually generates the bodily response (criminal act). However, in \nsome rare instances, the criminal act and intent are separated by time, in which case \nconcurrence is lacking and the defendant cannot be convicted of a crime. \nExample of a Situation Lacking Concurrence \nSherree decides she wants to kill her husband using a handgun. As Sherree is driving \nto the local gun shop to purchase the handgun, her husband is distracted and steps in \nfront of her car. Sherree slams on the brakes as a reflex, but unfortunately she is \nunable 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, \nthe intent to kill did not exist at the moment she committed the criminal act of \nhitting her husband with her vehicle. In fact, Sherree was trying to avoid hitting her \nhusband at the moment he was killed. Thus this case lacks concurrence of act and \nintent, and Sherree is not guilty of criminal homicide. \nKEY TAKEAWAYS \n\u2022 One important function of intent is the determination of punishment. In general, the more \nevil the intent, the more severe the punishment. \u2022 \nThe three common-law intents ranked in order of culpability are malice aforethought, \nspecific intent, and general intent. \n\u2022 Specific intent is the intent to bring about a certain result, do something other than the \ncriminal act, or scienter. General intent is simply the intent to perform the criminal act. \n\u2022 With a general intent crime, the trier of fact may infer intent from the criminal act. This \nalleviates the prosecution's burden of proving criminal intent. \n\u2022 Motive is the reason the defendant commits the criminal act. Motive standing alone is not \nenough to prove criminal intent. \n\u2022 \nThe Model Penal Code's criminal states of mind ranked in order of culpability are purposely, \nknowingly, recklessly, and negligently. Purposely is similar to specific intent to cause a \nparticular result. Knowingly is awareness that results are practically certain to occur. \nRecklessly 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 \nreasonable person would be. \n\u2022 The exception to the requirement that every crime contain a criminal intent element is strict \nliability. \n\u2022 Transferred intent promotes justice by holding a defendant responsible for his or her \ncriminal conduct, even though the conduct was intended to harm a different victim. \n\u2022 Vicarious liability is the transfer of criminal liability from one criminal defendant to another \nbased on a special relationship. \n\u2022 Concurrence requires that act and intent exist at the same moment. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the end \nof the chapter. \n1. As Jordan is driving to school, she takes her eyes off the road for a moment and rummages \nthrough her purse for her phone. This causes her to run a stop sign. Jordan is thereafter \npulled over by law enforcement and issued a traffic ticket. What is Jordan's criminal intent in this case? Is Jordan criminally responsible for running the stop sign? Why or why not? \n2. Read Morissette v. U.S., 342 U.S. 246 (1952). In Morissette, the defendant was convicted of \nunlawful conversion of federal property for gathering and selling spent bomb casings \ndropped during US Air Force practice maneuvers. The statute required \"knowing\" conversion \nof the property, and the defendant claimed he believed the property was abandoned. Did the \nUS Supreme Court uphold the defendant's conviction? Why or why not? The case is \navailable at this \nlink: http://scholar.google.com/scholar_case?case=787130527265701764&hl=en&as_sdt=2 \n&as_vis=1&oi=scholarr. \n3. Read State v. Crosby, 154 P.3d 97 (2007). In Crosby, the defendant was convicted of \nmanslaughter of a dependent person by neglect. The defendant's mother died of \"sepsis\" \nand was brought to the hospital covered with feces and bedsores. The defendant was her \nmother's caregiver. The jury was instructed that the defendant possessed the mental state \nof \n\"recklessness\" under the statute if she disregarded a substantial risk of harm or \ncircumstances. The jury asked the judge if \"circumstances\" included the bedsores or just \ndeath. He responded that the risk could be more than just death and left it up to the jury to \ndecide. Did the Supreme Court of Oregon uphold the defendant's conviction? Why or why \nnot? 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. Read State v. Horner, 126 Ohio St. 3d 466 (2010). In Horner, the defendant pleaded no \ncontest to aggravated robbery. The defendant's pre-plea indictment did not contain a mens \nrea element for aggravated robbery, just the mens rea for theft. The defendant moved to \ndismiss the no contest plea, based on the fact that the indictment was defective for lacking \nthe mens rea element. Did the Ohio Supreme Court find the indictment defective? Why or \nwhy not? The case is available at this link: \nhttp://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-ohio-3830.pdf. \nLAW AND ETHICS: DEAN V. U.S. \nTen Years Imprisonment for an Accident? \n\"Accidents happen. Sometimes they happen to individuals committing crimes with \nloaded guns.\" Read Dean v. U.S., 129 S. Ct. 1849 (2009)), which is available at this link: http://scholar.google.com/scholar_case?case=10945987555184039397&q= \nDean+v.+U.S.&hl=en&as_sdt=2,5. \nIn Dean, the defendant was sentenced to ten years imprisonment under a federal \nsentencing enhancement for an accidental discharge of his firearm during a bank \nrobbery. The prosecution presented evidence at trial indicating that the defendant \nwent into the bank wearing a mask and carrying a loaded firearm. The defendant \ntold everyone in the bank to \"get down,\" and then went behind the tellers' station \nand began grabbing money with his left hand. The gun in his right hand discharged. \nThe defendant seemed surprised by the discharge, cursed, and ran out of the bank. \nNo one was injured or hurt during the robbery. \nThe defendant thereafter admitted he committed the robbery. The US Supreme \nCourt upheld the defendant's sentencing, in spite of the fact that there was no \nevidence of intent to discharge the firearm. The Court based its holding on the plain \nmeaning of the statute requiring a minimum sentence of ten years imprisonment \nwhen a firearm is discharged during a robbery. The statute, 18 U.S.C. \u00a7 924(c) (1) (A), \ndoes not expressly state a criminal intent requirement. The Court further held that a \npresumption of criminal intent was not required. As the Court stated, \"[i]t is unusual \nto impose criminal punishment for the consequences of purely accidental conduct. \nBut it is not unusual to punish individuals for the unintended consequences of their \nunlawful acts\" (Dean v. U.S., 129 S. Ct. 1849, 1855 (2009)). \n1. Do you think it is ethical to sentence Dean to ten years' imprisonment for his accidental \nconduct in this case? Why or why not? \nCheck your answer using the answer key at the end of the chapter. \n4.3 Causation and Harm LEARNING OBJECTIVES \n1. Distinguish between factual and legal cause. \n2. Define intervening superseding cause, and explain the role it plays in the defendant's \ncriminal liability. \n3. Define one and three years and a day rules. \nAs stated previously, causation and harm can also be elements of a criminal offense if the offense \nrequires a bad result. In essence, if injury is required under the statute, or the case is in a \njurisdiction that allows for common-law crimes, the defendant must cause the requisite harm. \nMany incidents occur when the defendant technically initiates circumstances that result in harm, \nbut it would be unjust to hold the defendant criminally responsible. Thus causation should not be \nrigidly determined in every instance, and the trier of fact must perform an analysis that promotes \nfairness. 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 Causation in Fact \nEvery causation analysis is twofold. First, the defendant must be the factual or but \nfor cause of the victim's harm. The but for term comes from this phrase: \"but for the \ndefendant's act, the harm would not have occurred.\"Del. Code Ann. tit. II, \u00a7 261, \naccessed February 14, \n2011, http://delcode.delaware.gov/title11/c002/index.shtml#261. As the Model \nPenal Code states, \"[c]onduct is the cause of a result when\u2026(a) it is an antecedent \nbut for which the result in question would not have occurred\" (Model Penal Code \u00a7 \n2.03(1)(a)). Basically, the defendant is the factual or but for cause of the victim's \nharm if the defendant's act starts the chain of events that leads to the eventual \nresult. \nExample of Factual Cause \nHenry and Mary get into an argument over their child custody agreement. Henry \ngives Mary a hard shove. Mary staggers backward, is struck by lightning, and dies \ninstantly. In this example, Henry's act forced Mary to move into the area where the \nlighting happened to strike. However, it would be unjust to punish Henry for Mary's \ndeath in this case because Henry could not have imagined the eventual result. Thus \nalthough Henry is the factual or but for cause of Mary's death, he is probably not \nthe legal cause. \nLegal Causation \nIt is the second part of the analysis that ensures fairness in the application of the \ncausation element. The defendant must also be the legal or proximate cause of \nthe harm. Proximate means \"near,\" so the defendant's conduct must be closely \nrelated to the harm it engenders. As the Model Penal Code states, the actual result \ncannot be \"too remote or accidental in its occurrence to have a [just] bearing on the \nactor's liability\" (Model Penal Code \u00a7 2.03 (2) (b)). \nThe test for legal causation is objective foreseeability.California Criminal Jury Instructions No. 520, accessed February 14, \n2011, http://www.justia.com/criminal/docs/calcrim/500/520.html. The trier of fact \nmust be convinced that when the defendant acted, a reasonable person could have \nforeseen or predicted that the end result would occur. In the example given in \nSection 4 \"Example of Factual Cause\", Henry is not the legal cause of Mary's death \nbecause a reasonable person could have neither foreseen nor predicted that a shove \nwould push Mary into a spot where lightning was about to strike. \nThe Model Penal Code adjusts the legal causation foreseeability requirement \ndepending on whether the defendant acted purposely, knowingly, recklessly, or \nnegligently. If the defendant's behavior is reckless or negligent, the legal \ncausation foreseeability requirement is analyzed based on the risk of harm, \nrather than the purpose of the defendant. \nExample of Legal Causation \nImagine that Henry and Mary get into the same argument over their child custody \nagreement, but this time they are in their garage, which is crowded with furniture. \nHenry gives Mary a hard shove, even though she is standing directly in front of a \nlarge entertainment center filled with books and a heavy thirty-two-inch television \nset. Mary staggers backward into the entertainment center and it crashes down on \ntop of her, killing her. In this situation, Henry is the factual cause of Mary's death \nbecause he started the chain of events that led to her death with his push. In \naddition, it is foreseeable that Mary might suffer a serious injury or death when \nshoved directly into a large and heavy piece of furniture. Thus in this example, \nHenry could be the factual and legal cause of Mary's death. It is up to the trier of fact \nto make this determination based on an assessment of objective foreseeability and \nthe attendant circumstances. \nIntervening Superseding Cause \nAnother situation where the defendant is the factual but not the legal cause of the \nrequisite harm is when something or someone interrupts the chain of events started by the defendant. This is called an intervening superseding cause. Typically, an \nintervening superseding cause cuts the defendant off from criminal liability because \nit is much closer, or proximate, to the resulting harm.Connecticut Jury Instructions \nNo. 2.6-1, accessed February 14, 2011, \nhttp://www.jud.ct.gov/ji/criminal/part2/2.61.htm. If an intervening superseding \ncause is a different individual acting with criminal intent, the intervening individual \nis criminally responsible for the harm caused. \nExample of an Intervening Superseding Cause \nReview the example with Henry and Mary in Section 4 \"Example of Legal \nCausation\". Change the example so that Henry pulls out a knife and chases Mary out \nof the garage. Mary escapes Henry and hides in an abandoned shed. Half an hour \nlater, Wes, a homeless man living in the shed, returns from a day of panhandling. \nWhen he discovers Mary in the shed, he kills her and steals her money and jewelry. \nIn this case, Henry is still the factual cause of Mary's death, because he chased her \ninto the shed where she was eventually killed. However, Wes is probably the \nintervening superseding cause of Mary's death because he interrupted the \nchain of events started by Henry. Thus Wes is subject to prosecution for Mary's \ndeath, and Henry may be prosecuted only for assault with a deadly weapon. \nOne and Three Years and a Day Rules \nIn criminal homicide cases, the causation analysis could be complicated by a victim's \nsurvival for an extended time period. Because of modern technology, victims often \nstay alive on machines for many years after they have been harmed. However, it may \nbe unreasonable to hold a defendant responsible for a death that occurs several \nyears after the defendant's criminal act. A few states have rules that solve this \ndilemma. \nSome states have either a one year and a day rule or a three years and a day rule.S.C. \nCode Ann. \u00a7 56-5-2910, accessed February 15, 2011, http://www.scstatehouse.gov/code/t56c005.htm. These rules create a \ntimeline for the victim's death that changes the causation analysis in a criminal \nhomicide case. \nUnder one or three years and a day rules, the victim of a criminal homicide must die \nwithin the specified time limits for the defendant to be criminally responsible. If the \nvictim does not die within the time limits, the defendant may be charged with \nattempted murder, rather than criminal homicide. California makes the timeline a \nrebuttable presumption that can be overcome with evidence proving that the \nconduct was criminal and the defendant should still be convicted.Cal. Penal Code \n\u00a7 194, accessed February 14, \n2011, http://codes.lp.findlaw.com/cacode/PEN/3/1/8/1/s194. \nFigure 4.10 California Penal Code Death timeline rules are often embodied in a state's common law and have lost \npopularity in recent years.Key v. State, 890 So.2d 1043 (2002), accessed February \n15, 2011, http://www.lexisone.com/lx1/caselaw/freecaselaw?action= \nOCLGetCaseDetail&format=FULL&sourceID=beehed&searchTerm= \nefiQ.QLea.aadj.eaOS&searchFlag=y&l1loc=FCLOW. Thus many states have \nabolished arbitrary time limits for the victim's death in favor of ordinary principles \nof legal causation.Rogers v. Tennessee, 532 U.S. 541 (2001), accessed February 14, \n2011, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=9 \n9-6218. Death timeline rules are not to be confused with the statute of \nlimitations, which is the time limit the government has to prosecute a criminal \ndefendant. \nFigure 4.11 Diagram of the Elements of a Crime KEY TAKEAWAYS \n\u2022 Factual cause means that the defendant starts the chain of events leading to the harm. Legal \ncause means that the defendant is held criminally responsible for the harm because the \n harm is a foreseeable result of the defendant's criminal act. \n\u2022 An intervening superseding cause breaks the chain of events started by the defendant's act \nand cuts the defendant off from criminal responsibility. \n\u2022 One and three years and a day rules create a timeline for the victim's death in a criminal \nhomicide. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the end \nof the chapter. \n1. Phillipa sees Fred picking up trash along the highway and decides she wants to frighten him. \nShe drives a quarter of a mile ahead of Fred and parks her car. She then hides in the bushes \nand waits for Fred to show up. When Fred gets close enough, she jumps out of the bushes \nscreaming. Frightened, Fred drops his trash bag and runs into the middle of the highway \nwhere he is struck by a vehicle and killed. Is Phillipa's act the legal cause of Fred's death? \nWhy or why not? \n2. Read Bullock v. State, 775 A.2d. 1043 (2001). In Bullock, the defendant was convicted of \nmanslaughter based on a vehicle collision that occurred when his vehicle hit the victim's \nvehicle in an intersection. The defendant was under the influence of alcohol and traveling \nthirty miles per hour over the speed limit. The victim was in the intersection unlawfully \nbecause the light was red. The defendant claimed that the victim was the intervening \nsuperseding cause of her own death. Did the Supreme Court of Delaware agree? The case is \navailable at this link: http://caselaw.findlaw.com/de-supreme- \ncourt/1137701.html. \n3. Read Commonwealth v. Casanova, 429 Mass. 293 (1999). In Casanova, the defendant shot \nthe victim in 1991, paralyzing him. The defendant was convicted of assault with intent to \nmurder and two firearms offenses. In 1996, the victim died. The defendant was thereafter \nindicted for his murder. Massachusetts had abolished the year and a day rule in 1980. Did \nthe Massachusetts Supreme Judicial Court uphold the indictment, or did the court establish a new death timeline rule? \n4.4 End-of-Chapter Material \nSummary \nCrimes are made up of parts, referred to as elements. The criminal elements are \ncriminal act or actus reus, criminal intent or mens rea, concurrence, causation, \nharm, and attendant circumstances. Only crimes that specify a bad result require the \ncausation and harm elements. \nCriminal acts must be voluntary or controllable and cannot consist solely of the \ndefendant's status or thoughts. Just one voluntary act is needed for a crime, so if a \nvoluntary act is followed by an involuntary act, the defendant can still be criminally \nresponsible. Omission or failure to act can also be criminal if there is a duty to act \nbased on a statute, contract, or special relationship. Possession is passive, but it can \nstill be a criminal act. The most common items that are criminal to possess are illegal \ncontraband, drugs, and weapons. Possession can be actual if the item is on or very \nnear the defendant's person, or constructive if within an area of the defendant's \ncontrol, like inside the defendant's house or vehicle. More than one defendant can be \nin possession of one item. Criminal possession should be supported by the intent of \nawareness because it is passive. \nCriminal intent is an important element because it is often one factor considered in \nthe grading of criminal offenses. The three common-law criminal intents are malice \naforethought, which is intent to kill, specific intent, and general intent. Specific \nintent is the intent to bring about a particular result, a higher level of awareness than \nis required to perform the criminal act, or scienter, which is knowledge that a \ncriminal act is unlawful. General intent is the intent to do the act and can often give \nrise to an inference of criminal intent from proof of the criminal act. Motive should \nnot be confused with or replace intent. Motive is the reason the defendant develops \ncriminal intent. The Model Penal Code describes four criminal states of mind, which are purposely, \nknowingly, recklessly, and negligently. Purposely is similar to specific intent to cause \na particular result. Knowingly is awareness that results are practically certain to \noccur. Recklessly is a subjective awareness of a risk of harm and an objective and \nunjustified disregard of that risk. Negligently is not being aware of a substantial risk \nof harm when a reasonable person would be. Offense elements, including specified \nattendant circumstances, may require different mental states. If so, the prosecution \nmust prove each mental state for every element beyond a reasonable doubt. \nStrict liability crimes do not require an intent element and are generally malum \nprohibitum, with a less severe punishment. Transferred intent is a legal fiction that \ntransfers a defendant's criminal intent to an unintended victim for the purpose of \nfairness. Pursuant to transferred intent, the defendant may be responsible for two \ncrimes: attempt and the completed crime, depending on the circumstances. \nVicarious liability transfers a defendant's criminal liability to a different defendant \nbased on a special relationship. Corporate liability is a type of vicarious liability that \nholds a corporation responsible for crimes apart from its owners, agents, and \nemployees. Concurrence is also a criminal element that requires the criminal act and \ncriminal intent exist at the same moment. \nWhen the crime requires a bad result, the defendant must cause the harm. The \ndefendant must be the factual and legal cause. Factual cause means that the \ndefendant 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 \ndefendant commits the criminal act. An intervening superseding cause breaks the \nchain of events started by the defendant's criminal act and insulates the defendant \nfrom criminal liability. When the intervening superseding cause is an individual, the \nintervening individual is criminally responsible for the crime. Some states have rules \nthat protect the defendant from criminal responsibility for homicide when the victim \nlives a long time after the criminal act. These death timeline rules require the victim \nto die within one or three years and a day from the defendant's criminal act and are becoming increasingly unpopular. Many states have abolished death timeline rules in \nfavor of ordinary principles of legal causation. \nYOU BE THE LAW STUDENT \nRead the prompt, review the case, and then decide whether the issue is the \ndefendant's criminal act or criminal intent. Check your answers using the answer key \nat the end of the chapter. \n1. Read State v. Andrews, 572 S.E.2d 798 (2002). In Andrews, the defendant took Prozac and \nEffexor for one day. The next day, the defendant ran his wife and her friend down with his \ncar. After hitting both victims, the defendant jumped out of the car and stabbed his wife \nthree times. He was convicted of attempted murder and assault with a deadly weapon \nagainst both victims. He appealed on the grounds that the jury was given an improper \ninstruction as to his criminal responsibility for the crimes committed against his wife's friend. \nDid the Court of Appeals of North Carolina hold that this is an issue of criminal \nact or criminal intent? The case is available at this link: http://caselaw.findlaw.com/nc-court- \nof-appeals/1197459.html. \n2. Read State v. Sowry, 155 Ohio App. 3d 742 (2004). In Sowry, Ohio police arrested the \ndefendant and brought him to jail. Before booking the defendant, the police asked him \nwhether he had any drugs on his person. He responded \"no.\" The police thereafter searched \nhim and discovered a plastic bag of marijuana in his pocket. The defendant was later \nconvicted of knowingly conveying drugs onto the grounds of a detention facility. The \ndefendant appealed and was successful. Did the Court of Appeals of Ohio hold that this is an \nissue of criminal act or criminal intent? The case is available at this \nlink: http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2004/2004-Ohio-399.pdf. \n3. Read Regalado v. U.S., 572 A.2d 416 (1990). In Regalado, the defendant was convicted of \nanimal cruelty for punching a puppy repeatedly in the face. The defendant appealed, \nclaiming that he was merely \"disciplining\" the puppy. Did the District of Columbia Court of \nAppeals hold that this is an issue of criminal act or criminal intent? The case is available at \nthis \nlink: \nhttp://scholar.google.com/scholar_case?case=10084482120424691457&hl=en&as_sdt= 2&as_vis=1&oi=scholarr. \n4. Read State v. Slayton, 154 P.3d 1057 (2007). In Slayton, the defendant received a hunting \npermit, hired a guide, and thereafter shot an elk and carried it out of the area. The \ndefendant's hunting permit was valid in only a limited location, and the defendant shot the \nelk outside that location. The defendant was convicted of unauthorized hunting and \ntransporting wildlife. The Arizona Superior Court vacated the defendant's convictions, the \nstate 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 \nthis link: http://scholar.google.com/scholar_case?case=13377680343653410685&q= \nState+v.+Slayton&hl=en&as_sdt=2,5&as_ylo=2006. \nCases of Interest \n\u2022 State v. Kanavy, 4 A.3d 991 (2010), discusses omission to \nact: http://scholar.google.com/scholar_case?case=13238547420575358722&q= \n State+v.+Kanavy&hl=en&as_sdt=2,5&as_vis=1. \n\u2022 \nU.S. v. Grajeda, 581 F.3d 1186 (2009), discusses criminal intent: \nhttp://scholar.google.com/scholar_case?case=10326332733812062874&hl=e \nn&as_sdt=2&as_vis=1&oi=scholarr. \u2022 \nPeople v. Roberts, 826 P.2d 274 (1992), discusses proximate cause: \nhttp://scholar.google.com/scholar_case?case=128455976362726317&hl=en& \nas_sdt=2&as_vis=1&oi=scholarr. \nArticles of Interest \n\u2022 The duty to \n rescue: http://www.utexas.edu/law/journals/tlr/abstracts/84/84hyman.pdf \n\u2022 Strict liability: \nhttp://www.bu.edu/law/central/jd/organizations/journals/bulr/volume86n \n2/documents/CARPENTERv2.pdf \n\u2022 \nVicarious liability: \nhttp://www.nj.com/news/index.ssf/2010/05/jury_finds_godinez_guilty_in _n.html \nWebsites of Interest \n\u2022 State and federal laws and cases: http://law.onecle.com \n\u2022 State and federal laws and cases: http://www.findlaw.com \nAnswers to Exercises \nFrom Section 4.1 \"Criminal Elements\" \n1. Jacqueline can be convicted of a crime in this situation. Although an epileptic seizure \nis not a voluntary act, Jacqueline's conduct in driving while aware that she has \nepilepsy is. Only one voluntary act is required for a crime, and Jacqueline was able to \ncontrol her decision making in this instance. Punishing Jacqueline for driving with \nepilepsy could specifically deter Jacqueline from driving on another occasion and is \nappropriate under the circumstances. \n2. The Texas Court of Appeals upheld the defendant's indictment and conviction. The \ncourt stated that the defendant's conduct in deliberately seeking out four physicians \nand presenting his medical problem to them with the intent to gain a prescription for \na controlled substance in violation of Texas law is a criminal act, not an omission to \nact. \n3. The US Supreme Court reversed the defendant's conviction and held that the \nprosecution must prove that the defendant knew the weapon was automatic to \nconvict him of failure to register an automatic weapon. Answers to Exercises \nFrom Section 4.2 \"Criminal Intent\" \n1. Jordan is acting recklessly or negligently. If Jordan is an experienced driver, then \nshe knows that there is a substantial risk of injury or harm when a driver takes his or \nher eyes off the road. If Jordan is not an experienced driver, she may not be aware of \nthe risk, but she should be because she has been trained to drive and has passed \nexams and practical driving tests that emphasize this fact. Whether Jordan's intent is \nreckless or negligent is probably irrelevant because most states make running a stop \nsign a strict liability offense with no criminal intent required. \n2. The US Supreme Court reversed the defendant's conviction. The Court disagreed with \nthe lower court that this was a strict liability public welfare offense and determined \nthat a presumption of intent was inappropriate. The Court held that criminal intent \nwas an element of the offense that the trier of fact needed to find beyond a reasonable \ndoubt. \n3. The Oregon Supreme Court reversed and held that the substantial risk applied to the \nvictim's death (bad result), not the victim's bedsores (attendant circumstances). \n4. The Ohio Supreme Court held that the indictment was valid and that the statute \nclearly intended for aggravated robbery to be a strict liability offense lacking mens \nrea. \nAnswers to Exercises \nFrom Section 4.3 \"Causation and Harm\" \n1. Phillipa's act is the factual and legal cause of Fred's death. Phillipa's act in \njumping out of the bushes screaming caused Fred to run onto the highway, so \nPhillipa's act is the factual cause of Fred's death. In addition, a reasonable person \ncould foresee that frightening someone next to a major highway might result in them \ntrying to escape onto the highway, where a vehicle traveling at a high rate of speed could hit them. Thus Phillipa's act is also the legal cause of Fred's death. \n2. The Delaware Supreme Court reversed the defendant's conviction based on a jury \ninstruction that did not include the victim's actions. The Delaware Supreme Court \nheld that the defendant's acts could not be the legal cause of death unless the result of \nthe defendant's acts was foreseeable. Foreseeability in this case could only be \nanalyzed if the jury instructions address the victim's behavior. \n3. The Massachusetts Supreme Judicial Court upheld the defendant's indictment, and \ndid not create a new death timeline rule. \nAnswer to Law and Ethics Question \n1. Although ten years is a lengthy prison sentence, it may be ethical even for a criminal \nact committed without criminal intent if there is a potential for harm. In Dean, the \ndefendant may have discharged the firearm unintentionally, but there was a great \npotential for injury. The defendant was inside a bank filled with employees and \ncustomers. Although the defendant's shot did not cause physical injury to any of the \nbank's occupants, this was mere happenstance. The defendant could have shot and \nkilled someone. If a security guard was startled by the gunshot, a shootout may have \noccurred, injuring many more individuals. Thus punishing a defendant for an act that \nlacks criminal intent (and harm) could fulfill specific and general deterrence. \nCriminal intent and harm are only two factors to be considered when grading crimes. \nIf other purposes of punishment are applicable, they can also be considered as \nfactors. \nAnswers to You Be the Law Student \n1. The Court of Appeals of North Carolina held that the defendant was criminally \nresponsible for hitting his wife's friend under a theory of transferred intent. Thus this \nis an issue of criminal intent. The Court of Appeals held that transferred intent applies even when the defendant injures the intended victim. \n2. The Court of Appeals of Ohio held that the defendant did not choose to bring drugs to \nthe jail; the police forcibly took him there. Thus there was no voluntary criminal \nact. \n3. The District of Columbia Court of Appeals affirmed the defendant's conviction, \nholding that the animal cruelty statute required proof of general intent plus malice, \nwhich the defendant demonstrated with his beating of the puppy. Thus this is an \nissue of criminal intent. \n4. The Court of Appeals of Arizona held that the statutes the defendant violated are \nstrict liability, so the fact that the defendant may have been mistaken as to the \nlimited location authorized by his hunting permit is irrelevant. Thus this is an issue \nof criminal intent. \nChapter 5Criminal Defenses, Part 1 Source: Image courtesy of Tara Storm. \nA person who unlawfully and by force enters or attempts to enter a person's \ndwelling, residence, or occupied vehicle is presumed to be doing so with the intent \nto commit an unlawful act involving force or violence\u2026 \nFla. Stat. Ann. \u00a7776.013(4), cited in Section 5.3.3 \"Defense of Habitation\" \n5.1 Criminal Defenses \nLEARNING OBJECTIVES \n1. Distinguish between a denial or failure of proof defense and an affirmative defense. \n2. Distinguish between imperfect and perfect defenses. \n3. Distinguish between factual and legal defenses. \n4. Give examples of factual and legal defenses. \n5. Distinguish between defenses based on justification and excuse. \nA plethora of criminal defenses exist. Defenses may completely exonerate the criminal defendant, \nresulting in an acquittal, or reduce the severity of the offense. Chapter 3 \"Constitutional \nProtections\" discussed defenses based on the federal Constitution. This chapter reviews the \ncategorization of nonconstitutional criminal defenses, along with the elements of various \ndefenses sanctioning the use of force. \nCategorization of Defenses \nDefenses can be categorized as denial or failure of proof, affirmative, imperfect, or \nperfect. Defenses can also be categorized as factual, legal, based on justification, or \nexcuse. Lastly, defenses can be created by a court (common law), or created by a \nstate or federal legislature (statutory). Definition of Denial or Failure of Proof and Affirmative Defenses \nAs stated in Chapter 2 \"The Legal System in the United States\", a criminal defendant \nwill be acquitted if the prosecution cannot prove every element of the offense beyond \na reasonable doubt. In certain cases, the defendant can either deny that a criminal \nelement(s) exists or simply sit back and wait for the prosecution to fail in meeting its \nburden of proof. This legal strategy is sometimes referred to as either a denial or \nfailure of proof defense. \nAn affirmative defense is not connected to the prosecution's burden of proof. When \nthe defendant asserts an affirmative defense, the defendant raises a new issue that \nmust be proven to a certain evidentiary standard. State statutes often specify whether \na defense is affirmative. The Model Penal Code defines an affirmative defense as a \ndefense that is deemed affirmative in the Code or a separate statute, or that \"involves \na matter of excuse or justification peculiarly within the knowledge of the defendant\" \n(Model Penal Code \u00a7 1.12 (3) (c)). Procedurally, the defendant must assert any \naffirmative defense before or during the trial, or the defense cannot be used as \ngrounds for an appeal. \nExample of an Affirmative Defense \nA fight breaks out at a party, and Juan is severely injured. Jasmine and Jerome are \narrested and charged for battering Juan. Jerome claims that he did not touch Juan; \nsomeone else battered him. Jasmine claims that she did not batter Juan because \nshe was legally defending herself against Juan's attack. Jerome's claim focuses on \nthe elements of battery and asserts that these elements cannot be proven beyond a \nreasonable doubt. Technically, Jerome can do nothing and be acquitted if the \nprosecution fails to prove that he was the criminal actor. Jasmine's self-defense \nclaim is an affirmative defense. Jasmine must do something to be acquitted: she \nmust prove that Juan attacked her to a certain evidentiary standard. \nFigure 5.1 Denial and Affirmative Defenses Burden of Proof for Affirmative Defenses \nAs stated in Chapter 2 \"The Legal System in the United States\", states vary as to \ntheir requirements for the defendant's burden of proof when asserting an \naffirmative defense.Findlaw.com, \"The Insanity Defense among the States,\" \nfindlaw.com website, accessed October 11, 2010, \nhttp://criminal.findlaw.com/crimes/morecriminal-topics/insanity-defense/the-\ninsanity-defense-among-thestates.html. Different defenses also have different \nburdens of proof. Some states require the defendant to meet the burden of \nproduction, but require the prosecution to thereafter meet the burden of persuasion, \ndisproving the defense to a preponderance of evidence, or in some states, beyond a \nreasonable doubt. Other states require the defendant to meet the burden of \nproduction and the burden of persuasion. In such states, the defendant's evidentiary \nstandard is preponderance of evidence, not beyond a reasonable doubt. In the \nexample given in Section 5 \"Example of an Affirmative Defense\", for Jasmine's self-\ndefense claim, Jasmine must prove she was defending herself by meeting either the \nburden of production or the burden of production and persuasion to a \npreponderance of evidence, depending on the jurisdiction. \nFigure 5.2 Diagram of the Criminal Burden of Proof Definition of Imperfect and Perfect Defenses \nAs stated previously, a defense can reduce the severity of the offense, or completely \nexonerate the defendant from criminal responsibility. If a defense reduces the \nseverity of the offense, it is called an imperfect defense. If a defense results in an \nacquittal, it is called a perfect defense. The difference between the two is significant. \nA defendant who is successful with an imperfect defense is still guilty of a crime; a \ndefendant who is successful with a perfect defense is innocent. \nExample of Imperfect and Perfect Defenses \nLuLu flies into a rage and kills her sister Lola after she catches Lola sleeping with her \nfianc\u00e9. LuLu is thereafter charged with first-degree murder. LuLu decides to pursue \ntwo defenses. First, LuLu claims that the killing should be manslaughter rather than \nfirst-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 \nwas insane at the time the killing occurred. The claim of manslaughter is an \nimperfect defense that will reduce LuLu's sentence, but will not acquit her of \ncriminal homicide. The claim of insanity is a perfect defense that will result in an \nacquittal. \nDefinition of Factual and Legal Defenses \nA defense must be based on specific grounds. If a defense is based on an issue of \nfact, it is a factual defense. If a defense is based on an issue of law, it is a legal \ndefense. \nExample of Factual and Legal Defenses \nArmando is charged with the burglary of Roman's residence. Armando decides to \npursue two defenses. First, Armando claims that he was with Phil on the date and \ntime of the burglary. This is called an alibi defense. Second, Armando claims that it is \ntoo late to prosecute him for burglary because of the expiration of the statute of \nlimitations. Armando's alibi defense is a factual defense; it is based on the fact that Armando could not have committed the burglary because he was somewhere else at \nthe time it occurred. Armando's statute of limitations defense is a legal defense \nbecause it is based on a statute that limits the amount of time the government has to \nprosecute Armando for burglary. \nDefinition of Justification and Excuse \nWith the exception of alibi, most affirmative defenses are based on \neither justification or excuse. Typically, justification and excuse defenses admit that \nthe defendant committed the criminal act with the requisite intent, but insist that the \nconduct should not be criminal. \nA defense based on justification focuses on the offense. A justification defense claims \nthat the defendant's conduct should be legal rather than criminal because it supports \na principle valued by society. A defense based on excuse focuses on the defendant. \nAn excuse defense claims that even though the defendant committed the criminal act \nwith criminal intent, the defendant should not be responsible for his or her behavior. \nExample of Justification and Excuse \nReview the examples of affirmative, imperfect, and perfect defenses given in Section \n5.1.1 \"Categorization of Defenses\". Jasmine's self-defense claim is based on \njustification. Society believes that individuals should be able to protect themselves \nfrom harm, so actions taken in self-defense are justified and noncriminal. Note that a \nself-defense claim focuses on the offense (battery) in light of the circumstances (to \nprevent imminent harm). LuLu's insanity claim is based on excuse. Although LuLu \nkilled Lola with criminal intent, if LuLu is truly insane it is not be fair or just to \npunish her for her behavior. Note that an insanity claim focuses on the defendant (a \nlegally insane individual) and whether he or she should be criminally responsible for \nhis or her conduct. \nTable 5.1 Categorization of Defenses \nDefense Type Characteristics Common-law Created by a court \nStatutory Created by a state or federal legislature \nDenial or failure of proof Creates doubt in one or more elements of the offense and prevents \nthe prosecution from meeting its burden of proof \nAffirmative Raises an issue separate from the elements of the offense \nImperfect Reduces the severity of the offense \nPerfect Results in an acquittal \nFactual Based on an issue of fact \nLegal Based on an issue of law \nAlibi Asserts that the defendant was somewhere else when the crime was \ncommitted \nExpiration of the statute \nof limitations \nAsserts that it is too late for the government to prosecute the \ndefendant for the crime \nJustification Claims that the criminal conduct is justified under the circumstances \nExcuse Claims that the defendant should be excused for his or her conduct \nKEY TAKEAWAYS \n\u2022 A denial or failure of proof defense focuses on the elements of the crime and prevents the \nprosecution from meeting its burden of proof. An affirmative defense is a defense that raises \nan issue separate from the elements of the crime. Most affirmative defenses are based on \njustification or excuse and must be raised before or during the trial to preserve the issue for \n appeal. \n\u2022 An imperfect defense reduces the severity of the offense; a perfect defense results in an \nacquittal. \u2022 If the basis for a defense is an issue of fact, it is called a factual defense. If the basis for a \ndefense is an issue of law, it is called a legal defense. \n\u2022 \nAn example of a factual defense is an alibi defense, which asserts that the defendant could \nnot have committed the crime because he or she was somewhere else when the crime \noccurred. An example of a legal defense is a claim that the statute of limitations has expired, \nwhich asserts that it is too late for the government to prosecute the defendant for the crime. \n\u2022 \nAn affirmative defense is based on justification when it claims that criminal conduct is \njustified under the circumstances. An affirmative defense is based on excuse when it claims \nthat the criminal defendant should be excused for his or her conduct. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the end \nof the chapter. \n1. Carol is on trial for battery, a general intent crime. Carol puts on a defense that proves her \nconduct was accidental, not intentional. Is this an affirmative defense? Why or why not? \n2. Read State v. Burkhart, 565 S.E.2d 298 (2002). In Burkhart, the defendant was convicted of \nthree counts of murder. The defendant claimed he acted in self-defense. The jury instruction \ngiven during the defendant's trial stated that the prosecution had the burden of disproving \nself-defense. However, the instruction did not state that the prosecution's burden of \ndisproving self-defense was beyond a reasonable doubt. Did the Supreme Court of South \nCarolina uphold the defendant's conviction for the murders? The case is available at this link: \nhttp://scholar.google.com/scholar_case?case=1066148868024499763&hl=en&as_sdt=2 \n&as_vis=1&oi=scholarr. \n3. Read Hoagland v. State, 240 P.3d 1043 (2010). In Hoagland, the defendant wanted to assert a \nnecessity defense to the crime of driving while under the influence. The Nevada Legislature \nhad never addressed or mentioned a necessity defense. Did the Supreme Court of Nevada \nallow the defendant to present the necessity defense? \n5.2 Self-Defense LEARNING OBJECTIVES \n1. Define self-defense. \n2. Define deadly force. \n3. Ascertain the four elements required for self-defense. \n4. Ascertain two exceptions to the unprovoked attack requirement. \n5. Define the battered wife defense, and explain its justification under the imminence \nrequirement. \n6. Analyze when it is appropriate to use deadly force in self-defense. \n7. Distinguish between the duty to retreat and stand-your-ground doctrines. \n8. Define imperfect self-defense. \nAs stated previously, self-defense is a defense based on justification. Self-defense can be a \ndefense to assault, battery, and criminal homicide because it always involves the use of force. In \nthe majority of states, self-defense is a statutory defense.Mich. Comp. Laws \u00a7 780.972, accessed \nNovember 13, \n2010, http://www.legislature.mi.gov/(S(3li5rs55kkzn2pfegtskdunn))/mileg.aspx?page=getObjec \nt&objectName=mcl-780-972&highlight=self-defense. However, it can be modified or expanded \nby courts on a case-by-case basis. \nMost states have special requirements when the defendant uses deadly force in selfdefense. \nDeadly force is defined as any force that could potentially kill. An individual does not have to \nactually die for the force to be considered deadly. Examples of deadly force are the use of a knife, \ngun, vehicle, or even bare hands when there is a disparity in size between two individuals. \nSelf-defense can operate as a perfect or imperfect defense, depending on the circumstances. \nDefendants who commit criminal homicide justified by self-defense can be acquitted, or have a \nmurder charge reduced from first to second or third degree, or have a charge reduced from \nmurder to manslaughter. Criminal homicide is discussed in detail in Chapter 9 \"Criminal \nHomicide\". \nTo successfully claim self-defense, the defendant must prove four elements. First, with \nexceptions, the defendant must prove that he or she was confronted with an unprovoked \nattack. Second, the defendant must prove that the threat of injury or death was imminent. Third, the defendant must prove that the degree of force used in self-defense was objectively \nreasonable under the circumstances. Fourth, the defendant must prove that he or she had an \nobjectively 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 \u00a7 3.04(1) as \"justifiable when the \nactor believes that such force is immediately necessary for the purpose of protecting himself \nagainst the use of unlawful force by such other person on the present occasion.\" \nProvocation \nIn general, if the defendant initiates an attack against another, the defendant cannot \nclaim self-defense.State v. Williams, 644 P.2d 889 (1982), accessed November 13, \n2010, http://scholar.google.com/scholar_case?case=18157916201475630105&hl=en \n&as_sdt=2&as_vis=1&oi=scholarr. This rule has two exceptions. The defendant can \nbe the initial aggressor and still raise a self-defense claim if the attacked individual \nresponds with excessive force under the circumstances, or if the defendant \nwithdraws from the attack and the attacked individual persists. \nExcessive Force Exception \nIn some jurisdictions, an individual cannot respond to the defendant's attack using \nexcessive force under the circumstances.State v. Belgard, 410 So.2d 720 (1982), \naccessed November 13, \n2010, http://www.leagle.com/xmlResult.aspx?xmldoc=19821130410So2d720_1997. \nxml&docbase=CSLWAR1-1950-1985. For example, an individual cannot use deadly \nforce when the defendant initiates an attack using nondeadly force. If an \nindividual does resort to deadly force with a nondeadly force attack, the defendant \ncan use reasonable force in self-defense. \nExample of the Excessive Force Exception \nPatty and Paige get into an argument over a loan Patty made to Paige. Paige calls \nPatty a spoiled brat who always gets her way. Patty slaps Paige across the face. \nPaige grabs a carving knife from the kitchen counter and tries to stab Patty. Patty wrestles the knife away and stabs Paige in the chest, killing her. In this example, \nPatty provoked the attack by slapping Paige across the face. However, the slap is \nnondeadly force. In many jurisdictions, Paige cannot respond to nondeadly force \nwith deadly force, like a knife. Paige used excessive force in her response to \nPatty's slap, so Patty can use deadly force to defend herself and may not be \nresponsible for criminal homicide under these circumstances. \nWithdrawal Exception \nIn some jurisdictions, the defendant can be the initial aggressor and still use force in \nself-defense if the defendant withdraws from the attack, and communicates this \nwithdrawal to the attacked individual.N.Y. Penal Law \u00a7 35.15(1)(b), accessed \nNovember 13, 2010, http://law.onecle.com/new- \nyork/penal/PEN035.15_35.15.html. If the attacked individual persists in using force \nagainst the defendant after the defendant's withdrawal, rather than notifying law \nenforcement or retreating, the defendant is justified in using force under the \ncircumstances. \nExample of Withdrawal \nChange the excessive force exception example in Section 5 \"Example of the Excessive \nForce Exception\". Imagine that after Patty slaps Paige across the face, Paige begins \npounding Patty with her fists. Patty manages to escape and runs into the garage. She \nhuddles against the garage wall. Paige chases Patty into the garage. Patty says, \n\"Please, please don't hurt me. I'm sorry I slapped you.\" Paige kicks Patty in the back. \nPatty turns around and karate chops Paige in the neck, rendering her unconscious. \nIn many jurisdictions, Patty's karate chop is lawful under a theory of self-defense \nbecause she completely withdrew from the attack. Thus Patty is probably not \ncriminally responsible for battery, based on the karate chop to the neck. However, \nPatty could be criminally responsible for battery based on the slap to Paige's face \nbecause this physical contact was unprovoked and not defensive under the \ncircumstances. Figure 5.3 New York Penal Law Imminence \nThe defendant cannot use any degree of force in self-defense unless the defendant is \nfaced with an imminent attack.State v. Taylor, 858 P.2d 1358 (1993), accessed \nNovember 13, \n2010, http://scholar.google.com/scholar_case?case=1539441759711884447&hl=en& \nas_sdt=2&as_vis=1&oi=scholarr. Imminent means the attack is immediate and not \nsomething that will occur in the future. If the defendant is threatened with a future \nattack, the appropriate response is to inform law enforcement, so that they can \nincapacitate the threatening individual by arrest or prosecution. Another situation \nwhere imminence is lacking is when the attack occurred in the past. When the \ndefendant uses force to remedy a previous attack, this is retaliatory, and a \nselfdefense claim is not appropriate. The legal response is to inform law enforcement \nso that they can incapacitate the attacker by arrest or prosecution. \nSome state courts have expanded the imminence requirement to include situations \nwhere a husband in a domestic violence situation uses force or violence regularly \nagainst the defendant, a battered wife, therefore creating a threat of imminent harm \nevery day.Bechtel v. State, 840 P.2d 1 (1992), accessed November 13, \n2010, http://scholar.google.com/scholar_case?case=14171263417876785206&hl=en \n&as_sdt=2&as_vis=1&oi=scholarr. If a jurisdiction recognizes the battered wife \ndefense, the defendant\u2014the battered wife\u2014can legally use force against her abusive \nhusband in self-defense in situations where harm is not necessarily immediate. \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 \nout a contract on her life. Fiona pulls out a loaded gun and shoots Vinny. Fiona \ncannot successfully argue self-defense in this case. Vinny's threat was a threat of \nfuture harm, not imminent harm. Thus Fiona had plenty of time to contact law \nenforcement to help protect her safety. Example of an Attack That Is Retaliatory \nDwight and Abel get into a fist fight. Dwight knocks Abel unconscious. Dwight \nobserves Abel for a few minutes, and then he picks up a large rock and crushes Abel's \nskull with it, killing him. Dwight cannot claim self-defense in this situation. Once \nDwight realized that Abel was unconscious, he did not need to continue to defend \nhimself against an imminent attack. Dwight's conduct appears retaliatory and is not \njustified under these circumstances. \nExample of an Imminent Attack under the Battered Wife Defense \nSpike severely beats and injures his wife Veronica every couple of days. Spike's \nbeatings have become more violent, and Veronica starts to fear for her life. One \nnight, Veronica shoots and kills Spike while he is sleeping. In states that have \nexpanded self-defense to include the battered wife defense, Veronica may be \nsuccessful on a theory of self-defense. \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 \nmurder of her husband, a pastor.Mara Gay, \"Abused Wife Who Killed Preacher \nHusband Speaks Out,\" Huffingtonpost.com website, accessed August 25, 2011, \nhttp://www.aolnews.com/2010/11/05/abused-wife-who-killed-preacherhusband-\nspeaks-out. (click to see video) \nProportionality \nThe defendant cannot claim self-defense unless the degree of force used is \nobjectively reasonable under the circumstances. This requirement primarily \nfocuses on the use of deadly force and when it is legally justified. In general, deadly \nforce can by employed in self-defense when a reasonable person feels threatened \nwith imminent death, serious bodily injury, and, in some jurisdictions, a \nserious felony.Or. Rev. Stat. \u00a7 161.219, accessed November 13, 2010, http://www.leg.state.or.us/ors/161.html. Serious bodily injury and serious \nfelony are technical terms that are defined in a statute or case, depending on the \njurisdiction. The Model Penal Code states that deadly force is not justifiable \"unless \nthe actor believes that such force is necessary to protect himself against death, \nserious bodily harm, kidnapping or sexual intercourse compelled by force or threat\" \n(Model Penal Code \u00a7 3.04(2)(b)). \nExample of Appropriate Deadly Force \nNicholas, an intruder, pins Wanda to the floor of her garage and begins to forcibly \nremove her clothing. Wanda feels around the floor with her hand and finds a \nscrewdriver. She plunges the screwdriver into Nicholas's neck, killing him. Wanda \nhas used appropriate force and can claim self-defense in most jurisdictions. A \nreasonable person in Wanda's situation would feel deadly force is necessary to repel \nNicholas's sexual assault. Nicholas's attack is a serious felony that could result in \nserious bodily injury or death. Thus the use of deadly force is legally justified \nunder these circumstances. \nDuty to Retreat \nEarly common law stated that the defendant had a duty to retreat to the wall before \nusing deadly force against an attacker. The majority of states have rejected this \ndoctrine and instead allow the defendant to stand his or her ground if the defendant \nis not the initial aggressor in the confrontation.State v. Sandoval, 130 P.3d 808 \n(2006), accessed November 13, \n2010, http://www.publications.ojd.state.or.us/S53457.htm. In jurisdictions that still \nfollow the retreat doctrine, the defendant must retreat if there is an objectively \nreasonable belief that the attacker will cause death or serious bodily injury, and a \nretreat won't unreasonably increase the likelihood of death or serious bodily \ninjury.Connecticut Criminal Jury Instructions, No. 2.8-3, accessed November 13, \n2010, http://www.jud.ct.gov/ji/criminal/part2/2.8-3.htm. The Model Penal Code \ndefines the duty to retreat by stating that the use of deadly force is not justifiable if \n\"the actor knows that he can avoid the necessity of using such force with complete safety by retreating\" (Model Penal Code \u00a7 3.04 (2) (b) (ii)). An established exception \nto the retreat doctrine in jurisdictions that follow it is the defense of the home, which \nis called the castle doctrine. The castle doctrine is discussed shortly. \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 \nstrapped to her leg and begins to advance toward Sandy. Sandy also has a knife in \nher pocket. In a state that follows the retreat doctrine, Sandy must attempt to \nescape, if she can do so safely. In a state that follows the stand-your-ground \ndoctrine, Sandy can defend herself using her own knife and claim lawful \nselfdefense. Note that Sandy was not the initial aggressor in this situation. If Sandy \npulled a knife first, she could not use the knife and claim self-defense, whether the \nstate follows the stand-your-ground doctrine or the duty to retreat doctrine. \nObjectively Reasonable Fear of Injury or Death \nThe defendant cannot claim self-defense unless a reasonable person in the \ndefendant's situation would believe that self-defense is necessary to avoid injury or \ndeath. If the defendant honestly but unreasonably believes self-defense is necessary \nunder the circumstances, a claim of imperfect self-defense may reduce the severity of \nthe offense.State v. Faulkner, 483 A.2d 759 (1984), accessed November 13, \n2010, http://scholar.google.com/scholar_case?case=17158253875987176431&hl=en \n&as_sdt=2&as_vis=1&oi=scholarr. However, the defendant is still guilty of a crime, \nalbeit a less serious crime. \nExample of Unjustified Conduct \nJustin, who weighs over two hundred pounds and is six feet tall, accidentally bumps \ninto Wanda, a slender ten-year-old child. Wanda spins around and shakes her fist at \nJustin. Justin responds by shoving Wanda so hard that she crashes into a telephone \npole 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 Justin's response is unnecessary and unjustified in this \ncase. \nExample of Imperfect Self-Defense \nChange the unjustified conduct example given in Section 5 \"Example of Unjustified \nConduct\". Imagine that a slender, female ten-year-old severely abused Justin when \nhe was younger. Since the abusive incident, Justin has an unreasonable fear of \nfemale children and honestly believes that they can and will hurt him if provoked. If \nthe trier of fact determines that Justin honestly but unreasonably believed that \nWanda was about to inflict serious bodily injury or kill him, any charge of murder \ncould be reduced to manslaughter on a theory of imperfect self-defense. \nKEY TAKEAWAYS \n\u2022 Self-defense is a defense based on justification that allows a defendant to use physical force \n to protect himself or herself from injury or death. \n\u2022 Deadly force is any force that can produce death. An individual does not have to die for the \nforce to be deemed deadly. \n\u2022 \nFour elements are required for self-defense: (1) an unprovoked attack, (2) which threatens \nimminent injury or death, and (3) an objectively reasonable degree of force, used in response \nto (4) an objectively reasonable fear of injury or death. \n\u2022 Two exceptions to the unprovoked attack rule are an individual's use of excessive force in \nresponse to an initial attack and the defendant's withdrawal from the initial attack. \n\u2022 \nThe battered wife defense asserts that a woman who is a victim of spousal abuse may use \nforce in self-defense under certain circumstances, even when the threat of harm is not \nimmediate. The battered wife defense is justified with respect to the imminence \nrequirement: because the abuse is so constant, the battered wife faces an imminent threat \nevery day. \n\u2022 Deadly force is appropriate in self-defense when the attacker threatens death, serious bodily \ninjury, and, in some jurisdictions, a serious felony. \u2022 \nThe duty to retreat doctrine is a common-law rule requiring a defendant to retreat if it is safe \nto do so, instead of using deadly force in self-defense. The stand-your-ground doctrine is a \nrule allowing the defendant to use deadly force if appropriate in self-defense, rather than \nretreating. \n\u2022 \nImperfect self-defense is a defense available when the defendant has an honest but \nunreasonable belief that force is necessary to defend against injury or death. Imperfect \nselfdefense reduces the severity of the offense, but does not result in acquittal. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the end \nof the chapter. \n1. Scott's wife Diane constantly physically abuses him. One night while Diane is sleeping, Scott \nplaces a pillow over her face and smothers her. Can Scott defend against a charge of criminal \nhomicide by claiming self-defense? Why or why not? \n2. Read Rodriguez v. State, 212 S.W.3d 819 (2006). In Rodriguez, the defendant was convicted \nof murder and attempted murder. The defendant appealed his convictions on the ground \nthat the jury did not unanimously reject each element of self-defense. Did the Court of \nAppeals of Texas uphold the defendant's convictions? The case is available at this link: \nhttp://www.lexisone.com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&format= \nFULL&sourceID=bcdba&searchTerm= eNjT.TNga.aadj.ecGW&searchFlag=y&l1loc=FCLOW. \n3. Read Shuler v. Babbitt, 49 F.Supp.2d 1165 (1998). In Shuler, the defendant shot and killed a \ngrizzly bear that charged him while he checked a sheep pasture to make sure his sheep were \nsafe. The sheep had already been subjected to several bear attacks. The Fish and Wildlife \nService thereafter fined the defendant under the Endangered Species Act. The defendant \nclaimed self-defense against the bear. The Fish and Wildlife Service ruled that the defendant \nprovoked the attack and could not claim self-defense. Did the US District Court for the \nDistrict of Montana uphold the fine? The case is available at this link: \nhttp://www.gilalivestockgrowers.org/documents/ShulerVsBabbitt.pdf. \nLAW AND ETHICS: THE MENENDEZ BROTHERS \nWere They Entitled to a Jury Instruction on Imperfect Self-Defense? Read Menendez v. Terhune, 422 F.3d 1012 (2005). The case is available at this \nlink: http://cases.justia.com/us-court-of-appeals/F3/422/1012/569492. \nLyle and Eric Menendez were tried and convicted of murder and conspiracy to \ncommit murder of their parents. There were two series of trials. The first trial, which \nhad two separate juries, resulted in two hung juries. At the first trial, the brothers \nintroduced evidence of sexual abuse by their father, and the court instructed the jury \non imperfect self-defense. The imperfect self-defense jury instruction was based on \nthe brothers' honest but unreasonable fear that their father would hurt or kill \nthem.Menendez v. Terhune, 422 F.3d 1012, 1024 (2005), accessed November 19, \n2010, http://cases.justia.com/us-court-of-appeals/F3/422/1012/569492. The second \ntrial took place in front of one jury and resulted in the convictions. During the second \ntrial, some evidence of abuse was excluded, Lyle Menendez refused to testify, and \nthere was no jury instruction on imperfect self-defense. After sentencing, the \nbrothers petitioned for a writ of habeas corpus based on several claims, including the \nexclusion of the abuse evidence and failure to instruct the jury on imperfect \nselfdefense.Menendez v. Terhune, 422 F.3d 1012, 1016 (2005), accessed November \n19, \n2010, http://cases.justia.com/us-court-of-appeals/F3/422/1012/569492. The US \nCourt of Appeals for the Ninth Circuit affirmed the district court's denial of the \npetition on grounds that there was insufficient evidence to support the jury \ninstruction on imperfect self-defense and no foundation to support the \nadmissibility 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 \nkilled their parents. \nThe facts of the case are lurid. Evidence included the sexual abuse of both boys by \ntheir father, surreptitiously taped psychotherapy sessions, spending sprees, \nfabricated mafia hit stories, and alleged will tampering by the brothers after the \nparents were killed. \n1. Do you think the Menendez case should have been treated as a \"battered child syndrome\" \ncase, easing the requirement of imminence and allowing for a jury instruction on imperfect \nself-defense? \nCheck your answer using the answer key at the end of the chapter. Menendez Brothers Video \nLyle and Erik Menendez News Report \nA news story on the conviction of the Menendez brothers is presented in this video: \n(click to see video) \n5.3 Other Use-of-Force Defenses \nLEARNING OBJECTIVES \n1. Ascertain the elements required for the defense of others. \n2. Define real and personal property. \n3. Explain the appropriate circumstances and degree of force a defendant can use when \ndefending property. \n4. Ascertain the elements required for the defense of ejection of trespasser. \n5. Distinguish defense of property from defense of habitation. \n6. Ascertain the three elements required for the use of deadly force in defense of habitation \nunder modern castle laws. \n7. Identify three common features of modern castle laws. \n8. Ascertain the constitutional parameters of the use of force by law enforcement to arrest or \napprehend criminal suspects. \nAside from self-defense, a defendant can legally use force to defend another person, real or \npersonal property, and habitation. In addition, law enforcement can use force to arrest or \ncapture individuals who reasonably appear to be committing crimes. In this section, the elements \nof several use-of-force defenses will be reviewed. Keep in mind that these defenses can be \nstatutory, common-law, perfect, or imperfect, depending on the facts and the jurisdiction. \nDefense of Others \nAccording to early common law, a defendant could use force to defend another only \nwhen the defendant and the person defended had a special relationship, such as a \nfamily connection. Most jurisdictions now reject this common-law restriction on defense of others and allow a defendant to defend anyone to the same degree that he \nor she could use self-defense.People v. Kurr, 654 N.W.2d 651 (2002), accessed \nNovember 14, \n2010, http://scholar.google.com/scholar_case?case=14992698629411781257&hl=en \n&as_sdt=2&as_vis=1&oi=scholarr. Thus in a majority of jurisdictions, defense of \nothers requires the same elements as self-defense: the individual defended must be \nfacing an unprovoked, imminent attack, and the defendant must use a reasonable \ndegree of force with a reasonable belief that force is necessary to repel the attack. \nOccasionally, a defendant uses force to defend another who has no legal right to use \nforce in self-defense. Under the common law, the defendant could not use force \nlegally if the individual defended could not use force legally in self-defense. However, \nthe 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 \ncircumstances.Commonwealth v. Miranda, No. 08-P-2094 (2010), accessed \nNovember 14, 2010, http://www.socialaw.com/slip.htm?cid=19939&sid=119. The \nModel Penal Code allows the defense of another when \"under the circumstances as \nthe actor believes them to be, the person whom he seeks to protect would be justified \nin using such protective force\" (Model Penal Code \u00a7 3.05(1) (b)). Thus if the \ndefendant has a subjective belief that the individual defended could use force legally \nin self-defense, defense of others is appropriate under the Model Penal Code. \nExample of Defense of Others \nAlex and Shane, aspiring law enforcement officers, are performing a training \nmaneuver in a rural area. Their instructor Devin is watching nearby. Alex pretends to \nattack Shane. Just as Devin is about to demonstrate a takedown, Timmy, who is \njogging in the area, dashes over and begins beating Alex. Under the older \ncommonlaw rule, Timmy could be successfully prosecuted for battery of Alex. Shane \ndid not have the right to use self-defense during a practice maneuver, so neither did \nTimmy. In jurisdictions that allow defense of others if it reasonably appears that self-\ndefense is warranted, Timmy could probably use the defense to battery because it reasonably appeared that Alex was about to unlawfully attack Shane. In \njurisdictions that follow the Model Penal Code, Timmy can most likely use defense of \nothers as a defense to battery because it is clear Timmy honestly believed Shane had \nthe right to use selfdefense in this situation. \nDefense of Property \nAll jurisdictions allow individuals to use force in defense of property under certain \nspecified circumstances. Property can be real or personal. Real property is land and \nanything permanently attached to it. This includes a home. However, defense of the \nhome is discussed in Section 5.3.3 \"Defense of Habitation\". Personal property is any \nmovable object. \nIn the majority of states, the defendant can use force only to defend real or personal \nproperty if the defendant has an objectively reasonable belief that \nan imminent threat of damage, destruction, or theft will occur.California Criminal \nJury Instructions No. 3476, accessed November 15, \n2010, http://www.justia.com/criminal/docs/calcrim/3400/3476.html. The Model \nPenal Code provides \"the use of force upon or toward the person of another is \njustifiable when the actor believes that such force is immediately necessary: (a) to \nprevent or terminate an unlawful entry or other trespass upon land or a trespass \nagainst or the unlawful carrying away of tangible, movable property\" (Model Penal \nCode \u00a73.06(1) (a)). Thus if the defendant has a subjective belief that force is \nimmediately necessary to protect real or personal property, force is appropriate \nunder the Model Penal Code. \nThe amount of force that a defendant may legally use to protect real or personal \nproperty is reasonable force, under the circumstances.K.S.A. \u00a7 21-3213, accessed \nNovember 15, 2010, \nhttp://kansasstatutes.lesterama.org/Chapter_21/Article_32/213213.html. The \ndefendant can also chase someone who steals personal property and take the item \nback.Conn. Gen. Stat. \u00a7 53a-21, accessed November 15, 2010, http://www.cga.ct.gov/2009/pub/chap951.htm#Sec53a-21.htm. The Model \nPenal Code provides \"the use of force upon or toward the person of another is \njustifiable when the actor believes that such force is immediately necessary\u2026to \nretake tangible movable property\" (Model Penal Code \u00a73.06(1) (b)). In general, the \nModel Penal Code and most states do not authorize the use of deadly force to \nprotect property (other than the home) under any circumstances.Fla. Stat. Ann. \n\u00a7 776.031, accessed November 16, \n2010, http://law.justia.com/florida/codes/2007/TitleXLVI/chapter776/776_031.ht \nml. \nExample of Defense of Property \nKelsey sees Keith, her stepbrother, approaching her brand new car with a key in his \nhand. It appears that Keith is about to scrape the paint on the door of the car with \nthis key. Kelsey tackles Keith to prevent him from vandalizing the car. Kelsey has \nprobably used reasonable force under the circumstances and can claim defense of \nproperty as a defense to battery. If Keith testifies that he was simply going to hand \nKelsey the key, which she left in the house, the attack could still be justified if the \ntrier of fact determines that it was objectively reasonable for Kelsey to believe Keith \nwas about to damage her property. In jurisdictions that follow the Model Penal Code, \nKelsey can probably use defense of property as a defense to battery because it is clear \nKelsey believed that force was immediately necessary to protect her personal \nproperty in this situation. Of course, if Kelsey pulls out a gun and shoots Keith, she \ncould not claim defense of property because deadly force is never justifiable to \nprotect real or personal property from harm. \nEjection of Trespasser \nA simple trespasser is an individual who is present on real property without consent \nof the owner. Property owners have the legal right to eject trespassers under certain \nspecified circumstances. Most states authorize the ejection of a trespasser if the trespasser is first asked to \nleave and fails to comply within a reasonable time.N.J. Stat. \u00a7 2C:3-6, accessed \nNovember 15, 2010, http://law.onecle.com/new-jersey/2c-the-new-jersey-code-\nofcriminal-justice/3-6.html. The degree of force that can be used to eject the \ntrespasser is reasonable force, under the circumstances.Iowa Code \u00a7 704.4, accessed \nNovember \n15, 2010, http://coolice.legis.state.ia.us/cool- \nice/default.asp?category=billinfo&service=iowacode&ga=83&input=704#704.4. Dea \ndly force is never reasonable to eject a trespasser unless the trespasser threatens \nimminent deadly force against the defendant or another individual.State v. Curley, \nDocket # 0000011.WA (Wash. App. 2010), accessed November 15, \n2010, http://scholar.google.com/scholar_case?case=11648057948374905030&q= \nState+v.+Curley&hl=en&as_sdt=2,5&as_ylo=2009. Deadly force under these \ncircumstances is justified by self-defense or defense of others, not ejection of \ntrespasser. \nExample of Ejection of Trespasser \nSam sees Burt sitting on his lawn. Sam goes up to Burt and asks him to \"move along.\" \nBurt looks up, but does not stand. Sam goes into the house and calls law \nenforcement, but they inform Sam that there is a local emergency, and they cannot \ncome and eject Burt for at least five hours. Sam goes back outside and sees that Burt \nis now sprawled out across the lawn. Sam grabs Burt, lifts him to his feet, and pushes \nhim off the lawn and onto the sidewalk. Sam can probably use ejection of \ntrespasser as a defense to battery of Burt. Sam asked Burt the trespasser to leave, \nand Burt ignored him. Sam's attempt to rely on law enforcement was likewise \nunsuccessful. Sam's use of nondeadly force appears objectively reasonable. Thus \nSam's ejection of a trespasser is most likely appropriate under these circumstances. \nDefense of Habitation \nDefense of habitation is a defense that applies specifically to the defendant's residence. At early common law, a person's home was as sacred as his or \nher person, and deadly force could be employed to protect it. The majority of states \nhave since enacted modern castle laws that embody this common-law doctrine. \nOther than the use of deadly force, defense of habitation generally follows the same \nrules as defense of property, self-defense, and defense of others. Thus this defense of \nhabitation discussion focuses primarily on the use of deadly force. \nThe first state to expand the defense of habitation to include the use of deadly force \nwas Colorado, with its \"make my day\" self-defense statute.Colo. Rev. Stat. Ann. \u00a7 18- \n1-704.5, accessed November 16, \n2010, http://www.co.jefferson.co.us/jeffco/sheriff_uploads/revised_statutes.htm. I \nn 2005, Florida began a wave of castle law modifications that resulted in most states \nrevising their defense of habitation laws.Fla. Stat. Ann. \u00a7 776.013, accessed \nNovember 16, 2010, http://law.onecle.com/florida/crimes/776.013.html. Generally, \nthree elements must be present before the use of deadly force is appropriate to \ndefend habitation under modern castle laws. First, the intruder must actually enter \nor be in the process of entering the residence owned by the defendant.Fla. Stat. Ann. \n\u00a7 776.013, accessed November 16, \n2010, http://law.onecle.com/florida/crimes/776.013.html. This excludes intruders \nwho are outside or in the curtilage, which is the protected area around the home. \nSecond, the residence must be occupied when the entry occurs. This excludes devices \nlike spring-guns that protect unoccupied dwellings with deadly force.People v. \nCeballos, 526 P.2d 241 (1974), accessed November 16, \n2010, http://wings.buffalo.edu/law/bclc/web/calceballos.htm. Third, the defendant \nmust have an objectively reasonable belief that the intruder intends to commit a \ncrime of violence against the occupant(s) after entry.Or. Rev. Stat. \u00a7 161.225, \naccessed November 16, 2010, http://www.leg.state.or.us/ors/161.html. The Model \nPenal Code provides \"[t]he use of deadly force is not justifiable\u2026unless the actor \nbelieves that\u2026the person against whom the force is used is attempting to dispossess \nhim of his dwelling\u2026or\u2026attempting to commit\u2026arson, burglary, robbery or other \nfelonious theft\u2026and either\u2026has employed or threatened deadly force\u2026or\u2026the use of force other than deadly force would expose the actor or another in his presence to \nsubstantial danger of serious bodily harm\" (Model Penal Code \u00a7 3.06 (3)(d)). \nThe majority of states' castle laws abolish any duty to retreat when inside the \nhome.Alaska Stat. \u00a7 11.81.335(b), accessed November 16, \n2010, http://touchngo.com/lglcntr/akstats/Statutes/Title11/Chapter81/Section335. \nhtm. Florida's castle law creates a presumption that the defendant has a reasonable \nfear of imminent peril of death or great bodily injury when the intruder makes an \nunlawful or forceful entry.Fla. Stat. Ann. \u00a7 776.013, accessed November 16, 2010, \nhttp://law.onecle.com/florida/crimes/776.013.html. This compels the prosecution \nto disprove the defendant's reasonable belief of death or great bodily injury beyond \na reasonable doubt, which is extremely difficult. Additional features of many castle \nlaws are civil immunity and criminal immunity from prosecution.720 \nILCS \u00a7 5/7-2 (b), accessed November 16, \n2010, http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=072000050HArt.+7 \n&ActID=1876&ChapAct=720. Immunity from prosecution means that a \ndefendant who complies with the castle law requirements cannot be sued for \ndamages or prosecuted for a crime based on injury or death to the intruder. \nFigure 5.4 Crack the Code Example of Defense of Habitation under a Castle Law \nNate, a homeowner with three children, hears the front door open in the middle of \nthe night. Nate removes a handgun from the nightstand and creeps silently down \nthe stairs. He sees Bob tiptoeing toward his daughter's bedroom. Nate shoots and \nkills Bob. Unfortunately, Bob is Nate's daughter's boyfriend, who was trying to enter \nher bedroom for a late-night get-together. Nate could probably assert the defense of \nprotection of habitation under modern castle laws in most jurisdictions. Bob \nmade entry into an occupied residence. It is difficult to identify individuals in \nthe dark and to ascertain their motives for entering a residence without the owner's \nconsent. Thus it was objectively reasonable for Nate to feel threatened by Bob's \npresence and to use deadly force to protect his domicile and its residents. If Nate is \nsuccessful with his defense, he will also be immune from a civil suit for damages if \nthe castle law in his jurisdiction provides this immunity. \nChange the example with Nate and Bob so that Bob enters the residence during the \nday, and Nate identifies him as his daughter's boyfriend. Under these \ncircumstances, the prosecution could rebut any presumption that Nate's actions \nwere objectively reasonable. A reasonable person would ask Bob why he was \nentering the residence before shooting and killing him. The trier of fact might \ndetermine that Nate's intent was not to protect himself and his family, but to kill \nBob, which would be malice aforethought. If Nate's actions are not justifiable by the \ndefense of habitation, he could be charged with and convicted of first-degree murder \nin this situation. \nUse of Force in Arrest and Apprehension of Criminal Suspects \nOccasionally, law enforcement must use force to effectuate an arrest or apprehend a \ncriminal suspect. The appropriate use of force during an arrest or apprehension can \noperate as a defense to assault, battery, false imprisonment, kidnapping, and \ncriminal 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 individual for any felony. Modern law enforcement's \nability to use deadly force is governed by the US Constitution. \nThe US Supreme Court clarified the constitutional standard for law enforcement's \nuse of deadly force in Tennessee v. Garner, 471 U.S. 1 (1985). In Garner, the Court \ninvalidated a Tennessee statute that allowed law enforcement to exercise any \ndegree 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 \nunarmed. The Court held that the Fourth Amendment governed law enforcement's \nuse of deadly force in this situation because the use of deadly force is a seizure. \nThus law enforcement's use of deadly force must be scrutinized pursuant to the \nstandard of constitutional reasonableness. According to the Court, the only \nconstitutionally reasonable circumstances under which law enforcement can use \ndeadly 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 \nserious physical injury to the officer or others. \nCurrently, most jurisdictions have statutes protecting law enforcement's reasonable \nuse of force when effectuating an arrest or apprehending a fleeing suspect. Under \nGarner, these statutes must restrict the lawful use of deadly force to potentially \ndeadly situations. If a law enforcement officer exceeds the use of force permitted \nunder the circumstances, the law enforcement officer could be prosecuted for a \ncrime or sued for civil damages (or both). \nExample of Reasonable Force by Law Enforcement to Arrest \nReview the example in Chapter 1 \"Introduction to Criminal Law\", Section 1.2.1 \n\"Example of Criminal Law Issues\". In that example, Linda puts a bra in her purse \nwithout paying for it at an expensive department store. When she attempts to leave \nthe store, an alarm is activated. Linda begins sprinting down the street. Colin, a \npolice officer, just happens to be driving by with the window of his patrol car open. \nHe hears the store alarm, sees Linda running, and begins shooting at Linda from the \ncar. Linda is shot in the leg and collapses. In this example, no facts exist to indicate that Linda poses a potentially deadly threat to Colin or others. The fact that Linda \nis running down the street and an alarm is going off does not demonstrate that \nLinda has committed a crime necessitating deadly force to arrest. Thus Colin can \nuse only nondeadly force to arrest Linda, such as his hands, or possibly a stun gun \nor Taser to subdue her. If Linda is unarmed and Colin uses a firearm to subdue her, \nthe utilization of deadly force is excessive under these circumstances and Colin has \nno defense to assault with a deadly weapon or to attempted murder. \nChange this example and imagine that Colin pulls over and attempts to arrest Linda. \nLinda removes a gun from her purse. Under most modern statutes, Colin does not \nhave a duty to retreat and can use deadly force to arrest or apprehend Linda. Under \nGarner, it is reasonable to believe that Linda poses a danger of death or serious \nbodily injury to Colin or others. Thus Colin can constitutionally use deadly force to \nprotect himself and the public from harm in this situation. Note that Linda's theft is \nprobably a misdemeanor, not a felony. However, it is Linda's exhibition of deadly \nforce to resist arrest that triggers Colin's deadly force response. Under these \ncircumstances, Colin's use of deadly force is justified and can operate as a legal \ndefense in a criminal prosecution or civil suit for damages. \nFigure 5.5 Diagram of Use-of-Force Defenses KEY TAKEAWAYS \n\u2022 Defense of others has the same elements as self-defense: the individual defended must be \nfacing an unprovoked, imminent attack, and the defendant must use a reasonable degree of \n force with a reasonable belief that force is necessary to repel the attack. \n\u2022 Real property is land and anything permanently attached to it. Personal property is any \nmovable object. \n\u2022 \nThe defendant can use nondeadly force to defend real or personal property if the defendant \nhas an objectively reasonable belief that an imminent threat of damage, destruction, or theft \nwill occur. \n\u2022 Property owners can use reasonable nondeadly force to eject a trespasser after first asking \nthe trespasser to leave. \n\u2022 Only nondeadly force may be used to defend property; deadly force may be used to defend \nhabitation. \n\u2022 \nThe defendant can use deadly force to defend habitation under modern castle laws if an \nintruder enters occupied premises, and the defendant has an objectively reasonable belief \nthat the intruder will seriously injure or kill the occupants. \n\u2022 \nModern castle laws abolish the duty to retreat when inside the home, occasionally include a \npresumption that the defendant has an objectively reasonable belief the intruder is going to \nseriously injure or kill the occupants, and provide civil and criminal immunity from \nprosecution. \n\u2022 \nUse of deadly force by law enforcement is considered a seizure under the Fourth \nAmendment, so law enforcement cannot use deadly force to apprehend or arrest a criminal \nsuspect unless there is probable cause to believe the suspect will inflict serious physical injury \nor death upon the officer or others. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the end \nof the chapter. \n1. Melanie watches as Betty verbally abuses Colleen. Betty is a known bully who verbally \nabused Melanie in the past. Betty calls Colleen an expletive and gives her a firm shove. \nMelanie walks up behind Betty, removes a knife from her pocket, and plunges the knife into Betty's back. Betty suffers internal injuries and later dies. Can Melanie use defense of others \nas a defense to criminal homicide? Why or why not? \n2. Read Commonwealth v. Alexander, 531 S.E.2d 567 (2000). In Alexander, the defendant was \nconvicted of brandishing a weapon when he pointed an unloaded rifle at an individual who \nwas repossessing his vehicle in an aggressive and belligerent manner. Did the Supreme Court \nof Virginia uphold the defendant's conviction? The case is available at this \nlink: http://caselaw.findlaw.com/va-supreme-court/1454888.html. \n3. Read Dutton v. Hayes-Pupko, No. 03-06-00438 (2008). In Dutton, a law enforcement officer \nasked the victim for her name and date of birth after she allegedly sprayed her neighbors \nwith a hose. The victim refused to respond, and the law enforcement officer handcuffed her \nand forced her into his vehicle, injuring her wrist. The victim sued for use of excessive force in \narrest. Did the Texas Court of Appeals hold that the victim had the right to sue the officer for \nuse of excessive force in arrest? \n5.4 Defenses Based on Choice \nLEARNING OBJECTIVES \n1. Ascertain the three elements required for the choice of evils defense. \n2. Distinguish between the choice of evils defense and the duress defense. \n3. Identify one crime that is not justifiable by the choice of evils defense or the duress defense. \nOccasionally, the law protects a defendant from criminal responsibility when the defendant has \nno choice but to commit the crime. In this section, we review the choice of evils and duress \ndefenses. \nChoice of Evils Defense \nThe choice of evils defense (called the necessity defense in some jurisdictions) \nprotects a defendant from criminal responsibility when the defendant commits a \ncrime to avoid a greater, imminent harm. Under the Model Penal Code, \"[c]onduct \nwhich the actor believes to be necessary to avoid harm or evil\u2026is justifiable, \nprovided that: (a) the harm or evil sought to be avoided by such conduct is greater \nthan that sought to be prevented by the law defining the offense charged\" (Model Penal Code \u00a7 3.02(1)(a)). The choice of evils defense can be statutory or common-\nlaw, perfect or imperfect, depending on the jurisdiction. \nThe choice of evils defense generally requires three elements. First, there must be \nmore than one harm that will occur under the circumstances. Usually, the harms are \nthe product of nature, or are circumstances beyond the defendant's control.State v. \nHolmes, 129 Ohio Misc. 2d 38 (2004), accessed November 22, \n2010, http://www.sconet.state.oh.us/rod/docs/pdf/98/2004/2004-ohio7334.pdf. \nSecond, the harms must be ranked, with one of the harms ranked more severe than \nthe other. The ranking is generally up to the legislature or common law. In many \njurisdictions, the loss of life is never justifiable under this defense and cannot be \nranked lower than any other harm.Ky. Rev. Stat. Ann. \u00a7 503.030, accessed \nNovember 22, 2010, http://www.lrc.ky.gov/krs/503-00/030.PDF. Third, the \ndefendant 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 \nharm.Tenn. Code Ann. \u00a7 39-11-609, accessed November 22, 2010, \nhttp://www.michie.com/tennessee/lpext.dll?f=templates&fn=main- \nh.htm&cp=tncode. \nFigure 5.6 Kentucky Revised Statutes The choice of evils defense is rarely used and is generally only a defense to the loss or \ndestruction of property. When the defense is perfect, it results in an acquittal. When \nthe defense is imperfect, it results in a reduction in sentence or the defendant's \nconviction of a lesser offense. \nExample of the Choice of Evils Defense \nTamara gets lost while hiking in a remote, mountainous area. After wandering \naround for hours with the temperature dropping, Tamara finds a locked cabin. \nTamara breaks a window and climbs inside. Once inside, Tamara prepares some \ncanned chili, drinks tap water, and uses the telephone to call law enforcement. \nTamara could probably plead and prove choice of evils as a defense to burglary and \ntheft in many jurisdictions. Tamara was confronted with two harms: harm to her \npersonal safety and well-being and harm to the real and personal property of \nanother. The harm to Tamara's health and safety is ranked more severe than the \nminimal harm to property. It is objectively reasonable to break into and enter a \ncabin and use some of the supplies inside to prevent imminent injury or death. Thus \nalthough Tamara committed burglary and theft in many jurisdictions, she did so with \nthe reasonable belief that she was saving her own life. A trier of fact could find that \nthe harm avoided by Tamara's actions was greater than the harm caused by the \nburglary and theft, and Tamara could be acquitted, or have her sentence or crime \nreduced, depending on the jurisdiction. \nChange the facts in the preceding example, and imagine that Tamara steals money \nand jewelry in addition to the chili and tap water. Tamara could not successfully \nprove the defense of choice of evils to this additional theft. No harm was avoided by \nTamara's theft of the money and jewelry. Thus choice of evils cannot justify this \ncrime. \nChange the facts in the preceding example, and imagine that Tamara kills the cabin's \nowner because he refuses to allow her to enter. Tamara could not successfully prove \nthe defense of choice of evils under these circumstances. Tamara's life is no more important than the cabin owner's. Thus Tamara cannot rank the harms, and choice \nof evils cannot justify criminal homicide in this case. \nThe Duress Defense \nIn some jurisdictions, the choice of evils defense is called the duress defense if the \nchoice of evils is deliberately brought on by another individual, rather than by \nnature, an act of God, or circumstances outside the defendant's control. The Model \nPenal Code defines the duress defense as \"an affirmative defense that the actor \nengaged in the conduct\u2026because he was coerced to do so by the use of, or a threat to \nuse, unlawful force against his person or the person of another\" (Model Penal Code \n\u00a7 2.09(1)). \nThree elements are required for the duress defense. First, the defendant or another \nperson must face a threat of imminent serious bodily injury or death.Conn. Gen. \nStat. \n\u00a7 53a-14, accessed November 22, \n2010, http://search.cga.state.ct.us/dtsearch_pub_statutes.html. Second, the \ndefendant must have an objectively reasonable belief that the only way to avoid the \nserious bodily injury or death is to commit the crime at issue.Haw. Rev. Stat. \u00a7 702- \n231, accessed November 22, \n2010, http://codes.lp.findlaw.com/histatutes/5/37/702/702-231. Third, in most \njurisdictions, the crime committed cannot be criminal homicide.RCW 9A.16.060, \naccessed November 22, \n2010, http://apps.leg.wa.gov/rcw/default.aspx?cite=9A.16&full=true#9A.16.060. Li \nke choice of evils, the duress defense is rarely used and can be statutory or common \nlaw, perfect or imperfect, depending on the jurisdiction. \nExample of the Duress Defense \nKeisha, a bank teller, hands Brian, a bank robber, money out of her drawer after he \npoints a loaded gun at her head. Technically, Keisha embezzled the money from the bank, but she did so based on the objectively reasonable fear that Brian would kill \nher if she failed to comply with his demands. Keisha can successfully \nclaim duress as a defense to any charge of theft. If Brian had pointed the gun at \nanother client in line at the bank instead of Keisha, Keisha could still prevail using \nthe 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's threat is made \nin a phone call, rather than in person. Brian threatens to kill Keisha if she doesn't \nplace thousands of dollars in an envelope and mail it to him at a specified address. If \nKeisha complies, Keisha cannot prove duress as a defense to theft. Brian's threat by \nphone call is not a threat of imminent death. In addition, it is not objectively \nreasonable to be frightened by a voice on the telephone. Keisha could hang up the \nphone and contact law enforcement, instead of timidly complying with Brian's \ndemands. \nChange the preceding example with Keisha and Brian, and imagine that Brian orders \nKeisha to kill his ex-wife Pat, who works at the station next to Keisha. Brian \nthereafter hands Keisha a switchblade. Keisha cannot kill Pat and claim duress as a \ndefense to murder in most states. Keisha's life is no more valuable than Pat's. \nTherefore, Keisha cannot legally choose to commit the crime of murder and justify \nthe crime with the duress defense. \nKEY TAKEAWAYS \n\u2022 Three elements are required for the choice of evils defense: the defendant must be faced \nwith two or more evils, the evils must be ranked, and it must be objectively reasonable for \nthe defendant to choose to commit the crime to avoid the imminent evil that is ranked \n higher. \n\u2022 Choice of evils is often based on nature or an act of God; duress is generally brought on by \nanother individual. \n\u2022 Choice of evils and duress are generally not defenses to criminal homicide. EXERCISES \nAnswer the following questions. Check your answers using the answer key at the end \nof the chapter. \n1. A fire sweeps through a residential neighborhood. Clark and Manny light their neighbor's \nhouse on fire to create a firebreak. This prevents several houses from burning, including \nClark's and Manny's. Do Clark and Manny have a defense to arson in this case? Why or why \nnot? \n2. Read People v. Lovercamp, 43 Cal. App. 3d 823 (1974). In Lovercamp, the defendants escaped \nfrom prison and were immediately captured. The defendants claimed they were forced to \nescape because a group of prisoners threatened them with sexual assault. The trial court did \nnot allow the defendants to introduce evidence supporting the defense of necessity, and the \ndefendants were convicted of escape. Did the Court of Appeals of California uphold their \nconviction for escape? The case is available at this \nlink: http://scholar.google.com/scholar_case?case=6496346791408865822&hl=en&as_sdt=2 \n&as_vis=1&oi=scholarr. \n3. Read State v. Daoud, 141 N.H. 142 (1996). In Daoud, the defendant was convicted of driving \nwhile under the influence. The defendant appealed because the trial court did not allow her \nto present evidence in support of the duress defense. Did the Supreme Court of New \nHampshire uphold the defendant's conviction? \n5.5 Consent \nLEARNING OBJECTIVES \n1. Ascertain the two elements required for the consent defense. \n2. Identify three situations where consent can operate as a legal defense. \nConsent by the victim can also form the basis of a justification defense to criminal conduct. \nConsent is most commonly used as a defense to sex crimes such as rape, and lack of consent is a \ncriminal element of most sexual offenses that must be proven beyond a reasonable doubt. Thus \nconsent to sexual acts is discussed in Chapter 10 \"Sex Offenses and Crimes Involving Force, Fear, \nand Physical Restraint\". In this section, consent to nonsexual conduct is explored. Consent is a defense that can be statutory or common law, perfect or imperfect, depending on the \njurisdiction. \nElements of the Consent Defense \nConsent can be a valid defense to a crime only if the victim chooses to render it. Thus \nit must be proffered knowingly and voluntarily, or it is ineffective. Under the Model \nPenal Code, consent is ineffective if \"it is given by a person who is legally \nincompetent to authorize the conduct\u2026it is given by a person who by reason of \nyouth, mental disease or defect or intoxication is manifestly unable to make a \nreasonable judgment\u2026it is induced by force, duress or deception\" (Model Penal Code \n\u00a7 2.11(3)). In general, consent is not knowing if it is given by an individual who is \ntoo young, mentally incompetent,Colo. Rev. Stat. Ann. \u00a7 18-1-505, accessed \nNovember 23, \n2010, http://www.michie.com/colorado/lpext.dll?f=templates&fn=main- \nh.htm&cp=. or intoxicated. In general, consent is not voluntary if it is induced by \nforce, threat of force, or trickery.Del. Code Ann. tit. 11 \u00a7 453, accessed November 23, \n2010, http://delcode.delaware.gov/title11/c004/index.shtml#451. \nExample of Unknowing Consent \nGina drinks six glasses of wine at a party and offers to be the \"donkey\" in a game of \npin the tail on the donkey. Other party members watch as Gina staggers her way to \nthe front of the room and poses in front of the pin the tail on the donkey poster. \nGeoff walks up to Gina and stabs her several times in the buttocks with a pin. Geoff \nprobably cannot claim consent as a defense to battery in this case. Gina consented to \nbattery while she was intoxicated, and clearly she was unable to make a reasonable \njudgment. Thus her consent was not given knowingly and was ineffective in this \nsituation. Example of Involuntary Consent \nChange the example with Gina and Geoff. Imagine that Gina just arrived at the party \nand has not consumed any alcohol. Geoff tells Gina he will poke out her eye with a \npin if she does not volunteer to be the donkey in the pin the tail on the donkey game. \nHe exemplifies his threat by making stabbing gestures at Gina's eye with the pin. \nFrightened, Gina goes to the front of the room and poses in front of the donkey \nposter until Geoff stabs her in the buttocks with the pin. Geoff probably cannot claim \nconsent as a defense to battery in this case. Gina consented in response to Geoff's \nthreat of physical harm. Thus her consent was not given voluntarily and was \nineffective in this situation. \nFigure 5.7 Delaware Code Annotated Situations Where Consent Can Operate as a Defense \nConsent is a defense to only a few crimes. In most jurisdictions, consent can operate \nonly as a defense to sexual conduct, injury that occurs during a sporting event, and \ncrimes that do not result in serious bodily injury or death.Me. Rev. Stat. Ann. 17-A \n\u00a7 109, accessed November 23, \n2010, http://www.mainelegislature.org/legis/statutes/17-A/title17-Asec109.html. \nAs the Model Penal Code states, \"[w]hen conduct is charged to constitute an offense \nbecause it causes or threatens bodily harm, consent to such conduct or to the \ninfliction of such harm is a defense if: (a) the bodily harm consented to or \nthreatened by the conduct consented to is not serious; or (b) the conduct and the \nharm are reasonably foreseeable hazards of joint participation in a lawful athletic \ncontest or competitive sport\" (Model Penal Code \u00a7 2.11(2)). \nExample of Legal Consent \nReview the examples with Gina and Geoff. Change the examples, and imagine that \nGina did not consume any alcohol and was not threatened by Geoff. If Gina offers to \nbe the donkey in the pin the tail on the donkey game and Geoff stabs her in the \nbuttocks with the pin, Geoff may be able to use consent as a defense to battery. \nGina's consent appears to be knowing and voluntary. Gina probably does not \nsuffer serious bodily injury from the pin stab in the buttocks. Thus the elements \nof legal consent exist, and this situation is appropriate for the consent defense. \nFigure 5.8 Diagram of Defenses, Part 1 KEY TAKEAWAYS \n\u2022 Two elements are required for the consent defense: the defendant must consent knowingly \n(cannot be too young, mentally incompetent, or intoxicated) and voluntarily (cannot be \n forced, threatened, or tricked). \n\u2022 Three situations where consent can operate as a defense are sexual offenses, situations that \ndo not result in serious bodily injury or death, and sporting events. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the end \nof the chapter. \n1. Allen tackles Brett during a high school football game, and Brett is severely injured. Can Allen \nbe criminally prosecuted for battery? Why or why not? \n2. Read Donaldson v. Lungren, 2 Cal. App. 4th 1614 (1992). In Donaldson, the defendant sought \ncourt permission to be cryogenically frozen because he had a brain tumor and wanted to be \nfrozen until there was a cure. The defendant also sought to protect the individual who was \ngoing to help with the process and filed a lawsuit seeking an injunction and immunity from \ncriminal prosecution for assisted suicide. The defendant claimed he had a constitutional right \nto consent to this procedure. Did the Court of Appeals of California uphold the defendant's \nright to be frozen\u2014that is, to commit suicide? The case is available at this \nlink: http://www.rickross.com/reference/alcor/alcor7.html. \n3. Read Ramey v. State, 417 S.E.2d 699 (1992). In Ramey, the defendant, a police officer, was \nconvicted of battery for beating the defendant with a flashlight and burning his nipples. The \ndefendant claimed that the victim, who appeared to have mental problems, consented to \nthis treatment. The trial court refused to instruct the jury on the consent defense. Did the \nCourt of Appeals of Georgia uphold the defendant's conviction? \n5.6 End-of-Chapter Material \nSummary \nDefenses can be denial or failure of proof, affirmative, imperfect, perfect, factual, \nlegal, common law (created by case law), or statutory (created by a state or federal \nlegislature). A denial or failure of proof defense creates doubt in one or more of the elements of the offense and prevents the prosecution from meeting its burden of \nproof. An affirmative defense raises an issue separate from the elements of the \noffense and must be asserted before or during the trial or it cannot serve as the basis \nfor an appeal. Defendants have either the burden of production or the burden of \nproduction and persuasion to a preponderance of evidence for an affirmative \ndefense. An imperfect defense reduces the severity of the offense, or sentence. A \nperfect defense results in an acquittal. A factual defense is grounded in the facts of \nthe case, while a legal defense depends on a statute or common-law principle. An \nexample of a factual defense is an alibi defense, which asserts that the defendant \ncould not have committed the crime because he or she was somewhere else at the \ntime the crime occurred. An example of a legal defense is expiration of the statute of \nlimitations, which means it is too late to prosecute the defendant for the offense. \nDefenses can also be based on justification or excuse. A defense based on justification \nfocuses on the offense and deems the conduct worthy of protection from criminal \nresponsibility. A defense based on excuse focuses on the defendant and excuses his or \nher conduct under the circumstances. \nSelf-defense justifies the defendant's conduct in using physical force as protective. \nSelf-defense is legal only when the defendant is faced with an unprovoked, imminent \nattack, and it is objectively reasonable that the degree of force used in response is \nnecessary to avoid the attack. The defendant can be the initial aggressor and still use \nself-defense if the attacked individual uses too much force in response to the \ndefendant's attack or if the defendant withdraws from the attack and is still pursued \nby 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 \ncircumstances. Deadly force can be used in self-defense only if the defendant is faced \nwith imminent death, serious bodily injury, or the commission of a serious felony. \nSome jurisdictions require the defendant to retreat before resorting to deadly force, \nwhile others allow the defendant to stand his or her ground. \nIn most states, an individual can defend another to the same extent as self-defense. If \na defendant is honestly but unreasonably mistaken about the fact that he or she needs to respond in self-defense or defense of others, imperfect self-defense or \ndefense of others may be appropriate, depending on the jurisdiction. A defendant can \nalso defend property using nondeadly force from an imminent threat of damage, loss, \nor theft. Real property is land and anything permanently attached to it, while \npersonal property is any movable object. In many jurisdictions, a trespasser may be \nejected from real property using nondeadly force after the trespasser has been \nrequested to leave. \nDefense of habitation is distinct from defense of real property in most states. Modern \nlaws called castle laws expand the use of force to defend habitation. Castle laws \neliminate the duty to retreat when in the home and provide civil and criminal \nimmunity from prosecution for the use of deadly force. Deadly force can be used \nagainst a trespasser who enters occupied premises without consent of the owner \nwhen there is an objectively reasonable belief that the occupants will be seriously \ninjured or killed. \nLaw enforcement can also use force to arrest or apprehend a criminal. If the force is \ndeadly, it is considered a seizure under the Fourth Amendment and is scrutinized \nunder an objectively reasonable standard. \nThe defense of choice of evils (called the necessity defense in some jurisdictions) \npermits the defendant to commit a crime if the harm caused is less severe than harm \nthat will occur if the crime is not committed. In general, criminal homicide cannot be \ndefended by choice of evils. Duress, a closely related defense, can sanction the use of \nforce when the defendant is imminently threatened with serious bodily injury or death. Like choice of evils, the degree of force used pursuant to duress should be \nnondeadly. \nThe victim can also consent to the defendant's conduct, creating a consent defense, \nas long as the consent is given knowingly and voluntarily, the conduct is sexual or \noccurs during a sporting event, and the conduct does not involve serious bodily \ninjury or death. \nYOU BE THE DEFENSE ATTORNEY \nYou are a well-known private defense attorney with a perfect record. Read the \nprompt, review the case, and then decide whether you would accept or reject it if \nyou want to maintain your level of success. Check your answers using the answer key \nat the end of the chapter. \n1. The defendant and his wife argued. She raised a knife above her head and stated, \"Don't \nmake me use this.\" The defendant took the knife away and thereafter stabbed the victim \nforty-three times in the head and chest with it. The defendant wants to make an imperfect \nself-defense argument. Will you accept or reject the case? Read State v. Perez, 840 P.2d 1118 \n(1992). The case is available at this \nlink: http://scholar.google.com/scholar_case?case=7422940810428798296&hl=en&as_sdt=2 \n&as_vis=1&oi=scholarr. \n2. The defendants crossed a police tape and trespassed on a medical clinic's private property \nwhile protesting abortion. The defendants want to make arguments in support of necessity, \ndefense of others, and duress. The basis of the defendants' claims is that they are protecting \nthe lives of unborn children. Will you accept or reject the case? Read Allison v. Birmingham, \n580 So.2d 1377 (1991). The case is available at this link: \nhttp://scholar.google.com/scholar_case?case=8254507993974001416&hl=en&as_sdt=2 \n&as_vis=1&oi=scholarr. \n3. The defendant, a police officer, shot the victim twice after being summoned to the victim's \nhome by his wife. The victim was intoxicated and armed with two small steak knives. The \ndefendant shot the victim subsequent to a somewhat lengthy encounter during which the \nvictim lunged at him with the knives. The victim claimed he was putting the knives down or about to put the knives down. The victim is suing the defendant for damages based on use of \nexcessive force in arrest or apprehension. Will you accept or reject the case? Read Roy v. \nInhabitants of Lewiston, 42 F.3d 691 (1994). The case is available at this \nlink: http://scholar.google.com/scholar_case?case=8822695050372354696&hl=en&as_sdt=2 \n&as_vis=1&oi=scholarr. \n4. The defendant, the Oakland Cannabis Buyers' Cooperative, distributes marijuana to qualified \npatients under California's Compassionate Use Act, which allows the possession and use of \nmarijuana for medical purposes. The US government wants to stop this distribution under \nthe federal Controlled Substances Act, which prohibits possession and use of marijuana \nunder any circumstances. The defendant wants to continue distribution under a claim of \nmedical necessity. Will you accept or reject the case? Read U.S. v. Oakland Cannabis Buyers' \nCooperative, 532 U.S. 483 (2001). The case is available at this link: \nhttp://www.law.cornell.edu/supct/pdf/00-151P.ZO. \nCases of Interest \n\u2022 Acers v. United States, 164 U.S. 388 (1896), discusses deadly force and self- \n defense: http://supreme.justia.com/us/164/388. \n\u2022 Graham v. Connor, 490 U.S. 386 (1989), discusses force used in arrest: \nhttp://supreme.justia.com/us/490/386. \n\u2022 \nState v. Rogers, 912 S.W.2d 670 (1995), discusses duress: \nhttp://scholar.google.com/scholar_case?case=4913796561906479282&hl=e \nn&as_sdt=2&as_vis=1&oi=scholarr. \nArticles of Interest \n\u2022 Affirmative \n defenses: http://www.fd.org/pdf_lib/Beneman_Affirmative_Defenses_materials.pdf \n\u2022 Self-defense and martial arts: http://www.ittendojo.org/articles/general-4.htm \n\u2022 Castle laws: http://www.harvardjol.com/wp-content/uploads/2010/07/523-554.pdf \n\u2022 \nNecessity and duress defenses: \nhttp://wings.buffalo.edu/law/bclc/bclrarticles/6/2/westen.pdf \nWebsites of Interest \n\u2022 Castle laws by \nstate: http://www.readytodefend.com/index.php?main_page=page&id=5&chapter \n =12 \u2022 Criminal defense attorneys for all fifty states: http://www.hg.org/law-firms/USA- \nCriminal-Defense .html \nStatistics of Interest \n\u2022 Violence used during household burglaries in the United \n States: http://bjs.ojp.usdoj.gov/content/pub/press/vdhbpr.cfm \n\u2022 \nUS law enforcement officers killed and assaulted: \nhttp://www.fbi.gov/aboutus/cjis/ucr/leoka/2009/leoka-2009 \nAnswers to Exercises \nFrom Section 5.1 \"Criminal Defenses\" \n1. Carol's defense creates doubt in the intent element for battery. Thus Carol's defense \nis a denial or failure of proof defense, not an affirmative defense. \n2. The Supreme Court of South Carolina reversed the defendant's conviction because \nthe jury instruction should have explained that the prosecution has the burden of \ndisproving self-defense beyond a reasonable doubt. \n3. The Supreme Court of Nevada held that necessity was a valid common-law defense to \ndriving while under the influence. However, the court upheld the defendant's \nconviction because he did not meet the requirements for necessity under the \ncircumstances. \nAnswers to Exercises \nFrom Section 5.2 \"Self-Defense\" \n1. Colin cannot claim traditional self-defense because there is no objectively reasonable \nfear of imminent injury or death while Diane is sleeping. Colin also cannot technically \nassert the battered wife defense because he is a husband. Courts can expand statutory \ndefenses or create new common-law defenses. However, courts may be reluctant to \nexpand the battered wife defense to spouses of either gender, based on the physical \ndifferences between men and women and the lack of empirical evidence documenting battered husband syndrome. \n2. The Court of Appeals of Texas affirmed the defendant's convictions, holding that the \njury does not have to be unanimous as to each required element of self-defense. \n3. The US District Court for the District of Montana reversed the fine and held that the \ndefendant did not provoke the attack and was entitled to shoot the bear in \nselfdefense. \nAnswers to Exercises \nFrom Section 5.3 \"Other Use-of-Force Defenses\" \n1. Melanie cannot use defense of others as a defense to criminal homicide. Melanie can \ndefend Colleen only to the same extent she could defend herself. Nothing in the fact \npattern indicates that Colleen could defend herself using deadly force. Thus \nMelanie could be successfully prosecuted for criminal homicide in this situation. \n2. The Supreme Court of Virginia held that the defendant could not threaten deadly \nforce to defend personal property and affirmed the conviction. \n3. The Court of Appeals of Texas held that the victim had the right to sue for excessive \nforce used to arrest. The evidence did not indicate that the victim posed an immediate \ndanger to the law enforcement officer's safety, or that she was attempting to resist \narrest or flee. Moreover, the offense\u2014failure to identify herself or give her date of \nbirth\u2014was minor. Thus the law enforcement officer was not immune from a lawsuit \nfor damages under the circumstances. \nAnswers to Exercises \nFrom Section 5.4 \"Defenses Based on Choice\" \n1. Clark and Manny can use choice of evils as a defense to arson in many \njurisdictions. Clark and Manny were confronted with two harms: the loss of several \nhomes or the loss of their neighbor's home. Clark and Manny ranked the loss of one \nhome lower than the loss of several homes, which is objectively reasonable. Thus \nClark and Manny could be acquitted or have a reduction in sentence or severity of the offense, depending on the jurisdiction. \n2. The Court of Appeals of California held that the defendants should have been allowed \nto present evidence in support of the necessity defense and were entitled to a retrial. \n3. The Supreme Court of New Hampshire upheld the defendant's conviction. The court \nrecognized that a common-law defense of duress exists in some jurisdictions, but \nheld that the facts in the defendant's case did not indicate that she was under duress. \nThe court stated the defendant had lawful alternatives to driving while under the \ninfluence, such as calling a taxi or a friend for a ride or walking. \nAnswers to Exercises \nFrom Section 5.5 \"Consent\" \n1. In most jurisdictions, Allen cannot be criminally prosecuted because \nBrett consented to being tackled by choosing to participate in football, a contact \nsport. \n2. The Court of Appeals of California held that the defendant had no constitutional right \nto be cryogenically frozen and affirmed the lower court's dismissal of his lawsuit \nseeking an injunction and immunity from criminal prosecution. The court reasoned \nthat the defendant's right to refuse medical treatment is different from involving \nanother individual in his death. It thereafter held that the defendant was legally free \nto commit suicide, but he could not authorize another to kill him. \n3. The Court of Appeals of Georgia upheld the defendant's conviction for battery. The \ncourt stated, \"It is the act and intent and results of the defendant's act which \nconstitute the crimes as charged; the attitude of the victim is not called into issue by \nthese elements.\"Ramey v. State, 417 S.E.2d 699, 701 (1992), accessed November 23, \n2010, http://scholar.google.com/scholar_case?case=10809733884390698075&hl=e \nn&as_sdt=2002&as_vis=1. \nAnswer to Law and Ethics Question \n1. The US Court of Appeals for the Ninth Circuit gave great discretion to the state trial \ncourt, creating a presumption that the trial court did a proper analysis of the law and \nevidence when rejecting the imperfect self-defense jury instruction. The court \nthereafter agreed with the trial court's findings that the evidence excluded did not support a theory of imminent threat, required under California case law for a \ntheory of imperfect self-defense.Menendez v. Terhune, 422 F.3d 1012, 1029 (2005), \naccessed November 19, 2010, http://cases.justia.com/us-court-of- \nappeals/F3/422/1012/569492. The battered wife syndrome or defense was not \ndiscussed in detail, although the Menendez brothers' theory of abuse is similar. This \ncase is a good demonstration of how state case law varies, especially with regard to \nmodern theories of self-defense based on psychological trauma. In a different state, \nthere may have been a different result grounded in state law regarding these \ninnovative defense theories. \nAnswers to You Be the Defense Attorney \n1. In this case, the trial court rejected the imperfect self-defense argument and refused \nto instruct the jury on involuntary manslaughter. The Supreme Court of Kansas \naffirmed. The court held that after the defendant took the knife away, the victim was \nunarmed and no imminent threat of harm remained. Thus you would lose on the \nimperfect self-defense argument and should reject the case. \n2. The Court of Criminal Appeals of Alabama affirmed the trial court's rejection of the \ndefense arguments based on the fact that abortion is legal. The court reviewed the \ncommon law, statutes, and case precedent and concluded that these defenses are not \nappropriate to protest legal acts. Thus you would lose on the justification defense \narguments and should reject the case. \n3. The United States Court of Appeals for the First Circuit affirmed the lower court's \ndismissal of the lawsuit for damages. The court held that the defendant's use of force \nwas objectively reasonable under the circumstances and gave broad latitude to \nofficers who are forced to make split-second decisions under dangerous \nconditions. Thus you would win on the appropriate use of force in arrest argument \nand should accept the case. \n4. The US Supreme Court held that there is no medical necessity exception to the \nControlled Substances Act. The Court based its holding on the language of the federal \nstatute, which reflects a determination that marijuana has no medical benefits \nworthy of an exception. Thus you would lose on the medical necessity argument and \nshould reject the case Chapter 6Criminal Defenses, Part 2 Source: Image courtesy of Tara Storm. \nThe use of drugs or controlled substances, dependence on drugs or controlled \nsubstances or voluntary intoxication shall not, as such, constitute a defense to a \ncriminal charge\u2026 \nOr. Rev. Stat. \u00a7 161.125(1), cited in Section 6.2.2 \"Intoxication\" \n6.1 The Insanity Defense \nLEARNING OBJECTIVES \n1. Identify four states that do not recognize an insanity defense. \n2. Identify four versions of the insanity defense. \n3. Ascertain the two elements required for the M'Naghten insanity defense. \n4. Ascertain the two elements required for the irresistible impulse insanity defense. \n5. Compare the M'Naghten, irresistible impulse, and substantial capacity tests. \n6. Ascertain the basis of the Durham insanity defense. \n7. Identify the various burdens of proof for the insanity defense. \n8. Distinguish between diminished capacity and the insanity defense. \n9. Compare the insanity defense with mental competence to stand trial. \n10. Compare the insanity defense with the guilty but mentally ill verdict. \n11. Compare different commitment procedures for an insane criminal defendant. \n12. Distinguish temporary from permanent insanity. \nWith the exception of alibi and the expiration of the statute of limitations, Chapter 5 \"Criminal \nDefenses, Part 1\" explored criminal defenses based on justification. This chapter reviews \ncriminal defenses based on excuse, including the insanity defense. Remember that defenses \nbased on excuse focus on the defendant and claim that the defendant should be excused from \ncriminal responsibility for his or her conduct under the circumstances. Although controversial, most states and the federal government recognize an insanity \ndefense.18 U.S.C. \u00a7 17, accessed November 28, \n2010, http://www.law.cornell.edu/uscode/18/usc_sec_18_00000017----000-.html. Montana, \nUtah, Kansas, and Idaho are the only states that do not.Findlaw.com, \"The Insanity Defense among \nthe States,\" findlaw.com website, accessed November 29, \n2010, http://criminal.findlaw.com/crimes/more-criminal-topics/insanity-defense/the-\ninsanitydefense-among-the-states.html. The insanity defense is the subject of much debate \nbecause it excuses even the most evil and abhorrent conduct, and in many jurisdictions, legal \ninsanity 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 \ninsanity. \nMany criminal defendants suffer from mental illness and can produce evidence of this illness \nsuch as psychiatric or layperson testimony. Often, mental disturbance is apparent from the \ndefendant's conduct under the circumstances. However, legal insanity differs from medical \ninsanity and is generally much more difficult to establish. The rationale behind creating a \ndifferent standard for legal insanity is the goal of a criminal prosecution discussed in Chapter 1 \n\"Introduction to Criminal Law\". Criminal prosecution should deter as well as incapacitate. \nWhile the purpose of a medical diagnosis is to eventually cure the defendant's disorder, the \npurpose of criminal law is to punish the defendant. Thus the defendant's conduct is not excused \nif the defendant or society can benefit from punishment. \nThe policy supporting the insanity defense is twofold. First, an insane defendant does not have \ncontrol over his or her conduct. This is similar to a defendant who is hypnotized, or \nsleepwalking. Second, an insane defendant does not have the ability to form criminal intent. \nWithout the ability to control conduct, or the understanding that conduct is evil or wrong by \nsociety's standards, an insane defendant presumably will commit crimes again and again. Thus \nno deterrent effect is served by punishment, and treatment for the mental defect is the \nappropriate remedy. \nFour variations of the insanity defense currently exist: M'Naghten, irresistible impulse, \nsubstantial capacity, and Durham. M'Naghten Insanity Defense \nThe M'Naghten insanity defense, also called the right-wrong test, is the most \ncommon insanity defense in the United States. It is also the oldest and was created in \nEngland in 1843. The defense is named after Daniel M'Naghten. M'Naghten was \nunder the paranoid delusion that the Prime Minister of England, Sir Robert Peel, \nwas trying to kill him. When he tried to shoot Sir Peel from behind, he inadvertently \nshot Sir Peel's Secretary, Edward Drummond, who thereafter died. M'Naghten was \nput on trial for murder and, to the shock of the nation, the jury found him not guilty \nby reason of insanity.Queen v. M'Naghten, 10 Clark & F.200, 2 Eng. Rep. 718 (H.L. \n1843), accessed November 29, \n2010, http://users.phhp.ufl.edu/rbauer/forensic_neuropsychology/mcnaghten.pdf. \nAfter a public outcry at this verdict, the British House of Lords developed a test for \ninsanity that remains relatively intact today. \nThe M'Naghten insanity defense is cognitive and focuses on the defendant's \nawareness, rather than the ability to control conduct. The defense requires two \nelements. First, the defendant must be suffering from a mental defect at the time he \nor she commits the criminal act. The mental defect can be called a \"defect of reason\" \nor a \"disease of the mind,\" depending on the jurisdiction.Iowa Code \u00a7 701.4, accessed \nNovember 30, 2010, http://coolice.legis.state.ia.us/cool- \nice/default.asp?category=billinfo&service=iowacode&ga=83&input=701. Second, the \ntrier of fact must find that because of the mental defect, the defendant did not know \neither the nature and quality of the criminal act or that the act was wrong. \nThe terms \"defect of reason\" and \"disease of the mind\" can be defined in different \nways, but in general, the defendant must be cognitively impaired to the level of not \nknowing the nature and quality of the criminal act, or that the act is wrong. Some \ncommon examples of mental defects and diseases are psychosis, schizophrenia, and \nparanoia. Jurisdictions vary as to the level of awareness the defendant must possess. Some \njurisdictions use the term \"know,\" or \"understand,\"Cal. Penal Code \u00a7 25, accessed \nNovember 30, 2010, http://law.onecle.com/california/penal/25.html. while others \nuse the term \"appreciate.\"Ala. Code \u00a7 13A-3-1, accessed November 30, \n2010, http://law.onecle.com/alabama/criminal-code/13A-3-1.html. If know or \nunderstand is the standard, the trier of fact must ascertain a basic level of awareness \nunder the attendant circumstances. If appreciate is the standard, the trier of fact \nmust analyze the defendant's emotional state, and evidence of the defendant's \ncharacter or personality may be relevant and admissible. \nA defendant does not know the nature and quality of a criminal act if the defendant is \ncompletely oblivious to what he or she is doing. This is quite rare, so most \ndefendants claiming insanity choose to assert that they did not know their act was \nwrong. However, jurisdictions differ as to the meaning of \"wrong.\" Some \njurisdictions define wrong as \"legally wrong,\" meaning the defendant must be \nunaware that the act is against the law.State v. Crenshaw, 659 P.2d 488 (1983), \naccessed November 30, \n2010, http://lawschool.courtroomview.com/acf_cases/8790-state-vcrenshaw. \nOthers define wrong as \"legally and morally wrong,\" meaning the defendant \nmust also be unaware that the act is condemned by society.State v. \nSkaggs, 586 P.2d 1279 (1978), accessed November 30, \n2010, http://www.leagle.com/xmlResult.aspx?xmldoc=1978587120Ariz467_1470.x \nml&docbase=CSLWAR1-1950-1985. Generally, the only instance where the \ndefendant must be \"morally wrong,\" standing alone, is when the defendant claims \nthat the conduct was performed at the command of God, which is called the deific \ndefense.State v. Worlock, 569 A.2d 1314 (1990), accessed November 30, \n2010, http://www.leagle.com/xmlResult.aspx?xmldoc=1990713117NJ596_1172.xml \n&docbase=CSLWAR2-1986-2006. Whether the standard is legally wrong or morally \nwrong, 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 \nthe claim of insanity under M'Naghten. Example of a Case Inappropriate for the M'Naghten Insanity Defense \nSusan wants to marry a single man, but he does not want the responsibility of caring \nfor her children. Susan decides to kill her children. She drives her two sons, aged \nthree and five, out to the lake. She puts the car in park, gets out, and then puts it in \ngear, watching as it drives into the water. Both of her sons drown. Later that day, \nSusan files a police report stating that a stranger kidnapped her children at gunpoint. \nWhile searching the area for the kidnapper, the police discover the children's bodies \nand evidence indicating that Susan killed them. \nSusan recants her kidnapping story and admits she killed her children. However, she \nclaims she is not guilty by reason of insanity. Susan's claim will probably not be \nsuccessful if she killed her children in a jurisdiction that recognizes the M'Naghten \ninsanity defense. Susan tried to mislead the police, demonstrating her awareness \nthat she had done something wrong. Thus although Susan's behavior appears \nmentally imbalanced, she clearly knew the difference between right and wrong, and \nher conduct is not excusable under M'Naghten's rigid requirements. \nExample of a Case Appropriate for the M'Naghten Insanity Defense \nAndrea, a diagnosed schizophrenic, drowns five of her young children in the bathtub. \nAndrea promptly phones 911 and tells the operator that her children are dead. The \noperator dispatches an emergency call to law enforcement. When law enforcement \nofficers arrive at Andrea's house, she informs them that she killed her children so \nthat they could leave this earth and enter heaven. \nAndrea thereafter claims she is not guilty for killing her children by reason of \ninsanity. Andrea could be successful if the jurisdiction in which she killed her \nchildren recognizes the M'Naghten insanity defense. Andrea suffers from a mental \ndefect, schizophrenia. In addition, there is no evidence indicating Andrea knew her \nconduct was wrong, such as an attempted escape, or cover-up. In fact, Andrea \nherself contacted law enforcement and immediately told them about her criminal acts. Thus both of the M'Naghten elements appear to be present, and Andrea's \nconduct may be excusable under the circumstances. \nFigure 6.1 M'Naghten Insanity Defense Irresistible Impulse Insanity Defense \nAnother variation of the insanity defense is the irresistible impulse defense. This \ndefense has lost popularity over the years and is rejected by most of the states and \nthe federal government.18 U.S.C. \u00a7 17, accessed November 28, \n2010, http://www.law.cornell.edu/uscode/18/usc_sec_18_00000017----000- \n.html. In some cases, the irresistible impulse insanity defense is easier to prove than \nthe M'Naghten insanity defense, resulting in the acquittal of more mentally \ndisturbed defendants. \nThe irresistible impulse insanity defense generally supplements M'Naghten, so the \nfocus is on the defendant's awareness (cognitive) and the defendant's will (ability to \ncontrol conduct). In jurisdictions that recognize the irresistible impulse insanity \ndefense, the first element is the same as M'Naghten; the defendant must suffer from \na mental defect or disease of the mind. However, the second element adds the \nconcept of volition, or free choice. If the defendant cannot control his or her \nconduct because of the mental defect or disease, the defendant's conduct is excused \neven if the defendant understands that the conduct is wrong.State v. White, 270 \nP.2d \n727 (1954), accessed November 30, \n2010, \nhttp://scholar.google.com/scholar_case?case=15018626933471947897&hl=en \n&as_sdt=2&as_vis=1&oi=scholarr. This is a softer stance than M'Naghten, which \ndoes not exonerate a defendant who is aware conduct is wrong. The challenge for \nthe trier of fact in an irresistible impulse jurisdiction is distinguishing between \nconduct that can be controlled and conduct that cannot. \nExample of a Case Inappropriate for the Irresistible Impulse Insanity Defense \nJolene, who has been diagnosed with paranoia, decides she must cut off all her \nsorority sisters' hair because they are \"out to get her.\" She drives to the sorority \nhouse with a Taser and scissors in her backpack. Her plan is to subdue each sister with the stun gun and then hack off her hair. As she arrives at the house, she sees \nAgnes, one of her sorority sisters, trip and fall in the parking lot, ripping her \ncashmere sweater and scraping her chin. Feeling a stab of pity, Jolene ignores Agnes \nand walks hurriedly toward the building. As she enters, Ashley, another sorority \nsister, turns, scowls at Jolene, and barks, \"What in the world are you wearing? You \nlook like you just rolled out of bed!\" Jolene pulls the stun gun out of her backpack \nand shoots Ashley. While Ashley is lying on the floor, Jolene takes out the scissors \nand cuts Ashley's hair off at the scalp. \nJolene claims she is not guilty for assault and battery of Ashley by reason of insanity. \nIf Jolene attacked Ashley in a jurisdiction that recognizes the irresistible impulse \ninsanity defense, she probably will not be successful with her claim. Jolene has been \ndiagnosed with paranoia, which is a mental defect or disease. However, Jolene \nseems aware that shooting someone with a stun gun and cutting off her hair is \nwrong because she spared Agnes based on pity. In addition, Jolene's choice not to \nattack Agnes indicates she has control over her conduct. Thus Jolene is cognitive \nof the difference between right and wrong and has the will to suppress criminal \nbehavior, defeating any claim of insanity under the irresistible impulse insanity \ndefense. \nFigure 6.2 Irresistible Impulse Insanity Defense The Substantial Capacity Test \nThe substantial capacity test is the insanity defense created by the Model Penal \nCode. The Model Penal Code was completed in 1962. By 1980, approximately half of \nthe states and the federal government adopted the substantial capacity test (also \ncalled the Model Penal Code or ALI defense).Carol A. Rolf, \"From M'Naghten to \nYates\u2014Transformation of the Insanity Defense in the United States\u2014Is It Still \nViable?\" Rivier College Online Academic Journal 2 (2006), accessed December 1, \n2010, http://www.rivier.edu/journal/ROAJ-2006-Spring/J41-ROLF.pdf. However, \nin 1982, John Hinckley successfully claimed insanity using the substantial capacity \ntest in his federal trial for the attempted murder of then-President Ronald Reagan. \nPublic indignation at this not-guilty verdict caused many states and the federal \ngovernment to switch from the substantial capacity test to the more inflexible \nM'Naghten standard.18 U.S.C. \u00a7 17, accessed November 28, \n2010, http://www.law.cornell.edu/uscode/18/usc_sec_18_00000017----000- \n.html. In addition, jurisdictions that switched to M'Naghten also shifted the burden \nof proving insanity to the defendant.Carol A. Rolf, \"From M'Naghten to Yates\u2014 \nTransformation of the Insanity Defense in the United States\u2014Is It Still \nViable?\" Rivier College Online Academic Journal 1 (2006), accessed December 1, \n2010, http://www.rivier.edu/journal/ROAJ-2006-Spring/J41-ROLF.pdf. The \ndefendant's burden of proof for the insanity defense is discussed shortly. \nThe substantial capacity test is as follows: \"A person is not responsible for criminal \nconduct if at the time of such conduct as a result of mental disease or defect he lacks \nsubstantial capacity either to appreciate the criminality [wrongfulness] of his \nconduct or to conform his conduct to the requirements of law\" (Model Penal Code \u00a7 \n4.01(1)). The defense has two elements. The first element requires the defendant to \nhave a mental disease or defect, like the M'Naghten and irresistible impulse \ninsanity defenses. The second element combines the cognitive standard with volitional, like the irresistible impulse insanity defense supplementing the \nM'Naghten insanity defense. \nIn general, it is easier to establish insanity under the substantial capacity test \nbecause both the cognitive and volitional requirements are scaled down to more \nflexible standards. Unlike the M'Naghten insanity defense, the substantial capacity \ntest relaxes the requirement for complete inability to understand or know the \ndifference between right and wrong. Instead, the defendant must lack substantial, \nnot total, capacity. The \"wrong\" in the substantial capacity test is \"criminality,\" \nwhich is a legal rather than moral wrong. In addition, unlike the irresistible impulse \ninsanity defense, the defendant must lack substantial, not total, ability to conform \nconduct to the requirements of the law. Another difference in the substantial \ncapacity test is the use of the word \"appreciate\" rather than \"know.\" As stated \npreviously, appreciate incorporates an emotional quality, which means that evidence \nof the defendant's character or personality is relevant and most likely admissible to \nsupport the defense. \nExample of the Substantial Capacity Test \nLoreen has been diagnosed with psychosis and spent most of her life in a mental \nhospital. While at the mental hospital, Loreen made friends with many of the \npatients and health-care personnel. From time to time, Loreen would play jokes on \nthese friends. Most of these \"jokes\" consisted of putting her antidepressants into \ntheir food. Loreen was always reprimanded and often sternly punished for these \nescapades. After her release from the mental hospital at age twenty-one, Loreen falls \nin love with Aidan, a man who works in a bookstore near her apartment. Loreen \ndecides to make Aidan fall in love with her by feeding him a magic potion, which she \nconcocts out of a mixture of her antidepressants. Loreen buys a book from Aidan \nand casually asks if he would like her to buy him a coffee. Aidan shrugs and says, \n\"Sure, but I don't have a break for another two hours.\" Loreen offers to bring him \nthe coffee. Before bringing the drink to Aidan, she puts her \"magic potion\" in it. While Aidan is sipping the coffee, Loreen declares her love for him. She then states, \n\"I know I shouldn't have, but I put a love potion in your coffee. I hope it doesn't hurt \nyou.\" 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 \nin a jurisdiction that recognizes the substantial capacity test, she may be successful \nwith her claim. Loreen has a mental disease or defect, psychosis. Loreen's \nstatement to Aidan indicates that she lacks the substantial capacity to appreciate the \ncriminality of her conduct. Note that if Loreen were in a M'Naghten jurisdiction, her \nstatement \"I know I shouldn't have\" could prove her awareness that her conduct was \nwrong, defeating her claim. In addition, Loreen's behavior at the mental hospital \nindicates 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 \nand putting them in other people's food or drink, Loreen still does it. Lastly, in a \nsubstantial capacity jurisdiction, testimony from Loreen's friends at the mental \nhospital may be admissible to support her claim of insanity, and her lack of ability to \n\"appreciate\" the criminality of her conduct. \nFigure 6.3 Substantial Capacity Insanity Defense The Durham Insanity Defense \nThe Durham insanity defense is used only in New Hampshire and has been the \nestablished insanity defense in New Hampshire since the late 1800s. The Durham \ndefense, also called the Durham rule or the product test, was adopted by the \nCircuit Court of Appeals for the District of Columbia in the case of Durham v. U.S., \n214 F.2d 862 (1954). The defense set forth in that case is as follows: \"[A]n accused is \nnot criminally responsible if his unlawful act was the product of mental disease or \nmental defect.\"Durham v. U.S., 214 F.2d 862, 875 (1954), accessed December 2, \n2010, \nhttp://scholar.google.com/scholar_case?case=1244686235948852364&hl=en \n&as_sdt=2&as_vis=1&oi=scholarr. However, the court failed to give definitions for \nproduct, mental disease, or mental defect. Thus the Durham insanity defense is \nextremely difficult to apply, and the D.C. Circuit rejected it in 1972 in the case of \nU.S. \nv. Brawner, 471 F.2d 969 (1972), which was later superseded by federal statute.18 \nU.S.C. \u00a7 17, accessed November 28, \n2010, http://www.law.cornell.edu/uscode/18/usc_sec_18_00000017----000-.html. \nIn general, the Durham insanity defense relies on ordinary principles of \nproximate causation. The defense has two elements. First, the defendant must \nhave a mental disease or defect. Although these terms are not specifically defined in \nthe Durham case, the language of the judicial opinion indicates an attempt to rely \nmore on objective, psychological standards, rather than focusing on the defendant's \nsubjective cognition. The second element has to do with causation. If the criminal \nconduct is \"caused\" by the mental disease or defect, then the conduct should be \nexcused under the circumstances. \nExample of the Durham Insanity Defense \nArianna has been diagnosed with paranoia. Most psychiatric experts agree that \nindividuals afflicted with paranoia unreasonably believe that the human population is \"out to get them.\" Arianna works under the direct supervision of Nora, who has a \nphysical condition called \"walleye.\" Nora's walleye makes it appear that she is \nlooking to the side when she addresses people. Arianna gradually becomes \nconvinced that Nora is communicating secret messages to their coworkers when she \nis speaking to Arianna. Arianna is genuinely frightened that Nora is telling their \ncoworkers to kill her, and she decides she needs to defend herself. Arianna brings a \ngun to work one day, and when Nora begins talking to her about her tendency to \ntake overlong lunches, Arianna pulls the gun out of her cubicle and shoots and kills \nNora. \nArianna claims she is not guilty for killing Nora by reason of insanity. If Arianna \nkilled Nora in New Hampshire, she might be successful with her claim. Arianna has \na mental disease or defect, paranoia. Arianna can probably produce evidence, such \nas psychiatric expert testimony, that her paranoia \"caused\" or \"produced\" her \ncriminal conduct, which was shooting Nora. Thus a trier of fact could acquit Arianna \non the grounds that her conduct is excusable under these circumstances. \nFigure 6.4 Durham Insanity Defense Proving Insanity \nThere is generally a presumption that criminal defendants are sane, just as there \nis a presumption that they are innocent. Therefore, at a minimum, a defendant \nclaiming insanity must produce evidence that rebuts this presumption. Some states \nrequire the prosecution to thereafter prove sanity beyond a reasonable doubt or to a \npreponderance of evidence.James R. Elkins and students at the West Virginia \nUniversity College of Law, \"Insanity Defense,\" West Virginia Homicide Jury \nInstructions Project, accessed December 2, \n2010, http://myweb.wvnet.edu/~jelkins/adcrimlaw/insanity.html. \nPost-Hinckley, many states have converted the insanity defense into an affirmative \ndefense. Thus as discussed in Chapter 5 \"Criminal Defenses, Part 1\", the defendant \nmay also have the burden of persuading the trier of fact that he or she is insane to a \npreponderance of evidence.New Jersey Jury Instruction on Insanity, Based on N.J. \nStat. Ann. \u00a7 2C: 4-1, accessed November 30, \n2010, http://www.judiciary.state.nj.us/criminal/charges/respons1.pdf. The federal \ngovernment and some other states require the defendant to prove insanity by clear \nand convincing evidence, which is a higher standard than preponderance of \nevidence.Tenn. Code Ann. \u00a7 39-11-501, accessed December 2, \n2010, http://law.justia.com/tennessee/codes/2010/title-39/chapter-11/part-\n5/3911-501. \nDiminished Capacity \nA claim of diminished capacity differs from the insanity defense. Diminished \ncapacity is an imperfect failure of proof defense recognized in a minority of \njurisdictions. Diminished capacity could reduce a first-degree murder charge to \nsecond-degree murder or manslaughter if the defendant lacks the mental capacity to \nform the appropriate criminal intent for first-degree murder. \nIn California, diminished capacity was abolished as an affirmative defense after San Francisco Supervisor Dan White used it successfully in his trial for the murder of \nfellow Supervisor Harvey Milk. A jury convicted White of voluntary manslaughter \nrather than first-degree premeditated murder after reviewing evidence that proved \nhis diet of junk food (Twinkies) created a chemical imbalance in his brain. In the \naftermath of this highly publicized trial, California passed legislation eliminating the \ndiminished capacity defense and limiting the admissibility of evidence of diminished \ncapacity only to sentencing proceedings.Cal. Penal Code \u00a7 25, accessed December 2, \n2010, http://law.onecle.com/california/penal/25.html. \nSimilar to diminished capacity is the syndrome defense. A syndrome that negates \nthe requisite intent for the crime could function as a failure of proof defense in a \nminority of jurisdictions. Some common examples of syndromes the American \nPsychiatric Association recognizes in the Diagnostic and Statistical Manual of \nMental Disorders, fourth edition (DSM-IV), are antisocial personality disorder, \nposttraumatic stress disorder, and intermittent explosive disorder. Some common \nexamples of syndromes identified but not recognized in DSM-IV are battered \nwoman or battered wife syndrome (discussed in Chapter 5 \"Criminal Defenses, Part \n1\") and caffeine withdrawal. Although successful use of the syndrome defense is \nrare, at least one case has excused a defendant's drunken driving and assault and \nbattery against a police officer because of premenstrual syndrome (PMS).\"Successful \nPMS Defense in \nVirginia Case Revives Debate,\" Baltimore.com website, accessed June 16, 2011, \nhttp://articles.baltimoresun.com/1991-06-\n16/news/1991167033_1_pmsrichter-defense. \nMental Competence to Stand Trial \nThe insanity defense is different from mental competence to stand trial. The insanity \ndefense pertains to the defendant's mental state when he or she commits the crime. \nIf the insanity defense is successful, it exonerates the defendant from guilt. Mental \ncompetence to stand trial is analyzed at the time the trial is to take place. If the \ndefendant is mentally incompetent to stand trial, the trial is delayed until the defendant regains competency. Although a detailed discussion of mental \ncompetence to stand trial is beyond the scope of this book, in general, a criminal \ndefendant must be able to understand the charges against him or her, and be able to \nassist in his or her defense. As the Model Penal Code provides, \"[n]o person who as a \nresult of mental disease or defect lacks capacity to understand the proceedings \nagainst him or to assist in his own defense shall be tried, convicted or sentenced for \nthe commission of an offense so long as such incapacity endures\" (Model Penal Code \n\u00a7 4.04). A defendant who is mentally incompetent at the time of trial is subject to \nmental health treatment or even involuntary medication until competence is \nregained. \nGuilty but Mentally Ill \nPost-Hinckley, some states adopted the guilty but mentally ill verdict. A defendant \nwho is found guilty but mentally ill is not acquitted but punished and treated for \nmental health simultaneously while in prison. Typically, the guilty but mentally ill \nverdict is available only when the defendant fails to prove legal insanity, and \nrequires the defendant to prove mental illness at the time of the crime to a \npreponderance of evidence.725 ILCS \u00a7 5/115-4(j), accessed December 3, \n2010, http://law.onecle.com/illinois/725ilcs5/115-4.html. \nExample of Guilty but Mentally Ill \nReview the example with Jolene in Section 6 \"Example of a Case Inappropriate for \nthe Irresistible Impulse Insanity Defense\". In this example, Jolene has been \ndiagnosed with paranoia, but shows an ability to control and understand the \nwrongfulness of her conduct, so she probably will not be successful with an \nirresistible impulse insanity defense. If Jolene is in a state that offers a guilty but \nmentally ill verdict, Jolene may be an appropriate candidate because she was \nmentally ill at the time she assaulted and battered her sorority sister. If Jolene is \nfound guilty but mentally ill, she will be treated for her mental health \nsimultaneously while serving any prison sentence. Figure 6.5 Effects (Circular Diagram) of Mental Competency Claims Figure 6.6 Diagram of the Insanity Defense Hasan 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 \nNapolitano discusses the upcoming prosecution of Nidal Hasan and the possibility of \nan insanity defense.Angela K. Brown, \"Fort Hood Shooting Suspect Major Nidal \nHasan to Be Arraigned,\" Huffingtonpost.com website, accessed August 26, 2011, \nhttp://www.huffingtonpost.com/2011/07/20/fort-hood-shooting-suspect-\nincourt_n_904274.html. \n(click to see video) \nDisposition of the Legally Insane \nThe not guilty by reason of insanity verdict means that the defendant is absolved \nfrom criminal responsibility and devoid of any criminal record for the offense. \nHowever, it does not mean that the defendant is free to return to society. \nIn several states and federally, a defendant who is found not guilty by reason of \ninsanity is automatically committed to a treatment facility until there is a \ndetermination that mental health has been restored.18 U.S.C. \u00a7 4243(a), accessed \nDecember 3, 2010, http://law.onecle.com/uscode/18/4243.html. This is also the \nModel Penal Code approach. As the Model Penal Code states in \u00a7 4.08(1), \"[w]hen a \ndefendant is acquitted on the ground of mental disease or defect excluding \nresponsibility, the Court shall order him to be committed to the custody of the \nCommissioner of Mental Hygiene [Public Health] to be placed in an appropriate \ninstitution for custody, care and treatment.\" \nOther states have a hearing on sanity after the judgment or verdict of not guilty by \nreason of insanity is returned. If the defendant is deemed mentally competent at the \nhearing, he or she is released. If the defendant is found mentally ill at the hearing, he \nor she is committed to the appropriate treatment facility.Ohio Rev. Code Ann. \n\u00a7 2945.40, accessed December 3, 2010, http://codes.ohio.gov/orc/2945.40. Temporary Insanity \nMany states also recognize temporary insanity, which does not differ in analysis from \npermanent insanity except for the duration of the mental illness.Aaron Malo, \nMatthew P. Barach, and Joseph A. Levin, \"The Temporary Insanity Defense in \nCalifornia,\" hastings.edu website, accessed December 3, \n2010, http://www.uchastings.edu/public-law/docs/tempinsanity.pdf. In a state that \nrecognizes temporary insanity, the elements of the state's insanity defense, either \nM'Naghten, irresistible impulse, substantial capacity, or Durham, must be \npresent at the time the crime was committed. If the defendant is found not guilty by \nreason of insanity for the criminal offense, but regains mental competence at the \ntime of prosecution, the defendant is released after the verdict is rendered. The trial \ncourt will order release based on the commitment procedure discussed in Section \n6.1.9 \"Disposition of the Legally Insane\". \nExample of Temporary Insanity \nIn Virginia in 1994, Lorena Bobbitt was tried for the crime of slicing off her \nhusband's penis. Bobbitt pleaded not guilty to malicious wounding by reason of \ninsanity. Bobbitt successfully established the irresistible impulse insanity \ndefense by presenting evidence of years of spousal abuse, a forced abortion, and \nrape on the night of the incident.Rachael Bell, \"Crimes Below the Belt: Penile \nRemoval and Castration,\" TruTV website, accessed December 3, \n2010, http://www.trutv.com/library/crime/criminal_mind/sexual_assault/severed \n_penis/index.html; \"John Wayne and Lorena Bobbitt Trials: 1993 and 1994\u2014Lorena \nBobbitt's Trial Begins,\" law.jrank.org website, accessed December 3, \n2010, http://law.jrank.org/pages/3594/John-Wayne-Lorena-Bobbitt-Trials-\n19931994-Lorena-Bobbitt-s-Trial-Begins.html. After the jury returned the verdict of \nnot guilty by reason of insanity, Bobbitt was evaluated, deemed mentally competent, \nand released.Rachael Bell, \"Crimes Below the Belt: Penile Removal and Castration,\" \nTruTV website, accessed December 3, \n2010, http://www.trutv.com/library/crime/criminal_mind/sexual_assault/severed \n_penis/2.html. Lorena Bobbitt Trial Video \nLorena Bobbitt Trial, Day One \nThis news story discusses the first day of the Lorena Bobbitt trial.Roger Simon, \"Was \nLorena Bobbitt's Act 'an Irresistible Impulse?'\" Baltimoresun.com website, accessed \nAugust 26, 2011, http://articles.baltimoresun.com/1994-01- \n12/news/1994012071_1_lorena-bobbitt-insanity-defense-reason-of-insanity. \n(click to see video) \nKEY TAKEAWAYS \n\u2022 The four states that do not recognize the insanity defense are Montana, Utah, Kansas, and \n Idaho. \n\u2022 The four versions of the insanity defense are M'Naghten, irresistible impulse, substantial \ncapacity, and Durham. \n\u2022 The two elements of the M'Naghten insanity defense are the following: \no The defendant must be suffering from a mental defect or disease at the time of the \ncrime. \no The defendant did not know the nature or quality of the criminal act he or she \ncommitted or that the act was wrong because of the mental defect or disease. \n\u2022 The two elements of the irresistible impulse insanity defense are the \nfollowing: \no The defendant must be suffering from a mental defect or disease at the time of the \ncrime. \no The defendant could not control his or her criminal conduct because of the mental \ndefect or disease. \n\u2022 The substantial capacity test softens the second element of the M'Naghten and irresistible \nimpulse insanity defenses. Under the substantial capacity test, the defendant must lack \nsubstantial, not total, capacity to appreciate the criminality of conduct or to control or \n conform conduct to the law. \n\u2022 The Durham insanity defense excuses criminal conduct when it is caused by a mental disease \nor defect. \u2022 \nThe criminal defendant pleading not guilty by reason of insanity must produce evidence to \nrebut the presumption that criminal defendants are sane. Thereafter, either the prosecution \nhas the burden of disproving insanity to a certain evidentiary standard or the defendant has \nthe burden of proving insanity to a preponderance of evidence or clear and convincing \nevidence. \n\u2022 \nThe diminished capacity defense is a failure of proof imperfect defense that may reduce a \nfirst-degree murder to second-degree murder or manslaughter if the defendant did not have \nthe mental capacity to form first-degree murder criminal intent. The insanity defense is \ngenerally a perfect affirmative defense in many jurisdictions. \n\u2022 The insanity defense exonerates the defendant from criminal responsibility. Mental \nincompetence to stand trial delays the criminal trial until mental competency is regained. \n\u2022 \nThe guilty but mentally ill verdict finds the criminal defendant guilty but orders him or her to \nundergo mental health treatment while incarcerated. The insanity defense is generally a \nperfect affirmative defense in many jurisdictions. \n\u2022 \nThe federal government and some states automatically commit a criminal defendant to a \nmental health facility after an acquittal based on insanity. Other states have a postverdict \nhearing to rule on commitment. \n\u2022 A claim of temporary insanity is the same as a claim of insanity except for the duration of the \nmental illness. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the end \nof the chapter. \n1. Jeffrey is diagnosed with schizophrenia. For fifteen years, Jeffrey kidnaps, tortures, kills, and \neats human victims. Jeffrey avoids detection by hiding his victims' corpses in various \nlocations throughout the city. If the jurisdiction in which Jeffrey commits these crimes \nrecognizes the M'Naghten insanity defense, can Jeffrey successfully plead and prove insanity? Why or why not? \n2. Read State v. Guido, 191 A.2d 45 (1993). In Guido, the defendant killed her husband and \nclaimed insanity in a jurisdiction that recognizes the M'Naghten insanity defense. Psychiatric \nexperts examined the defendant and deemed her legally sane at the time of the killing. The \nexperts thereafter met with the defendant's attorney and changed their opinion to state that \nthe defendant was legally insane at the time of the killing. The jury found the defendant sane \nafter being made aware of this discrepancy. Did the New Jersey Supreme Court uphold the \ndefendant's conviction? The case is available at this \nlink: http://lawschool.courtroomview.com/acf_cases/8791-state-v-guido. \n3. Read 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 \ndefendant wanted to invalidate South Carolina's statute recognizing the verdict of guilty but \nmentally ill as unconstitutional. The defendant claimed that defendants incarcerated after \nguilty but mentally ill verdicts receive the same mental health treatment as defendants \nincarcerated under regular guilty verdicts, violating the Fourteenth Amendment due process \nclause. Did the Supreme Court of South Carolina uphold the statute? The case is available at \nthis \nlink: http://scholar.google.com/scholar_case?case=13615864613799310547&hl=en&as_sdt= \n2&as_vis=1&oi=scholarr. \nLAW AND ETHICS: THE ELIZABETH SMART CASE \nTwo Prosecutions\u2014Two Different Results \nIn 2002, Brian David Mitchell and his accomplice and wife, Wanda Barzee, kidnapped \nfourteen-year-old Elizabeth Smart from her home. Mitchell, a so-called street \npreacher, and Barzee held Smart captive for nine months, tethering her to a metal \ncable, subjecting her to daily rapes, and forcing her to ingest alcohol and \ndrugs.Jennifer Dobner, \"Elizabeth Smart Kidnapper Convicted, Jury Rejects Insanity \nDefense,\" the Christian Science Monitor website, accessed December 11, 2010, \nhttp://www.csmonitor.com/USA/2010/1210/Elizabeth-Smart-kidnapperconvicted-\njury-rejects-insanity-defense. At one point, they transported Smart across state lines to California. Mitchell was put on trial for kidnapping and sexual assault in \nthe state of Utah. The trial court found Mitchell incompetent to stand trial, and did \nnot make a ruling forcing him to submit to medication to remedy the \nincompetency.Jennifer Dobner, \"Wanda Barzee, Elizabeth Smart Kidnapper, Gets \nFifteen Years, Including Seven Already Served,\" the Huffington Post website, accessed \nDecember 11, 2010, http://www.huffingtonpost.com/2010/05/21/wandabarzee-\nelizabeth-smart_n_584787.html. Unlike Mitchell, Barzee was involuntarily medicated \npursuant to a state court order (by the same judge that heard Mitchell's \nincompetency claim), and pleaded guilty to federal and state kidnapping, sexual \nassault, and illegal transportation of a minor for sex, receiving two fifteen-year \nsentences, to be served concurrently.Jennifer Dobner, \"Wanda Barzee, Elizabeth \nSmart Kidnapper, Gets Fifteen Years, Including Seven Already Served,\" the Huffington \nPost website, accessed December 11, \n2010, http://www.huffingtonpost.com/2010/05/21/wanda-barzee-\nelizabethsmart_n_584787.html. The federal government also instituted a \nprosecution against Mitchell for kidnapping and taking Smart across state lines for \nsex. The US District Court judge held a competency hearing and found that Mitchell \nwas competent to stand trial.Ben Winslow, \"Mitchell Ruled Competent to Stand Trial \nfor Kidnapping \nElizabeth Smart,\" Fox13now.com website, accessed December 11, \n2010, http://www.fox13now.com/news/kstu-mitchell-competent-trial-\nkidnappingsmart,0,4261562.story. Mitchell pleaded not guilty by reason of insanity. \nThroughout the trial, Mitchell was often removed from the courtroom for loudly \nsinging Christmas carols and hymns. A serious of experts testified regarding Mitchell's \npsychological ailments, including a rare delusional disorder, schizophrenia, \npedophilia, and antisocial personality disorder. Nonetheless, the jury rejected the \ninsanity defense and convicted Mitchell of kidnapping and transporting a minor \nacross state lines for the purpose of illegal sex.Jennifer Dobner, \"Elizabeth Smart \nKidnapper Convicted, Jury Rejects Insanity Defense,\" the Christian Science \nMonitor website, accessed December 11, \n2010, http://www.csmonitor.com/USA/2010/1210/Elizabeth-Smart-\nkidnapperconvicted-jury-rejects-insanity-defense. If Mitchell had not committed federal crimes, he might still be awaiting trial in Utah. \n1. What is the purpose of putting Mitchell on trial rather than delaying the trial for mental \nincompetency? Is this purpose ethical? \nCheck your answer using the answer key at the end of the chapter. \nRead about Mitchell's sentencing \nat \nhttp://content.usatoday.com/communities/ondeadline/post/2011/05/elizabethsmart\ns-kidnapper-sentenced-to-xx-years-in-prison/1. \nBrian David Mitchell Video \nSuspect Deemed Competent in Elizabeth Smart Case \nThis video is a news story on the federal court's ruling that Brian David Mitchell was \nmentally competent to stand trial in the Elizabeth Smart case: \n6.2 Infancy, Intoxication, Ignorance, and Mistake \nLEARNING OBJECTIVES \n1. Define the infancy defense. \n2. Distinguish a juvenile court adjudication from a criminal prosecution. \n3. Ascertain four criteria that could support a juvenile court waiver of jurisdiction. \n4. Identify a situation where voluntary intoxication may provide a defense. \n5. Define involuntary intoxication. \n6. Compare the defenses of voluntary and involuntary intoxication. \n7. Identify a situation where mistake of law may provide a defense. \n8. Identify a situation where mistake of law is not a valid defense. \n9. Identify a situation where mistake of fact may provide a defense. \n10. Identify a situation where mistake of fact is not a valid defense. Infancy \nMany states recognize the defense of infancy. Infancy asserts that the defendant is \nnot subject to criminal prosecution because he or she is too young to commit a \ncrime. The policy supporting the infancy defense is the belief that juvenile \ndefendants are too immature to form criminal intent. The infancy defense is typically \nstatutory and can be perfect or imperfect, depending on the jurisdiction. \nStates divide up the jurisdiction of criminal defendants between juvenile courts and \nadult courts. Juvenile court systems generally retain jurisdiction over criminal \ndefendants under the age of sixteen, seventeen, or eighteen, with exceptions. The \nModel Penal Code position is that \"[a] person shall not be tried for or convicted of an \noffense if: (a) at the time of the conduct charged to constitute the offense he was less \nthan sixteen years of age, [in which case the Juvenile Court shall have exclusive \njurisdiction]\" (Model Penal Code \u00a7 4.10(1)(a)). \nThe primary purpose of a juvenile court adjudication is rehabilitation. The goal is \nto reform the minor before he or she becomes an adult. In most states, the infancy \ndefense protects a youthful defendant from criminal prosecution as an adult; it does \nnot 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 \ncommon law, criminal defendants were divided into three age groups. Those under \nthe age of seven were deemed incapable of forming criminal intent, and could not be \ncriminally prosecuted. Defendants between the ages of seven and fourteen were \nprovided a rebuttable presumption that they lacked the mental capacity to form \ncriminal intent. Once a defendant turned fourteen, he or she was subject to an adult \ncriminal prosecution. Modern statutes codify the adult criminal prosecution \nstandard for different age groups. Some states follow the early common law and set \nup rebuttable and irrebuttable presumptions based on the defendant's age.RCW \n9A.04.050, accessed December 6, 2010, http://apps.leg.wa.gov/rcw/default.aspx?cite=9A.04.050. Other states set \nforth a minimum age, such as fourteen or sixteen, and defendants who have reached \nthat age are prosecuted as adults.N.Y. Penal Law \u00a7 30.00, accessed December 6, \n2010, http://law.onecle.com/new-york/penal/PEN030.00_30.00.html. \nWhen a juvenile court has jurisdiction, the jurisdiction must be forfeited if the \njuvenile is to be prosecuted as an adult. This process is called waiver. Juvenile courts \ncan have exclusive jurisdiction over minors under eighteen, or concurrent or \nsimultaneous jurisdiction with adult courts, depending on the state. \nStates vary as to the waiver procedure. Some states allow judges to use discretion in \ngranting the waiver, while others vest this power in the legislature or the \nprosecutor.Melissa Sickmund, OJJDP National Report Series Bulletin, \"Juveniles in \nCourt,\" National Center for Juvenile Justice website, accessed December 7, 2010, \nhttp://www.ncjrs.gov/html/ojjdp/195420/page4.html. A few factors serve as \ncriteria supporting the waiver to adult criminal court: the nature of the offense, the \nsophistication it requires, the defendant's criminal history, and the threat the \ndefendant poses to public safety.Kent v. United States, 383 U.S. 541 (1966), accessed \nDecember 7, \n2010, http://scholar.google.com/scholar_case?case=5405024647930835755&hl=en \n&as_sdt=2&as_vis=1&oi=scholarr. \nExample of the Infancy Defense \nMario is ten years old. Mario shoplifts some candy from the local market and is \narrested. The newly elected district attorney decides to make an example of Mario, \nand begins an adult criminal prosecution against him for theft. In Mario's state, the \njuvenile 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 \nshould be adjudicated in juvenile court, not prosecuted as an adult. Therefore, the \njuvenile court has jurisdiction in this case and Mario's criminal prosecution should \nbe dismissed. Intoxication \nIntoxication is another defense that focuses on the defendant's inability to form the \nrequisite criminal intent. In general, intoxication can be based on the defendant's use \nof alcohol, legal drugs, or illegal drugs. The Model Penal Code defines intoxication as \n\"a disturbance of mental or physical capacities resulting from the introduction of \nsubstances into the body\" (Model Penal Code \u00a7 2.08(5) (a)). The intoxication defense \ncould be perfect or imperfect, statutory or common law, depending on the \njurisdiction. \nIntoxication is a state that is achieved either voluntarily or involuntarily. Most states \nfrown on the use of voluntary intoxication as a defense, and allow it only to reduce \nthe severity of the crime charged.N.Y. Penal Law \u00a7 15.25, accessed December 7, 2010, \nhttp://law.onecle.com/new-york/penal/PEN015.25_15.25.html. Recall from Chapter \n4 \"The Elements of a Crime\" that if a defendant voluntarily undertakes action, such \nas drinking or ingesting drugs, the voluntary act requirement is met. Conduct that \noccurs after the voluntary intoxication probably is not excused unless the \nintoxication prevents the defendant from forming the criminal intent required for \nthe offense.Or. Rev. Stat. \u00a7 161.125, accessed December 7, \n2010, https://www.oregonlaws.org/ors/161.125. If the crime charged is a reckless \nintent crime, voluntary intoxication rarely provides even an imperfect defense.Tenn. \nCode Ann. \u00a7 39-11-503(b), accessed December 7, \n2010, http://www.lawserver.com/law/state/tennessee/tn-\ncode/tennessee_code_3911-503. \nInvoluntary intoxication is more likely to provide a defense than voluntary \nintoxication. Generally, a defendant can claim involuntary intoxication if he or she \ningested the drug or alcohol unknowingly or under force, duress, or fraud.California \nJury Instructions No. 3427, accessed December 7, \n2010, http://www.justia.com/criminal/docs/calcrim/3400/3427.html. Involuntary \nintoxication could affect the defendant's ability to form criminal intent, thus negating \nspecific intent, dropping murder a degree, or converting murder to manslaughter. The Model Penal Code equates involuntary intoxication with the substantial capacity \ntest, providing \"[i]ntoxication which (a) is not self-induced\u2026is an affirmative defense \nif by reason of such intoxication the actor at the time of his conduct lacks substantial \ncapacity either to appreciate its criminality [wrongfulness] or to conform his conduct \nto the requirements of law\" (Model Penal Code \u00a7 2.08 (4)). \nExample of the Intoxication Defense \nClint slips a date rape drug into Delilah's drink at a fraternity party. Delilah is \ntwenty-one and legally able to consume alcohol. The date rape drug produces a state \nof unconsciousness during which Delilah severely beats a sorority sister. Delilah can \nprobably claim involuntary intoxication as a defense in this situation. Although \nDelilah voluntarily drank the alcohol, she became intoxicated from the date rape \ndrug that she ingested unknowingly. Delilah could be acquitted or could have a \ncharge of aggravated battery reduced, depending on the jurisdiction. \nFigure 6.7 Crack the Code Ignorance and Mistake \nOccasionally, a defendant's mistake negates the criminal intent required for an \noffense. Mistakes can be a mistake of law or a mistake of fact. Mistake of law and \nfact defenses can be statutory or common law, perfect or imperfect, depending on \nthe jurisdiction. \nMistake of Law \nThe basis of the mistake of law defense is that the defendant believes his or her \ncriminal conduct is legal. The defense could be a failure of proof defense or an \naffirmative defense of excuse, depending on the jurisdiction.Tex. Penal Code \u00a7 \n8.03, accessed December 7, \n2010, http://www.statutes.legis.state.tx.us/docs/PE/htm/Pe.8.htm. The Model \nPenal Code provides, \"Ignorance or mistake as to a matter of fact or law is a defense \nif: (a) the ignorance or mistake negatives the purpose, knowledge, belief, \nrecklessness or negligence required to establish a material element of the offense; or \n(b) the law provides that the state of mind established by such ignorance or mistake \nconstitutes a defense\" (Model Penal Code \u00a7 2.04(1)). \nMost states require that the mistake of law be founded on a statute or judicial \ndecision that is later overturned.La. Rev. Stat. Ann. \u00a7 14:17, accessed December 7, \n2010, http://law.justia.com/louisiana/codes/2009/rs/title14/rs14-17.html. The \nModel Penal Code states, \"A belief that conduct does not legally constitute an offense \nis a defense to a prosecution for that offense based upon such conduct when\u2026the \nactor\u2026acts in reasonable reliance upon an official statement of the law, afterward \ndetermined to be invalid\u2026contained in\u2026a statute or\u2026judicial decision\" (Model \nPenal Code \u00a7 2.04(3) (b)). \nIncorrect advice from a licensed attorney cannot form the basis of a mistake of law \ndefense.Hopkins v. State, 69 A.2d 456 (1949), accessed December 9, \n2010, \nhttp://www.leagle.com/xmlResult.aspx?xmldoc=1949682193Md489_1637.xm l&docbase=CSLWAR1-1950-1985. Nor can mistake of law be rooted in ignorance of \nthe law because all individuals are required to know the criminal laws effective in \ntheir jurisdiction. The Model Penal Code provides, \"A belief that conduct does not \nlegally constitute an offense is a defense to a prosecution for that offense based upon \nsuch conduct when: the statute or other enactment defining the offense is not \nknown to the actor and has not been published or otherwise made available prior to \nthe conduct\" (Model Penal Code \u00a7 2.04(3) (a)). \nExample of the Mistake of Law Defense \nShelby, an attorney, researches current case law and determines that it is legal to \nsell products over the Internet and not charge sales tax. Shelby starts selling \ndesigner clothing on eBay and does not charge her customers any sales tax. The \ncase decision that Shelby relied on is overturned by a court of appeals. Shelby can \nprobably assert mistake of law as a defense to the crime of evading payment of \nsales tax. \nExample of a Case That Is Inappropriate for the Mistake of Law Defense \nReview the mistake of law defense example given in Section 6 \"Example of the \nMistake of Law Defense\". Assume that in Shelby's state, it is currently illegal to sell \nproducts over the Internet without charging sales tax. Jonathan meets with Shelby, \nand 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 \nnext day with an answer. After Jonathan leaves, Shelby is contacted by her friend \nMargaret, who wants to take an impromptu trip to New York City. Margaret asks \nShelby if she would like to come along. Shelby agrees, rushes home, packs for the \ntrip, and leaves with Margaret. The next day while Shelby is watching a Broadway \nplay with Margaret, Jonathan calls Shelby on her cell phone and asks Shelby what \nher research revealed about the sales tax question. Even though she has not done \nany research on the matter, Shelby responds, \"I just finished the research. You do \nnot need to charges sales tax when you sell products over the Internet.\" If Jonathan thereafter relies on Shelby's incorrect advice, and sells products over the Internet \nwithout charging sales tax, he probably will not be able to assert mistake of law as \na defense. Incorrect advice from an attorney cannot excuse criminal conduct, even if \nthe crime is committed because of the faulty legal opinion. Therefore, Jonathan \ncould be charged with tax evasion in this situation. \nMistake of Fact \nMistake of fact is more likely to provide a defense than mistake of law. If the facts \nas the defendant believes them to be negate the requisite intent for the crime at \nissue, the defendant can assert mistake of fact as a defense.N.H. Rev. Stat. Ann. \n\u00a7 626:3I (a), accessed December 9, \n2010, http://www.gencourt.state.nh.us/rsa/html/lxii/626/626-mrg.htm. Mistake of \nfact is generally not a defense to strict liability crimes because intent is not an \nelement of a strict liability offense.People v. Olsen, 685 P.2d 52 (1984), accessed \nDecember 9, 2010, http://lawschool.courtroomview.com/acf_cases/8639-people-\nvolsen. \nExample of the Mistake of Fact Defense \nMickie sees Rachel, his neighbor, riding his bicycle in her driveway. Mickie walks \nquickly up to Rachel and demands that she get off the bike and return it to his \ngarage. Frightened, Rachel hops off and runs to her house, leaving the bike behind. \nMickie walks the bike over to his garage. Once Mickie reaches the garage, he sees \nthat his bike, which is an exact replica of Rachel's, is already inside. Mickie may be \nable to use mistake of fact as a defense to theft. As is discussed in Chapter 11 \n\"Crimes against Property\", the intent for theft is the intent to take the property of \nanother person. Mickie believed Rachel's bike was his. Thus Mickie's mistake of fact \nnegates the intent required for this offense. Example of a Case That Is Inappropriate for the Mistake of Fact Defense \nTina is pulled over for speeding. Tina claims her speedometer is broken, so she was \nmistaken as to her speed. Tina probably cannot assert mistake of fact as a defense \nin this case. Speeding is generally a strict liability offense. Thus Tina's mistaken \nbelief as to the facts is not relevant because there is no intent required for this \ncrime. \nFigure 6.8 Comparison of Infancy, Intoxication, and Mistake KEY TAKEAWAYS \n\u2022 Infancy is a defense to an adult criminal prosecution if the defendant is too young to form \n the requisite criminal intent for the offense. \n\u2022 The purpose of an adult criminal prosecution is punishment; the purpose of a juvenile \nadjudication is rehabilitation of the minor before he or she becomes an adult. \n\u2022 \nFour criteria that could support a juvenile court waiver of jurisdiction are the nature of the \noffense, the sophistication it requires, the defendant's criminal history, and the threat the \ndefendant poses to public safety. \n\u2022 Voluntary intoxication may provide a defense if the intoxication prevents the defendant from \nforming the requisite criminal intent for the offense. \n\u2022 Involuntary intoxication is intoxication achieved unknowingly or pursuant to force, duress, or \nfraud. \n\u2022 \nVoluntary intoxication is frowned on as a defense and in many states does not provide a \ndefense to certain crimes, such as reckless intent crimes. Involuntary intoxication is more \nlikely to serve as a defense any time the defendant is incapable of forming the requisite \ncriminal intent for the offense. \n\u2022 Mistake of law may provide a defense if the defendant believes his or her conduct is legal \nbecause of reliance on a statute or judicial opinion that is later overturned. \n\u2022 Mistake of law is not a defense when the defendant believes his or her conduct is legal \nbecause of reliance on the incorrect advice of an attorney. \n\u2022 If the facts as the defendant believes them to be prevent the defendant from forming the \nrequisite intent for the crime, mistake of fact could be a valid defense. \n\u2022 Mistake of fact is not a defense to strict liability crimes because intent is not an element. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the end \nof the chapter. \n1. Burt, a sixteen-year-old, consumes alcohol for the first time at a party. Unaware of alcohol's \neffect, Burt drinks too much, attempts to walk home, and is cited for being drunk in public. In \nBurt's state, the juvenile court has concurrent jurisdiction over minors ages seventeen and under, with a waiver to adult court available at the judge's discretion. Burt has not broken \nany laws before. Is it likely that the judge will waive juvenile court jurisdiction in this case \nand allow the adult criminal prosecution of Burt? Why or why not? \n2. Read People v. Register, 60 N.Y.2d 270 (1983). In Register, the defendant shot and killed an \nindividual in a bar after drinking heavily for many hours. The defendant thereafter sought a \njury instruction on the intoxication defense to a charge of depraved mind murder. The trial \ncourt refused, and the defendant was convicted. Did the Court of Appeals of the State of \nNew York uphold the conviction? The case is available at this link: \nhttp://scholar.google.com/scholar_case?case=9019321014077082981&hl=en&as_sdt=2 \n&as_vis=1&oi=. \n3. Read Garnett v. State, 632 A.2d 797 (1993). In Garnett, the defendant, an intellectually \ndisabled twenty-year-old, had sexual intercourse with a thirteen-year-old girl whom he \nbelieved to be sixteen, and was prosecuted for statutory rape. Did the Court of Appeals of \nMaryland reverse the trial court and allow the defendant to assert mistake of fact (the \nvictim's age) as a defense? \n6.3 Entrapment \nLEARNING OBJECTIVE \n1. Compare the subjective and objective entrapment defenses. \nHistorically, no legal limit was placed on the government's ability to induce individuals to \ncommit crimes. The Constitution does not expressly prohibit this governmental action. \nCurrently, however, all states and the federal government provide the defense of entrapment. The \nentrapment defense is based on the government's use of inappropriately persuasive tactics when \napprehending criminals. Entrapment is generally a perfect affirmative statutory or common-law \ndefense. \nEntrapment focuses on the origin of criminal intent. If the criminal intent originates with the \ngovernment or law enforcement, the defendant is entrapped and can assert the defense. If the \ncriminal intent originates with the defendant, then the defendant is acting independently and \ncan be convicted of the offense. The two tests of entrapment are subjective entrapment and objective entrapment. The federal government and the majority of the states \nrecognize the subjective entrapment defense.Connecticut Jury Instruction on Entrapment, Based \non Conn. Gen. Stats. Ann. \u00a7 53a-15, accessed December 10, \n2010, http://www.jud.ct.gov/ji/criminal/part2/2.7-4.htm. Other states and the Model Penal \nCode have adopted the objective entrapment defense.People v. Barraza, 591 P.2d 947 (1979), \naccessed December 10, \n2010, http://scholar.google.com/scholar_case?case=4472828314482166952&hl=en&as_sdt=2& \nas_vis=1&oi=scholarr. \nSubjective Entrapment \nIt is entrapment pursuant to the subjective entrapment defense when law \nenforcement pressures the defendant to commit the crime against his or her will. The \nsubjective entrapment test focuses on the defendant's individual characteristics more \nthan on law enforcement's behavior. If the facts indicate that the defendant is \npredisposed to commit the crime without law enforcement pressure, the defendant \nwill not prevail on the defense. \nThe defendant's criminal record is admissible if relevant to prove the defendant's \ncriminal nature and predisposition. Generally, law enforcement can furnish criminal \nopportunities and use decoys and feigned accomplices without crossing the line into \nsubjective entrapment. However, if it is clear that the requisite intent for the offense \noriginated with law enforcement, not the defendant, the defendant can assert \nsubjective entrapment as a defense. \nExample of Subjective Entrapment \nWinifred regularly attends Narcotics Anonymous (NA) for her heroin addiction. All \nthe NA attendees know that Winifred is a dedicated member who has been clean for \nten years, Marcus, a law enforcement decoy, meets Winifred at one of the meetings \nand begs her to \"hook him up\" with some heroin. Winifred refuses. Marcus attends \nthe next meeting, and follows Winifred out to her car pleading with her to get him \nsome heroin. After listening to Marcus explain his physical symptoms of withdrawal in detail, Winifred feels pity and promises to help Marcus out. She agrees to meet \nMarcus in two hours with the heroin. When Winifred and Marcus meet at the \ndesignated location, Marcus arrests Winifred for sale of narcotics. Winifred may be \nable to assert entrapment as a defense if her state recognizes the subjective \nentrapment 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 \noriginated with Winifred because she has been a dedicated member of NA, and she \nactually met Marcus at an NA meeting while trying to maintain her sobriety. Thus it \nappears that Marcus pressured Winifred to sell heroin against a natural \npredisposition, and the entrapment defense may excuse her conduct. \nObjective Entrapment \nThe objective entrapment defense focuses on the behavior of law enforcement, \nrather than the individual defendant. If law enforcement uses tactics that would \ninduce a reasonable, law-abiding person to commit the crime, the defendant can \nsuccessfully assert the entrapment defense in an objective entrapment jurisdiction. \nThe objective entrapment defense focuses on a reasonable person, not the actual \ndefendant, so the defendant's predisposition to commit the crime is not relevant. \nThus in states that recognize the objective entrapment defense, the defendant's \ncriminal record is not admissible to disprove the defense. \nExample of Objective Entrapment \nWinifred has a criminal record for prostitution. A law enforcement decoy offers \nWinifred $10,000 to engage in sexual intercourse. Winifred promptly accepts. If \nWinifred's jurisdiction recognizes the objective entrapment defense, Winifred \nmay be able to successfully claim entrapment as a defense to prostitution. \nA reasonable, law-abiding person could be tempted into committing prostitution for \na substantial sum of money like $10,000. The objective entrapment defense focuses \non law enforcement tactics, rather than the predisposition of the defendant, so Winifred's criminal record is irrelevant and is not admissible as evidence. Thus it \nappears that law enforcement used an excessive inducement, and entrapment may \nexcuse Winifred's conduct in this case. \nFigure 6.9 Comparison of Subjective and Objective Entrapment Figure 6.10 Diagram of Defenses, Part 2 KEY TAKEAWAY \n\u2022 The subjective entrapment defense focuses on the individual defendant, and provides a \ndefense if law enforcement pressures the defendant to commit the crime against his or her \nwill. If the defendant is predisposed to commit the crime without this pressure, the \ndefendant will not be successful with the defense. Pursuant to the subjective entrapment \ndefense, the defendant's criminal record is admissible to prove the defendant's \npredisposition. The objective entrapment defense focuses on law enforcement behavior, and \nprovides a defense if the tactics law enforcement uses would convince a reasonable, law- \nabiding person to commit the crime. Under the objective entrapment defense, the \ndefendant's criminal record is irrelevant and inadmissible. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the end \nof the chapter. \n1. Allen has a criminal record for burglary. Roger, a law enforcement decoy, approaches Allen \nand asks if he would like to purchase methamphetamine. Allen responds that he would and \nis arrested. This interaction takes place in a jurisdiction that recognizes the subjective \nentrapment defense. If Allen claims entrapment, will Allen's criminal record be admissible to \nprove his predisposition to commit the crime at issue? Why or why not? \n2. Read Sosa v. Jones, 389 F.3d 644 (2004). In Jones, the US District Court for the Eastern \nDistrict of Michigan denied the defendant's petition for a writ of habeas corpus after he was \nsentenced to life in prison for conspiracy to sell and sale of cocaine. The defendant claimed \nhe had been deprived of due process and was subjected to sentencing entrapment when \nfederal agents delayed a sting operation to increase the amount of cocaine sold with the \nintent of increasing the defendant's sentencing to life in prison without the possibility of \nparole. Did the US Court of Appeals for the Sixth Circuit reverse the district court and grant \nthe defendant's petition? The case is available at this \nlink: http://openjurist.org/389/f3d/644/sosa-v-jones. \n3. Read Farley v. State, 848 So.2d 393 (2003). In Farley, the government contacted the \ndefendant, who had no criminal record, in a reverse sting operation with a mass e-mail \nsoliciting individuals to purchase hard-core pornography. The defendant responded to the \nemail and was thereafter sent a questionnaire asking for his preferences. The defendant responded to the questionnaire, and an e-mail exchange ensued. In every communication by \nthe government, protection from governmental interference was promised. Eventually, the \ndefendant purchased child pornography and was arrested and prosecuted for this offense. \nThe defendant moved to dismiss based on subjective and objective entrapment and the \nmotion to dismiss was denied. The defendant was thereafter convicted. Did the Court of \nAppeal of Florida uphold the defendant's conviction? \n6.4 End-of-Chapter Material \nSummary \nThe federal government and every state except Montana, Utah, Kansas, and Idaho \nrecognize the insanity defense. A not guilty by reason of insanity verdict is an \nacquittal for the offense. The policy supporting the insanity defense is the lack of \ndeterrent effect when punishing the legally insane. Four insanity defenses are \nrecognized in the United States: M'Naghten, irresistible impulse, substantial \ncapacity, and Durham. The M'Naghten insanity defense is cognitive and excuses \ncriminal conduct when the defendant is suffering from a mental defect or disease that \nprevents the defendant from knowing the nature or quality of conduct or from \nknowing that conduct is wrong. The irresistible impulse insanity defense adds a \nvolitional component and excuses conduct the defendant cannot control because of a \nmental defect or disease. The substantial capacity test was created by the Model \nPenal Code and softens the requirements to substantial, rather than total, capacity to \nappreciate 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 \nthe product of or caused by a mental disease or defect. Jurisdictions vary as to the \nburden of proving insanity. All jurisdictions require the defendant to rebut a \npresumption that he or she is sane; some also require the defendant to persuade the \ntrier of fact that he or she is legally insane to a preponderance of evidence or clear and convincing evidence (which is a higher standard than preponderance of \nevidence). \nA minority of jurisdictions recognizes diminished capacity and the syndrome defense \nwhen the defendant cannot form the requisite criminal intent for the offense because \nof a mental impairment. The criminal defendant must also be mentally competent to \nstand trial, which means the defendant can understand the charges brought against \nhim or her and can assist in any defense. Some jurisdictions recognize a guilty but \nmentally ill verdict, which does not exonerate the defendant, but provides for mental \nhealth 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 \nthe mental defect or disease. \nThe infancy defense excuses conduct when the defendant is too young to form \ncriminal intent for the offense. The infancy defense is generally not available in \njuvenile adjudications, so it is rarely asserted because most youthful defendants are \nunder the jurisdiction of juvenile courts. Juvenile courts can waive this jurisdiction \nand allow for an adult criminal prosecution under certain circumstances, considering \nthe criteria of the nature of the offense, the sophistication it requires, the defendant's \nprior criminal history, and the threat the defendant poses to public safety. \nOther excuse defenses are intoxication, ignorance, and mistake. Voluntary \nintoxication is frowned on as a defense, but will occasionally excuse conduct if it \nnegates certain high-level criminal intent requirements. Involuntary intoxication, \nwhich is intoxication achieved unknowingly, or under duress or fraud, is more likely \nto provide a defense if it affects the defendant's capacity to form criminal intent. \nIgnorance of the law is not a defense because individuals are expected to know the \nlaws of their jurisdiction. Mistake of law, which means the defendant does not know \nconduct is illegal, functions as a defense if the mistake is based on a judicial opinion \nor statute that is later overturned. Mistake of law is not a defense if the mistake is \nrooted in incorrect legal advice from an attorney. Mistake of fact is a defense if the \nfacts as the defendant believes them to be negate the intent required for the offense. Entrapment is also a defense in every jurisdiction. Most states and the federal \ngovernment recognize the subjective entrapment defense, which focuses on the \ndefendant's predisposition, and does not excuse conduct if the defendant would have \ncommitted the crime without law enforcement pressure. In a subjective entrapment \njurisdiction, the defendant's criminal record is admissible to prove predisposition to \ncommit the crime at issue. Objective entrapment is the Model Penal Code approach \nand excuses conduct if the pressure by law enforcement would induce a reasonable, \nlaw-abiding person to commit the crime. The defendant's criminal record is not \nadmissible to show predisposition in an objective entrapment jurisdiction because \nthe focus is on law enforcement tactics, not the defendant's nature. \nYOU BE THE DEFENSE ATTORNEY \nYou are a well-known private defense attorney with a perfect record. Read the \nprompt, review the case, and then decide whether you would accept or reject it if \nyou want to maintain your level of success. Check your answers using the answer key \nat the end of the chapter. \n1. The defendant shot and killed a police officer and then escaped on foot. He was thereafter \ncharged with first-degree murder. The defendant wants to claim that his diagnosed paranoid \nschizophrenia affected his ability to form the intent required for murder. In your state \n(Arizona), the defendant cannot introduce this argument to negate intent; he can only plead \ninsanity under an abbreviated version of M'Naghten, which requires proof that the \ndefendant did not know his conduct was wrong because of a mental defect or disease. Will \nyou accept or reject the case? Read Clark v. Arizona, 548 U.S. 735 (2006), which is available \nat this link: http://scholar.google.com/scholar_case?case=5050526068124331217&q= \nClark+v.+Arizona&hl=en&as_sdt=2,5&as_vis=1. \n2. The defendant, an eleven-year-old boy, had sexual intercourse with a seven-year-old boy and \nwas charged with two counts of first-degree rape of a child. Three experts questioned the \ndefendant, and two concluded he lacked the capacity to form the intent for rape. This \nconclusion was based on the defendant's response that the sexual contact was consensual \nand felt good. The defendant wants to present the infancy defense. Will you accept or reject \nthe case? Read State v. Ramer, 86 P.3d 132 (2004), which is available at this link: http://scholar.google.com/scholar_case?case=14834415223416879505&hl=en&as_sdt= \n2&as_vis=1&oi=scholarr. \n3. The defendant, a diabetic, injected an abnormally large dose of insulin before his daughter's \nbirthday party. He and his estranged wife went to the store to buy party supplies. When they \nreturned to the defendant's vehicle, he hit her in the head with a hammer. She escaped the \nvehicle, and he caught up with her and ran her over. The defendant wants to claim \ninvoluntary intoxication as a defense to first-degree assault, domestic violence, and \nattempted first-degree murder. Will you accept or reject the case? Read People v. Garcia, 87 \nP.3d 159 (2003), which is available at this \nlink: http://www.lexisone.com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&format= \nFULL&sourceID=bdidhf&searchTerm= ejjH.CGHa.aadj.eeNd&searchFlag=y&l1loc=FCLOW. \n4. The defendant and a narcotics decoy have been acquainted for several years. The narcotics \ndecoy set up a sale transaction between the defendant and a police officer, the defendant \nmade the sale, and was thereafter charged with delivery of a controlled substance. The \ndefendant claims that the decoy's status as his friend, and numerous phone calls to set up \nthe narcotics sale pressured him to commit the crime and he wants to claim entrapment. \nYour state (Texas) allows the defense of objective entrapment, focusing on law enforcement \ntactics. Will you accept or reject the case? Read Sebesta v. State, 783 S.W.2d 811 (1990), \nwhich is available at this \nlink: http://scholar.google.com/scholar_case?case=7939192026130608711&hl=en&as_sdt=2 \n002&as_vis=1. \nCases of Interest \n\u2022 U.S. v. Hinckley, 493 F.Supp. 2d 65 (2007), discusses St. Elizabeth Hospital's \nproposal for the conditional release of John W. \nHinckley: http://fl1.findlaw.com/news.findlaw.com/wp/docs/hinckley/ushinckley12 \n 1703opn.pdf. \n\u2022 Graham v. Florida, 130 S. Ct. 2011(2010), discusses sentencing a juvenile offender to \nlife in \nprison: http://scholar.google.com/scholar_case?case=6982366090819046045&q= \nGraham+v.+Florida&hl=en&as_sdt=2,5. \u2022 \nLegue v. State, 688 N.E.2d 408 (1997), discusses voluntary intoxication: \nhttp://scholar.google.com/scholar_case?case=15549524331562340362 \n&hl=en&as_sdt=2&as_vis=1&oi=scholarr. \n\u2022 \nU.S. v. Albertini, 830 F.2d 985 (1987), discusses mistake of law: \nhttp://lawschool.courtroomview.com/acf_cases/8647-united-states-v-albertini. \nArticles of Interest \n\u2022 The insanity defense and recent US Supreme Court \n decisions: http://www.law.indiana.edu/ilj/volumes/v81/no4/14_Grachek.pdf \n\u2022 \nThe insanity defense for Jared Lee Loughner, the shooter of US Representative \nGabrielle Giffords (D-AZ): http://www.nwherald.com/2011/01/10/insanity-\ndefensedifficult-for-loughner/a8b43du \n\u2022 The ruling that Jared Lee Loughner is incompetent to stand trial for the shooting of \nRepresentative Giffords: \nhttp://www.msnbc.msn.com/id/43165830/ns/us_newscrime_and_courts/t/ariz-\nshooting -spree-suspect-incompetent-trial \n\u2022 The defense of caffeine overdose: \nhttp://www.aolnews.com/2010/09/20/caffeineintoxication -insanity-as-legal-\ndefense-strategy \n\u2022 Entrapment: http://www.allbusiness.com/legal/laws/885814-1.html \nWebsites of Interest \n\u2022 Insanity laws by state: http://criminal.findlaw.com/crimes/more-criminal- \n topics/insanity-defense/the-insanity-defense-among-the-states.html \n\u2022 Information about entrapment: http://www.wopular.com/newsracks/entrapment \nStatistics of Interest \n\u2022 Juvenile crime in the United \nStates: http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=2028 \nAnswers to Exercises \nFrom Section 6.1 \"The Insanity Defense\" \n1. Jeffrey will not be successful in a jurisdiction that recognizes \nthe M'Naghten insanity defense. Although Jeffrey has a mental defect or disease, \nschizophrenia, Jeffrey's behavior in hiding the victims' corpses indicates that he \nknows his behavior is wrong. Thus Jeffrey cannot produce evidence establishing the second element of M'Naghten. \n2. The New Jersey Supreme Court reversed the defendant's conviction, holding that the \nexperts changed their opinion after being educated as to the meaning of mental \ndefect or disease under M'Naghten. Thus the change by the experts was not \nfraudulent and the defendant was entitled to a retrial. \n3. The Supreme Court of South Carolina upheld the convictions and the statute. The \ncourt held that the statute rationally accomplishes its goals, and guilty but mentally ill \ndefendants receive immediate rather than delayed treatment, which complies with \ndue process. \nAnswers to Exercises \nFrom Section 6.2 \"Infancy, Intoxication, Ignorance, and Mistake\" \n1. It is unlikely that the judge will waive juvenile court jurisdiction in this case. Some of \nthe criteria a judge will analyze when waiving jurisdiction are the nature of the \noffense, the sophistication it requires, the defendant's criminal history, and the threat \nthe defendant poses to public safety. This is Burt's first offense, and it did not involve \nviolence or require much sophistication. Thus the judge will probably allow Burt to be \nadjudicated in juvenile court. \n2. The Court of Appeals of the State of New York upheld the defendant's conviction and \nthe trial court's refusal to instruct the jury on intoxication. The court based its \nholding on the depraved mind murder statute, which requires reckless criminal \nintent, and the intoxication defense statute, which disallows evidence of intoxication \nas a defense to a reckless intent crime. \n3. The Court of Appeals of Maryland upheld the trial court's decision to disallow the \nmistake of age defense. The court based its holding on the plain meaning of the \nstatutory rape statute, which is a strict liability offense. \nAnswers to Exercises \nFrom Section 6.3 \"Entrapment\" \n1. Allen's criminal record for burglary is not admissible to prove his predisposition to \ncommit the crime of purchasing contraband. The fact that Allen committed a \nburglary in the past does not indicate that he is predisposed to purchase contraband. Thus Allen's criminal record for burglary is irrelevant and inadmissible, even though \nhe is claiming entrapment in a jurisdiction that recognizes the subjective \nentrapment defense. \n2. The US Court of Appeals for the Sixth Circuit affirmed the district court's denial of \nthe petition. The court held that the defendant did not have a constitutional right \nto assert entrapment and that the rejection of the defendant's sentencing \nentrapment claim was appropriate, albeit unfortunate, under the circumstances. \n3. The Court of Appeal of Florida reversed the defendant's conviction under both \ntheories of entrapment. The court based its holding on the defendant's lack of \npredisposition to commit the crime and the government's assurance that there \nwould be no governmental interference, which was false under the circumstances. \nAnswers to Law and Ethics Question \n1. Whether Mitchell is put on trial, or held indefinitely because of his mental \nincompetency, he is incapacitated and prevented from harming other victims. The \ndifference is retribution. The federal judge permitted Mitchell to be put on trial, \nwhich resulted in a conviction providing retribution. Barzee's sentencing also \nprovided retribution. The state court judge allowed only for the incapacitation of \nMitchell, which did not resolve the case for the Smart family or the general public. \nWhether or not retribution is ethical has been debated for centuries. However, \nretribution does restore public confidence in the judicial system, which can have \na positive deterrent effect. \nAnswers to You Be the Defense Attorney \n1. In this case, the US Supreme Court upheld Arizona's abbreviated M'Naghten statute, \nand also confirmed Arizona's constitutional right to preclude a defense based on the \ndefendant's inability to form criminal intent because of a mental defect or disease. \nThus you would not be able to strike down Arizona's insanity defense statute, and you \ncould not introduce evidence that the defendant lacked the capacity to form criminal intent, so you should reject the case. \n2. The Washington Supreme Court upheld the trial court's ruling that the defendant was \nincapable of forming the intent to commit rape of a child, reversing the appellate \ncourt. The court based its holding on the Washington infancy statute, which requires \nthe prosecution to rebut a presumption of infancy for defendants under the age of \ntwelve by clear and convincing evidence. Thus you would prevail on the infancy \ndefense, and you should accept the case. \n3. In this case, the trial court rejected the defendant's involuntary intoxication claim, \nand the defendant had to plead not guilty by reason of insanity. He was \nthereafter found guilty. On appeal, the Court of Appeals of Colorado reversed, \nholding 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 \ndefense, and should accept the case. \n4. The Court of Appeals of Texas upheld the trial court's rejection of a motion to dismiss \nthe charge based on entrapment. The court held that friendship and numerous phone \ncalls are not enough to pressure an unwilling person to commit a crime. Thus you \nwould lose on the entrapment defense and should reject the case. \nChapter 7Parties to Crime Source: Image courtesy of Jane F. Kardashian, MD. \nCongress can impute to a corporation the commission of certain criminal offenses \nand subject it to criminal prosecution therefor. \nNew York Central R. Co. v. U.S., cited in Section 7.2.1 \"Corporate Liability\" \n7.1 Parties to Crime \nLEARNING OBJECTIVES \n1. Identify the four parties to crime at early common law. \n2. Identify the parties to crime in modern times. \n3. Define the criminal act element required for accomplice liability. \n4. Define the criminal intent element required for accomplice liability. \n5. Define the natural and probable consequences doctrine. \n6. Discuss the consequences of accomplice liability. \n7. Determine whether an accomplice can be prosecuted when the principal is not prosecuted or \nacquitted. \nOften more than one criminal defendant plays a role in the commission of a crime. Defendants \nworking together with a common criminal purpose or design are acting with complicity. When \nthe participation and criminal conduct varies among the defendants, an issue arises as to who is \nresponsible for which crime and to what degree. This chapter analyzes different parties to crime, \nalong with their accompanying criminal liability. Chapter 8 \"Inchoate Offenses\" examines crimes \nthat necessarily involve more than one person such as conspiracy and solicitation, as well as \nanother inchoate or incomplete crime, attempt. \nAccomplice Liability \nAt early common law, parties to crime were divided into four categories. A principal \nin the first degree actually committed the crime. A principal in the second degree was \npresent at the scene of the crime and assisted in its commission. An accessory before \nthe fact was not present at the scene of the crime, but helped prepare for its commission. An accessory after the fact helped a party to the crime after its \ncommission by providing comfort, aid, and assistance in escaping or avoiding arrest \nand prosecution or conviction. \nIn modern times, most states and the federal government divide parties to crime into \ntwo categories: principalsCal. Penal Code \u00a7 31, accessed December 20, \n2010,http://law.onecle.com/california/penal/31.html. and their accomplices, and \naccessories.Idaho Code Ann. \u00a7 18-205, accessed December 20, \n2010, \nhttp://www.legislature.idaho.gov/idstat/Title18/T18CH2SECT18205.htm. The \ncriminal actor is referred to as the principal, although all accomplices have \nequal criminal responsibility as is discussed in Section 7.1 \"Parties to Crime\". \nAccomplice Elements \nAn accomplice under most state and federal statutes is responsible for the same \ncrime as the criminal actor or principal.18 U.S.C. \u00a7 2, accessed December 20, 2010, \nhttp://codes.lp.findlaw.com/uscode/18/I/1/2. However, accomplice liability is \nderivative; the accomplice does not actually have to commit the crime to be \nresponsible for it. The policy supporting accomplice liability is the idea that an \nindividual who willingly participates in furthering criminal conduct should be \naccountable for it to the same extent as the criminal actor. The degree of \nparticipation is often difficult to quantify, so statutes and cases attempt to segregate \nblameworthy accomplices based on the criminal act and intent elements, as is \ndiscussed in Section 7.1 \"Parties to Crime\". \nAccomplice Act \nIn the majority of states and federally, an accomplice must voluntarily act in some \nmanner to assist in the commission of the offense. Some common descriptors of the \ncriminal act element required for accomplice liability are aid, abet, assist, \ncounsel, command, induce, or procure.K.S.A. \u00a7 21-3205, accessed December 20, \n2010, http://kansasstatutes.lesterama.org/Chapter_21/Article_32/#21- 3205. Examples of actions that qualify as the accomplice criminal act are helping \nplan the crime, driving a getaway vehicle after the crime's commission, and luring a \nvictim to the scene of the crime. The Model Penal Code defines the accomplice \ncriminal act element as \"aids\u2026or attempts to aid such other person in planning or \ncommitting [the offense]\" (Model Penal Code \u00a7 2.06(3) (a) (ii)). \nIn many states, words are enough to constitute the criminal act element required \nfor accomplice liability.N.Y. Penal Law \u00a7 20.00, accessed December 26, \n2010, http://law.onecle.com/new-york/penal/PEN020.00_20.00.html. On the \nother 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 \naccomplice.Commonwealth v. Hargrave, 745 A.2d 20 (2000), accessed December \n20, \n2010, http://scholar.google.com/scholar_case?case=14481330811091769472&hl=en \n&as_sdt=2&as_vis=1&oi=scholarr. However, if there is a legal duty to act, a \ndefendant who is present at the scene of a crime without preventing its occurrence \ncould be liable as an accomplice in many jurisdictions.People v. Rolon, 160 Cal. App. \n4th 1206 (2008), accessed December 20, 2010, http://caselaw.findlaw.com/cacourt-\nof-appeal/1308666.html. As the Model Penal Code provides, \"[a] person is an \naccomplice of another person in the commission of an offense if\u2026having a legal duty \nto prevent the commission of the offense, fails to make proper effect so to do\" (Model \nPenal Code \u00a7 2.06(3)(a)(iii)). \nExample of a Case Lacking Accomplice Act \nReview the criminal law issues example in Chapter 1 \"Introduction to Criminal \nLaw\", Section 1.2.1 \"Example of Criminal Law Issues\". In that example, Clara and \nLinda go on a shopping spree. Linda insists that they browse an expensive \ndepartment store. After they enter the lingerie department, Linda surreptitiously \nplaces a bra into her purse. Clara watches, horrified, but does not say anything, even \nthough a security guard is standing nearby. As Linda and Clara leave the store, an \nalarm is activated. Linda and Clara run away with the security guard in pursuit. In this case, Clara has probably not committed the criminal act element required for \naccomplice liability. Although Clara was present at the scene of the crime and did not \nalert the security guard, mere presence at the scene is not sufficient to constitute the \naccomplice criminal act. Clara fled the scene when the alarm went off, but presence \nat the scene of a crime combined with flight is still not enough to comprise the \naccomplice criminal act. Thus Clara has probably not committed theft as an \naccomplice, and only Linda is subject to a criminal prosecution for this offense. \nExample of Accomplice Act \nPhoebe, the parent of a two-year-old named Eliza, watches silently as her live-in \nboyfriend Ricky beats Eliza. In Phoebe's state, parents have a duty to come to the aid \nof their children if their safety is threatened. Ricky severely injures Eliza, and both \nPhoebe and Ricky are arrested and charged with battery and child endangerment. \nPhoebe probably has committed the criminal act element required for accomplice \nliability in many jurisdictions. Phoebe does not personally act to physically harm her \nchild. However, her presence at the scene combined with a legal duty to act could be \nenough to make her an accomplice. Thus Phoebe has most likely committed battery \nand child endangerment as an accomplice, and both she and Ricky are subject to a \ncriminal prosecution for these offenses. \nAccomplice Intent \nThe criminal intent element required for accomplice liability varies, depending on \nthe jurisdiction. In many jurisdictions, the accomplice must act with specific intent \nor purposely when aiding or assisting the principal.Or. Rev. Stat. \u00a7 161.155, \naccessed December 20, 2010, https://www.oregonlaws.org/ors/161.155. Specific \nintent 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 \"with \nthe purpose of promoting or facilitating the commission of the offense\" (Model Penal \nCode \u00a7 2.06(3) (a)). In other jurisdictions, if the crime is serious and the accomplice \nacts with general intent or knowingly or has awareness that the principal will commit the crime with his or her assistance, intent to further the crime's commission \ncould be inferred.People v. Lauria, 251 Cal. App. 2d 471 (1967), accessed December \n21, \n2010, http://scholar.google.com/scholar_case?case=686539897745974621&hl=en& \nas_sdt=2&as_vis=1&oi=scholarr. In a minority of jurisdictions, only general \nintent or acting knowingly that the crime will be promoted or facilitated is \nrequired, regardless of the crime's seriousness.Washington Rev. Code Ann. \n\u00a7 9A.08.020 (3) (a), accessed December 21, \n2010, http://apps.leg.wa.gov/rcw/default.aspx?cite=9A.08.020. \nExample of Accomplice Intent \nJoullian, a hotel owner, rents a hotel room to Winnifred, a prostitute. In a state that \nrequires an accomplice to act with specific intent or purposely, Joullian must \ndesire Winnifred to commit prostitution in the rented room to be Winnifred's \naccomplice. Evidence that Joullian stands to benefit from Winnifred's prostitution, \nsuch as evidence that he will receive a portion of the prostitution proceeds, could \nhelp prove this intent. If Joullian's state allows for an inference of specific intent \nor 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 \ninference. If Joullian's state requires only general intent or knowingly for \naccomplice liability regardless of the crime's seriousness, to be deemed an \naccomplice Joullian must simply be aware that renting Winnifred the room will \npromote or facilitate the act of prostitution. \nThe Natural and Probable Consequences Doctrine \nAccomplice liability should be imputed only to blameworthy, deserving defendants. \nHowever, in some jurisdictions, if the crime the defendant intentionally furthers is \nrelated to the crime the principal actually commits, the defendant is deemed an \naccomplice. As with legal causation, discussed in Chapter 4 \"The Elements of a \nCrime\", foreseeability is the standard. Under the natural and probable consequences doctrine, if the defendant assists the principal with the intent to further a specific \ncrime's commission, and the principal commits a different crime that \nis foreseeable at the time of the defendant's assistance, the defendant could be liable \nas an accomplice.ME Rev. Stat. Ann. tit. 17-A \u00a7 57 (3) (A), accessed December 21, \n2010, http://www.mainelegislature.org/legis/statutes/17-a/title17- \nAsec57.html. Several jurisdictions have rejected this doctrine as an overly harsh \nextension of accomplice liability.Bogdanov v. People, 941 P.2d 247, 251 n. 8 (1997), \naccessed December 21, \n2010, http://scholar.google.com/scholar_case?case=13910767150180460511&hl=en \n&as_sdt=2&as_vis=1&oi=scholarr#[8]. \nExample of the Natural and Probable Consequences Doctrine \nJos\u00e9 shows up drunk and unruly at his friend Abel's house and tells Abel he wants to \n\"beat the hell\" out of his girlfriend Maria. Jos\u00e9 asks Abel to drive him to Maria's \nhouse, and Abel promptly agrees. Abel drives Jos\u00e9 to Maria's house and waits in the \ncar with the engine running. Jos\u00e9 forces his way into Maria's house and then beats \nand thereafter rapes her. If Jos\u00e9 and Abel are in a jurisdiction that recognizes the \nnatural and probable consequences doctrine, the trier of fact could find that Abel is \nan accomplice to the battery, burglary, and rape of Maria. Abel appears to have the \ncriminal intent required to be an accomplice to battery because he assisted Jos\u00e9 in \nhis quest to beat Maria. If burglary and rape were foreseeable when Abel drove a \ndrunk and angry Jos\u00e9 to Maria's house, the natural and probable consequences \ndoctrine would extend Abel's accomplice liability to these crimes. If Abel is not in a \nnatural and probable consequences jurisdiction, the trier of fact must separately \ndetermine that Abel had the criminal intent required to be an accomplice to battery, \nburglary, and rape; Abel's intent will be ascertained according to the jurisdiction's \naccomplice intent requirement\u2014either specific intent or purposely or general \nintent or knowingly. \nFigure 7.1 Diagram of Accomplice Liability Consequences of Accomplice Liability \nAn accomplice is criminally responsible for the crime(s) the principal commits. \nAlthough the sentencing may vary based on a defendant-accomplice's criminal \nrecord or other extenuating circumstances related to sentencing, such as prior \nstrikes, in theory, the accomplice is liable to the same degree as the principal. So if \naccomplice liability is established in the examples given in Section 7.1.2 \"Accomplice \nElements\"; Phoebe is criminally responsible for battery and child endangerment, \nJoullian is criminally responsible for prostitution, and Abel is criminally responsible \nfor battery and possibly burglary and rape. The principal should also be criminally responsible for his or her own actions. However, occasionally a situation arises \nwhere the principal is not prosecuted or acquitted because of a procedural \ntechnicality, evidentiary problems, or a plea bargain, as is discussed in Section 7 \n\"Prosecution of an Accomplice When the Principal Is Not Prosecuted or Is \nAcquitted\". \nProsecution of an Accomplice When the Principal Is Not Prosecuted or Is \nAcquitted \nAlthough accomplice liability is derivative, in many jurisdictions the trier of fact can \ndetermine that a defendant is an accomplice even if the criminal actor or principal is \nnot prosecuted or has been tried and acquitted for the offense.Standefer v. U.S., 447 \nU.S. 10 (1980), accessed December 22, \n2010, http://scholar.google.com/scholar_case?case=11715693283858901517&hl=en \n&as_sdt=2&as_vis=1&oi=scholarr. Thus a defendant can be liable for a crime even \nthough he or she did not commit it and the defendant who did was spared \nprosecution or found not guilty. While this situation appears anomalous, if a \ndefendant helps another commit a crime with the intent to further the crime's \ncommission, punishment for the completed crime is appropriate. As the Model Penal \nCode states, \"[a]n accomplice may be convicted on proof of the commission of the \noffense and of his complicity therein, though the person claimed to have committed \nthe offense has not been prosecuted or convicted or has been convicted of a different \noffense or degree of offense\u2026or has been acquitted\" (Model Penal Code \u00a7 2.06(7)). \nExample of Prosecution of an Accomplice When the Principal Is Not Prosecuted \nReview the example in Section 7 \"Example of the Natural and Probable \nConsequences Doctrine\" with Jos\u00e9 and Abel. Assume that after Jos\u00e9 burglarizes, \nbeats, and rapes Maria, local police arrest Jos\u00e9 and Abel. The police transport Jos\u00e9 \nand Abel to the police station and take them to separate rooms for interrogation. The \npolice officer who interrogates Jos\u00e9 is a rookie and forgets to read Jos\u00e9 his Miranda \nrights. Thereafter, the police contact Maria, but she refuses to cooperate with the \ninvestigation because she fears reprisal from Jos\u00e9. The district attorney decides not to prosecute Jos\u00e9 because of the tainted interrogation. In this case, Abel could still be \nprosecuted for battery and possibly rape and burglary as an accomplice in some \njurisdictions. Although Jos\u00e9 is the principal and actually committed the crimes, it is \nnot necessary for Jos\u00e9 to suffer the same criminal prosecution and punishment as \nAbel. If the elements required for accomplice liability are present, Abel can be fully \nresponsible for the crimes committed by Jos\u00e9, whether or not Jos\u00e9 is prosecuted for \nor convicted of these offenses. \nGarrido Sentencing Video \nAttorney: Nancy Garrido in Tears during Sentencing \nPhillip Garrido, with his wife Nancy's help, kidnapped Jaycee Dugard, an \nelevenyear-old girl, and held her captive for eighteen years. During that time, \nDugard was repeatedly raped, became pregnant twice, and gave birth to two \nchildren. Phillip Garrido pleaded guilty to multiple charges of rape and kidnapping \nand received a sentence of four hundred years to life in prison. Nancy was \nprosecuted as an accomplice, pleaded guilty and received a sentence of thirty-six \nyears to life in prison.Michael Martinez, \"Phillip, Nancy Garrido sentenced in Jaycee \nDugard \nKidnapping,\" CNN website, accessed August 15, 2011, \nhttp://articles.cnn.com/201106-02/justice/california.garridos.sentencing_1_jaycee-\ndugard-terry-probyn-phillipgarrido?_s=PM:CRIME. Nancy Garrido's attorney \ndiscusses her sentencing as an accomplice in this video: (click to see video) \nGhailani Verdict Video \nGhailani Guilty of One Count \nAhmed Ghailani, an alleged terrorist, was transferred from a military prison in \nGuantanamo Bay and tried as a civilian in a federal district court in New York. \nGhailani was indicted for accomplice liability and conspiracy for the deaths of \nhundreds of citizens killed during Al Qaeda bombings of US embassies in Nairobi, \nKenya, and Tanzania. At trial, the prosecution failed to convince the jury that Ghailani had the criminal intent required for accomplice liability. He was acquitted \nof the murders and attempted murders as an accomplice and convicted of one \nconspiracy charge. However, he received a sentence of life in prison without the \npossibility of parole for the conspiracy charge, the same sentence he would have \nreceived if convicted of all the murder and attempted murder charges.Benjamin \nWeiser, \"Ex-Detainee Gets Life Sentence in Embassy Blasts,\" New York \nTimes website, accessed January 26, \n2011, http://www.nytimes.com/2011/01/26/nyregion/26ghailani.html. A news story \non the conviction of Ghailani is shown in this video: \n(click to see video) \nKEY TAKEAWAYS \n\u2022 The four parties to crime at early common law were principals in the first \ndegree, principals in the second degree, accessories before the fact, and \n accessories after the fact. These designations signified the following: \no Principals in the first degree committed the crime. \no Principals in the second degree were present at the crime scene and assisted \nin the \ncrime's commission. \no Accessories before the fact were not present at the crime scene, but assisted \nin \npreparing for the crime's commission. \no Accessories after the fact helped a party to the crime avoid detection and \nescape \nprosecution or conviction. \n\u2022 In modern times, the parties to crime are principals and their accomplices, and \naccessories. \n\u2022 \nThe criminal act element required for accomplice liability is aiding, abetting, or \nassisting in the commission of a crime. In many jurisdictions, words are enough to \nconstitute the accomplice criminal act element, while mere presence at the scene \nwithout a legal duty to act is not enough. \n\u2022 The criminal intent element required for accomplice liability is either specific intent or \npurposely or general intent or knowingly. \u2022 The natural and probable consequences doctrine holds an accomplice criminally \nresponsible \nif the crime the principal commits is foreseeable when the accomplice assists the \nprincipal. \n\u2022 The consequences of accomplice liability are that the accomplice is criminally \nresponsible for \nthe crimes the principal commits. \n\u2022 In many jurisdictions, an accomplice can be prosecuted for an offense even if the \nprincipal is \nnot prosecuted or is tried and acquitted. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the end \nof the chapter. \n1. Justin asks his girlfriend Penelope, a bank teller, to let him know what time the security guard \ntakes his lunch break so that he can successfully rob the bank. Penelope tells Justin the \nsecurity guard takes his break at 1:00. The next day, which is Penelope's day off, Justin successfully robs the bank at 1:15. Has Penelope committed robbery? Why or why not? \n2. Read State v. Ulvinen, 313 N.W.2d 425 (1981). In Ulvinen, the defendant sat guard and then \nhelped her son clean up and dispose of evidence after he strangled and dismembered his \nwife. Thereafter, the defendant was convicted of murder as an accomplice. The defendant \nwas asleep when the killing occurred, but before the killing her son told her that he planned \nto kill the victim. The defendant reacted with passive acquiescence by demurring and \nexpressing disbelief that he would go through with his plans. Did the Supreme Court of \nMinnesota uphold the defendant's murder conviction? The case is available at this link: \nhttp://scholar.google.com/scholar_case?case=5558442148317816782&hl=en&as_sdt=2 \n&as_vis=1&oi=scholarr. \n3. Read Joubert v. State, 235 SW 3d 729 (2007). In Joubert, the defendant was convicted and \nsentenced to death based on his participation in an armed robbery that resulted in the death \nof a police officer and employee. The jury convicted the defendant after hearing testimony \nfrom his accomplice and reviewing a video of the defendant confessing to the offense. The \ndefendant appealed the conviction because in Texas, accomplice testimony must be \ncorroborated by other evidence, and the defendant claimed that the other corroborating \nevidence was lacking in this case. Did the Court of Criminal Appeals of Texas uphold the \ndefendant's conviction? Why or why not? \n7.2 Vicarious Liability \nLEARNING OBJECTIVES \n1. Distinguish between accomplice liability and vicarious liability. \n2. Distinguish between corporate criminal vicarious liability and individual criminal vicarious \nliability. \nVicarious liability, a concept discussed in Chapter 4 \"The Elements of a Crime\", also transfers \nliability from one defendant to another. However, vicarious liability should not be confused with \naccomplice liability. Accomplice liability is based on the defendant's participation in a criminal \nenterprise and complicity with the criminal actor or principal, but vicarious liability transfers a \ndefendant's criminal responsibility for the crime to a different defendant because of a special \nrelationship. With vicarious liability, the acting defendant also is criminally responsible for his or \nher conduct. Similar to the civil law concept of respondeat superior discussed in Chapter 1 \n\"Introduction to Criminal Law\", vicarious liability in criminal law is common between employers and employees. It is also the basis of corporate liability, which is discussed in Section 7.2.1 \n\"Corporate Liability\". \nCorporate Liability \nAt early common law, corporations were not criminally prosecutable as separate \nentities, which was most likely because in England, corporations were owned and \noperated by the government. In modern times, American corporations are private \nenterprises whose actions can seriously injure other individuals and the economy. \nThus a corporation can be criminally responsible for conduct apart from its owners, \nagents, or employees.New York Central R. Co. v. U.S., 212 U.S. 481 (1909), accessed \nDecember 21, 2010, http://supreme.justia.com/us/212/481. In general, this is a \nvicarious liability, transferring criminal responsibility for an \noffense from an agent or employee of the corporation to the corporation itself, \nbased on the employment relationship. Of course, the agent or employee also is \nresponsible for the crime he or she commits. \nA corporation is vicariously liable only if an agent or employee commits a crime \nduring the agent or employee's scope of employment.720 ILCS \u00a7 5/5-4, accessed \nDecember 26, 2010, http://law.onecle.com/illinois/720ilcs5/5-4.html. As the Model \nPenal Code states, \"[a] corporation may be convicted of the commission of an offense \nif\u2026the conduct is performed by an agent of the corporation acting in behalf of the \ncorporation within the scope of his office or employment\" (Model Penal Code \u00a7 \n2.07(1)(a)). The criminal punishment for a corporation is generally payment of a \nfine. \nExample of Corporate Liability \nHarry, an employee of Burger King Corporation, shreds corporate documents in his \noffice when Burger King is sued civilly for sexual harassment in a multimillion-dollar \nclass action suit. Under modern theories of corporate liability, both Harry and \nBurger King could be criminally prosecuted for obstruction of justice. Note that \nBurger King's liability is vicarious and depends on its relationship with Harry as an \nemployer and the fact that Harry is acting within the scope of employment. Vicarious liability is distinguishable from accomplice liability, where the accomplice must \nbe complicit with the criminal actor. The owners of Burger King, who are the \ncorporate shareholders, did not actively participate in Harry's conduct, although they \nwill share in the punishment if the corporation is fined. \nFigure 7.2 Vicarious and Corporate Liability Individual Criminal Vicarious Liability \nGenerally speaking, criminal law disfavors criminal vicarious liability, the \nexception being corporate liability discussed in Section 7.2.1 \"Corporate Liability\". \nCriminal vicarious liability violates the basic precept that individuals should be \ncriminally accountable for their own conduct, not the conduct of others.State v. \nAkers, 400 A.2d 38 (1979), accessed December 26, \n2010, http://scholar.google.com/scholar_case?case=12639244883487184852&hl=e \nn&as_sdt=2&as_vis=1&oi=scholarr. Although accomplice liability appears to hold \nan accomplice responsible for principals' conduct, in reality the accomplice is \ncommitting a criminal act supported by criminal intent and is punished accordingly. \nIn addition, other statutes that appear to impose criminal liability vicariously are \nactually holding individuals responsible for their own criminal conduct. Some \nexamples are statutes holding parents criminally responsible when their children \ncommit crimes that involve weapons belonging to the parents, and offenses \ncriminalizing contributing to the delinquency of a minor. In both of these examples, \nthe parents are held accountable for their conduct, such as allowing children to \naccess their guns or be truant from school. The law is evolving in this area because \nthe incidence of juveniles committing crimes is becoming increasingly prevalent. \nKEY TAKEAWAYS \n\u2022 Accomplice liability holds an accomplice accountable when he or she is complicit with the \nprincipal; vicarious liability imposes criminal responsibility on a defendant because of a \n special relationship with the criminal actor. \n\u2022 \nIn many jurisdictions, corporations are vicariously liable for crimes committed by employees \nor agents acting within the scope of employment. Individual criminal vicarious liability is \nfrowned on, but the law in this area is evolving as the incidence of juveniles committing \ncrimes increases. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the end \nof the chapter. 1. Brad, the president and CEO of ABC Corporation, recklessly hits and kills a pedestrian as he is \ndriving home from work. Could ABC Corporation be held vicariously liable for criminal \nhomicide? Why or why not? \n2. Read People v. Premier House, Inc., 662 N.Y.S 2d 1006 (1997). In Premier House, the \ndefendant, a housing cooperative that was incorporated, and members of the housing \ncooperative board of directors were ordered to stand trial for violating a New York law \nrequiring that window guards be installed on apartment buildings. A child died after falling \nout of one of the windows. The members of the board of directors appealed on the basis \nthat 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 \nthe board of directors? Why or why not? The case is available at this link: \nhttp://scholar.google.com/scholar_case?case=6854365622778516089&hl=en&as_sdt=2 \n&as_vis=1&oi=scholarr. \n3. Read Connecticut General Statute \u00a7 53a-8(b), which criminalizes the sale or provision of a \nfirearm to another for the purpose of committing a crime. The statute is available at this link: \nhttp://law.justia.com/connecticut/codes/2005/title53a/sec53a-8.html. Does this statute \ncreate accomplice liability or vicarious liability? Read the Connecticut Criminal Jury \nInstruction 3.1-4 for an explanation of the statute. The jury instruction is available at this \nlink: http://www.jud.ct.gov/ji/criminal/part3/3.1-4.htm. \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 \ncase is available at this \nlink: http://scholar.google.com/scholar_case?case=12168070317136071651&hl=en& \nas_sdt=2&as_vis=1&oi=scholarr. In Life Care Centers, a resident of the Life Care \nCenter nursing home died in 2004 from injuries sustained when she fell down the \nfront stairs while attempting to leave the facility in her wheelchair. The resident \ncould try to leave the facility because she was not wearing a prescribed security \nbracelet that both set off an alarm and temporarily locked the front doors if a \nresident approached within a certain distance of those doors. The defendant, Life Care Centers of America, Inc., a corporation that operates the nursing home, was \nindicted for involuntary manslaughter and criminal neglect.Garrett G. Gillespie, \nKristen S. Scammon, \"SJC Limits Corporate Criminal Liability,\" Martindale.com \nwebsite, accessed January 24, 2011, \nhttp://www.martindale.com/corporatelaw/article_Mintz-Levin-Cohn-Ferris-Glovsky-\nPopeo-PC_1047124.htm. The criminal intent element required for involuntary \nmanslaughter and criminal neglect in Massachusetts is reckless intent. The evidence \nindicated that the order requiring the victim to wear a security bracelet was \nnegligently edited out of the victim's treatment sheet, based on the actions of more \nthan one employee. The individual employee who left the victim near the stairs \nwithout the security bracelet relied on the orders that did not indicate a need for the \nbracelet. There was no evidence that any individual employee of Life Care Centers of \nAmerica, Inc. was reckless. The prosecution introduced a theory of \"collective \nknowledge\" of the actions or failure to act of the corporation's employees. The \nprosecution's premise was that the several individual instances of negligent conduct \ncombined to create reckless conduct that could be imputed to the corporation \nvicariously. The Massachusetts Supreme Court unanimously held that the \ncorporation could not be held criminally responsible unless one individual employee \ncould be held criminally responsible.Commonwealth v. Life Care Centers of America, \nInc., 456 Mass. 826 (2010), accessed January 24, 2011, \nhttp://scholar.google.com/scholar_case?case=12168070317136071651&hl=en \n&as_sdt=2&as_vis=1&oi=scholarr. \n1. Do you think it is ethical to allow a corporation to escape criminal responsibility for reckless \ninvoluntary manslaughter and criminal neglect when several employees' negligent conduct \ncaused the death, rather than one employee's reckless conduct? Why or why not? \n7.3 Accessory \nLEARNING OBJECTIVES \n1. Distinguish between accomplice liability and the crime of accessory. \n2. Define the criminal act element required for an accessory. 3. Define the criminal intent element required for an accessory. \n4. Compare various approaches to grading the crime of accessory. \nAs stated in Section 7.1.1 \"Accomplice Liability\", at early common law, a defendant who helped \nplan the offense but was not present at the scene when the principal committed the crime was an \naccessory before the fact. A defendant who helped the principal avoid detection after the \nprincipal committed the crime was an accessory after the fact. In modern times, an accessory \nbefore the fact is an accomplice, and an accessory after the fact is an accessory, which is a \nseparate and distinct offense. Some states still call the crime of accessory \"accessory after the \nfact\"Mass. Gen. Laws ch. 274 \u00a7 4, accessed January 16, \n2011, http://law.onecle.com/massachusetts/274/4.html. or \"hindering prosecution.\"Haw. Rev. \nStat. \u00a7 710-1030, accessed January 26, 2011, \nhttp://law.justia.com/codes/hawaii/2009/volume14/title-37/chapter-710/hrs-0710-1030-htm/. \nThe difference between an accomplice and an accessory is crucial. An accomplice is responsible \nfor the offense the principal commits. An accessory, on the other hand, is guilty of a separate \ncrime that is almost always a misdemeanor. \nAccessory Act \nThe criminal act element required for an accessory in the majority of jurisdictions \nis aiding or assisting a principal in escape, concealment, or evasion of arrest and \nprosecution or conviction after the principal commits a felony.Va. Code Ann. \u00a7 \n18.219, accessed December 26, 2010, http://law.onecle.com/virginia/crimes-\nandoffenses-generally/18.2-19.html. In most states, a defendant cannot be an \naccessory to a misdemeanor, although in some states a defendant can be an \naccessory to a high-level or gross misdemeanor.N.R.S. \u00a7 195.030, accessed December \n26, \n2010, http://law.onecle.com/nevada/crimes/195.030.html. In a minority of states, \nthe defendant can be an accessory to any crime.Haw. Rev. Stat. \u00a7 710-1030, accessed October 10, 2011, \nhttp://www.capitol.hawaii.gov/hrscurrent/Vol14_Ch07010853/HRS0710/HRS_071\n0-1030.htm. \nIn many states, words are enough to constitute the accessory criminal act \nelement.Minn. Stat. Ann. \u00a7 609.495, accessed December 23, \n2010, https://www.revisor.mn.gov/statutes/?id=609.495&year=2010. Often special \ncategories of individuals are exempted from liability as an accessory, typically family \nmembers by blood or marriage.Vt. Stat. Ann. tit. 13 \u00a7 5, accessed December 23, \n2010, http://www.leg.state.vt.us/statutes/fullchapter.cfm?Title=13&Chapter=001. \nExample of Accessory Act \nJim wakes up late at night to the sound of someone pounding on his door. He gets \nout of bed, walks down the stairs, and opens the door. His father James is on the \ndoorstep. James's eyes are bloodshot and he is swaying slightly on his feet. He tells \nJim that he just got into a car accident and needs to come inside before the police \nfind out about it and begin an investigation. Jim steps aside and lets his father enter \nthe house. The smell of alcohol on his father's breath is apparent. He thereafter \nallows his father to spend the night without contacting the police about the accident. \nJim has probably committed the criminal act element required for an accessory in \nmany jurisdictions. Jim allowed his father to escape arrest and evade an alcohol \nscreening after leaving the scene of a car accident, which is most likely felony drunk \ndriving 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 \naccessory liability, he may not be subject to prosecution because the principal to the \ncrime(s) is his father. If Jim is not in a state that relieves family members from \naccessory liability, he could be fully prosecuted for and convicted of this offense. \nFigure 7.3 Crack the Code Accessory Intent \nThe criminal intent element required for an accessory has two parts. First, the \ndefendant must act with general intent or knowingly or awareness that the \nprincipal committed a crime. Second, the defendant must help or assist the \nprincipal escape or evade arrest or prosecution for and conviction of the offense \nwith specific intent or purposely.Mass. Gen. Laws ch. 274 \u00a7 4, accessed \nDecember 26, 2010, http://law.onecle.com/massachusetts/274/4.html. \nExample of Accessory Intent \nReview the example with Jim and James given in Section 7 \"Example of Accessory \nAct\". In this case, Jim is aware that James committed a crime because James told \nJim he got into an accident and James's intoxicated condition was apparent. \nNonetheless, Jim purposely helped James evade arrest and an alcohol screening \nby sheltering him in his home while the effects of the alcohol dissipated. Thus Jim \nprobably has the criminal intent required for liability as an accessory in most \njurisdictions. If Jim is not in a state that exempts family members from accessory \nliability, he could be fully subject to prosecution for and conviction of this offense. \nAccessory Grading \nAs stated in Section 7.3 \"Accessory\", in many jurisdictions accessory is an offense \nthat is graded less severely than the crime committed by the principal. Accessory is \ntypically graded as a misdemeanor,Haw. Rev. Stat. \u00a7 710-1030, accessed January 9, \n2011, http://law.justia.com/codes/hawaii/2009/volume-14/title-\n37/chapter710/hrs-0710-1030-htm/. although in some jurisdictions it is graded as a \nfelony.Idaho Code Ann. \u00a7 18-206, accessed January 9, \n2011, http://www.legislature.idaho.gov/idstat/Title18/T18CH2SECT18-206.htm. Table 7.1 Comparison of Accomplice, Accessory, and Vicarious Liability \nType of \nLiability \nCriminal Act Criminal Intent \nAccomplice Aid, assist commission of a crime Specific or purposely, or general or \nknowingly, depending on the jurisdiction \nAccessory Aid, assist evasion of prosecution or \nconviction for a felony, high-level \nmisdemeanor, or any crime \nGeneral or knowingly (crime committed) \nplus specific or purposely (principal \nevades prosecution or conviction) \nVicarious Committed by an individual in a special \nrelationship with the defendant \nBelongs to an individual in a special \nrelationship with the defendant \nFigure 7.4 Diagram of Parties to Crime KEY TAKEAWAYS \n\u2022 Accomplice liability holds a complicit defendant accountable for the crime the principal \n commits; accessory is a separate crime that is typically a misdemeanor. \n\u2022 \nThe criminal act element required for an accessory is aiding or assisting the principal escape \nor evade arrest, prosecution for, or conviction of a felony, high-level misdemeanor, or any \ncrime, depending on the jurisdiction. In many jurisdictions words are enough to constitute \nthe accessory criminal act element. \n\u2022 The criminal intent element required for an accessory has two parts. The \n defendant must act \no with general intent or knowingly that the principal committed the crime, \no with specific intent or purposely to help the principal escape or evade arrest, \nprosecution for, or conviction of the offense. \n\u2022 In many jurisdictions, the crime of accessory is graded lower than the crime the principal \ncommitted; typically, it is graded as a misdemeanor, although in some jurisdictions, it is \ngraded as a felony. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the end \nof the chapter. \n1. Cory watches as her sister Amanda breaks into a parking meter across the street and starts \nscooping change into her purse. Amanda thereafter runs into a nearby alley and hides behind \na dumpster. A police officer arrives on the scene and asks Cory if she witnessed the crime. \nCory responds, \"No, I didn't notice anything.\" The police officer does a search, does not find \nAmanda, and leaves. Has Cory committed a crime? If your answer is yes, which crime has \nCory committed, and does Cory have a possible defense? \n2. Read U.S. v. Hill, 268 F.3d 1140 (2001). In Hill, the defendant was convicted of harboring a \nfugitive and being an accessory when she helped her husband escape the country to avoid \nprosecution for a failure to pay child support. The defendant claimed that her convictions \nwere unconstitutional because they contravened her right to privacy, association, marriage, \nand due process. Did the US Court of Appeals for the Ninth Circuit uphold the defendant's convictions? The case is available at this link: http://caselaw.findlaw.com/us-9th- \ncircuit/1215479.html. \n3. Read State v. Truesdell, 620 P.2d 427 (1980). In Truesdell, the prosecution appealed the \ndismissal of the defendant's case that was a prosecution for accessory to her twelve-year-old \nson's felony shooting of her ex-husband. The lower court held that the defendant could not \nbe an accessory to a felony because her son was not an adult who could be charged with a \nfelony. Did the Oklahoma Court of Criminal Appeals reverse the lower court and permit the \ndefendant to be tried as an accessory? \n7.4 End-of-Chapter Material \nSummary \nOften more than one criminal defendant participates in the commission of a crime. \nDefendants working together with a common criminal purpose are acting with \ncomplicity 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 \ndegree actually committed the crime. A principal in the second degree was present at \nthe crime scene and assisted in the crime's commission. An accessory before the fact \nwas not present at the crime scene but helped prepare for the crime's commission. \nAn accessory after the fact helped a party after he or she committed a crime by \nproviding aid in escaping or avoiding arrest and prosecution or conviction. In \nmodern times, there are only two parties to a crime: a principal, who is in the same \ncategory with his or her accomplice(s), and accessory(ies). Principals actually commit \nthe crime, and they and their accomplices are criminally responsible for it. \nAccessories 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 \nassistance in the commission of a crime. Words are enough to constitute the \naccomplice criminal act. Mere presence at the scene, even presence at the scene \ncombined with flight after the crime's commission, is not enough to constitute the \naccomplice criminal act unless there is a legal duty to act. The criminal intent element required for accomplice liability in many jurisdictions is \nspecific intent or purposely to commit the crime at issue. In some states, general \nintent or knowingly that the principal will commit the crime creates an inference of \nintent if the offense is serious. In a minority of jurisdictions, general intent or \nknowingly that the principal will commit the crime is sufficient. \nThe natural and probable consequences doctrine holds accomplices criminally \nresponsible for all crimes the principal commits that are reasonably foreseeable. In \nmany jurisdictions an accomplice can be prosecuted for a crime the principal \ncommits even if the principal is not prosecuted or acquitted. \nVicarious liability transfers criminal responsibility from one party to another because \nof a special relationship. Vicarious liability is common between employers and \nemployees and is the basis for corporate criminal liability. Pursuant to modern \ncorporate criminal liability, a corporation can be fined for a crime(s) a corporate \nagent or employee commits during the scope of employment. The corporate agent or \nemployee also is criminally responsible for his or her conduct. In general, the law \ndisfavors 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 \ncommon law. The criminal act element required for an accessory is providing \nassistance to a principal in escape, avoiding detection, or arrest and prosecution, or \nconviction for the commission of a felony, high-level misdemeanor, or any crime, \ndepending on the jurisdiction. Words are enough to constitute the accessory criminal \nact. Several jurisdictions exempt family members from criminal responsibility for \nacting as an accessory. \nThe criminal intent element required for an accessory in most jurisdictions is general \nintent or knowingly that the principal committed a crime, and specific intent or \npurposely that the principal escape, avoid detection, or arrest and prosecution, or \nconviction for the offense. Accessory is a separate crime that is usually graded as a \nmisdemeanor, although some jurisdictions grade accessory as a felony. YOU BE THE LAW PROFESSOR \nYou are a law professor searching for cases to illustrate certain legal concepts for \nyour students. Read the prompt, review the case, and then decide which legal \nconcept it represents. Check your answers using the answer key at the end of the \nchapter. \n1. The defendant's vehicle matched the description of a vehicle seen in the vicinity of a burglary \nbefore the burglary, during the burglary, and after the burglary. The defendant claimed that \nthe evidence was insufficient to prove he was an accomplice to the burglary. Does this case \nillustrate the legal concept of accomplice act, accomplice intent, or both? Read Collins v. \nState, 438 So. 2d 1036 (1983). The case is available at this \nlink: http://scholar.google.com/scholar_case?case=8573128029213310764&hl=en&as_sdt=2 \n,5&as_vis=1. \n2. The defendants, foster parents, were found guilty as accomplices to the felony murder of \ntheir two-year-old foster daughter. Although both defendants testified that the victim died \nfrom injuries experienced after a fall from a swing, medical experts reported that the victim's \ninjuries were inconsistent with that testimony and appeared to be the result of child abuse. \nThe jury convicted the defendants as accomplices to felony murder after a jury instruction \nstating that an omission to act could constitute the criminal act element for accomplice \nliability 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 \ninterpretation, or both? Read State v. Jackson, 137 Wn. 2d 712 (1999). The case is available \nat this link: http://caselaw.findlaw.com/wa-supreme-court/1412039.html. \n3. The defendant, an electrical contracting company, was found guilty of violating OSHA \nregulations that led to an employee's death. The victim, an apprentice in training, touched a \nlive electrical wire and died from electrocution. The OSHA statute in question required \n\"willful\" conduct on behalf of the company. The jury instruction on willful stated that a \ncompany acted willfully or knowingly if individual employees of that company acted \nknowingly. The evidence indicated that some employees knew or were aware of live wiring in \nthe vicinity of the accident. The defendant appealed and claimed that the jury instruction \nshould have stated that a company acted willfully or knowingly if individual employees acted knowingly and had a duty to report that knowledge to the company. Does this case illustrate \nthe legal concept of criminal intent, vicarious liability, or both? Read U.S. v. L.E. Meyers Co., \n562 F.3d 845 (2009). The case is available at this \nlink: http://scholar.google.com/scholar_case?case=2854285863509787279&hl=en&as_sdt=2 \n&as_vis=1&oi=scholarr. \n4. The defendant was convicted of both first-degree murder and accessory after the fact to that \nmurder. The trial court did not instruct the jury that the offenses were mutually exclusive and \nthat they could only convict the defendant of one or the other. The defendant appealed on \nthe basis that he was entitled to a jury instruction that prevented a conviction on both \nmurder and accessory after the fact to murder. Does this case illustrate the legal concept of \nthe criminal elements required for accessory after the fact, the criminal elements required \nfor murder, or both? Read State v. Melvin, No. 382PA09 (North Carolina 2010). The case is \navailable at this link: http://caselaw.findlaw.com/nc-supreme-court/1549865.html. \nCases of Interest \n\u2022 State v. Merida-Medina, 191 P.3d 708 (2008), discusses accomplice \nliability: http://scholar.google.com/scholar_case?case=9533921177591527482&hl=e \n n&as_sdt=2&as_vis=1&oi=scholarr. \n\u2022 \nState v. Guminga, 395 N.W.2d 344 (1986), discusses vicarious liability and due \nprocess: http://scholar.google.com/scholar_case?case=9718401866480992202&hl= \nen&as_sdt=2&as_vis=1&oi=scholarr. \n\u2022 Staten v. State, 519 So. 2d 622 (1988), discusses principal and accessory criminal \nresponsibility: http://scholar.google.com/scholar_case?case=5691885691013540689 \n&hl=en&as_sdt=2&as_vis=1&oi=scholarr. \nArticles of Interest \n\u2022 Spectator liability in gang \n rape: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1664162 \n\u2022 Corporate criminal liability: \nhttp://www.pointoflaw.com/feature/archives/2009/07/corporate-criminal \n-liability-s.php \n\u2022 Criminal vicarious liability in general: \nhttp://www.experiencefestival.com/a/Vicarious_liability \n_criminal/id/1994611 Website of Interest \n\u2022 White collar crime blog \nsite: http://lawprofessors.typepad.com/whitecollarcrime_blog/2009/12/recent- \narticles.html \nStatistics of Interest \n\u2022 FBI statistics on pending corporate and securities fraud \ncases: http://www.fbi.gov/stats-services/publications/financial-crimes-report- \n2009/financial-crimes-report-2009#corporate \nAnswers to Exercises \nFrom Section 7.1 \"Parties to Crime\" \n1. Penelope could be charged with and convicted of robbery as an accomplice in many \njurisdictions. Penelope assisted Justin by telling him what time the security guard \ntook his break. Although Penelope was not present at the scene, if the trier of fact \ndetermines that Penelope had the proper criminal intent required for accomplice \nliability (specific intent or purposely or general intent or knowingly, \ndepending on the jurisdiction) then Penelope can be held accountable for this crime. \nNote that Penelope assisted Justin with words and that words are enough to \nconstitute the criminal act element required for accomplice liability. \n2. The Supreme Court of Minnesota reversed the defendant's murder conviction, \nholding that the Minnesota Accomplice Liability Statute required more than passive \nacquiescence as a criminal act element. The court held that evidence of conduct \noccurring after the crime could raise an inference of participation before or during \nthe crime's commission, but in this case, the evidence was insufficient to uphold the \nverdict. 3. The Court of Criminal Appeals of Texas upheld the defendant's conviction because the \nvideo of the defendant's confession corroborated the accomplice's testimony. The \ncourt specifically held that corroborating evidence does not have to be enough to \nprove beyond a reasonable doubt that the defendant committed the crime; it only has \nto \"tend to connect him to the offense.\"Joubert v. State, 235 SW3d 729, 731 (2007), \naccessed January 22, \n2011, http://scholar.google.com/scholar_case?case=10119211983865864217&hl=en \n&as_sdt=2&as_vis=1&oi=scholarr. \nAnswers to Exercises \nFrom Section 7.2 \"Vicarious Liability\" \n1. ABC Corporation probably is not vicariously liable for criminal homicide because \nBrad's reckless conduct did not occur during the scope of employment; the criminal \nhomicide occurred as Brad was driving home. However, if Brad were required to \nwork while driving home (by making work-related phone calls, for example), \nvicarious liability could be present in this instance. \n2. The Criminal Court of the City of New York upheld the order to stand trial, holding \nthat the prosecution was within its rights to charge the members of the board of \ndirectors under the statute. The court stated that whether the board of directors \ncould be held vicariously liable was a question of fact to be determined by the judge \nor jury \nat trial. \n3. The jury instruction explains that the statute criminalizes vicarious liability, not \naccomplice liability. The defendant could also be charged as a principal or \naccessory under section (a) of the statute. \nAnswers to Exercises \nFrom Section 7.3 \"Accessory\" \n1. Cory has probably committed the crime of accessory in most jurisdictions. Cory's \nresponse to the police officer's question was false, and it appears to be made with the \nintent to help Amanda escape detection. Note that Cory renders assistance using \nwords, but words are enough to constitute the criminal act element required for \naccessory. Cory is not an accomplice to Amanda's crime because she did not act to assist Amanda with the parking meter destruction and theft; she only acted after the \ncrime was committed. Her failure to report the crime is probably not an \"omission to \nact\" because it is extremely unlikely that a statute exists requiring individuals to \nreport theft committed in their presence, creating a legal duty to act. A potential \ndefense to accessory would be the family relationship, which creates an exemption to \naccessory in some jurisdictions. \n2. The US Court of Appeals for the Ninth Circuit upheld the defendant's conviction for \nharboring a fugitive because the statute at issue was justified by the compelling \ngovernment interest in apprehending deadbeat parents. The court reversed the \naccessory conviction on separate grounds (an improperly drafted indictment). \n3. The Oklahoma Court of Criminal Appeals reversed the lower court and allowed the \ndefendant to be prosecuted for accessory. The court held that it is not necessary for \nthe principal to be charged with or convicted of a felony to prosecute another for \naccessory to that felony, so the child's age or prosecutability is irrelevant. \nAnswer to Law and Ethics Question \n1. Insisting that at least one individual employee of the corporation commit a crime \nwith the requisite intent before imposing vicarious liability upon the corporation \nis ethical, and it promotes justice. Aggregating intent could have far-reaching \nconsequences outside the arena of vicarious corporate liability. For example, it could \ncreate unfair and overly harsh sentencing if extended to accomplice liability. When \naccomplices work together, at least one accomplice must possess the intent for the \ncrime to hold other accomplices responsible. Imagine the possibilities if the \naccomplices' intent could be aggregated and raised to a more sinister level. \nAccomplices working together to commit a misdemeanor could be prosecuted for a \nserious and unforeseeable felony if their intents could be combined and elevated. \nVicarious corporate liability is already a legal fiction because it transfers criminal \nresponsibility for conduct from an individual to a business entity. This transfer of \nliability punishes the owners of the corporation for crimes they did not commit. If \nprosecutors could stretch the fiction further by combining the intents of various \ncorporate employees and elevating them, this would not comport with notions of \nfairness. Answers to You Be the Law Professor \n1. In this case, the District Court of Appeal of Florida held that the evidence was \ninsufficient to support either the criminal act element or the criminal intent element \nrequired to be an accomplice. First, the court held that the identification of the \nvehicle proved \"mere presence at the scene,\" which is not sufficient to constitute the \naccomplice criminal act. The court thereafter held that an inference of intent to \ncommit burglary was inappropriate when the prosecution did not prove the criminal \nact that was the basis of the inference. Thus you can use this case to illustrate the \nlegal concepts of accomplice criminal act and intent. \n2. In this case, the Supreme Court of Washington reviewed the accomplice liability \nstatute and noted that it did not include omission to act. The statute was predicated \non the Model Penal Code \u00a7 2.06(3)(a)(iii), which expressly includes omission to act as \nsufficient for accomplice liability when there is a legal duty to act, so the court held \nthat the Washington State Legislature's rejection of omission to act in the accomplice \nliability statute was deliberate. The court reversed the felony murder convictions \nbecause the jury instruction did not comport with the statute (RCW 9A.08.020 (3)) as \nthey interpreted it. The court also expressly stated that in Washington, omission to \nact cannot create accomplice liability. Thus you can use this case to illustrate the legal \nconcepts of statutory interpretation and omission to act. \n3. The US Court of Appeals for the Seventh Circuit held that the jury instruction should \ninclude the individual employee's duty to report knowledge or awareness of \ndangerous conditions when defining \"willful\" conduct under the OSHA statute. The \ncourt held that an individual employee's knowledge or awareness could not be \nimputed to the company unless the individual employee had a duty to report that \nknowledge. The court's holding focused on when a court should impute criminal \nintent to an employer or company and the definition of criminal intent under the statute. Thus you can use this case to illustrate the legal concepts of vicarious \nliability and criminal intent. \n4. The North Carolina Supreme Court discussed the elements of first-degree murder, \naiding and abetting first-degree murder, and accessory after the fact to murder. The \ncourt reached the conclusion that first-degree murder and accessory after the fact to \nthat murder are mutually exclusive, based on the criminal elements required for each \noffense. Thus you can use this case to illustrate the legal concepts of the elements of \nfirst-degree murder and the elements of accessory after the fact. \nChapter 8Inchoate Offenses Source: Image courtesy of Jane F. Kardashian, MD. \nAnd so long as the partnership in crime continues, the partners act for each other \nin carrying it forward. \nPinkerton v. U.S., cited in Section 8.2.4 \"Consequences of Conspiracy\" \n8.1 Attempt \nLEARNING OBJECTIVES \n1. Define an inchoate crime. \n2. Distinguish between general and specific attempt statutes. \n3. Identify and describe the four tests jurisdictions use to ascertain the criminal act element \nrequired for attempt. \n4. Define preparatory crimes. \n5. Define the criminal intent element required for attempt. \n6. Identify two potential defenses to attempt. \n7. Distinguish between factual and legal impossibility. \n8. Define voluntary abandonment. \n9. Describe merger and explain the way it affects attempt crimes. \n10. Analyze the relationship between transferred intent and attempt. \n11. Distinguish between the grading of attempt and the completed crime. \nAttempt, conspiracy, and solicitation are considered inchoate crimes. Inchoate means \"just \nbegun, incipient, in the early stages.\"Yourdictionary.com, accessed December 28, 2010, \n\"Definition of Inchoate,\" http://www.yourdictionary.com/inchoate. Inchoate crimes can be left \nunfinished, or incomplete. Although attempt never results in the finished criminal offense, both \nconspiracy and solicitation could give rise to separate completed crimes. \nThe rationale supporting punishment for an inchoate crime is prevention and deterrence. If \na defendant could not be apprehended until a crime is finished, law enforcement would not be \nable to intervene and avert injury to victim(s) or property. In addition, a defendant who is \nunable to complete a crime would try again and again, free from any criminal consequences. The difficulty in holding a defendant accountable for an inchoate or incomplete crime is \nascertaining the level of progress necessary to impute criminal responsibility, which is \nespecially daunting with attempt, because in every instance the crime is left unfinished, as is \ndiscussed in Section 8.1 \"Attempt\". \nSynopsis of the History of Attempt \nAt early English common law, attempt was not a crime.Stephen J. Schulhofer, Dan \nM. Kahan, \"Attempt,\" encyclopedia.com website, accessed December 26, 2010, \nhttp://www.encyclopedia.com/topic/Attempt.aspx. Gradually, the law evolved, and \na defendant who committed attempt resulting in severe harm was punished for a \nminor crime, typically a misdemeanor. One of the first documented cases of attempt \nwas Rex v. Scofield, Cald. 397 (1784).Stephen J. Schulhofer, Dan M. \nKahan, \"Attempt,\" encyclopedia.com website, accessed December 26, \n2010, http://www.encyclopedia.com/topic/Attempt.aspx. In Scofield, a servant was \nconvicted of a misdemeanor for attempting to burn down his master's house with a \nlighted candle. A subsequent case, Rex v. Higgins, 102 Eng. Rep. 269 (K.B. 1801), \nupheld an indictment for attempted theft and firmly established the crime of \nattempt in English jurisprudence. In modern times, most states criminalize attempt, \nthe majority in statutes, except in some states that permit common-law crimes. \nHowever, even in statutes, the word \"attempt\" is often left undefined, forcing courts \nto derive the meaning from common-law principles. \nAttempt Statutes \nIn general, there are two types of attempt statutes. Some states \nhave general attempt statutes that set forth attempt elements and apply them \nto any criminal offense.Tex. Penal Code \u00a7 15.01, accessed December 27, \n2010, http://law.onecle.com/texas/penal/15.01.00.html. Other states and the \nfederal government have specific attempt statutes that define attempt according to \nspecified crimes, such as murder, robbery, or rape.18 U.S.C. \u00a7 1113, accessed June \n28, 2011, http://www.law.cornell.edu/uscode/718/usc_sec_18_00001113----000- .html. Keep in mind that several states do not criminalize attempt in a statute and \nconsider it a common-law crime.Grill v. State, 337 Md. 91 (1995), accessed \nDecember 27, \n2010, http://www.leagle.com/xmlResult.aspx?xmldoc=1995428337Md91_1422.xml \n&docbase=CSLWAR2-1986-2006. \nAttempt Act \nThe criminal act element required for attempt varies, depending on the \njurisdiction. As Chapter 4 \"The Elements of a \nCrime\" stated, thoughts are not criminal acts. Thus a defendant does not commit \nattempt by plotting or planning an offense. An extension of this rule dictates that \nmere preparation is not enough to constitute the attempt criminal act \nelement.People \nv. Luna, 170 Cal. App. 4th 535 (2009), accessed December 27, \n2010, \nhttp://scholar.google.com/scholar_case?case=11148942163253518924&hl=en \n&as_sdt=2&as_vis=1&oi=scholarr. However, the crux of any attempt case is how \nclose to completing the offense the defendant must get to fulfill the attempt criminal \nact requirement. In many statutes and cases, the attempt act is loosely defined to \nallow 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 \nattempt criminal act: proximity test, res ipsa loquitur test, probable desistance test, \nand the Model Penal Code's substantial steps test. \nProximity Test \nThe proximity test measures the defendant's progress by examining how close the \ndefendant is to completing the offense. The distance measured is the distance \nbetween preparation for the offense and successful termination. It is the amount left \nto be done, not what has already been done, that is analyzed.Commonwealth v. Hamel, 52 Mass. App. Ct. 250 (2001), accessed December 29, \n2010, http://scholar.google.com/scholar_case?case=3222223363179578849&hl=en \n&as_sdt=2&as_vis=1&oi=scholarr. In some jurisdictions, if the defendant's criminal \nintent is clear, the defendant does not need to come as close to completion of the \noffense.People v. Dillon, 668 P.2d 697 (1983), accessed December 29, \n2010, \nhttp://scholar.google.com/scholar_case?case=16336126005486548570&hl=e \nn&as_sdt=2,5. Generally, the defendant does not have to reach the last step before \ncompletion,People v. Dillon, 668 P.2d 697 (1983), accessed December 29, 2010, \nhttp://scholar.google.com/scholar_case?case=16336126005486548570&hl=e \nn&as_sdt=2,5. although many defendants do. \nExample of the Proximity Test \nMelissa and Matthew decide they want to poison their neighbor's dog because it \nbarks loudly and consistently every night. Melissa buys some rat poison at the local \nhardware store. Matthew coats a raw filet mignon with the poison and throws it over \nthe fence into the neighbor's yard. Fortuitously, the neighbors are on an overnight \ncamping trip, and the dog is with them. The next day, after a night of silence, \nMelissa feels regret and climbs over the fence to see what happened to the dog. \nWhen she sees the filet untouched on the ground, she picks it up and takes it back \nover the fence, later disposing of it in the trash. If Melissa and Matthew are in a \njurisdiction that follows the proximity test, Melissa and Matthew have probably \ncommitted the criminal act element required for attempt. Melissa and Matthew \nfinished 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 \nconsummated was the absence of the dog, which is a circumstance outside their \ncontrol. Thus \nMelissa and Matthew could most likely be charged with and convicted of this \noffense. \nIf 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 the crime. If Matthew coated the filet with \npoison but then changed his mind and threw the filet away, he would still be \"too \nfar\" away from completing the offense. However, once the filet is thrown over the \nfence, the crime is proximate to completion; the only step left is the victim's (dog's) \nparticipation. \nRes Ipsa Loquitur Test \nRes ipsa loquitur means \"the thing speaks for itself.\"USLegal.com, \"Definition of \nRes Ipsa Loquitur,\" accessed December 29, \n2010, http://definitions.uslegal.com/r/res-ipsa-loquitur. The res ipsa loquitur test, \nalso called the unequivocality test, analyzes the facts of each case independently. \nUnder res ipsa loquitur or unequivocality, the trier of fact must determine that at the \nmoment the defendant stopped progressing toward completion of the offense, it was \nclear that the defendant had no other purpose than commission of the specific crime \nat issue. This determination is based on the defendant's act\u2014which manifests the \nintent to commit the crime.Hamiel v. Wisconsin, 285 N.W.2d 639 (1979), accessed \nDecember 30, \n2010, http://scholar.google.com/scholar_case?case=3730801887783687670&hl=en \n&as_sdt=2002&as_vis=1. \nExample of the Res Ipsa Loquitur Test \nHarry wants to kill his wife Ethel for the proceeds of her life insurance policy. Harry \ncontacts his friend Joe, who is reputed to be a \"hit man,\" and sets up a meeting for \nthe next day. Harry meets with Joe and asks him if he will murder Ethel for one \nthousand dollars. Joe agrees, and Harry pulls out a wad of cash and pays him. \nUnfortunately for Harry, Joe is a law enforcement decoy. If the state in which Harry \npaid Joe recognizes the res ipsa loquitur or unequivocality test, Harry has \nmost likely committed attempted murder (along with solicitation to commit \nmurder, which is discussed shortly). Harry's actions in contacting and thereafter \nhiring and paying Joe to kill Ethel indicate that he has no other purpose than the \ncommission of Ethel's murder. Hiring and paying a hit man is more than just preparation. Note that evidence of Ethel's life insurance policy is not needed to \nprove the attempt act. Harry's conduct \"speaks for itself,\" which is the essence of res \nipsa loquitur or unequivocality. \nProbable Desistance Test \nThe probable desistance test examines how far the defendant has progressed \ntoward commission of the crime, rather than analyzing how much the defendant has \nleft to accomplish. Pursuant to this test, a defendant commits attempt when he or \nshe has crossed a line beyond which it is probable he or she will not desist unless \nthere is an interruption from some outside source, law enforcement, or \ncircumstances beyond his or her control.See discussion in U.S. v. Mandujano, 499 \nF.2d 370, 373 fn. \n5 (1974), accessed December 30, \n2010, http://ftp.resource.org/courts.gov/c/F2/499/499.F2d.370.74-1445.html. \nExample of the Probable Desistance Test \nJudy, who works at Zales jewelry store, tells her Facebook friends that she is going to \nsteal a diamond necklace out of the safe that evening. Judy drives to Zales at eleven \no'clock after the store has closed. She enters the building using her key and quickly \ndisables 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 \nand she blinks, startled by the sight of several police officers pointing their guns at \nher. If the state in which Judy lives follows the probable desistance test, Judy has \nmost likely committed attempted larceny, along with burglary. Judy informed others \nof her plan, drove to the crime scene, entered the building unlawfully, disabled the \nstore alarm, and turned off the store security camera. This series of actions indicate \nthat Judy crossed a point of no return. It is unlikely that Judy would have desisted \nwithout the law enforcement interruption, which fulfills the attempt act requirement \npursuant to the probable desistance test. Model Penal Code Substantial Steps Test \nThe Model Penal Code developed the substantial steps test in response to the \nlarge variance between different jurisdictions in evaluating the criminal act element \nrequired for attempt. The substantial steps test is intended to clarify and simplify \nthe attempt act analysis, to prevent arbitrary application. It is also a test that is \nmore likely to result in a conviction because it classifies as \"substantial\" those acts \nthe other tests might consider only \"preparatory.\"People v. Dillon, 668 P.2d 697, \n720, fn.1 (1983), accessed December 30, \n2010, http://scholar.google.com/scholar_case?case=16336126005486548570&hl=e \nn&as_sdt=2002&as_vis=1. \nThe substantial steps test has two parts. First, the defendant must take substantial \nsteps toward completion of the crime. As the Model Penal Code states, \"[a] person is \nguilty of an attempt to commit a crime if\u2026he\u2026does\u2026anything which\u2026is an act or \nomission constituting a substantial step in a course of conduct planned to culminate \nin his commission of the crime\" (Model Penal Code \u00a7 5.01(1)(c)). Second, the \ndefendant's actions must be \"strongly corroborative of the actor's criminal purpose\" \n(Model Penal Code \u00a7 5.01(2)). To further elucidate the test, the Model Penal Code \nprovides seven examples of actions that constitute substantial steps, as long as \nthey are corroborative of the defendant's intent. The seven examples are lying in \nwait; enticing the victim to go to the scene of the crime; investigating the potential \nscene of the crime; unlawfully entering a structure or vehicle where the crime is to \nbe committed; possessing materials that are specially designed for unlawful use; \npossessing, collecting, or fabricating materials to be used in the crime's commission; \nand soliciting an innocent agent to commit the crime (Model Penal Code \u00a7 5.01(2)). \nExample of the Substantial Steps Test \nKevin wants to rob an armored car that delivers cash to the local bank. After casing \nthe bank for two months and determining the date and time that the car makes its \ndelivery, Kevin devises a plan that he types on his computer. On the date of the next delivery, Kevin hides a weapon in his jacket pocket and makes his way on foot to the \nbank. Thereafter, he hides in an alley and waits for the truck to arrive. When the \ntruck drives up and parks in front of the bank, Kevin walks over to the driver's door \nand reaches for his weapon. He is immediately apprehended by a security guard who \nsaw him emerge from the alley. If Kevin is in a substantial steps jurisdiction, he \nhas probably committed the criminal act element required for attempt. Kevin cased \nthe bank, planned the robbery, showed up on the appointed date and time with a \nconcealed weapon, and hid in an alley to wait for the truck to appear. These actions \nare (1) investigating the potential scene of the crime, (2) possessing materials to be \nused in the crime's commission, and (3) lying in wait. Thus Kevin has \ncompleted three substantial steps that corroborate his intent as expressed in the plan \nhe typed, which is most likely sufficient to constitute the attempt criminal act element \nunder the Model Penal Code. Figure 8.1 Various Tests for Attempt Act Figure 8.2 Crack the Code Preparatory Crimes \nSome states have statutes criminalizing behavior that would be \nconsidered preparatory under any of the four attempt act tests. For example, some \nstatutes prohibit the mere possession of burglar's toolsN.Y. Penal Law \u00a7 140.35, \naccessed December 31, 2010, http://law.onecle.com/new- \nyork/penal/PEN0140.35_140.35.html. or even the manufacture of burglar's \ntools.Conn. Gen. Stat. \u00a7 53a-106, accessed December 31, \n2010, http://www.cga.ct.gov/2009/pub/chap952.htm#Sec53a-106.htm. A \ndefendant could be convicted of a preparatory crime and attempt if the criminal act \nelement for both is present under the circumstances. \nExample of a Preparatory Crime and Attempt \nHal manufactures a lock pick and takes it to the local coin shop, which is closed. Hal \ntakes the lock pick out and begins to insert it into the coin shop doorknob. A security \nguard apprehends Hal before he is able to pick the lock. If Hal is in a jurisdiction \nthat prohibits the manufacture of burglar's tools, he probably could be charged with \nand convicted of manufacture of burglar's tools and attempted burglary because he \nhas committed the criminal act element required for both of these offenses. \nAttempt Intent \nThe criminal intent element required for attempt in the majority of jurisdictions is \nthe specific intent or purposely to commit the crime at issue.N. Y. Penal Law \n\u00a7 110.00, accessed December 31, 2010, \nhttp://law.onecle.com/newyork/penal/PEN0110.00_110.00.html. Generally, no \nsuch thing exists as reckless or negligent attempt. Thus if the prosecution fails to \nprove beyond a reasonable doubt that the defendant acted purposefully with \nintent to commit the crime attempted, this could operate as a failure of proof \ndefense. Example of a Case Lacking Attempt Intent \nEric is hiking in a jurisdiction that criminalizes reckless burning. Eric pauses in \nfront of a sign that states \"Fire Danger Today: High.\" Eric reads the sign, pulls out a \ncigarette, lights it, and throws the lit match into some dry brush near the sign. He \nstarts hiking and when he finishes his cigarette, he tosses the lit cigarette butt into \nsome arid grass. Neither the brush nor the grass burns. Eric probably does not have \nthe requisite criminal intent for attempted reckless burning. Attempt requires \npurposeful conduct. Eric's conduct is reckless because he is aware of a risk and \ndisregards it. If Eric takes the match or lit cigarette and tries to ignite a fire with \nthem, it is likely that he has the appropriate criminal intent for attempted arson. \nHowever, in this case Eric's actions demonstrate careless behavior that probably is \nnot sufficient for the crime of attempt. \nDefenses to Attempt \nAlong with failure of proof defenses to the criminal act and criminal intent \nelements, legal impossibility and voluntary abandonment can also function as \naffirmative defenses to attempt in many jurisdictions. \nImpossibility as a Defense to Attempt \nTwo types of impossibility defenses exist: legal impossibility, which can function \nas a defense to attempt, and factual impossibility, which generally cannot. Legal \nimpossibility means that the defendant believes what he or she is attempting to do \nis illegal, when it is not. Factual impossibility means that the defendant could not \ncomplete the crime attempted because the facts are not as he or she believes them \nto be. The Model Penal Code disallows factual impossibility as a defense by stating \nthat conduct is an attempt when the defendant \"purposely engages in conduct \nwhich would constitute the crime if the attendant circumstances were as he believes \nthem to be\" (Model Penal Code \u00a7 5.01(1) (a)). Example of Legal Impossibility \nReview the example given in Section 8 \"Res Ipsa Loquitur Test\" with Melissa and \nMatthew and the attempted poisoning of the neighbor's dog. Assume that Melissa is \neighteen. Melissa believes that an individual must be twenty-one to purchase rat \npoison 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 \nthose who are eighteen or older. The first store Melissa enters asks for identification \nwhen she tries to pay for the rat poison, so Melissa makes an excuse and leaves. The \nsecond store Melissa enters does not ask for identification, and she successfully \nmakes the rat poison purchase. Melissa has probably not attempted to purchase rat \npoison illegally in the first store she entered. Melissa's act in attempting to purchase \nthe rat poison is legal under the circumstances. Thus her mistaken belief that she is \nattempting to commit a crime does not transform this legal act into an illegal one. \nExample of Factual Impossibility \nRecall from the example given in Section 8 \"Res Ipsa Loquitur Test\" that Matthew \nthrew a filet coated with rat poison over the fence into the neighbor's yard with the \nintent to poison the neighbor's dog. Both Melissa and Matthew are under the \nmistaken belief that the dog is present and will eat the filet. However, the dog is on \nan overnight camping trip with its owners. This mistake of fact probably will not \nexcuse Melissa and Matthew's attempt. Melissa and Matthew purposely engaged \nin conduct that would result in the poisoning of the dog if the facts were as Melissa \nand Matthew believed them to be. Thus Melissa and Matthew have most likely \ncommitted attempted destruction of property or animal cruelty regardless of the \nfact that their plan could not succeed under the circumstances. \nVoluntary Abandonment as a Defense to Attempt \nMany jurisdictions allow a defendant who voluntarily abandons the planned \noffense to use this abandonment as an affirmative defense to attempt.Fla. Stat. Ann. \u00a7 777.04(5) (a), accessed December 31, \n2010, \nhttp://law.justia.com/florida/codes/2003/TitleXLVI/chapter777/777_04.htm \nl. The defense has two parts. First, the defendant must have a change of heart that is \nnot motivated by an increased possibility of detection, or a change in circumstances \nthat make the crime's commission more difficult. As the Model Penal Code states, \"it \nis an affirmative defense that he abandoned his effort to commit the crime\u2026under \ncircumstances manifesting a complete and voluntary renunciation of his criminal \npurpose\u2026[R]enunciation of criminal purpose is not voluntary if it is motivated\u2026by \ncircumstances\u2026which increase the probability of detection\u2026or which make more \ndifficult the accomplishment of the criminal purpose\" (Model Penal Code \u00a7 5.01(4)). \nSecond, the abandonment must be complete and cannot simply be a postponement. \nUnder the Model Penal Code, \"[r]enunciation is not complete if it is motivated by a \ndecision to postpone the criminal conduct until a more advantageous time or to \ntransfer the criminal effort to another but similar\u2026victim\" (Model Penal Code \u00a7 \n5.01(4)). The voluntary abandonment defense gives defendants incentive to stop \nprogressing toward consummation of the offense and prevents the crime from \noccurring without the need for law enforcement intervention. \nExample of Voluntary Abandonment as a Defense to Attempt \nReview the example with Melissa and Matthew in Section 8 \"Res Ipsa Loquitur \nTest\". If Melissa changes her mind after purchasing the rat poison and talks \nMatthew out of poisoning the neighbor's dog, Melissa has voluntarily \nabandoned the crime and cannot be charged with attempt. If Matthew changes his \nmind after coating the filet with rat poison and throws the filet away, Matthew has \nvoluntarily \nabandoned the crime and cannot be charged with attempt. Note that both \nMelissa's and Matthew's actions are in the very early stages of the crime of \ndestruction of property or animal cruelty and probably will be considered \npreparatory, rather than constituting the criminal act element required for attempt. \nWhen Melissa climbs over the fence, picks up the filet, and takes it back to her house for disposal, it is most likely too late to voluntarily abandon the crime. At this point, \nthe crime of attempt has already been committed, and neither voluntary \nabandonment nor factual impossibility can function as defenses. \nMerger \nAttempt merges into the crime if the crime is completed in many jurisdictions, \nwhich means that the defendant cannot be charged with attempt and the completed \ncrime.Ga. Code tit. 16 \u00a7 16-4-2, accessed January 28, \n2011, http://law.onecle.com/georgia/16/16-4-2.html. \nExample of Merger \nReview the example with Melissa and Matthew in Section 8 \"Res Ipsa Loquitur \nTest\". \nChange the facts, and assume that the neighbor's dog eats the poisoned filet and \ndies. Melissa and Matthew probably cannot be charged with attempted destruction \nof 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 \nconsummated offense, and Melissa and Matthew may be charged only with \ndestruction of property or animal cruelty. \nFigure 8.3 Defenses to Attempt Attempt and Transferred Intent \nRecall from Chapter 4 \"The Elements of a Crime\" that a defendant's criminal intent \ncan transfer from the intended victim to the actual victim in some jurisdictions. If \nthe intent is transferred, the defendant may be criminally responsible for the \nconsummated offense against the eventual victim and for attempt against the \nintended victim. \nExample of Attempt and Transferred Intent \nReview the example with Melissa and Matthew in Section 8 \"Res Ipsa Loquitur \nTest\". Change the facts, and assume that the neighbor's cat licks the poison off the \nfilet and thereafter dies. If Melissa and Matthew are in a jurisdiction that \nrecognizes transferred intent, they may be charged with attempted destruction \nof property or animal cruelty for trying to poison the neighbor's dog and destruction \nof property or animal cruelty for actually poisoning and killing the neighbor's cat. \nAttempt Grading \nJurisdictions vary as to how they grade attempt. Some jurisdictions follow the \ncommon law and grade attempt lower than the completed offense.Mo. Ann. Stat. \n\u00a7 564.011, accessed December 31, \n2010, http://law.justia.com/missouri/codes/2005/t38/5640000011.html. Other \njurisdictions punish attempt the same as the attempted offense, with exceptions \nfor certain specified crimes.Conn. Gen. Stat. \u00a7 53-a-51, accessed December 31, \n2010, http://www.cga.ct.gov/2001/pub/Chap952.htm#sec53a-51.htm. \nFigure 8.4 Diagram of Attempt KEY TAKEAWAYS \n\u2022 An inchoate crime is a crime that might not be completed. \n\u2022 \nGeneral attempt statutes set forth the elements of attempt and apply them to any crime. \nSpecific attempt statutes define attempt according to specified crimes, such as attempted \nmurder, robbery, or rape. \n\u2022 The four tests jurisdictions use to ascertain the criminal act element required for attempt are \nproximity, res ipsa loquitur, probable desistance, and substantial steps. \n\u2022 The proximity test determines how close the defendant is to committing the crime by \nanalyzing how much is left to accomplish after preparation for the offense. \n\u2022 \nThe res ipsa loquitur test, also called the unequivocality test, examines the defendant's \nactions at a moment in time to determine whether the defendant has no other purpose than \ncommitting the crime at issue. \n\u2022 \nThe probable desistance test analyzes whether the defendant has progressed so far that it is \nprobable he or she will not desist without interruption from law enforcement or other \nintervening circumstances. \n\u2022 \nThe substantial steps test is the Model Penal Code test and ascertains whether the \ndefendant has completed substantial steps toward commission of the crime that are \ncorroborative of the defendant's criminal intent. \n\u2022 Preparatory crimes criminalize preparing to commit a crime, which would be a stage that is \ntoo premature to constitute the criminal act element required for attempt. \n\u2022 The criminal intent element required for attempt is specific intent or purposely to commit \nthe crime at issue. \n\u2022 Aside from failure of proof defenses to attempt act and intent, two potential defenses to \nattempt are legal impossibility and voluntary abandonment. \n\u2022 \nFactual impossibility means the defendant cannot complete the crime because the facts are \nnot as the defendant believes them to be. Factual impossibility is generally not a defense to \nattempt. Legal impossibility means the defendant believes he or she is attempting to commit \na crime, but the defendant's actions are actually legal. Legal impossibility is generally a \ndefense to attempt. \u2022 Voluntary abandonment is when the defendant voluntarily and completely withdraws from \ncommission of the offense before it is consummated. \n\u2022 \nIn many jurisdictions, attempt merges into the offense if it is completed, which means that a \ndefendant cannot be charged with attempt and the completed crime. \n\u2022 \nIn a jurisdiction that allows for transferred intent, a defendant's intent can transfer from the \nintended victim to the actual victim. The defendant can thereafter be criminally responsible \nfor the completed crime against the actual victim and attempt against the intended victim. \n\u2022 Some jurisdictions grade attempt lower than the completed offense; others grade attempt \nthe same as the completed offense, with exceptions. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the end \nof the chapter. \n1. Carol shoots her father Carl with malice aforethought. He thereafter lingers in a coma for \ntwo months and then dies. Carol is in a jurisdiction that recognizes merger for attempt and \nthat also requires a victim to die within one year and a day if the defendant is to be charged \nwith murder. Can Carol be charged with attempted murder and murder? Why or why not? \n2. Read State v. Withrow, 8 S.W.3d 75 (1999). In Withrow, the defendant made frequent visits \nto a house that was under law enforcement surveillance. While searching the house \npursuant to a search warrant, law enforcement officers saw the defendant emerging from a \nbedroom \nthat had a locked closet containing a jar with pills dissolving in it, which is the first step of \nmethamphetamine production. The defendant was convicted of attempted \nmethamphetamine production and received a sentence of eighteen years in prison. Did the \nSupreme Court of Missouri uphold the defendant's conviction? The case is available at this \nlink: http://scholar.google.com/scholar_case?case=17239945130468444353&hl=en&as_sdt= \n2&as_vis=1&oi=scholarr. \n3. Read People v. Strand, 539 N.W.2d 739 (1995). In Strand, the defendant was convicted of \nassault with intent to commit attempted kidnapping. Did the Michigan Court of Appeals \nuphold this conviction? \n8.2 Conspiracy LEARNING OBJECTIVES \n1. Explain why conspiracy is an inchoate crime. \n2. Define the criminal act element required for conspiracy. \n3. Compare the conspiracy overt act requirement with the criminal act element required for \nattempt. \n4. Define the criminal intent element required for conspiracy. \n5. Ascertain whether a coconspirator can be criminally responsible when another coconspirator \nis not prosecuted or acquitted. \n6. Ascertain whether a coconspirator must know every other coconspirator to be guilty of \nconspiracy. \n7. Distinguish between a wheel and chain conspiracy. \n8. Define the Pinkerton rule. \n9. Define Wharton's rule. \n10. Identify an affirmative defense to conspiracy. \n11. Ascertain whether merger applies to conspiracy. \n12. Compare various approaches to conspiracy grading. \n13. Define federal RICO. \nConspiracy punishes defendants for agreeing to commit a criminal offense. Conspiracy is an \ninchoate crime because it is possible that the defendants never will commit the planned offense. \nHowever, a conspiracy is complete as soon as the defendants become complicit and commit the \nconspiracy act with the conspiracy intent. The rationale for punishing defendants for \nplanning activity, which generally is not sufficient to constitute the crime of attempt, is the \nincreased likelihood of success when defendants work together to plot and carry out a criminal \noffense.Dennis v. U.S., 341 U.S. 494 (1951), accessed January 3, \n2011, http://scholar.google.com/scholar_case?case=13576454585730441281&hl=en&as_sdt=2& \nas_vis=1&oi=scholarr. 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 \nSection \n8.2.4 \"Consequences of Conspiracy\". Conspiracy Act \nIn many jurisdictions, the criminal act element required for conspiracy is an \nagreement to commit any criminal offense.Fla. Stat. Ann. \u00a7 777.04(3), accessed \nJanuary 1, \n2011, http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&S \nearch_String=&URL=0700-0799/0777/Sections/0777.04.html. The agreement does \nnot need to be formal or in writing.State v. Bond, 49 Conn. App. 183 (1998), accessed \nJanuary 1, 2011, http://caselaw.findlaw.com/ct-court-of- \nappeals/1255702.html. Some states also criminalize as conspiracy the agreement to \nfalsely indict another for a crime and the agreement to falsely maintain any lawsuit, \neven a civil lawsuit.Cal. Penal Code \u00a7 182(a) (2), (3), accessed January 2, \n2011, http://law.justia.com/california/codes/2009/pen/182-185.html. Other states \nonly criminalize as conspiracy the agreement to commit a felony.Tex. Penal Code \n\u00a7 15.02, accessed January 3, \n2011, http://law.onecle.com/texas/penal/15.02.00.html. \nIn some states and federally, an overt act in furtherance of the conspiracy is also \nrequired.18 U.S.C. \u00a7 371, accessed January 1, \n2011, http://codes.lp.findlaw.com/uscode/18/I/19/371. The Model Penal Code \nrequires an overt act only when the planned crime is \"other than a felony of the first \nor second degree\" (Model Penal Code \u00a7 5.03(5)). The overt act does not have to be \ncriminal and may be planning or preparatory activity that would be insufficient to \nconstitute the criminal act element required for attempt.State v. Verive, 627 P.2d \n721 (1981), accessed January 1, \n2011, http://wings.buffalo.edu/law/bclc/web/azverive.htm. \nExample of Conspiracy Act \nReview the example with Melissa and Matthew in Section 8 \"Res Ipsa Loquitur Test\". \nIn this example, Melissa and Matthew agree to poison the neighbor's dog because it \nbarks every night. After deciding they will poison the dog, Melissa buys rat poison, \nand Matthew thereafter coats a filet mignon with it and throws it over the fence into the neighbor's yard. In a jurisdiction that defines the criminal act element for \nconspiracy as an agreement between two or more to commit a criminal offense, \nMelissa and Matthew probably committed the conspiracy criminal act as soon as \nthey agreed to poison the dog. Their agreement could be verbal and does not need to \nbe formal or in writing. If Melissa and Matthew are in a jurisdiction that requires an \novert act in furtherance of the conspiracy, Melissa and Matthew probably have not \ncommitted the conspiracy criminal act until Melissa buys the rat poison. Note that \nthe 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 \nSection 8 \"Res Ipsa Loquitur Test\". However, it would likely be enough to support \nthe conspiracy to commit destruction of property or animal cruelty. Conspiracy \nIntent \nThe essence of conspiracy is agreement, which requires two or more parties. \nHowever, the modern approach is that a conspiracy may be formed as long as one of \nthe parties has the appropriate intent.Ind. Code \u00a7 35-41-5-2(5), accessed January 1, \n2011, http://www.in.gov/legislative/ic/2010/title35/ar41/ch5.html. Pursuant to this \nunilateral view of conspiracy, a conspiracy may exist between a defendant and a law \nenforcement decoy who is pretending to agree. \nIn the majority of jurisdictions, the criminal intent element required for conspiracy is \nspecific intent or purposely to agree with another to commit the crime at \nissue.Connecticut Criminal Jury Instructions 3.3-1, accessed January 1, \n2011, http://www.jud.ct.gov/ji/criminal/part3/3.3-1.htm. As the Model Penal Code \nstates, \"[a] person is guilty of conspiracy\u2026if with the purpose of promoting or \nfacilitating its commission he: (a) agrees with such other person\u2026that they\u2026will \nengage in conduct which constitutes such crime\" (Model Penal Code \u00a7 5.03(1) (a)). \nThis intent has two components. The prosecution must prove that the conspirator \nintended to agree and also intended to commit the underlying offense.State v. \nLewis, \n220 Conn. 602 (1991), accessed January 2, 2011, http://scholar.google.com/scholar_case?case=6997065715061309373&hl=en \n&as_sdt=2&as_vis=1&oi=scholarr. \nExample of Conspiracy Intent \nShelley and Sam meet at a bar and discuss their lack of finances. Shelley mentions \nthat she and her friend Steffy work at a convenience store. Sam asks Shelley if she \nwould like to help him rob the convenience store when Steffy is working. Shelley \nagrees. The two plan the robbery. Shelley and Sam agree that Shelley will drive the \ngetaway car on the appointed date and time. Shelley informs Sam that Steffy is \nextremely meek and fearful and will readily hand over cash out of the cash register if \nSam uses a fake handgun. Shelley and Sam probably have the criminal intent \nelement required for conspiracy. Shelley and Sam have the intent to agree to work \ntogether because they both need each other to successfully complete the convenience \nstore robbery. In addition, Shelley and Sam have the intent to successfully commit \nthe robbery because they both want the money the robbery will produce. Thus if no \novert act is required in their jurisdiction, Shelley and Sam most likely have \ncompleted the crime of conspiracy and may be prosecuted for this offense whether or \nnot the robbery actually takes place. \nConspiracy Parties \nSimilar to accomplice liability, the acquittal of or failure to prosecute one party to \nthe conspiracy does not relieve a coconspirator from criminal responsibility in many \nstates.Tex. Penal Code \u00a7 15.02(c), accessed January 3, \n2011, http://law.onecle.com/texas/penal/15.02.00.html. In addition, a coconspirator \ndoes not need to know every other coconspirator to be accountable as a member of \nthe conspiracy.Neb. Rev. Stat. Ann. \u00a7 28-202(2), accessed January 3, \n2011, http://law.justia.com/nebraska/codes/2006/s28index/s2802002000.html. A \ns long as the conspiracy defendant is aware that other coconspirators exist, the mens \nrea for conspiracy is present. As the Model Penal Code states, \"[i]f a person guilty of \nconspiracy\u2026knows that a person with whom he conspires to commit a crime has \nconspired with another person or persons to commit the same crime, he is guilty of conspiring with such other person or persons, whether or not he knows their \nidentity\" (Model Penal Code \u00a7 5.03(2)). Large-scale conspiracies, such as \nconspiracies to distribute contraband or illegal firearms, may result in each member \nsharing criminal responsibility for the conspiracy and every separate conspiracy \ntransaction. \nA conspiracy that has more than one criminal objective still can be \njust one conspiracy. Under the Model Penal Code, \"[i]f a person conspires to commit \na number of crimes, he is guilty of only one conspiracy so long as such multiple \ncrimes are the object of the same agreement or continuous conspiratorial \nrelationship\" (Model Penal Code \u00a7 5.03(3)). \nIt is useful to understand two basic large-scale conspiracy organizational formats: \nwheel and chain conspiracies. A wheel conspiracy consists of a single conspirator, \ngenerally the ringleader who is interconnected to every other coconspirator. The \nringleader is the hub; the other coconspirators are the spokes of the wheel. An \nexample of a wheel conspiracy would be a mob boss linked to individual members of \nthe mob following his or her commands. A chain conspiracy consists of \ncoconspirators 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 \nmanufacture and distribute a controlled substance, with the manufacturer linked to \nthe transporter, who sells to a large-quantity dealer, who thereafter sells to a \nsmallerquantity dealer, who sells to a customer. Whether the conspiracy is wheel, \nchain, or otherwise, if the jurisdiction has a statute or common-law rule that each \nmember does not need to personally know every other member as discussed \npreviously, the coconspirators may be criminally responsible for the conspiracy \nand the crime(s) it furthers. \nFigure 8.5 Comparison of Wheel and Chain Conspiracies Consequences of Conspiracy \nIn some states and federally, individuals who enter into a conspiracy are criminally \nresponsible for every reasonably foreseeable crime committed in furtherance of the \nconspiracy.U.S. v. Castaneda, 9 F.3d 761 (1993), accessed January 3, \n2011, \nhttp://scholar.google.com/scholar_case?case=13576116398000833345&hl=en \n&as_sdt=2&as_vis=1&oi=scholarr. This rule is called the Pinkerton rule, based on \nthe US Supreme Court case that created it (Pinkerton v. U.S., 328 U.S. 640 (1946).). \nOne factor used to determine foreseeability is the degree of the defendant's \ninvolvement in the conspiracy. A defendant who plays a minor role is less likely to be \ncriminally responsible than a defendant who has a more substantive \ninvolvement.U.S. v. Castaneda, 9 F.3d 761 (1993), accessed January 3, \n2011, \nhttp://scholar.google.com/scholar_case?case=13576116398000833345&hl=en \n&as_sdt=2&as_vis=1&oi=scholarr. \nExample of the Pinkerton Rule \nReview the example in Section 8 \"Example of Conspiracy Intent\" with Shelley and \nSam. Assume that on the night of the convenience store robbery, Lucy, an armed, \noffduty police officer, wanders into the store to purchase cigarettes at the moment \nSam pulls out his fake handgun. Lucy yanks her concealed handgun out of her \nwaistband and tells Sam to drop the weapon. Jolene, another customer in the store, \nobserves the two pointing guns at each other and suffers a fatal heart attack. In \nmany jurisdictions, both Shelley and Sam probably could be criminally responsible \nfor conspiracy to commit robbery, attempted robbery, and the murder of \nJolene. \nShelley and Sam attempted to commit the robbery in furtherance of the conspiracy. \nBoth played a major role in the conspiracy and the attempted robbery. Thus both \nare accountable for the foreseeable consequences. Robbery is a crime of violence, so a death that occurs during a robbery is foreseeable, even though Sam is armed with \nonly a pretend handgun. Thus Shelley and Sam may be charged with and convicted \nof Jolene's murder, which is most likely felony murder. Felony murder is discussed \nin detail in Chapter 9 \"Criminal Homicide\". \nWharton's Rule \nA criminal offense that requires two parties cannot be the object of a conspiracy that \nconsists of two parties. This rule is called Wharton's rule, or the concert of action \nrule.USLegal, \"Definition of Wharton's Rule,\" USLegal.com website, accessed \nJanuary 3, 2011, http://definitions.uslegal.com/w/whartons-rule. However, a \nstatute can expressly criminalize a conspiracy to commit any crime, abrogating the \nrule. Currently, Wharton's rule can operate as a judicial presumption, to be \napplied in the absence of legislative intent to the contrary.Ianelli v. U.S., 420 U.S. \n770, 785 \n(1975), accessed January 3, \n2011, \nhttp://scholar.google.com/scholar_case?case=16942118715212641737&hl=en& \nas_sdt=2&as_vis=1&oi=scholarr. \nExample of a Case Where Wharton's Rule Is Inapplicable \nJoanne and Robert conspire with Don, Joanne's pimp, to engage in prostitution. \nJoanne and Robert get caught in the act of engaging in prostitution by Edward, a \npolice officer. Wharton's rule probably does not apply in this case. Although \nengaging in prostitution requires two parties, the conspiracy to engage in \nprostitution has three members\u2014Don, Joanne, and Robert. Thus Wharton's rule is \nlikely inapplicable, and Don, Joanne, and Robert might have committed conspiracy \nto engage in prostitution. Note that if only Joanne and Robert conspire to engage in \nprostitution, Wharton's rule may act as a judicial presumption that they cannot \ncommit conspiracy and the crime it furthers. Renunciation as a Defense to Conspiracy \nOne potential affirmative defense to conspiracy is renunciation. Similar to voluntary \nabandonment in attempt, renunciation can operate as a defense to conspiracy in \nsome jurisdictions if the defendant completely and voluntarily renounces the \nconspiracy.N.J. Stat. \u00a7 2c: 5-2e, accessed January 4, \n2011, http://law.onecle.com/new-jersey/2c-the-new-jersey-code-of-\ncriminaljustice/5-2.html. The renunciation must also thwart the crime that is the \nobject of the conspiracy. The Model Penal Code allows the defense and provides, \"It \nis an affirmative defense that the actor, after conspiring to commit a crime, thwarted \nthe success of the conspiracy, under circumstances manifesting a complete and \nvoluntary renunciation of his criminal purpose\" (Model Penal Code \u00a7 5.03(6)). \nExample of Renunciation \nReview the example with Shelley and Sam in Section 8 \"Example of Conspiracy \nIntent\". In this example, Shelley and Sam agree to commit a robbery at the \nconvenience store where Steffy is a cashier. Adjust the example so that Shelley has a \nchange of heart and contacts law enforcement about the robbery before she drives \nSam to the convenience store in the getaway car. Law enforcement officers ask \nShelley to help them apprehend Sam, and she agrees. Shelley drives Sam to the \nconvenience store as planned. Two law enforcement officers dress in plainclothes \nand pretend to be shopping in the convenience store when Sam arrives. As soon as \nSam pulls out his fake handgun, they arrest him. If Shelley is in a jurisdiction that \nrecognizes the renunciation defense, she probably will have a valid defense to a \ncharge of conspiracy. Although Shelley committed the criminal act for conspiracy \nwith the requisite criminal intent, she voluntarily and completely renounced the \nconspiracy and thwarted the crime that was its object. Thus Shelly has likely met the \nrequirements of renunciation, and only Sam may be charged with a crime or crimes \nin this scenario. Merger \nAt early common law, conspiracy, which was a misdemeanor, merged into the \ncompleted felony that was its object. The merger was based on the significant \nprocedural differences between misdemeanor and felony trials. As the differences \ndiminished, so did the merger concept. In modern times, conspiracy does not merge \ninto the completed offense.Callanan v. U.S., 364 U.S. 587 (1961), accessed January \n4, 2011, \nhttp://scholar.google.com/scholar_case?case=10261023883092961366&hl=e \nn&as_sdt=2&as_vis=1&oi=scholarr. Thus a defendant can be charged with and \nconvicted of conspiracy and any crime the conspiracy furthers, as is discussed more \nfully in Section 8.2.4 \"Consequences of Conspiracy\". \nFigure 8.6 Defenses to Conspiracy Conspiracy Grading \nSome states grade conspiracy the same as the most serious offense that is \nthe conspiracy's object.18 Pa. Cons. Stat. \u00a7 905, accessed January 4, 2011, \nhttp://law.onecle.com/pennsylvania/crimes-and- \noffenses/00.009.005.000.html. Others grade conspiracy lower than the most \nserious conspired offense and do not criminalize the conspiracy to commit a simple, \nlowlevel misdemeanor.Tenn. Code Ann. \u00a739-12-107(c), accessed January 4, \n2011, http://law.justia.com/tennessee/codes/2010/title-39/chapter-12/part-\n1/3912-107. Another view is to set a separate penalty for the conspiracy to commit \nspecific crimes.Cal. Penal Code \u00a7 182, accessed January 4, \n2011, http://law.onecle.com/california/penal/182.html. It is not unconstitutional to \npunish conspiracy more severely than the crime conspired.Clune v. U.S., 159 U.S. \n590 (1895), accessed January 4, \n2011, http://scholar.google.com/scholar_case?case=14126191414675975192&q= \nClune+v.+US&hl=en&as_sdt=2002&as_vis=1. \nFederal RICO \nIn response to an increase in organized crime, the federal government enacted the \nRacketeer Influenced and Corrupt Organization Act (RICO) (18 U.S.C. \u00a7\u00a7 \n19611968)). RICO provides extensive criminal penalties and also a civil cause of \naction for organized crime and includes all offenses that are criminal under \nstate or federal law. Although RICO was originally intended to focus on \nsophisticated criminal businesses such as loan sharking, mafia, and high-stakes \ngambling operations,G. Robert Blakey, \"RICO: The Genesis of an Idea,\" Abstract, \nSocial \nScience Research Network website, accessed January 4, \n2011, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1142930. its modern \napplication is much broader and encompasses many white-collar crimes and \nsmalltime conspiracies. A criminal organization always involves more than one member, and at the very least rudimentary planning, so conspiracy is a common \nRICO charge and is often easier to prove than a completed criminal offense. \nRecently, RICO has been criticized as being overused and applied in a manner \ninconsistent with its original purpose, especially when it targets smaller, low-\nmember criminal \n\"organizations.\" Some examples of highly publicized RICO defendants are Hell's \nAngels,Keith Zimmerman, Kent Zimmerman, \"Hell's Angel: The Life and Times of \nSonny Barger and the Hell's Angels Motorcycle Club,\" accessed January 4, \n2011, http://www.organized-crime.de/revbar01sonnybarger.htm. Catholic priests in \nsex abuse cases,Greg Smith, \"Courts: Lawsuit Accuses Diocese of Hiding Sex \nAbuse,\" Norwich Bulletin website, accessed January 4, \n2011, http://www.norwichbulletin.com/lifestyles/spirituality/x497774422/Courts- \nLawsuit-accuses-diocese-of-hiding-sex-abuse. and Major League \nBaseball.\"Arbitration Ruling Effectively Ends Loria RICO Suit,\" \nSportsbusinessdaily.com website, accessed June 28, \n2011, \nhttp://www.sportsbusinessdaily.com/Daily/Issues/2004/11/Issue46/Franchises/Ar\nbitration-Ruling-Effectively-Ends-Loria-Rico-Suit.aspx. \nTable 8.1 Comparison of Conspiracy and Accomplice Liability \nType of \nLiability \nCriminal Act Criminal Intent \nConspiracy Agreement to commit a crime, false criminal \nindictment, false lawsuit, or felony; some \njurisdictions require an overt act in furtherance of \nthe conspiracy \nSpecific intent or purposely to \nagree to commit the specified \noffense(s) \nAccomplice Aid, assist commission of a crime Specific intent or purposely or \ngeneral intent or knowingly, \ndepending on the jurisdiction \nFigure 8.7 Diagram of Conspiracy Tom DeLay Convicted of Conspiracy and Money Laundering \nVideo \nJudge Sentences Tom DeLay to Three Years in Prison \nTom DeLay, former US House Majority Leader, was convicted of conspiracy and \nmoney laundering.Paul Meyer, \"Tom DeLay is sentenced to three years,\" Los Angeles \nTimes website, accessed August 15, \n2011, http://articles.latimes.com/2011/jan/11/nation/la-na-tom-delay-20110111. His \nverdict is shown in this video: \n(click to see video) \nKEY TAKEAWAYS \n\u2022 Conspiracy is an inchoate crime because the defendants might never complete the offense \n that is the conspiracy's object. \n\u2022 \nThe criminal act element required for conspiracy is an agreement to commit any crime, \ncommit a felony, falsely indict another for a crime, or falsely maintain any lawsuit, depending \non the jurisdiction. \n\u2022 The overt act required for conspiracy can be preparatory activity; the criminal act element \nrequired for attempt must be more than mere preparation. \n\u2022 The criminal intent element required for conspiracy is specific intent or purposely to agree to \ncommit the offense that is the conspiracy's object. \n\u2022 The acquittal of or failure to prosecute one coconspirator does not prohibit the prosecution \nof other coconspirators in some jurisdictions. \n\u2022 \nA coconspirator does not need to know every other coconspirator; as long as a coconspirator \nis aware that there are other members, he or she can be criminally responsible for \nconspiracy. \n\u2022 A wheel conspiracy connects all members to one central member. A chain conspiracy \ninterconnects the members in a linear fashion. \n\u2022 The Pinkerton rule holds conspiracy members criminally responsible for every foreseeable \ncrime committed in furtherance of the conspiracy. \u2022 \nWharton's rule could create a judicial presumption that a defendant cannot be criminally \nresponsible for conspiracy and the crime that is its object if the conspiracy has only two \nmembers, and the crime that is its object requires two defendants. \n\u2022 Renunciation is an affirmative defense to conspiracy in some jurisdictions if the defendant \nvoluntarily and completely renounces the conspiracy and thwarts the crime that is its object. \n\u2022 Generally, conspiracy does not merge like attempt; a defendant can be convicted of \nconspiracy and the crime conspired. \n\u2022 \nSome jurisdictions grade conspiracy the same as the conspired offense; other jurisdictions \ngrade conspiracy lower than the conspired offense. It is not unconstitutional to grade \nconspiracy higher than the offense that is its object. \n\u2022 Federal RICO is a statute that is designed to punish organized crime. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the end \nof the chapter. \n1. Gail and Roger conspire to commit a misdemeanor. In Gail and Roger's state, conspiracy is \npunishable as a felony. Can Gail and Roger be convicted of a felony for conspiring to commit \na misdemeanor? Why or why not? \n2. Read State v. Blackmer, 816 A.2d 1014 (2003). In Blackmer, the defendant appealed his \nconviction for conspiracy to possess marijuana with intent to sell because the individual with \nwhom he was conspiring was a police decoy who did not have conspiracy intent. Did the \nSupreme Court of New Hampshire uphold the defendant's conviction? The case is available \nat this link: http://scholar.google.com/scholar_case?case=10340846332108789820&q= \nState+v.+Blackmer&hl=en&as_sdt=2,5. \n3. Read Commonwealth v. Roux, 350 A.2d 867 (1976). In Roux, the defendant was convicted of \nmurder and conspiracy to commit murder after a barroom brawl resulted in a victim's death. \nThe defendant and others beat the victim with their fists. Thereafter the criminal actor took a \nknife from a defendant who then walked away. The criminal actor stabbed the victim, who \ndied as a result. The defendant who walked away claimed that he \"abandoned\" the \nconspiracy by leaving before the stabbing, and this should be an affirmative defense to the \nconspiracy and murder charges. Did the Supreme Court of Pennsylvania uphold the defendant's convictions? The case is available at this \nlink: http://scholar.google.com/scholar_case?case=1692554406000599210&hl=en&as_sdt=2 \n&as_vis=1&oi=scholarr. \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 \nlink: http://caselaw.lp.findlaw.com/data2/californiastatecases/g023433.pdf. \nIn Han, a lurid California case involving twins, three defendants were convicted of \nburglary, false imprisonment, and conspiracy to commit murder.Beloit Daily News, \n\"'Evil Twin' Found Guilty of Plotting to Kill Sister,\" Beloit Daily News website, \naccessed January 28, \n2011, http://www.beloitdailynews.com/articles/1997/11/21/export7262.txt. Two of \nthe codefendants appealed on the grounds that the evidence was insufficient to \nsupport the verdict of conspiracy to commit murder. The codefendants claimed that \nthe only direct evidence of intent to commit murder were statements made by the \ndefendant Jeen Han before the conspiracy was formed, and defendant Han could not \nconspire with herself. \nThe defendant Jeen Han and her twin sister Sunny had a long history of violence \nagainst each other.People v. Han, 78 Cal. App. 4th 797, 802 (2000), accessed January \n28, \n2011, http://caselaw.lp.findlaw.com/data2/californiastatecases/g023433.pdf. Defend \nant Han became enraged when Sunny pressed charges against her for theft. \nTestimonial evidence presented at trial showed that she expressed the intent to kill \nher twin before any conspiracy was formed.People v. Han, 78 Cal. App. 4th 797, 803 \n(2000), accessed January 28, \n2011, http://caselaw.lp.findlaw.com/data2/californiastatecases/g023433.pdf. She \nactively sought out individuals to help her with her sister's murder.People v. Han, 78 \nCal. App. 4th 797, 803 (2000), accessed January 28, \n2011, http://caselaw.lp.findlaw.com/data2/californiastatecases/g023433.pdf. Therea fter, she met up with her teenaged cousin and a friend, the other two codefendants. \nThe three broke into Sunny Han's apartment, tied up Sunny and her roommate at \ngunpoint and placed them in the bathtub, and then ransacked Sunny's purse. \nReceipts produced at trial indicated a purchase of garbage bags, twine, utility tape, \nand Pine Sol previous to the incident. The Court of Appeal of California held that \nalthough circumstantial, the evidence supported the verdict. The court reasoned that \nthe purchase of the twine, garbage bags, utility tape, and Pine Sol, combined with the \nactions of the defendants in breaking into the apartment, tying up the two \nroommates at gunpoint, and putting them in the bathtub, could be interpreted as \ncircumstantial evidence of intent to kill, and the trier of fact did not err in making \nthat conclusion.People v. Han, 78 Cal. App. 4th 797, 804, 805 (2000), accessed \nJanuary 28, \n2011, http://caselaw.lp.findlaw.com/data2/californiastatecases/g023433.pdf. \n1. Do you think it is ethical to impute Jeen Han's intent to murder her twin to the two other \ncoconspirators, based on the circumstantial evidence presented at trial? \n8.3 Solicitation \nLEARNING OBJECTIVES \n1. Explain why solicitation is an inchoate crime. \n2. Define the criminal act element required for solicitation. \n3. Define the criminal intent element required for solicitation. \n4. Determine whether the defense of renunciation is available for solicitation. \n5. Discuss various approaches to solicitation grading. \nSolicitation can be a precursor to conspiracy because it criminalizes the instigation of an \nagreement to commit a criminal offense. Solicitation is an inchoate crime because it is possible \nthat the conspiracy will never be formed, and the crime that is its object will not be committed. \nMany of the rules that apply to attempt and conspiracy also apply to solicitation, as is discussed \nin Section 8.3 \"Solicitation\". Solicitation Act \nThe criminal act element required for solicitation is \ngenerally words that induce another to commit a capital felony, first-degree \nfelony,Tex. Penal Code \u00a7 15.03, accessed January 6, \n2011, http://law.onecle.com/texas/penal/15.03.00.html (accessed January 6, \n2011). or any crime.N. Y. Penal Law \u00a7 100.00, accessed January 6, \n2011, http://law.onecle.com/new-york/penal/PEN0100.00_100.00.html. Typical \nwords of inducement are request, command, encourage, hire, procure, entice, and \nadvise. The Model Penal Code defines solicitation as follows: \"[a] person is guilty of \nsolicitation to commit a crime if with the purpose of promoting or facilitating its \ncommission he commands, encourages or requests another person to engage in \nspecific conduct which would constitute such crime\" (Model Penal Code \u00a7 5.02(1)). \nHowever, the Model Penal Code does not require direct communication, if \"conduct \nwas designed to effect such communication.\" (Model Penal Code \u00a7 5.02(2)). \nExample of Solicitation Act \nJimmy calls his friend Choo, who is reputed to be a \"fence,\" and asks Choo to help \nhim sell some stolen designer shoes. If Jimmy is in a jurisdiction that criminalizes \nthe \"request\" to commit any crime, Jimmy probably has committed the criminal act \nelement 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 \nhas not committed the criminal act element required for solicitation because selling \nstolen property is not generally graded that severely. If Jimmy is in a jurisdiction \nthat follows the Model Penal Code, and Jimmy and Choo had a long-standing \narrangement whereby Jimmy puts stolen items in a storage facility so that Choo can \nsell them, Jimmy will not have to communicate his request to Choo. He simply will \nhave to place the shoes in the storage facility to commit the criminal act element \nrequired for solicitation. Solicitation Intent \nThe criminal intent element required for solicitation is specific \nintent or purposely to promote the crime's commission in most jurisdictions and \nunder the Model Penal Code, as set forth in Section 8.3.1 \"Solicitation Act\".Or. Rev. \nStat. \u00a7 161.435, accessed January 6, 2011, http://law.onecle.com/oregon/161general-\nprovisions/161.435.html. \nExample of Solicitation Intent \nReview the solicitation act example in Section 8 \"Example of Solicitation Act\". In this \nexample, Jimmy desires Choo to commit the crime of selling stolen property so that \nhe can reap a benefit from his stolen designer shoes. Thus Jimmy probably has the \ncriminal intent required for solicitation. If Jimmy is in a jurisdiction that \ncriminalizes solicitation to commit any crime, Jimmy could be charged with and \nconvicted of this offense. \nRenunciation as a Defense to Solicitation \nSimilar to conspiracy, many jurisdictions allow renunciation as an affirmative \ndefense to solicitation.Ariz. Rev. Stat. \u00a7 13-1005, accessed January 7, \n2011, http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/13/01005.htm&Title \n=13&DocType=ARS. The renunciation must be voluntary and complete and must \nthwart the crime that is solicited. As the Model Penal Code states, \"it is an \naffirmative defense that the actor, after soliciting another person to commit a crime, \npersuaded him not to do so or otherwise prevented the commission of the crime, \nunder circumstances manifesting a complete and voluntary renunciation of his \ncriminal purpose\" (Model Penal Code \u00a7 5.02(3)). \nSolicitation Grading \nJurisdictions vary as to how they grade solicitation. Some jurisdictions grade \nsolicitation according to the crime solicited, with more serious crimes accorded a \nmore severe solicitation punishment.Ala. Code \u00a7 13A-4-1(f), accessed January 7, 2011, http://law.onecle.com/alabama/criminal-code/13A-4-1.html. Others grade \nsolicitation the same as the crime solicited, with exceptions.N.H. Rev. Stat. Ann. \u00a7 \n629:2(IV), accessed January 7, 2011, \nhttp://law.justia.com/codes/newhampshire/2009/TITLELXII/CHAPTER629/629-\n2.html. Some states grade solicitation as a misdemeanor, regardless of the crime \nsolicited.Commonwealth v. \nBarsell, 424 Mass. 737 (1997), accessed January 7, \n2011, http://scholar.google.com/scholar_case?case=8677391463974362410&hl=en \n&as_sdt=2&as_vis=1&oi=scholarr (accessed January 7, 2011). \nFigure 8.8 Diagram of Solicitation KEY TAKEAWAYS \n\u2022 Solicitation is an inchoate crime because the crime that is solicited may not be completed. \n\u2022 The criminal act element required for solicitation is words or conduct that induces another to \ncommit any crime, a capital felony, or first-degree felony. \n\u2022 The criminal intent element required for solicitation is specific intent or purposely to induce \nanother to commit any crime, a capital felony, or first-degree felony. \n\u2022 \nRenunciation is an affirmative defense to solicitation if the defendant voluntarily and \ncompletely renounces his or her criminal purpose and thwarts the commission of the \nsolicited crime. \n\u2022 \nJurisdictions vary in their approach to grading solicitation. Some jurisdictions grade \nsolicitation on a sliding scale according to the crime solicited, some grade solicitation the \nsame as the crime solicited, and some grade solicitation as a misdemeanor, regardless of the \ncrime solicited. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the end \nof the chapter. \n1. Nancy asks Jennifer to help her counterfeit twenty-dollar bills. Jennifer refuses. Has a crime \nbeen committed in this situation? \n2. Read Planter v. State, 9 S.W. 3d 156 (1999). In Planter, the defendant told a former police \nofficer wearing a wire that he would kill his estranged son-in-law for ten thousand dollars. \nThe defendant was convicted of solicitation to commit murder. The defendant appealed on \nthe basis that he did not solicit the former police officer to commit murder; he solicited the \nformer police officer to pay him to commit murder. Did the Court of Criminal Appeals of \nTexas uphold the defendant's conviction? The case is available at this \nlink: http://caselaw.findlaw.com/tx-court-of-criminal-appeals/1007515.html. \n3. Read People v. Dennis, 340 N.W.2d 81 (1983). In Dennis, the defendant was convicted of \nincitement to murder, which is the Michigan equivalent of solicitation to murder. The \ndefendant appealed based on the fact that she solicited a police officer posing as a hit man, \nso the police officer did not have the intent to murder, and thus the murder was not \npossible. Did the Michigan Court of Appeals uphold the defendant's conviction? 8.4 End-of-Chapter Material \nSummary \nAn inchoate crime might never be completed. The rationale of punishing a defendant \nfor an inchoate crime is prevention and deterrence. The three inchoate crimes are \nattempt, conspiracy, and solicitation. \nThe criminal act element required for attempt must be more than thoughts or mere \npreparation. Modern jurisdictions use four tests to ascertain attempt. The proximity \ntest analyzes how close the defendant is to completing the offense by examining how \nmuch is left to be done. The defendant may have to come dangerously close to \ncompletion but generally does not have to reach the last act before completion. The \nres ipsa loquitur test looks at the moment in time when the defendant stopped \nprogressing toward completion to see if the defendant's acts indicate that the \ndefendant has no other purpose than commission of the offense. The probable \ndesistance test focuses on how far the defendant has progressed to see if it is \nprobable that the defendant won't desist until the crime is complete. The Model \nPenal Code substantial steps test has two parts. First, the defendant must take \nsubstantial steps toward completion of the crime. Second, the defendant's actions \nmust strongly corroborate the defendant's criminal purpose. \nSome jurisdictions also criminalize preparatory crimes such as the manufacture or \npossession of burglar's tools. Preparatory crimes can be combined with attempt \nunder the appropriate circumstances. \nThe criminal intent element required for attempt is the specific intent or purposely \nto commit the crime attempted. Legal impossibility can be a defense to attempt if the \ndefendant mistakenly believes that a legal act attempted is illegal. Factual \nimpossibility is not a defense to attempt if the crime cannot be completed because the facts are not as the defendant believes them to be. Voluntary abandonment is also \na defense to attempt in some jurisdictions if the defendant voluntarily and \ncompletely renounces the attempted crime. \nIf a jurisdiction recognizes transferred intent, a defendant can be criminally \nresponsible for attempt against the intended victim and the completed offense \nagainst the actual victim. In many jurisdictions, attempt merges into the crime if the \ncrime is completed. Jurisdictions vary as to how they grade attempt; either attempt is \ngraded the same or lower than the completed offense. \nThe criminal act element required for conspiracy is an agreement to commit any \ncrime, commit a felony, falsely indict another for a crime, or falsely maintain any \nlawsuit, depending on the jurisdiction. Some jurisdictions also require an overt act in \nfurtherance of the conspiracy that could be a legal or preparatory act. \nThe criminal intent element required for conspiracy in many jurisdictions is the \nspecific intent or purposely to agree and to commit the crime at issue. In some states, \na coconspirator can be prosecuted even if another coconspirator is not prosecuted or \nacquitted. Coconspirators do not need to know every other coconspirator, as long as \nthey are aware that other coconspirators exist. A wheel conspiracy connects all \nmembers to one central member. A chain conspiracy connects members to each \nother in a linear fashion. \nThe Pinkerton rule holds coconspirators criminally responsible for every foreseeable \ncrime committed in furtherance of the conspiracy. Wharton's rule creates a judicial \npresumption that a crime requiring two parties merges into a conspiracy made up of \ntwo parties. \nRenunciation can be a defense to conspiracy if a coconspirator voluntarily and \ncompletely abandons the conspiracy and thwarts the crime that is its object. \nConspiracy generally does not merge into the conspired offense. Jurisdictions vary as \nto how they grade conspiracy. Usually it is graded the same or lower than the crime \nthat is the conspiracy's object, but it is not unconstitutional to punish conspiracy more severely than the conspired offense. The federal RICO statute is targeted at \norganized crime, including conspiracy. \nSolicitation is the instigation of an agreement to commit any crime or, in some \njurisdictions, a capital or first-degree felony. The criminal act element required for \nsolicitation is words or conduct of inducement. The criminal intent element required \nfor solicitation is specific intent or purposely to promote the crime solicited. \nRenunciation is a defense to solicitation if it is voluntary and complete and thwarts \nthe solicited offense. Jurisdictions vary as to how they grade solicitation. Some grade \nsolicitation the same as the crime solicited, others vary the grading depending on the \ncrime solicited, and still others grade solicitation as a misdemeanor. \nYOU BE THE PROSECUTOR \nYou are a prosecutor seeking a promotion. You want to win your next case so that \nyou can make a good impression on your superior. Read the prompt, review the case, \nand then decide whether you would accept or reject it from a pool of cases available \nto junior prosecutors. Check your answers using the answer key at the end of the \nchapter. \n1. The defendant is charged with witness tampering by attempting to kill the witness. A witness \nidentified the defendant, a police officer, as someone who sexually assaulted her at \ngunpoint. The defendant met with two individuals, one of them an FBI informant, and told \nthem that he wanted to kill the witness before trial. He was thereafter apprehended with a \ngun he had recently test-fired in the vicinity of the witness's house, which he had located \nwith the FBI informant on a previous occasion. The jurisdiction in which you prosecute cases \nfollows the \"substantial steps\" 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 \nlink: http://ftp.resource.org/courts.gov/c/F2/950/950.F2d.232.91-2021.html. \n2. The defendant, a substitute teacher, is charged with two counts of attempted child sexual \nabuse for blocking the door of his residence and refusing to allow his thirteen-year-old \nstudent to leave. The defendant also asked the student for a kiss, was told \"no,\" and moved \nhis face in the proximity of the student's face. Will you accept or reject the case? Read People v. Miller, 856 N.Y.S. 2d 443 (2008). The case is available at this \nlink: 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. \n3. The defendant is charged with conspiracy to commit manslaughter and various other crimes \n(including manslaughter). The defendant and an acquaintance agreed to shoot at some \nindividuals near a housing project and walked over carrying guns. The defendant fired shots \nat a dumpster with people standing nearby, and one of the people was hit and killed. In your \nstate, the criminal intent required for conspiracy is the specific intent or purposely to agree, \nand the specific intent or purposely to commit the crime that is the conspiracy's object. Will \nyou accept or reject the case? Read State v. Montgomery, 22 Conn. App. 340 (1990). The \ncase is available at this \nlink: http://scholar.google.com/scholar_case?case=355479416909506104&hl=en&as_sdt=2 \n&as_vis=1&oi=scholarr \n4. The defendant is charged with solicitation to traffic narcotics. The defendant was in a vehicle \nwith other individuals, and a drug dealer approached them. The defendant gave the drug \ndealer twenty dollars to examine the drugs, gave the drugs back, and got his twenty dollars \nback. Thereafter, a police officer who had witnessed the transaction arrested everyone in the \ncar. Will you accept or reject the case? Read State v. Pinson, 895 P.2d 274 (1995). The case is \navailable at this \nlink: http://scholar.google.com/scholar_case?case=1966550891971070482&hl=en&as_sdt=2 \n&as_vis=1&oi=scholarr. \nCases of Interest \n \u2022 People v. Hart, 176 Cal. App. 4th 662 (2009), discusses attempt and the natural and \nprobable consequences \ndoctrine: http://scholar.google.com/scholar_case?case=9438325952737556456&hl= \n en&as_sdt=2&as_vis=1&oi=scholarr. \n\u2022 U.S. v. Guest, 383 U.S. 745 (1966), discusses conspiracy and the US \nConstitution: http://www.oyez.org/cases/1960-1969/1965/1965_65. \n\u2022 \nReynolds v. State, 2007 Tex. App. LEXIS 6139 (2007), discusses solicitation to \ncommit capital murder: http://www.lexisone.com/lx1/caselaw/freecaselaw?action=OCLGetCaseDet \nail&format= \nFULL&sourceID=bcdba&searchTerm=eQCD.UaXa.UYGX.YcEZ&searchFlag=y&l1loc \n=FCLOW. \nArticles of Interest \n\u2022 Criminal attempt: http://www.highbeam.com/doc/1G2-3403000027.html \n\u2022 Jos\u00e9 Padilla's conspiracy conviction: \nhttp://www.nytimes.com/2008/01/23/us/23padilla.html \n\u2022 Criminal solicitation and entrapment: \nhttp://digitalcommons.uconn.edu/cgi/viewcontent.cgi?article \n=1071&context=econ_wpapers \nWebsites of Interest \n\u2022 Discussion on various crimes, including inchoate \n crimes: http://criminal.laws.com/conspiracy \n\u2022 Information about the RICO Act: http://www.ricoact.com \nAnswers to Exercises \nFrom Section 8.1 \"Attempt\" \n1. Carol can be charged with murder because her father died within the jurisdiction's \nrequisite time limit. If her father did not die within one year and a day, Carol could \nonly be charged with attempted murder. Carol cannot be charged with attempted \nmurder and murder because attempt merges into the offense if it is completed in \nCarol's jurisdiction. \n2. The Supreme Court of Missouri reversed the defendant's conviction. Following a \nsubstantial steps analysis, the court determined that in the absence of evidence that \nthe defendant placed the pills inside the jar, the defendant must be in possession of \nthe jar to be guilty of attempted methamphetamine production, and the facts did not \nindicate that possession. \n3. The Michigan Court of Appeals reversed the defendant's conviction, reasoning that \nassault with intent to commit attempted kidnapping is a nonexistent offense because \nit would require the specific intent to commit an uncompleted crime. Answers to Exercises \nFrom Section 8.2 \"Conspiracy\" \n1. Gail and Roger can be convicted of felony conspiracy to commit \na misdemeanor because it is not unconstitutional to punish conspiracy more \nseverely than the crime that is its object. \n2. The New Hampshire Supreme Court upheld the defendant's conviction because \nunder New Hampshire law it is not necessary for both parties to the conspiracy to \npossess conspiracy criminal intent. \n3. The Supreme Court of Pennsylvania upheld the defendant's convictions, determining \nthat it was too late for him to abandon the conspiracy, and also that the evidence \nindicated he was holding the knife \"at the ready\" for the criminal actor to grab and \nuse. \nAnswers to Exercises \nFrom Section 8.3 \"Solicitation\" \n1. Nancy has committed solicitation to commit counterfeiting, which is criminal if \nNancy's jurisdiction criminalizes the solicitation to commit this type of offense. It is \nof no import that Jennifer refuses Nancy's request because the criminal act element \nof solicitation is requesting another to commit a crime, not a mutual understanding \nor agreement (like conspiracy). \n2. The Court of Criminal Appeals of Texas reversed the defendant's conviction, agreeing \nwith the defendant that he solicited a payment, not a murder. \n3. The Michigan Court of Appeals upheld the defendant's conviction, based on the plain \nmeaning of the statute that does not require the individual solicited to have the intent \nto commit the crime solicited. \nAnswer to Law and Ethics Question \n1. One of the biggest concerns about the crime of conspiracy is that it is easier to prove \nthan many substantive crimes. In Chapter 7 \"Parties to Crime\", an example is given \nin Section 7.1 \"Parties to Crime\" where an alleged terrorist was acquitted of over two \nhundred counts of accomplice to murder, but he was convicted of one count of conspiracy. The Han case also illustrates this principle. The circumstantial evidence \npresented at trial may not have been enough to prove attempted murder, but it was \nclearly enough to convince the jury that there was a conspiracy to murder. \nHowever, the rationale supporting conspiracy\u2014that it is more likely that a crime will \nbe completed if it is a group effort\u2014is also illustrated by the Han case. A thorough \nreview 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 \npossibly incapable of committing this crime alone. Once she had the support of the \nother two codefendants, she was able to move forward with the offense. The \ncircumstantial evidence presented at trial was not overwhelming. However, appellate \ncourts give the trier of fact the benefit of the doubt because the judge or jury views the \nevidence firsthand\u2014rather than simply reading it in a court transcript. Also, the right \nto a jury trial must be preserved, regardless of whether the jury follows the law or acts \nethically. \nAnswers to You Be the Defense Prosecutor \n1. In this case, the US Court of Appeals for the Fifth Circuit upheld the defendant's \nconviction for witness tampering by attempting to kill a witness. The court \nspecifically held that the defendant's expressed intent to kill, combined with his \nefforts to find the witness's house, and his possession of a gun that had recently been \ntest-fired in the vicinity of the witness' house was enough to constitute a \"substantial \nstep\" toward completion of the offense of killing the witness. Thus you would be \nsuccessful on the witness tampering charge and you should accept the case. \n2. The Criminal Court, City of New York held that the criminal complaint for attempted \nchild sexual abuse was sufficient on its face. The court stated that evidence indicating the defendant blocked the door and tried to kiss the student, coupled with physical \nand verbal coercive conduct, could constitute the criminal act element of attempted \nchild sexual abuse. Thus the attempted child sexual abuse charges are sufficient and \nyou should accept the case. \n3. In this case, the Appellate Court of Connecticut held that manslaughter is a reckless \nintent crime, so there could be no conspiracy to commit it. A defendant cannot have \nthe specific intent to commit a reckless intent crime. Thus you would lose on the \nconspiracy to commit manslaughter charge and you should reject the case. \n4. The Court of Appeals of New Mexico held that solicitation cannot be charged when it \nis incidental to the crime solicited. The court reasoned that trafficking narcotics \ncriminalizes only the sale (not the purchase) of narcotics, and narcotics cannot be \nsold without a buyer. Thus you would lose on the solicitation charge and should \nreject the case. \nChapter 9Criminal Homicide Source: Image courtesy of Tara Storm. \n[W]hether it is made for the purpose of destroying animal life, or whether it was not \nmade by man at all, or whether it was made by him for some other purpose, if it is a \nweapon, or if it is a thing with which death can be easily and readily produced, the \nlaw recognizes it as a deadly weapon\u2026 \nAcers v. U.S., cited in Section 9 \"Inference of Intent\" \n9.1 Homicide \nLEARNING OBJECTIVES \n1. Define homicide. \n2. Recognize that all homicides are not criminal. \n3. Identify the corpus delicti components in a criminal homicide. \n4. Compare the definition of fetus in criminal homicide and feticide statutes. \n5. Compare common-law feticide and suicide with modern views. \n6. Ascertain whether it is constitutional to criminalize assisted suicide. \nIn this section, you learn the definition of homicide and the meaning of human being, which vary \nfrom state to state. You also learn that suicide is not criminal, but assisted suicide might be, \ndepending on the jurisdiction. \nSynopsis of the History of Homicide \nHomicide is the killing of one human being by another. Homicide is not always \ncriminal. For example, a lawful execution pursuant to the death penalty is homicide, \nbut it is not criminal homicide. \nHomicide law in the United States has its origins in the English common law. Oxford \nprofessor Sir William Blackstone defined homicide as justifiable, excusable, or \nfelonious. Justifiable homicides were not criminal because 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 \nheinous offenses known to man. \nInitially at common law, every felonious or criminal homicide was punished by \ndeath. Gradually, as the law evolved, unlawful killings were divided into murder and \nmanslaughter based on the defendant's criminal intent. Murder had the criminal \nintent element of malice aforethought and remained a capital offense. Manslaughter \nwas an unlawful killing without malice and was punished by incarceration. \nIn modern times, most states define criminal homicide and its elements in statutes, \nwhich often are interpreted by case law. Many jurisdictions continue to follow \nBlackstone's philosophy and the common-law division between murder and \nmanslaughter, as is discussed in this chapter. \nCorpus Delicti in Criminal Homicide \nAn essential component of every criminal case, including criminal homicide, is \ncorpus delicti. Corpus delicti is the substance of the crime at issue. The prosecution \nmust prove corpus delicti beyond a reasonable doubt, with evidence other than a \ndefendant's confession.People v. Ochoa, 966 P.2d 442 (1998), accessed February 13, \n2011, http://scholar.google.com/scholar_case?case=13299597995178567741&q= \ncorpus+delicti+criminal+homicide&hl=en&as_sdt=2,5. Although a detailed \ndiscussion of corpus delicti is beyond the scope of this text, corpus delicti in a \ncriminal homicide case consists of the death of a victim, caused by the defendant, in \nan unlawful manner. \nOften the victim's body is never discovered, which could make it more difficult for \nthe prosecution to prove corpus delicti but not impossible. If there is sufficient \ncircumstantial or direct evidence, such as bloodstains, surveillance footage, or \nwitness testimony, the prosecution can prove corpus delicti without the victim's body \nand can convict the defendant of criminal homicide. Feticide \nFeticide is the intentional destruction of a fetus. At common law, a human being \ncould not be the victim of criminal homicide unless it was born alive.Keeler v. \nSuperior Court, 2 Cal.3d 619 (1970), accessed July 10, \n2010, http://scholar.google.com/scholar_case?case=2140632244672927312&hl=en \n&as_sdt=2&as_vis=1&oi=scholarr. The Model Penal Code takes this approach and \ndefines human being as \"a person who has been born and is alive\" (Model Penal \nCode \u00a7 210.0 (1)). The modern trend in many jurisdictions is to include the fetus as a \nvictim in a criminal homicide or feticide statute, excepting abortion. The definition \nof fetus is either set forth in the criminal homicide or feticide statute or created by \ncase law. Many states and the federal government consider an embryo a fetus from \nthe time of conception.Ala. Code \u00a7 13A-6-1, accessed February 13, \n2010, http://www.legislature.state.al.us/codeofalabama/1975/13A-6-1.htm. Other \nstates determine that a fetus is formed when the child has \"quickened,\" or is able to \nmove within the womb\u2014about four to five months after conception.Fla. Stat. \n\u00a7 782.09, accessed July 10, \n2010, \nhttp://www.lawserver.com/law/state/florida/statutes/florida_statutes_78209. A \nfew states do not consider the fetus a victim of criminal homicide or feticide until it is \nviable and can survive outside the womb.Ind. Code \u00a735-42-1-1(4), accessed July 10, \n2010, http://www.in.gov/legislative/ic/code/title35/ar42/ch1.html. \nFigure 9.1 Crack the Code Suicide \nAt common law, suicide was a crime. The punishment was forfeiture of the lands \nowned by the deceased. In modern times, most states do not criminalize suicide. \nHowever, almost all jurisdictions make it a crime to assist a suicide, and the US \nSupreme Court has held these statutes constitutional.Washington v. Glucksberg, 521 \nU.S. 702 (1997), accessed July 10, \n2010, http://scholar.google.com/scholar_case?case=17920279791882194984&q= \nWashington+v.+Glucksberg&hl=en&as_sdt=2,5. Several states have special statutes \nthat specifically punish assisted suicide less severely than their first- or seconddegree \nmurder statutes.Tex. Penal Code \u00a7 22.08, accessed July 10, \n2010, http://law.onecle.com/texas/penal/22.08.00.html. A minority of states allow \nterminally ill patients to end their lives with the assistance of a physician.Or. Rev. \nStat. \u00a7 127.800 et seq., accessed July 10, 2010, \nhttp://law.onecle.com/oregon/127powers-of-attorney-advance-\ndirectives/index.html. The Model Penal Code provides that \"[a] person who \npurposely aids or solicits another to commit suicide is guilty of a felony of the second \ndegree if his conduct causes such suicide or an attempted suicide\" (Model Penal \nCode \u00a7 210.5(2)). \nKEY TAKEAWAYS \n\u2022 Homicide is the killing of one human being by another. \n\u2022 Homicide is not always criminal. For example, a lawful execution pursuant to the death \npenalty is homicide, but it is not criminal homicide. \n\u2022 The corpus delicti components in a criminal homicide are the death of the victim, caused by \nthe defendant, in an unlawful manner. \n\u2022 States that criminalize feticide consider an embryo a fetus at the moment of conception, \nwhen it quickens in the womb, or when it is viable and can survive outside the womb. \n \u2022 In modern times, in many jurisdictions feticide is a crime (excepting abortion), \n and suicide is not. At common law, the following applied: \no Feticide was not a crime; only a person \"born alive\" could be the victim of \ncriminal homicide. \no Suicide was a crime; the punishment was forfeiture of the deceased's lands. \n\u2022 The US Supreme Court has held that it is constitutional to criminalize assisted \nsuicide, and \nmost states do. A minority of states allow a physician to legally end the life of a terminally ill \npatient. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the end \nof the chapter. \n1. What is the fundamental difference between homicide and suicide? \n2. Read Washington v. Glucksberg, 521 U.S. 702 (1997). Which part of the Constitution did the \nUS Supreme Court analyze when it held that it is constitutional to criminalize assisted \nsuicide? \n9.2 Murder \nLEARNING OBJECTIVES \n1. Define the criminal act element required for murder. \n2. Explain why criminal intent is an important element of murder. \n3. Identify, describe, and compare the three types of malice aforethought and the three Model \nPenal Code murder mental states. \n4. Explain the deadly weapon doctrine. \n5. Define death. \n6. Give examples of justifiable and excusable homicides. \n7. Ascertain which type of criminal homicide the defendant commits when deliberately and \ninadvertently transmitting AIDS. \nMurder is a crime that has the elements of criminal act, criminal intent, causation, and harm. In \nthis section, you learn the elements of murder. In upcoming sections, you learn the factors that \nclassify murder as first degree, felony, and second degree. Murder Act \nMost jurisdictions define the criminal act element of murder as conduct that \ncauses the victim's death.N.Y. Penal Law \u00a7 125.27, accessed February 4, 2011, \nhttp://law.onecle.com/new-york/penal/PEN0125.27_125.27.html. The criminal act \ncould be carried out with a weapon, a vehicle, poison, or the defendant's bare hands. \nLike all criminal acts, the conduct must be undertaken voluntarily and cannot be \nthe result of a failure to act unless a duty to act is created by common law or statute. \nMurder Intent \nIt is the criminal intent element that basically separates murder from manslaughter. \nAt common law, the criminal intent element of murder was malice aforethought. In \nmodern times, many states and the federal government retain the malice \naforethought criminal intent.Cal. Penal Code \u00a7 187, accessed February 4, \n2011, http://law.justia.com/california/codes/2009/pen/187-199.html. The Model \nPenal Code defines murder intent as purposely, knowingly, or recklessly under \ncircumstances manifesting extreme indifference to the value of human life (Model \nPenal Code \u00a7 210.2). \nAn exception to the criminal intent element of murder is felony murder. Most \njurisdictions criminalize felony murder, which does not require malice aforethought \nor the Model Penal Code murder mental states. Felony murder is discussed shortly. \nThe Meaning of Malice \nMalice, as used in the term malice aforethought, is not the intent to vex or annoy. \nNor is it hatred of the victim. Malice exists when the defendant desires the victim's \ndeath or is indifferent to whether the victim lives or dies. Malice is apparent in three \ncriminal 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 \nheart and does not care if the victim lives or dies. The specific intent to kill the victim corresponds with the Model Penal Code's \npurposely murder mental state and is often referred to as express \nmalice.N.R.S. \u00a7 200.020(1), accessed February 13, \n2011, http://law.onecle.com/nevada/crimes/200.020.html. The intent to cause \nserious bodily injury corresponds with the Model Penal \nCode's knowingly or recklessly murder mental states and is often referred to as \nimplied malice. Serious bodily injury is a technical term and is generally defined in \na state statute or by case law. The Model Penal Code defines serious bodily injury as \n\"bodily injury which creates a substantial risk of death or which causes serious, \npermanent disfigurement, or protracted loss or impairment of the function of any \nbodily member or organ\" (Model Penal Code \u00a7 210.0(3)). The depraved heart intent \nis also implied maliceN.R.S. \u00a7 200.020(2), accessed February 13, \n2011, http://law.onecle.com/nevada/crimes/200.020.html. and corresponds with \nthe Model Penal Code's knowingly or recklessly murder mental states, depending \non the attendant circumstances. \nExample of Intent to Kill \nJay decides he wants to kill someone to see what it feels like. Jay drives slowly up to a \ncrosswalk, accelerates, and then runs down an elderly lady who is crossing the street. \nJay is acting with the intent to kill, which would be express malice or purposely. \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 \nthe high school track meet. Jay waits for Robbie outside the locker room and when \nRobbie exits, Jay attacks him and stabs him several times in the knee. Unfortunately, \none of Jay's stabbing wounds is in the carotid artery, and Robbie bleeds to death. Jay \nis acting with the intent to cause serious bodily injury, which would be implied \nmalice, or knowingly or recklessly under circumstances manifesting extreme \nindifference to the value of human life. Example of Depraved Heart Intent \nJay is angry at Brittany for turning him down when he asks her to the senior prom. \nJay decides to teach Brittany a lesson. He knocks her unconscious as she walks home \nfrom school and then drives her out to a deserted field and dumps her on the ground. \nHe 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 \nentire night in the field, where temperatures drop to 5\u00b0F. Brittany dies of exposure \nand acute hypothermia. Jay acts with the intent of depraved heart, also called \nabandoned and malignant heart. This criminal intent is another form of implied \nmalice, or knowingly or recklessly under circumstances manifesting extreme \nindifference to the value of human life. \nThe Meaning of Aforethought \nThe term aforethought at common law meant that the defendant planned or \npremeditated the killing. However, this term has lost its significance in modern \ntimes and does not modify the malice element in any way. Premeditation is a factor \nthat can elevate murder to first-degree murder, as is discussed shortly. \nInference of Intent \nThe deadly weapon doctrine creates an inference of murder intent when the \ndefendant uses a deadly weapon.People v. Carines, 597 N.W. 2d 130 (1999), accessed \nFebruary 13, \n2011, http://scholar.google.com/scholar_case?case=6441565823584670121&q= \ndeadly+weapon+doctrine&hl=en&as_sdt=2,5. A judge may instruct the jury that \nthey can infer the defendant intended the natural and probable consequences of the \ncriminal act, which are death when a deadly weapon is utilized. This basically \nalleviates the burden of having to prove criminal intent for murder. A deadly weapon is any instrumentality that can kill when used in a manner \ncalculated to cause death or serious bodily injury.Acers v. United States, 164 U.S. \n388 (1896), accessed February 13, \n2010, http://scholar.google.com/scholar_case?case=16538901276155737856&hl=en \n&as_sdt=2&as_vis=1&oi=scholarr. The Model Penal Code defines deadly weapon as \n\"any firearm, or other weapon, device, instrument, material or substance, whether \nanimate or inanimate, which in the manner it is used or is intended to be used is \nknown to be capable of producing death or serious bodily injury\" (Model Penal Code \n\u00a7 210.0 (4)). Some examples of deadly weapons are knives, guns, broken bottles, or \neven bare hands if there is a discrepancy in the size of the attacker and the victim. \nAside from creating an inference of intent for murder, use of a deadly weapon may \nalso enhance a sentence for certain crimes. \nCausation Issues in Murder \nThere is always a causation analysis for murder. The defendant must be the factual \nand legal cause of a very specific harm\u2014the victim's death. Causation issues in \nmurder are numerous. If a state has a one or three years and a day rule, this could \ncomplicate the causation scenario when a victim's life is artificially extended. \nOne and three years and a day rules are discussed in detail in Chapter 4 \"The \nElements of a Crime\". In addition, co-felon liability could extend criminal \nresponsibility to defendants that did not actually kill the victim, as is discussed \nshortly. \nHarm Element of Murder \nAs stated previously, the harm element of murder is a victim's death. With the \nadvent of life-sustaining machines, jurisdictions have had to develop a definition for \nthe term dead. A victim is legally dead when there is irreversible cessation of the \nentire brain, including the brain stem.Uniform Determination of Death Act, accessed \nFebruary 14, 2010, http://www.gencourt.state.nh.us/rsa/html/X/141-D/141-\nDmrg.htm. Figure 9.2 Diagram of Murder Justification and Excuse \nAs Blackstone stated, murder cannot be justified or excused. Justifiable and \nexcusable homicides are noncriminal, and thus justification or excuse can operate as \nan affirmative defense in many jurisdictions. A thorough discussion of defenses \nbased on justification and excuse is in Chapter 5 \"Criminal Defenses, Part 1\" and \nChapter 6 \"Criminal Defenses, Part 2\". \nA justifiable homicide is a homicide that is warranted under the circumstances. One \nexample of a justifiable homicide is when a law enforcement officer shoots and kills a \nfleeing felon to prevent imminent great bodily injury or death. This killing is \nintentional and purposeful with malice aforethought, but it is noncriminal. The \njustification negates the criminality and the law enforcement officer will not be \nconvicted of murder. A complete discussion of use of deadly force by law \nenforcement to arrest or apprehend a criminal defendant is in Chapter 5 \"Criminal \nDefenses, Part 1\". Other murder defenses based on justification are self-defense, \ndefense of others, and defense of habitation. \nAn excusable homicide is a homicide that society forgives or pardons. One example \nof an excusable homicide is a homicide committed by a defendant who is found \nlegally insane. This killing could also be intentional and purposeful with malice \naforethought, but it is noncriminal. The excuse negates the criminality and the \ndefendant will not be convicted of murder. A complete discussion of the insanity \ndefense is in Chapter 6 \"Criminal Defenses, Part 2\". \nAIDS and Homicide \nThe criminal transmission of AIDS is a new and evolving topic with state and federal \ncourts and criminal codes. Many jurisdictions have statutes specifying that death by \nthe deliberate transmission of AIDS is murder because murder intent is \npresent.Minn. Stat. Ann. \u00a7 609.2241, accessed February 24, 2010, \nhttps://www.revisor.mn.gov/statutes/?id=609.2241. Death by the inadvertent transmission of AIDS is more likely manslaughter, although modern courts could \nbegin to imply malice or murder intent in this situation. For states that follow the \none or three years and a day rule, the time limit could affect any murder or \nmanslaughter charge because medical breakthroughs have extended the life span of \nAIDS victims significantly. \nGood News: The US Murder Rate Is Declining \nTable 9.1 Murder Rate in the United States: Percent Change January\u2013December \nYears Percent Change/Murder Rate \n2006/2005 +1.8 \n2007/2006 \u22120.6 \n2008/2007 \u22123.9 \n2009/2008 \u22127.2 \nSource: Department of Justice, \"Crime in the United States; Preliminary Annual \nUniform Crime Report,\" accessed July 28, \n2010, http://www.fbi.gov/ucr/prelimsem2009/table_3.html. \nKEY TAKEAWAYS \n\u2022 The criminal act element required for murder is conduct that causes the victim's death. \n\u2022 The criminal intent element of murder is important because it distinguishes murder from \nmanslaughter. \n\u2022 \nThe three types of malice aforethought are intent to kill, intent to cause serious bodily injury, \nand depraved heart. The three Model Penal Code murder mental states are purposely, \nknowingly, or recklessly under circumstances manifesting extreme indifference to the value \nof human life. \n\u2022 \nExpress malice is the intent to kill the victim, or purposely, under the Model Penal Code. \nImplied malice is indifference to whether the victim lives or dies, or knowingly or recklessly \nunder circumstances manifesting extreme indifference to the value of human life under the Model Penal Code. Implied malice, knowingly, and recklessly includes the intent to commit \nserious bodily injury and depraved heart intent. \n\u2022 \nThe deadly weapon doctrine creates an inference of murder intent when the defendant uses \na deadly weapon. If the trier of fact accepts the inference, the prosecution does not have the \nburden of proving criminal intent. \n\u2022 A human being is dead when there is irreversible cessation of the entire brain, including the \nbrain stem. \n\u2022 \nAn example of a justifiable homicide is a killing by law enforcement to prevent great bodily \ninjury or death. An example of an excusable homicide is a killing perpetrated by a legally \ninsane defendant. \n\u2022 \nWhen a victim dies because of the deliberate transmission of AIDS, the crime is most likely \nmurder because murder intent is present. When a victim dies because of the inadvertent \ntransmission of AIDS, the crime is most likely manslaughter, although modern courts could \nbegin to imply malice or murder intent in this situation. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the end \nof the chapter. \n1. Jay is angry about the grade he received on his criminal law midterm. Jay pulls a loaded \nrevolver out of his backpack, aims at a tree and fires in an attempt to release his frustrations. \nUnfortunately, Jay is an inexperienced marksman and the bullet strikes an innocent \nbystander in the forehead, killing him. What was Jay's criminal intent when shooting the \nrevolver? \n2. A prosecutor reviews the file for Jay's criminal case. After reading the facts, he chuckles and \ntells his paralegal, \"It won't be hard to prove criminal intent in this case.\" Is this true? Why or \nwhy not? \n3. Read U.S. v. Moore, 846 F.2d 1163 (1988). Did the US Court of Appeals for the Eighth Circuit \nhold that teeth are a deadly weapon when the defendant is infected with the HIV virus? \n9.3 First-Degree Murder LEARNING OBJECTIVES \n1. Ascertain the three types of murder that are typically first degree. \n2. Define premeditated murder. \n3. Explain the significance of the criminal act element of murder in premeditated murder. \n4. Define murder by a specified means. \n5. Give examples of specified means for first-degree murder. \n6. Analyze first-degree murder grading. \n7. Ascertain the circumstances that merit capital punishment. \nIn this section, you analyze the factors that classify a murder as first-degree murder. Keep in \nmind that the criminal act, criminal intent, causation, and harm elements of murder have \nalready been discussed. \nFactors Classifying Murder as First Degree \nStates and the federal government usually include premeditated murder, murder by \na specified means, and very serious felony murders in their first-degree murder \nstatutes. Felony murder is discussed shortly. \nPremeditated Murder \nPremeditated murder was originally and historically the predominant form of \nmurder in any first-degree murder statute. A common statutory definition of \nfirstdegree premeditated murder is a willful, deliberate, premeditated killing.Mich. \nComp. Laws \u00a7 750.316, accessed September 19, \n2010, http://law.onecle.com/michigan/750-michigan-penal-code/mcl-750316.html. \nDefinition of Willful, Deliberate, and Premeditated \nMost jurisdictions define willful as a specific intent to kill, purposely, or express \nmalice. Jurisdictions differ when interpreting deliberate and premeditated. A \nminority of jurisdictions equate express malice or purposely with deliberation and premeditation, which means that the prosecution need only prove specific intent to \nkill for a first-degree premeditated murder conviction.Hawthorne v. State, 835 So. \n2d 14 (2003), accessed September 19, \n2010, http://scholar.google.com/scholar_case?case=6294577581180338458&hl=en \n&as_sdt=2&as_vis=1&oi=scholarr. However, this interpretation could blur the \ndistinction between first and second-degree murder. The majority of jurisdictions \nhave defined deliberate as calm and methodical, without passion or anger.People v. \nAnderson, 447 P.2d 942 (1968), accessed February 13, \n2011, http://scholar.google.com/scholar_case?case=9215896464929219588&q= \ndefinition+of+deliberate+premeditated+murder&hl=en&as_sdt=2,5. Premeditated \ngenerally means the defendant reflected on the act or planned ahead.People v. Cole, \n95 P.3d 811 (2004), accessed February 13, \n2011, http://scholar.google.com/scholar_case?case=18037950298665209340&q= \ndefinition+of+deliberate+premeditated+murder&hl=en&as_sdt=2,5. In other \nwords, if the defendant specifically intends to kill the victim and rationally, \npurposefully, takes steps that culminate in the victim's death, the defendant has \ncommitted first-degree premeditated murder in many jurisdictions. \nOften it is the act itself that proves the killing was willful, deliberate, and \npremeditated. If the killing is carried out in a manner that indicates a strong and \ncalculated desire to bring about the victim's death, the trier of fact can and often \ndoes conclude that the murder was premeditated.State v. Snowden, 313 P.2d 706 \n(1957), accessed September 19, \n2010, http://scholar.google.com/scholar_case?case=16193283019378884065&hl=e \nn&as_sdt=2&as_vis=1&oi=scholarr. \nMost jurisdictions agree that an extended period of time is not a requirement of \npremeditation.Commonwealth v. Carroll, 412 Pa. 525 (1963), accessed February 18, \n2010, http://scholar.google.com/scholar_case?case=13694151174720667465&hl=en \n&as_sdt=2&as_vis=1&oi=scholarr. Thus a murder can be premeditated and first \ndegree even if it is conceived only moments before the actual killing.State v. \nSchrader, 302 SE 2d 70 (1982), accessed September 19, 2010, http://scholar.google.com/scholar_case?case=287453315188864266&hl=en& \nas_sdt=2&as_vis=1&oi=scholarr. Some jurisdictions do not require any appreciable \ntime lapse between the formation of intent and the criminal act.State v. Snowden, \n313 P.2d 706 (1957), accessed September 19, \n2010, http://scholar.google.com/scholar_case?case=16193283019378884065&hl=e \nn&as_sdt=2&as_vis=1&oi=scholarr. \nExample of a Willful, Deliberate, Premeditated Murder \nImagine that Joannie and her husband Tim are in a terrible fight in the kitchen. Tim \ntells Joannie that he is going to get a divorce and will thereafter seek full custody of \ntheir two young children. Joannie states, \"Wait here. I need to go to the bathroom. I \nwill be right back.\" She walks down the hall, but goes into the bedroom, rather than \nthe bathroom, and removes a handgun from the nightstand drawer. She then walks \nto the bathroom and flushes the toilet. Hiding the handgun in the pocket of her \nbathrobe, she walks back into the kitchen, removes it, and shoots Tim four times in \nthe abdomen, killing him. \nIn this scenario, Joannie probably could be convicted of premeditated murder in \nmost jurisdictions. Joannie shoots and kills Tim in a calm, methodical manner, \nevidencing deliberation. Her manufactured excuse and flushing of the toilet \nindicate planning. The act of shooting Tim four times shows that Joannie has a \nspecific intent to kill and a strong and calculated desire to bring about Tim's \ndeath. Note that timing is not an issue here. Even a few minutes are enough to \ncarry out a premeditated murder if the proper facts are present. \nExample of a Spontaneous Killing \nCompare the previous example with this scenario. Frank, Dillon's supervisor, calls \nDillon into his office and fires him. Enraged, Dillon grabs a heavy brass paperweight \nfrom the top of Frank's desk and strikes him in the forehead, killing him instantly. In \nthis example, Dillon acts in anger, not calm, cool, reflection. The act of grabbing a \nheavy brass paperweight appears impulsive, not planned. There is no evidence to indicate that Dillon knew he would be fired or knew that there was a brass \npaperweight on Frank's desk. In addition, the single blow to the head does not \nnecessarily indicate that Dillon had a strong and calculated desire to kill Frank. \nDillon's conduct may be supported by murder intent (most likely implied malice, \nknowingly, or recklessly under circumstances manifesting extreme indifference to \nthe value of human life), but there is no evidence of specific intent to kill, \ndeliberation, or premeditation. Thus Frank's killing would probably not be \nfirstdegree premeditated murder in most jurisdictions. \nMurder by a Specified Means \nMurder by a specified means is a specific method of killing that is extremely \nheinous. Most states list the specified means in their first-degree murder statutes. \nSome examples of commonly included specified means are murder by drive-by \nshooting, destructive device like a bomb, weapon of mass destruction, ammunition \ndesigned to puncture a bulletproof vest, poison, torture, or lying in wait, which is an \nambush-style killing.Cal. Penal Code \u00a7 189, accessed February 18, 2010, \nhttp://law.onecle.com/california/penal/189.html. Note that all the aforementioned \nmethods 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 First-Degree Murder Grading \nMost states divide murder into first and second degree.N.R.S. \u00a7 200.030, accessed \nFebruary 13, \n2011, http://law.onecle.com/nevada/crimes/200.030.html. Some states add a third \ndegree of murder that generally includes less serious sentencing options.Pa. Cons. \nStat. Ann. \u00a7 2502, accessed February 14, \n2010, http://wings.buffalo.edu/law/bclc/web/pa2501.html. The Model Penal Code \nclassifies all murders as felonies of the first degree (Model Penal Code \u00a7 210.2(2)). \nFirst-degree murder is the highest classification of murder and results in the most \nextreme punishment available in a jurisdiction's punishment scheme. If the \njurisdiction allows for the death penalty, first-degree murder typically is the only \ncrime against an individual that qualifies the defendant for execution.N.R.S. \n\u00a7 200.030(4) (a), accessed February 13, \n2011, http://law.onecle.com/nevada/crimes/200.030.html. If the jurisdiction does \nnot allow for the death penalty, first-degree murder often qualifies the defendant for \nlife in prison.Mich. Comp. Laws \u00a7 750.316, accessed February 13, \n2011, http://law.onecle.com/michigan/750-michigan-penal-code/mcl-750-316.html. \nCapital Punishment \nThe US Supreme Court has held that criminal homicide is the only crime against an \nindividual that can merit the death penalty.Kennedy v. Louisiana, 128 S. Ct. 2641 \n(2008), accessed September 21, 2010, \nhttp://www.law.cornell.edu/supct/html/07343.ZO.html. A discussion of crimes \nagainst the government (such as treason) that merit the death penalty is in Chapter \n13 \"Crimes against the Government\". \nIn states that allow capital punishment, first-degree murder with one or more \naggravating factor(s) is generally a capital offense. Examples of aggravating factors are killing more than one person, killing for financial gain, killing with a \nparticularly heinous method, or killing a peace officer.Death Penalty Information \nCenter, \"Aggravating Factors for Capital Punishment by State,\" accessed September \n23, 2010, http://www.deathpenaltyinfo.org/aggravating-factors-capitalpunishment-\nstate. In general, the trier of fact must ensure that the aggravating factor(s) are not \noutweighed by mitigating factor(s). Examples of mitigating factors are the youth of \nthe defendant, the defendant's lack of a criminal history, and the fact that the \ndefendant was acting under extreme emotional or mental disturbance.Death \nPenalty Information Center, \"Terry Lenamon's List of State Death Penalty Mitigation \nStatutes,\" accessed September 23, \n2010, http://www.jdsupra.com/post/documentViewer.aspx?fid=d61d8c7b-\n896b4c1a-bd87-f86425206b45. Figure 9.4 Diagram of Capital Punishment The Peterson Case \nA jury convicted Scott Peterson of first-degree premeditated murder for the killing of \nhis pregnant wife Laci Peterson. They also convicted him of second-degree murder \nfor the killing of his unborn son Conner.Charles Montaldo, \"Scott Peterson Guilty of \nfirst-degree murder,\" About.com website, accessed July 15, \n2010, http://crime.about.com/od/news/a/scott_peterson.htm. The governing \nstatute was California Penal Code \u00a7 189.Cal. Penal Code \u00a7 189, accessed July 15, \n2010, http://law.onecle.com/california/penal/189.html. After issuing the verdict, the \njury sentenced Peterson to death based on the special circumstance of killing more \nthan one person.Charles Montaldo, \"The Peterson Verdict: Special Circumstances,\" \nAbout.com website, accessed July 15, \n2010, http://crime.about.com/od/news/a/scott_verdict.htm. \nThe prosecution was successful without direct evidence or proof of the cause of \ndeath.Charles Montaldo, \"Scott Peterson Guilty of first-degree murder,\" About.com \nwebsite, accessed July 15, \n2010, http://crime.about.com/od/news/a/scott_peterson.htm. \nCongress was inspired by the Peterson case to pass the Unborn Victims of \nViolence Act, 18 U.S.C. \u00a7 1841,18 U.S.C. \u00a7 1841, accessed February 13, \n2010, http://crime.about.com/gi/o.htm?zi=1/XJ&zTi=1&sdn=crime&cdn=newsissu \nes&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. \ncreating the new federal crime of killing an unborn child. \nKEY TAKEAWAYS \n\u2022 Most states and the federal government include premeditated murder, murder by a \n specified means, and felony murder in their first-degree murder statutes. \n\u2022 \nPremeditated murder is typically a purposeful killing committed after calm planning and \nreflection. An extensive length of time between the formation of criminal intent and the \ncriminal act is not generally a requirement of premeditated murder. \u2022 \nThe criminal act can help prove that a murder was premeditated. If the killing is carried out \nin a manner that indicates a strong and calculated desire to bring about the victim's death, \nthe trier of fact can conclude that the murder was premeditated. \n\u2022 When the defendant commits murder with a particularly heinous method, the killing is \nmurder by a specified means. \n\u2022 \nFirst-degree murder statutes often include the following specified means: murder by drive-\nby shooting, destructive device like a bomb, weapon of mass destruction, ammunition \ndesigned to puncture a bulletproof vest, poison, torture, or lying in wait. \n\u2022 \nFirst-degree murder is the highest classification of murder with the most severe sentencing \noptions. If the jurisdiction allows for capital punishment, first-degree murder typically is the \nonly crime against an individual that merits the death penalty. If the jurisdiction does not \nallow for capital punishment, first-degree murder often qualifies the defendant for life in \nprison. \n\u2022 \nThe only crime against an individual that can merit capital punishment is criminal homicide. \nIn most jurisdictions, the defendant must commit first-degree murder combined with one or \nmore aggravating factors that are not outweighed by mitigating factors to receive the death \npenalty. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the end \nof the chapter. \n1. Johnnie decides he wants to kill Marcus, the leader of a rival gang. Johnnie knows that \nMarcus always hangs out in front of the gas station on Friday nights. Johnnie puts his gun in \nthe glove compartment of his car and drives to the gas station on a Friday night. He sees \nMarcus standing out front. He slowly drives by, takes aim, and shoots Marcus from the car, \nkilling him. Could this be first-degree murder? Explain your answer. \n2. Read State v. West, 844 S.W.2d 144 (1992). Did the Supreme Court of Tennessee hold that a \ndefendant's failure to report a shooting to the police for over an hour and concealment of \nthe murder weapon constitutes sufficient evidence to prove premeditated murder? The case \nis available at this link: http://scholar.google.com/scholar_case?case=3481778471457660977&hl=en&as_sdt=2 \n002&as_vis=1. \n3. Read U.S. v. Downs, 56 F.3d 973 (1995). Identify motive, planning, and preconceived design \nin this case. \n9.4 Felony Murder \nLEARNING OBJECTIVES \n1. Define the criminal intent element required for felony murder. \n2. Compare the criminal intent element of felony murder to implied malice, knowingly, or \nrecklessly under circumstances manifesting extreme indifference to human life. \n3. Explain the rule of co-felon liability for felony murder. \n4. Explain an exception to the rule of co-felon liability for felony murder. \n5. Analyze criminal responsibility for felony murder when someone other than a co-felon kills \nthe victim. \n6. Analyze criminal responsibility for felony murder when someone other than a co-felon kills a \nco-felon. \n7. Describe concurrence of the felony and the homicide for felony murder. \n8. Analyze felony murder grading and ascertain the felonies that typically classify felony murder \nas first degree. \nFelony murder is a criminal homicide that occurs during the commission or attempted \ncommission of a felony. Most states and the federal government include felony murder in their \npenal codes.18 U.S.C. \u00a7 1111, accessed February 4, \n2011, http://codes.lp.findlaw.com/uscode/18/I/51/1111. However, it has not been universally \nadopted. The Model Penal Code does not include felony murder per se. It does suggest a \nrebuttable presumption that killings that occur during the commission of specified dangerous \nfelonies exhibit recklessness under circumstances manifesting extreme indifference to the value \nof human life (Model Penal Code \u00a7 210.2(1)(b)). \nFelony Murder Intent \nWhat distinguishes felony murder from murder is the absence of the typical murder intent. The criminal intent element required for felony murder is the \nintent required for a felony that causes a victim's death. \nExplanation of Felony Murder Intent \nWhen the defendant commits a felony that is inherently dangerous to life, he or she \ndoes so knowing that some innocent victim may die. In essence, this awareness is \nsimilar to implied malice, knowingly, or recklessly under circumstances manifesting \nextreme 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 \nmost jurisdictions limit the felony murder doctrine to felonies that create a \nforeseeable risk of violence or death. States that include nonviolent felonies in their \nfelony murder statutes generally grade them as second- or third-degree felony \nmurder.Fla. Stat. Ann. \u00a7 782.04[4], accessed February 18, \n2010, http://law.onecle.com/florida/crimes/782.04.html. \nExample of Felony Murder Intent \nJoaquin, who has just lost his job, decides to burn down his apartment building \nbecause he can't afford to pay the rent. Joaquin carefully soaks his apartment with \nlighter fluid, exits into the hallway, and throws a lit, lighter-fluid-soaked towel into \nthe apartment. He then runs outside to watch the entire building burn down. Several \ntenants die of smoke inhalation because of the fire. In jurisdictions that recognize \nfelony murder, Joaquin can probably be charged with and convicted of murder for \nevery one of these deaths. \nIn this example, Joaquin did not intend to kill the tenants. However, he did most \nlikely have the criminal intent necessary for arson. Therefore, felony murder \nconvictions are appropriate. Note that Joaquin exhibited extreme indifference to \nwhether the tenants in the building lived or died, which could also constitute the \ncriminal intent of implied malice or depraved heart. Liability of Co-Felons for Felony Murder \nIt is common for more than one defendant to cooperate in the commission of a \nfelony. Group participation in criminal conduct could constitute more than one \ncrime\u2014for example, conspiracy\u2014and could also place criminal responsibility \nsquarely on a defendant who did not commit the criminal act. The general rule for \nfelony murder in many jurisdictions is that if one defendant kills a victim during the \ncommission or attempted commission of a specified felony, all defendants involved \nin the felony are guilty of felony murder.State v. Hoang, 755 P.2d 7 (1988), accessed \nFebruary 13, \n2011, http://scholar.google.com/scholar_case?case=2216953450979337225&q= \nheart+attack+during+robbery+%22co+felon%22&hl=en&as_sdt=2,5. \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 \nrobber and is supposed to enter the bank and hand a note to the teller demanding all \nthe money in her station. Jane's role in the felony is to drive the getaway vehicle to \nthe bank, wait outside the front door with the motor running, and transport Joe and \nthe money back to their apartment after the bank transaction is completed. Joe takes \na handgun hidden beneath his jacket into the bank. He passes the note to the teller, \nand she frantically summons a security guard. As the security guard starts to \napproach, Joe pulls out the gun. An elderly lady standing to the left of Joe suffers a \nheart attack and dies at the sight of the gun. In this case, Joe and Jane can probably \nbe convicted of felony murder. Note that Jane did nothing to directly cause the \nvictim's death from a heart attack. However, Jane did drive the getaway vehicle with \nthe criminal intent to commit robbery, so Jane is criminally responsible for the \nconsequences in many jurisdictions. \nException to Co-Felon Liability for Felony Murder \nSome jurisdictions provide an exception to co-felon liability for felony murder if \nthe defendant did not actually commit the act that killed the victim and had neither knowledge nor awareness that a death might occur.N.Y. Penal Law \u00a7 125.25 (3), \naccessed February 18, 2010, \nhttp://law.onecle.com/newyork/penal/PEN0125.25_125.25.html. \nExample of the Exception to Co-Felon Liability for Felony Murder \nReview the example with Joe and Jane in Section 9 \"Example of Co-Felon Liability \nfor Felony Murder\". Change this example so that Jane is a teller at the local bank. Joe \nand Jane plan the \"robbery\" so that Jane is to pretend Joe is a customer, and hand \nJoe all the money in her station after he enters the bank unarmed and passes her a \nphony check made out to \"cash.\" Without informing Jane, Joe brings a gun into the \nbank, \"just in case.\" The security guard observes Jane handing Joe large amounts of \ncash. Suspicious, he begins to approach the station. Joe notices and frantically pulls \nout the gun and points it at the security guard. The elderly lady standing to the left of \nJoe suffers a heart attack and dies at the sight of the gun. In this example, Jane may \nhave a valid defense to co-felon liability for the elderly lady's death in some \njurisdictions. Although Jane had the intent to commit theft, a trier of fact could \ndetermine that Jane had neither the knowledge nor awareness that a death might \noccur because she believed she was cooperating in a nonviolent offense. Thus it is \npossible that in certain jurisdictions only Joe is subject to a conviction of felony \nmurder in this case. \nLiability When Someone Other than the Defendant Kills the Victim \nGenerally, if the felony is inherently dangerous to life, and the defendant or \ndefendants intentionally create a situation that is likely to result in death, if death \ndoes result, each and every defendant is guilty of felony murder. In some \njurisdictions, this criminal liability exists even when someone other than a cofelon \nkills the victim.People v. Hernandez, 82 N.Y.2d 309 (1993), accessed February 18, \n2010, http://scholar.google.com/scholar_case?case=3094702040122584711&q= \nPeople+v.+Hernandez+82+N.Y.2d+309&hl=en&as_sdt=2,5. Review the bank \nrobbery committed by Joe and Jane, as discussed in Section 9 \"Example of Co- Felon Liability for Felony Murder\". If the security guard takes a shot at Joe but \nmisses and kills the bank teller instead, both Joe and Jane are guilty of the bank \nteller's death pursuant to this interpretation of the felony-murder doctrine. \nSome jurisdictions relieve a defendant from criminal liability for felony murder if the \ndeath is the death of a co-felon, rather than a completely innocent victim.State v. \nCanola, 73 N.J. 206 (1977), accessed February 18, \n2010, http://www.audiocasefiles.com/acf_cases/8722-state-v-canola. In the case of \nJoe and Jane discussed in Section 9 \"Example of Co-Felon Liability for Felony \nMurder\", if the security guard shoots and kills Joe in a jurisdiction that recognizes \nthis exception, Jane is not guilty of felony murder. \nConcurrence of the Felony and the Death of the Victim \nAnother important aspect that must be analyzed in any felony murder case is the \nconcurrence of the felony and the death of the victim. The felony and the death \nmust be part and parcel of the same continuous transaction. Therefore, there must be \na determination of (1) when the felony begins and (2) when the felony ends. If the \ndeath occurs before or after the commission or attempted commission of the felony, \nthe defendant might not be guilty of felony murder. \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 \nare placebo. After the killing, it occurs to Carlos that the drug dealer might be \ncarrying significant amounts of cash. Carlos thereafter steals some cash from the \ndrug dealer's pockets and runs off. Although this killing is probably murder, it is not \nfelony murder. Carlos stole money from his drug dealer, but the theft occurred \nafter the murder. Thus the killing did not happen during a robbery. If \npremeditation is proven, this could still be first-degree murder, but it is not \nfirstdegree felony murder. Death That Occurs after the Felony Ends \nMore commonly, the issue is whether the killing occurs after the felony ends. The \ngeneral rule is that the felony ends when the defendant has reached a place of \ntemporary safety.People v. Young, 105 P.2d 487 (2005), accessed February 18, \n2010, http://scholar.google.com/scholar_case?case=5918096649976465300&q= \nfelony+murder+%22temporary+safety%22&hl=en&as_sdt=2,5. This place does not \nhave to be the defendant's residence; it could simply be a hiding place. Pursuant to \nthis rule, a death that occurs during a car chase as the defendants flee the scene of \nthe crime is considered felony murder.Del. Code Ann. Tit. 11 \u00a7 636 (a) (2), accessed \nFebruary 18, 2010, http://law.justia.com/delaware/codes/title11/c005sc02.html. \nFigure 9.5 Diagram of Felony Murder Felony Murder Grading \nFelony murder can be first, second, or third degree.Fla. Stat. Ann. \u00a7 782.04, \naccessed February 18, \n2010, http://law.onecle.com/florida/crimes/782.04.html. Some common examples \nof felonies listed in first-degree murder statutes are arson, rape, carjacking, robbery, \nburglary, kidnapping, and certain forcible sexual felonies.Cal. Penal Code \u00a7 189, \naccessed February 18, 2010, http://law.onecle.com/california/penal/189.html. \nKEY TAKEAWAYS \n\u2022 The criminal intent element required for felony murder is the intent required for the \n underlying felony, not murder intent. \n\u2022 \nIf a felony is inherently dangerous to life, the defendant may act with implied malice, \nknowingly, or recklessly manifesting extreme indifference to human life when committing or \nattempting to commit the felony. \n\u2022 \nIf more than one defendant commits or attempts to commit a felony, all defendants are \nguilty of felony murder if a victim is killed during the commission or attempted commission \nof the felony. \n\u2022 Some jurisdictions will not find a co-felon criminally responsible for felony murder if the co- \nfelon did not commit the act of killing and was unaware that there was a risk of death. \n\u2022 \nIn some jurisdictions, all co-felons are criminally responsible for felony murder when \nsomeone other than a co-felon kills a victim during the commission or attempted \ncommission of a felony that is inherently dangerous to life. \n\u2022 \nIn some jurisdictions, all co-felons are not criminally responsible for felony murder when \nsomeone other than a co-felon kills a co-felon during the commission or attempted \ncommission of a felony. \n\u2022 The killing must take place during the commission or attempted commission of a felony for \nthe felony murder rule to apply. \n\u2022 \nFelony murder can be first, second, or third degree. Typical felonies that classify felony \nmurder as first degree are arson, rape, carjacking, robbery, burglary, kidnapping, and certain \nforcible sexual felonies. EXERCISES \nAnswer the following questions. Check your answers using the answer key at the end \nof the chapter. \n1. Read People v. Anderson, 666 N.W.2d 696 (2003). Did the Minnesota Supreme Court uphold \na charge of second-degree felony murder when the underlying felonies were possession of a \nfirearm by a convicted felon and possession of a stolen firearm? The case is available at this \nlink: http://www.lexisone.com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&format= \nFULL&sourceID=bdjhdg&searchTerm= ejhU.Iaea.aadj.ebKG&searchFlag=y&l1loc=FCLOW. \n2. Kurt robs a convenience store at gunpoint. As the cashier hands him money out of the cash \nregister, Kurt hears a siren and runs outside, stuffing the money in his pockets. He sees a dark \nalley and dashes into it. While he crouches there waiting for the police to leave, a homeless \nperson living in the alley taps him on the shoulder. Startled, Kurt spins around and \nshoots and kills the homeless person. Is this felony murder? Explain your answer. \n3. Read Enmund v. Florida, 458 U.S. 782 (1982). In Enmund, the US Supreme Court held that the \ndeath penalty is unconstitutional in a felony murder case for one who neither took life, \nattempted to take life, nor intended to take life. On which part of the Constitution did the \nCourt rely in reaching this holding? \n9.5 Second-Degree Murder \nLEARNING OBJECTIVES \n1. Compare statutory definitions of second-degree murder. \n2. Ascertain two types of murder that are typically second degree. \n3. Analyze second-degree murder grading. \nStates that classify murder as either first or second degree often define second-degree murder as \nany murder that is not first-degree murder.Mich. Comp. Laws \u00a7 750.317, accessed February 24, \n2010, \nhttp://www.legislature.mi.gov/(S(gjc5ys55et3ukfj0uq5uehqm))/mileg.aspx?page=GetObje \nct&objectname=mcl-750-317. This definition excludes murders that are premeditated or committed with a specified means. It includes implied malice murder, such as murder \ncommitted with the intent to inflict serious bodily injury and depraved heart murder. \nDepraved Heart Murder \nSome statutes use the Model Penal Code's language and define second-degree \nmurder as a killing executed recklessly, under circumstances manifesting extreme \nindifference to the value of human life.K.S.A. \u00a7 21-3402, accessed September 21, \n2010, http://kansasstatutes.lesterama.org/Chapter_21/Article_34/21- \n3402.html. This definition embodies the concept, discussed previously, of murders \ncommitted with a depraved or abandoned and malignant heart. The facts that give \nrise to this type of second-degree murder often indicate the mens rea of recklessness, \nrather than purposeful or knowing intent or express malice. Whether the killing is a \nsecond-degree murder or manslaughter is left to the trier of fact and often rests on \nthe degree of recklessness exhibited. If the defendant's conduct \nindicates extreme indifference to life, the killing is a depraved heart murder. If the \ndefendant's conduct is simply reckless, the killing is manslaughter. As the Model \nPenal Code states in its comments, \"[w]hether recklessness is so extreme that it \ndemonstrates similar indifference is not a question, it is submitted, that can be \nfurther clarified. It must be left directly to the trier of fact under instructions which \nmake it clear that recklessness that can fairly be assimilated to purpose or knowledge \nshould be treated as murder and that less extreme recklessness should be punished \nas manslaughter\" (A.L.I., Model Penal Code & Commentaries Part II \u00a7 210.2, \nComment. 4, pp. 21\u201322 (1980)). \nExample of a Depraved Heart Murder \nAfter watching his fifth-grade daughter play softball, Doug attends a party with her \nteam and other parents at the local pizza parlor. Doug's daughter leaves the party \nwith her mother, Doug's ex-wife. Doug consumes ten beers and then leaves the party \nand smokes some crack cocaine in his vehicle. He thereafter begins driving home. As \nhe is driving in a busy section of town, he hears his phone beep, indicating the receipt of a text message. He grabs his phone and starts reading the text. This lapse \nof attention causes him to run a red light and broadside a vehicle turning left in front \nof him, killing a child sitting in the passenger seat. Doug puts his vehicle in reverse, \ndrives around the car he hit, and leaves the scene of the accident. These facts could \ngive rise to a conviction for depraved heart second-degree murder. Although Doug \ndid not act with specific intent to kill, his conduct in driving while under the \ninfluence of alcohol and crack cocaine, reading a text message while driving impaired \nin a busy part of town, and leaving the scene of an accident most likely elevate Doug's \nintent from ordinary recklessness to recklessness indicating extreme indifference to \nthe value of human life. Thus the trier of fact could find Doug guilty of murder rather \nthan manslaughter in this case. \nFigure 9.6 Diagram of Second-Degree Murder Second-Degree Murder Grading \nMost jurisdictions grade second-degree murder lower than first-degree murder and \ninclude less serious sentencing options.N.R.S. \u00a7 200.030, accessed February 13, \n2011, http://law.onecle.com/nevada/crimes/200.030.html. Most jurisdictions grade \nsecond-degree murder higher than manslaughter because it has a more heinous \ncriminal intent.N.R.S. \u00a7 200.080, accessed February 13, \n2011, http://law.onecle.com/nevada/crimes/200.080.html. Manslaughter is \ndiscussed shortly. \nKEY TAKEAWAYS \n\u2022 Second-degree murder is often defined as any murder that is not first-degree murder. \nSecond-degree murder can also be defined as murder committed recklessly, under \n circumstances evidencing extreme indifference to life. \n\u2022 Second-degree murder includes implied malice murder, such as murder with the intent to \ncause serious bodily injury, and depraved heart murders. \n\u2022 Second-degree murder is graded lower than first-degree murder but higher than \nmanslaughter. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the end \nof the chapter. \n1. Reread the second question of the exercises in Section 9.4 \"Felony Murder\". When Kurt \nshoots the homeless person in the alley, is this killing first or second-degree murder? Explain \nyour answer. \n2. Read Berry v. Superior Court, 208 Cal. App. 3d 783 (1989). In Berry, the defendant was charged \nwith second-degree murder when his pit bull attacked and killed a young child. The pit bull \nhad never bitten anyone before this incident. Did the California Court of Appeal uphold the \ndefendant's murder charge on a theory of implied malice? The case is available at this link: \nhttp://lawschool.courtroomview.com/acf_cases/9986-berry-v-superior-court. \n3. Read Dowda v. State, 776 So.2d 714 (2000). Why did the Mississippi Court of Appeals hold \nthat this killing was a depraved heart murder? \n9.6 Manslaughter LEARNING OBJECTIVES \n1. Compare murder and manslaughter. \n2. Define voluntary manslaughter. \n3. Ascertain the basis of an adequate provocation. \n4. Explain the concurrence of a voluntary manslaughter killing and the heat of passion. \n5. Compare voluntary and involuntary manslaughter. \n6. Describe the three types of involuntary manslaughter. \n7. Analyze manslaughter grading. \nWhat distinguishes murder from manslaughter is the criminal intent element. Manslaughter \nis an unlawful killing without malice or murder intent.N.R.S. \u00a7 200.040, accessed February 13, \n2011, http://law.onecle.com/nevada/crimes/200.040.html. The criminal act, causation, and \nharm elements of manslaughter and murder are fundamentally the same. Thus criminal intent is \nthe only manslaughter offense element that is discussed in this section. \nVoluntary Manslaughter \nManslaughter has two basic classifications: voluntary and involuntary. Voluntary \nmanslaughter has the same criminal intent element as murder. In fact, a voluntary \nmanslaughter killing is typically supported by express malice, specific intent to kill, \nor purposely. However, in a voluntary manslaughter, an emotional state called a heat \nof passion negates the murder intent. An adequate provocation from the victim \ninspires the heat of passion.Tenn. Code Ann. \u00a7 39-13-211, accessed \nFebruary 24, 2010, http://www.lexisnexis.com/hottopics/tncode. The Model Penal \nCode does not require adequate provocation from the victim per se, but it does have \na similar provision that reduces murder to manslaughter when there is a reasonable \nexplanation or excuse (Model Penal Code \u00a7 210.3(1)(b)). \nThe adequacy requirement is essential to any voluntary manslaughter analysis. \nMany defendants are provoked and thereafter kill with murder intent. Nonetheless, \nmost provocations are not adequate to drop the crime from murder to \nmanslaughter. The victim's provocation must be serious enough to goad a reasonable person into killing.People v. Steele, 47 P.2d 225 (2002), accessed \nFebruary 13, \n2011, http://scholar.google.com/scholar_case?case=18208208560981664037&q= \nvoluntary+manslaughter+reasonable+person+adequate+provocation&hl=en&as_sd \nt=2,5. A reasonable person is a fictional and objective standard created by the trier of \nfact. Of course, the defendant must actually be provoked, which is a subjective \nstandard.People v. Steele, 47 P.2d 225 (2002), accessed February 13, \n2011, http://scholar.google.com/scholar_case?case=18208208560981664037&q= \nvoluntary+manslaughter+reasonable+person+adequate+provocation&hl=en&as_sd \nt=2,5. \nExample of Inadequate Provocation \nRevisit the situation discussed in Section 9 \"Example of a Spontaneous Killing\", in \nwhich Dillon kills his supervisor Frank with a brass paperweight after Frank fires \nhim. Clearly, Frank's conduct provokes Dillon into killing Frank. However, getting \nfired would not provoke a reasonable person into a killing frenzy. In fact, reasonable \npeople are fired all the time and learn to live with it peacefully. Therefore, in this \nexample, Dillon's crime is most likely murder, not voluntary manslaughter. \nExample of Adequate Provocation \nA traditional example of provocation that is adequate to reduce a crime from murder \nto manslaughter is an observation by one spouse of another spouse in the act of \nadultery.Ohio v. Shane, 63 Ohio St.3d 630 (1992), accessed February 24, 2011, \nhttp://scholar.google.com/scholar_case?case=8752055493993855988&q= \nvoluntary+manslaughter+spouse+act+of+adultery&hl=en&as_sdt=2,5. For \nexample, Jos\u00e9 comes home from work early and catches his wife in bed with his best \nfriend. He becomes so enraged that he storms over to the dresser, grabs his handgun, \nand shoots and kills her. Clearly, Jos\u00e9 acts with intent to kill. However, the \nvictim provoked this intent with an act that could cause a reasonable person to kill. \nThus Jos\u00e9 has probably committed voluntary manslaughter in this case, not murder. Other Examples of Adequate Provocation \nOther examples of adequate provocation are when the homicide victim batters the \ndefendant and a killing that occurs during a mutual combat.Ohio v. Shane, 63 Ohio \nSt.3d 630 (1992), accessed February 24, \n2011, http://scholar.google.com/scholar_case?case=8752055493993855988&q= \nvoluntary+manslaughter+spouse+act+of+adultery&hl=en&as_sdt=2,5. Cases have \ngenerally held that words alone are not enough to constitute adequate \nprovocation.Girouard v. State, 583 A.2d 718 (1991), accessed February 24, 2011, \nhttp://www.audiocasefiles.com/acf_cases/8711-girouard-v-state. Thus in the \nadequate provocation example in Section 9 \"Example of Adequate Provocation\", if a \nfriend told Jos\u00e9 that his wife was committing adultery, and Jos\u00e9 responded by \nshooting and killing his wife, this would probably be murder, not voluntary \nmanslaughter. \nConcurrence of the Killing and the Heat of Passion \nThe second requirement of voluntary manslaughter is that the killing occur during a \nheat of passion. Defendants generally exhibit rage, shock, or fright when \nexperiencing a heat of passion. This emotional state negates the calm, deliberate, \nintent to kill that supports a charge of murder. However, heat of passion mental \nstates are typically brief in duration. Thus there cannot be a significant time lapse \nbetween the victim's provocation and the killing.State v. Cole, 338 S.C. 97 \n(2000), accessed March 1, \n2010, http://www.judicial.state.sc.us/opinions/htmlfiles/SC/25037.htm. Analyze \nthe adequate provocation example discussed in Section 9 \"Example of Adequate \nProvocation\". If Jos\u00e9 waits until the next day to shoot and kill his wife, the crime is \nmost likely premeditated first-degree murder, not voluntary manslaughter. \nFigure 9.7 Diagram of Voluntary Manslaughter Involuntary Manslaughter \nInvoluntary manslaughter is an unlawful killing that completely lacks murder intent. \nInvoluntary manslaughter is distinguishable from voluntary manslaughter, which \ngenerally includes a murder intent that has been negated. Involuntary manslaughter \ngenerally can be classified as misdemeanor manslaughter, reckless or negligent \ninvoluntary manslaughter, or vehicular manslaughter. \nMisdemeanor Manslaughter \nMisdemeanor manslaughter, also called unlawful act manslaughter, is a \ncriminal homicide that occurs during the commission or attempted commission of a \nmisdemeanor. The Model Penal Code completely rejects misdemeanor \nmanslaughter. There is a trend to follow the Model Penal Code's example and \nabolish misdemeanor manslaughter. Most states that prohibit misdemeanor \nmanslaughter only include misdemeanors that are inherently dangerous to life in \nthe criminal statute, excluding strict liability misdemeanors or malum prohibitum \ncrimes.K.S.A. \n\u00a7 21-3404 (b), accessed July 28, \n2010, http://kansasstatutes.lesterama.org/Chapter_21/Article_34/21-3404.html. A \nminority of states and the federal government include strict liability or malum \nprohibitum crimes in their misdemeanor manslaughter statutes.21 O.S. \u00a7 711(1), \naccessed July 28, \n2010, \nhttp://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=69314. In \neither jurisdiction, the defendant need only possess the criminal intent for the \nmisdemeanor to be guilty of the killing. \nExample of Misdemeanor Manslaughter \nRoberta points an unloaded gun at Jennifer to scare her into breaking up with \nRoberta's ex-boyfriend. This crime is called brandishing a weapon and is often classified as a misdemeanor. At the sight of the gun, Jennifer suffers a heart attack \nand dies. Roberta has most likely committed misdemeanor manslaughter in this \ncase. Brandishing a weapon is not always inherently dangerous to life. However, if \nJennifer has a heart attack and dies because of Roberta's commission of this \nmisdemeanor offense, Roberta still could be criminally responsible for \nmisdemeanor manslaughter in many jurisdictions. \nReckless or Negligent Involuntary Manslaughter \nStates and the federal government also \ncriminalize reckless or negligent involuntary manslaughter.Ala. Code \u00a7 13A-6-\n3(a) (1), accessed February 13, 2011, http://law.onecle.com/alabama/criminal-\ncode/13A6-3.html. Reckless or negligent involuntary manslaughter is a more \ncommon form of manslaughter than misdemeanor manslaughter. The Model Penal \nCode defines reckless homicide as manslaughter and a felony of the second degree \n(Model Penal Code \u00a7 210.3). The Model Penal Code defines negligent homicide as a \nfelony of the third degree (Model Penal Code \u00a7 210.4). \nReckless involuntary manslaughter is a killing supported by the criminal intent \nelement of recklessness. Recklessness means that the defendant is aware of a risk \nof death but acts anyway. Negligent involuntary manslaughter is a killing supported \nby the criminal intent element of negligence. Negligence means that the defendant \nshould be aware of a risk of death, but is not. This category includes many careless \nor accidental deaths, such as death caused by firearms or explosives, and a parent's \nfailure to provide medical treatment or necessities for his or her child. \nReckless and negligent criminal intent is discussed in detail in Chapter 4 \"The \nElements of a Crime\". \nAs stated in Section 9.5.1 \"Depraved Heart Murder\", reckless or negligent \ninvoluntary manslaughter is often similar to second-degree depraved heart murder. \nIf the prosecution charges the defendant with both crimes, the trier of fact \ndetermines which crime is appropriate based on the attendant circumstances. Example of Reckless or Negligent Involuntary Manslaughter \nSteven, an off-duty sheriff's deputy, brings his shotgun into the local rifle shop to be \nrepaired. Steven thinks that the shotgun is unloaded and hands it to the employee \nwith the safety off. Unfortunately, the gun is loaded and discharges, shooting and \nkilling the employee. In this case, Steven should know that at certain times the \nsafety on his shotgun must always be on because he is a registered gun owner and a \nsheriff's deputy who has been trained to handle guns. However, Steven is unaware of \nthe risk and believes that the gun is unloaded. If the employee dies, Steven could be \nconvicted of negligent involuntary manslaughter in jurisdictions that recognize this \ncrime. If Steven is in a jurisdiction that only recognizes reckless involuntary \nmanslaughter, the prosecution may have to prove a higher degree of awareness, \nsuch as Steven's knowledge that the shotgun was loaded. \nVehicular Manslaughter \nVehicular manslaughter is typically either the operation of a motor vehicle \nwith recklessness or negligence resulting in death or the operation of a motor \nvehicle under the influence of alcohol or drugs resulting in death.N.Y. Penal Law \n\u00a7 125.12, accessed March 5, \n2010, http://wings.buffalo.edu/law/bclc/web/NewYork/ny3%28a%29%281%29- \n.htm. Some states have specific vehicular manslaughter statutes.Cal. Penal Code \n\u00a7 191.5, accessed February 7, \n2011, http://law.onecle.com/california/penal/191.5.html. In states that do not, the \ndefendant could be prosecuted under a jurisdiction's misdemeanor or unlawful act \nmanslaughter statute if the defendant violates a vehicle code section. Vehicular \nmanslaughter can also be prosecuted under a jurisdiction's reckless or negligent \ninvoluntary manslaughter statute, depending on the circumstances. If the defendant \nuses 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 Manslaughter Grading \nVoluntary and involuntary manslaughter typically have a more lenient punishment \nscheme than murder because the criminal intent is less heinous.N.R.S. \u00a7 200.080, \naccessed February 13, \n2011, http://law.onecle.com/nevada/crimes/200.080.html. Often manslaughter \nfunctions as an imperfect defense to murder, based on the less serious sentencing \noptions. In general, voluntary manslaughter is graded higher than involuntary \nmanslaughter.N.R.S. \u00a7 200.090, accessed February 13, \n2011, http://law.onecle.com/nevada/crimes/200.090.html. Some states divide \nmanslaughter into degrees, rather than classifying it as voluntary and involuntary, \nwith first-degree manslaughter punished more severely than second-degree \nmanslaughter.N.Y. Penal Law \u00a7125.20, accessed February 24, \n2011, http://ypdcrime.com/penal.law/article125.htm#125.20. The Model Penal \nCode grades all manslaughter as a felony of the second degree (Model Penal Code \u00a7 \n210.3(2)) and grades negligent homicide as a felony of the third degree (Model \nPenal Code \u00a7 210.4(2)). \nFigure 9.9 Diagram of Homicide KEY TAKEAWAYS \n\u2022 Murder is a killing supported by the criminal intent of malice or purposely, knowingly, or \nrecklessly under circumstances manifesting extreme indifference to life. Manslaughter is a \nkilling supported by malice negated by a heat of passion, reckless, or negligent criminal \n intent. \n\u2022 Voluntary manslaughter is a killing that occurs during an adequately provoked heat of \npassion. \n\u2022 An adequate provocation is one sufficient to goad a reasonable person into killing and that \nactually provokes the defendant into killing. \n\u2022 \nA killing must occur during a heat of passion to be classified as voluntary manslaughter. If a \nkilling occurs before the heat of passion is provoked or after the heat of passion has cooled, \nit probably will be classified as murder. \n\u2022 \nVoluntary manslaughter is supported by murder intent that has been negated in an \nadequately provoked heat of passion. Involuntary manslaughter lacks murder intent \naltogether. \n\u2022 The three types of involuntary manslaughter are misdemeanor manslaughter, reckless or \nnegligent involuntary manslaughter, and vehicular manslaughter. \n\u2022 \nManslaughter is typically graded lower than murder. Voluntary manslaughter is typically \ngraded higher than involuntary manslaughter. The Model Penal Code grades all \nmanslaughters as felonies of the second degree and grades negligent homicide as a felony of \nthe third degree. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the end \nof the chapter. \n1. How does the Model Penal Code classify criminal homicides? \n2. Read Stevens v. State, 691 N.E.2d 412 (1997). Why did the Indiana Supreme Court affirm \nthe lower court's decision to refuse a jury instruction on voluntary manslaughter in this case? \nThe case is available at this link: http://scholar.google.com/scholar_case?case=1747625552972024733&q= \nstevens+v.+state+691+ne2d+412&hl=en&as_sdt=2002&as_vis=1. \n3. Read Tripp v. State, 374 A.2d 384 (1977). In this case, the defendant killed his ex-girlfriend, \nher mother, her niece, and her son. Did the Maryland Court of Appeals hold that the victim \nmust be the source of adequate provocation in a voluntary manslaughter case? The \ncase is available at this \nlink: \nhttp://scholar.google.com/scholar_case?case=17743318345966072534&hl=en&as_sdt= \n2002&as_vis=1. \n4. Read 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 \nuphold this charge? The case is available at this \nlink: \nhttp://scholar.google.com/scholar_case?case=11713950418773441100&hl=en&as_sdt= \n2&as_vis=1&oi=scholarr. \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 \ndoctor, and deliberately shot him in the head, killing him. During Roeder's trial for \nfirst-degree premeditated murder, the defense asked the court to allow a second \ncharge of voluntary manslaughter. The defense claimed that defendant Roeder was \nacting in defense of others in the attempt to save the lives of unborn children.\"Man \nTestifies he Killed Kansas Abortion Doctor,\" USA Today, accessed July 27, 2010, \nhttp://www.usatoday.com/news/nation/2010-01-28-tiller-murdertrial_N.htm. \n1. What are some of the consequences of allowing the charge of voluntary manslaughter in this \nsituation? \nCheck your answer using the answer key at the end of the chapter. \nScott Roeder Verdict Video \nScott Roeder Convicted of Murder Scott Roeder's murder verdict is shown in this video: \n(click to see video) \n9.7 End-of-Chapter Material \nSummary \nHomicide is the killing of one human being by another. Criminal homicide is either \nmurder or manslaughter. Some states and the federal government also criminalize \nthe killing of a fetus. Suicide is usually not criminal, although assisted suicide could \nbe. \nMany jurisdictions follow the common law and define murder as the killing of a \nvictim with malice aforethought. Malice can be either a specific intent to kill, which is \nexpress malice, or the intent to do serious bodily injury, or depraved heart, which is \nimplied malice. The Model Penal Code defines murder intent as purposely, \nknowingly, or recklessly under circumstances indicating extreme indifference to life. \nA killing by the transmission of AIDS can either be murder, if the transmission is \ndeliberate, or manslaughter, if the transmission is inadvertent. \nMost jurisdictions divide murder into degrees of seriousness. First-degree murder is \nthe most serious, can merit the death penalty in certain jurisdictions, and generally \nincludes premeditated murder, murder by a specified means, and serious felony \nmurders. Premeditated murder is typically a killing supported by specific intent to \nkill combined with cool reflection and planning. Murder by a specified means is \nkilling with a specific heinous method. Felony murder is a homicide that occurs \nduring the commission or attempted commission of a felony. Felony murder lacks \nmurder intent; the defendant need only possess the intent required for the felony. \nFelony murder can be graded as first, second, or third degree, depending on the \nfelony. 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. \nTypically, second-degree murder intent is the intent to inflict serious bodily injury or a depraved heart intent. Second-degree murder is usually graded lower than \nfirstdegree murder but higher than manslaughter. \nIn many jurisdictions, manslaughter is an unlawful killing without murder intent. \nMost jurisdictions divide manslaughter into voluntary and involuntary. The Model \nPenal Code classifies all manslaughters as felonies of the second degree. Voluntary \nmanslaughter is a killing that occurs during a heat of passion inspired by adequate \nprovocation from the victim, negating murder intent. Involuntary manslaughter can \nbe a killing that occurs during the commission or attempted commission of a \nmisdemeanor or a reckless or negligent killing, depending on the jurisdiction. \nInvoluntary manslaughter can also be vehicular manslaughter when the killing \noccurs while driving a vehicle recklessly, negligently, or under the influence of \nalcohol or drugs. The Model Penal Code classifies negligent killings as negligent \nhomicide and a felony of the third degree. \nYOU BE THE JUDGE \nRead the prompt and then decide whether you would affirm or reverse the lower \ncourt. Review the case and see how the judges or justices actually ruled. Check your \nanswers using the answer key at the end of the chapter. \n1. The defendant shot and killed his ex-girlfriend, who was pregnant. The defendant did not \nknow she was pregnant, nor was it obvious from her appearance. The lower court reversed a \njury verdict of second-degree murder of the fetus, and the prosecution appealed. Would \nyou affirm or reverse? People v. Taylor, 86 P.3d 881 (2004). The case is available at this \nlink: http://caselaw.lp.findlaw.com/data2/californiastatecases/s112443.pdf. \n2. The defendant held his wife and two small children hostage at gunpoint in a train \ncompartment for three days. The wife died of a bullet wound and one of the children died of \ndehydration. The defendant was convicted of first-degree murder for the child's death, based \non the specified means of \"starvation.\" The defendant appealed because there was no \nevidence of specific intent to kill the child. Would you affirm or reverse? State v. Evangelista, \n353 S.E.2d 375 (1987). The case is available at this link: http://scholar.google.com/scholar_case?case=587685537389879135&hl=en&as_sdt=2 \n&as_vis=1&oi=scholarr. \n3. The defendant was charged with felony murder for the death of his girlfriend's mother. The \nunderlying felony was cruelty to an elderly person. The defendant and his girlfriend had \nremoved the victim from an assisted living facility so that they could control her Social \nSecurity checks. Thereafter, they neglected to care for her and she died from this neglect. The \ndefendant claimed that he had no duty of care for his girlfriend's mother. The lower court \ndenied his motion for a new trial. Would you affirm or reverse? Wood v. State, 620 S.E.2d \n348 (2005). The case is available at this \nlink: http://www.lexisone.com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&format= \nFULL&sourceID=bdjgjj&searchTerm= eIgi.YXca.aadj.ecDa&searchFlag=y&l1loc=FCLOW. \n4. The defendant held the victim, his ex-wife, hostage in her home with a gun. When an oil \ntruck pulled into her driveway, she smirked at the defendant because she knew the \nconfrontation was over. The defendant shot and killed her and claimed that the smirk was \nadequate provocation. The court held that the defendant was not entitled to a jury \ninstruction on voluntary manslaughter. Would you affirm or reverse? State v. Warmke, \n879 A.2d 30 (2005). The case is available at this \nlink: http://scholar.google.com/scholar_case?case=7047276887490940793&q=State+v.+War \nmke,+879+A.2d+30+%282005%29.&hl =en&as_sdt=2,6&as_vis=1. \nCases of Interest \n\u2022 United States v. Watson, 501 A.2d 791 (1985), discusses premeditation in a short \n period of time: http://www.scribd.com/doc/10079243/United-States-v-Watson. \n\u2022 Calderon v. Prunty, 59 F.3d 1005 (1995), discusses lying in wait: \nhttp://openjurist.org/59/f3d/1005. \n\u2022 \nMullaney v. Wilbur, 421 U.S. 684 (1975), discusses the burden of proof for voluntary \nmanslaughter: http://supreme.justia.com/us/421/684/case.html. \nArticles of Interest \n \u2022 Assisted suicide: http://phoenixcriminallawnews.com/2011/04/lawrence-egbert-of- \nfinal-exit-network -acquitted-of-manslaughter.html \u2022 \nUtah bill that criminalizes miscarriage: \nhttp://www.parentdish.com/2010/03/04/could-a-reckless miscarriage-\nbe-murder-utah-bill-might-make-i \n\u2022 \nProsecution of Michael Jackson's doctor for involuntary manslaughter, \nhttp://www.cbsnews.com/stories/2011/01/25/eveningnews/main728 2905.shtml \n\u2022 \nHIV as a deadly weapon: http://www.johntfloyd.com/blog/2010/03/30/is-hiv-\nadeadly-weapon \nWebsites of Interest \n\u2022 Fetal homicide statutes: http://www.ncsl.org/default.aspx?tabid=14386 \n\u2022 Information about assisted suicide: http://www.assistedsuicide.org \n\u2022 State statutes on the criminal transmission of \nHIV: http://www.statehealthfacts.org/comparetable .jsp?ind=569&cat=11 \nStatistics of Interest \n\u2022 Crime, including \nhomicide: http://www.census.gov/compendia/statab/cats/law_enforcement_courts \n_prisons/crimes_and_crime_rates.html \nAnswers to Exercises \nFrom Section 9.1 \"Homicide\" \n1. The fundamental difference between homicide and suicide is the identity of \nthe victim. In a homicide, the victim is another human being. In a suicide, the victim \nis the perpetrator, which is one of the reasons that homicide is often criminal and \nsuicide is not. \n2. The US Supreme Court held that the right to assist a suicide is not a fundamental \nliberty interest protected by the due process clause in the Fourteenth Amendment. \nAnswers to Exercises \nFrom Section 9.2 \"Murder\" \n1. Jay has the criminal intent of depraved heart. Jay's conduct in shooting at a tree in a public place might cause someone's death, which indicates that Jay is indifferent to \nwhether he takes a life. This indifference is a form of implied malice, knowingly, or \nrecklessly manifesting extreme indifference to the value of human life. \n2. Yes, this is true. Because Jay used a revolver, the prosecutor has the benefit of the \ndeadly weapon doctrine in many jurisdictions, alleviating his burden of proving \ncriminal intent. \n3. The US Court of Appeals for the Eighth Circuit held that teeth can constitute a deadly \nweapon in any case, whether or not the defendant has contracted the HIV virus. The \ncourt thereafter affirmed the defendant's conviction for assault with a deadly weapon. \nAnswers to Exercises \nFrom Section 9.3 \"First-Degree Murder\" \n1. This killing could be first-degree premeditated murder or first-degree murder \nby a specified means. The facts indicate a willful, deliberate, premeditated killing. \nJohnnie evidences a specific intent to kill the leader of a rival gang. He indicates \nplanning by putting his gun in the glove compartment of his car and driving to the \ngas station on Friday night where he suspects Marcus will be present. He kills Marcus \nby shooting him in a manner calculated to cause death. In addition, first-degree \nmurder by a specified means frequently includes drive-by shooting as a method of \nkilling. \n2. The Tennessee Supreme Court held that the defendant's failure to make a \ntimely police report and concealment of the murder weapon did not prove \nthat the murder was premeditated. The Court stated the following: \nOne who has recently killed another person recklessly, passionately, or even \nnegligently may be extremely hesitant to reveal the details of the crime, and \nyet not be guilty of first-degree murder\u2026One who kills another in a passionate \nrage may dispose of the weapon when reason returns just as readily as the \ncool, dispassionate killer.State v. West, 844 S.W. 2d 144, 147 (1992), accessed \nJuly 30, \n2010, http://scholar.google.com/scholar_case?case=3481778471457660977& \nhl=en&as_sdt=2002&as_vis=1. \n3. The motive was to exact revenge. The defendant and victim had a relationship fraught with abuse, most of it based on the defendant's desire to control the victim. \nThe planning was as follows: the defendant selected the day of the killing with care, \nmade a copy of the key to his son's house, rented a minivan with tinted windows and \naltered 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, \ncalled his son's house to ensure his son had left, arrived early at his son's house, and \nprepared the interior for the killing. Preconceived design is shown by the \nfollowing actions: The defendant shot the victim several times with the shotgun he \nbrought to his son's house. He paused to reload and also to retrieve a handgun from \nthe snow in between shots. \nAnswers to Exercises \nFrom Section 9.4 \"Felony Murder\" \n1. The Minnesota Supreme Court reversed the court of appeal and held that felon in \npossession of a firearm and possession of a stolen firearm are not felonies inherently \ndangerous to life, so they cannot be predicate felonies for a felony murder conviction. \nThe Court stated the following: \"Applying the statute as previously interpreted by us \nto this record, we conclude that the predicate offenses of felon in possession of a \nfirearm and possession of a stolen firearm are not inherently dangerous. While \nthe use of a firearm can pose significant danger to human life, simple possession\u2014 \nstanding alone\u2014does not.\"People v. Anderson, 666 N.W. 2d 696, 700 (2003), \naccessed July 30, \n2010, http://www.lexisone.com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail \n&format= FULL&sourceID=bdjhdg&searchTerm=ejhU.Iaea.aadj.ebKG&searchFlag=y&l1loc=F \nCLOW. \n2. Kurt did not commit felony murder in this case because he had reached a place of \ntemporary safety, so the felony had ended. \n3. The US Supreme Court based its holding on the Eighth and Fourteenth \namendments. Primarily, the Court determined that the death penalty was cruel and \nunusual punishment under the circumstances. \nAnswers to Exercises \nFrom Section 9.5 \"Second-Degree Murder\" \n1. There is no evidence of premeditation, and Kurt did not kill the homeless person \nusing a specified means. This is not a first-degree felony murder (based on the felony \nof robbery) because the felony had ended when the killing occurred. Thus this is \nmost \nlikely second-degree murder. \n2. The California Court of Appeals upheld the defendant's second-degree murder charge \nand stated that it was up to the trier of fact to determine the probability of death and \nthe subjective mental state of the defendant. \n3. The Mississippi Court of Appeals held that putting a gun to someone's forehead and \npulling the trigger indicates depraved heart intent, even if the defendant believes the \ngun to be unloaded. \nAnswers to Exercises \nFrom Section 9.6 \"Manslaughter\" \n1. The Model Penal Code classifies criminal homicides as felonies of the first, second, \nand third degree, depending on the defendant's intent. Murder is supported by \npurposeful, knowing, or extremely reckless intent and is a felony of the first degree. \nManslaughter is supported by reckless intent, or is a murder that is committed \nunder \nthe influence of extreme mental or emotional disturbance for which there is a \nreasonable explanation or excuse, and is a felony of the second degree. Criminal homicide committed with negligent intent is a negligent homicide and is a felony of \nthe third degree. \n2. The Indiana Supreme Court held that a jury instruction on voluntary manslaughter \nwas inappropriate because a reasonable person would not be provoked by words \nalone. In this case, a ten-year-old boy threatened to expose sexual molestation by the \ndefendant, who was twenty years old. The Court held that this threat was not \nadequate provocation. \n3. The Maryland Court of Appeals held that the victim must be the source of the \nadequate provocation in a voluntary manslaughter case. Thus the defendant could \nnot claim voluntary manslaughter when he killed his ex-girlfriend's family members \nbecause he was provoked only by her. \n4. The defendant was charged with involuntary manslaughter because she treated her \ndaughter's meningitis with prayer, rather than obtaining medical care. The California \nSupreme Court upheld the involuntary manslaughter charge, in spite of the First \nAmendment free exercise clause and the Fourteenth Amendment due process \nclause. \nAnswer to Law and Ethics Question \n1. The first problem with extending the defense of voluntary manslaughter to the \ndeliberate killing of an abortion doctor is the fact that the abortion doctor is \nacting legally. Extending the defense in this manner opens the door to a voluntary \nmanslaughter charge for a defendant who (1) kills an individual authorized to \nexecute \nprisoners pursuant to the death penalty or (2) is a soldier who is going off to war. \nAnother problem with extending the defense to include Roeder's conduct is the lack \nof imminence. As discussed in Chapter 5 \"Criminal Defenses, Part 1\", defense of \nothers requires an imminent threat. No imminent threat was present when the \nabortion doctor was in church. Removing the imminence requirement allows \ndefendants to calmly and with deliberation kill victims and thereafter claim \nvoluntary \nmanslaughter\u2014the antithesis of heat of passion. Thus the judge presiding over Roeder's trial allowed the defense arguments but thereafter precluded the voluntary \nmanslaughter charge.\"Man Testifies he Killed Kansas Abortion Doctor,\" USA Today, \naccessed July 27, 2010, http://www.usatoday.com/news/nation/2010-01-28-tiller- \nmurder-trial_N.htm. \nAnswers to You Be the Judge \n1. The California Supreme Court reversed, holding that implied malice does not mean \nthat the defendant needs to be aware of the risk to a specific victim. \n2. The Supreme Court of North Carolina affirmed because there is no need to prove \nspecific intent to kill when a murder is by a specified means. \n3. The Supreme Court of Georgia affirmed because the defendant voluntarily and \nknowingly took the victim into his home and agreed to care for her, creating the duty \nto act. \n4. The Supreme Court of Maine affirmed because the defendant initiated the \nconfrontation. \nChapter 10Sex Offenses and Crimes Involving Force, \nFear, and Physical Restraint Source: Image courtesy of Tara Storm. \nAmong the evils that both the common law and later statutory prohibitions against \nkidnapping sought to address were the isolation of a victim from the protections of \nsociety and the law and the special fear and danger inherent in such isolation. \nState v. Salaman, cited in Section 10.4 \"Kidnapping and False Imprisonment\" \n10.1 Sex Offenses \nLEARNING OBJECTIVES \n1. Compare common-law rape and sodomy offenses with modern rape and sodomy offenses. \n2. Define the criminal act element required for rape. \n3. Define the attendant circumstance element required for rape. \n4. Ascertain the amount of resistance a victim must demonstrate to evidence lack of consent. \n5. Ascertain whether the victim's testimony must be corroborated to convict a defendant for \nrape. \n6. Define the criminal intent element required for rape. \n7. Analyze the relationship between the criminal intent element required for rape and the \nmistake of fact defense allowed for rape in some jurisdictions. \n8. Define the harm element required for rape. \n9. Identify the primary components of rape shield laws. \n10. Identify the most prevalent issues in acquaintance rape. \n11. Compare spousal rape with rape. \n12. Identify the elements of statutory rape, and compare statutory rape with rape. \n13. Compare sodomy, oral copulation, and incest with rape. \n14. Analyze sex offenses grading. \n15. Identify the primary components of sex offender registration statutes. \nIn this section, you learn the elements of rape and related sex offenses and examine defenses \nbased on consent. In upcoming sections, you analyze the elements of other crimes involving force, fear, and physical restraint, including assault, battery, domestic violence, stalking, and \nkidnapping. \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. \nAt early common law, rape was a capital offense. The elements of rape were forcible \nsexual intercourse, by a man, with a woman not the spouse of the perpetrator, \nconducted without consent, or with consent obtained by force or threat of \nforce.Donna Macnamara, \"History of Sexual Violence,\" Interactive theatre.org \nwebsite, accessed February 8, \n2011, http://www.interactivetheatre.org/resc/history.html. The rape prosecution \nrequired evidence of the defendant's use of force, extreme resistance by the victim, \nand evidence that corroborated the rape victim's testimony. The common law also \nrecognized the crime of sodomy. In general, sodomy was the penetration of the \nmale anus by a man. Sodomy was condemned and criminalized even with consent \nbecause of religious beliefs deeming it a crime against nature.\"Sex Offenses,\" \nLawbrain.com website, accessed February 8, \n2011, http://lawbrain.com/wiki/Sex_Offenses. \nIn the 1970s, many changes were made to rape statutes, updating the antiquated \ncommon-law approach and increasing the chances of conviction. The most \nprominent changes were eliminating the marital rape exemption and the \nrequirement of evidence to corroborate the rape victim's testimony, creating rape \nshield laws to protect the victim, and relaxing the necessity for the defendant's use \nof force or resistance by the victim.Matthew R. Lyon, \"No means No? Withdrawal of \nConsent During Intercourse and the Continuing Evolution of the Definition of \nRape,\" \nFindarticles.com website, accessed February 8, \n2011, \nhttp://findarticles.com/p/articles/mi_hb6700/is_1_95/ai_n29148498/pg_3/ \n?tag=content;col1. Many jurisdictions also changed the name of rape to sexual battery, sexual assault, or unlawful sexual conduct and combined sexual offenses \nlike rape, sodomy, and oral copulation into one statute. Although some states still \nhave statutes that provide the death penalty for rape, the US Supreme Court has \nheld that rape, even child rape, cannot be considered a capital offense without \nviolating the Eighth Amendment cruel and unusual punishment clause, rendering \nthese statutes unenforceable.Kennedy v. Louisiana, 128 S. Ct. 2641 (2008), \naccessed February 8, 2011, http://www.oyez.org/cases/2000-\n2009/2007/2007_07_343. \nSodomy law has likewise been updated to make sodomy a gender-neutral offense \nand preclude the criminalization of consensual sexual conduct between adults. The \nUS Supreme Court has definitively held that consensual sex between adults may be \nprotected by a right of privacy and cannot be criminalized without a sufficient \ngovernment interest.Lawrence v. Texas, 539 U.S. 558 (2003), accessed February 8, \n2011, http://www.oyez.org/cases/2000-2009/2002/2002_02_102. \nTable 10.1 Comparing Common Law Rape and Sodomy with Modern Statutes \nCrime Criminal Act Lack of Victim \nConsent? \nVictim Resistance? Other Differences \nCommon- \nlaw rape \nPenis-vagina \npenetration \nYes Yes, extreme resistance Corroborative evidence \nrequired; no spousal \nrape; capital crime \nModern \nrape \nSome states \ninclude any \nsexual \npenetration \nYes Not if force is used, or \nthreat of force that \nwould deter a \nreasonable person from \nresisting (See section \n10.1.2.2.2.) \nNo corroborative \nevidence required; \nspousal rape is a crime in \nsome jurisdictions; rape \nis not a capital crime. \nCommon- \nlaw \nsodomy \nMale penismale \nanus \npenetration \nNo. Even \nconsensual \nsodomy was \ncriminal. \nNo. Even consensual \nsodomy was criminal. Modern \nsodomy \nGender-neutral \npenis-anus \npenetration \nYes Same as modern rape, \nabove \nConsensual sodomy in \nprison or jail is still \ncriminal in some \njurisdictions. (See section \n10.1.7.) \nRape Elements \nIn modern times, rape is a crime that has the elements of criminal act, criminal \nintent, causation, and harm. Rape also has an attendant circumstance element, \nwhich is lack of consent by the victim. \nRape Act \nThe criminal act element required for rape in many states is sexual intercourse, \naccomplished by force or threat of force.Md. Code Ann. \u00a7 3-303, accessed February \n8, 2011, http://law.justia.com/maryland/codes/2005/gcr/3-303.html. Sexual \nintercourse is typically defined as penetration of a woman's vagina by a man's penis \nand can also be referred to as vaginal intercourse.Md. Code Ann. \u00a7 3-301(g), \naccessed \nFebruary 8, 2011, http://law.justia.com/maryland/codes/2005/gcr/3- \n301.html. Some jurisdictions include the penetration of the woman's vagina by other \nbody parts, like a finger, as sexual intercourse.K.S.A. \u00a7 21-3501(1), accessed \nFebruary 8, \n2011, http://law.justia.com/kansas/codes/2006/chapter21/statute_11553.html. The \nModel Penal Code defines the criminal act element required for rape as sexual \nintercourse that includes \"intercourse per os or per anum,\" meaning oral and anal \nintercourse (Model Penal Code \u00a7 213.0(2)). In most jurisdictions, a man or a woman \ncan commit rape.K.S.A. \u00a7 21-3502, accessed February 8, \n2011, http://law.justia.com/kansas/codes/2006/chapter21/statute_11554.html. \nAlthough it is common to include force or threat of force as an indispensible part \nof the rape criminal act, some modern statutes expand the crime of rape to include \nsituations where the defendant does not use force or threat, but the victim is extremely vulnerable, such as an intoxicated victim, an unconscious victim, or a \nvictim who is of tender years.K.S.A. \u00a7 21-3502, accessed February 8, \n2011, http://law.justia.com/kansas/codes/2006/chapter21/statute_11554.html. The \nModel Penal Code includes force, threat of force, and situations where the defendant \nhas impaired the victim's power to control conduct by administering intoxicants or \ndrugs without the victim's knowledge or sexual intercourse with an unconscious \nfemale or a female who is fewer than ten years old (Model Penal Code \u00a7 213.1(1)). \nOther statutes may criminalize unforced nonconsensual sexual intercourse or \nother forms of unforced nonconsensual sexual contact as less serious forms of rape \nwith reduced sentencing options.N.Y. Penal Law \u00a7 130.25(3), accessed February 10, \n2011, http://law.onecle.com/new-york/penal/PEN0130.25_130.25.html. \nExample of Rape Act \nAlex and Brad play video games while Brad's sister Brandy watches. Brad tells Alex \nhe is going to go the store and purchase some beer. While Brad is gone, Alex turns to \nBrandy, pulls a knife out of his pocket, and tells her to take off her pants and lie \ndown. Brandy tells Alex, \"No, I don't want to,\" but thereafter acquiesces, and Alex \nputs his penis into Brandy's vagina. Alex has probably committed the criminal act \nelement required for rape in most jurisdictions. Although Alex did not use physical \nforce to accomplish sexual intercourse, his threat of force by display of the knife is \nsufficient. If the situation is reversed, and Brandy pulls out the knife and orders Alex \nto put his penis in her vagina, many jurisdictions would also criminalize Brandy's \ncriminal act as rape. If Alex does not use force or a threat of force, but Brandy is only \nnine years old, some jurisdictions still criminalize Alex's act as rape, as would the \nModel Penal Code. \nRape Attendant Circumstance \nIn many jurisdictions, the attendant circumstance element required for rape is \nthe victim's lack of consent to the defendant's act.Md. Code Ann. \u00a7 3-304, accessed February 8, 2011, http://law.justia.com/maryland/codes/gcr/3-304.html. Thus \nvictim's consent could operate as a failure of proof or affirmative defense. \nProving Lack of Consent as an Attendant Circumstance \nProving lack of consent has two components. First, the victim must be legally \ncapable of giving consent. If the victim is under the age of consent or is mentally \nor intellectually impaired because of a permanent condition, intoxication, or \ndrugs, the prosecution does not have to prove lack of consent in many \njurisdictions.K.S.A. \u00a7 21-3502, accessed February 8, \n2011, http://law.justia.com/kansas/codes/2006/chapter21/statute_11554.html. Sex \nual intercourse with a victim under the age of consent is a separate crime, \nstatutory rape, which is discussed shortly. \nThe second component to proving lack of consent is separating true consent from \nconsent rendered involuntarily. Involuntary consent is present in two situations. \nFirst, if the victim consents to the defendant's act because of fraud or trickery\u2014for \nexample, when the victim is unaware of the nature of the act of sexual intercourse\u2014 \nthe consent is involuntary. A victim is generally unaware of the nature of the act of \nsexual intercourse when a doctor shams a medical procedure.Iowa v. Vander Esch, \n662 N.W. 2d 689 (2002), accessed February 10, \n2011, http://scholar.google.com/scholar_case?case=4906781834239023314&q= \nrape+%22fraud+in+the+inducement%22&hl=en&as_sdt=2,5&as_ylo=2002. This \nis called fraud in the factum. Fraud in the inducement, which is a fraudulent \nrepresentation as to the circumstances accompanying the sexual conduct, does not \nrender the consent involuntary in many jurisdictions. An example of fraud in the \ninducement is a defendant's false statement that the sexual intercourse will cure a \nmedical condition.Boro v. Superior Court, 163 Cal. App. 3d 1224 (1985), accessed \nFebruary 17, \n2011, http://scholar.google.com/scholar_case?case=8450241145233624189&q= \nBoro+v.+Superior+Court&hl=en&as_sdt=2,5. A more common example of involuntary consent is when the victim consents to \nthe defendant's act because of force or threat of force. The prosecution generally \nproves this type of consent is involuntary by introducing evidence of the victim's \nresistance. \nFigure 10.1 Diagram of Consent Proving Involuntary Consent by the Victim's Resistance \nUnder the common law, the victim had to manifest extreme resistance to indicate \nlack of consent. In modern times, the victim does not have to fight back or otherwise \nendanger his or her life if it would be futile to do so. In most jurisdictions, the victim \nonly needs to resist to the same extent as a reasonable person under similar \ncircumstances, which is an objective standard.Del. Code Ann. tit. II, \u00a7 761(j) (1), \naccessed February 9, \n2011, http://delcode.delaware.gov/title11/c005/sc02/index.shtml#761. \nThe use of force by the defendant could eliminate any requirement of victim \nresistance to prove lack of consent.N.Y. Penal Law \u00a7 130.05, accessed February 9, \n2011, http://law.onecle.com/new-york/penal/PEN0130.05_130.05.html. If the \ndefendant obtains consent using a threat of force, rather than force, the victim may \nnot have to resist if the victim experiences subjective fear of serious bodily injury, \nand a reasonable person under similar circumstances would not resist, which is an \nobjective standard.Minn. Stat. Ann. \u00a7 609.343(c), accessed February 10, 2011, \nhttps://www.revisor.mn.gov/statutes/?id=609.343. Threat of force can be \naccomplished by words, weapons, or gestures. It can also be present when there is a \ndiscrepancy in size or age between the defendant and the victim or if the sexual \nencounter takes place in an isolated location. The Model Penal Code considers it a \nfelony of the third degree and gross sexual imposition when a male has sexual \nintercourse with a female not his wife by compelling \"her to submit by any threat \nthat would prevent resistance by a woman of ordinary resolution\" (Model Penal \nCode \u00a7 213.1(2)(a)). Note that the Model Penal Code's position does not require the \nthreat to be a threat of force; it can be any type of threat that prevents physical \nresistance. \nIf the victim does not physically resist the criminal act, the prosecution must prove \nthat the victim affirmatively indicated lack of consent in some other manner. This could be a verbal response, such as saying, \"No,\" but the verbal response must be \nunequivocal. In the most extreme case, at least one court has held that a verbal \n\"No\" during the act of sexual intercourse is sufficient, and the defendant \nwho continues with sexual intercourse after being told \"No\" is committing the \ncriminal act of rape.In re John Z., 29 Cal. 4th 756 (2003), accessed February 10, \n2011, http://scocal.stanford.edu/opinion/re-john-z-32309. \nFigure 10.2 Proving Lack of Consent The Requirement of Corroborative Evidence \nAt early common law, a victim's testimony was insufficient evidence to meet the \nburden of proving the elements of rape, including lack of consent. The victim's \ntestimony had to be supported by additional corroborative evidence. Modern \njurisdictions have done away with the corroborative evidence requirement and allow \nthe trier of fact to determine the elements of rape or lack of consent based on the \nvictim's testimony alone.State v. Borthwick, 880 P.2d 1261 (1994), accessed \nFebruary 10, \n2011, http://www1.law.umkc.edu/suni/CrimLaw/calendar/Class_24_borthwick_cas \ne.htm. However, statistics indicate that rape prosecutions often result in acquittal. \nThus although technically the victim's testimony need not be corroborated, it is \nparamount that the victim promptly report the rape to the appropriate authorities \nand submit to testing and interrogation to preserve any and all forms of relevant \nrape evidence. \nExample of Rape Attendant Circumstance \nReview the example with Brandy and Alex in Section 10 \"Example of Rape Act\". In \nthis example, after an initial protest, Brandy lies down, takes off her pants, and \nallows Alex to put his penis in her vagina when he pulls out a knife. It is likely that \nthe trier of fact will find the rape attendant circumstance in this case. Although \nBrandy acquiesced to Alex's demands without resisting, she did so after Alex took a \nknife out of his pocket, which is a threat of force. In addition, Brandy expressed her \nlack of consent verbally before submitting to Alex's demand. A trier of fact could \ndetermine that Brandy experienced a fear of serious bodily injury from Alex's display \nof the knife, and that a reasonable person under similar circumstances would give in \nto Alex's demands without physical resistance. \nChange this example and assume that after Brad leaves, Alex asks Brandy to have \nsexual intercourse with him. Brandy responds, \"No,\" but allows Alex to remove her \npants and put his penis in her vagina without physically resisting. The trier of fact must make the determination of whether Alex accomplished the sexual act by force \nor threat of force and without Brandy's consent. If Brandy testifies that she said \"No\" \nand did not consent to Alex's act, and Alex testifies that Brandy's verbal response was \ninsufficient to indicate lack of consent, the trier of fact must resolve this issue of fact, \nand it can do so based on Brandy's testimony, uncorroborated, in many \njurisdictions. The trier of fact can use the criteria of the difference in age and size \nbetween Brandy and Alex, any gestures or words indicating force or threat, and the \nlocation and isolation of the incident, among other factors. \nRape Intent \nThe criminal intent element required for rape in most jurisdictions is the general \nintent or knowingly to perform the rape criminal act.State v. Lile, 699 P.2d 456 \n(1985), accessed February 8, \n2011, http://scholar.google.com/scholar_case?case=5958820374035014869&hl=en \n&as_sdt=2&as_vis=1&oi=scholarr. This may include the intent to use force to \naccomplish the objective if the state's rape statute includes force or threat of force as \na component of the criminal act. \nAs Chapter 4 \"The Elements of a Crime\" stated, occasionally, a different criminal \nintent supports the other elements of an offense. In some states, negligent intent \nsupports the rape attendant circumstance of lack of victim consent. This creates a \nviable mistake of fact defense if the defendant has an incorrect perception as to the \nvictim's consent. To be successful with this defense, the facts must indicate that the \ndefendant honestly and reasonably believed that the victim consented to the rape \ncriminal act.People v. Mayberry, 542 P.2d 1337 (1975), accessed February 11, 2011, \nhttp://scholar.google.com/scholar_case?case=6471351898025391619&hl=en& \nas_sdt=2&as_vis=1&oi=scholarr. Many jurisdictions expressly disallow the defense, \nrequiring strict liability intent for the lack of consent attendant circumstance.State \nv. Plunkett, 934 P.2d 113 (1997), accessed February 11, \n2011, http://scholar.google.com/scholar_case?case=17940293485668190575&hl=en \n&as_sdt=2&as_vis=1&oi=scholarr. Example of Rape Intent \nReview the example with Alex and Brandy in Section 10 \"Example of Rape Act\". \nChange the example so that Alex does not display a knife and simply asks Brandy if \nshe would like to have sex with him. Brandy does not respond. Alex walks over to \nBrandy and removes her pants. Brandy does not protest or physically resist. \nThereafter, Alex asks Brandy if she \"likes it rough.\" Brandy remains silent. Alex \nphysically and forcibly puts his penis in Brandy's vagina. In states that allow a \nnegligent intent to support the attendant circumstance of rape, Alex may be able to \nsuccessfully assert mistake of fact as a defense. It appears that Alex has with \ngeneral intent or knowingly committed forcible sexual intercourse, based on his \nactions. In most jurisdictions, the jury could be instructed on an inference of this \nintent from Alex's behavior under the circumstances. However, if negligent intent \nis required to support the attendant circumstance of the victim's lack of consent, the \ntrier of fact may find that Alex's mistake as to Brandy's consent was honest and \nreasonable, based on her lack of response or physical resistance. If Alex is in a \njurisdiction that requires strict liability intent to support the attendant \ncircumstance element, Alex cannot raise the defense because Alex's belief as to \nBrandy's consent would be irrelevant. \nRape Causation \nThe defendant's criminal act must be the factual and legal cause of the harm, \nwhich is defined in Section 10 \"Rape Harm\". \nRape Harm \nThe harm element of rape in most jurisdictions is penetration, no matter how \nslight.Idaho Code Ann. \u00a7 18-6101, accessed February 10, \n2011, http://www.legislature.idaho.gov/idstat/Title18/T18CH61SECT18- \n6101.htm. This precludes virginity as a defense. In addition, modern statutes do not \nrequire male ejaculation, which precludes lack of semen as a defense.Ala. Code \n\u00a7 13A-6-60, accessed February 11, 2011, http://law.justia.com/alabama/codes/2009/Title13A/Chapter6/13A-6- \n60.html. \nExample of Rape Harm \nReview the example with Alex and Brandy in Section 10 \"Example of Rape Act\". \nAssume that Brad walks into the room while Alex and Brandy are engaging in sexual \nintercourse. Brad tackles Alex and pulls him off Brandy. Alex may be charged with \nrape, 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 \nejaculation as a component of the harm element of rape. \nRape Shield Laws \nRape prosecutions can be extremely stressful for the victim, especially when the \ndefendant pursues a consent defense. Before the comprehensive rape reforms of the \n1970s, rape defendants would proffer any evidence they could find to indicate that \nthe 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 \nlaw enforcement. This allowed serial rapists to escape punishment and did not serve \nour criminal justice goal of deterrence. \nIn modern times, most states protect rape victims with rape shield laws. Rape shield \nlaws prohibit the admission of evidence of the victim's past sexual conduct to prove \nconsent in a rape trial, unless the judge allows it in a pretrial in camera hearing, \noutside the presence of the jury. Rape shield laws could include the additional \nprotections of the exclusion of evidence relating to the victim's style of dress to prove \nconsent, the exclusion of evidence that the victim requested the defendant to wear a \ncondom to prove consent, and the affirmation that a victim's testimony in a rape trial \nneed not be corroborated by other evidence.Fla. Stat. Ann. \u00a7 794.022, accessed \nFebruary 11, \n2011, http://law.justia.com/florida/codes/2010/TitleXLVI/chapter794/794_022.ht \nml. Most courts permit the admission of evidence proving the victim's previous consensual sex with the defendant because this evidence is particularly relevant to \nany consent defense.Colo. Rev. Stat. Ann. \u00a7 18-3-407(1) (a), accessed February 14, \n2011, http://www.michie.com/colorado/lpext.dll?f=templates&fn=main- \nh.htm&cp=. \nExample of the Effect of a Rape Shield Law \nReview the example with Alex and Brandy in Section 10 \"Example of Rape Intent\". \nAssume that the jurisdiction in which the example takes place has a rape shield \nlaw. If Alex is put on trial for the rape of Brandy and he decides to pursue a consent \ndefense, Alex would not be able to introduce evidence of Brandy's sexual history with \nother men unless he receives approval from a judge in an in camera hearing before \nthe trial. \nLAW AND ETHICS \nShould the Media Be Permitted to Publish Negative Information about a Rape \nVictim? \nIn 2003, Kobe Bryant, a professional basketball player, was indicted for sexually \nassaulting a nineteen-year-old hotel desk clerk. A mistake by a court reporter listed \nthe accuser's name on a court website.\"Rape Case against Bryant Dismissed,\" \nMSNBC.com website, accessed February 27, \n2011, http://nbcsports.msnbc.com/id/5861379. The court removed the victim's \nname after discovery of the mistake, but the damage was done. Thereafter, in spite \nof a court order prohibiting the publication of the accuser's name, the media, \nincluding radio, newspaper, Internet, and television, published the accuser's name, \nphone number, address, and e-mail address.Tom Kenworty, Patrick O'Driscoll, \"Judge \nDismisses Bryant Rape Case,\" USAtoday.com website, accessed February 27, 2011, \nhttp://www.usatoday.com/sports/basketball/nba/2004-09-01-kobe-\nbryantcase_x.htm. Products like underwear, t-shirts, and coffee mugs with pictures \nof the accuser and Bryant in sexual positions were widely available for sale, and the \naccuser received constant harassment, including death threats.Richard Haddad, \"Shield or Sieve? People v. Bryant and the Rape Shield Law in High-Profile Cases,\" \nColumbia Journal of Law and Social Problems, accessed February 27, \n2011, http://www.columbia.edu/cu/jlsp/pdf/Spring2%202006/Haddad10.pdf. Althou \ngh the Colorado Supreme Court ordered pretrial in camera transcripts of hearings \npursuant to Colorado's rape shield law to remain confidential, an order that was \nconfirmed by the US Supreme Court,Associated Press et. al. v. District Court for the \nFifth Judicial District of Colorado, 542 U.S. 1301 (2004), accessed February 27, 2011, \nhttp://ftp.resource.org/courts.gov/c/US/542/542.US.1301.04.73.html. the accuser \nwas subjected to so much negative publicity that she eventually refused to \ncooperate and the prosecution dropped the charges in 2004. \n1. Do you think rape shield laws should include prohibitions against negative publicity? What \nare the constitutional ramifications of this particular type of statutory protection? \nCheck your answer using the answer key at the end of the chapter. \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 \nvideo: \n(click to see video) \nAcquaintance Rape \nIn modern times, rape defendants are frequently known to the victim, which may \nchange the factual situation significantly from stranger rape. Acquaintance rape, also \ncalled date rape, is a phenomenon that could increase a victim's reluctance to \nreport the crime and could also affect the defendant's need to use force and the \nvictim's propensity to physically resist.The National Center for Victims of Crime, \n\"Acquaintance Rape,\" Ncvc.org website, accessed February 14, \n2011, http://www.ncvc.org/ncvc/main.aspx?dbName=DocumentViewer&Document ID=32306. Although studies indicate that acquaintance rape is on the rise,The \nNational Center for Victims of Crime, \"Acquaintance Rape,\" Ncvc.org website, \naccessed February 14, \n2011, http://www.ncvc.org/ncvc/main.aspx?dbName=DocumentViewer&Document \nID=32306. statutes have not entirely addressed the issues presented in an \nacquaintance rape fact pattern. To adequately punish and deter acquaintance or date \nrape, rape statutes should punish nonforcible, nonconsensual sexual conduct as \nseverely as forcible rape. Although the majority of states still require forcible sexual \nintercourse as the rape criminal act element, at least one modern court has rejected \nthe 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., 609 A.2d 1266 (1992), \naccessed February 14, \n2011, http://www.4lawnotes.com/showthread.php?t=1886. Some rape statutes have \nalso eliminated the requirement that the defendant use force and punish any sexual \nintercourse without consent as rape.Utah Code Ann. \u00a7 76-5-402(1), accessed \nFebruary 14, 2011, http://le.utah.gov/~code/TITLE76/htm/76_05_040200.htm. \nSpousal Rape \nAs stated previously, at early common law, a man could not rape his spouse. The \npolicy supporting this exemption can be traced to a famous seventeenth-century \njurist, Matthew Hale, who wrote, \"[T]he husband cannot be guilty of a rape \ncommitted by himself upon his lawful wife, for by their mutual matrimonial consent \nand contract the wife hath given up herself in this kind unto her husband, which she \ncannot retract\" (Hale, History of Pleas of the Crown, p. 629). During the rape \nreforms of the 1970s, many states eliminated the marital or spousal rape exemption, \nin spite of the fact that the Model Penal Code does not recognize spousal rape. At \nleast one court has held that the spousal rape exemption violates the equal \nprotection clause of the Fourteenth Amendment because it discriminates against \nsingle men without a sufficient government interest.People v. Liberta, 64 N.Y. 2d \n152 \n(1984), accessed February 14, 2011, http://scholar.google.com/scholar_case?case=1399209540378549726&hl=en \n&as_sdt=2&as_vis=1&oi=scholarr. In several states that criminalize spousal rape, \nthe 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. \n\u00a7 632-A: 5, accessed February 14, \n2011, http://www.gencourt.state.nh.us/rsa/html/LXII/632-A/632-A-5.htm. Many \nstates also grade spousal rape the same as forcible rape\u2014as a serious felony.Utah \nCode Ann. \u00a7 76-5-402(2), accessed February 14, \n2011, http://le.utah.gov/~code/TITLE76/htm/76_05_040200.htm. Grading of sex \noffenses is discussed shortly. \nStatutory Rape \nStatutory rape, also called unlawful sexual intercourse, criminalizes sexual \nintercourse with a victim who is under the age of legal consent. The age of legal \nconsent varies from state to state and is most commonly sixteen, seventeen, or \neighteen.Age of Consent Chart for the U.S.-2010, Ageofconsent.us website, accessed \nFebruary 14, 2011, http://www.ageofconsent.us. \nThe criminal act element required for statutory rape in many jurisdictions is sexual \nintercourse, although other types of sexual conduct with a victim below the age of \nconsent are also criminal.US Department of Health and Human Services, \"Statutory \nRape: A Guide to State Laws and Reporting Requirements,\" ASPE.hhs.gov website, \naccessed February 16, \n2011, http://aspe.hhs.gov/hsp/08/SR/StateLaws/statelaws.shtml. The harm eleme \nnt of statutory rape also varies, although many jurisdictions mirror the harm element \nrequired for rape.US Department of Health and Human Services, \"Statutory Rape: A \nGuide to State Laws and Reporting Requirements,\" ASPE.hhs.gov website, accessed \nFebruary 16, \n2011, http://aspe.hhs.gov/hsp/08/SR/StateLaws/statelaws.shtml. The attendant \ncircumstance element required for statutory rape is an underage victim.Cal. Penal \nCode \u00a7 261.5, accessed February 15, 2011, http://law.onecle.com/california/penal/261.5.html. There is no requirement \nfor force by the defendant. Nor is there an attendant circumstance element of lack of \nconsent because the victim is incapable of legally consenting. \nIn the majority of states, the criminal intent element of statutory rape is strict \nliability.La. Rev. Stat. Ann. \u00a7 14-80, accessed February 15, \n2011, http://law.justia.com/louisiana/codes/2009/rs/title14/rs14- \n80.html. However, a minority of states require reckless or negligent criminal \nintent, allowing for the defense of mistake of fact as to the victim's age. If the \njurisdiction recognizes mistake of age as a defense, the mistake must be made \nreasonably, and the defendant must take reasonable measures to verify the \nvictim's age.Alaska Stat. \u00a7 11.41.445(b), accessed February 15, \n2011, http://law.justia.com/alaska/codes/2009/title-11/chapter-11-41/article04/sec-\n11-41-445. The mistake of age defense can be proven by evidence of a falsified \nidentification, witness testimony that the victim lied about his or her age to the \ndefendant, or even the appearance of the victim. \nIt is much more common to prosecute males for statutory rape than females. The \nhistorical reason for this selective prosecution is the policy of preventing teenage \npregnancy.Michael M. v. Superior Court, 450 U.S. 464 (1981), accessed February 15, \n2011, http://www.oyez.org/cases/1980-1989/1980/1980_79_1344. However, \nmodern statutory rape statutes are gender-neutral.N.Y. Penal Law \u00a7 130.30, accessed \nFebruary 15, 2011, http://law.onecle.com/new- \nyork/penal/PEN0130.30_130.30.html. This ensures that women, especially women \nwho are older than their sexual partner, are equally subject to prosecution. \nExample of Statutory Rape \nGary meets Michelle in a nightclub that only allows entrance to patrons eighteen and \nover. Gary and Michelle end up spending the evening together, and later they go to \nGary's apartment where they have consensual sexual intercourse. In reality, Michelle \nis 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 be subject to prosecution for and conviction of \nthis offense if fifteen is under the age of legal consent. If Gary and Michelle are in a \nstate that allows for mistake of age as a defense, Gary could use Michelle's \npresence in the nightclub as evidence that he acted reasonably in believing that \nMichelle was capable of rendering legal consent. If both Gary and Michelle used false \nidentification to enter the nightclub, and both Gary and Michelle are under the age of \nlegal consent, both could be prosecuted for and convicted of statutory rape in most \njurisdictions because modern statutory rape statutes are gender-neutral. \nFigure 10.3 Comparison of Rape and Statutory Rape Sodomy and Oral Copulation \nAs stated previously, some states include rape, sodomy, and oral copulation in a \nsexual assault or sexual conduct statute that criminalizes a variety of sexual acts \ninvolving penetration.Alaska Stat. \u00a7 11.41.410, accessed February 15, \n2011, http://law.justia.com/alaska/codes/2009/title-11/chapter-11-\n41/article04/sec-11-41-410. In states that distinguish between rape and sodomy, the \ncriminal act element of sodomy is often defined as forcible penis to anus \npenetration.Cal. \nPenal Code \u00a7 286(a), accessed February 15, \n2011, http://law.justia.com/california/codes/2009/pen/281-289.6.html. Typically, \nthe other sodomy elements, including the lack of consent attendant circumstance, \ncriminal 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 \nconsent is also criminal.Cal. Penal Code \u00a7 286(b), accessed February 15, \n2011, http://law.justia.com/california/codes/2009/pen/281-289.6.html. As stated \npreviously, the US Supreme Court has held that statutes criminalizing sodomy \nbetween consenting adults unreasonably encroach on a right to privacy without a \nsufficient government interest.Lawrence v. Texas, 539 U.S. 558 (2003), accessed \nFebruary 15, 2011, http://www.oyez.org/cases/2000-2009/2002/2002_02_102. In \nsome states, consensual nonforcible sodomy is criminal if it is committed in a state \npenitentiary or local detention facility or jail.Cal. Penal Code \u00a7 286(c) (3) (e), \naccessed February 15, 2011, \nhttp://law.justia.com/california/codes/2009/pen/281289.6.html. \nIn states that distinguish between rape, sodomy, and oral copulation, the criminal \nact element of oral copulation is forcible mouth to sexual \norgan or anus penetration.Cal. Penal Code \u00a7 288a, accessed February 15, 2011, \nhttp://law.onecle.com/california/penal/288a.html. Typically, the other oral \ncopulation elements, including the lack of consent attendant circumstance, criminal intent, causation, and harm, are the same as the elements of rape. Many \njurisdictions also grade oral copulation the same as rape. Grading is discussed \nshortly. \nA few states still criminalize oral copulation with consent.Ala. Code \u00a7 13A-6-65, \naccessed February 15, \n2011, http://www.legislature.state.al.us/CodeofAlabama/1975/13A-6-65.htm. Based \non the US Supreme Court precedent relating to sodomy, these statutes may be \nunenforceable and unconstitutional. \nIncest \nIncest is also criminal in many jurisdictions. The criminal act element required for \nincest is typically sexual intercourse.Fla. Stat. Ann. \u00a7 826.04, accessed February 15, \n2011, http://law.onecle.com/florida/crimes/826.04.html. The attendant \ncircumstance element required for incest is a victim the defendant cannot legally \nmarry because of a family relationship.Del. Code Ann. Tit. 11, \u00a7 766, accessed \nFebruary 15, 2011, \nhttp://law.justia.com/delaware/codes/2010/title11/c005sc02.html. In the majority \nof jurisdictions, force is not required, and consent is not an attendant circumstance \nelement of incest.Del. Code Ann. Tit. 11, \u00a7 766, accessed February 15, 2011, \nhttp://law.justia.com/delaware/codes/2010/title11/c005sc02.html. Thus consent \nby the victim cannot operate as a defense. If the sexual intercourse with a family \nmember is forcible and nonconsensual, the defendant could be charged with and \nconvicted of rape. The criminal intent element required for incest is typically \ngeneral intent or knowingly.Fla. Stat. Ann. \u00a7 826.04, accessed February 15, \n2011, http://law.onecle.com/florida/crimes/826.04.html. The causation and harm \nelements of incest are generally the same as the causation and harm elements of \nrape.Fla. Stat. Ann. \u00a7 826.04, accessed February 15, 2011, \nhttp://law.onecle.com/florida/crimes/826.04.html. However, incest is generally \ngraded lower than forcible rape or sexual assault because force and lack of consent are not required.Del. Code Ann. Tit. 11, \u00a7 766, accessed February 15, 2011, \nhttp://law.justia.com/delaware/codes/2010/title11/c005-sc02.html. \nExample of Incest \nHal and Harriet, brother and sister, have consensual sexual intercourse. Both Hal \nand Harriet are above the age of legal consent. In spite of the fact that there was no \nforce, threat of force, or fraud, and both parties consented to the sexual act, Hal and \nHarriet could be charged with and convicted of incest in many jurisdictions, based \non their family relationship. \nSex Offenses Grading \nJurisdictions vary when it comes to grading sex offenses. In general, forcible sex \ncrimes involving penetration are graded as serious felonies. Factors that could \naggravate grading are gang rape,Fla. Stat. Ann. \u00a7 794.023, accessed February 15, \n2011, http://law.onecle.com/florida/crimes/794.023.html. the infliction of bodily \ninjury, the use of a weapon, a youthful victim, the commission of other crimes in \nconcert with the sexual offense, or a victim who has mental or intellectual \ndisabilities or who has been compromised by intoxicants.Del. Code Ann. Tit. 11, \u00a7 \n773, accessed February 15, 2011, \nhttp://law.justia.com/delaware/codes/2010/title11/c005sc02.html. The Model \nPenal Code grades rape as a felony of the second degree unless the actor inflicts \nserious 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 \nPenal Code \u00a7 213.1 (1)). \nSexual offenses that do not include penetration are graded lower,N.Y. Penal Law \n\u00a7 130.52, accessed February 15, 2011, \nhttp://law.onecle.com/newyork/penal/PEN0130.52_130.52.html. along with \noffenses that could be consensual.Del. Code Ann. Tit. 11, \u00a7 766, accessed February \n15, 2011, http://law.justia.com/delaware/codes/2010/title11/c005-sc02.html. Sex \noffense statutes that criminalize sexual conduct with a victim below the age of legal \nconsent often grade the offense more severely when there is a large age difference \nbetween the defendant and the victim, when the defendant is an adult, or the \nvictim is of tender years.Cal. Penal Code \u00a7 261.5, accessed February 15, 2011, \nhttp://law.onecle.com/california/penal/261.5.html. \nFigure 10.4 Diagram of Sex Offenses Sex Offender Registration Statutes \nBased on a public awareness that sex offenders often reoffend, many states have \nenacted some form of Megan's law or Jessica's law, which provide for registration, \nmonitoring, control, and elevated sentencing for sex offenders, including those that \nharm children. Both laws were written and enacted after high-profile cases with \nchild victims became the subject of enormous media attention. Megan's and \nJessica's law statutes enhance previously enacted statutes that require the \nregistration of sex offenders with local law enforcement agencies. \nTypically, a Megan's law statute provides for registration and notification to the \npublic that a convicted sex offender lives in their area.42 Pa. C. S. \u00a7 9799.1, accessed \nFebruary 15, 2011, http://www.pameganslaw.state.pa.us. A Jessica's law statute \noften includes a stay-away order, mandating that a sex offender cannot live within a \ncertain distance from areas such as a school or park where children tend to \ncongregate. Jessica's law statutes also provide for GPS monitoring and extend the \nsentencing and parole terms of child sex offenders.Va. Code Ann. \u00a7 19.2-295.2:1, \naccessed February 15, 2011, \nhttp://leg1.state.va.us/cgibin/legp504.exe?000+cod+19.2-295.2C1. \nFigure 10.5 Diagram of Megan's and Jessica's Law Statutes KEY TAKEAWAYS \n\u2022 Common-law rape was a capital offense, did not include rape of a spouse, required extreme \nresistance by the victim, and required evidence to corroborate a victim's testimony. Modern \nstatutes do not make rape a capital offense, often criminalize spousal rape, and do not \nrequire extreme resistance by the victim or evidence to corroborate the victim's testimony. \nAt early common law, sodomy was the anal penetration of a man, by a man. Modern \n statutes make sodomy gender-neutral and only criminalize sodomy without consent. \n\u2022 The criminal act element required for rape is sexual penetration accomplished with force or \nthreat of force in many jurisdictions. \n\u2022 The attendant circumstance element required for rape is lack of consent by the victim. \n\u2022 \nIn many jurisdictions, the victim does not need to resist if the defendant uses force. If the \nvictim is faced with a threat of force rather than force, the victim need not resist if he or she \nhas a subjective fear of serious bodily injury, and this fear is reasonable under the \ncircumstances. \n\u2022 In modern times, a victim's testimony does not need to be corroborated by other evidence \nto convict a defendant of rape. \n\u2022 The criminal intent element required for rape is general intent or knowingly to commit the \ncriminal act. \n\u2022 \nIn some jurisdictions, the criminal intent element required for the rape attendant \ncircumstance is negligent intent\u2014providing for a defense of mistake of fact as to the victim's \nconsent. In other jurisdictions, the criminal intent element required for the rape attendant \ncircumstance is strict liability, which does not allow for the mistake of fact defense. \n\u2022 The harm element required for rape is penetration, no matter how slight. Ejaculation is not a \nrequirement for rape in most jurisdictions. \n\u2022 \nRape shield laws generally preclude the admission of evidence of the victim's past sexual \nconduct in a rape trial, unless it is allowed by a judge at an in camera hearing. Rape shield \nlaws also preclude the admission of evidence of the victim's style of dress and the victim's \nrequest that the defendant wear a condom to prove victim consent. Some rape shield laws \nprovide that the victim's testimony need not be corroborated by other evidence to convict \nthe defendant of rape. \u2022 \nAcquaintance rape often goes unreported and does not necessarily include use of force by \nthe defendant or resistance by the victim. \n\u2022 States that criminalize spousal rape generally require the same elements for spousal rape as \nfor rape and grade spousal rape the same as rape. \n\u2022 \nStatutory rape is generally sexual intercourse with a victim who is under the age of legal \nconsent. Statutory rape does not have the requirement that the intercourse be forcible and \ndoes not require the attendant circumstance of the victim's lack of consent because the \nvictim is incapable of rendering legal consent. In the majority of jurisdictions, the criminal \nintent element required for statutory rape is strict liability. In a minority of jurisdictions, the \ncriminal intent element required for statutory rape is negligent or reckless intent, providing \nfor a defense of mistake of fact as to the victim's age. \n\u2022 \nSodomy has the same elements as rape except for the criminal act element, which is often \ndefined as forcible penis to anus penetration, rather than penis to vagina penetration. In \naddition, in some states sodomy is criminal with consent when it occurs in a state prison or a \nlocal detention facility or jail. Oral copulation also has the same elements as rape, except for \nthe criminal act element, which is forcible mouth to sexual organ or anus penetration. Incest \nis sexual intercourse between family members who cannot legally marry. \n\u2022 Generally, rape, sodomy, and oral copulation are graded as serious felonies. Factors that \nenhance grading of sex offenses are penetration, gang rape, bodily injury, the use of a \nweapon, a victim who has intellectual or mental disabilities or is youthful or intoxicated, and \nthe commission of other crimes in concert with the sex offense. Sex offenses committed with \nthe victim's consent and without penetration are typically graded lower. If the victim is below \nthe age of consent, a large age difference exists between the defendant and the victim, the \ndefendant is an adult, or the victim is of tender years, grading typically is \nenhanced. \u2022 \nTypically, a Megan's law statute provides for sex offender registration and notification to the \npublic that a convicted sex offender lives in their area. A Jessica's law statute often includes a \nstay-away order mandating that a sex offender cannot live within a certain distance from \nareas such as a school or park where children tend to congregate. Jessica's law statutes also \nprovide for GPS monitoring and extend the sentencing and parole terms of child sex \noffenders. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the end \nof the chapter. \n1. Jorge and Christina have consensual sexual intercourse. Could this consensual sexual \nintercourse be criminal? Which crime(s), if any, could exist in this fact pattern? \n2. Read Toomer v. State, 529 SE 2d 719 (2000). In Toomer, the defendant was convicted of rape \nafter having sexual intercourse with his daughter, who was under the age of fourteen. The \njury instruction did not include any requirement for the defendant's use of force or victim \nresistance. The defendant appealed and claimed that the prosecution should have proven he \nused force and the victim's resistance because the charge was rape, not statutory rape. Did \nthe Supreme Court of South Carolina uphold the defendant's conviction? Why or why not? \nThe case is available at this \nlink: http://scholar.google.com/scholar_case?case=3593808516097562509&q= \nToomer+v.+State&hl=en&as_sdt=2,5. \n3. Read Fleming v. State, 323 SW 3d 540 (2010). In Fleming, the defendant appealed his \nconviction for aggravated sexual assault of a child under fourteen because he was not \nallowed to present a mistake of age defense. The defendant claimed that the requirement of \nstrict liability intent as to the age of the victim deprived him of due process of law. Did the \nCourt of Appeals of Texas agree with the defendant? \n10.3 Domestic Violence and Stalking LEARNING OBJECTIVES \n1. Identify the individuals covered by domestic violence statutes. \n2. Identify some of the special features of domestic violence statutes. \n3. Define the criminal act element required for stalking. \n4. Define the criminal intent element required for stalking, and compare various statutory \napproaches to stalking criminal intent. \n5. Define the harm element required for stalking, and compare various statutory approaches to \nascertaining harm. \n6. Analyze stalking grading. \nDomestic violence and stalking are modern crimes that respond to societal problems that have \nescalated in recent years. Domestic violence statutes are drafted to address issues that are \nprevalent in crimes between family members or individuals living in the same household. \nStalking generally punishes conduct that is a precursor to assault, battery, or other crimes \nagainst the person, as is explored in Section 10.3 \"Domestic Violence and Stalking\". \nDomestic Violence \nDomestic violence statutes generally focus on criminal conduct that occurs between \nfamily members. Although family cruelty or interfamily criminal behavior is not a \nnew phenomenon, enforcement of criminal statutes against family members can be \nchallenging because of dependence, fear, and other issues that are particular to the \nfamily unit. In addition, historical evidence indicates that law enforcement can be \nreluctant to get involved in family disputes and often fails to adequately protect \nvictims who are trapped in the same residence as the defendant. Specific \nenforcement measures that are crafted to apply to defendants and victims who are \nfamily members are an innovative statutory approach that many jurisdictions are \nbeginning to adopt. In general, domestic violence statutes target crimes against the \nperson, for example, assault, battery, sex offenses, kidnapping, and criminal \nhomicide. Domestic Violence Statutes' Characteristics \nThe purpose of many domestic violence statutes is equal enforcement and treatment \nof crimes between family members and maximum protection for the domestic \nviolence victim.RCW \u00a7 10.99.010, accessed February 21, \n2011, http://apps.leg.wa.gov/rcw/default.aspx?cite=10.99.010. Domestic violence \nstatutes focus on individuals related by blood or marriage, individuals who share a \nchild, ex-spouses and ex-lovers, and individuals who reside together.Ariz. Rev. Stat. \n\u00a7 13-3601(A), accessed February 21, \n2011, http://www.azleg.state.az.us/ars/13/03601.htm. Domestic violence statutes \ncommonly contain the following provisions: \n\u2022 Special training for law enforcement in domestic issuesRCW \u00a7 10.99.030, accessed \nFebruary 21, 2011, http://apps.leg.wa.gov/rcw/default.aspx?cite=10.99.030. \n\u2022 Protection of the victim by no-contact orders and nondisclosure of the victim's \nresidence addressRCW \u00a7 10.99.040, accessed February 21, \n2011, http://apps.leg.wa.gov/rcw/default.aspx?cite=10.99.040. \n\u2022 Duty of law enforcement or prosecutors to inform the victim of the decision of \nwhether to prosecute and the duty to inform the victim of special procedures \navailable to protect domestic violence victimsRCW \u00a7 10.99.060, accessed February \n21, 2011, http://apps.leg.wa.gov/rcw/default.aspx?cite=10.99.060, Ariz. Rev. Stat. \n\u00a7 13-3601(J), accessed February 21, \n2011, http://www.azleg.state.az.us/ars/13/03601.htm. \n\u2022 Ability to arrest domestic violence offenders with or without a warrantAriz. Rev. Stat. \n\u00a7 13-3601(B), accessed February 21, \n2011, http://www.azleg.state.az.us/ars/13/03601.htm. \n\u2022 Special factors to consider in the sentencing of domestic violence defendantsRCW \n\u00a7 10.99.100, accessed February 21, \n2011, http://apps.leg.wa.gov/rcw/default.aspx?cite=10.99.100. \n\u2022 Peace officer immunity for enforcement of domestic violence provisionsAriz. Rev. \nStat. \u00a7 13-3601(G), accessed February 21, \n2011, http://www.azleg.state.az.us/ars/13/03601.htm. Stalking \nCalifornia was the first state to enact a stalking law in 1990, in response to the \nhighprofile murder of a young actress named Rebecca Schaeffer whose attacker \nstalked her for two years. Now all states and the federal government have stalking \nlaws.18 \nU.S.C. \u00a7 2261A, accessed February 22, \n2011, http://www.ncvc.org/src/main.aspx?dbID=DB_Federal_Interstate_Stalking_ \nInstitute163#61a. Although statutes criminalizing stalking are gender -neutral, in \nreality, most stalking victims are women, and most stalking defendants are men. \nBefore the states enacted stalking laws, a victim who was threatened and harassed \nbut not assaulted had no remedy except to go to court and obtain a restraining order. \nA restraining order is a court order mandating that the defendant neither contact nor \ncome within a certain distance of the victim. If the defendant violated the restraining \norder, law enforcement could arrest him or her. Until a restraining order was in \nplace, however, the defendant was free to continue frightening the victim. \nRestraining orders typically take some time to obtain. The victim must contact and \nemploy an attorney and also set up a court hearing. For this reason, the restraining \norder method of preventing a defendant from stalking was cumbersome, ineffective, \nand frequently resulted in force or violence against the stalking victim. \nThe modern crime of stalking allows law enforcement to arrest and incapacitate \ndefendants before they complete an assault, battery, or other violent crime against a \nvictim. Like all crimes, stalking requires the defendant to commit a voluntary act \nsupported by criminal intent. In many jurisdictions, stalking also has the elements of \ncausation and harm, as is discussed in Section 10.3.2 \"Stalking\". \nStalking Act \nVarious approaches have been made to criminalize stalking, and a plethora of \ndescriptors now identify the stalking criminal act. In the majority of jurisdictions, the criminal act element required for stalking includes any course of conduct \nthat credibly threatens the victim's safety, including following,Tex. Penal \nCode \u00a7 42.072, accessed February 22, \n2011, http://www.ncvc.org/src/main.aspx?dbID=DB_Texas176. harassing,Cal. Penal \nCode \u00a7 646.9, accessed February 22, \n2011, http://www.ncvc.org/src/main.aspx?dbID=DB_California176 (accessed \nFebruary 22, 1022). approaching,Md. Code Ann. \u00a7 3-802, accessed February 22, \n2011, http://www.ncvc.org/src/main.aspx?dbID=DB_Maryland678. pursuing, or \nmaking an express or implied threat to injure the victim, the victim's family \nmember,Ala. Code \u00a7 13A-6-90, accessed February 22, \n2011, http://www.ncvc.org/src/main.aspx?dbID=DB_Alabama390. or the victim's \nproperty.Tex. Penal Code \u00a7 42.072(a) (1) (c), accessed February 22, \n2011, http://www.ncvc.org/src/main.aspx?dbID=DB_Texas176. In general, credible \nthreat means the defendant has the apparent ability to effectuate the harm \nthreatened.S. D. Codified Laws \u00a7 22-19A-6, accessed February 22, \n2011, http://www.ncvc.org/src/main.aspx?dbID=DB_SouthDakota123. The stalking \ncriminal act is unique among criminal acts in that it must occur on more than one \noccasion or repeatedly.Colo. Rev. Stat. Ann. \u00a7 18-3-602, accessed February 22, 2011, \nhttp://www.ncvc.org/src/main.aspx?dbID=DB_Colorado285. The popularity of \nsocial networking sites and the frequency with which defendants use the Internet to \nstalk their victims inspired many states to specifically criminalize cyberstalking, \nwhich is the use of the Internet or e-mail to commit the criminal act of \nstalking.Alaska Stat. \u00a7 11.41.270 (b) (3) (F), accessed February 22, \n2011, http://www.ncvc.org/src/main.aspx?dbID=DB_Alaska803. \nExample of a Case Lacking Stalking Act \nElliot tells Lisa on two separate occasions that he loves her. Lisa intensely dislikes \nElliot and wants nothing to do with him. Although Elliot's proclamations of love are \nunwelcome, Elliot probably has not committed the criminal act element required for \nstalking. Elliot's behavior does not threaten Lisa's safety or the safety of her family members or property. Thus Elliot may not be charged with and convicted of stalking \nin most jurisdictions. \nExample of Stalking Act \nChange the example in Section 10 \"Example of a Case Lacking Stalking Act\" so that \nElliot tells Lisa he loves her on one occasion. Lisa frowns and walks away. Elliot then \nfollows Lisa and tells her that he will \"make her pay\" for not loving him. Lisa ignores \nElliot's statement, climbs into her car, and drives away. Later that evening, Elliot \nrings Lisa's doorbell. Lisa does not answer the door but yells at Elliot, telling him to \nleave. Disgruntled and angry, Elliot carves, \"you will die for not loving me\" into Lisa's \nfront door with his pocketknife. \nElliot's conduct could constitute the criminal act element required for stalking in \nmost jurisdictions. In this example, Elliot has followed Lisa and approached her, \nwhich is a repeated course of conduct. On two occasions Elliot threatened Lisa: once \nby telling her he will \"make her pay\" and again by carving a death threat into her \nfront door. Keep in mind that Elliot's threat to Lisa's safety must be credible in many \njurisdictions. Thus if Elliot is unable to actually harm Lisa for any reason, the trier of \nfact could find that he does not have the apparent ability to carry out his threat, \nand he could not be convicted of stalking. \nStalking Intent \nThe criminal intent element required for stalking also varies, depending on the \njurisdiction. In most states, the defendant must commit the criminal act willfully or \nmaliciously.Cal. Penal Code \u00a7 646.9, accessed February 22, \n2011, http://www.ncvc.org/src/main.aspx?dbID=DB_California176 (accessed \nFebruary 22, 1022). This indicates a specific intent or purposeful conduct. \nHowever, in states that require the victim to experience harm, a different criminal \nintent could support the harm offense element. States that include bad results or \nharm in their stalking statutes 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 \nstate.\"Criminal Stalking Laws,\" Ncvc.org website, accessed February 22, \n2011, http://www.ncvc.org/src/main.aspx?dbID=DB_State-byState_Statutes117. \nExample of Stalking Intent \nReview the stalking act example in Section 10 \"Example of Stalking Act\". In the \nmajority of states, Elliot must make the threatening statement and carve the \nthreatening message into Lisa's front door willfully or maliciously. However, the \nrequirement that Elliot act with the intent to cause Lisa's reaction to this conduct \nvaries, depending on the jurisdiction. In some jurisdictions, Elliot must act with the \nspecific intent or purposely to cause Lisa to suffer the stalking harm, which is \ngenerally fear for bodily safety, the safety of family members, or fear of damage to \nLisa's property. In others, Elliot can act to cause Lisa's fear with general intent or \nknowingly, reckless intent, or negligent intent. In some jurisdictions, Elliot's purpose \nor awareness as to Lisa's feeling of fear is irrelevant because strict liability is the \nintent supporting the harm or bad results requirement. \nStalking Causation \nIn jurisdictions that require harm for stalking, the defendant's criminal act must be \nthe factual and legal cause of the harm, which is defined in Section 10 \"Stalking \nHarm\". \nStalking Harm \nAs stated previously, some states require a specific harm element in their stalking \nstatutes. This element is defined differently depending on the state but generally \namounts to victim fear. The fear is typically fear of bodily injury or death of the \nvictimAla. Code \u00a7 13A-6-90, accessed February 22, \n2011, http://www.ncvc.org/src/main.aspx?dbID=DB_Alabama390. or of the victim's \nfamily member,Alaska Stat. \u00a7 11.41.270 (a), http://www.ncvc.org/src/main.aspx?dbID=DB_Alaska803. or damage to the \nvictim's property.Tex. Penal Code \u00a7 42.072(a) (1) (C), accessed February 22, 2011, \nhttp://www.ncvc.org/src/main.aspx?dbID=DB_Texas176. States also employ \ndifferent tests to ascertain the harm element. States can require \nsubjective and objective fear,Tex. Penal Code \u00a7 42.072, accessed February 22, 2011, \nhttp://www.ncvc.org/src/main.aspx?dbID=DB_Texas176. just subjective \nfear,Alaska Stat. \u00a7 11.41.270 (a), accessed February 22, \n2011, http://www.ncvc.org/src/main.aspx?dbID=DB_Alaska803. or just objective \nfear.Md. Code Ann. \u00a7 3-802, accessed February 22, \n2011, http://www.ncvc.org/src/main.aspx?dbID=DB_Maryland678. Subjective fear \nmeans the victim must actually experience fear. Objective fear means a reasonable \nvictim under similar circumstances would experience fear. \nExample of Stalking Harm \nReview the stalking act example in Section 10 \"Example of Stalking Act\". In \njurisdictions that require subjective and objective victim fear as the harm element \nfor stalking, Elliot must cause Lisa to experience fear that is reasonable under the \ncircumstances. In a jurisdiction that requires only subjective victim fear, Elliot must \ncause Lisa to feel fear, either reasonably or unreasonably. In a jurisdiction that \nrequires only objective fear, Elliot must act in a manner that would cause a \nreasonable victim under similar circumstances to experience fear. Keep in mind that \nif Lisa is aware of a circumstance that makes it unlikely that Elliot can carry out his \nthreat, Elliot could not be convicted of stalking in a jurisdiction that requires Lisa to \nexperience subjective fear. \nStalking Grading \nJurisdictions vary as to how they grade stalking. Many states divide stalking into \ndegrees or grade it as simple and aggravated. First-degree or aggravated stalking is \ngenerally graded as a felony, and second-degree or simple stalking is generally \ngraded as a misdemeanor.Alaska Stat. \u00a7\u00a7 11.41.260, 11.41.270, accessed February 22, 2011, http://www.ncvc.org/src/main.aspx?dbID=DB_Alaska803. Factors that could \nenhance grading are the violation of a restraining or protective order, the use of a \nweapon, a youthful victim, or previous convictions for stalking.Alaska Stat. \n\u00a7 11.41.260, accessed February 24, \n2011, http://www.ncvc.org/src/main.aspx?dbID=DB_Alaska803. \nFigure 10.9 Diagram of Domestic Violence and Stalking KEY TAKEAWAYS \n\u2022 Individuals covered by domestic violence statutes are relatives by blood or marriage, \n individuals who share a child, ex-spouses and ex-lovers, and individuals who reside together. \n\u2022 \nSome special features of domestic violence statutes are special training for law enforcement \nin domestic issues, protection of the victim by no-contact orders and nondisclosure of the \nvictim's residence address, the duty of law enforcement or prosecutors to inform the victim \nof the decision of whether to prosecute and the duty to inform the victim of special \nprocedures available to protect domestic violence victims, the ability to arrest domestic \nviolence 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 \nviolence provisions. \n\u2022 \nThe criminal act element required for stalking varies, but in general it is repeatedly engaging \nin a course of conduct that poses a credible threat to the victim's safety, including following, \nharassing, approaching, or pursuing the victim. \n\u2022 \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 \nrequirement: either specific intent or purposely, general intent or knowingly, reckless intent, \nnegligent intent, or strict liability. \n\u2022 \nSome jurisdictions require the defendant to cause harm, which is victim fear of serious bodily \ninjury, fear of death of the victim or the victim's family member, or damage to the victim's \nproperty. The test for victim fear varies and could be either subjective and objective fear, just \nsubjective fear, or just objective fear. \n\u2022 \nIt is common to divide stalking into degrees or grade it as simple and aggravated. Firstdegree \nor aggravated stalking is generally graded as a felony, and second-degree or simple stalking is \ngenerally graded as a misdemeanor. Factors that can aggravate grading are the violation of a \nrestraining or protective order, the use of a weapon, a youthful victim, or previous \nconvictions for stalking. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the end \nof the chapter. \n1. Chris punches and slaps Rhianna, his roommate and girlfriend. Could this be considered domestic violence? \n2. Read State v. Holbach, 2009 ND 37 (2009). In Holbach, the defendant appealed a conviction \nfor stalking based on his constitutionally protected right to travel around town and do \nerrands. The defendant was on probation for stalking the victim and subject to conditions of \nprobation, including a stay-away order. However, the victim claimed that she saw the \ndefendant following her around town on many occasions. Did the Supreme Court of North \nDakota uphold the defendant's stalking conviction? Why or why not? The case is available at \nthis link: http://scholar.google.com/scholar_case?case=14788412528928431856&q= \nstalking&hl=en&as_sdt=2,5&as_ylo=2009. \n3. Read Burke v. State, 676 S.E.2d 766 (2009). Why did the Court of Appeals of Georgia reverse \nthe defendant's conviction for aggravated stalking in this case? \n 10.3 Domestic Violence and Stalking \nLEARNING OBJECTIVES \n1. Identify the individuals covered by domestic violence statutes. \n2. Identify some of the special features of domestic violence statutes. \n3. Define the criminal act element required for stalking. \n4. Define the criminal intent element required for stalking, and compare various \nstatutory approaches to stalking criminal intent. \n5. Define the harm element required for stalking, and compare various statutory \napproaches to ascertaining harm. \n6. Analyze stalking grading. \nDomestic violence and stalking are modern crimes that respond to societal problems that \nhave escalated in recent years. Domestic violence statutes are drafted to address issues that \nare prevalent in crimes between family members or individuals living in the same household. \nStalking generally punishes conduct that is a precursor to assault, battery, or other crimes \nagainst the person, as is explored in Section 10.3 \"Domestic Violence and Stalking\". Domestic Violence \nDomestic violence statutes generally focus on criminal conduct that occurs \nbetween family members. Although family cruelty or interfamily criminal \nbehavior is not a new phenomenon, enforcement of criminal statutes against \nfamily members can be challenging because of dependence, fear, and other issues \nthat are particular to the family unit. In addition, historical evidence indicates \nthat law enforcement can be reluctant to get involved in family disputes and \noften fails to adequately protect victims who are trapped in the same residence as \nthe defendant. Specific enforcement measures that are crafted to apply to \ndefendants and victims who are family members are an innovative statutory \napproach that many jurisdictions are beginning to adopt. In general, domestic \nviolence statutes target crimes against the person, for example, assault, battery, \nsex offenses, kidnapping, and criminal homicide. \nDomestic Violence Statutes' Characteristics \nThe purpose of many domestic violence statutes is equal enforcement and \ntreatment of crimes between family members and maximum protection for the \ndomestic violence victim.RCW \u00a7 10.99.010, accessed February 21, \n2011, http://apps.leg.wa.gov/rcw/default.aspx?cite=10.99.010. Domestic \nviolence statutes focus on individuals related by blood or marriage, individuals \nwho share a child, ex-spouses and ex-lovers, and individuals who reside \ntogether.Ariz. Rev. Stat. \u00a7 13-3601(A), accessed February 21, \n2011, http://www.azleg.state.az.us/ars/13/03601.htm. Domestic violence \nstatutes commonly contain the following provisions: \n\u2022 Special training for law enforcement in domestic issuesRCW \u00a7 10.99.030, \naccessed February 21, \n2011, http://apps.leg.wa.gov/rcw/default.aspx?cite=10.99.030. \u2022 Protection of the victim by no-contact orders and nondisclosure of the \nvictim's residence addressRCW \u00a7 10.99.040, accessed February 21, \n2011, http://apps.leg.wa.gov/rcw/default.aspx?cite=10.99.040. \n\u2022 Duty of law enforcement or prosecutors to inform the victim of the \ndecision of whether to prosecute and the duty to inform the victim of \nspecial procedures available to protect domestic violence victimsRCW \n\u00a7 10.99.060, accessed February 21, \n2011, http://apps.leg.wa.gov/rcw/default.aspx?cite=10.99.060, Ariz. Rev. \nStat. \u00a7 13-3601(J), accessed February 21, \n2011, http://www.azleg.state.az.us/ars/13/03601.htm. \n\u2022 Ability to arrest domestic violence offenders with or without a \nwarrantAriz. Rev. Stat. \u00a7 13-3601(B), accessed February 21, \n2011, http://www.azleg.state.az.us/ars/13/03601.htm. \n\u2022 Special factors to consider in the sentencing of domestic violence \ndefendantsRCW \u00a7 10.99.100, accessed February 21, \n2011, http://apps.leg.wa.gov/rcw/default.aspx?cite=10.99.100. \n\u2022 Peace officer immunity for enforcement of domestic violence \nprovisionsAriz. Rev. Stat. \u00a7 13-3601(G), accessed February 21, \n2011, http://www.azleg.state.az.us/ars/13/03601.htm. \nStalking \nCalifornia was the first state to enact a stalking law in 1990, in response to the \nhigh-profile murder of a young actress named Rebecca Schaeffer whose attacker \nstalked her for two years. Now all states and the federal government have \nstalking laws.18 U.S.C. \u00a7 2261A, accessed February 22, \n2011, http://www.ncvc.org/src/main.aspx?dbID=DB_Federal_Interstate_Stalki\nng_Institute163#61a. Although statutes criminalizing stalking are gender-\nneutral, in reality, most stalking victims are women, and most stalking \ndefendants are men. Before the states enacted stalking laws, a victim who was threatened and \nharassed but not assaulted had no remedy except to go to court and obtain \na restraining order. A restraining order is a court order mandating that the \ndefendant neither contact nor come within a certain distance of the victim. If the \ndefendant violated the restraining order, law enforcement could arrest him or \nher. Until a restraining order was in place, however, the defendant was free to \ncontinue frightening the victim. Restraining orders typically take some time to \nobtain. The victim must contact and employ an attorney and also set up a court \nhearing. For this reason, the restraining order method of preventing a defendant \nfrom 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 \ndefendants before they complete an assault, battery, or other violent crime \nagainst a victim. Like all crimes, stalking requires the defendant to commit a \nvoluntary act supported by criminal intent. In many jurisdictions, stalking also \nhas the elements of causation and harm, as is discussed in Section 10.3.2 \n\"Stalking\". \nStalking Act \nVarious approaches have been made to criminalize stalking, and a plethora of \ndescriptors now identify the stalking criminal act. In the majority of jurisdictions, \nthe criminal act element required for stalking includes any course of \nconduct that credibly threatens the victim's safety, including following,Tex. \nPenal Code \u00a7 42.072, accessed February 22, \n2011, http://www.ncvc.org/src/main.aspx?dbID=DB_Texas176. harassing,Cal. \nPenal Code \u00a7 646.9, accessed February 22, \n2011, http://www.ncvc.org/src/main.aspx?dbID=DB_California176 (accessed \nFebruary 22, 1022). approaching,Md. Code Ann. \u00a7 3-802, accessed February 22, \n2011, http://www.ncvc.org/src/main.aspx?dbID=DB_Maryland678. pursuing, or \nmaking an express or implied threat to injure the victim, the victim's family member,Ala. Code \u00a7 13A-6-90, accessed February 22, \n2011, http://www.ncvc.org/src/main.aspx?dbID=DB_Alabama390. or the \nvictim's property.Tex. Penal Code \u00a7 42.072(a) (1) (c), accessed February 22, \n2011, http://www.ncvc.org/src/main.aspx?dbID=DB_Texas176. In general, \ncredible threat means the defendant has the apparent ability to effectuate the \nharm threatened.S. D. Codified Laws \u00a7 22-19A-6, accessed February 22, \n2011, http://www.ncvc.org/src/main.aspx?dbID=DB_SouthDakota123. The \nstalking criminal act is unique among criminal acts in that it must occur on more \nthan one occasion or repeatedly.Colo. Rev. Stat. Ann. \u00a7 18-3-602, accessed \nFebruary 22, \n2011, http://www.ncvc.org/src/main.aspx?dbID=DB_Colorado285. The \npopularity of social networking sites and the frequency with which defendants \nuse the Internet to stalk their victims inspired many states to specifically \ncriminalize cyberstalking, which is the use of the Internet or e-mail to commit the \ncriminal act of stalking.Alaska Stat. \u00a7 11.41.270 (b) (3) (F), accessed February 22, \n2011, http://www.ncvc.org/src/main.aspx?dbID=DB_Alaska803. \nExample of a Case Lacking Stalking Act \nElliot tells Lisa on two separate occasions that he loves her. Lisa intensely dislikes \nElliot and wants nothing to do with him. Although Elliot's proclamations of love \nare unwelcome, Elliot probably has not committed the criminal act element \nrequired for stalking. Elliot's behavior does not threaten Lisa's safety or the \nsafety of her family members or property. Thus Elliot may not be charged with \nand convicted of stalking in most jurisdictions. \nExample of Stalking Act \nChange the example in Section 10 \"Example of a Case Lacking Stalking Act\" so \nthat Elliot tells Lisa he loves her on one occasion. Lisa frowns and walks away. \nElliot then follows Lisa and tells her that he will \"make her pay\" for not loving \nhim. Lisa ignores Elliot's statement, climbs into her car, and drives away. Later that evening, Elliot rings Lisa's doorbell. Lisa does not answer the door but yells \nat Elliot, telling him to leave. Disgruntled and angry, Elliot carves, \"you will die \nfor not loving me\" into Lisa's front door with his pocketknife. \nElliot's conduct could constitute the criminal act element required for stalking in \nmost jurisdictions. In this example, Elliot has followed Lisa and approached her, \nwhich is a repeated course of conduct. On two occasions Elliot threatened Lisa: \nonce by telling her he will \"make her pay\" and again by carving a death threat into \nher front door. Keep in mind that Elliot's threat to Lisa's safety must \nbe credible in many jurisdictions. Thus if Elliot is unable to actually harm Lisa for \nany reason, the trier of fact could find that he does not have the apparent \nability to carry out his threat, and he could not be convicted of stalking. \nStalking Intent \nThe criminal intent element required for stalking also varies, depending on the \njurisdiction. In most states, the defendant must commit the criminal act willfully \nor maliciously.Cal. Penal Code \u00a7 646.9, accessed February 22, \n2011, http://www.ncvc.org/src/main.aspx?dbID=DB_California176 (accessed \nFebruary 22, 1022). This indicates a specific intent or purposeful conduct. \nHowever, in states that require the victim to experience harm, a different \ncriminal intent could support the harm offense element. States that include bad \nresults or harm in their stalking statutes require either specific \nintent or purposely, general intent or knowingly, reckless \nintent, negligent intent, or strict liability (no intent) to cause the harm, \ndepending on the state.\"Criminal Stalking Laws,\" Ncvc.org website, accessed \nFebruary 22, 2011, http://www.ncvc.org/src/main.aspx?dbID=DB_State-\nbyState_Statutes117. \nExample of Stalking Intent \nReview the stalking act example in Section 10 \"Example of Stalking Act\". In the \nmajority of states, Elliot must make the threatening statement and carve the threatening message into Lisa's front door willfully or maliciously. However, \nthe requirement that Elliot act with the intent to cause Lisa's reaction to this \nconduct varies, depending on the jurisdiction. In some jurisdictions, Elliot must \nact with the specific intent or purposely to cause Lisa to suffer the stalking harm, \nwhich is generally fear for bodily safety, the safety of family members, or fear of \ndamage to Lisa's property. In others, Elliot can act to cause Lisa's fear with \ngeneral intent or knowingly, reckless intent, or negligent intent. In some \njurisdictions, Elliot's purpose or awareness as to Lisa's feeling of fear is irrelevant \nbecause strict liability is the intent supporting the harm or bad results \nrequirement. \nStalking Causation \nIn jurisdictions that require harm for stalking, the defendant's criminal act must \nbe the factual and legal cause of the harm, which is defined in Section 10 \n\"Stalking Harm\". \nStalking Harm \nAs stated previously, some states require a specific harm element in their \nstalking statutes. This element is defined differently depending on the state but \ngenerally amounts to victim fear. The fear is typically fear of bodily injury or \ndeath of the victimAla. Code \u00a7 13A-6-90, accessed February 22, \n2011, http://www.ncvc.org/src/main.aspx?dbID=DB_Alabama390. or of the \nvictim's family member,Alaska Stat. \u00a7 11.41.270 \n(a), http://www.ncvc.org/src/main.aspx?dbID=DB_Alaska803. or damage to the \nvictim's property.Tex. Penal Code \u00a7 42.072(a) (1) (C), accessed February 22, \n2011, http://www.ncvc.org/src/main.aspx?dbID=DB_Texas176. States also \nemploy different tests to ascertain the harm element. States can require \nsubjective and objective fear,Tex. Penal Code \u00a7 42.072, accessed February 22, \n2011, http://www.ncvc.org/src/main.aspx?dbID=DB_Texas176. just subjective \nfear,Alaska Stat. \u00a7 11.41.270 (a), accessed February 22, 2011, http://www.ncvc.org/src/main.aspx?dbID=DB_Alaska803. or just objectiv\ne fear.Md. Code Ann. \u00a7 3-802, accessed February 22, \n2011, http://www.ncvc.org/src/main.aspx?dbID=DB_Maryland678. Subjective \nfear means the victim must actually experience fear. Objective fear means a \nreasonable victim under similar circumstances would experience fear. \nExample of Stalking Harm \nReview the stalking act example in Section 10 \"Example of Stalking Act\". In \njurisdictions that require subjective and objective victim fear as the harm \nelement for stalking, Elliot must cause Lisa to experience fear that \nis reasonable under the circumstances. In a jurisdiction that requires only \nsubjective victim fear, Elliot must cause Lisa to feel fear, either reasonably or \nunreasonably. In a jurisdiction that requires only objective fear, Elliot must act in \na manner that would cause a reasonable victim under similar circumstances to \nexperience fear. Keep in mind that if Lisa is aware of a circumstance that makes it \nunlikely that Elliot can carry out his threat, Elliot could not be convicted of \nstalking in a jurisdiction that requires Lisa to experience subjective fear. \nStalking Grading \nJurisdictions vary as to how they grade stalking. Many states divide stalking into \ndegrees or grade it as simple and aggravated. First-degree or aggravated stalking \nis generally graded as a felony, and second-degree or simple stalking is generally \ngraded as a misdemeanor.Alaska Stat. \u00a7\u00a7 11.41.260, 11.41.270, accessed February \n22, 2011, http://www.ncvc.org/src/main.aspx?dbID=DB_Alaska803. Factors \nthat could enhance grading are the violation of a restraining or protective order, \nthe use of a weapon, a youthful victim, or previous convictions for stalking.Alaska \nStat. \u00a7 11.41.260, accessed February 24, \n2011, http://www.ncvc.org/src/main.aspx?dbID=DB_Alaska803. \nFigure 10.9 Diagram of Domestic Violence and Stalking KEY TAKEAWAYS \n\u2022 Individuals covered by domestic violence statutes are relatives by blood or \nmarriage, individuals who share a child, ex-spouses and ex-lovers, and individuals \nwho reside together. \n\u2022 Some special features of domestic violence statutes are special training for law \nenforcement in domestic issues, protection of the victim by no-contact orders \nand nondisclosure of the victim's residence address, the duty of law enforcement \nor prosecutors to inform the victim of the decision of whether to prosecute and \nthe duty to inform the victim of special procedures available to protect domestic \nviolence victims, the ability to arrest domestic violence offenders with or without \na warrant, special factors to consider in the sentencing of domestic violence \ndefendants, and peace officer immunity for enforcement of domestic violence \nprovisions. \n\u2022 The criminal act element required for stalking varies, but in general it is \nrepeatedly engaging in a course of conduct that poses a credible threat to the \nvictim's safety, including following, harassing, approaching, or pursuing the \nvictim. \n\u2022 The criminal intent supporting the stalking criminal act is specific intent or \npurposely in most jurisdictions. Some jurisdictions require a different criminal \nintent to support the harm requirement: either specific intent or purposely, \ngeneral intent or knowingly, reckless intent, negligent intent, or strict liability. \n\u2022 Some jurisdictions require the defendant to cause harm, which is victim fear of \nserious bodily injury, fear of death of the victim or the victim's family member, or \ndamage to the victim's property. The test for victim fear varies and could be \neither subjective and objective fear, just subjective fear, or just objective fear. \n\u2022 It is common to divide stalking into degrees or grade it as simple and aggravated. \nFirst-degree or aggravated stalking is generally graded as a felony, and second-\ndegree or simple stalking is generally graded as a misdemeanor. Factors that can \naggravate grading are the violation of a restraining or protective order, the use of \na weapon, a youthful victim, or previous convictions for stalking. EXERCISES \nAnswer the following questions. Check your answers using the answer key at the \nend of the chapter. \n1. Chris punches and slaps Rhianna, his roommate and girlfriend. Could this be \nconsidered domestic violence? \n2. Read State v. Holbach, 2009 ND 37 (2009). In Holbach, the defendant appealed a \nconviction for stalking based on his constitutionally protected right to travel \naround town and do errands. The defendant was on probation for stalking the \nvictim and subject to conditions of probation, including a stay-away order. \nHowever, the victim claimed that she saw the defendant following her around \ntown on many occasions. Did the Supreme Court of North Dakota uphold the \ndefendant's stalking conviction? Why or why not? The case is available at this \nlink: http://scholar.google.com/scholar_case?case=14788412528928431856&q= \nstalking&hl=en&as_sdt=2,5&as_ylo=2009. \n3. Read Burke v. State, 676 S.E.2d 766 (2009). Why did the Court of Appeals of \nGeorgia reverse the defendant's conviction for aggravated stalking in this case? \n10.4 Kidnapping and False Imprisonment \nLEARNING OBJECTIVES \n1. Define the criminal act element required for kidnapping. \n2. Define the criminal intent element required for kidnapping. \n3. Define the harm element required for kidnapping. \n4. Define the attendant circumstance element required for kidnapping. \n5. Analyze kidnapping grading. \n6. Compare false imprisonment with kidnapping. \n7. Identify two potential defenses to kidnapping and false imprisonment. \n8. Identify two special features of interference with custody statutes. Kidnapping and false imprisonment are crimes that involve physical restraint and intrude on \nthe liberty interests of victims. In ancient times, kidnapping was used to remove members of \nroyalty from the kingdom for ransom or to implement the overthrow of the existing \nmonarchy. In the United States, high-profile kidnapping cases, such as the Lindbergh baby \nkidnapping 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 \npenalty or life in prison without the possibility of parole. \nIn modern times, kidnapping is still a serious felony, although the US Supreme Court has \nheld that capital punishment for any crime against an individual other than criminal \nhomicide is unconstitutional. False imprisonment is generally a lesser included offense of \nkidnapping and is graded lower, as is discussed in Section 10.4.2 \"False Imprisonment\". \nKidnapping Elements \nIn most jurisdictions, kidnapping has the elements of criminal act, criminal \nintent, causation, harm, and an attendant circumstance. \nKidnapping Act \nThe criminal act element required for kidnapping is twofold. First, the \ndefendant must confine the victim.720 ILCS \u00a7 5/10-\n1, http://law.onecle.com/illinois/720ilcs5/10-1.html. Second, in many states, the \ndefendant must move the victim, which is called asportation. One common issue \nwith the kidnapping criminal act is how far the victim must be moved. In the \nmajority of states, the movement can be slight, as long as it is not incidental to \nthe commission of a separate offense.People v. Dominguez, 140 P.2d 866 (2006), \naccessed February 24, \n2011, http://scholar.google.com/scholar_case?case=3515612573668484000&q= \nPeople+v.+Dominguez&hl=en&as_sdt=2,5. Other states do not require \nasportation when the kidnapping is for ransom.N.R.S. \u00a7 200.310, accessed \nFebruary 24, 2011, http://law.onecle.com/nevada/crimes/200.310.html. Some \nstates have done away with the asportation requirement altogether.N.C. Gen. Stat. \u00a7 14-39(a), accessed February 24, 2011, http://law.onecle.com/north-\ncarolina/14-criminal-law/14-39.html. The Model Penal Code requires the \nmovement to be from the victim's residence, place of business, or \"a substantial \ndistance from the vicinity where he is found\" (Model Penal Code \u00a7 212.1). \nHowever, when the kidnapping is for ransom, for the purpose of committing a \nfelony, to inflict bodily injury or terrorize the victim or another, or to interfere \nwith the performance of a governmental or political function, the Model Penal \nCode does not require asportation, although it does require confinement for a \n\"substantial period in a place of isolation\" (Model Penal Code \u00a7 212.1). \nExample of a Case Lacking Kidnapping Act \nJoseph breaks into Abby's home and sees Abby sitting on the couch. A picture \nwindow in front of the couch puts Abby in full view of the street and sidewalk. To \navoid detection, Joseph grabs Abby off the living room couch and drags her into \nthe bedroom to rape her. Joseph has probably not committed the criminal act \nelement required for kidnapping if the kidnapping statute in Joseph's state \nrequires asportation. Joseph forcibly confined Abby when he grabbed her. \nHowever, his movement of Abby from the couch to the bedroom appears \nincidental to the crime of rape, which is not sufficient to constitute kidnapping \nasportation in most jurisdictions. \nKidnapping Intent \nThe criminal intent element required for kidnapping in many jurisdictions \nis specific intent or purposely to commit the criminal act in order to harm or \ninjure the victim or another, confine or hold the victim in secret,N.R.S. \n\u00a7 200.310(2), accessed February 24, \n2011, http://law.onecle.com/nevada/crimes/200.310.html. receive a ransom, \ncommit a separate offense, subject the victim to involuntary servitude, or \ninterfere with the purpose of the government or some political function.Ariz. Rev. Stat. \u00a7 13-1304, accessed February 24, \n2011, http://law.onecle.com/arizona/criminal-code/13-1304.html. \nExample of Kidnapping Intent \nReview the example in Section 10 \"Example of a Case Lacking Kidnapping \nAct\" with Joseph and Abby. Change this example so that Joseph drags Abby to \nhis car, stuffs her into the trunk, and then drives fifteen miles to a deserted field \nwhere he thereafter removes her from the trunk and rapes her. Joseph probably \nhas the criminal intent required for kidnapping in most jurisdictions. Joseph \ncommitted the criminal act of forcible confinement and asportation with the \npurpose of raping Abby, which is specific intent or purposely to \"commit a \nseparate offense.\" Thus if the other elements of kidnapping are present, Joseph \ncan most likely be charged with and convicted of kidnapping, along with the \ncrime of rape. \nKidnapping Causation \nIn jurisdictions that require harm for kidnapping, the defendant's criminal act \nmust be the factual and legal cause of the harm, which is defined in Section 10 \n\"Kidnapping Harm\". \nKidnapping Harm \nThe harm element required for kidnapping in most jurisdictions \nis confinement and asportation. As stated previously, some jurisdictions have \ndone away with the asportation requirement or do not require asportation when \nthe kidnapping is for ransom. \nKidnapping Attendant Circumstance \nIn many jurisdictions, the attendant circumstance element required for \nkidnapping is that the confinement or asportation occur against the victim's will \nor without the victim's consent.N.C. Gen. Stat. \u00a7 14-39, accessed February 24, 2011, http://law.onecle.com/north-carolina/14-criminal-law/14-39.html. Thus \nconsent could function as a failure of proof or affirmative defense to \nkidnapping. \nExample of a Case Lacking Kidnapping Attendant Circumstance \nThomas sees Shawna hitchhiking on the side of a busy freeway at night. Thomas \npulls over, rolls down the window, and asks Shawna if she wants a ride. Shawna \nsays, \"sure,\" and climbs into Thomas's vehicle. Thomas drives away with Shawna \nin the front seat. Thomas has not committed kidnapping in this case. Although \nThomas confined and moved Shawna in his vehicle, the facts do not indicate that \nhe has the specific intent to harm her, obtain a ransom, confine her in secret, or \ncommit a separate offense. In addition, Shawna consented to the confinement \nand asportation. Thus the attendant circumstance element for kidnapping is \nalso absent and Thomas's conduct may be perfectly legal (unless engaging in \nhitchhiking is illegal in Thomas's state). \nExample of Kidnapping Attendant Circumstance \nChange the example given in Section 10 \"Example of a Case Lacking Kidnapping \nAttendant Circumstance\" so that after fifty miles of driving, Shawna asks Thomas \nto pull over and let her out. Thomas refuses, threatens to harm Shawna if she \ntries to escape, and continues to drive another twenty miles with Shawna in the \nfront seat. If Thomas acted with the proper kidnapping intent, Thomas might \nhave committed kidnapping in this case. Although Shawna's original entrance \ninto Thomas's vehicle and her asportation for the first fifty miles was consensual, \nonce Shawna requested that Thomas pull over and let her out, the confinement or \nasportation was against Shawna's will and without her consent. If the trier of fact \ndetermines that twenty miles is far enough to constitute sufficient asportation for \nkidnapping, Thomas could be charged with or convicted of this offense. Kidnapping Grading \nJurisdictions vary as to how they grade kidnapping. The Model Penal Code \ngrades kidnapping as a felony of the first or second degree (Model Penal Code \n\u00a7 212.1). Many states divide kidnapping into degrees or grade it as simple and \naggravated.N.R.S. \u00a7 200.310, accessed February 24, \n2011, http://law.onecle.com/nevada/crimes/200.310.html. First-degree or \naggravated kidnapping is generally graded as a serious felony, and second-degree \nor simple kidnapping is generally graded as a lower-level felony.N.R.S. \u00a7 200.310, \naccessed February 24, \n2011, http://law.onecle.com/nevada/crimes/200.310.html. One factor that could \nmitigate or reduce grading is the defendant's release of the victim unharmed in a \nsafe place.Ariz. Rev. Stat. \u00a7 13-1304(B), accessed February 24, \n2011, http://law.onecle.com/arizona/criminal-code/13-1304.html. Factors that \ncould enhance grading are the youth of the victimAriz. Rev. Stat. \u00a7 13-1304, \naccessed February 24, 2011, http://law.onecle.com/arizona/criminal-code/13-\n1304.html. or the infliction of serious bodily injury.N.C. Gen. Stat. \u00a7 14-39, \naccessed February 24, 2011, http://law.onecle.com/north-carolina/14-criminal-\nlaw/14-39.html. When kidnapping takes a victim across state lines, the defendant \ncan also be prosecuted for the additional offense of federal kidnapping.18 U.S.C. \n\u00a7 1201, accessed February 27, \n2011, http://www.law.cornell.edu/uscode/18/usc_sec_18_00001201----000-\n.html. \nFalse Imprisonment \nIn many jurisdictions, false imprisonment, also called felonious restraint, is a \nlesser included offense of kidnapping. This means that the crime of false \nimprisonment is missing one or two of the kidnapping elements and is graded \nlower than kidnapping. Often, false imprisonment functions as a partial \ndefense to kidnapping because of the less serious sentencing options. In general, \nfalse imprisonment and felonious restraint under the Model Penal Code require confinement but not asportation (Model Penal Code \u00a7212.2).18 Pa. C. S. \u00a7 2903, \naccessed February 25, 2011, http://law.onecle.com/pennsylvania/crimes-and-\noffenses/00.029.003.000.html. In some jurisdictions, false imprisonment \nrequires only general intent or knowingly to commit the criminal act, rather \nthan the specific intent or purposely to commit other crimes, harm the \nvictim, or receive a ransom.720 ILCS \u00a7 5/10-3, accessed February 25, \n2011, http://law.onecle.com/illinois/720ilcs5/10-3.html. False imprisonment \ndoes 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. \n\u00a7 2903, accessed February 25, 2011, http://law.onecle.com/pennsylvania/crimes-\nand-offenses/00.029.003.000.html. The Model Penal Code grades felonious \nrestraint as a felony of the third degree (Model Penal Code \u00a7 212.2). Factors that \ncan aggravate grading of false imprisonment are the youth of the victim18 Pa. C. \nS. \u00a7 2903, accessed February 25, \n2011, http://law.onecle.com/pennsylvania/crimes-and-\noffenses/00.029.003.000.html. or the use of force or violence to carry out the \ncriminal act.Cal. Penal Code \u00a7 237, accessed February 25, \n2011, http://law.onecle.com/california/penal/237.html. \nExample of False Imprisonment \nReview the case example given in Section 10 \"Example of a Case Lacking \nKidnapping Attendant Circumstance\". Change the facts so that after fifty miles of \ndriving, Shawna asks Thomas to pull over and let her out. Thomas pulls over but \nthereafter locks all the doors and refuses to let Shawna out for twenty minutes, in \nspite of her begging and pleading for him to unlock the doors. In this case, \nThomas might have committed false imprisonment. Although Shawna's entrance \ninto Thomas's vehicle was consensual, when Thomas confined Shawna to his \nvehicle by locking the doors, he deprived her of her liberty against her will. \nThomas did not move Shawna without her consent because he pulled over and \nstopped the vehicle at her request. However, asportation is not required for false \nimprisonment. Although Thomas's actions do not indicate specific intent or purposely to injure Shawna, commit a separate offense, or seek ransom, \noften general intent or knowingly to commit the criminal act is sufficient for \nfalse imprisonment. Thus these facts indicate the lower-level crime of false \nimprisonment rather than kidnapping, and Thomas may be charged with and \nconvicted of this offense. \nPotential Defenses to Kidnapping and False Imprisonment \nAs stated previously, consent is a potential failure of proof or affirmative \ndefense to kidnapping and false imprisonment in some jurisdictions. Another \npotential defense is lawful authority to execute the kidnapping or false \nimprisonment. Thus when a law enforcement officer or a citizen lawfully arrests a \ndefendant, he or she is not committing kidnapping or false imprisonment. By the \nsame token, if an arrest is executed unlawfully, it might be kidnapping, false \nimprisonment, or another related offense.N.C. Gen. Stat. \u00a7 14-43.1, accessed \nFebruary 25, 2011, http://law.onecle.com/north-carolina/14-criminal-law/14-\n43.1.html. \nFigure 10.10 Diagram of Defenses to Kidnapping and False Imprisonment Interference with Custody \nBecause of a dramatic increase in the abduction of children by their estranged \nparents and parental interference with child custody and visitation agreements, \nalmost all states have specifically criminalized interference with the custody \nof children18 Pa. C. S. \u00a7 2904, accessed February 25, \n2011, http://law.onecle.com/pennsylvania/crimes-and-\noffenses/00.029.004.000.html. or unlawful visitation.720 ILCS \u00a7 5/10-5.5, \naccessed February 25, 2011, http://law.onecle.com/illinois/720ilcs5/10-\n5.5.html. The significant features of these modern offenses are their specific \napplicability to parents as defendants and various defenses based on the good \nfaith belief that the child would be in danger without the allegedly criminal \nconduct.18 Pa. C. S. \u00a7 2904, accessed February 25, \n2011, http://law.onecle.com/pennsylvania/crimes-and-\noffenses/00.029.004.000.html. Grading of these offenses varies, with some \nstates grading nonforcible parental interference with custody as a \nmisdemeanor720 ILCS \u00a7 5/10-5.5, accessed February 25, \n2011, http://law.onecle.com/illinois/720ilcs5/10-5.5.html. and others as a low-\nlevel felony.18 Pa. C. S. \u00a7 2904, accessed February 25, \n2011, http://law.onecle.com/pennsylvania/crimes-and-\noffenses/00.029.004.000.html. \nTable 10.3 Comparing Kidnapping and False Imprisonment \nCrime \nCriminal \nAct \nCriminal \nIntent \nHarm \nCircumstanc\ne \nGrading \nKidnapping \nConfinemen\nt plus \nasportation \nSpecific or \npurposely \nConfinemen\nt plus \nasportation \nLack of \nconsent \nFelony Crime \nCriminal \nAct \nCriminal \nIntent \nHarm \nCircumstanc\ne \nGrading \nFalse \nimprisonmen\nt \nConfinemen\nt \nGeneral or \nknowingly \nin some \njurisdiction\ns \nConfinemen\nt \nLack of \nconsent \nGross \nmisdemeano\nr or low-\nlevel felony \nFigure 10.11 Diagram of Crimes against the Person KEY TAKEAWAYS \n\u2022 The criminal act element required for kidnapping in many jurisdictions is \nconfinement and asportation of the victim. Some states do not require \nasportation when the kidnapping is for ransom, and others have done away with \nthe asportation requirement altogether. \u2022 The criminal intent element required for kidnapping in many jurisdictions is the \nspecific intent or purposely to commit the criminal act in order to harm or injure \nthe victim or another, confine or hold the victim in secret, receive a ransom, \ncommit a separate offense, subject the victim to involuntary servitude, or \ninterfere with the purpose of the government or some political function. \n\u2022 The harm element required for kidnapping in many jurisdictions is confinement \nand asportation of the victim. \n\u2022 The attendant circumstance element required for kidnapping is lack of victim \nconsent. \n\u2022 Kidnapping is generally graded as first degree or aggravated or as second degree \nor simple. First-degree or aggravated kidnapping is typically a serious felony, \nwhile second-degree or simple kidnapping is typically a low-level felony. One \nfactor that could mitigate or reduce grading is the release of the victim unharmed \nin a safe place. Factors that could aggravate grading are the youth of the victim \nor the infliction of serious bodily injury. \n\u2022 False imprisonment is often a lesser included offense of kidnapping, missing the \nasportation element, and requiring general intent or knowing commission of the \ncriminal act. False imprisonment is also graded lower than kidnapping as either a \ngross misdemeanor or a low-level felony. \n\u2022 Two potential defenses to kidnapping and false imprisonment are victim consent \nand a lawful arrest by a law enforcement officer or citizen. \n\u2022 Interference with custody statutes specifically include parents as defendants and \nallow for a good faith defense that a child would suffer injury if not for the \nallegedly criminal conduct. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the \nend of the chapter. \n1. Coby is in the process of robbing a bank. When a security guard threatens to \nshoot Coby, he grabs a customer in the bank and holds a knife to her throat. Coby thereafter demands a getaway vehicle and fifty thousand dollars in cash in \nexchange for the hostage's release. Has Coby committed kidnapping in this case? \nWhy or why not? \n2. Read State v. Salaman, 949 A.2d 1092 (2008). In Salaman, the defendant grabbed \nthe victim, pinned her to the stairs for five minutes, punched her in the face, and \nviolently stuck his fingers down her throat. He was thereafter convicted of \nsecond-degree kidnapping and appealed, claiming his restraint of the victim was \nmerely incidental to the crime of assault. In Connecticut, the state where the \noffense occurred, the kidnapping criminal act is restraint with the specific intent \nto prevent the victim's liberation. Connecticut also had case precedent holding \nthat restraint that is incidental to the commission of a separate offense is still \nkidnapping. Did the Supreme Court of Connecticut uphold the defendant's \nconviction? The case is available at this \nlink: http://scholar.google.com/scholar_case?case=13933358391504195031&q= \nkidnapping&hl=en&as_sdt=2,5&as_ylo=2008. \n3. Read Commonwealth v. Rivera, 828 A.2d 1094 (2003). In Rivera, the defendant, \nwho had a court order depriving him of custody, forcibly removed his daughter \nfrom her day care and drove around with her in his car, frequently calling and \nterrorizing the child's mother. The defendant's daughter disappeared, and the \ndefendant was later convicted of felony murder, kidnapping, and other offenses. \nThe underlying felony for the felony murder was kidnapping, and the defendant \nappealed claiming he could not legally kidnap his own biological child. Did the \nSuperior Court of Pennsylvania affirm the defendant's felony murder and \nkidnapping convictions? Why or why not? \n10.5 End-of-Chapter Material \nSummary \nStates vary as to how they categorize and grade sex offenses. In general, rape is \nknowing, forcible sexual intercourse without consent or with consent obtained involuntarily. Although the victim had to resist to indicate lack of consent at early \ncommon law, in modern times the victim need not resist if it would be futile to do \nso. Another modernization from common-law rape is the elimination of an \nexemption 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 \ngovern the admissibility of evidence of the victim's past sexual conduct at a trial \nfor rape. Sodomy and oral copulation are sometimes combined and included with \nrape in one statute called sexual assault. If sodomy and oral copulation are the \nsubject of separate statutes, sodomy is typically knowing forcible penis to anus \npenetration, and oral copulation is typically knowing forcible mouth to sexual \norgan or anus penetration. Statutory rape is generally sexual intercourse with an \nunderage victim either recklessly, negligently, or with strict liability depending on \nthe jurisdiction, and incest is generally knowing sexual intercourse between \nfamily members who cannot marry. States vary as to how they grade sex offenses, \nwith force and penetration enhancing the grading to a felony in most \njurisdictions. \nAssault and battery are often included in the same statute (called assault) but are \nactually separate offenses with distinct elements. Battery is generally a \npurposeful, knowing, reckless, or negligent (depending on the jurisdiction) \nunlawful harmful or offensive touching without victim consent. Assault can be \nattempted battery, in which case all the elements of battery except the physical \ncontact are present, or threatened battery, which is a purposeful act that causes \napprehension of harmful or offensive physical contact in the victim. Simple \nbattery and simple assault are typically misdemeanors, while aggravated versions \nof 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 \noffenses, or criminal homicide between family members and have special \nprovisions that pertain to interfamily violence. Stalking criminalizes a purposeful \ncourse of conduct that poses a credible threat to the victim's safety. Cyberstalking is the use of the Internet or e-mail to commit stalking. Simple stalking is \ngenerally 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 \nvictim for the purpose of injuring or harming the victim or another, hiding the \nvictim in secret, obtaining a ransom, committing a separate offense, subjecting \nthe victim to involuntary servitude, or interfering with the purpose of \ngovernment or political function. False imprisonment is a lesser included offense \nof kidnapping that does not include asportation or specific intent. Interference \nwith custody is parental kidnapping or violation of a child custody or visitation \nagreement. While kidnapping is typically a felony, false imprisonment and \ninterference with custody are generally graded lower, as either a gross \nmisdemeanor or low-level felony. \nYOU BE THE LAW ENFOR CEMENT OFFICER \nYou are a newly hired law enforcement officer starting out in the file room. You \nhave been given five case files. To properly file them, first read over the facts of \neach case, determine which crime has been committed, and determine whether \nthe crime is a misdemeanor or felony. Check your answers using the answer key \nat the end of the chapter. \n1. The defendant was on a date with the victim. After a few drinks, the victim \nbecame extremely intoxicated, and the defendant had to have help carrying him \nto her vehicle. The defendant thereafter drove to a secluded area where she had \nsexual intercourse with the victim. The victim was unconscious and did not \ndiscover the act of sexual intercourse until two months later when the defendant \ntold him she was pregnant. Which crime has been committed? Is the crime \na misdemeanor or a felony? \n2. The defendant, a security guard, forced the victim, a shopper in the store, to kiss \nhim by threatening to falsely arrest her for shoplifting if she refused. \nWhich crime is this? Is this a misdemeanor or a felony? 3. The defendant chased the victim with a knife for two miles. After the defendant \nwas arrested, law enforcement determined that the \"knife\" was made of rubber \nand could not cause injury. Which crime has been committed? Is the crime \na misdemeanor or a felony? \n4. The defendant grabbed a law enforcement officer's gun and pointed it at him \nwhile the law enforcement officer was having coffee in a local restaurant. \nWhich crime has been committed? Is the crime a misdemeanor or a felony? \n5. The defendant, a jilted lover, picked up her ex-boyfriend's child from school and \ntook her to an amusement park where they spent the afternoon going on rides \nand eating junk food. Which crime has been committed? Is the crime \na misdemeanor or a felony? \nCases of Interest \n\u2022 U.S. v. Lanier, 520 U.S. 259 (1997), discusses sexual assault by a judge as \nthe subject of a federal criminal \naction: http://www.law.cornell.edu/supct/html/95-1717.ZS.html \n\u2022 Oregon v. Rangel, 934 P.2d 1128 (1997), discusses the constitutionality of \nOregon's stalking statute under the First \nAmendment: http://www.publications.ojd.state.or.us/S44151.htm. \n\u2022 Chatwin v. U.S., 326 U.S. 455 (1946), discusses federal kidnapping in the \ncontext of joining a religious \ncult: http://supreme.justia.com/us/326/455/case.html. \nArticles of Interest \n\u2022 High-profile criminal cases, including rape criminal \ncases: http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=224\n0&context=bclr \n\u2022 The sexual assault case of former IMF chief, Dominique Strauss-\nKahn: http://www.nytimes.com/2011/05/26/nyregion/strauss-kahns-\nlead-prosecutor-is-said-to-be-replaced.html \u2022 Cyberstalking among college \nstudents: http://btci.stanford.clockss.org/cgi/reprint/5/3/279 \n\u2022 Parental kidnapping and domestic \nviolence: http://www.vaw.umn.edu/documents/pkreport/pkreport.html \nWebsites of Interest \n\u2022 State statutes on statutory \nrape: http://aspe.hhs.gov/hsp/08/SR/StateLaws/statelaws.shtml \n\u2022 Information about various sex \noffenses: http://www.sexlaws.org/what_is_statutory_rape \n\u2022 Information about stalking: http://www.stalkingbehavior.com \nStatistics of Interest \n\u2022 Rape and other sex offenses: http://www.rainn.org/statistics \n\u2022 Nationwide crime by state: http://www.disastercenter.com/crime \nAnswers to Exercises \nFrom Section 10.1 \"Sex Offenses\" \n1. The sexual intercourse could be rape or statutory rape if either Jorge or \nChristina (or both) are incapable of rendering legal consent because they \nare below the age of consent, have mental or intellectual disabilities, or are \nintoxicated. If Jorge and Christina are incapable of marrying because of a \nfamily relationship, their sexual intercourse could be incest. \n2. The South Carolina Supreme Court upheld the defendant's conviction on \nthe grounds that force and victim resistance are not required when a \nvictim is under the age of legal consent. The court specifically stated that \nthe victim's inability to legally consent vitiates the need to prove the \ndefendant's use of force for rape. 3. The Court of Appeals of Texas held that state legislatures have broad \npowers to define crimes and criminal intent requirements, including the \npower to eliminate a culpable mental state. Thus the court upheld the \ndefendant's conviction and did not strike the strict liability aggravated \nsexual assault statute. The court reviewed significant state and federal \nprecedent to determine that the majority of states disallow the mistake of \nage defense, and that this does not violate federal or Texas state due \nprocess because it is supported by the legitimate government interest of \nprotecting children. \nAnswers to Exercises \nFrom Section 10.2 \"Assault and Battery\" \n1. In the first scenario where Bob swings once and misses, then swings again \nand connects, two crimes have been committed: assault and battery. The \nfirst swing that misses is an assault. The swing that punches Rick in the \nstomach is a battery. In the second scenario, where Bob only swings and \nmisses, only an assault has been committed. \n2. The defendant threw a cup of urine in the victim's face. Although the \nbattery statute in Wisconsin requires bodily harm, the court held that \nthe stinging sensation in the victim's eyes was sufficient and upheld the \ndefendant's conviction. \n3. The Supreme Judicial Court of Massachusetts upheld the defendant's \nconviction, reasoning that the defendant's apparent ability to \nconsummate 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 \nrather than bullets. \nAnswers to Exercises \nFrom Section 10.3 \"Domestic Violence and Stalking\" 1. Most domestic violence statutes include individuals residing together, \nso this could be domestic violence battery or assault. \n2. The Supreme Court of North Dakota upheld the defendant's conviction, \nstating that the constitutional right to travel is not absolute and can be \nrestricted to protect a victim from harm, as in this case. \n3. The Court of Appeals of Georgia reversed the defendant's conviction \nbecause aggravated stalking in Georgia requires a course of \nconduct violating a protective order. In this case, the prosecution only \nproved that the defendant committed one act violating the protective \norder. \nAnswers to Exercises \nFrom Section 10.4 \"Kidnapping and False Imprisonment\" \n1. If Coby's state does not require asportation for kidnapping when the \nkidnapping is for ransom, then Coby has probably committed kidnapping. \nHe confined a victim against her will with the purpose of committing \nanother offense (theft) and demanded a ransom, which are all the \nelements of kidnapping. \n2. The Connecticut Supreme Court rejected precedent and changed the \nrule that an act of kidnapping could be incidental to the commission of a \nseparate offense. Thereafter, the court ordered a new trial on the \nkidnapping charge, although it surmised that a jury could reasonably find \nthe defendant guilty of kidnapping separate from the assault. \n3. The Superior Court of Pennsylvania affirmed the defendant's convictions, \nholding that the kidnapping statute applied to any individual\u2014including \na parent. Answer to Law and Ethics Question \n1. Rape shield laws focus on the protection of the victim at trial and preclude \nthe admission of evidence of the victim's sexual history (other than a \nsexual history with the defendant). They do not necessarily prevent the \nmedia from publishing information about the victim or from taunting the \nvictim. Of course, in the Bryant case, this publication ended up badly \ndemoralizing and frightening the victim, leading to the eventual demise of \nthe rape case against Bryant. However, blanket prohibitions against \npublication of information by the media would be overbroad and would \nviolate the First Amendment. A balance must be present between \nprotection of the victim, preservation of the right to a fair trial, and \nfreedom of speech. This case illustrates the damage the media can do to a \nfair trial, unprejudiced jury, and a willing and cooperative victim. \nHowever, the public's right to know is also paramount and cannot be \nsublimated without narrow tailoring and a compelling government \ninterest. \nAnswers to You Be the Law Enforcement Officer \n1. The crime is rape. Although nonforcible, sexual intercourse with an \ninebriated or unconscious victim is still rape. Rape can be committed by a \nwoman in most jurisdictions. Rape is a felony. \n2. The crime is simple battery, as long as your jurisdiction criminalizes \n\"offensive\" physical contact. Simple battery is a misdemeanor. \n3. The crime is threatened battery assault. Threatened battery assault \ntypically requires apparent, rather than present, ability. Threatened \nbattery assault that does not involve a deadly weapon is a misdemeanor. \n4. The crime is assault with a deadly weapon. The defendant committed \nthe assault with a deadly weapon and inflicted it against a law enforcement \nofficer, so the assault is a felony. 5. The crime is kidnapping. Although the child was unharmed, children \ncannot give legal consent, so the crime was complete once there was \nconfinement and asportation with the proper criminal intent (most likely \nthe intent to \"confine the child in secret\"). Kidnapping is a felony. Chapter 11Crimes against Property Source: Image courtesy of Jane F. Kardashian, MD. \nArson is one of the easiest crimes to commit on the spur of the moment\u2026it takes \nonly seconds to light a match to a pile of clothes or a curtain\u2026 \nPeople v. Atkins, cited in Section 11 \"Arson Intent\" \n11.1 Nonviolent Theft Crimes \nLEARNING OBJECTIVES \n1. Define the criminal act element required for consolidated theft statutes. \n2. Define the criminal intent element required for consolidated theft statutes. \n3. Define the attendant circumstances required for consolidated theft statutes. \n4. Define the harm element required for consolidated theft statutes, and distinguish \nthe harm required for larceny theft from the harm required for false pretenses \ntheft. \n5. Analyze consolidated theft grading. \n6. Define the elements required for federal mail fraud, and analyze federal mail \nfraud grading. \nAlthough crimes against the person such as murder and rape are considered extremely \nheinous, crimes against property can cause enormous loss, suffering, and even personal \ninjury or death. In this section, you review different classifications of nonviolent theft crimes \nthat are called white-collar crimes when they involve commercial theft. Upcoming sections \nanalyze theft crimes that involve force or threat, receiving stolen property, and crimes that \ninvade 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 \nthe chapter. \nConsolidated Theft Statutes \nHistorically, nonviolent theft was broken down into three \ncategories: larceny, embezzlement, and false pretenses. 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 \none consolidated theft statute, with a uniform grading system largely dependent \non the value of the stolen property. The Model Penal Code \nconsolidates all nonviolent theft offenses, including receiving stolen property and \nextortion, under one grading system (Model Penal Code \u00a7 223.1). What follows is \na discussion of theft as defined in modern consolidated theft statutes, making \nnote of the traditional distinctions among the various theft categories when \nappropriate. Theft has the elements of criminal act, criminal intent, attendant \ncircumstances, causation, and harm, as is discussed in this chapter. \nConsolidated Theft Act \nThe criminal act element required under consolidated theft statutes is \nstealing real property, personal property, or services. Real property is land \nand anything permanently attached to land, like a building. Personal \nproperty is any movable item. Personal property can be tangible property, like \nmoney, jewelry, vehicles, electronics, cellular telephones, and clothing. Personal \nproperty can also be intangible property, which means it has value, but it cannot \nbe touched or held, like stocks and bonds. The Model Penal Code criminalizes \ntheft by unlawful taking of movable property, theft by deception, theft of services, \nand theft by failure to make required disposition of funds received under one \nconsolidated grading provision (Model Penal Code \u00a7\u00a7 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 \nsteals by a physical taking, the theft is generally a larceny theft. The act of \ntaking is twofold. First, the defendant must gain control over the item. Then the \ndefendant must move the item, which is called asportation, as it is with \nkidnapping.Britt v. Commonwealth, 667 S.E.2d 763 (2008), accessed March 8, \n2011, http://scholar.google.com/scholar_case?case=2834311189194937383&q= \nlarceny+asportation&hl=en&as_sdt=2,5&as_ylo=1999. Although asportation for kidnapping must be a certain distance in many jurisdictions, the asportation for \nlarceny can be any distance\u2014even the slightest motion is sufficient.Britt v. \nCommonwealth, 667 S.E.2d 763 (2008), accessed March 8, \n2011, http://scholar.google.com/scholar_case?case=2834311189194937383&q= \nlarceny+asportation&hl=en&as_sdt=2,5&as_ylo=1999. Control plus asportation \ncan be accomplished by the defendant's physical act or by deceiving the victim \ninto transferring the property with a false representation of fact. This is \ncalled larceny by trick. Because larceny requires a physical taking, it generally \nonly pertains to personal property. \nAnother way for a defendant to steal property is to convert it to the defendant's \nuse or ownership. Conversion generally occurs when the victim \ntransfers possession of the property to the defendant, and the defendant \nthereafter appropriates the property transferred. When the defendant steals by \nconversion, the theft is generally an embezzlement theft.Commonwealth v. \nMills, 436 Mass. 387 (2002), accessed March 7, \n2011, http://scholar.google.com/scholar_case?case=14428947695245966729&q\n= \nlarceny+false+pretenses+embezzlement&hl=en&as_sdt=2,5&as_ylo=1997. Emb\nezzlement could occur when the defendant gains possession of property from a \nfriendship or a family relationship or from a paid relationship such as employer-\nemployee or attorney-client. Embezzlement does not require a physical taking, so \nit can pertain to real or personal property. \nWhen the defendant steals by a false representation of fact, and the subject of the \ntheft is a service, the theft is generally a false pretenses theft.Cal. Penal Code \n\u00a7 484(a), accessed March 8, \n2011, http://law.onecle.com/california/penal/484.html. False pretenses \ncan also be used to steal personal or real property and is very similar to larceny \nby trick in this regard. What differentiates false pretenses from larceny by trick is \nthe status of the property after it is stolen, which is discussed under the harm \nelement of consolidated theft statutes. To summarize, whether the defendant steals by a physical taking, a conversion, or \na false representation of fact, and whether the defendant steals real or personal \nproperty or a service, the crime is theft under modern consolidated theft statutes \nand is graded primarily on the value of the property or service stolen. \nExample of Consolidated Theft Act \nJeremy stops by the local convenience store on his way to work and buys some \ncigarettes. Before paying for the cigarettes, Jeremy slips a package of chewing \ngum into his pocket and does not pay for it. Jeremy continues walking to his job \nat a local gas station. When one of the customers buys gas, Jeremy only rings him \nup for half of the amount purchased. Once the gas station closes, Jeremy takes \nthe other half out of the cash register and puts it in his pocket with the chewing \ngum. After work, Jeremy decides to have a drink at a nearby bar. While enjoying \nhis drink, he meets a patron named Chuck, who is a taxi driver. Chuck mentions \nthat his taxi needs a tune-up. Jeremy offers to take Chuck back to the gas station \nand do the tune-up in exchange for a taxi ride home. Chuck eagerly agrees. The \ntwo drive to the gas station, and Jeremy suggests that Chuck take a walk around \nthe block while he performs the tune-up. While Chuck is gone, Jeremy lifts the \nhood of the taxi and then proceeds to read a magazine. When Chuck returns \ntwenty-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 \nslips the package of chewing gum into his pocket without paying for it, he has \nphysically taken personal property, which is a larceny theft. When Jeremy fails \nto ring up the entire sale for a customer and pockets the rest from the cash \nregister, he has converted the owner of the gas station's cash for his own use, \nwhich is an embezzlement theft. When Jeremy falsely represents to Chuck \nthat he has performed a tune-up of Chuck's taxi and receives a free taxi ride in \npayment, he has falsely represented a fact in exchange for a service, which is \na false pretenses theft. All three of these acts of theft could be prosecuted under one consolidated theft statute. The three stolen items have a relatively low \nvalue, so these crimes would probably be graded as a misdemeanor. Grading of \ntheft under consolidated theft statutes is discussed shortly. \nFigure 11.1 Diagram of Consolidated Theft Act Consolidated Theft Intent \nThe criminal intent element required under consolidated theft statutes is \neither specific intent or purposely, or general intent or knowingly to \nperform the criminal act, depending on the jurisdiction. The Model Penal Code \nrequires purposeful intent for theft by unlawful taking, deception, theft of \nservices, and theft by failure to make required disposition of funds received \n(Model Penal Code \u00a7\u00a7 223.2, 223.3, 223.7, 223.8). \nWhen the criminal intent is specific or purposely, the defendant must intend the \ncriminal act of stealing and must also intend to keep the stolen property.Itin v. \nUngar, 17 P.3d 129 (2000), accessed March 8, \n2011, http://scholar.google.com/scholar_case?case=12387802565107699365&q\n=theft+requires+ \nspecific+intent+to+permanently+deprive&hl=en&as_sdt=2,5&as_ylo=1999. Thi\ns could create a potential failure of proof or affirmative defense that the \ndefendant was only \"borrowing\" property and intended to return it after use. In \nsome jurisdictions, specific or purposeful intent to keep the property does not \napply to embezzlement theft under the traditional definition.In the Matter of \nSchwimmer, 108 P.3d 761 (2005), accessed March 8, \n2011, http://scholar.google.com/scholar_case?case=637183228950627584&q= \nembezzlement+borrowing+%22no+intent+to+permanently+deprive%22&hl= \nen&as_sdt=2,5&as_ylo=1999. Thus in these jurisdictions, a defendant who \nembezzles property and later replaces it cannot use this replacement as a defense. \nExample of a Case Lacking Consolidated Theft Intent \nJorge goes to the nursery and spends hundreds of dollars on plants for his \ngarden. Some of the plants are delicate and must be put into the ground \nimmediately 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 \nhis neighbor's shovel is leaning against his neighbor's garage. If Jorge borrows his neighbor's shovel so that he can get his expensive plants into the ground, this \nappropriation would probably not constitute the crime of theft under a \nconsolidated theft statute in certain jurisdictions. Jorge had the intent to perform \nthe theft act of taking personal property. However, Jorge did not have the \nspecific or purposeful intent to deprive his neighbor of the shovel permanently, \nwhich is often required for larceny theft. Thus in this scenario, Jorge may not be \ncharged with and convicted of a consolidated theft offense. \nExample of Consolidated Theft Intent \nReview the example with Jeremy given in Section 11 \"Example of Consolidated \nTheft Act\". Change this example and assume when Jeremy charged his customer \nfor half of the sale and later pocketed fifty dollars from the cash register, his \nintent was to borrow this fifty dollars to drink at the bar and replace the fifty \ndollars the next day when he got paid. Jeremy probably has the criminal intent \nrequired for theft under a consolidated theft statute in many jurisdictions. \nAlthough Jeremy did not have the specific or purposeful intent to permanently \ndeprive the gas station owner of fifty dollars, this is not generally required \nwith embezzlement theft, which is the type of theft Jeremy committed. Jeremy \nhad the intent to convert the fifty dollars to his own use, so the fact that the \nconversion was only a temporary deprivation may not operate as a defense, and \nJeremy may be charged with and convicted of theft under a consolidated theft \nstatute. \nFigure 11.2 Crack the Code Larceny or False Pretenses Intent as to the False Statement of Fact \nAs stated previously, the taking in both larceny by trick and false pretenses \noccurs when the defendant makes a false representation of fact that induces the \nvictim to transfer the property or services. In many jurisdictions, the defendant \nmust have general intent or knowledge that the representation of fact \nis false and must make the false representation with the specific \nintent or purposely to deceive.People v. Lueth, 660 N.W.2d 322 (2002), \naccessed March 9, \n2011, http://scholar.google.com/scholar_case?case=16580779180424536816&q\n= false+pretenses+knowledge+statement+is+false+intent+to+deceive&hl= \nen&as_sdt=2,5&as_ylo=1999. The Model Penal Code criminalizes theft by \ndeception when a defendant purposely \"creates or reinforces a false impression, \nincluding false impressions as to law, value, intention or other state of mind\" \n(Model Penal Code \u00a7 223.3(1)). \nExample of Larceny or False Pretenses Intent as to the False \nRepresentation of Fact \nReview the example with Jeremy in Section 11 \"Example of Consolidated Theft \nAct\". In this example, Jeremy told Chuck that he performed a tune-up of Chuck's \ntaxi, when actually he just lifted the hood of the taxi and read a magazine. \nBecause Jeremy knew the representation was false, and made the representation \nwith the intent to deceive Chuck into providing him with a free taxi ride home, \nJeremy probably has the appropriate intent for theft of a service by false \npretenses, and he may be subject to prosecution for and conviction of this offense \nunder a consolidated theft statute. \nConsolidated Theft Attendant Circumstance of Victim Ownership \nAll theft requires the attendant circumstance that the property stolen is the \nproperty of another.Alaska Stat. \u00a7 11.46.100, accessed March 8, \n2011, http://law.justia.com/codes/alaska/2009/title-11/chapter-11-46/article- 01/sec-11-46-100. The criminal intent element for theft must support this \nattendant circumstance element. Thus mistake of fact or law as to the \nownership of the property stolen could operate as a failure of \nproof or affirmative defense to theft under consolidated theft statutes in \nmany jurisdictions.Haw. Rev. Stat. \u00a7 708-834, accessed March 8, \n2011, http://law.justia.com/codes/hawaii/2009/volume-14/title-37/chapter-\n708/hrs-0708-0834-htm. The Model Penal Code provides an affirmative defense \nto prosecution for theft when the defendant \"is unaware that the property or \nservice was that of another\" (Model Penal Code \u00a7 223.1(3) (a)). \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 \n\"Example of a Case Lacking Consolidated Theft Intent\". Change this example so \nthat Jorge arrives home from the nursery and begins frantically searching for his \nshovel in his toolshed. When he fails to locate it, he emerges from the shed and \nnotices the shovel leaning against his neighbor's garage. Jorge retrieves the \nshovel, uses it to put his plants into the ground, and then puts it into his toolshed \nand locks the door. If the shovel Jorge appropriated is actually his \nneighbor's shovel, which is an exact replica of Jorge's, Jorge may be able to \nuse mistake of fact as a defense to theft under a consolidated theft statute. \nJorge 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 \nvictim ownership is lacking, and Jorge probably will not be charged with and \nconvicted of theft under a consolidated theft statute. \nConsolidated Theft Attendant Circumstance of Lack of Consent \nTheft under a consolidated theft statute also typically requires the attendant \ncircumstance element of lack of victim consent.Tex. Penal Code \u00a7 31.03(b) (1), \naccessed March 8, 2011, http://law.justia.com/codes/texas/2009/penal-\ncode/title-7-offenses-against-property/chapter-31-theft. Thus victim consent to the taking or conversion may operate as a failure of proof or affirmative \ndefense in many jurisdictions. Keep in mind that all the rules of consent \ndiscussed in Chapter 5 \"Criminal Defenses, Part 1\" and Chapter 10 \"Sex Offenses \nand Crimes Involving Force, Fear, and Physical Restraint\" apply. Thus consent \nobtained fraudulently, as in larceny by trick or false pretenses, is not valid and \neffective and cannot form the basis of a consent defense. \nExample of a Consensual Conversion That Is Noncriminal \nReview the example given in Section 11 \"Example of Consolidated Theft Act\" with \nJeremy. Change the example so that the owner of the gas station is Jeremy's best \nfriend Cody. Cody tells Jeremy several times that if he is ever short of cash, he \ncan simply take some cash from the register, as long as it is not more than fifty \ndollars. Assume that on the date in question, Jeremy did not ring up half of a sale \nbut simply took fifty dollars from the register because he was short on cash, and \nhe needed money to order drinks at the bar. In this case, Jeremy may have a valid \ndefense of victim's consent to any charge of theft under a consolidated theft \nstatute. \nEmbezzlement Attendant Circumstance of a Relationship of Trust and \nConfidence \nIn many jurisdictions, embezzlement theft under a consolidated theft statute \nrequires the attendant circumstance element of a relationship \nof trust and confidence between the victim and the defendant.Commonwealth \nv. Mills, 436 Mass. 387 (2002), accessed March 7, \n2011, http://scholar.google.com/scholar_case?case=14428947695245966729&q\n= \nlarceny+false+pretenses+embezzlement&hl=en&as_sdt=2,5&as_ylo=1997. This \nrelationship is generally present in an employer-employee relationship, a \nfriendship, or a relationship where the defendant is paid to care for the victim's \nproperty. However, if the attendant circumstance element of trust and confidence is lacking, the defendant will not be subject to prosecution for embezzlement \nunder a consolidated theft statute in many jurisdictions. \nExample of a Case Lacking Embezzlement Attendant Circumstance \nTran sells an automobile to Lee. Tran's automobile has personalized license \nplates, so he offers to apply for new license plates and thereafter send them to \nLee. Lee agrees and pays Tran for half of the automobile, the second payment to \nbe made in a week. Lee is allowed to take possession of the automobile and drives \nit to her home that is over one hundred miles away. Tran never receives the \nsecond payment from Lee. When the new license plates arrive, Tran phones Lee \nand 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 \nLee have a relationship, it is not a relationship based on trust or confidence. \nTran and Lee have what is called a debtor-creditor relationship (Lee is the debtor \nand Tran is the creditor). Thus if the jurisdiction in which Tran sold the car \nrequires a special confidential relationship for embezzlement, Tran may not be \nsubject to prosecution for this offense. \nAttendant Circumstance of Victim Reliance Required for False Pretenses or \nLarceny by Trick \nA false pretenses or larceny by trick theft under a consolidated theft statute \nrequires the additional attendant circumstance element of victim reliance on \nthe false representation of fact made by the defendant.People v. Lueth, 660 \nN.W.2d 332 (2002), accessed March 9, \n2011, http://scholar.google.com/scholar_case?case=16580779180424536816&q\n= false+pretenses+knowledge+statement+is+false+intent+to+deceive&hl= \nen&as_sdt=2,5&as_ylo=1999. Thus a victim's knowledge that the statement \nis false could operate as a failure of proof or affirmative defense in many \njurisdictions. Example of a Case Lacking the Attendant Circumstance of Victim Reliance \nRequired for False Pretenses \nReview the example with Jeremy and Chuck in Section 11 \"Example of \nConsolidated Theft Act\". Change the example so that Chuck does not walk around \nthe block as Jeremy asked him to do. Instead, Chuck walks around the corner and \nthen spies on Jeremy while he reads a magazine with the hood open. Chuck takes \nout his phone and makes a videotape of Jeremy. After twenty-five minutes, Chuck \nwalks back over to Jeremy and thereafter gives Jeremy the free taxi ride home. \nWhen they arrive at Jeremy's house, Chuck shows Jeremy the videotape and \nthreatens to turn it over to the district attorney if Jeremy does not pay him two \nhundred dollars. In this case, Jeremy probably has a valid defense to false \npretenses theft. Chuck, the \"victim,\" did not rely on Jeremy's false representation \nof fact. Thus the attendant circumstance element of false pretenses is lacking and \nJeremy may not be subject to prosecution for and conviction of this offense. Keep \nin mind that this is a false pretenses scenario because Chuck gave Jeremy \na service, and larceny by trick only applies to personal property. Also note that \nChuck's action in threatening Jeremy so that Jeremy will pay him two hundred \ndollars may be the criminal act element of extortion, which is discussed shortly. \nFigure 11.3 Diagram of Defenses to Consolidated Theft Consolidated Theft Causation \nThe criminal act must be the factual and legal cause of the consolidated theft \nharm, which is defined in Section 11 \"Consolidated Theft Harm\". \nConsolidated Theft Harm \nConsolidated theft is a crime that always includes bad results or harm, which is \nthe victim's temporary or permanent loss of property or services, no matter how \nslight the value. In the case of theft by false pretenses and larceny by trick, in \nsome jurisdictions, the status of the property after it has been stolen determines \nwhich crime was committed. If the defendant becomes the owner of the stolen \nproperty, the crime is a false pretenses theft.People v. Curtin, 22 Cal. App. 4th \n528 (1994), accessed March 10, \n2011, http://scholar.google.com/scholar_case?case=3765672039191216315&q= \nfalse+pretenses+theft+of+a+service&hl=en&as_sdt=2,5&as_ylo=1999. If the \ndefendant is merely in possession of the stolen property, the crime is larceny by \ntrick.People v. Beaver, 186 Cal. App. 4th 107 (2010), accessed March 10, \n2011, http://scholar.google.com/scholar_case?case=12194560873043980150&q\n= false+pretenses+theft+of+a+service&hl=en&as_sdt=2,5&as_ylo=1999. When \nthe stolen property is money, the crime is false pretenses theft because the \npossessor of money is generally the owner.People v. Curtin, 22 Cal. App. 4th 528 \n(1994), accessed March 10, \n2011, http://scholar.google.com/scholar_case?case=3765672039191216315&q= \nfalse+pretenses+theft+of+a+service&hl=en&as_sdt=2,5&as_ylo=1999. \nExample of False Pretenses Theft Harm \nReview the example given in Section 11 \"Example of a Case Lacking \nEmbezzlement Attendant Circumstance\" with Tran and Lee. In this example, Lee \npaid Tran half of the money she owed him for his vehicle, with a promise to pay \nthe remainder in one week. Assume that Lee never intended to pay the second \ninstallment when she made the deal with Tran. Tran signs the ownership documents over to Lee, promises to send Lee the license plates when they arrive, \nand watches as Lee drives off, never to be seen again. In this example, Lee has \nmost likely committed false pretenses theft, rather than larceny by trick. Lee \nmade a false representation of fact with the intent to deceive and received a \nvehicle for half price in exchange. The vehicle belongs to Lee, and the ownership \ndocuments are in her name. Thus Lee has ownership of the stolen vehicle rather \nthan possession, and the appropriate offense is false pretenses theft. \nExample of Larceny by Trick Harm \nJacob, a car thief, runs up to Nanette, who is sitting in her Mercedes with the \nengine running. Jacob tells Nanette he is a law enforcement officer and needs to \ntake control of her vehicle to pursue a fleeing felon. Nanette skeptically asks \nJacob for identification. Jacob pulls out a phony police badge and says, \"Madam, \nI hate to be rude, but if you don't let me drive your vehicle, a serial killer will be \nroaming the streets looking for victims!\" Nanette grudgingly gets out of the car \nand 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's name. \nThus Jacob has possession of the stolen vehicle rather than ownership, and the \nappropriate offense is larceny by trick. \nConsolidated Theft Grading \nGrading under consolidated theft statutes depends primarily on the value of the \nstolen property. Theft can be graded by degreesConnecticut Jury Instructions \n\u00a7\u00a7 53a-119, 53a-122 through 53a-125b, accessed March 10, \n2011, http://www.jud.ct.gov/JI/criminal/part9/9.1-1.htm. or as petty theft, \nwhich is theft of property with low value, and grand theft, which is theft of \nproperty with significant value.Cal. Penal Code \u00a7 486, accessed March 10, \n2011, http://law.onecle.com/california/penal/486.html. Petty theft or theft of the \nsecond or third degree is generally a misdemeanor, while grand theft or theft of \nthe first degree is generally a felony, felony-misdemeanor, or gross misdemeanor, depending on the amount stolen or whether the item stolen is a firearm.Cal. \nPenal Code \u00a7 489, accessed March 10, \n2011, http://law.onecle.com/california/penal/489.html. The Model Penal Code \ngrades theft as a felony of the third degree if the amount stolen exceeds five \nhundred dollars or if the property stolen is a firearm, automobile, airplane, \nmotorcycle, or other motor-propelled vehicle (Model Penal Code \u00a7 223.1(2)). The \nModel Penal Code grades all other theft as a misdemeanor or petty misdemeanor \n(Model Penal Code \u00a7 223.1(2)). When determining the value of property for theft, \nin many jurisdictions, the value is market value, and items can be aggregated if \nthey were stolen as part of a single course of conduct.Connecticut Jury \nInstructions \u00a7\u00a7 53a-119, 53a-122 through 53a-125b, accessed March 10, \n2011, http://www.jud.ct.gov/JI/criminal/part9/9.1-1.htm. The Model Penal Code \nprovides that \"[t]he amount involved in a theft shall be deemed to be the highest \nvalue, by any reasonable standard\u2026[a]mounts involved in thefts committed \npursuant to one scheme or course of conduct, whether from the same person or \nseveral persons, may be aggregated in determining the grade or the offense\" \n(Model Penal Code \u00a7 223.1(2) (c)). \nTable 11.1 Comparing Larceny, Larceny by Trick, False Pretenses, and \nEmbezzlement \nCrime \nCriminal \nAct \nType of \nPropert\ny \nCriminal \nIntent \nAttendant \nCircumstanc\ne \nHarm \nLarceny \nTaking \ncontrol plus \nasportation \nPersonal \nSpecific or \npurposely to \ndeprive \nvictim \npermanently\n* \nVictim's \nproperty \n(applies to all \nfour theft \ncrimes), lack of \nvictim consent \nProperty \nloss Crime \nCriminal \nAct \nType of \nPropert\ny \nCriminal \nIntent \nAttendant \nCircumstanc\ne \nHarm \nLarceny by \ntrick \nTaking by a \nfalse \nrepresentatio\nn of fact \nPersonal \nSpecific or \npurposely to \ndeceive* \nVictim reliance \non false \nrepresentation \nVictim \nloses \npossession \nof \nproperty \nFalse \npretenses \nTaking by a \nfalse \nrepresentatio\nn of fact \nPersonal, \nreal, \nservices \nSpecific or \npurposely to \ndeceive* \nVictim reliance \non false \nrepresentation \nVictim \nloses \nownership \nof \nproperty \nEmbezzlemen\nt \nConversion \nPersonal, \nreal \nSpecific or \npurposely to \ndeprive \nvictim \ntemporarily \nor \npermanently\n* \nRelationship of \ntrust and \nconfidence \nbetween \ndefendant and \nvictim (some \njurisdictions) \nProperty \nloss either \ntemporary \nor \npermanen\nt \n*Some jurisdictions include general intent or knowingly to commit the \ncriminal act. \nNote: Grading under consolidated theft statutes is based primarily on \nproperty value; market value is the standard, and property can be \naggregated if stolen in a single course of conduct. \nFederal Mail Fraud \nThe federal government criminalizes theft by use of the federal postal service \nas federal mail fraud, a felony.18 U.S.C. \u00a7 1341, accessed March 18, \n2011, http://www.law.cornell.edu/uscode/18/usc_sec_18_00001341----000- .html. Like every federal offense, federal mail fraud is criminal in all fifty states. \nIn addition, a defendant can be prosecuted by the federal and state government \nfor one act of theft without violating the double jeopardy protection in the Fifth \nAmendment of the federal Constitution. \nThe criminal act element required for federal mail fraud is perpetrating a \n\"scheme to defraud\" using the US mail.18 U.S.C. \u00a7 1341, accessed March 18, \n2011, http://www.law.cornell.edu/uscode/18/usc_sec_18_00001341----000-\n.html. Scheme has been given a broad interpretation and includes \"everything \ndesigned to defraud by representations as to the past or present, or suggestions \nand promises as to the future.\"Durland v. U.S., 161 U.S. 306, 313 \n(1896), http://supreme.justia.com/us/161/306. Even one act of mailing is \nsufficient to subject the defendant to a criminal prosecution for this offense.U.S. \nv. McClelland, 868 F.2d 704 (1989), accessed March 18, \n2011, http://scholar.google.com/scholar_case?case=8428034080210339517&q= \nfederal+mail+fraud+%22one+letter%22&hl=en&as_sdt=2,5&as_ylo=2000. In \naddition, the defendant does not need to actually mail anything himself or \nherself.U.S. v. McClelland, 868 F.2d 704 (1989), accessed March 18, \n2011, http://scholar.google.com/scholar_case?case=8428034080210339517&q= \nfederal+mail+fraud+%22one+letter%22&hl=en&as_sdt=2,5&as_ylo=2000. The \ncriminal intent element required for federal mail fraud is general \nintent or knowingly or awareness that the mail will be used to further the \nscheme.U.S. v. McClelland, 868 F.2d 704 (1989), accessed March 18, \n2011, http://scholar.google.com/scholar_case?case=8428034080210339517&q= \nfederal+mail+fraud+%22one+letter%22&hl=en&as_sdt=2,5&as_ylo=2000. The \ndefendant does not have to intend that the US Mail will be used to commit the \ntheft, as long as use of the postal service is reasonably foreseeable in the ordinary \ncourse of business.U.S. v. McClelland, 868 F.2d 704 (1989), accessed March 18, \n2011, http://scholar.google.com/scholar_case?case=8428034080210339517&q= \nfederal+mail+fraud+%22one+letter%22&hl=en&as_sdt=2,5&as_ylo=2000. The \ndefendant's criminal act, supported by the appropriate intent, must be the factual and legal cause of the harm, which is the placement of anything in \nany post office or depository to be sent by the US Postal Service in furtherance of \nthe scheme to defraud.18 U.S.C. \u00a7 1341, accessed March 18, \n2011, http://www.law.cornell.edu/uscode/18/usc_sec_18_00001341----000-\n.html. \nThe Mail Fraud Act has been used to punish a wide variety of schemes, \nincluding Ponzi schemes, like the recent high-profile Bernie Madoff \ncase.Constance Parten, \"After Madoff: Notable Ponzi Schemes,\" CNBC website, \naccessed March 11, \n2011, http://www.cnbc.com/id/41722418/After_Madoff_Most_Notable_Ponzi_\nScams. In a Ponzi scheme, the defendant informs investors that their investment \nis being used to purchase real estate, stocks, or bonds, when, in actuality, the \nmoney is appropriated by the defendant and used to pay earlier investors. \nEventually this leads to a collapse that divests all investors of their investment. \nFederal statutes also punish bank fraud,18 U.S.C. \u00a7 1344, accessed March 11, \n2011, http://www.law.cornell.edu/uscode/18/usc_sec_18_00001344----000-\n.html. health care fraud,18 U.S.C. \u00a7 1347, accessed March 11, \n2011, http://www.law.cornell.edu/uscode/18/usc_sec_18_00001347----000-\n.html. securities fraud,18 U.S.C. \u00a7 1348, accessed March 11, \n2011, http://www.law.cornell.edu/uscode/18/usc_sec_18_00001348----000-\n.html. and fraud in foreign labor contracting.18 U.S.C. \u00a7 1351, accessed March 11, \n2011, http://www.law.cornell.edu/uscode/18/usc_sec_18_00001351----000-\n.html. Fraud committed by wire, television, and radio also is federally \ncriminalized.18 U.S.C. \u00a7 1343, accessed March 11, \n2011, http://www.law.cornell.edu/uscode/18/usc_sec_18_00001343----000-\n.html. \nBernard Madoff Video \nBernard Madoff $50 Billion Ponzi Scheme: How Did He Do It? The facts behind Bernie Madoff's Ponzi scheme are explained in this video: \n(click to see video) \nKEY TAKEAWAYS \n\u2022 The criminal act element required for consolidated theft statutes is stealing real \nor personal property or services. The defendant can commit the theft by a \nphysical taking (larceny), conversion of property in the defendant's possession \n(embezzlement), or a false representation of fact (false pretenses or larceny by \ntrick). \n\u2022 The criminal intent element required for consolidated theft statutes is either \nspecific intent or purposely, or general intent or knowingly to perform the \ncriminal act, depending on the jurisdiction. When the criminal intent is specific or \npurposely, the defendant must intend the criminal act of stealing and must also \nintend to keep the stolen property. For false pretenses or larceny by trick theft, in \nmany jurisdictions the defendant must have general intent or knowledge that the \nrepresentation of fact is false and must make the false representation with the \nspecific intent or purposely to deceive. \n\u2022 All theft generally requires the attendant circumstances that the property \nstolen is the property of another, and victim consent to the taking, \nconversion, or transfer of ownership is lacking. \no In many jurisdictions, embezzlement theft under a consolidated theft \nstatute requires the attendant circumstance element of a relationship of \ntrust and confidence between the victim and the defendant. \no A false pretenses or larceny by trick theft under a consolidated theft \nstatute requires the additional attendant circumstance element of victim \nreliance on the false representation of fact made by the defendant. \n\u2022 The harm element required for consolidated theft statutes is the victim's \ntemporary or permanent loss of property or services, no matter how slight the \nvalue. When the defendant gains possession of personal property by a false \nrepresentation of fact, the theft is larceny by trick theft. When the defendant gains ownership of personal property or possession of money, the theft is false \npretenses theft. \n\u2022 Theft can be graded by degrees or as petty theft, which is theft of property with \nlow value, and grand theft, which is theft of property with significant value. Petty \ntheft or theft of the second or third degree is generally a misdemeanor, while \ngrand theft or theft of the first degree is generally a felony, felony-misdemeanor, \nor gross misdemeanor, depending on the amount stolen or whether the item \nstolen is a firearm. \n\u2022 The criminal act element required for federal mail fraud is the use of the federal \npostal service to further any scheme to defraud. The criminal intent element \nrequired for this offense is general intent, knowingly, or awareness that the \npostal service will be used. The criminal act supported by the criminal intent must \nbe the factual and legal cause of the harm, which is the placement of anything in \na depository or postal office that furthers the scheme to defraud. Federal mail \nfraud is a felony. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the \nend of the chapter. \n1. Recall a scenario in Chapter 1 \"Introduction to Criminal Law\" where Linda and \nClara browse an expensive department store's lingerie department and Linda \nsurreptitiously places a bra in her purse and leaves the store without paying for \nit. What type of theft did Linda commit in this scenario? \n2. Ellen goes to the fine jewelry department at Macy's and asks the clerk if she can \nsee a Rolex watch, valued at ten thousand dollars. The clerk takes the watch out \nof the case and lays it on the counter. Ellen tells the clerk that her manager is \nsignaling. 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 \nslides off the counter, the clerk turns back around and pins Ellen's hand to the counter, shouting for a security guard. Has Ellen committed a crime in this \nscenario? If your answer is yes, which crime? \n3. Read State v. Larson, 605 N.W. 2d 706 (2000). In Larson, the defendant, the \nowner of an automobile leasing company, was convicted of theft by temporary \ntaking under a consolidated theft statute for failing to return security deposits to \ncustomers pursuant to their automobile lease contracts. The defendant \nappealed, claiming that the lease deposits were not the \"property of another.\" \nDid the Supreme Court of Minnesota uphold the defendant's conviction? Why or \nwhy not? The case is available at this \nlink: http://scholar.google.com/scholar_case?case=18374046737925458759&q= \nembezzlement+%22temporary+taking%22&hl=en&as_sdt=2,5. \n4. Read People v. Traster, 111 Cal. App. 4th 1377 (2003). In Traster, the defendant \ntold his employer that it was necessary to purchase computer-licensing \nagreements, and he was given the employer credit card to purchase them. The \ndefendant thereafter appropriated the money, never purchased the licenses, and \nquit his job a few days later. The defendant was convicted of theft by false \npretenses under a consolidated theft statute. Did the Court of Appeal of \nCalifornia uphold the defendant's conviction? Why or why not? The case is \navailable at this \nlink: http://scholar.google.com/scholar_case?case=14111729725043843748&q= \nlarceny+false+pretenses+possession+ownership&hl=en&as_sdt=2,5&as_ylo=200\n0. \n5. Read U.S. v. Ingles, 445 F.3d 830 (2006). In Ingles, the defendant was convicted of \nfederal mail fraud when his son's cabin was burned by arson and his son made a \nclaim for homeowner's insurance. The evidence indicated that the defendant was \ninvolved in the arson. The defendant's son was acquitted of the arson, and only \nthe insurance company, which sent several letters to the defendant's son, did the \nacts of mailing. Did the US Court of Appeals for the Fifth Circuit uphold the \ndefendant's conviction? 11.2 Extortion, Robbery, and Receiving Stolen Property \nLEARNING OBJECTIVES \n1. Define the criminal act element required for extortion. \n2. Define the criminal intent element required for extortion. \n3. Identify a potential defense to extortion. \n4. Define the attendant circumstances required for extortion. \n5. Define the harm element required for extortion. \n6. Analyze extortion grading. \n7. Identify the differences between robbery, larceny, and extortion. \n8. Analyze robbery grading. \n9. Define the criminal act element required for receiving stolen property. \n10. Define the criminal intent element required for receiving stolen property. \n11. Identify a failure of proof or affirmative defense to receiving stolen property in \nsome jurisdictions. \n12. Define the attendant circumstances and harm element required for receiving \nstolen property. \n13. Analyze receiving stolen property grading. \nExtortion \nAll states and the federal government criminalize extortion, which is also \ncalled blackmail.K.S.A. \u00a7 21-3428, accessed March 18, \n2011, http://kansasstatutes.lesterama.org/Chapter_21/Article_34/21-\n3428.html. As stated previously, the Model Penal Code criminalizes theft by \nextortion and grades it the same as all other nonforcible theft offenses (Model \nPenal Code \u00a7 223.4). Extortion is typically nonviolent, but the elements of \nextortion are very similar to robbery, which is considered a forcible theft \noffense. Robbery is discussed shortly. \nExtortion has the elements of criminal act, criminal intent, attendant \ncircumstances, causation, and harm, as is explored in Section 11.2.1 \"Extortion\". Extortion Act \nThe criminal act element required for extortion is typically the theft of property \naccomplished by a threat to cause future harm to the victim, including the threat \nto inflict bodily injury, accuse anyone of committing a crime, or reveal a secret \nthat would expose the victim to hatred, contempt, or ridicule.Ga. Code \u00a7 16-8-16, \naccessed March 11, 2011, http://law.onecle.com/georgia/16/16-8-16.html. The \nModel Penal Code criminalizes theft by extortion when the defendant obtains \nproperty of another by threatening to inflict bodily injury on anyone, commit any \ncriminal offense, accuse anyone of a criminal offense, expose any secret tending \nto subject any person to hatred, contempt, or ridicule or impair his credit and \nbusiness repute, take or withhold action as an official, bring about a strike or \nboycott, testify with respect to another's legal claim, or inflict any other harm that \nwould not benefit the actor (Model Penal Code \u00a7 223.4). Note that some of these \nacts could be legal, as long as they are not performed with the unlawful intent to \nsteal. \nExample of Extortion Act \nRodney tells Lindsey that he will report her illegal drug trafficking to local law \nenforcement if she does not pay him fifteen thousand dollars. Rodney has \nprobably committed the criminal act element required for extortion in most \njurisdictions. Note that Rodney's threat to expose Lindsey's illegal activities is \nactually desirable behavior when performed with the intent to eliminate or \nreduce crime. However, under these circumstances, Rodney's act is most \nlikely criminal because it is supported by the intent to steal fifteen thousand \ndollars from Lindsey. \nExtortion Intent \nThe criminal intent element required for extortion is typically the specific \nintent or purposely to commit the criminal act and to unlawfully deprive the \nvictim of property permanently.Connecticut Criminal Jury Instructions \u00a7\u00a753a- 119(5) and 53a-122(a) (1), accessed March 12, \n2011, http://www.jud.ct.gov/ji/criminal/part9/9.1-11.htm. This intent \nrequirement is similar to the criminal intent element required for larceny and \nfalse pretenses theft, as discussed in Section 11 \"Consolidated Theft Intent\". Some \njurisdictions only require general intent or knowingly to perform the criminal \nact.Ariz. Rev. Stat. \u00a7 13-1804, http://law.onecle.com/arizona/criminal-code/13-\n1804.html. \nExample of a Case Lacking Extortion Intent \nReview the example with Rodney and Lindsey in Section 11 \"Example of \nExtortion Act\". Change the example and assume that Rodney asks Lindsey to \nloan him the fifteen thousand dollars so that he can make a balloon payment due \non his mortgage. Lindsey refuses. Rodney thereafter threatens to expose \nLindsey's drug trafficking if she doesn't loan him the money. In many \njurisdictions, Rodney may not have the criminal intent element required for \nextortion. Although Rodney performed the criminal act of threatening to report \nLindsey for a crime, he did so with the intent to borrow money from Lindsey. \nThus Rodney did not act with the specific intent or purposely to permanently \ndeprive Lindsey of property, which could operate as a failure of \nproof or affirmative defense to extortion in many jurisdictions. \nExtortion Attendant Circumstance \nExtortion is a form of theft, so it has the same attendant \ncircumstance required in consolidated theft statutes\u2014the property stolen \nbelongs to another. In many jurisdictions, it is an affirmative defense to \nextortion that the property taken by threat to expose a secret or accuse anyone of \na criminal offense is taken honestly, as compensation for property, or restitution \nor indemnification for harm done by the secret or crime.Ga. Code \u00a7 16-8-16, \naccessed March 11, 2011, http://law.onecle.com/georgia/16/16-8-16.html. The \nModel Penal Code provides an affirmative defense to extortion by threat of accusation of a criminal offense, exposure of a secret, or threat to take or \nwithhold action as an official if the property obtained was \"honestly claimed as \nrestitution or indemnification for harm done in the circumstances to which such \naccusation, exposure, lawsuit or other official action relates, or as compensation \nfor property or lawful services\" (Model Penal Code \u00a7 223.4). \nExample of Extortion Affirmative Defense \nTara, a real estate broker, hires Trent to be a real estate sales agent in her small \nrealty office. Tara decides she wants to get the property listing of a competitor by \nusing Trent to obtain information. Tara tells Trent to pretend he is a buyer \ninterested in the property. She asks him to make an appointment with the \ncompetitor, ask a lot of questions about the owner of the property, and thereafter \nbring Tara the information. Tara promises to pay Trent one thousand dollars for \nhis time and effort. Trent spends several hours performing this task and \nthereafter demands his one thousand dollars payment. Tara tells Trent she is \nexperiencing \"tough times\" and can't afford to pay him. Trent threatens to tell \nTara's competitor what she is up to if she doesn't pay him the one thousand \ndollars. Trent has probably not committed extortion in many jurisdictions. \nAlthough Trent threatened to expose Tara's secret if she didn't pay him one \nthousand dollars, Trent honestly believed he was owed this money for a job he \nperformed that was directly related to the secret. Thus in many jurisdictions, \nTrent has an affirmative defense that the money demanded was compensation \nfor services and not the subject of unlawful theft by extortion. \nAttendant Circumstance of Victim Consent \nExtortion also requires the attendant circumstance of victim consent. With \nextortion, the victim consensually transfers the property based on fear inspired \nby the defendant's threat.Oklahoma Uniform Jury Instructions No. CR 5-34, \naccessed March 12, \n2011, http://www.okcca.net/online/oujis/oujisrvr.jsp?oc=OUJI-CR%205-34. Example of Attendant Circumstance of Victim Consent for Extortion \nReview the example with Rodney and Lindsey in Section 11 \"Example of \nExtortion Act\". Assume that Lindsey grudgingly gives Rodney the fifteen \nthousand dollars so that he will not report her drug trafficking. In this example, \nLindsey is consensually transferring the money to Rodney to prevent him from \nmaking good on his threat. Thus the attendant circumstance of \nvictim consent based on fear is most likely present, and Rodney could be \nsubject to prosecution for and conviction of extortion in most jurisdictions. \nExtortion Causation \nThe criminal act must be the factual and legal cause of extortion harm, which \nis defined in Section 11 \"Extortion Harm\". \nExtortion Harm \nThe defendant must obtain property belonging to another for the completed \ncrime of extortion in most jurisdictions.Oklahoma Uniform Jury Instructions No. \nCR 5-34, accessed March 12, \n2011, http://www.okcca.net/online/oujis/oujisrvr.jsp?oc=OUJI-CR%205-34. If \nthe defendant commits the criminal act of threatening the victim with the \nappropriate criminal intent, but the victim does not actually transfer the property \nto the defendant, the defendant can only be charged \nwith attempted extortion.Oklahoma Uniform Jury Instructions No. CR 5-32, \naccessed March 12, \n2011, http://www.okcca.net/online/oujis/oujisrvr.jsp?oc=OUJI-CR%205-32. \nExample of a Case Lacking Extortion Harm \nReview the example with Rodney and Lindsey in Section 11 \"Example of \nExtortion Act\". Assume that after Rodney threatens to report Lindsey's drug \ntrafficking to local law enforcement, Lindsey calls local law enforcement, turns herself in for drug trafficking, and also reports Rodney for making the threat. In \nthis case, because Rodney did not \"obtain\" property by threat, the crime of \nextortion is not complete, and attempted extortion would be the appropriate \ncharge in most jurisdictions. \nFigure 11.4 Diagram of Defenses to Extortion Extortion Grading \nExtortion is generally graded as a felony in most jurisdictions.Or. Rev. Stat. \n\u00a7 164.075, accessed March 12, 2011, http://law.onecle.com/oregon/164-offenses-\nagainst-property/164.075.html. As stated previously, the Model Penal Code \ngrades extortion under its consolidated theft offense. \nRobbery \nRobbery was the first common-law theft crime. The criminalization of robbery \nwas a natural progression from other common-law crimes against the person \nbecause robbery always involves force, violence, or threat and could pose a risk of \ninjury or death to the robbery victim, defendant, or other innocent bystanders. \nRecall from Chapter 9 \"Criminal Homicide\" that robbery is generally a serious \nfelony that is included in most felony murder statutes as a predicate felony \nfor first-degree felony murder. When robbery does not result in death, it is \ntypically graded more severely than theft under a consolidated theft statute. \nRobbery grading is discussed shortly. \nThe elements of robbery are very similar to the elements \nof larceny and extortion. For the purpose of brevity, only the elements of \nrobbery that are distinguishable from larceny and extortion are analyzed in \ndepth. Robbery has the elements of criminal act, attendant circumstances, \ncriminal intent, causation, and harm, as is explored in Section 11.2 \"Extortion, \nRobbery, and Receiving Stolen Property\". \nRobbery Act \nIt is the criminal act element that primarily distinguishes robbery from larceny \nand extortion. The criminal act element required for robbery is a taking of \npersonal property by force or threat of force.Ind. Code \u00a7 35-42-5-1, accessed \nMarch 18, 2011, http://law.onecle.com/indiana/35/35-42-5-1.html. Force is \ngenerally physical force. The force can be slight, but it must be more than what is required to gain control over and move the property.S.W. v. State, 513 So. 2d \n1088 (1987), accessed March 18, \n2011, http://scholar.google.com/scholar_case?case=8956843531832075141&q= \nrobbery+%22slight+force%22&hl=en&as_sdt=2,5. Many jurisdictions require \nforce during the taking, which includes the use of force to prevent the victim \nfrom reclaiming the property, or during escape.State v. Handburgh, 830 P.2d \n641 (1992), accessed March 18, \n2011, http://scholar.google.com/scholar_case?case=2186457002998894202&q= \nState+v.+Handburgh&hl=en&as_sdt=2,5. The Model Penal Code requires force \nor threat \"in the course of committing a theft\" and defines this as occurring in \"an \nattempt to commit theft or in flight after the attempt or commission\" (Model \nPenal Code \u00a7 222.1(1)). Threat for robbery is a threat to \ninflict imminent force.Ala. Code \u00a7 13A-8-43, accessed March 18, \n2011, http://law.onecle.com/alabama/criminal-code/13A-8-43.html. \nWhile larceny and extortion also require a taking, the defendant typically \naccomplishes the larceny taking by stealth, or a false representation of fact. In \nextortion, the defendant accomplishes the taking by a threat of future harm that \nmay or may not involve force. \nExample of Robbery Act \nReview the example given in Section 11 \"Example of Extortion Act\" with Rodney \nand Lindsey. In this example, Rodney threatened to expose Lindsey's drug \ntrafficking if she didn't pay him fifteen thousand dollars. Change the example so \nthat Rodney tells Lindsey he will kill her if she doesn't write him a check for \nfifteen thousand dollars. Rodney exemplifies his threat by pointing to a bulge in \nhis front jacket pocket that appears to be a weapon. In this scenario, Rodney has \nmost likely committed the criminal act element required \nfor robbery, not extortion. Rodney's threat is a threat of immediate force. \nCompare this threat to Rodney's threat to expose Lindsey's drug trafficking, which is a threat of future harm that relates to Lindsey's arrest for a crime, rather \nthan force. \nExample of a Case Lacking Robbery Act \nPeter, a jewelry thief, notices that Cheryl is wearing a diamond ring. Peter walks \nup to Cheryl and asks her if she wants him to read her palm. Cheryl shrugs her \nshoulders and says, \"Sure! What have I got to lose?\" While Peter does an \nelaborate palm reading, he surreptitiously slips Cheryl's diamond ring off her \nfinger and into his pocket. Peter has probably not committed the criminal act \nelement required for robbery in this case. Although Peter used a certain amount \nof physical force to remove Cheryl's ring, he did not use any force beyond what \nwas required to gain control over Cheryl's property and move it into his \npossession. Thus Peter has probably committed the criminal act element required \nfor larceny theft, not robbery, and is subject to less severe sentencing for this \nlower-level offense. \nRobbery Attendant Circumstances \nAnother difference between robbery and larceny or extortion is the attendant \ncircumstances requirement(s). Robbery requires the same attendant \ncircumstance required for both larceny and extortion\u2014that the property taken \nbelongs to another. It also has the same attendant circumstance as larceny\u2014that \nthe defendant accomplish the taking against the victim's will and without \nconsent. However, robbery has one additional attendant circumstance, which is \nthat the property be taken from the victim's person or presence.Cal. Penal \nCode \u00a7 211, accessed March 19, \n2011, http://codes.lp.findlaw.com/cacode/PEN/3/1/8/4/s211. The property does \nnot need to be in the actual physical possession of the victim, as long as it is \nunder the victim's control.Jones v. State, 652 So. 2d 346 (1995), accessed March \n19, \n2011, http://scholar.google.com/scholar_case?case=11856873917512077763&q= robbery+%22from+the+victim%27s+person%22&hl=en&as_sdt=2,5&as_ylo=20\n00. Thus if the victim could have prevented the taking if not for the force, \nviolence, or threat posed by the defendant, this attendant circumstance is \npresent.Jones v. State, 652 So. 2d 346 (1995), accessed March 19, \n2011, http://scholar.google.com/scholar_case?case=11856873917512077763&q= \nrobbery+%22from+the+victim%27s+person%22&hl=en&as_sdt=2,5&as_ylo=20\n00. \nExample of Robbery Attendant Circumstances \nReview the example given in Section 11 \"Example of Robbery Act\" with Rodney \nand Lindsey. In this example, Rodney tells Lindsey he will kill her if she doesn't \nwrite him a check for fifteen thousand dollars. Change this example so that \nRodney knows Lindsey has recently withdrawn fifteen thousand dollars in cash \nfrom the bank. Rodney demands the cash, tells Lindsey he will kill her if she \ndoesn't give it to him, and gestures toward a bulge in his front jacket pocket that \nappears to be a weapon. Lindsey tells Rodney, \"The money is in my purse, but if \nyou take it, you will be ruining my life!\" and points to her purse, which is on the \nkitchen table a few feet away. Rodney walks over to the table, opens Lindsey's \npurse, and removes a large envelope stuffed with bills. In this scenario, the \nattendant circumstances for robbery appear to be present. Rodney took the \nproperty of another without consent. Although the money was not on Lindsey's \nperson, it was in her presence and subject to her control. If Rodney had not \nthreatened Lindsey's life, she could have prevented the taking. Thus Rodney has \nmost likely committed robbery and is subject to prosecution for and conviction of \nthis offense. \nRobbery Intent \nThe criminal intent element required for robbery is the same as the criminal \nintent element required for larceny and extortion in many jurisdictions. The \ndefendant must have the specific intent or purposely to commit the criminal act and to deprive the victim of the property permanently.Metheny v. State, 755 \nA.2d 1088 (2000), accessed March 19, \n2011, http://scholar.google.com/scholar_case?case=10315203348655203542&q\n= robbery+%22deprive+permanently%22&hl=en&as_sdt=2,5. Some \njurisdictions do not require the intent to permanently deprive the victim of \nproperty and include temporary takings in the robbery statute.Fla. Stat. Ann. \n\u00a7 812.13, accessed March 19, \n2011, http://law.onecle.com/florida/crimes/812.13.html. \nExample of Robbery Intent \nReview the example with Rodney and Lindsey in Section 11 \"Example of a Case \nLacking Extortion Intent\". In this example, Rodney demands a loan from Lindsey \nin the amount of fifteen thousand dollars and threatens to expose her drug \ntrafficking activities if she doesn't comply. Change this example so that Rodney \ntells Lindsey to loan him fifteen thousand dollars or he will kill her, gesturing at a \nbulge in his front jacket pocket that appears to be a weapon. In a jurisdiction that \nrequires the criminal intent to permanently deprive the victim of property for \nrobbery, Rodney does not have the appropriate criminal intent. In a jurisdiction \nthat allows for the intent to temporarily deprive the victim of property for \nrobbery, Rodney has the appropriate criminal intent and may be charged with \nand convicted of this offense. \nRobbery Causation and Harm \nThe criminal act supported by the criminal intent must be the factual and legal \ncause of the robbery harm, which is the same as the harm requirement for \nlarceny and extortion: the property must be transferred to the \ndefendant.Oklahoma Uniform Jury Instructions No. CR 4-141, accessed March \n19, 2011, http://www.okcca.net/online/oujis/oujisrvr.jsp?o=248. In some \njurisdictions, no transfer of property needs to take place, and the crime is \ncomplete when the defendant employs the force or threat with the appropriate criminal intent.Williams v. State, 91 S.W. 3d 54 (2002), accessed March 19, \n2011, http://scholar.google.com/scholar_case?case=9518129765374420507&q= \nrobbery+%22transfer+of+property%22&hl=en&as_sdt=2,5&as_ylo=2000. \nExample of Robbery Harm \nReview the example with Rodney and Lindsey in Section 11 \"Example of Robbery \nAttendant Circumstances\". In this example, Rodney threatens to kill Lindsey if \nshe does not give him fifteen thousand dollars out of her purse and gestures to a \nbulge in his front jacket pocket that appears to be a weapon. Change this example \nso that Lindsey leaps off of the couch and tackles Rodney after his threat. She \nreaches into his pocket and determines that Rodney's \"gun\" is a plastic water \npistol. 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 \nelement of robbery, Rodney has probably only committed attempted robbery \nbecause Rodney did not get the chance to take the money out of Lindsey's purse. \nIf Rodney and Lindsey are in a jurisdiction that does not require a transfer of \nproperty for the harm element of robbery, Rodney may be subject to prosecution \nfor and conviction of this offense. \nFigure 11.5 Diagram of Defenses to Robbery Robbery Grading \nAs stated previously, robbery is generally graded as a serious felony that can \nserve as the predicate felony for first-degree felony murderCal. Penal Code \u00a7 189, \naccessed March 19, 2011, http://law.onecle.com/california/penal/189.html. and \na strike in states that have three strikes statutes.Cal. Penal Code \u00a7 1192.7, \naccessed March 19, \n2011, http://law.onecle.com/california/penal/1192.7.html. Robbery grading is \naggravated by the use of a weapon or when the defendant inflicts serious bodily \ninjury.Tex. Penal Code \u00a7 29.03, accessed March 12, \n2011, http://law.onecle.com/texas/penal/29.03.00.html. The Model Penal Code \ngrades robbery as a felony of the second degree, unless the actor attempts to kill \nanyone or purposely inflicts or attempts to inflict serious bodily injury, in which \ncase it is graded as a felony of the first degree (Model Penal Code \u00a7 222.1(2)). \nTable 11.2 Comparing Larceny, Extortion, and Robbery \nCrime Criminal Act Criminal Intent \nAttendant \nCircumstance \nHarm \nLarceny \nTaking by stealth \nor false \nrepresentation of \nfact \nSpecific or \npurposely to \ndeprive the victim \nof property \npermanently* \nVictim's property, lack \nof victim consent \nProperty \ntransfer \nExtortion \nTaking by threat \nof future harm; \nnot necessarily \nphysical \nSpecific or \npurposely to \ndeprive the victim \nof property \npermanently* \nVictim's property; the \nvictim consents based \non fear \nProperty \ntransfer Crime Criminal Act Criminal Intent \nAttendant \nCircumstance \nHarm \nRobbery \nTaking by force or \nthreat of \nimminent force \nSpecific or \npurposely to \ndeprive the victim \nof property \npermanently* \nVictim's property, lack \nof victim consent, \nproperty is taken from \nthe victim's person or \npresence \nProperty \ntransfer** \n*In some jurisdictions, the defendant can intend a temporary taking. \n**In some jurisdictions, the victim does not need to transfer the property \nto the defendant. \nReceiving Stolen Property \nAll jurisdictions criminalize receiving stolen property, to deter theft and to break \nup organized criminal enterprises that benefit from stealing and selling stolen \ngoods. Receiving stolen property criminal statutes often are targeted at \npawnbrokers or fences who regularly buy and sell property that is the subject of \none of the theft crimes discussed in the preceding sections. As stated, the Model \nPenal Code includes receiving stolen property in its consolidated theft offense \n(Model Penal Code \u00a7\u00a7 223.1, 223.6). Receiving stolen property has the elements \nof criminal act, criminal intent, attendant circumstances, causation, and harm, as \nis explored in Section 11.2.3 \"Receiving Stolen Property\". \nReceiving Stolen Property Act \nThe criminal act element required for receiving stolen property in many \njurisdictions is receiving, retaining, disposing of,Ala. Code \u00a7 13A-8-16, accessed \nMarch 12, 2011, http://law.onecle.com/alabama/criminal-code/13A-8-\n16.html. selling,Cal. Penal Code \u00a7 496, accessed March 12, \n2011, http://law.onecle.com/california/penal/496.html. trafficking in,Fla. Stat. \nAnn. \u00a7 812.019, accessed March 12, \n2011, http://law.onecle.com/florida/crimes/812.019.html. buying, or aiding in concealmentMass. Gen. Laws ch. 266 \n\u00a7 60, http://law.onecle.com/massachusetts/266/60.html. of stolen personal \nproperty. The Model Penal Code defines the criminal act element as receiving, \nretaining, or disposing of stolen movable property (Model Penal Code \u00a7 223.6(1)). \nThe criminal act does not generally require the defendant to be in \nactual physical possession of the property, as long as the defendant \nretains control over the item(s).Ga. Code \u00a7 16-8-7, accessed March 12, \n2011, http://law.onecle.com/georgia/16/16-8-7.html. This would be a \nconstructive possession. The Model Penal Code defines receiving as \"acquiring \npossession, control or title, or lending on the security of the property\" (Model \nPenal Code \u00a7 223.6(1)). Note that the criminal act element of receiving stolen \nproperty includes both buying and selling. Thus dealers that regularly purchase \nand then sell stolen items can be prosecuted for both of these acts under the same \nstatute. \nExample of Receiving Stolen Property Act \nChanel, a fence who deals in stolen designer perfume, arranges a sale between \none of her thieves, Burt, and a regular customer, Sandra. Chanel directs Burt to \ndrop off a shipment of one crate of the stolen perfume at Chanel's storage facility \nand gives Burt the key. Chanel pays Burt five thousand dollars for the perfume \ndelivery. Chanel thereafter accepts a payment of ten thousand dollars from \nSandra and gives Sandra another key with instructions to pick up the perfume the \nnext day after it has been delivered. Chanel could probably be charged with and \nconvicted of receiving stolen property in most jurisdictions. Although Chanel did \nnot ever acquire actual possession of the stolen designer perfume, Chanel \nhad control over the property or constructive possession through her storage \nfacility. Chanel's acts of buying the perfume for five thousand dollars and \nthen selling it for ten thousand dollars both would be criminalized \nunder one statute in many jurisdictions. Thus Chanel could be prosecuted \nfor both acts as separate charges of receiving stolen property. Receiving Stolen Property Intent \nThe criminal intent element required for receiving stolen property has two parts. \nFirst, the defendant must have the intent to commit the criminal act, which could \nbe specific intent or purposely, general intent or knowingly, recklessly, \nor negligently to either buy-receive or sell-dispose of stolen personal property, \ndepending on the jurisdiction. This means that the defendant must have actual \nknowledge that the property is stolen,Mass. Gen. Laws ch. 266 \u00a7 60, accessed \nMarch 13, 2011, http://law.onecle.com/massachusetts/266/60.html. or the \ndefendant must be aware or should be aware of a risk that the property is \nstolen.Ala. Code \u00a7 13A-8-16(a), accessed March 12, \n2011, http://law.onecle.com/alabama/criminal-code/13A-8-16.html. The Model \nPenal Code requires the defendant to purposely commit the act knowing that the \nproperty is stolen or believing that the property has probably been stolen (Model \nPenal Code \u00a7 223.6(1)). The Model Penal Code also provides a presumption of \nknowledge or belief when the defendant is a dealer, which is defined as a \n\"person in the business of buying or selling goods including a pawnbroker,\" and \nhas been found in possession or control of property stolen from two or more \npersons on more than one occasion, or has received stolen property in another \ntransaction within the year preceding the transaction charged, or acquires the \nproperty for consideration far below its reasonable value (Model Penal Code \n\u00a7 223.6(2)). Many state statutes have a similar provision.Ala. Code \u00a7 13A-8-16, \naccessed March 13, 2011, http://law.onecle.com/alabama/criminal-code/13A-8-\n16.html. \nThe second aspect of criminal intent for receiving stolen property is the \ndefendant's specific intent or purposeful desire to deprive the victim of the \nproperty permanently, which is required in some jurisdictions.Hawaii Criminal \nJury Instructions No. 10.00, 10.20, accessed March 13, \n2011, http://www.courts.state.hi.us/docs/docs4/crimjuryinstruct.pdf. This \ncreates a failure of proof or affirmative defense that the defendant received \nand retained the stolen property with the intent to return it to the true owner.Ga. Code \u00a7 16-8-7(a), accessed March 12, 2011, http://law.onecle.com/georgia/16/16-\n8-7.html. The Model Penal Code also provides a defense if \"the property is \nreceived, retained, or disposed of with purpose to restore it to the owner\" (Model \nPenal Code \u00a7 223.6(1)). \nExample of Receiving Stolen Property Intent \nChip's iPod breaks, so he decides to go to the local electronics store and buy a \nnew one. As he is approaching the store, Heather saunters over from a nearby \nalley and asks him if he wants to buy a brand new iPod for ten dollars. Suspicious \nof the price, Chip asks Heather to see the iPod. She hands it to him, and he \nnotices that the box looks like it has been tampered with and a price tag removed. \nHe shrugs, takes ten dollars out of his wallet, and hands it to Heather in exchange \nfor the iPod. In jurisdictions that require actual knowledge that the property is \nstolen, Chip probably does not have the appropriate criminal intent for receiving \nstolen property because he did not know Heather and had no way of knowing if \nHeather was selling him stolen property. In jurisdictions that \nrequire awareness of a risk that the property is stolen, Chip may have the \nappropriate criminal intent because he knew the price was too low and noticed \nthat the box had been tampered with to remove evidence of an actual price or \nvendor. \nChange the example so that Chip is a pawnshop broker, and Heather brings the \niPod into his shop to pawn for the price of ten dollars. In many jurisdictions, if \nChip accepts the iPod to pawn, this creates a presumption of receiving stolen \nproperty criminal intent. Chip is considered a dealer, and in many jurisdictions, \ndealers who acquire property for consideration that they know is far below the \nreasonable value are subject to this type of presumption. \nChange the example again so that Chip notices the following message written on \nthe back of the iPod box: \"This iPod is the property of Eugene Schumaker.\" Chip \nis Eugene Schumaker's friend, so he pays Heather the ten dollars to purchase the iPod so he can return it to Eugene. In many jurisdictions and under the Model \nPenal Code, Chip can use his intent to return the stolen property to its true owner \nas a failure of proof or affirmative defense to receiving stolen property. \nRetaining Stolen Property \nIf retaining is the criminal act element described in the receiving stolen \nproperty statute, a defendant can still be convicted of receiving stolen property if \nhe or she originally receives the property without the appropriate criminal intent, \nbut later keeps the property after discovering it is stolen.Connecticut Criminal \nJury Instructions \u00a7\u00a753a-119(8) and 53a-122 through 53a-125b, accessed March \n13, 2011, http://www.jud.ct.gov/ji/criminal/part9/9.1-15.htm. \nExample of Retaining Stolen Property \nReview the example with Chip and Heather in Section 11 \"Example of Receiving \nStolen Property Intent\". Change this example so that Chip is not a dealer and is \noffered the iPod for one hundred dollars, which is fairly close to its actual value. \nChip purchases the iPod from Heather and thereafter drives home. When he gets \nhome, he begins to open the box and notices the message stating that the iPod is \nthe property of Eugene Schumaker. Chip thinks about it for a minute, continues \nto open the box, and then retains the iPod for the next six months. If Chip is in a \nstate that defines the criminal act element for receiving stolen property \nas retains, then Chip most likely committed the criminal act with the \nappropriate criminal intent (knowledge that the property is stolen) and may be \nsubject to prosecution for and conviction of this offense. \nReceiving Stolen Property Attendant Circumstances \nThe property must be stolen for this crime, so the prosecution must prove \nthe attendant circumstances that the property belongs to another and lack of \nvictim consent. Receiving Stolen Property Causation \nThe criminal act must be the factual and legal cause of receiving stolen \nproperty harm, which is defined in Section 11 \"Receiving Stolen Property Harm\". \nReceiving Stolen Property Harm \nThe defendant must buy, receive, retain, sell, or dispose of stolen property \nfor the completed crime of receiving stolen property in most jurisdictions.Ala. \nCode \u00a7 13A-8-16, accessed March 13, \n2011, http://law.onecle.com/alabama/criminal-code/13A-8-16.html. If the \ndefendant does not actually gain or transfer control of the property, \nonly attempted receiving stolen property can be charged. \nFigure 11.6 Diagram of Defenses to Receiving Stolen Property Receiving Stolen Property Grading \nReceiving stolen property is graded as a felony-misdemeanorCal. Penal Code \n\u00a7 496, accessed March 13, \n2011, http://law.onecle.com/california/penal/496.html. or as a misdemeanor if \nthe stolen property is of low value and a felony if the stolen property is of high \nvalue.Ga. Code \u00a7 16-8-12, accessed March 13, \n2011, http://law.onecle.com/georgia/16/16-8-12.html. \nFigure 11.7 Diagram of Crimes Involving Theft KEY TAKEAWAYS \n\u2022 The criminal act element required for extortion is typically a theft of property \naccomplished by a threat to cause future harm to the victim. \n\u2022 The criminal intent element required for extortion is typically the specific intent \nor purposely to unlawfully deprive the victim of property permanently. However, \nin some jurisdictions, it is the general intent or knowingly to perform the criminal \nact. \n\u2022 In many jurisdictions, it is an affirmative defense to extortion that the property \ntaken by threat to expose a secret or accuse anyone of a criminal offense is taken \nhonestly, as compensation for property, or as restitution or indemnification for \nharm done by the secret or crime. \n\u2022 The attendant circumstances of extortion are that the property belongs to \nanother and that the victim consents to transferring the property to the \ndefendant based on fear inspired by the defendant's threat. \n\u2022 The harm element required for extortion is that the defendant obtains the \nproperty of another. \n\u2022 Extortion is graded as a felony in most jurisdictions. \n\u2022 Robbery requires a taking accomplished by force or threat of imminent force. \nExtortion requires a taking by threat of future harm that is not necessarily force, \nand larceny generally requires a taking by stealth or a false representation of \nfact. Robbery also requires the attendant circumstance that the property be \ntaken from the victim's person or presence and is generally graded more severely \nthan larceny or extortion. \n\u2022 Robbery is typically graded as a serious felony, which is a strike in jurisdictions \nthat have three strikes statutes, and a predicate felony for first-degree felony \nmurder. \n\u2022 The criminal act element required for receiving stolen property is typically \nbuying-receiving, retaining, and selling-disposing of stolen personal property. \n\u2022 The defendant must have the intent to commit the criminal act of receiving \nstolen property, which could be specific intent or purposely, general intent or knowingly, recklessly, or negligently to either buy-receive or sell-dispose of stolen \npersonal property, depending on the jurisdiction. If \"retain\" is the criminal act \nelement specified in the receiving stolen property statute, a defendant who \nobtains property without knowledge that it is stolen commits the offense if he or \nshe thereafter keeps property after discovering that it is stolen. The defendant \nmust also have the specific intent or purposeful desire to deprive the victim of \nthe property permanently in some jurisdictions. \n\u2022 A failure of proof or affirmative defense to receiving stolen property in some \njurisdictions is that the defendant received and retained the stolen property with \nthe intent to return it to the true owner. \n\u2022 The attendant circumstances for receiving stolen property are that the property \nbelongs to another and lack of victim consent. The harm element of receiving \nstolen property is that the defendant buy-receive, retain, or sell-dispose of stolen \npersonal property. \n\u2022 Receiving stolen property is graded as a felony-misdemeanor or a misdemeanor \nif the stolen property is of low value and a felony if the stolen property is of high \nvalue. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the \nend of the chapter. \n1. Review the example given in Section 11 \"Example of a Case Lacking the Attendant \nCircumstance of Victim Reliance Required for False Pretenses\" with Jeremy and \nChuck. In this example, Chuck shows Jeremy a video he made of Jeremy reading a \nmagazine instead of tuning up Chuck's taxi. Chuck thereafter threatens to show \nthis video to the district attorney if Jeremy does not pay him two hundred \ndollars. Has Chuck committed a crime in this scenario? If your answer is yes, \nwhich crime? \n2. Read State v. Robertson, 531 S. E. 2d 490 (2000). In Robertson, the Court of \nAppeals of North Carolina reversed the defendant's conviction for robbery of the victim's purse. What was the basis of the court's reversal of conviction? The case \nis available at this \nlink: http://scholar.google.com/scholar_case?case=10266690205116389671&q= \nrobbery+%22purse+snatching%22&hl=en&as_sdt=2,5&as_ylo=2000. \n3. Read People v. Pratt, 656 N.W.2d 866 (2002). In Pratt, the defendant was \nconvicted of receiving stolen property for taking and concealing his girlfriend's \nvehicle. The defendant appealed, claiming that there was no evidence to indicate \nthat he intended to permanently deprive his girlfriend of the vehicle, and thus it \nwas not \"stolen.\" Did the Court of Appeals of Michigan uphold the defendant's \nconviction? \n11.3 Crimes That Invade or Damage Property \nLEARNING OBJECTIVES \n1. Define the criminal act element required for burglary. \n2. Define the criminal intent element required for burglary. \n3. Define the attendant circumstances required for burglary. \n4. Analyze burglary grading. \n5. Define the elements of criminal trespass, and analyze criminal trespass grading. \n6. Define the criminal act element required for arson. \n7. Define the criminal intent element required for arson. \n8. Define the attendant circumstances required for arson. \n9. Define the harm element required for arson. \n10. Analyze arson grading. \n11. Define the elements of criminal mischief, and analyze criminal mischief grading. \nBurglary \nAlthough burglary is often associated with theft, it is actually an enhanced form \nof trespassing. At early common law, burglary was the invasion of a man's castle \nat nighttime, with a sinister purpose. Modern jurisdictions have done away with \nthe common-law attendant circumstances and criminalize the unlawful entry into almost any structure or vehicle, at any time of day. Burglary \nhas the elements of criminal act, criminal intent, and attendant circumstances, as \nis explored in Section 11.3.1 \"Burglary\". \nBurglary Act \nThe criminal act element required for burglary varies, depending on the \njurisdiction. Many jurisdictions require breaking and entering into the area \ndescribed in the burglary statute.Mass. Gen. Laws ch. 266 \u00a7 14, accessed March \n20, \n2011, http://law.justia.com/codes/massachusetts/2009/PARTIV/TITLEI/CHAP\nTER266/Section14.html. Some jurisdictions and the Model Penal Code only \nrequire entering (Model Penal Code \u00a7 221.1). Other jurisdictions \ninclude remaining in the criminal act element.Fla. Stat. Ann. \u00a7 810.02(b) \n(2), http://law.justia.com/codes/florida/2010/TitleXLVI/chapter810/810_02.ht\nml. \nWhen criminal breaking is required, generally any physical force used to enter \nthe burglarized area is sufficient\u2014even pushing open a closed \ndoor.Commonwealth v. Hallums, 61 Mass. App. Ct. 50 (2004), accessed March \n20, \n2011, http://scholar.google.com/scholar_case?case=5153605963860010581&q= \nburglary+%22breaking+requirement%22&hl=en&as_sdt=2,5&as_ylo=2000. En\ntry is generally partial or complete intrusion of either the defendant, the \ndefendant's body part, or a tool or instrument.People v. Nible, 200 Cal. App. 3d \n838 (1988), accessed March 20, \n2011, http://scholar.google.com/scholar_case?case=2854983864809427191&q= \nburglary+%22partial+entry%22&hl=en&as_sdt=2,5&as_ylo=2000. In some \njurisdictions, the entry must be unauthorized,State v. Hall, 3 P.3d 582 (2000), \naccessed March 20, \n2011, http://scholar.google.com/scholar_case?case=14296917791490578337&q= \nburglary+%22shoplifting%22&hl=en&as_sdt=2,5&as_ylo=2000. while in others, it could be lawful.People v. Nunley, 168 Cal. App. 3d 225 (1985), accessed March \n20, \n2011, http://scholar.google.com/scholar_case?case=13700546275600703774&q\n= burglary+%22shoplifting%22&hl=en&as_sdt=2,5&as_ylo=2000. The Model \nPenal Code makes an exception for \"premises\u2026open to the public\" or when the \ndefendant is \"licensed or privileged to enter\" (Model Penal Code \n\u00a7 221.1(1)). Remaining means that the defendant lingers in the burglarized area \nafter an initial lawful or unlawful entry.State v. Allen, 110 P. 3d 849 (2005), \naccessed March 20, \n2011, http://scholar.google.com/scholar_case?case=837948213995751444&q= \nburglary+%22remaining+means%22&hl=en&as_sdt=2,5&as_ylo=2000. \nExample of Burglary Act \nJed uses a burglar tool to remove the window screen of a residence. The window \nis open, so once Jed removes the screen, he places both hands on the sill, and \nbegins to launch himself upward. The occupant of the residence, who was \nwatching Jed from inside, slams the window down on Jed's hands. Jed has \nprobably committed the criminal act element required for burglary in many \njurisdictions. When Jed removed the window screen, he committed a breaking. \nWhen Jed placed his hands on the windowsill, his fingers intruded into the \nresidence, which satisfies the entry requirement. Thus Jed may be subject to a \nprosecution for burglary rather than attempted burglary, even though he never \nactually damaged or broke the barrier of the residence or managed to gain \ncomplete access to the interior. \nBurglary Intent \nDepending on the jurisdiction, the criminal intent element required for burglary \nis typically the general intent or knowingly to commit the criminal act, with \nthe specific intent or purposely to commit a felony,Mass. Gen. Laws ch. 266 \n\u00a7 14, accessed March 20, 2011, http://law.onecle.com/massachusetts/266/14.html. any crime,Connecticut \nCriminal Jury Instructions \u00a753a-102, accessed March 20, \n2011, http://www.jud.ct.gov/ji/criminal/part9/9.2-3.htm. or a felony, grand, or \npetty theft once inside the burglarized area.Cal. Penal Code \u00a7 459, accessed \nMarch 20, 2011, http://law.onecle.com/california/penal/459.html. The Model \nPenal Code describes the criminal intent element as \"purpose to commit a crime \ntherein\" (Model Penal Code \u00a7 221.1(1)). \nExample of a Case Lacking Burglary Intent \nHans dares Christian to break into a house in their neighborhood that is reputed \nto be \"haunted.\" Christian goes up to the front door of the house, shoves it open, \nsteps inside the front hallway, and then hurriedly dashes back outside. Christian \nprobably does not have the criminal intent element required for burglary in this \nscenario. Although Christian committed the criminal act of breaking and \nentering, Christian did not have the intent to commit a crime once inside. \nChristian's conduct is probably criminal, but it is most likely a criminal \ntrespass, not burglary. Criminal trespass is discussed in Section 11.3.2 \n\"Criminal Trespass\". \nBurglary Attendant Circumstances \nDepending on the jurisdiction, burglary often includes the attendant \ncircumstance that the area entered is a structure, building, or vehicle belonging \nto another.Oklahoma Uniform Jury Instructions No. CR 5-13, accessed March 20, \n2011, http://www.okcca.net/online/oujis/oujisrvr.jsp?oc=OUJI-CR%205-\n13. However, modern jurisdictions have eliminated the requirement that the \nproperty belong to anotherCal. Penal Code \u00a7 459, accessed March 20, \n2011, http://law.onecle.com/california/penal/459.html. and prohibit \nburglarizing property owned by the defendant, such as a landlord burglarizing a \ntenant's apartment. Some jurisdictions require a structure or building to be \noccupied,Iowa Code \u00a7 713.1, accessed March 20, 2011, http://coolice.legis.state.ia.us/cool-\nice/default.asp?category=billinfo&service=iowacode&ga=83&input=713. or \nrequire it to be a dwelling,Connecticut Criminal Jury Instructions \u00a753a-102, \naccessed March 20, 2011, http://www.jud.ct.gov/ji/criminal/part9/9.2-\n3.htm. and require a vehicle to be locked.Cal. Penal Code \u00a7 459, accessed March \n20, 2011, http://law.onecle.com/california/penal/459.html. A few jurisdictions \nalso retain the common-law attendant circumstance that the burglary take place \nat nighttime.Mass. Gen. Laws ch. 266 \u00a7 15, accessed March 20, \n2011, http://law.onecle.com/massachusetts/266/15.html. \nStructure or building generally includes a house, room, apartment, shop, barn, or \neven a tent.Cal. Penal Code \u00a7 459, accessed March 20, \n2011, http://law.onecle.com/california/penal/459.html. The Model Penal Code \nexpressly excludes abandoned structures or buildings (Model Penal Code \n\u00a7 221.1(1)). A dwelling is a building used for lodging at night.Connecticut \nCriminal Jury Instructions \u00a753a-102, accessed March 20, \n2011, http://www.jud.ct.gov/ji/criminal/part9/9.2-3.htm. Occupied means that \nthe 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 \ncriminal act takes place.Iowa Code \n\u00a7 702.12, http://search.legis.state.ia.us/nxt/gateway.dll/ic?f=templates&fn=defa\nult.htm. Nighttime means the time after sunset and before sunrise when it is too \ndark to clearly see a defendant's face.State v. Reavis, 700 S.E.2d 33 (2010), \naccessed March 20, \n2011, http://scholar.google.com/scholar_case?case=10817450688281022337&q\n= burglary+%22definition+of+nighttime%22&hl=en&as_sdt=2,5&as_ylo=2000. \nExample of Burglary Attendant Circumstances \nSusan breaks down a door and steps inside a building with the intent to commit \narson, a felony, once inside. If the building is an empty child's tiny plastic \nplayhouse, the attendant circumstance that the structure be occupied or a dwelling is lacking. If it is twelve noon, the attendant circumstance that the \ncriminal act takes place at nighttime is lacking. If it is pitch black outside and 10 \np.m. and the building is Susan's ex-boyfriend's residence, then Susan has most \nlikely committed burglary and may be subject to prosecution for and conviction \nof this offense. \nFigure 11.8 Diagram of Defenses to Burglary Burglary Grading \nBurglary is typically divided into degrees.Iowa Code \u00a7\u00a7 713.3, 713.5, 713.6A, \naccessed March 20, 2011, http://coolice.legis.state.ia.us/cool-\nice/default.asp?category=billinfo&service=iowacode&ga=83&input=713. First-\ndegree burglary is generally a serious felony that can serve as the predicate felony \nfor first-degree felony murderCal. Penal Code \u00a7 189, accessed March 20, \n2011, http://law.onecle.com/california/penal/189.html. and a strike in states that \nhave three strikes statutes.Cal. Penal Code \u00a7 1192.7, accessed March 21, \n2011, http://law.onecle.com/california/penal/1192.7.html. Factors that can \nelevate burglary grading are the use or possession of a weapon, the entry into a \nresidence, dwelling, or building where people are present, the commission of \nburglary at nighttime, or the infliction of injury or death.Mass. Gen. Laws ch. 266 \n\u00a7 14, accessed March 20, \n2011, http://law.onecle.com/massachusetts/266/14.html. Second- and third-\ndegree burglary generally are still felonies, although less serious than first-degree \nburglary.Ala. Code \u00a7 13A-7-7, accessed March 20, \n2011, http://law.onecle.com/alabama/criminal-code/13A-7-7.html. The Model \nPenal Code grades burglary as a felony of the second degree if perpetrated in the \ndwelling 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 \nweapon. Otherwise, the Model Penal Code grades burglary as a felony of the third \ndegree (Model Penal Code \u00a7 221.1(2)). \nKeep in mind that a defendant can be prosecuted for burglary even if the felony \nor crime intended after entry never takes place. In addition, if the defendant \nactually commits the felony or crime after entry, the defendant can be prosecuted \nfor both burglary and the completed crime without violating the protection \nagainst double jeopardy in the Fifth Amendment to the federal Constitution. The \nModel Penal Code states that a \"person may not be convicted both for burglary \nand for the offense which it was his purpose to commit after the burglarious entry\u2026unless the additional offense constitutes a felony of the first or second \ndegree\" (Model Penal Code \u00a7 221.1(3)). \nCriminal Trespass \nAs stated previously, criminal trespass is generally charged when one or more of \nthe attendant circumstances of burglary are lacking or when the criminal intent is \nless heinous. Typically, criminal trespass is an unauthorized (attendant \ncircumstance) entry or remaining (criminal act) into a building, occupied \nstructure, or place as to which notice against trespassing is given, owned by \nanother (attendant circumstance), with general intent or knowingly that \nthe entry was unauthorized (criminal intent).18 Pa. C.S. \u00a7 3503, accessed March \n20, 2011, http://law.onecle.com/pennsylvania/crimes-and-\noffenses/00.035.003.000.html. The Model Penal Code states that it is criminal \ntrespass when the defendant \"knowing that he is not licensed or privileged to do \nso\u2026enters or surreptitiously remains in any building or occupied structure\u2026or \nany place as to which notice against trespass is given\" (Model Penal Code \n\u00a7 221.2). Criminal trespass is generally graded as a less serious felony than \nburglary or is graded as a misdemeanor if the trespass is into a place, rather than \na building or occupied structure.18 Pa. C.S. \u00a7 3503, accessed March 20, \n2011, http://law.onecle.com/pennsylvania/crimes-and-\noffenses/00.035.003.000.html. The Model Penal Code grades criminal trespass \nas a misdemeanor if it is committed in a dwelling at night; otherwise, it is graded \nas a petty misdemeanor or a violation (Model Penal Code \u00a7 221.2). \nArson \nArson is one of the most destructive crimes in the United States, costing billions \nof dollars per year in lost or damaged homes, businesses, and real property. Many \njurisdictions punish arson as a high-level felony that could merit a punishment of \nlife in prison and mandatory registration requirements similar to serious sex offenses.730 ILCS 148 \u00a7 10, accessed March 21, \n2011, http://law.onecle.com/illinois/730ilcs148/10.html. \nAt early common law, arson was primarily a crime against habitation, rather \nthan a crime against property. The elements of arson at common law were the \nmalicious or intentional burning of a dwelling owned by another. Modern \nstatutes criminalize burning almost anything, including the defendant's own \nproperty in many instances. \nArson is a crime that has the elements of criminal act, criminal intent, attendant \ncircumstances, causation, and harm, as is explored in Section 11.3.3 \"Arson\". \nArson Act \nThe criminal act element required for arson is typically setting fire to or \nburning real or personal property specified in the arson statute.Cal. Penal Code \n\u00a7 451, accessed March 21, \n2011, http://law.onecle.com/california/penal/451.html. This could include \nbuildings, structures, land, and vehicles.Tex. Penal Code \u00a7 28.02, accessed March \n22, 2011, http://law.onecle.com/texas/penal/28.02.00.html. Some states define \nthe criminal act element as \"damaging\" the specified property by fire or \nexplosives.Ga. Code tit. 16 \u00a7 16-7-60, accessed March 21, \n2011, http://law.onecle.com/georgia/16/16-7-60.html. The Model Penal Code \ndescribes the criminal act element as starting a fire or causing an explosion \n(Model Penal Code \u00a7 220.1(1). The type or value of the property the defendant \nburns or damages can enhance grading. Grading is discussed shortly. \nExample of Arson Act \nClark and Manny are bored and decide to light a fire in the woods near their \nhouses. The grass is damp from a recent rain, so the fire does not spread and \nburns only a small circle of grass. Clark and Manny give up and walk home. Clark \nand Manny have probably committed the criminal act element required for arson in most jurisdictions. Although a large destructive fire was not set by Clark and \nManny, the two did burn or damage real property and start a fire, which satisfies \nthe criminal act requirement in most jurisdictions and under the Model Penal \nCode. \nArson Intent \nThe criminal intent element required for arson in many jurisdictions is \nthe general intent or knowingly to commit the criminal act.Ga. Code tit. 16 \n\u00a7 16-7-60, http://law.onecle.com/georgia/16/16-7-60.html. Thus the defendant \nonly needs the intent to burn or damage property specified in the arson statute; \nthe defendant does not have to intend to burn a specific structure or personal \nproperty, even if that is the end result.People v. Atkins, 25 Cal. 4th 76 (2001), \naccessed March 22, \n2011, http://scholar.google.com/scholar_case?case=959832986872752180&q= \n%22mens+rea+for+arson%22&hl=en&as_sdt=2,5. The Model Penal Code \nrequires starting a fire or causing an explosion \"with the purpose of destroying a \nbuilding or occupied structure of another; or destroying or damaging any \nproperty\u2026to collect insurance for such loss\" (Model Penal Code \u00a7 220.1(1)). \nExample of Arson Intent \nReview the example with Clark and Manny in Section 11 \"Example of Arson Act\". \nChange this example so that Clark and Manny leave the area and a tiny spark \nfrom the fire they set begins to ignite. After a few hours, a large and powerful fire \nstarts and burns thousands of acres in the forest. Clark and Manny most likely \nhave the criminal intent element required for arson in many jurisdictions. \nAlthough Clark and Manny did not necessarily want to burn thousands of acres \nof forest land, they did intentionally or knowingly start a fire in the forest, \nwhich is all that many modern arson statutes require. Thus even though Clark \nand Manny did not intend the end result, Clark and Manny are probably subject \nto prosecution for and conviction of arson for their conduct. Arson Attendant Circumstances \nIn most jurisdictions, arson must burn a specific type of property. Although this \ncan be interpreted as an attendant circumstance, it is also a function of grading. \nThus first-degree arson may focus on arson of a dwelling,Vt. Stat. Ann. tit. 13 \n\u00a7 502, accessed March 22, \n2011, http://law.justia.com/codes/vermont/2009/title-13/chapter-11/502. while \nsecond-degree arson focuses on arson of other property.Vt. Stat. Ann. tit. 13 \n\u00a7 503, accessed March 22, \n2011, http://law.justia.com/codes/vermont/2009/title-13/chapter-11/503. Many \njurisdictions do not require the attendant circumstance that property \"belongs to \nanother,\" and therefore the defendant can burn his or her own property and still \nbe guilty of arson. However, the defendant must generally burn his or her \nproperty with the specific intent or purposely to defraud for the burning to \nconstitute arson.Ga. Code tit. 16 \u00a7 16-7-62, accessed March 22, \n2011, http://law.onecle.com/georgia/16/16-7-62.html. The Model Penal Code \nrequires \"destroying or damaging any property, whether his own or another's, to \ncollect insurance for such loss\" (Model Penal Code \u00a7 220.1(b)). \nExample of a Case Lacking Arson Intent for Burning the Defendant's \nProperty \nTim decides he wants to get rid of all the reminders of his ex-girlfriend. Tim piles \nall the photographs, gifts, and clothing items that are connected to his \nrelationship with his ex into his fireplace and burns them. In this scenario, Tim \nprobably does not have the criminal intent element required for arson in most \njurisdictions. Although Tim burned or damaged property, the property belongs \nto Tim, not another. Thus Tim must burn the property with the specific \nintent or purposely to defraud\u2014most likely an insurance carrier. Tim burned \nhis own property with only general intent or knowingly, so Tim may not be \ncharged with and convicted of arson in most jurisdictions. Arson Causation \nThe criminal act must be the factual and legal cause of arson harm, \nwhich Section 11 \"Example of Arson Causation\" defines. As stated previously, the \ndefendant does not have to intend to burn a specific structure or personal \nproperty, even if that is the end result in many jurisdictions. However, there must \nbe a causation analysis in every arson case because arson is a crime that requires \na bad result or harm. Thus the arson harm must be reasonably foreseeable at \nthe time the defendant commits the criminal act with the accompanying criminal \nintent. \nExample of Arson Causation \nReview the example with Clark and Manny in Section 11 \"Example of Arson \nIntent\". In this example, Clark and Manny try to light a fire in the forest, but the \ngrass is too damp, so they give up and leave the area. Hours later, a spark from \ntheir fire ignites, burning thousands of acres. Clark and Manny could be \nthe factual and legal cause of this harm in many jurisdictions. Even though the \ngrass was damp and difficult to burn, a trier of fact could find that it is reasonably \nforeseeable when lighting a fire in the forest that the fire could turn into a \nmassive and destructive blaze. Thus Clark and Manny's act accompanied by the \ngeneral intent or knowingly to burn caused significant harm, and Clark and \nManny may be subject to prosecution for arson in this case. \nArson Harm \nThe harm element required for arson is burning, charring, or damage to the \nproperty specified in the arson statute. Damage could be damage to even a small \npart,California Criminal Jury Instructions No. 1515, accessed March 22, \n2011, http://www.justia.com/criminal/docs/calcrim/1500/1515.html. and in the \nmost extreme cases, even smoke damage without burning or charring is \nsufficient.Ursulita v. State, 706 S.E.2d 123 (2011), accessed March 22, \n2011, http://scholar.google.com/scholar_case?case=8922319356856476558&q= Ursulita+v.+State&hl=en&as_sdt=2,5&as_ylo=2000. The Model Penal Code \nonly requires starting a fire or causing an explosion with the appropriate criminal \nintent, regardless of whether damage to real or personal property ensues (Model \nPenal Code \u00a7 220.1(1)). Some states follow the Model Penal Code approach.Tex. \nPenal Code \u00a7 28.02, accessed March 22, \n2011, http://law.onecle.com/texas/penal/28.02.00.html. \nExample of Arson Harm \nReview the example with Clark and Manny in Section 11 \"Example of Arson Act\". \nIn this example, Clark and Manny started a fire in the woods that burned a small \ncircle of dead grass. This damage is probably sufficient to constitute the harm \nfor arson in most jurisdictions. Although the value of the damaged forest land is \nnot excessive, excessive damage is not typically a requirement under modern \narson statutes\u2014any damage is enough. Thus Clark and Manny may be subject to \na prosecution for and conviction of this offense in most jurisdictions. \nFigure 11.9 Diagram of Defenses to Arson Arson Grading \nArson is typically divided into degrees,Ga. Code tit. 16 \u00a7 16-7-60, accessed March \n21, 2011, http://law.onecle.com/georgia/16/16-7-60.html. or simple and aggravated.Cal. Penal Code \u00a7 451.5, accessed March 22, \n2011, http://law.onecle.com/california/penal/451.5.html. Factors that can \nelevate grading are the burning or damage of another's dwelling,Ga. Code tit. 16 \n\u00a7 16-7-60, accessed March 21, 2011, http://law.onecle.com/georgia/16/16-7-\n60.html. bodily injury or death,Connecticut Criminal Jury Instructions \u00a7 53a-111, \naccessed March 22, 2011, http://www.jud.ct.gov/ji/criminal/part9/9.3-\n1.htm. extensive property damage, or damage to property of high value.Cal. Penal \nCode \u00a7 451.5, accessed March 21, \n2011, http://law.onecle.com/california/penal/451.5.html. As stated previously, \narson is a serious felony that can result in a sentence of life in prison and \nmandatory registration requirements similar to serious sex offenses.730 ILCS \n\u00a7 10, accessed March 21, \n2011, http://law.onecle.com/illinois/730ilcs148/10.html. Arson is also generally \na strike in states that have three strikes statutesCal. Penal Code \u00a7 1192.7, accessed \nMarch 21, 2011, http://law.onecle.com/california/penal/1192.7.html. and a \npredicate felony for first-degree felony murder.Cal. Penal Code \u00a7 189, accessed \nJuly 15, 2010, http://law.onecle.com/california/penal/189.html (accessed July \n15, 2010). Many jurisdictions grade even simple arson or second or third-degree \narson as a felony.Cal. Penal Code \u00a7 451, accessed March 22, \n2011, http://law.onecle.com/california/penal/451.html. The Model Penal Code \ngrades arson as a felony of the second degree (Model Penal Code \u00a7 220.1). \nCriminal Mischief \nCriminal mischief prohibits damaging or destroying property, tampering with \nproperty, or deception or threat that leads to a loss of property. Although \ncriminal mischief may be a felony in many jurisdictions, it is generally a less \nserious felony than arson, either because the defendant inflicts damage to \nproperty in a safer manner or because the criminal intent is less heinous. \nThe criminal act element required for criminal mischief is damaging,Ala. Code \n\u00a7 13A-7-21, accessed March 24, 2011, http://law.onecle.com/alabama/criminal-\ncode/13A-7-21.html. destroying, interfering with,Or. Rev. Stat. \u00a7 164.365, accessed March 24, 2011, http://law.onecle.com/oregon/164-offenses-against-\nproperty/164.365.html. or tampering withAlaska Stat. \u00a7 11.46.480, accessed \nMarch 24, 2011, http://law.justia.com/codes/alaska/2009/title-11/chapter-11-\n46/article-04/sec-11-46-480. property. The criminal intent element required for \ncriminal mischief varies, depending on the jurisdiction and the degree of the \noffense. The criminal intent could be specific intent or purposely, general \nintent or knowingly, reckless, or negligent.18 Pa.C.S. \u00a7 3304, accessed \nMarch 24, 2011, http://law.onecle.com/pennsylvania/crimes-and-\noffenses/00.033.004.000.html. The attendant circumstances required for \ncriminal mischief are typically committing the criminal act against the property \nof another (or property that is government owned) without victim consent or \nwith no right or authorization.Alaska Stat. \u00a7 11.46.475, accessed March 24, \n2011, http://law.justia.com/codes/alaska/2009/title-11/chapter-11-46/article-\n04/sec-11-46-475. The harm element required for criminal mischief is damage, \ndestruction, or interference to property by fire, explosive, flood, or some other \nmethod, or interference with electricity, water, oil or gas,Alaska Stat. \u00a7 11.46.475, \naccessed March 24, 2011, http://law.justia.com/codes/alaska/2009/title-\n11/chapter-11-46/article-04/sec-11-46-475. or loss of property or money by \ndeception such as causing the victim to purchase a worthless product.18 Pa.C.S. \n\u00a7 3304, accessed March 24, 2011, http://law.onecle.com/pennsylvania/crimes-\nand-offenses/00.033.004.000.html. As stated previously, criminal mischief is \noften a less serious felony than arson and could also be graded as a gross \nmisdemeanor or misdemeanor.18 Pa.C.S. \u00a7 3304, accessed March 24, \n2011, http://law.onecle.com/pennsylvania/crimes-and-\noffenses/00.033.004.000.html. Factors that could elevate grading of criminal \nmischief are the extent of the property damage and the severity of the defendant's \ncriminal intent.18 Pa.C.S. \u00a7 3304, accessed March 24, \n2011, http://law.onecle.com/pennsylvania/crimes-and-\noffenses/00.033.004.000.html. The Model Penal Code criminalizes criminal \nmischief when the defendant purposely, recklessly, or negligently damages \ntangible property of another by fire, explosives, or other dangerous means, purposely or recklessly tampers with tangible property of another so as to \nendanger person or property, or purposely or recklessly causes another to suffer \npecuniary loss by deception or threat. The Model Penal Code grades criminal \nmischief as a felony of the third degree, misdemeanor, petty misdemeanor, or \nviolation, depending on the extent of the damage or the criminal intent (Model \nPenal Code \u00a7 220.3). \nFigure 11.10 Diagram of Crimes That Invade or Damage Property KEY TAKEAWAYS \n\u2022 The criminal act element required for burglary is breaking and entering, just \nentering, or remaining. \n\u2022 The criminal intent element required for burglary is typically the general intent or \nknowingly to commit the criminal act and the specific intent or purposely to \ncommit a felony, any crime, or a felony, petty, or grand theft once inside the \nburglarized area. \n\u2022 Burglary generally includes the attendant circumstances that the area entered is \na structure, building, or vehicle belonging to another, or an occupied building or \nstructure, or a dwelling. Modern jurisdictions have eliminated the requirement \nthat 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 \nfew jurisdictions require the burglary to take place at nighttime. \n\u2022 Burglary is typically graded as a felony that is divided into degrees. First-degree \nburglary is often a strike in jurisdictions that have three strikes statutes and a \npredicate felony for first-degree felony murder. \n\u2022 Typically, criminal trespass is an unauthorized (attendant circumstance) entry or \nremaining (criminal act) into a building, occupied structure, or place as to which \nnotice against trespassing is given, owned by another (attendant circumstance) \nwith general intent or knowingly that the entry was unauthorized (criminal \nintent). Criminal trespass is generally graded as a felony, albeit a less serious \nfelony than burglary, or a misdemeanor if the area trespassed is a place rather \nthan an occupied building or structure. \n\u2022 The criminal act element required for arson is starting a fire, burning, or \ndamaging with fire or explosives specified real or personal property. \n\u2022 The criminal intent element required for arson is the general intent or knowingly \nto commit the criminal act in many jurisdictions. \n\u2022 Arson statutes can specify the attendant circumstance that the defendant burns \na specific type of property, such as a dwelling or other real or personal property. \nIn most jurisdictions, if the defendant burns his or her own property, the defendant must act with the specific intent or purposely to defraud, typically an \ninsurance carrier. \n\u2022 The harm element required for arson is burning, charring, damage, or, in the \nmost extreme cases, smoke damage. \n\u2022 Arson is typically graded as a felony that is divided into degrees. First-degree \narson is often a strike in jurisdictions that have three strikes statutes and a \npredicate felony for first-degree felony murder. Arson could also carry a \nregistration requirement like serious sex offenses. \n\u2022 The elements of criminal mischief are damaging or destroying property, \ntampering with property, or deception or threat that leads to a loss of property \n(criminal act and harm) with specific intent or purposely, general intent or \nknowingly, recklessly, or negligently. Although criminal mischief may be a felony \nin many jurisdictions, it is generally a less serious felony than arson and in some \njurisdictions it is graded as a gross misdemeanor or misdemeanor. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the \nend of the chapter. \n1. Why is burglary of a dwelling at nighttime generally graded higher than other \nburglaries? \n2. Read Butler v. Florida, No. 1D08-0958 (Fla: Dist. Court of Appeals, 2009). \nIn Butler, the defendant appealed his convictions for trespass and criminal \nmischief, based on the trial court's failure to instruct the jury on the defense \nof necessity. The defendant claimed he broke into a residence because he was \nbeing chased and feared for his safety. Did the Court of Appeal of Florida reverse \nthe defendant's convictions? Why or why not? The case is available at this \nlink: http://scholar.google.com/scholar_case?case=1710354491441564352&q= \nburglary+%22necessity+defense%22&hl=en&as_sdt=2,5&as_ylo=2000. \n3. Read In the Matter of V.V.C., No. 04-07-00166 CV (Tex.: Court of Appeals, 2008). \nIn V.V.C., the Court of Appeals of Texas dismissed a minor's adjudication for arson when he started a fire in the boy's restroom of a middle school. What was \nthe basis for the court's dismissal? The case is available at this \nlink: http://scholar.google.com/scholar_case?case=1784800980619654964&q= \narson+%22smoke+damage%22&hl=en&as_sdt=2,5&as_ylo=2000. \nLAW AND ETHICS \nWikiLeaks: Should Exposure of Information Be Criminal? \nJulian Assange, famous for his computer hacking skills, is the editor in chief of \nWikiLeaks, a whistleblower website. WikiLeaks has exposed documents and \nvideos detailing the corruption in Kenya, Guantanamo Bay procedures, and the \nAmerican involvement in the Afghan and Iraq wars, portions of which were \nclassified confidential and secret.Raffi Khatchadourian, \"No Secrets,\" New \nYorker website, accessed March 29, \n2011, http://www.newyorker.com/reporting/2010/06/07/100607fa_fact_khatch\nadourian?printable=true. The New York Times published some of this \ninformation.Charlie Savage, \"U.S. Prosecutors Study WikiLeaks Prosecution,\" New \nYork Times website, accessed March 29, \n2011, http://www.nytimes.com/2010/12/08/world/08leak.html?_r=2&partner=r\nss&emc=rss. Although WikiLeaks did not actually \"leak\" classified material (some \nof it was allegedly passed to WikiLeaks by a low-level US Army intelligence \nanalyst), the US Department of Justice has launched a criminal investigation \nregarding the release, and US prosecutors are reportedly considering charges \nagainst Assange.Charlie Savage, \"U.S. Prosecutors Study WikiLeaks \nProsecution,\" New York Times website, accessed March 29, \n2011, http://www.nytimes.com/2010/12/08/world/08leak.html?_r=2&partner=r\nss&emc=rss. \n1. Do you think it is ethical to expose or publish \"leaked\" confidential and secret \ngovernment information? \n2. What is the difficulty in prosecuting a defendant for this type of publication? 11.4 End-of-Chapter Material \nSummary \nCrimes against property include theft, crimes connected to theft, and crimes that \ninvade or damage property. Modern jurisdictions criminalize several forms of \ntheft under consolidated theft statutes that grade theft primarily on the value of \nthe property stolen. Larceny under a consolidated theft statute in many \njurisdictions is the physical taking or gaining possession of a victim's personal \nproperty by control and asportation, or a false representation of fact, with the \nintent to keep the property. Embezzlement under a consolidated theft statute is \nthe conversion of a victim's real or personal property entrusted to the defendant. \nFalse pretenses under a consolidated theft statute is the permanent transfer of \nownership of real or personal property or services from the victim to the \ndefendant, based on a false representation of fact. The theft of property of low \nvalue is typically a misdemeanor (petty theft), while the theft of property of high \nvalue (grand theft) is a felony, felony-misdemeanor, or a gross misdemeanor, \ndepending on the circumstances and the jurisdiction. Federal mail fraud, a \nfelony, 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 \nbodily injury or exposure of the victim's crime or secret that subjects the victim to \nhatred, contempt, or ridicule. Extortion is typically graded as a felony. Robbery is \nthe purposeful theft of property from the victim's person or presence by force or \nthreat of imminent physical harm. Robbery is typically graded as a serious felony. \nReceiving stolen property is receiving, buying, selling, disposing of, or retaining \nstolen property with either knowledge or awareness that the property is stolen or \nknowledge or awareness of a risk that the property is stolen. Receiving stolen \nproperty is typically graded as a felony-misdemeanor or a misdemeanor if the \nproperty is of low value and a felony if the property is of significant value. Burglary is either breaking and entering, entering, or remaining on another's \nproperty with the intent to commit a felony, any crime, grand theft, or petty theft \nonce inside. In some jurisdictions, the defendant can burglarize his or her own \nproperty. Burglary is typically graded as a serious felony. Criminal trespass is a \nknowing unauthorized entry onto the property of another. Criminal trespass is \ntypically graded as a less serious felony than burglary, or a misdemeanor if the \ntrespass is into a place, rather than an occupied building or structure. Arson is \nknowingly burning or damaging by fire property described in the arson statute. \nArson is typically graded as a serious felony. Criminal mischief is damaging, \ndestroying, or interfering with property with specific intent or purposely, general \nintent or knowingly, recklessly, or negligently, depending on the jurisdiction and \nthe degree of the offense. Criminal mischief is typically graded as a less serious \nfelony than arson, a gross misdemeanor, or a misdemeanor. \nYOU BE THE LEGAL TEX TBOOK AUTHOR \nRead the statute, and then describe the elements of each of the following crimes. \nCheck your answers using the answer key at the end of the chapter. \n1. Offenses against computer users: Fla. Stat. Ann. \u00a7 815.06. The statute is available \nat this link: http://law.onecle.com/florida/crimes/815.06.html. Identify the \ncriminal act (seven possible), criminal intent, attendant circumstance, and harm. \nHow is this crime graded? \n2. Identity theft: 18 Pa. C.S. \u00a7 4120. The statute is available at this \nlink: http://law.onecle.com/pennsylvania/crimes-and-\noffenses/00.041.020.000.html. Identify the criminal act (two possible), criminal \nintent, attendant circumstance, and harm. How is this crime graded? \n3. Unlawful duplication of computer-related material in the first degree: N.Y. \nPenal Law \u00a7 156.30. The statute is available at this \nlink: http://law.onecle.com/new-york/penal/PEN0156.30_156.30.html. Identify \nthe criminal act (three possible), criminal intent, attendant circumstance, \nand harm. How is this crime graded? Cases of Interest \n\u2022 People v. Beaver, 186 Cal. App. 4th 107 (2010), illustrates the complexity \nof prosecuting theft under a consolidated theft \nstatute: http://scholar.google.com/scholar_case?case=121945608730439\n80150&q= \nfalse+pretenses+theft+of+a+service&hl=en&as_sdt=2,5&as_ylo=1999. \n\u2022 State v. Castillo, Docket No. 29, 641 (NM: 2011), discusses the difference \nbetween a debit card and credit card for \ntheft: http://scholar.google.com/scholar_case?case=867411841855751220\n9&q=State+v+Castillo+NM&hl=en&as_sdt=2,5&as_ylo=2010. \n\u2022 People v. Nowack, 614 N.W.2d 78 (2000), discusses the criminal intent \nelement required for \narson: http://scholar.google.com/scholar_case?case=36682589566795411\n89&q= \narson+%22specific+intent+crime%22&hl=en&as_sdt=2,5&as_ylo=2000. \nArticles of Interest \n\u2022 Bernie Madoff \ncase: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1661462 \n\u2022 Largest hedge fund insider trading case in US \nhistory: http://www.huffingtonpost.com/2011/03/22/raj-rajaratnam-\njury-hears_n_839281.html \n\u2022 Celebrity \nburglaries: http://www.nigerianbestforum.com/generaltopics/?p=50094 \n\u2022 Wildland \narson: http://www.springerlink.com/content/h4w5015373m2v200 Websites of Interest \n\u2022 Information on \narson: http://www.ncjrs.gov/App/Topics/Topic.aspx?topicid=66 \n\u2022 Cybercrime: http://www.justice.gov/criminal/cybercrime/reporting.htm \n\u2022 US DOJ identity theft \ninformation: http://www.justice.gov/criminal/fraud/websites/idtheft.htm\nl \nStatistics of Interest \n\u2022 Burglary: http://bjs.ojp.usdoj.gov/index.cfm?ty=tp&tid=321 \n\u2022 Identity theft: http://bjs.ojp.usdoj.gov/index.cfm?ty=tp&tid=42 \nAnswers to Exercises \nFrom Section 11.1 \"Nonviolent Theft Crimes\" \n1. Linda has committed larceny because she took personal property \nbelonging to another without consent and with what appears to be the \nintent to keep it permanently. Shoplifting is typically larceny. A bra is not a \nhigh-value item (even in an expensive department store), so Linda's \nlarceny is probably petty, second-, or third-degree theft under a \nconsolidated theft statute. \n2. Ellen has committed larceny because she took personal property \nbelonging to another without consent and with what appears to be the \nintent 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 \nwas sufficient asportation of the property because asportation for \nlarceny can generally be any distance\u2014no matter how slight. The Rolex is \nvalued at ten thousand dollars, so Ellen's larceny is probably grand or \nfirst-degree theft under a consolidated theft statute. 3. The Minnesota Supreme Court reversed, holding that the lease deposits \nwere held in trust and belonged to the defendant, not the lessees. The \ncourt also held that the prosecution failed to prove a relationship \nof trust and confidence between the defendant and the lessees, which is \nrequired in Minnesota for embezzlement theft under the consolidated \ntheft statute. \n4. The Court of Appeal of California modified the defendant's conviction \nunder a consolidated theft statute. The court held that the defendant \nactually committed attempted larceny by trick, not false pretenses, \nbecause he was directed to purchase licensing agreements with the money, \nwhich put him in possession of it rather than ownership. \n5. The US Court of Appeals for the Fifth Circuit reversed the defendant's \nconviction. The court held that the defendant did not have to use the mails \nor intend that the mails be used by another to be convicted of federal mail \nfraud. However, because all the mailings involved the defendant's son, \nwho was acquitted of the arson and therefore not involved in a scheme to \ndefraud the insurance company, the defendant's mail fraud conviction had \nno basis. \nAnswers to Exercises \nFrom Section 11.2 \"Extortion, Robbery, and Receiving Stolen Property\" \n1. Chuck has committed the crime of attempted extortion. Although \nChuck threatened to expose Jeremy's crime of false pretenses with the \nintent to force Jeremy to pay him two hundred dollars, Jeremy did not \npay Chuck. Thus the harm element of extortion is lacking, and Chuck's \nconduct is only attempted extortion. \n2. The Court of Appeals of North Carolina reversed the defendant's robbery \nconviction because he snatched the purse, using only the force required to \ntake it from the victim's possession. Thus the crime was most \nlikely larceny rather than robbery. 3. The Court of Appeals of Michigan upheld the defendant's conviction. \nAlthough the court conceded that a theft by larceny requires the intent \nto permanently deprive the owner of personal property, the court held \nthat the term \"stolen\" in the receiving stolen property statute encompasses \nmore than larceny theft, and thus it includes any taking of personal \nproperty without permission of the owner. \nAnswers to Exercises \nFrom Section 11.3 \"Crimes That Invade or Damage Property\" \n1. Burglary of a dwelling is graded higher than burglary of a structure or \nvehicle because it is likely that the owners of a dwelling might be inside \nand might employ protective actions that could lead to injury or death. \nBurglary at nighttime enhances the probability that the dwelling owners \nwill be home and makes it more difficult to identify the defendant. This \ncould also enhance the probability of injury or death and reduce the \nchances of conviction, which does not serve deterrence. \n2. The Court of Appeal of Florida held that the evidence was insufficient to \nwarrant the necessity jury instruction. Although a neighbor to the \nburglarized residence testified that the defendant rang her doorbell and \nasked to come in while looking around in a scared manner, and a guest at a \nparty testified that the defendant was slapped by an individual claiming \nthe defendant owed him money, the court held that this evidence did not \nestablish the defendant's reasonable belief that he was at risk for \nimmediate serious bodily injury. \n3. The Court of Appeals of Texas dismissed the minor's judgment of \nadjudication because the middle school was not located in \"the \nincorporated city limits,\" as was alleged in the State's petition for \nadjudication. Answers to Law and Ethics Questions \n1. Whether it is ethical to publish classified information depends on \nthe content of the published material, and requires a balancing of the \npublic's right to know and the safety risk posed by the publication. If the \npublication exposes government corruption or another topic that could \nlead to government reform and the risk of harm is minimal, then many \nwould feel the exposure is of high value and ethical. \n2. The First Amendment complicates the prosecution of WikiLeaks for \nsimply publishing information provided by an informant. Without \nevidence that WikiLeaks participated or assisted the government \ninformant, a prosecution of WikiLeaks is a prosecution for speech, and \nthis requires a compelling government interest and a narrowly tailored \nstatute. Of course the government has a strong interest in protecting those \ninvolved in national defense; however, government speech has \ntraditionally been accorded the highest form of protection from \ncensorship. An additional problem is the Constitution's prohibition against \nthe enactment of ex post facto laws because it does not appear that there \nis a statute addressing WikiLeaks' behavior (government property cannot \nbe copyrighted, trademarked, or patented, so there was no intellectual \nproperty infringement). \nAnswers to You Be the Legal Textbook Author \n1. Criminal act: access, disrupt, damage, destroy, take, injure, introduce \ncomputer contaminant to any computer, computer system, or network. \nCriminal intent: general intent or knowingly. Attendant \ncircumstance: without authorization. Harm: disruption, damage, \ndestruction, or use of the computer to commit a scheme to \ndefraud. Grading: a felony or a first-degree misdemeanor. Also provides \na civil action for damages. 2. Criminal act: possess or use the identifying information of another \nperson. Criminal intent: specific intent or purposely to further an \nunlawful purpose. Attendant circumstance: lack of victim \nconsent. Harm: identifying information of another is possessed or used to \nfurther any unlawful purpose. Grading: a felony or misdemeanor, \ndepending on the value of property obtained, the prior record of the \ndefendant, and whether the unlawful purpose is a conspiracy or dependent \nabuse. \n3. Criminal act: copy, reproduce, or duplicate any computer data or \nprogram. Criminal intent: general intent or knowingly to deprive the \nowner of property valued in excess of $2,500, or specific intent or \npurposely to commit or attempt to commit any felony. Attendant \ncircumstance: with no right to do so. Harm: computer data or program \nis copied, reproduced, or duplicated. Grading: felony. Chapter 12Crimes against the Public Source: Image courtesy of Tara Storm. \nThe state has not only a right to \"maintain a decent society\" but an obligation to \ndo so. In the public nuisance context, the community's right to security and \nprotection must be reconciled with the individual's right to expressive and \nassociative freedom. Reconciliation begins with the acknowledgment that the \ninterests of the community are not invariably less important than the freedom \nof individuals. \nPeople v. Acuna, cited in Section 12 \"Civil Responses to Gang Activity\" \n12.1 Quality-of-Life Crimes \nLEARNING OBJECTIVES \n1. Define the criminal act element required for disorderly conduct. \n2. Define the criminal intent element required for disorderly conduct. \n3. Define the attendant circumstance required for disorderly conduct. \n4. Identify potential constitutional challenges to disorderly conduct statutes. \n5. Analyze disorderly conduct grading. \n6. Identify potential constitutional challenges to vagrancy statutes. \n7. Identify potential constitutional challenges to loitering statutes. \n8. Define the elements of loitering, and analyze loitering grading. \n9. Compare sit-lie laws to loitering statutes. \nCrimes against the public include offenses that affect the quality of life, group violence such \nas gang activity, and vice crimes. Because quality-of-life crimes are often based \non moral or value judgments, these offenses tend to target the poor and downtrodden. If the \nconduct prohibited involves an individual's status in society, assembling, or speech, the \nFirst and Fourteenth Amendments require a narrowly tailored statute supported by a \ncompelling government interest. This creates a conflict between legislators trying to ensure \npeace and tranquility for citizens and judges upholding the many individual protections \nincluded in the Bill of Rights. The quality-of-life offenses discussed are disorderly conduct, vagrancy, and loitering. \nUpcoming sections analyze crimes involving group activity, such as unlawful assembly and \nriot, along with the ever-growing problem of criminal gangs, and novel criminal and civil \nresponses. The final section of this chapter discusses common vice crimes, including \npossession, sale, and use of controlled substances and prostitution. \nDisorderly Conduct \nDisorderly conduct, also called disturbing the peace, criminalizes conduct that \nnegatively impacts the quality of life for citizens in any given city, county, or state. \nAlthough disorderly conduct is typically a low-level offense, the enforcement of \ndisorderly conduct statutes is important to preserve citizens' ability to live, work, \nand travel in safety and comfort. Disorderly conduct has the elements of criminal \nact, criminal intent, and an attendant circumstance, as is explored in Section \n12.1.1 \"Disorderly Conduct\". \nDisorderly Conduct Act \nThree criminal acts generally are identified in any disorderly conduct statute. \nThe defendant must either (1) make a loud and unreasonable noise, obscene \nutterance, or gesture, (2) engage in fighting or threatening, or state fighting \nwords, or (3) create a hazardous condition by an act that does not serve a \nlegitimate purpose.18 Pa. C. S. \u00a7 5503, accessed April 2, \n2011, http://law.onecle.com/pennsylvania/crimes-and-\noffenses/00.055.003.000.html. The Model Penal Code defines disorderly \nconduct as engaging in fighting or threatening or violent tumultuous behavior, \nmaking unreasonable noise or an offensively course utterance, gesture, or \ndisplay, addressing abusive language to any person present, or creating a \nhazardous or physically offensive condition by an act that serves no legitimate \npurpose (Model Penal Code \u00a7 250.2). When the criminal act is a loud and \nunreasonable noise, the quality of the noise is judged in the setting where the \nnoise occurred. A noise made in an extremely quiet area can be softer than a noise made in a loud and busy area like a city street during peak hours.Haw. Rev. \nStat. \u00a7 711-1101(2), accessed April 2, \n2011, http://www.capitol.hawaii.gov/hrscurrent/vol14_Ch0701-\n0853/HRS0711/HRS_0711-1101.htm. The term \"hazardous condition\" generally \nrefers to a situation that is dangerous and poses a risk of injury to others in the \nvicinity of the defendant's conduct.Wolfe v. State, 24 P.3d 1252 (2001), accessed \nApril 2, \n2011, http://scholar.google.com/scholar_case?case=8611678948602739716&q= \ndisorderly+conduct+%22hazardous+condition%22&hl=en&as_sdt=2,5&as_ylo=\n2000. \nExample of Disorderly Conduct Act \nDavid and Daniel leave a party in a quiet neighborhood at three in the morning. \nBoth are inebriated. After walking a couple of blocks and telling stories, they \nbegin singing loudly with their arms wrapped around each other. David stumbles \nand trips Daniel, who falls heavily to the sidewalk. Daniel gets up and starts \nscreaming and swearing at David, challenging him to fight. David yells back, \n\"Bring it on!\" David pushes Daniel, he pushes back, and they begin punching and \nkicking. In this instance, David and Daniel have probably \ncommitted three separate disorderly conduct offenses. When David and Daniel \nbegan singing at three in the morning on a quiet street, they made a loud and \nunreasonable noise. When they challenged each other to fight, they uttered \nthreats or stated fighting words. When they engaged in a fistfight, they \ncommitted fighting, or created a hazardous condition. Thus David and Daniel are \nmost likely subject to a prosecution for and conviction of three counts of \ndisorderly conduct in many jurisdictions. \nDisorderly Conduct Intent \nThe criminal intent element required for disorderly conduct in many jurisdictions \nis the specific intent or purposely to cause public inconvenience, annoyance, or alarm, or the reckless intent to cause a risk thereof.Ala. Code \u00a7 13A-11-7, \naccessed April 3, 2011, http://law.onecle.com/alabama/criminal-code/13A-11-\n7.html. The Model Penal Code has the same criminal intent requirement (Model \nPenal Code \u00a7 250.2(1)). \nExample of Disorderly Conduct Intent \nReview the example given in Section 12 \"Example of Disorderly Conduct \nAct\" with David and Daniel. David and Daniel may not have had the specific \nintent to cause public inconvenience, annoyance, or alarm; however, their \nbehavior in a quiet neighborhood late at night displays the reckless intent to \ncause a risk of such inconvenience, annoyance, or alarm. Although David and \nDaniel are inebriated, recall from Chapter 6 \"Criminal Defenses, Part 2\" that \nintoxication is not generally a defense to a reckless intent crime. Thus a trier of \nfact could find that David and Daniel have the appropriate criminal intent for \ndisorderly conduct, and they may both be subject to conviction of this offense. \nDisorderly Conduct Attendant Circumstance \nIn many jurisdictions, disorderly conduct requires the attendant \ncircumstance that the conduct occur in a public place.Tex. Penal Code \u00a7 42.01, \naccessed April 2, 2011, http://law.onecle.com/texas/penal/42.01.00.html. This \ngoes along with the purposeful or reckless intent to inconvenience, annoy, or \nalarm the public, or create a risk thereof. The Model Penal Code defines public as \n\"affecting or likely to affect persons in a place to which the public or a substantial \ngroup has access\u2026highways, transport facilities, schools, prisons, apartment \nhouses, places of business or amusement, or any neighborhood\" (Model Penal \nCode \u00a7 250.2). \nExample of Disorderly Conduct Attendant Circumstance \nReview the example in Section 12 \"Example of Disorderly Conduct Act\" with \nDavid and Daniel. David and Daniel commit their acts of loud and unreasonable noise, threats, fighting words, fighting, and creating a hazardous condition on \na sidewalk in a neighborhood. Thus in jurisdictions that require the \ndisorderly conduct attendant circumstance of a public place, David and Daniel \nmay be subject to prosecution for and conviction of this offense. If David and \nDaniel committed exactly the same acts in a private residence located on fifty \nacres with no neighbors for miles, the attendant circumstance for disorderly \nconduct would be lacking, along with the criminal intent to annoy, \ninconvenience, or alarm the public. \nPotential Constitutional Challenges to Disorderly Conduct Statutes \nBecause disorderly conduct statutes often criminalize obscene \ngestures and words, threats, and fighting words, they are subject to \nconstitutional challenges under the First and Fourteenth Amendments. However, \nnot all speech is protected under the First Amendment. As Chapter 3 \n\"Constitutional Protections\" discusses in detail, it is constitutional to \nregulate obscenity, true threats, and fighting words. Nonetheless, any statute \ncriminalizing speech or expression is subject to strict scrutiny, must be narrowly \ndrafted, and supported by a compelling government interest. Thus two common \ngrounds for challenging disorderly conduct statutes are void for \nvagueness and overbreadth.Colten v. Kentucky, 407 U.S. 104 (1972), accessed \nApril 3, \n2011, http://scholar.google.com/scholar_case?case=7926620308068158831&q= \nColten+v.+Kentucky&hl=en&as_sdt=2,5. \nExample of a Disorderly Conduct Statute That Is Unconstitutional \nA state legislature enacts a disorderly conduct statute that prohibits \"making rude \nand annoying comments to another.\" This statute is most unlikely \nunconstitutional under the First and Fourteenth Amendments. The \nwords rude and annoying are ambiguous, which could lead to uneven application \nby law enforcement and a failure to provide adequate notice to the public of what is criminal. Therefore, the statute can be stricken as void for vagueness. In \naddition, rude and annoying comments are not necessarily fighting words, true \nthreats, or obscenity, so they could be protected under the First Amendment. \nThis means that the statute could also be stricken as overbroad because it \nincludes protected and unprotected conduct within its parameters. For a fuller \nand more detailed description of void for vagueness and overbreadth \nconstitutional challenges, please refer to Chapter 3 \"Constitutional Protections\". \nFigure 12.1 Potential Constitutional Challenges to Disorderly Conduct Statutes \n \nDisorderly Conduct Grading \nAs stated previously, disorderly conduct is a low-level offense that is \ntypically graded as a misdemeanor.N.C. Gen. Stat. \u00a7 14-\n132, http://law.onecle.com/north-carolina/14-criminal-law/14-132.html. The Model Penal Code grades disorderly conduct as a petty misdemeanor if the \ndefendant's purpose is to cause substantial harm or serious inconvenience or if \nthe defendant persists with his or her conduct after a warning. Otherwise, the \nModel Penal Code grades disorderly conduct as a violation (Model Penal Code \n\u00a7 250.2(2)). \nVagrancy and Loitering \nAlthough the government technically does not have an interest in punishing \nindividuals for who they are, such as an impoverished person or a transient, the \npublic perception of law enforcement is often affected by the presence of so-\ncalled vagrants and panhandlers in any given area. Thus virtually every \njurisdiction has statutes punishing either vagrancy or loitering. However, these \nstatutes 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 \nconsiderable discretion in arresting the unemployed, gamblers, drug addicts, \nalcoholics, and those who frequented houses of prostitution or other locations of \nill repute. In a sense, vagrancy statutes attempted to incapacitate \nindividuals before they engaged in criminal activity, to ensure the safety and \nsecurity of any given area. \nIn 1972, the US Supreme Court struck down a Florida vagrancy statute \nin Papachristou v. City of Jacksonville, 405 U.S. 156 (1972). The Court held that \nthe statute, which prohibited night walking, living off one's spouse, and \nfrequenting bars or liquor stores was void for vagueness and violated the due \nprocess clause in the Fourteenth Amendment. Thereafter, many states repealed \nor modified vagrancy statutes in lieu of more precisely drafted statutes \nprohibiting specific criminal conduct such as loitering. The Model Penal Code \nprohibits public drunkenness and drug incapacitation (Model Penal Code \n\u00a7 250.5) and loitering or prowling (Model Penal Code \u00a7 250.6). To summarize US Supreme Court precedent refining loitering statutes: it is unconstitutional to \ntarget those who are unemployedEdwards v. California, 314 U.S. 160 (1941), \naccessed April 5, \n2011, http://scholar.google.com/scholar_case?case=6778891532287614638&hl=\nen&as_sdt=2&as_vis=1&oi=scholarr. or to enact a statute that is vague, such as a \nstatute that criminalizes loitering in an area \"with no apparent purpose,\"City of \nChicago v. Morales, accessed April 5, 2011, 527 U.S. 41 \n(1999), http://supreme.justia.com/us/527/41/case.html. or without the ability to \nprovide law enforcement with \"credible and reliable identification.\"Kolender v. \nLawson, accessed April 5, 2011, 461 U.S. 352 \n(1983), http://supreme.justia.com/us/461/352. \nIn a jurisdiction that criminalizes loitering, the criminal act element is typically \nloitering, wandering, or remaining, with the specific intent or purposely to \ngamble, beg, or engage in prostitution.Ala. Code \u00a7 13A-11-9, accessed April 5, \n2011, http://law.onecle.com/alabama/criminal-code/13A-11-\n9.html. An attendant circumstance could specify the location where the \nconduct takes place, such as a school or transportation facility.Ariz. Rev. Stat. \n\u00a7 13-2905, accessed April 5, 2011, http://law.onecle.com/arizona/criminal-\ncode/13-2905.html. Another common attendant circumstance is being masked in \na public place while loitering, with an exception for defendants going to a \nmasquerade party or participating in a public parade.Ala. Code \u00a7 13A-11-9, \naccessed April 5, 2011, http://law.onecle.com/alabama/criminal-code/13A-11-\n9.html. The Model Penal Code prohibits loitering or prowling in a place, at a \ntime, or in a manner not usual for law-abiding individuals under circumstances \nthat warrant alarm for the safety of persons or property in the vicinity (Model \nPenal Code \u00a7 250.6). Loitering is generally graded as a misdemeanorAriz. Rev. \nStat. \u00a7 13-2905, accessed April 5, 2011, http://law.onecle.com/arizona/criminal-\ncode/13-2905.html. or a violation.Ala. Code \u00a7 13A-11-9, accessed April 5, \n2011, http://law.onecle.com/alabama/criminal-code/13A-11-9.html. The Model \nPenal Code grades loitering as a violation (Model Penal Code \u00a7 250.6). Figure 12.2 Crack the Code Many jurisdictions also criminalize panhandling or begging. Panhandling \nstatutes essentially criminalize speech, so they must be narrowly tailored to avoid \nsuccessful constitutional challenges based on the First Amendment, void for \nvagueness, or overbreadth. Constitutional panhandling statutes generally \nproscribe aggressive conductGresham v. Peterson, 225 F.3d 899 (2000), \naccessed April 5, \n2011, http://scholar.google.com/scholar_case?case=12046859312956994237&q\n= %22Gresham+v.+Peterson%22&hl=en&as_sdt=2,5. or conduct that blocks \npublic access or the normal flow of traffic. \nSit-Lie Laws \nOne modern statutory approach to preventing homeless individuals and \ntransients from congregating in cities and affecting the quality of life or the \nprosperity 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 \nmove about, rather than block access to businesses, roadways, or transportation \nfacilities. If precisely drafted, sit-lie laws could resemble \nconstitutional loitering statutes, substituting sitting or lying down for the \ncriminal act of loitering, wandering, or remaining. However, these statutes are \nsusceptible to the same constitutional challenges as vagrancy and loitering \nstatutes because 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 \nthat prohibited sitting or lying on a public sidewalk between the hours of 7 a.m. \nand 9 p.m. in Seattle's downtown area. The ordinance was attacked and \nultimately upheld by the US Court of Appeals for the Ninth Circuit in \n1996.Heather Knight, \"San Francisco Looks to Seattle: Did Sidewalk Sitting Ban \nHelp?\" seattlepi.com website, accessed April 5, \n2011, http://www.seattlepi.com/default/article/San-Francisco-looks-to-Seattle-\nDid-sidewalk-888774.php. Los Angeles thereafter enacted a more comprehensive \nordinance that banned sitting, lying, or sleeping on public streets and sidewalks at all times and in all places within Los Angeles city limits. This ordinance was \nstricken by the same court as unconstitutional cruel and unusual \npunishment pursuant to the Eighth Amendment.Jones v. City of Los Angeles, \n444 F.3d 1118 (2006), accessed April 5, \n2011, http://scholar.google.com/scholar_case?case=4259488333208893136&q= \nJones+v.+City+of+Los+Angeles+2005&hl=en&as_sdt=2,5&as_ylo=2004. The \ncourt held that the homeless in Los Angeles far outnumbered the amount of \nspace available in homeless shelters, and therefore the ordinance punished \ndefendants for conduct that was involuntary. Portland followed Los Angeles with \na sidewalk-obstruction ordinance, requiring individuals to keep their personal \nbelongings within two feet of their bodies. This ordinance was stricken as void \nfor vagueness in 2009.Matt Davis, \"Sit/Lie Law Unconstitutional,\" Portland \nMercury website, accessed April 5, \n2011, http://blogtown.portlandmercury.com/BlogtownPDX/archives/2009/02/1\n9/judge_rules_sit_lie_law_uncons. \nThe most recent enactment of a sit-lie ordinance took place in San Francisco in \n2010. The San Francisco ordinance is modeled after the Seattle ordinance and \nprohibits sitting or lying on a public sidewalk in the city limits between 7 a.m. and \n9 p.m., with exceptions for medical emergencies, protests, or those who have \ndisabilities.San Francisco Police Code \u00a7 16.8, accessed April 5, \n2011, http://www.sfgov2.org/ftp/uploadedfiles/elections/candidates/Nov2010_\nCivilSidewalks.pdf. The first offense is an infraction, and the second offense is a \nmisdemeanor.San Francisco Police Code \u00a7 16.8, accessed April 5, \n2011, http://www.sfgov2.org/ftp/uploadedfiles/elections/candidates/Nov2010_\nCivilSidewalks.pdf. If the San Francisco ordinance successfully reduces the \npresence of transients and is upheld as constitutional, other cities that desire the \nsame results could soon follow suit. \nFigure 12.3 Potential Constitutional Challenges to Loitering, Panhandling, and Sit-Lie \nLaws Table 12.1 Comparing Disorderly Conduct, Loitering, and Sit-Lie Laws \nCrime Criminal Act Criminal Intent \nAttendant \nCircumstance \nDisorderly \nconduct \nUnreasonable noise, \nobscene utterance or \ngesture, fighting, threats, \nfighting words, creating a \nhazardous condition \nSpecific or \npurposely or \nrecklessly to disturb \nthe public or create \na risk thereof \nAct takes place in public \nLoitering \nLoitering, wandering, \nremaining \nSpecific or \npurposely to beg, \ngamble, solicit \nprostitution \nAct takes place near a \nschool, transportation \nfacility: the defendant is \nmasked \nSit-lie law Sitting or lying down Strict liability* \nAct takes place between \ncertain times of day, in \npublic, on a sidewalk, or \non a street \n*Exceptions for medical emergencies, people who have disabilities, \nprotests \nKEY TAKEAWAYS \n\u2022 The criminal act element required for disorderly conduct is either when the \ndefendant (1) makes a loud and unreasonable noise, obscene utterance, or \ngesture, (2) engages in fighting or threatening, or states fighting words, or (3) \ncreates a hazardous condition by an act that does not serve a legitimate purpose. \n\u2022 The criminal intent element required for disorderly conduct in many jurisdictions \nis the specific intent or purposely to cause public inconvenience, annoyance, or \nalarm, or the reckless intent to cause a risk thereof. \n\u2022 The disorderly conduct attendant circumstance is that the conduct occurs in a \npublic place. \u2022 Disorderly conduct statutes can be constitutionally challenged under the First or \nFourteenth Amendments as void for vagueness or overbroad. \n\u2022 Disorderly conduct is typically graded as a misdemeanor. \n\u2022 Vagrancy statutes are subject to constitutional challenges if they are void for \nvagueness, overbroad, or target status. \n\u2022 Loitering statutes are subject to constitutional challenges if they target the \nunemployed or are void for vagueness. \n\u2022 The loitering criminal act element is typically loitering, wandering, or remaining, \nwith the specific intent or purposely to gamble, beg, or engage in prostitution. An \nattendant circumstance could specify the location the conduct takes place, such \nas a school or transportation facility. Another common attendant circumstance is \nbeing masked in a public place while loitering, with an exception for defendants \ngoing to a masquerade party or participating in a public parade. Loitering is \ntypically graded as a misdemeanor or a violation. \n\u2022 Sit-lie laws typically prohibit sitting or lying on a public sidewalk or street, instead \nof loitering, wandering, or remaining like loitering statutes. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the \nend of the chapter. \n1. A city enacts an ordinance that prohibits standing or remaining in a crosswalk for \nan extended period with a sign. What are three potential constitutional \nchallenges to this ordinance? Can you identify a government interest supporting \nit? \n2. Read State v. Russell, 890 A.2d 453 (2006). Why did the Supreme Court of Rhode \nIsland reinstate a complaint against the defendant for disorderly conduct in this \ncase? The case is available at this \nlink: http://scholar.google.com/scholar_case?case=15220603438033851670&q= \nState+v+Russell&hl=en&as_sdt=2,5. 3. Read People v. Hoffstead, 905 N.Y.S.2d 736 (2010). Why did the New York \nSupreme Court overturn the defendant's conviction for loitering in this case? \n12.2 Crimes Targeting Group Conduct \nLEARNING OBJECTIVES \n1. Define the elements of unlawful assembly and failure to disperse. \n2. Identify potential constitutional challenges to unlawful assembly and failure to \ndisperse statutes. \n3. Analyze unlawful assembly and failure to disperse grading. \n4. Define the elements of riot, and analyze riot grading and the potential for \nconstitutional challenges to riot statutes. \n5. Define criminal gang and criminal gang member. \n6. Compare gang participation and gang-enhancement statutes. \n7. Analyze two civil responses to the criminal gang problem. \n8. Identify potential constitutional challenges to gang activity statutes. \nGroup conduct, if criminal, can enhance the potential for violence and injury and is \npunishable as the crimes of unlawful assembly, riot, or criminal gangs. However, the right \nto peacefully assemble is guaranteed in the First Amendment, so statutes codifying these \noffenses can be subject to constitutional attack similar to disorderly conduct, vagrancy, and \nloitering 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 \ngroup activity offenses as well as their potential constitutional defenses. \nUnlawful Assembly and Failure to Disperse \nUnlawful assembly can be the predicate offense to riot, which is discussed \nshortly. The elements required for unlawful assembly are the assemblingAla. \nCode \u00a7 13A-11-5, accessed April 9, \n2011, http://law.onecle.com/alabama/criminal-code/13A-11-5.html. or \nmeetingFla. Stat. Ann. \u00a7 870.02, accessed April 9, 2011, http://law.onecle.com/florida/crimes/870.02.html. (criminal act) of a \ngroup, with the specific intent or purposely to commit a breach of the peace, \nsome other unlawful act,Fla. Stat. Ann. \u00a7 870.02, accessed April 9, \n2011, http://law.onecle.com/florida/crimes/870.02.html. or riot.Ala. Code \u00a7 13A-\n11-5, accessed April 9, 2011, http://law.onecle.com/alabama/criminal-code/13A-\n11-5.html. Some jurisdictions and the Model Penal Code punish the failure to \ndisperse (criminal act) when a peace officer or public servant orders a group \nparticipating in disorderly conduct likely to cause substantial harm, serious \nannoyance, or alarm to do soMass. Gen. Laws ch. 269 \u00a7 1, accessed April 9, \n2011, http://law.onecle.com/massachusetts/269/1.html. (Model Penal Code \n\u00a7 250.1(2)). The criminal intent element for failure to disperse is general \nintent or knowinglyN.J. Stat. \u00a7 2C:33-1, accessed April 9, \n2011, http://law.onecle.com/new-jersey/2c-the-new-jersey-code-of-criminal-\njustice/33-1.html. (Model Penal Code \u00a7 250.1(2)). \nJurisdictions vary as to the attendant circumstance for unlawful assembly \nand failure to disperse, which is the size of the group. Some common group \nminimums are two,Cal. Penal Code \u00a7 407, accessed April 9, \n2011, http://law.onecle.com/california/penal/407.html. three,Fla. Stat. Ann. \n\u00a7 870.02, accessed April 9, \n2011, http://law.onecle.com/florida/crimes/870.02.html. or five.N.J. Stat. \n\u00a7 2C:33-1, accessed April 9, 2011, http://law.onecle.com/new-jersey/2c-the-new-\njersey-code-of-criminal-justice/33-1.html. The Model Penal Code requires three \nor more persons (Model Penal Code \u00a7 250.1(2)). \nExample of Unlawful Assembly and Failure to Disperse \nSix neighbors are sitting on their porches, peacefully chatting. One of the \nneighbors, Buck, notices a pro-choice group with signs in the park across the \nstreet. Annoyed, Buck tells the group, \"Let's go show those losers what it's like to \nfear for your life!\" He marches angrily over to the park, and the other neighbors \nfollow. Buck begins chanting, \"How would you like to be aborted?\" and the other neighbors join in. The individuals in the pro-choice group stand their ground, \nand the decibel of the chanting increases. Buck and his neighbors form a ring \naround the group and move in closer, almost touching the individuals and their \nsigns. A park ranger hears the noise, walks over to Buck and his neighbors, and \ntells them to \"move along.\" Buck spits at the ranger's feet and starts up the chant \nagain. The other neighbors laugh and join him. \nIn this scenario, Buck and his neighbors have most likely committed unlawful \nassembly and failure to disperse in many jurisdictions. Buck and his neighbors \nnumber six, which generally meets the minimum unlawful assembly and failure \nto disperse attendant circumstance requirement. When Buck and his neighbors \ngo to the park in a group, they are assembling. Their chant, \"How would you like \nto be aborted?\" is directed at a pro-choice group, so it is evident that Buck and his \nneighbors have the specific intent or purposely to cause a breach of the peace. In \naddition, the increasing decibel of the chanting and the neighbors' close \nproximity to the pro-choice group indicates an intent to intimidate, threaten, and \npossibly commit an unlawful act such as false imprisonment, assault, battery, or \nriot. When the park ranger, who is most likely a peace officer, tells Buck and his \nneighbors to \"move along,\" he is ordering them to disperse. Buck's response in \nspitting at the ranger's feet and starting up the chant again is probably a failure to \ndisperse committed with general intent or knowingly. Thus Buck and his \nneighbors may be subject to prosecution for and conviction of both of these \noffenses in many jurisdictions. \nPotential Constitutional Challenges to Unlawful Assembly and Failure to \nDisperse Statutes \nThe offenses of unlawful assembly and failure to disperse target conduct that, \nif peaceful, is protected by the First Amendment. Therefore, similar to disorderly \nconduct offenses, statutes proscribing this type of conduct are subject to strict \nscrutiny, must be narrowly tailored, and must be supported by a compelling \ngovernment interest, or they are vulnerable to attack under the First AmendmentPeople v. Sanchez, 888 N.Y.S. 2d 352 (2009), accessed April 9, \n2011, http://scholar.google.com/scholar_case?case=15178974598569042123&q= \nunconstitutional+%22unlawful+assembly+statute%22&hl=en&as_sdt=2,5&as_y\nlo=1992. or as void for vagueness and overbroad. \nFigure 12.4 Potential Constitutional Challenges to Unlawful Assembly and Failure to \nDisperse Statutes Unlawful Assembly and Failure to Disperse Grading \nUnlawful assembly and failure to disperse are generally graded as \nmisdemeanors.Ala. Code \u00a7 13A-11-5, accessed April 9, \n2011, http://law.onecle.com/alabama/criminal-code/13A-11-5.html. The Model \nPenal Code grades failure to disperse as a misdemeanor (Model Penal Code \n\u00a7 250.1(2)). \nRiot \nRiot can be the result of an unlawful assembly that escalates, an incitement to \nriot (discussed in Chapter 3 \"Constitutional Protections\"), or can occur \nspontaneously without any planning or predicate activity. The criminal \nact element required for riot in many jurisdictions is group commission of an \nunlawful act of violence or a lawful act in a violent and tumultuous manner.Ga. \nCode tit. 16 \u00a7 16-11-30, accessed April 9, \n2011, http://law.onecle.com/georgia/16/16-11-30.html. The Model Penal Code \ncriminalizes riot when a group participates in a course of disorderly conduct \n(Model Penal Code \u00a7 250.1). The criminal intent element for riot varies, \ndepending on the jurisdiction. Some jurisdictions and the Model Penal Code \nrequire specific intent or purposely to commit or facilitate a felony or \nmisdemeanor, or to prevent or coerce official action, or general \nintent or knowledge that anyone plans to use a firearm or deadly weaponN.J. \nStat. \u00a7 2C:33-1, accessed April 9, 2011, http://law.onecle.com/new-jersey/2c-the-\nnew-jersey-code-of-criminal-justice/33-1.html. (Model Penal Code \u00a7 250.1). \nOthers make riot a strict liability offense.Cal. Penal Code \u00a7 404, accessed April \n9, 2011, http://law.onecle.com/california/penal/404.html; Ga. Code tit. 16 \u00a7 16-\n11-30, http://law.onecle.com/georgia/16/16-11-30.html. In many jurisdictions, \nriot also has the requirement that the defendant(s) be the factual and legal \ncause of harm, which is public terror and alarm or a risk thereof.Ala. Code \n\u00a7 13A-11-3, accessed April 9, 2011, http://law.onecle.com/alabama/criminal-\ncode/13A-11-3.html. Jurisdictions vary as to the attendant circumstance for riot, which is the size \nof the group. Some common group minimums are two,Ga. Code tit. 16 \u00a7 16-11-\n30, accessed April 9, 2011, http://law.onecle.com/georgia/16/16-11-\n30.html. five,N.J. Stat. \u00a7 2C:33-1, accessed April 9, \n2011, http://law.onecle.com/new-jersey/2c-the-new-jersey-code-of-criminal-\njustice/33-1.html. and six.Ala. Code \u00a7 13A-11-3, accessed April 9, \n2011, http://law.onecle.com/alabama/criminal-code/13A-11-3.html. The Model \nPenal Code requires three or more persons (Model Penal Code \u00a7 250.1). Riot \nis graded as a misdemeanor,Ala. Code \u00a7 13A-11-3, accessed April 9, \n2011, http://law.onecle.com/alabama/criminal-code/13A-11-3.html. or a felony if \na firearm is usedVa. Code Ann. \u00a7 18.2-405, accessed April 9, \n2011, http://law.onecle.com/virginia/crimes-and-offenses-generally/18.2-\n405.html. or there is property damage or physical injury to an individual other \nthan the defendants.N.Y. Penal \u00a7 240.06, accessed April 9, \n2011, http://law.onecle.com/new-york/penal/PEN0240.06_240.06.html. The \nModel Penal Code grades riot as a felony of the third degree (Model Penal Code \n\u00a7 250.1). \nExample of Riot \nReview the example with Buck and his neighbors in Section 12 \"Example of \nUnlawful Assembly and Failure to Disperse\". Assume that after the park ranger \norders Buck and his neighbors to disperse, Buck spits at the ranger's feet, \ncontinues chanting, and thereafter becomes so enraged that he grabs a sign out of \none of the pro-choice individual's hands and begins beating him over the head \nwith it. The other neighbors follow suit and within minutes they are all wielding \nsigns 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 \nsix, which meets the minimum group requirement in many riot statutes. Buck \nand his neighbors have also assaulted and battered some of the pro-choice \nindividuals, which are unlawful acts of violence. The statement made by Buck \nabout showing the pro-choice group what it means to fear for your life indicates a specific intent or purposely to commit a felony or misdemeanor, which is the \nintent requirement in many jurisdictions. If the riot statute in Buck's state \nrequires factual and legal causation and the harm of public terror and alarm, the \nbeating constitutes the causation and harm requirement. Thus Buck and his \nneighbors' 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 \noffense in many jurisdictions. \nPotential Constitutional Challenges to Riot Statutes \nBecause statutes criminalizing riot include the requirement of force or violence, \nthey do not target protected conduct under the First Amendment and are not as \nprone to a constitutional challenge. Of course, any criminal statute must be \nprecisely drafted so that it is not void for vagueness. However, riot statutes are \nnot generally subject to strict scrutiny because the First Amendment does not \ninclude forceful or violent expression within the definition of speech. \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 \nshown in this video: \n(click to see video) \nCriminal Gangs \nMany jurisdictions have statutes, both criminal and civil, that address the \nongoing dilemma of criminal gangs. However, gang activity remains a problem in \nmajor cities and even smaller, rural areas. Criminal gangs can create a stigma \nthat attaches to a location, affecting property values and residents' attitudes \nabout the effectiveness of law enforcement and the justice system in general. Commentators and legislators differ as to the most effective remedies for the \ngang problem, leading to a plethora of diverse statutory responses. \nWhat follows is a discussion of modern statutes targeting gang activity and the \npotential constitutional challenges. \nCriminal Gang Definitions \nIt is important for a jurisdiction's gang statute to define criminal \ngang and criminal gang member precisely, to avoid constitutional challenges \nunder the First Amendment or void for vagueness and overbreadth. This is \nbecause gang membership involves assembly, which, if peaceful, is protected \nunder the First Amendment. \nFederal law defines a criminal street gang as an ongoing group, club, \norganization, or association of five or more that has as one of its primary \npurposes the commission of specific criminal offenses or activities that affect \ninterstate or foreign commerce.18 U.S.C. 521(a), accessed April 12, \n2011, http://www.law.cornell.edu/uscode/18/usc_sec_18_00000521----000-\n.html. Federal law defines a gang member as someone who participates in a \ncriminal street gang with the general intent or knowledge that its members \nengage in a continuing series of specified crimes, or an individual who intends \nto promote or further the felonious activities of the criminal street gang.18 \nU.S.C. 521(d), accessed April 12, \n2011, http://www.law.cornell.edu/uscode/18/usc_sec_18_00000521----000-\n.html. One representative state statutory definition of criminal gang is a group \nof three or more persons who have in common a name, identifying sign, symbol, \ntattoo, style of dress, or use of hand signs and who have committed or attempted \nto commit specified crimes for the benefit of the group.Alaska Stat. \u00a7 11.81.900 \n(13), accessed April 12, 2011, http://law.justia.com/codes/alaska/2009/title-\n11/chapter-11-81/article-07/sec-11-81-900. Criminal gang member could be \nstatutorily defined as any person who engages in 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 \nparticular gang's area and adopts its style of dress, use of hand signs, or tattoos; \n(3) associates with known gang members; or (4) has been arrested more than \nonce in the company of identified gang members for offenses consistent with \ngang activity.Idaho Code Ann. \u00a7 18-8502(2), accessed April 12, \n2011, http://law.justia.com/codes/idaho/2010/title18/t18ch85sect18-8502.html. \nExample of Criminal Gang Definitions \nThe North Side Boys are a group of fifty-five members who have a \nspecial tattoo, wear the colors black and white daily, and pride themselves on \ntheir illegal controlled substances distribution. Mike decides he wants to be a \nNorth Side Boy. Mike participates in a special initiation process that includes \nselling a specified quantity of an illegal controlled substance in a certain location \nover a period of two weeks. After Mike completes the initiation, he gets the North \nSide Boys' tattoo, wears the North Side Boys' colors daily, and spends all his time \nwith the North Side Boys, hanging out and also contributing to their illegal \nactivities. The North Side Boys probably meets the criteria for a criminal gang, \nand Mike is most likely a criminal gang member under many modern \nstatutes. The North Side Boys has an identifiable tattoo and style of dress and \nfurthers a criminal activity, which is the distribution of illegal controlled \nsubstances. Mike can be identified as a gang member by other North Side Boys \nmembers, frequents the North Side Boys' gang area, and adopts the gang's style \nof dress and tattoos along with furthering its criminal enterprise. Thus the North \nSide Boys and Mike fit the definition of criminal gang and gang member in many \njurisdictions, and Mike may be subject to prosecution for and conviction of \ncriminal gang activity if he commits crimes at the direction of or in furtherance of \nthe gang, as is analyzed in Section 12 \"Criminal Gang Activity\". Criminal Gang Activity \nStates generally criminalize gang participation,Ohio Rev. Code Ann. \u00a7 2923.42, \naccessed April 14, \n2011, http://law.justia.com/codes/ohio/2010/title29/chapter2923/2923_42.ht\nml. enhance the penalty for a crime when it is committed in furtherance of a \ngang,Fla. Stat. Ann. \u00a7 874.04, accessed April 14, \n2011, http://law.onecle.com/florida/crimes/874.04.html. or both.Cal. Penal \nCode \u00a7 186.22, http://law.justia.com/codes/california/2010/pen/186.20-\n186.33.html. If a state enacts a gang participation statute, the criminal \nact element is generally described as actively participating in a criminal gang and \npromoting, furthering, or assisting in any felony, with the general \nintent or knowingly that members of the gang engage in a pattern of criminal \ngang activity.Del. Code Ann. tit. 11 \u00a7 616 (2)(b), accessed April 13, \n2011, http://law.justia.com/codes/delaware/2010/title11/c005-sc02.html. Gang \nparticipation is generally graded as a felony.Del. Code Ann. tit. 11 \u00a7 616 (2)(b), \naccessed April 13, \n2011, http://law.justia.com/codes/delaware/2010/title11/c005-sc02.html. Gang \nenhancement statutes enhance the defendant's sentence for actually committing \na misdemeanor or felony with the specific intent or purposely to benefit, \npromote, or further the interests of the criminal gang.Fla. Stat. Ann. \u00a7 874.04, \naccessed April 14, \n2011, http://law.onecle.com/florida/crimes/874.04.html. Some jurisdictions \nonly provide gang enhancement for the commission of a felony.Del. Code Ann. \ntit. 11 \u00a7 616 (2)(c), accessed April 13, \n2011, http://law.justia.com/codes/delaware/2010/title11/c005-sc02.html. \nExample of Criminal Gang Activity \nReview the example with Mike and the North Side Boys given in Section 12 \n\"Example of Criminal Gang Definitions\". Assume that Mike resumes selling \nillegal controlled substances at the behest of the North Side Boys after his initiation and is arrested. If the state where Mike sells illegal controlled \nsubstances has a gang participation statute and grades the crime of sale of illegal \ncontrolled substances as a felony, Mike could be prosecuted for and convicted of \nthis crime. He furthered and assisted in the North Side Boys' sale of illegal \ncontrolled substances with the general intent or knowingly that members of the \nNorth Side Boys engaged in this pattern of criminal gang activity. If the state also \nhas a gang enhancement statute, Mike could have his sentence for sale of illegal \ncontrolled substances enhanced because he committed the sale of illegal \ncontrolled substances in furtherance of the criminal gang. In either situation, \nMike will be punished more severely for the sale of illegal controlled substances \nthan an individual defendant who sells illegal controlled substances on his or her \nown, rather than at the direction or in furtherance of a criminal gang. \nFigure 12.5 Diagram of Typical Modern Gang Statutes Civil Responses to Gang Activity \nAs stated previously, the problem of criminal gangs is challenging and has proven \nresistant to criminal remedies. Thus many jurisdictions have also enacted civil \ngang control statutes, along with resorting to the remedy of civil gang \ninjunctions to try to curb the multitude of harms that gangs inflict. \nCivil gang control statutes generally provide for damages, often enhanced, for \ncoercion, intimidation, threats, or other harm caused by a gang or gang \nmember.Fla. Stat. Ann. \u00a7 874.06, accessed April 14, \n2011, http://law.onecle.com/florida/crimes/874.06.html. A common provision of \ncivil gang control statutes is the ability of a resident or state agency to sue as a \nplaintiff.Fla. Stat. Ann. \u00a7 874.06, accessed April 14, \n2011, http://law.onecle.com/florida/crimes/874.06.html. \nFigure 12.6 Example of a Civil Gang Control Statute Civil gang injunctions (CGIs) are precisely drafted orders prohibiting gang \nmembers from associating with other gang members or entering certain areas \nknown for gang activity.Tex. Penal Code \u00a7 125.065, accessed April 14, \n2011, http://law.onecle.com/texas/civil/125.065.00.html. A state agency or an \nindividual resident can typically make a motion requesting a CGI.Tex. Penal Code \n\u00a7 125.064, accessed April 14, \n2011, http://law.onecle.com/texas/civil/125.064.00.html. The basis for a CGI \nmotion is the tort of public nuisance, which requires proof that the gang is \ndisturbing the enjoyment of life and property for those living in the \ncommunity.People v. Acuna, 14 Cal. 4th 1090 (1997), accessed April 14, \n2011, http://scholar.google.com/scholar_case?case=10825872110148502169&hl\n=en&as_sdt=2&as_vis=1&oi=scholarr (accessed April 15, 2011). Common \nprovisions of CGIs are a prohibition on associating with known gang members, \nwearing gang colors, flashing gang hand signs, or loitering in areas known for \ngang activity.Max Shiner, \"Civil Gang Injunctions a Guide for Prosecutors,\" \nNdaa.org website, accessed April 14, \n2011, http://www.ndaa.org/pdf/Civil_Gang_Injunctions_09.pdf. Violation of a \nCGI could constitute the crime of contempt, resulting in fines or \nincarceration.Tex. Penal Code \u00a7 125.066, accessed April 14, \n2011, http://law.onecle.com/texas/civil/125.066.00.html. \nExample of Civil Responses to Gang Activity \nReview the example with Mike and the North Side Boys in Section 12 \"Example of \nCriminal Gang Definitions\". Mike and the North Side Boys are subject to a \ncriminal prosecution for gang participation for their sale of illegal controlled \nsubstances. They also are subject to gang enhancements for any felony \ncommitted at the direction or in furtherance of the North Side Boys. In addition, \nif the state where Mike and the North Side Boys are located has statutes \nproviding civil remedies and CGIs, both Mike and the North Side Boys members \nare subject to a civil suit for damages if they coerce, intimidate, or injure another. \nThey also are subject to an injunction constraining their 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 \ncharges of contempt, leading to fines or incarceration. \nColton Gang Injunction \nNews Story of the Colton Civil Gang Injunction \nThe civil gang injunction in Colton, California, is discussed in this video: \n(click to see video) \nPotential Constitutional Challenges to Gang Statutes \nGang activity and gang association require assembly, which, if peaceful, is \nprotected by the First Amendment. Thus statutes proscribing gang conduct are \nsubject to attack under the First Amendment or void for \nvagueness and overbreadth. CGIs have the same constitutional concerns as \ncriminal gang activity statutes because their violation can lead to a criminal \nprosecution for contempt.People v. Acuna, 14 Cal. 4th 1090 \n(1997), http://scholar.google.com/scholar_case?case=10825872110148502169&\nhl=en&as_sdt=2&as_vis=1&oi=scholarr (accessed April 15, 2011). \nIn City of Chicago v. Morales, 527 U.S. 41 (1999), the US Supreme Court struck \ndown Chicago's Gang Congregation Ordinance as void for vagueness. The \nordinance prohibited criminal street gang members from \"loitering in public.\" \nThe term loitering was defined as remaining in any one place with no apparent \npurpose. When a Chicago law enforcement officer observed a gang member \nloitering, he was obligated to order the gang member to disperse, and if the gang \nmember 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 \nwhat was criminal, as required by the due process clause of the Fourteenth Amendment, and allowed too much discretion to law enforcement to unevenly \nenforce its provisions. \nUnder Morales, modern statutes targeting gang activity and association must \nprecisely define criminal conduct, avoid vague terms such as \"no apparent \npurpose,\" and ensure that First Amendment protected activity is not included \nwithin the statute's reach. CGIs should support a significant government interest, \nbe narrowly tailored to avoid constitutionally protected activity, and be \nbuttressed by evidence that the CGI is the least restrictive means to carry out the \ninterest stated.Max Shiner, \"Civil Gang Injunctions a Guide for Prosecutors,\" \nNdaa.org website, accessed April 14, \n2011, http://www.ndaa.org/pdf/Civil_Gang_Injunctions_09.pdf. \nFigure 12.7 Potential Constitutional Challenges to Statutes Targeting Gangs Figure 12.8 Diagram of Crimes Involving Group Activity KEY TAKEAWAYS \n\u2022 The elements of unlawful assembly are the assembling or meeting of a group \n(criminal act) with the specific intent or purposely to commit breach of the \npeace, some other unlawful act, or riot. Some jurisdictions punish the failure to \ndisperse (criminal act) with general intent or knowingly when a peace officer or \npublic servant orders a group likely to cause substantial harm, serious \nannoyance, or alarm to do so. Jurisdictions vary as to the attendant \ncircumstance, which is the group minimum, identifying two, three, five, or some \nsimilar number, depending on the statute. \n\u2022 Unlawful assembly and failure to disperse statutes can be constitutionally \nchallenged under the First Amendment, as void for vagueness, or overbroad. \n\u2022 Unlawful assembly and failure to disperse are typically graded as misdemeanors. \n\u2022 Riot is group commission of an unlawful violent act or a lawful act in a violent \nmanner (criminal act) with either the specific intent or purposely to commit a \nfelony or misdemeanor or prevent official action, or the general intent or \nknowingly that someone in the group possesses a firearm, or with strict liability \nintent. Some jurisdictions require the criminal act and intent to be the factual \nand legal cause of harm, which is public terror, alarm, or a risk thereof. The \nattendant circumstance, which is the group minimum, could be two, five, six, or \nsome similar number, depending on the statute. Riot is often graded as a \nmisdemeanor, or a felony if a firearm is used or there is property damage or \nphysical injury to someone other than a defendant. Because riot statutes \ncriminalize conduct involving force or violence, riot statutes are not as prone to \nconstitutional challenges as disorderly conduct, vagrancy, loitering, and unlawful \nassembly statutes. \n\u2022 Criminal gang could be defined as a group of a statutorily specified number that \nengages in a pattern of criminal activity and has in common hand signs, tattoos, \nand style of dress. Criminal gang member could be defined as someone who is \nidentified as a gang member, admits to gang membership, associates with gang members, adopts the hand signs, tattoos, and style of dress of gang members, \nand commits crimes at the behest of the gang. \n\u2022 Gang participation statutes criminalize actively participating in a criminal gang \nand promoting, furthering, or assisting (criminal act) the commission of a felony \non behalf of a criminal gang with the general intent or knowingly that the gang \nparticipates in a pattern of criminal activity. Gang participation is typically graded \nas a felony. Gang enhancement statutes enhance a sentence for a misdemeanor \nor felony committed with the specific intent or purposely to promote or further a \ncriminal gang. Some states only provide gang enhancement statutes for the \ncommission of a felony. \n\u2022 Civil responses to the gang problem include civil gang control statutes that allow \nplaintiffs, including state agencies, to sue for enhanced damages for threats, \nintimidation, or physical injury caused by a gang or gang member and civil gang \ninjunctions (CGIs) that prohibit gang members from associating or congregating \nin certain areas frequented by criminal gangs. \n\u2022 Statutes targeting gangs can be constitutionally challenged under the First \nAmendment or as void for vagueness or overbroad. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the \nend of the chapter. \n1. A law enforcement officer arrests a group of individuals for standing outside a \nJewish temple with signs that indicate a disbelief in the holocaust. The officer \ntells the individuals that he is arresting them for unlawful assembly. What are \nsome potential constitutional problems with this arrest? \n2. Read Ortiz v. NYS Parole in Bronx, 586 F.3d 149 (2009). In Ortiz, the defendant \nwas found guilty of several counts of riot under New York's first-degree riot \nstatute for conduct that occurred after he left the scene of the riot. Did the US \nCourt of Appeals for the Second Circuit uphold the defendant's conviction? 12.3 Vice Crimes \nLEARNING OBJECTIVES \n1. Identify the sources of federal and state drug laws. \n2. Describe a drug schedule. \n3. Analyze various drug crimes and their grading. \n4. Identify two modern trends in state drug crimes statutes. \n5. Identify a potential constitutional challenge to a state's medical marijuana \nstatute. \n6. Analyze prostitution, pimping, and pandering and their grading. \nVice crimes offend the sensibilities, yet are often victimless and harmless, other than harm \ndone to the defendant or society in general. Section 12.3.1 \"Drug Crimes\" explores drug \ncrimes, including manufacture or cultivation, possession, sale, and under the influence \noffenses. Upcoming sections analyze prostitution, pimping, and pandering. In the final \nsection, various vice statutes are available for review, including statutes criminalizing \ngambling and conduct involving alcohol. \nDrug Crimes \nAll states and the federal government criminalize \nthe manufacture or cultivation, possession, sale, and use of specified \ndrugs. Many modern statutes focus on rehabilitation for nonviolent drug \noffenders, rather than incarceration, because this has proven effective in reducing \nrecidivism and freeing up jails and prisons for defendants who pose a greater \nsecurity risk to society. In addition, marijuana, a drug that has demonstrated \nvalid therapeutic qualities, has been legalized by many states \nfor medicinal purposes, which poses interesting constitutional questions, as is \ndiscussed in Section 12 \"Modernization of Drug Crimes Statutes\". Federal and State Drug Schedules \nFederal criminal statutes targeting illegal drugs are part of the Comprehensive \nDrug Abuse Prevention and Control Act of 1970, commonly known as \nthe Controlled Substances Act.21 U.S.C. \u00a7 801 et seq., accessed April 17, \n2011, http://www.deadiversion.usdoj.gov/21cfr/21usc/index.html. The states \nfollow one of the three versions of the Uniform Controlled Substances \nAct,Uniform Controlled Substances Act (1994), accessed April 17, \n2011, http://www.law.upenn.edu/bll/archives/ulc/fnact99/1990s/ucsa94.pdf. w\nhich was drafted by a commission striving for uniformity in state and federal \nlaws. For the purpose of drug crimes, the states and the federal government \ncategorize illegal drugs in drug schedules.21 U.S.C. \u00a7 812, accessed April 17, \n2011, http://www.law.cornell.edu/uscode/21/usc_sec_21_00000812----000-\n.html. The schedules generally focus on the harmful or addictive qualities of the \ndrug, with Schedule I drugs being the most harmful or addictive; the remaining \nschedules reflect less harmful or addictive drugs, including drugs that are legal \nwith a prescription.Minn. Stat. Ann. \u00a7 152.02, accessed April 17, \n2011, https://www.revisor.mn.gov/statutes/?id=152.02 (accessed April 17, 2011). \nExample of a Drug Schedule \nThe North Carolina drug schedule is located in N.C. Gen. Stat. \u00a7 90-89-90-\n94.N.C. Gen. Stat. \u00a7 90-89-90-94, accessed April 17, \n2011, http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/ByArticl\ne/Chapter_90/Article_5.html. Review the schedule and note that heroin, a highly \naddictive drug that can cause death if a user ingests too much, is listed in \nSchedule I, while marijuana, a less addictive drug that is generally not as harmful \nas heroin, is listed in Schedule VI. \nFederal and State Drug Crimes \nThe federal government and all fifty states criminalize the manufacture and \ncultivation, possession, sale, and use of drugs categorized in a jurisdiction's drug schedule, with exceptions for validly prescribed drugs and drugs involved in \nscientific or medical research. As discussed in Chapter 4 \"The Elements of a \nCrime\", the government cannot criminalize the status of being a drug \naddict.Robinson v. California, 370 U.S. 660 (1962), accessed April 18, \n2011, http://scholar.google.com/scholar_case?case=3358010003227436496&hl\n=en&as_sdt=2&as_vis=1&oi=scholarr. However, there is no constitutional \nimpediment to punishing criminal acts involving controlled substances, even \nthough it may be more difficult for an addict to control drug-related criminal \nbehavior. \nIn most jurisdictions, the manufacture of scheduled drugs is a felony,Ala. Code \n\u00a7 13A-12-217, accessed April 17, 2011, http://law.onecle.com/alabama/criminal-\ncode/13A-12-217.html. with a more severe penalty for the accompanying use of a \nfirearm or the furtherance of a clandestine laboratory operation.Ala. Code \u00a7 13A-\n12-218, accessed April 17, 2011, http://law.onecle.com/alabama/criminal-\ncode/13A-12-218.html. Cultivation of marijuana, which must be done \nwith general intent or knowingly, can be a misdemeanor or a felony, \ndepending on the quantity cultivated.Ohio Rev. Code Ann. \u00a7 2925.04, accessed \nApril 17, 2011, http://codes.ohio.gov/orc/2925.04. \nPossession of scheduled drugs is typically graded based on the quantity \npossessed, the drug's classification in the schedule, and whether or not the \npossession is for the purpose of distribution, with the penalties ranging from a \nmisdemeanor for simple possession to a serious felony for possession with intent \nto sell.Ohio Rev. Code Ann. \u00a7 2925.11, accessed April 17, \n2011, http://codes.ohio.gov/orc/2925. As is discussed more fully in Chapter 4 \n\"The Elements of a Crime\", possession can be actual, meaning the drug is located \non or very near the defendant's person, or constructive, meaning the drug is \nwithin the defendant's control.Connecticut Jury Instructions No. 2.11-\n1, http://www.jud.ct.gov/ji/criminal/part2/2.11-1.htm (accessed February 13, \n2010). Constructive possession can be joint, meaning between two or \nmore.Connecticut Jury Instructions No. 2.11- 1, http://www.jud.ct.gov/ji/criminal/part2/2.11-1.htm (accessed February 13, \n2010). Simple possession typically must be with general intent or knowingly, \nwhile possession for the purpose of distribution or sale must be with specific \nintent or purposely.People v. Parra, 70 Cal. App. 4th 222 (1999), accessed \nApril 17, \n2011, http://scholar.google.com/scholar_case?case=5809016451778310933&q= \nPeople+v.+Parra+70+Cal.+App.+4th+222&hl=en&as_sdt=2,5. In many states, \npossession of marijuana is graded lower than possession of other scheduled \ndrugs\u2014even as low as an infraction if the quantity is less than one ounce.Cal. \nHealth and Safety Code \u00a7 11357(b), accessed April 18, \n2011, http://www.canorml.org/laws/hsc11357.html#b. \nThe sale, distribution, or trafficking of scheduled drugs is generally a felony, \nwith more severe penalties for drugs in a higher schedule,N.C. Gen. Stat. \u00a7 90-95, \naccessed April 17, \n2011, http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/ByArticl\ne/Chapter_90/Article_5.html. the sale of larger quantities,Ala. Code \u00a7 13A-12-\n231, accessed April 17, 2011, http://law.onecle.com/alabama/criminal-code/13A-\n12-231.html. a sale by an adult to a minor,Ala. Code \u00a7 13A-12-215, accessed April \n17, 2011, http://law.onecle.com/alabama/criminal-code/13A-12-215.html. or a \nsale near school grounds.Ala. Code \u00a7 13A-12-250, accessed April 17, \n2011, http://law.onecle.com/alabama/criminal-code/13A-12-250.html \nScheduled drug use, also designated as being under the influence of a \ncontrolled substance, is typically a misdemeanor with more severe penalties \nfor habitual offenders.Cal. Health and Safety Code \u00a7 11550, accessed April 17, \n2011, http://law.onecle.com/california/health/11550.html. \nExample of Drug Crimes \nCharlene decides she wants to make some extra money by growing and selling \nmarijuana. Charlene acquires some marijuana seeds and plants a marijuana garden in her backyard. Once her plants are ready for harvest, Charlene harvests \nsome buds, weighs and packages them, and then puts some of the packages into \nher backpack and walks to a street corner known for drug sales. After she arrives \nat the street corner, Rick drives up, rolls down his window, and asks Charlene if \nshe knows where he can \"score.\" Charlene replies, \"I have some pot if that is what \nyou are looking for.\" Rick responds affirmatively, so Charlene gets into Rick's car \nand they drive to a local park. Rick insists on trying the marijuana before he buys \nit. Charlene takes out a joint, and Rick and Charlene smoke it. Thereafter, Rick \nbuys one of Charlene's packages that weighs half an ounce and drops Charlene off \nback at the street corner. \nIn this example, Charlene has probably committed every drug crime discussed \nin Section 12 \"Federal and State Drug Crimes\". When Charlene planted the \nmarijuana garden, she committed cultivation of a scheduled drug. Harvesting \nand packaging the marijuana is possession for sale. Smoking the marijuana with \nRick is use, or under the influence of a controlled substance. Selling Rick a half-\nounce of marijuana is drug sale, distribution, or trafficking. Rick has also \nprobably committed two drug offenses. Smoking the marijuana with Charlene is \nuse, or under the influence of a controlled substance. When Rick took the \npackage of marijuana from Charlene, he committed possession (which may be an \ninfraction in some states because he bought less than an ounce). Thus, in this \nexample, Charlene and Rick may be subject to prosecution for and conviction of \nthe stated drug offenses in most jurisdictions. \nModernization of Drug Crimes Statutes \nTwo new trends in state drug crimes statutes are the emphasis \non rehabilitation for nonviolent drug offenders and the legalization \nof marijuana for medical use. \nModern statutes allow nonviolent drug offenders to go through a specialized drug \ncourt that typically sentences the offenders to probation and rehabilitation, rather than incarceration.Ariz. Rev. Stat. \u00a7 13-3422, accessed April 17, \n2011, http://law.onecle.com/arizona/criminal-code/13-3422.html. Common \noffenses for drug courts are simple possession and use of drugs listed in a \njurisdiction's drug schedule.Ariz. Rev. Stat. \u00a7 13-3422, accessed April 17, \n2011, http://law.onecle.com/arizona/criminal-code/13-3422.html. Typically, the \ndrug court offender must participate in a rehabilitation program that includes \ncounseling and detoxification within a specified time period.Tex. Penal Code \n\u00a7 469.001, accessed April 17, \n2011, http://codes.lp.findlaw.com/txstatutes/HS/6/B/469/469.001. During the \nrehabilitation, the offender is frequently drug tested to ensure compliance. If the \ndrug offender tests positive, reoffends, or does not complete the program within \nthe specified time limits, the offender will be found guilty of the original \nnonviolent drug offense and sentenced accordingly.Ariz. Rev. Stat. \u00a7 13-3422, \naccessed April 17, 2011, http://law.onecle.com/arizona/criminal-code/13-\n3422.html. \nLegalization of marijuana for medical use is another modern statutory trend \namong the states. Currently, sixteen states and the District of Columbia legalize \nmedical marijuana.\"Medical Marijuana Summary Chart,\" Procon.org website, \naccessed April 17, \n2011, http://medicalmarijuana.procon.org/view.resource.php?resourceID=0008\n81. The criteria under these statutes vary, but in general a qualified individual can \ngain a prescription for marijuana from a caregiver, usually a physician, and \nthereafter obtain, possess, and use a specified quantity of marijuana.Alaska Stat. \n\u00a7\u00a7 17.37.010-17.37.070, accessed April 17, \n2011, http://medicalmarijuana.procon.org/sourcefiles/alaska-ballot-measure-\n8.pdf. In some states, limited cultivation is also permissible.Cal. Health and \nSafety Code \u00a7\u00a7 11362.7-11362.83, accessed April 17, \n2011, http://medicalmarijuana.procon.org/view.resource.php?resourceID=0008\n81#California. The legalization of marijuana for medical use presents an interesting \nconstitutional dilemma because federal law lists marijuana as a Schedule 1 drug \nand does not permit its possession, use, or sale for medicinal purposes.21 U.S.C. \n\u00a7 812, accessed April 17, \n2011, http://www.law.cornell.edu/uscode/21/usc_sec_21_00000812----000-\n.html. Technically, the legalization of marijuana for medical use violates \nthe Supremacy Clause in the federal Constitution, which Chapter 2 \"The Legal \nSystem in the United States\" and Chapter 3 \"Constitutional Protections\" discuss \nin detail. However, the US Supreme Court has not invalidated any state's medical \nmarijuana statutory scheme on this basis, although the Court has upheld federal \nCongress's authority to prohibit the possession and use of small quantities of \nmarijuana under the Federal Controlled Substances ActGonzales v. Raich, 545 \nU.S. 1 (2005), accessed April 17, 2011, http://www.oyez.org/cases/2000-\n2009/2004/2004_03_1454. and has rejected a medical necessity exception for \nthe possession and use of marijuana.U.S. v. Oakland Cannabis Buyers' \nCooperative, 532 U.S. 483 (2001), accessed April 17, \n2011, http://www.oyez.org/cases/2000-2009/2000/2000_00_151. \nExample of the Modernization of Drug Crimes Statutes \nRemy lives in a state that legalizes marijuana for medical use and also has a drug \ncourt program. Remy obtains a prescription from an authorized caregiver and \nthen buys the maximum amount of marijuana permitted under her state's \nmedical marijuana statute at a medical marijuana distribution center. As Remy \nleaves the distribution center, Donny, a drug dealer standing nearby, asks Remy \nif she would like to buy some cocaine. Remy agrees and buys a gram of cocaine \nfrom Donny. Unfortunately for Remy, Donny is a federal Drug Enforcement \nAgent who thereafter arrests Remy for possession of marijuana and cocaine. \nIn this example, the federal government can most likely prosecute Remy for \npossession of both marijuana and cocaine, even though her state legalizes \nmarijuana for medical use and Remy has complied with the requirements of the state medical marijuana statute. The US Supreme Court has held that the federal \ngovernment may criminalize the possession of small amounts of marijuana, and \nthere is no federal medical necessity exemption. Thus Remy may be subject to \nprosecution for and conviction of both of these offenses under federal law. \nRemy's state also can prosecute Remy for possession of cocaine. Remy's state has \na drug court program, so Remy may be qualified to go through drug court for the \npossession of cocaine charge and may face only probation and rehabilitation for \nthis offense rather than incarceration. \nFigure 12.9 Diagram of Modern Drug Crimes Statutes Crimes Involving Prostitution \nEvery state except Nevada criminalizes prostitution. In Nevada, legal prostitution \nmust follow specific guidelines and can occur only in a licensed house of \nprostitution.N.R.S. 201.354, accessed April 18, \n2011, http://law.onecle.com/nevada/crimes/201.354.html. \nThe criminal act element required for prostitution varies, depending on the \njurisdiction. In many states, prostitution is offering, agreeing, or engagingN.Y. \nPenal Law \u00a7 230.00, accessed April 21, 2011, http://law.onecle.com/new-\nyork/penal/PEN0230.00_230.00.html. in sexual conduct for money,N.Y. Penal \nLaw \u00a7 230.00, accessed April 21, 2011, http://law.onecle.com/new-\nyork/penal/PEN0230.00_230.00.html. property, or anything of value.720 ILCS \n\u00a7 5/11-14, accessed April 21, 2011, http://law.onecle.com/illinois/720ilcs5/11-\n14.html. Agreeing and engaging are both considered prostitution, so the \nprostitute and the prostitute's client could be prosecuted for and convicted of \nprostitution in most jurisdictions. The Model Penal Code criminalizes loitering in \nor within view of any public place for the purpose of being hired to engage in \nsexual activity and an inmate of a house of prostitution engaging in sexual \nactivity as a business (Model Penal Code \u00a7 251.1(1)). The sexual conduct or sexual \nactivity specified in statutes criminalizing prostitution generally includes sexual \npenetration, touching, or fondling sexual organs for sexual gratification.720 ILCS \n\u00a7 5/11-14, accessed April 21, 2011, http://law.onecle.com/illinois/720ilcs5/11-\n14.html. The Model Penal Code includes homosexual and deviate activity (Model \nPenal Code \u00a7 251.1). \nThe criminal intent element required for prostitution is either strict \nliabilityN.Y. Penal Law \u00a7 230.00, accessed April 21, \n2011, http://law.onecle.com/new-\nyork/penal/PEN0230.00_230.00.html. or general intent or knowingly in \nmost jurisdictions.N.M. Stat. \u00a7 30-9-2, accessed April 21, \n2011, http://law.justia.com/codes/new-mexico/2009/chapter-30/article- 9/section-30-9-2. The Model Penal Code requires purposeful intent if the \ndefendant is loitering to engage in prostitution or strict liability if an inmate in \na house of prostitution engages in prostitution as a business (Model Penal Code \n\u00a7 251.1). Prostitution is typically graded as a misdemeanor, with sentencing \nenhancements for habitual offenders, prostitution that occurs near a school,720 \nILCS \u00a7 5/11-14, accessed April 21, \n2011, http://law.onecle.com/illinois/720ilcs5/11-14.html. or clients who \npatronize juvenile prostitutes.N.Y. Penal Law \u00a7 230.06, accessed April 21, \n2011, http://law.onecle.com/new-york/penal/PEN0230.06_230.06.html. The \nModel Penal Code grades prostitution as a petty misdemeanor (Model Penal \nCode \u00a7 251.1(1)). \nTwo crimes associated with prostitution are pimping and pandering. Although \nthe elements of these offenses vary depending on the jurisdiction, in general, \nthe criminal act element required for pimping is receiving anything of value \nfrom a prostitute with the general intent or knowingly that it was earned by \nprostitution.720 ILCS \u00a7 5/11-19, accessed April 21, \n2011, http://law.onecle.com/illinois/720ilcs5/11-19.html. Pimping is \ngenerally graded as a misdemeanor720 ILCS \u00a7 5/11-19, accessed April 21, \n2011, http://law.onecle.com/illinois/720ilcs5/11-19.html. or felony,N.M. Stat. \n\u00a7 30-9-4.1, accessed April 21, 2011, http://law.justia.com/codes/new-\nmexico/2009/chapter-30/article-9/section-30-9-4-1. with sentencing \nenhancements if intimidation or force is used to compel an act of prostitutionN.Y. \nPenal Law \u00a7 230.33, accessed April 21, 2011, http://law.onecle.com/new-\nyork/penal/PEN0230.33_230.33.html. or if the prostitute is a juvenile.N.Y. \nPenal Law \u00a7 230.32, accessed April 21, 2011, http://law.onecle.com/new-\nyork/penal/PEN0230.32_230.32.html. \nPandering is generally procuring another (criminal act) with the specific \nintent or purposely to commit an act of prostitution.Cal. Penal Code \u00a7 266 i, \naccessed April 21, \n2011, http://law.onecle.com/california/penal/266i.html. Pandering is typically graded as a felony, with sentencing enhancement if the pandering \noccurs near a school.720 ILCS \u00a7 5/11-16, accessed April 21, \n2011, http://law.onecle.com/illinois/720ilcs5/11-16.html. The Model Penal Code \ncriminalizes a broad spectrum of conduct as promoting prostitution, including \nencouraging and inducing another purposely to become or remain a prostitute \n(Model Penal Code \u00a7 251.1(2) (c)). The Model Penal Code grades these acts of \npromoting prostitution as felonies of the third degree (Model Penal Code \n\u00a7 251.1(3) (a)). \nExample of Crimes Involving Prostitution \nDaniel approaches Penelope, a sixteen-year-old, as she wanders down the \nsidewalk. Daniel asks Penelope if she would like to earn a little extra cash. \nPenelope responds affirmatively, and Daniel asks her if she will have sexual \nintercourse with John (who is an adult) for one hundred and fifty dollars. \nPenelope eagerly agrees. Daniel walks Penelope over to the entrance of a motel \nwhere John is waiting. John and Penelope enter the motel, and John rents a \nroom where they engage in sexual intercourse. Afterward, John pays Penelope \nthe one hundred and fifty dollars. As Penelope leaves the motel, Daniel swiftly \nwalks over, grabs Penelope by the wrist, and demands the one hundred and fifty \ndollars. Penelope protests, but Daniel twists her arm behind her back, and she \ngrudgingly hands him the money. Daniel removes twenty dollars, hands it to \nPenelope, and informs her that it is her \"share,\" and if she wants more, she needs \nto engage in another act of sexual intercourse. \nIn this example, Penelope and John have probably committed prostitution, and \nDaniel has most likely committed pimping and pandering in many jurisdictions. \nWhen Penelope has sexual intercourse with John for one hundred and fifty \ndollars, she is engaging in sexual conduct for money with general intent or \nknowingly, which constitutes prostitution in most jurisdictions. When John has \nsexual intercourse with Penelope and thereafter pays her one hundred and fifty \ndollars, he is engaging in sexual conduct for money with general intent or knowingly, which is also generally criminal prostitution. Penelope is a juvenile, so \nJohn's sentence may be enhanced and more severe than Penelope's. When \nDaniel procures John and Penelope for the purpose of committing prostitution, \nhe is most likely committing pandering. When Daniel takes money from Penelope \nwith the general intent or knowingly that it was earned by prostitution, he is \nprobably committing pimping. The use of force to obtain the money and \nPenelope's age could enhance Daniel's sentence for both crimes in many \njurisdictions. Thus Penelope, John, and Daniel may be subject to prosecution for \nand conviction of the stated crimes of prostitution, pimping, and pandering in \nmost jurisdictions. \nProstitution Video \n\"The Yard Blues\": A Reality of Drugs and Prostitution \nA prostitute's life is described in this video: \n(click to see video) \nEliot Spitzer Video \nNew York Governor Eliot Spitzer Resigns after Sex Scandal \nThis video shows former New York Governor Spitzer resigning after being \nexposed for his connection with a prostitution ring:Danny Hakim, William K. \nRashbaum, \"Spitzer Is Linked to Prostitution Ring,\" New York Times website, \naccessed September 4, \n2011, http://www.nytimes.com/2008/03/10/nyregion/10cnd-spitzer.html. \n(click to see video) \nFigure 12.10 Diagram of Vice Crimes Various Vice Statutes \nMost states criminalize gambling,18 Pa. C.S. \u00a7 5513, accessed April 21, \n2011, http://law.onecle.com/pennsylvania/crimes-and-\noffenses/00.055.013.000.html. drunkenness in public,Cal. Penal Code \n\u00a7 647(f), accessed April 21, \n2011, http://law.onecle.com/california/penal/647.html. and driving while \nunder the influence.Or. Rev. Stat. \u00a7 813.010, et seq., accessed April 21, \n2011, http://law.onecle.com/oregon/813-driving-under-the-influence-\nof/index.html. Review the representative state statutes in the Notes for the \nelements of these vice crimes. \nKEY TAKEAWAYS \n\u2022 Federal criminal statutes targeting illegal drugs are part of the Comprehensive \nDrug Abuse Prevention and Control Act of 1970, commonly known as the \nControlled Substances Act. The states follow one of the three versions of the \nUniform Controlled Substances Act, which was drafted by a commission striving \nfor uniformity in state and federal laws. \n\u2022 For the purpose of drug crimes, the states and the federal government categorize \nillegal drugs in schedules. The schedules generally focus on the harmful or \naddictive qualities of the drug, with Schedule I drugs being the most harmful or \naddictive, and the remaining schedules reflecting less harmful or addictive drugs, \nincluding drugs that are legal with a prescription. \n\u2022 In most jurisdictions, the manufacture of scheduled drugs is a felony, and \ncultivation of marijuana, which must be done with general intent or knowingly, \ncan be a misdemeanor or a felony, depending on the quantity cultivated. \nPossession of scheduled drugs is typically graded based on the quantity, schedule \nclassification, and whether or not the possession is for sale, with penalties \nranging from a misdemeanor for simple possession to a serious felony for \npossession with intent to sell. Possession of less than an ounce of marijuana is \ngraded lower than possession of other scheduled drugs in many jurisdictions. Sale, distribution, or trafficking of scheduled drugs is generally graded as a felony, \nwith sentencing enhancements for drugs in a higher schedule, the sale of larger \nquantities, a sale by an adult to a minor, or a sale near school grounds. Scheduled \ndrug use is typically a misdemeanor with more severe penalties for habitual \noffenders. \n\u2022 Two modern trends in state drug crimes statutes are the emphasis on \nrehabilitation for nonviolent drug offenders, which drug courts provide through \nsentencing, and the legalization of marijuana for medical use in sixteen states \nand the District of Columbia. \n\u2022 Technically, a state's legalization of marijuana for medical use violates the \nSupremacy Clause because federal law classifies marijuana as a Schedule I drug \nand does not allow its possession, sale, or use for any purpose. \n\u2022 Prostitution is generally offering, agreeing, or engaging in sexual conduct for \nmoney or anything of value (criminal act), with general intent or knowingly, or \nstrict liability. Prostitution is typically graded as a misdemeanor, with sentencing \nenhancements for habitual offenders, prostitution that occurs near a school, or \nclients who patronize juvenile prostitutes. Pimping is generally receiving anything \nof value from a prostitute (criminal act), with general intent or knowingly that it \nwas earned by prostitution in many jurisdictions, and is typically graded as a \nmisdemeanor or felony, with sentencing enhancements if intimidation or force is \nused to compel an act of prostitution or if the prostitute is a juvenile. Pandering \nis generally procuring another (criminal act) with specific intent or purposely to \ncommit an act of prostitution and is typically graded as a felony with sentencing \nenhancement if the pandering takes place near a school. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the \nend of the chapter. \n1. Anita lives in a state that permits the possession and use of marijuana for medical \nreasons. Anita obtains some marijuana and uses it to treat her medical condition, carefully following her state's statutory requirements. Has Anita committed a \ncrime(s)? \n2. Read Poindexter v. State, 153 S.W. 3d 402 (2005). In Poindexter, the defendant \npurchased cocaine from a confidential informant inside his house. After the \ndefendant left, a subsequent law enforcement search uncovered the cocaine \ninside a tin breath mints can hidden in the ceiling of the master bedroom closet. \nThe defendant was convicted at trial, but the appellate court reversed, based on \nthe fact that another individual was seen on the premises, so there \nwas insufficient proof of the defendant's possession. Did the Court of Criminal \nAppeals of Texas affirm the court's reversal? Why or why not? The case is \navailable at this \nlink: http://scholar.google.com/scholar_case?case=10968287895213637721&q= \npossession+of+drugs+roommate+control+%22joint+possession%22&hl=en&as_s\ndt=2,5&as_ylo=2002. \n3. Read People v. Watson, No. 90962 (Ohio 2120 2009). In Watson, the defendant \nwas convicted of compelling prostitution. The defendant appealed on the \ngrounds that the proper interpretation of compelling prostitution under the Ohio \nstatute 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 \ncontinually commit prostitution. Did the Court of Appeals of Ohio uphold the \ndefendant's conviction? Why or why not? The case is available at this \nlink: http://scholar.google.com/scholar_case?case=5203798681398361958&q= \nprostitution+client+acquitted+%22convicted+of+prostitution+%22&hl=en&as_sd\nt=2,5&as_ylo=2002. \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 \nthis \nlink: http://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 constitutionality of a California statute that required \nAIDS testing and counseling for those convicted of prostitution and other sex \noffenses.Cal. Penal Code \u00a7 1202.1, accessed April 22, \n2011, http://law.onecle.com/california/penal/1202.1.html. The defendants \nclaimed the statute was an unreasonable search pursuant to the Fourth \nAmendment and also violated the due process and the equal protection clauses. \nThe California Court of Appeals upheld the statute, holding that the \"special \nneed\" of preventing the spread of AIDS was a valid exercise of state police power, \nand the statute was a reasonable means to effectuate that interest. In California, \nsoliciting or agreeing to exchange sexual conduct for money constitutes \nprostitution,Cal. Penal Code \u00a7 647(b), accessed April 2, \n2011, http://law.onecle.com/california/penal/647.html. so a conviction for \nprostitution does not necessarily indicate an exchange of bodily fluids that could \nspread AIDS. \n1. Do you think it is ethical to require all convicted prostitutes to submit to AIDS \ntesting, whether or not they engaged in sexual intercourse? Why or why not? \n12.4 End-of-Chapter Material \nSummary \nStates have an interest in protecting the quality of life of citizens, and therefore prohibit \ncrimes against the public. Most jurisdictions criminalize disorderly conduct, which is making \na loud and unreasonable noise, obscene utterance or gesture, fighting, threatening or stating \nfighting words, or creating a hazardous condition in public, with the specific intent or \npurposely or reckless intent to cause public inconvenience and alarm or a risk thereof. \nDisorderly conduct statutes target speech, so they are subject to constitutional challenges \nunder the First and Fourteenth Amendments. Disorderly conduct is typically graded as a \nmisdemeanor. Unconstitutionally vague statutes criminalizing vagrancy have been \nsupplanted by precisely drafted statutes criminalizing loitering, which is loitering, \nwandering, or remaining with specific intent or purposely to gamble, beg, or commit prostitution in a specified area. Loitering is typically graded as a misdemeanor or a violation. \nPanhandling 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 \nor the normal flow of traffic. Sit-lie laws prohibit sitting or lying down with strict liability \nintent in public or on a sidewalk during specified times in certain areas. Sit-lie laws are \nsubject to constitutional challenges as cruel and unusual punishment or void for vagueness \nand are typically graded as an infraction. \nGroup conduct tends to enhance the potential for force and violence. Most jurisdictions \ncriminalize unlawful assembly, which is purposefully assembling or meeting to cause a \nbreach of the peace, and failure to disperse, which is the knowing refusal or failure to \ndisperse 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 \nvoid for vagueness and overbroad, require the attendant circumstance of a group minimum \nof two, three, or five, and are graded as a misdemeanor. Most jurisdictions also criminalize \nriot, which is group commission of an unlawful act of violence or a lawful act in an unlawful \nmanner, 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 \nuse a firearm or deadly weapon. In some jurisdictions, riot is a strict liability offense. A few \njurisdictions require the defendants to be the factual and legal cause of riot harm, which is \npublic terror and alarm. Riot typically requires the attendant circumstance of a group \nminimum of two, five, or six and is graded as a misdemeanor or a felony if a firearm is used \nor if there is property damage or physical injury to someone other than the defendants. \nGang conduct is prohibited federally and in state statutes. States either criminalize gang \nconduct as gang participation, enhance a penalty for a crime committed by a criminal gang or \ngang member, or both. Gang participation is generally furthering the commission of a felony \nfor the benefit of a criminal gang with the general intent or knowingly that other members \nparticipate in gang activity and is a felony. Gang enhancement statutes enhance the penalty \nfor the commission of a felony or misdemeanor at the direction of or to further a criminal \ngang. Civil responses to gang conduct are civil gang activity statutes providing for damages \nand civil gang injunctions, which prohibit gang association, hand signs, wearing of gang colors, and loitering in areas known for gang activity. Statutes regulating gangs are subject to \nconstitutional challenges under the First Amendment and as void for vagueness or \noverbroad. \nAll states and the federal government criminalize specific controlled substances offenses. \nJurisdictions classify drugs in schedules, based on their harmful or addictive qualities, and \npunish drug offenses accordingly. Common offenses are the manufacture, cultivation, \npossession 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 \njurisdictions provide rehabilitation combined with probation as a penalty for nonviolent \noffenders through a drug court procedure. Some jurisdictions also legalize marijuana for \nmedical 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 \na licensed house of prostitution is noncriminal. Prostitution is offering, agreeing, or engaging \nin specified sexual conduct for money or anything of value, with strict liability or general \nintent or knowingly in most jurisdictions, and is typically graded as a misdemeanor with \nsentencing enhancements for habitual offenders, prostitution that occurs near a school, or \npatronizing a juvenile prostitute. Pimping is generally receiving something of value from a \nprostitute, with general intent or knowingly that it was earned by prostitution, and is graded \nas a misdemeanor or a felony with sentencing enhancements if the defendant uses force or \nthe prostitute is a juvenile. Pandering is generally procuring another for an act of prostitution \nwith specific intent or purposely and is typically graded as a felony with sentencing \nenhancement if the pandering takes place near a school. \nY O U B E T HE L E G I S L A T OR \nYou are a legislator with a perfect record for voting on statutes that are constitutional. You \nhave been presented with four proposed statutes. Read each one, and then read the case \nanalyzing a replica statute for constitutionality. Decide whether you should \nvote 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. 1. The proposed statute is Disorderly Conduct and reads as follows: It is a misdemeanor to \nengage in indecent or disorderly conduct in the presence of another in a public place. This \nstatute was analyzed for constitutionality by Satterfield v. State, 395 S.E. 2d 816 (1990). The \ncase is available at this \nlink: http://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? \n2. The proposed statute is Loitering for prostitution and reads as follows: It is unlawful for any \nperson to loiter in or near any public place in a manner and under circumstances manifesting \nthe purpose of inducing, enticing, soliciting for or procuring another to commit an act of \nprostitution. Among the circumstances that may be considered in determining whether such \npurpose is manifested are that such person repeatedly beckons to, stops, or attempts to stop \nor engages persons passing by in conversation, or repeatedly stops or attempts to stop \nmotor 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 \navailable 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? \n3. The proposed statute is Gang Violence and Juvenile Crime Prevention Act and reads as \nfollows: State Prosecutors are hereby authorized to bring specified crime charges against \nminors fourteen and older in the criminal division of adult court rather than in the juvenile \ndivision without a judicial determination that the minor is unfit for a juvenile court \ndisposition. This statute was analyzed for constitutionality by Manduley v. Superior Court, 41 \nP.3d 3 (2002). The case is available at this \nlink: http://scholar.google.com/scholar_case?case=14196981766707899172&q= \nManduley+v.+Superior+Court&hl=e.n&as_sdt=2,5. Should you vote for or against the \nstatute? \n4. The proposed statute is Mere Possession and reads as follows: It is a crime to possess an \nunprescribed controlled substance. This statute was analyzed for constitutionality by State v. \nBradshaw, 98 P.3d 1190 (2004). The case is available at this \nlink: http://scholar.google.com/scholar_case?case=33245956757868529&q= \nState+v.+Bradshaw+98&hl=en&as_sdt=2,5. Should you vote for or against the statute? Cases of Interest \n\u2022 Roulette v. City of Seattle, 97 F.3d 300 (1996), discusses sit-lie \nlaws: http://scholar.google.com/scholar_case?case=11766310634401293489&q= \n%22sit+lie+%22&hl=en&as_sdt=2,5. \n\u2022 Noy v. State, 83 P.3d 538 (2003), discusses Alaska's possession of marijuana \nlaw: http://scholar.google.com/scholar_case?case=17763301345063946977&q= \n%22Noy+v.+State%22&hl=en&as_sdt=2,5. \n\u2022 Phillips v. State, 25 So. 3d 404 (2010), discusses the right to participate in drug \ncourt: http://scholar.google.com/scholar_case?case=706671360238134410&q= \n%22drug+court%22&hl=en&as_sdt=2,5&as_ylo=2009. \n\u2022 In re BW, 313 S.W. 3d 818 (2010), discusses juvenile \nprostitution: http://scholar.google.com/scholar_case?case=13593192130854531269\n&q= %22prostitution+statute%22&hl=en&as_sdt=2,5&as_ylo=2009. \nArticles of Interest \n\u2022 True threats and the First \nAmendment: http://works.bepress.com/cgi/viewcontent.cgi?article \n=1018&context=mark_strasser \n\u2022 Gang \ninjunctions: http://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1736&c\nontext =ggulrev \n\u2022 Substance abuse in \nAmerica: http://works.bepress.com/cgi/viewcontent.cgi?article=1000&context \n=edward_perez \nWebsites of Interest \n\u2022 Information about the homeless: http://www.nationalhomeless.org \n\u2022 Information about gangs: http://www.nationalgangcenter.gov \n\u2022 Information about the legalization of prostitution: http://prostitution.procon.org Statistics of Interest \n\u2022 Homelessness: http://www.nationalhomeless.org/factsheets \n\u2022 Gang violence: http://www.ncjrs.gov/app/QA/Detail.aspx?Id=11&context=9 \n\u2022 Drug crime: http://www.justice.gov/dea/statistics.html \nAnswers to Exercises \nFrom Section 12.1 \"Quality-of-Life Crimes\" \n1. The ordinance can be challenged under the First Amendment, as void for \nvagueness, and as overbroad. A sign is expressive, so a First Amendment \nchallenge is appropriate. The words \"extended period\" are vague, which can lead to \nuneven application by law enforcement and a failure to provide notice to the public of \nwhat behavior is criminal. Holding a sign such as a school crossing sign is protected \nactivity, so an overbreadth challenge is also in order. The government has an interest \nin keeping the roadways safe, and in preventing dangerous distractions that could \noccur when drivers try to read signs while approaching a crosswalk. \n2. The Supreme Court of Rhode Island held that the disorderly conduct statute was not \nvague or overbroad simply because it does not require conduct to occur in public, \nand therefore the defendant's attack of his spouse in a private residence could be \nprosecuted as \"creating a hazardous condition.\" \n3. The Supreme Court of New York held that \"begging\" is constitutionally protected \nexpression under the First Amendment, and thereafter reversed the defendant's \nconviction under New York's loitering for the purpose of begging statute. \nAnswers to Exercises \nFrom Section 12.2 \"Crimes Targeting Group Conduct\" \n1. The First Amendment protects an individual's right to stand in a public place and \nhold a sign as long as the sign is not obscene, fighting words, or a true threat. Signs \nindicating a disbelief in the holocaust are most likely upsetting to Jewish individuals attending temple, but they must constitute fighting words or a true threat if they are \nto be constitutionally prohibited. If the law enforcement officer arrests the \nindividuals for unlawful assembly pursuant to a statute that arguably prohibits such \nconduct, the statute is subject to constitutional attack under the First \nAmendment or for overbreadth. \n2. The US Court of Appeals for the Second Circuit upheld the defendant's conviction. \nThe court held that the lower court's interpretation of New York's first-degree riot \nstatute did not violate due process by denying the defendant notice that his conduct \nwas criminal, even though the interpretation extended the statute's reach by \nincluding conduct that occurred after the defendant left the scene of the riot. \n3. The California Court of Appeal held that the defendant was not entitled to a jury trial \non his gang membership for purposes of a civil gang injunction because of \nthe civil nature of the action and the fact that his physical liberty was not directly at \nstake. \nAnswers to Exercises \nFrom Section 12.3 \"Vice Crimes\" \n1. Anita has committed the federal crimes of possession and use of marijuana. \nAlthough Anita's state has legalized marijuana for medical use, and Anita complied \nwith her state's statutory requirements, the Federal Controlled Substances Act \ncriminalizes the possession and use of marijuana, and there is no federal medical \nnecessity exemption. \n2. The Court of Criminal Appeals of Texas reversed, holding that evidence of the \ncocaine's presence in a hidden location accessible only to someone exercising control \nover the house, the defendant's ownership of the house, and evidence that the \ncocaine was conveniently accessible to the defendant was sufficient to convict the \ndefendant of possession of cocaine. \n3. The Court of Appeals of Ohio reversed, finding no evidence of force, duress, or \ncoercion because the prostitute's testimony indicated that \"nothing would happen\" if \nshe refused to turn money earned from prostitution over to the defendant. Answer to Law and Ethics Question \n1. Combating a syndrome like AIDS is clearly a legitimate state concern, and, generally, \nindividual protections can be sublimated constitutionally as long as they are \noutweighed by the government interest at stake. In this case, the individual interest \nin avoiding a potentially life-saving blood test is not nearly as paramount as the \ngovernment interest in preventing the spread of a communicable disease. Neither the \nrisk of a stigma nor the ethics involved in targeting prostitutes are outweighed by the \ngovernment interest. It is reasonable to infer, as the court stated, that convicted \nprostitutes have been or will be sexually active with multiple partners. Thus the \nCalifornia 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 \nethical as statutes targeting the homeless, for example, sit-lie laws. \nAnswers to You Be the Legislator \n1. The Supreme Court of Georgia held that the statute fails to define in any manner \nwhat is meant by indecent or disorderly conduct, so it does not provide fair warning \nto persons of ordinary intelligence of what is criminal, gives too much discretion to \nlaw enforcement, and is therefore void for vagueness. Thus you should \nvote against the proposed statute if you want to keep your perfect record. \n2. The Nevada Supreme Court held that the statute is void for vagueness because it does \nnot adequately specify the circumstances for which a person could be arrested, thus \nfailing to provide fair warning to persons of ordinary intelligence of what is criminal \nand giving too much discretion to law enforcement. The court also held that the \nstatute is overbroad because it criminalizes protected conduct like waving and \nbeckoning. Thus you should vote against the proposed statute if you want to keep \nyour perfect record. \n3. The California Supreme Court held that the statute did not violate separation of \npowers and was not unconstitutionally discriminatory pursuant to the equal \nprotection clause, even though filing charges in adult court affects a juvenile's \nsentencing because this is incidental to the prosecutor's traditional role in charging individuals with crimes. In addition, the court held that juveniles were subject to \nconcurrent jurisdiction between juvenile and adult court, so the statute did not \ndeprive them of rights guaranteed by due process of law, nor did it subject them to \ncruel and unusual punishment. Thus you should vote for the proposed statute and \nyou will keep your perfect record. \n4. The Washington Supreme Court found that the legislature had revised the statute to \nomit a criminal intent requirement, and this revision is constitutional even though \nthe law disfavors strict liability criminal statutes. Thus you should vote for the \nproposed statute and you will keep your perfect record. Chapter 13Crimes against the Government Source: Image courtesy of Tara Storm. \nBribery, of course, connotes a voluntary offer to obtain gain, where extortion \nconnotes some form of coercion. \nU.S. v. Adcock, cited in Section 13.3.2 \"Bribery Elements\" \n13.1 Crimes Involving National Security \nLEARNING OBJECTIVES \n1. Define the elements of treason, and analyze treason's evidentiary requirements \nand grading. \n2. Define the elements of sedition, and analyze sedition grading. \n3. Define the elements of various forms of sabotage, and analyze sabotage grading. \n4. Define the elements of espionage, and analyze espionage grading. \nThe government is tasked with keeping the nation safe from domestic and international \nattacks on the government and citizens. National security is an issue that affects the entire \ncountry, so most of the regulation in this area is federal, rather than state.Pennsylvania v. \nNelson, accessed May 1, 2011, 350 U.S. 497 \n(1956), http://supreme.justia.com/us/350/497/case.html. Criminal statutes protecting the \ngovernment can encroach on the individual freedom to protest government action and can \nalso affect privacy interests, which subjects them to enhanced constitutional scrutiny similar \nto the crimes against the public reviewed in Chapter 12 \"Crimes against the Public\". This \nsection explores crimes against the nation, such as treason, sedition, sabotage, and \nespionage. Section 13.2 \"Crimes Involving Terrorism\" examines terrorism and the USA \nPATRIOT Act. The last section of this chapter discusses other crimes against the government \nthat are primarily state regulated, such as perjury, bribery, and obstruction of justice. \nTreason \nArticle III \u00a7 3 of the US Constitution defines treason and specifies the evidentiary \nrequirements for any treason trial. The founding fathers wanted to ensure that the government would not charge an individual with treason without significant \nand reliable proof. Treason was punishable by death in England, so it was a \nconstant threat to anyone who disagreed with the ruling party. Although the \ntreason clause in the Constitution is modeled after the early English law defining \ntreason, it omits a section that criminalized \"imagining the death of the King\" and \nalso limits Congress's authority to extend or expand the crime of treason or to \nlighten the evidentiary requirements. \nThe pertinent section of the Constitution states, \"Treason against the United \nStates shall consist only in levying War against them, or, in adhering to their \nEnemies, giving them Aid and Comfort. No Person shall be convicted of Treason \nunless on the Testimony of two Witnesses to the same overt Act, or on Confession \nin open Court.\" \nTreason Elements and Grading \nThe criminal act element required for treason is levying war against the United \nStates or adhering to the enemy by giving aid and comfort.18 U.S.C. \u00a7 2381, \naccessed April 29, \n2011, http://www.law.cornell.edu/uscode/718/usc_sec_18_00002381----000-\n.html. Prosecutions for treason are practically nonexistent, so case law in this \narea is dated, yet still constitutes viable precedent. In U.S. v. Burr, 25 F Cas 55 \n(1807), a case involving then-vice president Aaron Burr's prosecution for treason, \nthe US Supreme Court held that levying war means an actual assembling of men, \nnot a conspiracy to levy war, nor a mere enlistment of men. In Haupt v. U.S., \n330 U.S. 631 (1947), the US Supreme Court held that the defendant's acts of \nharboring and sheltering his son in his home, helping him to purchase an \nautomobile, and obtain employment constituted providing aid and comfort to the \nenemy because the defendant's son was a spy and saboteur. The criminal intent \nelement required for treason is most likely the general intent or knowingly to \ncommit an act of levying war or the specific intent or purposely to betray the \nUnited States by giving aid and comfort to enemies.Cramer v. U.S., 325 U.S. 1 (1945), http://supreme.justia.com/us/325/1. The Constitution specifies the \nevidentiary requirements that two witnesses testify to an overt act of treason or \nthat the defendant confess in open court, although this is not set forth in the \nfederal treason statute.18 U.S.C. \u00a7 2381, accessed April 29, \n2011, http://www.law.cornell.edu/uscode/718/usc_sec_18_00002381----000-\n.html. As stated in Cramer v. U.S., 325 U.S. 1, 34, 35 (1945), \"Every act, \nmovement, deed, and word of the defendant charged to constitute treason must \nbe supported by the testimony of two witnesses,\" and it is not enough that the \nelements of treason can be inferred from the witness statements. Treason \nis graded as a felony that can merit the death penalty or prohibit the defendant \nfrom ever holding federal office.18 U.S.C. \u00a7 2381, accessed April 29, \n2011, http://www.law.cornell.edu/uscode/718/usc_sec_18_00002381----000-\n.html. \nExample of a Case Lacking Treason Elements and Evidentiary Requirements \nBenedict is identified as a person of interest in a treason case. A government \nagent posing as an enemy spy invites Benedict to dinner, and they discuss the \ndecline of the United States and whether or not they should \"do something about \nit.\" At the conclusion of the dinner, Benedict picks up the tab. Thereafter, \nBenedict is arrested for treason and refuses to incriminate himself by responding \nto law enforcement interrogation. It is unlikely that Benedict will be convicted of \ntreason in this case. Benedict paid for the government agent's dinner, which \ncould constitute providing aid to the enemy. However, Benedict indicated a \nhesitancy to take further action, which does not satisfy the requirement that he \nact with the specific intent or purposely to betray the United States. In \naddition, only the government agent can testify as to Benedict's act of paying for a \nmeal because Benedict is asserting his right to remain silent. Therefore, the \nconstitutional requirement that two witnesses testify about the overt act charged \nas treason is not satisfied. The intent element and evidentiary requirement for \ntreason are lacking, so Benedict probably will not be subject to prosecution for \nand conviction of this offense. Figure 13.1 Crack the Code Sedition \nSedition criminalizes the incitement of insurrection or revolution by seditious \nspeech or writings and, as such, is subject to the restrictions set forth in the First \nAmendment. The first federal law prohibiting sedition was the Sedition Act \nenacted in 1798 and repealed by Thomas Jefferson after his election as president. \nThe current federal statute criminalizing sedition was originally enacted in 1940 \nand is codified at 18 U.S.C. \u00a7 2385. Conspiracy to commit sedition is codified \nat 18 U.S.C. \u00a7 2384. Many states have similar provisions.51 Pa. Cons. Stat. Ann. \n\u00a7 6018, accessed April 30, 2011, http://law.onecle.com/pennsylvania/military-\naffairs/00.060.018.000.html. Like treason, sedition is rarely prosecuted. \nThe criminal act element required for sedition is either advocating, aiding, \nteaching, organizing or printing, publishing, or circulating written matter that \nadvocates, aids, or teaches the overthrow of the US government or any state, \ndistrict, or territory thereof by force or violence.18 U.S.C. \u00a7 2385, accessed April \n30, 2011, http://www.law.cornell.edu/uscode/718/usc_sec_18_00002385----\n000-.html. The criminal intent element required for sedition is the general \nintent or knowingly to advocate, aid, teach, or organize, or the specific \nintent or purposely to print, publish, or circulate written matter that \nadvocates, aids, or teaches the violent government overthrow.18 U.S.C. \u00a7 2385, \naccessed April 30, \n2011, http://www.law.cornell.edu/uscode/718/usc_sec_18_00002385----000-\n.html. In Yates v. U.S., 354 U.S. 298 (1957), the US Supreme Court held that only \nadvocacy directed at promoting unlawful action could be constitutionally \nprohibited. Advocacy of an \"abstract doctrine\" was protected by the First \nAmendment as free speech.Yates v. U.S., 354 U.S. 298, 318 (1957), accessed April \n30, \n2011, http://scholar.google.com/scholar_case?case=14369441513839511604&q= \nYates+v.+U.S.&hl=en&as_sdt=2,5. Sedition is graded as a felony that can \nprohibit the defendant from obtaining employment with the US government for a \nminimum of five years postconviction.18 U.S.C. \u00a7 2385, accessed April 30, 2011, http://www.law.cornell.edu/uscode/718/usc_sec_18_00002385----000-\n.html. \nExample of Sedition \nMo, a disgruntled immigrant who has been denied citizenship, decides he wants \nto overthrow the US government and supplant it with a new government that will \ngrant the citizenship privileges he desires. Mo prints up leaflets advocating the \noverthrow of the government by placing a series of bombs in strategic and \nspecifically named places and passes them out every Saturday in front of varied \nplaces known for ethnic diversity throughout the city. Mo has most likely \ncommitted sedition in this example. Mo printed written matter advocating \nthe overthrow of the US government by unlawful action, \nusing force and violence. Mo's intent was to get rid of the current government so \nthat he could gain citizenship, which is specific intent or purposely. Thus \nMo's conduct probably constitutes sedition, and he may be subject to prosecution \nfor and conviction of several counts of this offense. \nFigure 13.2 Diagram of Sedition Sabotage \nSabotage is criminalized at 18 U.S.C. \u00a7 2151 et seq., which includes several \ndifferent forms of this offense. Many states have similar provisions.RCW \n\u00a7 9.05.060, accessed May 1, \n2011, http://apps.leg.wa.gov/rcw/default.aspx?cite=9.05.060. In general, \nsabotage is destroying, damaging, or defectively producing (criminal \nact and harm) property with the specific intent or purposely, general \nintent or knowingly, or negligently to impede the nation's ability to prepare \nfor or participate in war and national defense and is detailed in the following \nUnited States Codes: \n\u2022 18 U.S.C. \u00a7 2152 focuses on destroying or damaging harbor-defense \nproperty. \n\u2022 18 U.S.C. \u00a7 2153 focuses on destroying or damaging war material, \npremises, or utilities. \n\u2022 18 U.S.C. \u00a7 2154 focuses on producing defective war materials, premises, \nor utilities. \n\u2022 18 U.S.C. \u00a7 2155 focuses on destroying or damaging national defense \nmaterial, premises, or utilities. \n\u2022 18 U.S.C. \u00a7 2156 focuses on producing defective national defense material, \npremises, or utilities. \nBoth 18 U.S.C. \u00a7\u00a7 2153 and 2154 have the attendant circumstance that the \nconduct occur during war or a national emergency. All the sabotage \nstatutes grade sabotage as a felony, with sentences ranging from five to thirty \nyears' incarceration in federal prison. \nSabotage is prosecuted more often than treason and sedition, and there have \nbeen some extremely interesting criminal sabotage cases, including sabotage \nindictments against a corporation manufacturing defective raincoats for the \narmed forces during wartime, a sabotage trial for the burning of an ROTC building on the Washington University campus after the Kent State University \nriots, a sabotage trial for defendants who stole copper wire from a railroad track \nthat was used to ship war materials, and the sabotage indictment of Osama bin \nLaden for extraterritorial (outside the United States) activity. \nExample of Sabotage \nReview the example in Section 13 \"Example of Sedition\" with Mo. Add to this \nexample and imagine that Mo gets no response to his fliers and becomes enraged. \nHe decides to get back at the United States for not allowing him to become a US \ncitizen by harming its national security and exposing it to attack by enemy forces. \nHe thereafter hacks into the computer system used by the US Department of \nDefense and damages it so that it is out of commission for two weeks. Mo has \nmost likely committed the federal crime of sabotage. Mo damaged national \ndefense material with the specific intent or purposely to interfere with the \nnation's security and defense, which is prohibited under 18 U.S.C. \u00a7 2155, \nwhether or not it is wartime or during a national emergency. Thus Mo may be \nsubject to prosecution for and conviction of this offense and could face many \nyears of incarceration for his conduct. \nFigure 13.3 Diagram of Sabotage Espionage \nEspionage, also known as \"spying,\" is criminalized at 18 U.S.C. \u00a7 792 et seq. \nOriginally part of one of the early versions of the Sedition Act of 1918, the crime \nof espionage has a colorful history and many interesting criminal prosecutions \nsimilar to criminal sabotage. Federal espionage statutes criminalize various acts, \ndepending on whether the conduct occurs during peace or during war. During \ntimes of peace, it is criminal espionage to gather, transmit, or attempt to gather \nor transmit defense information (criminal act) with general \nintent or knowingly, or with the specific intent or purposely that it will be \nused to damage the United States or assist any foreign nation.18 U.S.C. \u00a7 793, \naccessed May 1, \n2011, http://www.law.cornell.edu/uscode/718/usc_sec_18_00000793----000-\n.html. During times of war, it is criminal espionage to collect, record, publish, or \ncommunicate information about military activities or to attempt any of the \nforegoing (criminal act) with the specific intent or purposely that the \ninformation will be transmitted to the enemy.18 U.S.C. \u00a7 794(b), accessed May 1, \n2011, http://www.law.cornell.edu/uscode/718/usc_sec_18_00000794----000-\n.html. Espionage is graded as a felony, with potential sentencing of life in prison \nor the death penalty.18 U.S.C. \u00a7 792 et seq., accessed May 1, \n2011, http://www.law.cornell.edu/uscode/718/usc_sup_01_18_10_I_20_37.ht\nml. \nSome interesting criminal espionage cases are the Rosenberg case, where a \nmarried couple conspired to pass nuclear secrets to the Soviets and were later \nexecuted pursuant to the death penalty, the Hanssen case, where an FBI agent \nsold state secrets to Moscow for $1.4 million in cash and diamonds, and \nthe Aragoncillo case, where a White House employee stole intelligence \ndocuments from White House computers and e-mailed them to the Philippines. Example of Espionage \nReview the example given in Section 13 \"Example of Sabotage\" with Mo and his \ncomputer hacking. Change the example so that before Mo damages the US \nDepartment of Defense computer system, he copies some information from \ndifferent top-secret sites and sends them to operatives in an enemy nation with \nthis message: \"I have stolen this information directly from the US Department of \nDefense. I have also disabled their computer system, which will probably take \nsome time to repair. Now is an excellent time to attack the United States.\" He \nthereafter severely damages the computer system. In this example, Mo has most \nlikely committed both sabotage and espionage. As stated in Section 13 \"Example \nof Sabotage\", Mo probably committed sabotage when he damaged national \ndefense material with the specific intent or purposely to interfere with the \nnation's security and defense. When Mo copied top-secret information and sent it \nto an enemy nation, along with informing the nation that the US Department of \nDefense computer system was disabled, \nhe gathered and transmitted information with the specific \nintent or purposely that it be used to injure the United States. Thus Mo has \nprobably committed both sabotage and espionage and may be subject to \nprosecution for and conviction of these offenses. \nVideo of the President Informing the Nation bin Laden Is \nDead \nPresident Obama on the Death of Osama bin Laden \nPresident Obama's speech explaining Osama bin Laden's death is shown in this \nvideo: \n(click to see video) \nTable 13.1 Comparing Treason, Sedition, Sabotage, and Espionage Crime \nCriminal Act or \nHarm \nCriminal Intent \nAttendant \nCircumstance(s) \nTreason* \nLevy war, or give aid \nand comfort to \nenemies \nMost likely, general intent \nor knowingly to levy war, \nspecific intent or \npurposely to betray the \nUnited States with aid and \ncomfort \n \nSedition \nAdvocating or \nprinting matter that \nadvocates the \nforceful or violent \noverthrow of the US \ngovernment \nGeneral intent or \nknowingly to advocate, \nspecific intent or \npurposely when printing \nmatter that advocates the \nforceful or violent \noverthrow of the US \ngovernment \n \nSabotage \nVaries: either \ndestroying, \ndamaging, or \nproducing defective \nproperty that \nimpedes US defense \ncapabilities \nVaries: specific intent or \npurposely, general intent \nor knowingly or \nnegligently \nCertain conduct must \ntake place during war \nor a national emergency \nEspionage Spying \nVaries: either general \nintent or knowingly, or \nspecific intent or \npurposely that \ninformation will be \ntransmitted to the enemy \nCertain conduct must \ntake place during war \n*Includes the evidentiary requirement of the testimony of two witnesses or \nthe defendant's confession in open court KEY TAKEAWAYS \n\u2022 The criminal act element required for treason is levying war against the United \nStates or adhering to the enemy by giving the enemy aid and comfort. The \ncriminal intent element required for treason is most likely the general intent or \nknowingly to commit an act of levying war, or the specific intent or purposely to \nbetray the United States by giving aid and comfort to enemies. Treason also has \nthe constitutional evidentiary requirement that two witnesses corroborate the \nacts of treason or that the defendant confess in open court. Treason is graded as \na felony. \n\u2022 The criminal act element required for sedition is advocating, aiding, teaching, \norganizing, or printing, publishing, or circulating written matter that advocates, \naids, or teaches the overthrow of the US government by force or violence. The \ncriminal 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, \npublish, or circulate written matter that advocates, aids, or teaches the forceful \nor violent government overthrow. Sedition is graded as a felony. \n\u2022 The criminal act and harm elements required for sabotage vary but are generally \ndamaging, destroying, or producing defective property that impedes the US \nnational defense or ability to participate in or prepare for war. The criminal intent \nelement required for sabotage also varies but is either specific intent or \npurposely, general intent or knowingly, or negligent intent, depending on the \ncriminal act. Some forms of sabotage require the attendant circumstance that \nthe conduct occurs during wartime or a national emergency. Sabotage is graded \nas a felony. \n\u2022 Espionage is spying (criminal act) with general intent or knowingly, or the specific \nintent or purposely to transmit information to another nation. Some forms of \nespionage require the attendant circumstance that the conduct occurs during \nwartime. Espionage is graded as a felony. EXERCISES \nAnswer the following questions. Check your answers using the answer key at the \nend of the chapter. \n1. Stephanie stands in front of a mosque and advocates for the overthrow of the US \ngovernment. Is Stephanie committing sedition? Why or why not? \n2. Read U.S. v. Kabat, 797 Fed.2d 580 (1986). Did the US Court of Appeals for the \nEighth Circuit uphold the defendants' convictions for sabotage when, as nuclear \nprotestors, they intentionally damaged US missiles? \n13.2 Crimes Involving Terrorism \nLEARNING OBJECTIVES \n1. Identify three federal statutory schemes targeting terroristic conduct. \n2. Ascertain the function of the Department of Homeland Security. \n3. Define international and domestic terrorism. \n4. Identify crimes involving terrorism. \n5. Identify potential constitutional challenges to the USA PATRIOT Act. \nIn recent years, crimes involving terrorism have escalated both in the United States and \nabroad. The federal government's response has been to enact comprehensive criminal \nstatutes with severe penalties targeting terroristic conduct. In this section, federal statutes \ncriminalizing acts of terrorism are reviewed, along with potential constitutional challenges. \nStatutory Schemes Targeting Terrorism \nBefore the September 11, 2001, terrorist attacks on the United States, the primary \nfederal statutes criminalizing terrorism were the Omnibus Diplomatic Security \nand Antiterrorism Act of 1986 and the Antiterrorism and Effective Death Penalty \nAct of 1996 (AEDPA), which was enacted after the Oklahoma City bombings. \nAfter September 11, 2001, Congress enacted the USA PATRIOT Act, which stands for Uniting and Strengthening America by Providing Appropriate Tools Required \nto Intercept and Obstruct Terrorism Act of 2001. \nThe USA PATRIOT Act changed and strengthened existing laws targeting \nterrorism and enhanced US capabilities to prosecute terrorism committed \nabroad. Specifically, the USA PATRIOT Act increases federal jurisdiction over \ncrimes committed outside the United States,USA PATRIOT Act, Tit. VIII \u00a7 804, \naccessed May 4, \n2011, http://frwebgate.access.gpo.gov/cgibin/getdoc.cgi?dbname=107_cong_pu\nblic_laws&docid=f:publ056.107.pdf. creates new crimes involving financial \nsupport of terrorism or terrorists abroad,USA PATRIOT Act, Tit. VIII \u00a7 805, \naccessed May 4, 2011, http://frwebgate.access.gpo.gov/cgi-\nbin/getdoc.cgi?dbname=107_cong_public_laws&docid=f:publ056.107.pdf. and \nprovides for the civil forfeiture of assets connected to terrorism.USA PATRIOT \nAct, Tit. VIII \u00a7 806, accessed May 4, 2011, http://frwebgate.access.gpo.gov/cgi-\nbin/getdoc.cgi?dbname=107_cong_public_laws&docid=f:publ056.107.pdf. Othe\nr fundamental changes incorporated in the USA PATRIOT Act are the expansion \nof government surveillance capabilities, including telephone interception and \nscrutiny of e-mails.USA PATRIOT Act, Tit. II, \u00a7 203 et \nseq., http://frwebgate.access.gpo.gov/cgi-\nbin/getdoc.cgi?dbname=107_cong_public_laws&docid=f:publ056.107.pdf. \nIn 2002, Congress created the Department of Homeland Security (DHS) under \nthe authority of the Homeland Security Act. DHS enforces provisions of federal \nlaws against terrorism and includes the following agencies: the Secret Service, \nCustoms, the Federal Emergency Management Agency, United States Coast \nGuard, Border Patrol, Transportation Security Administration, and Citizenship \nand Immigration Services.Department of Homeland Security website, accessed \nMay 4, 2011, http://www.dhs.gov/index.shtm. Criminal Terroristic Conduct \nInternational terrorism is defined as violent acts committed outside the United \nStates that would be criminal if committed in the United States, and that appear \nto be intended to influence a civilian population or government by \nintimidation, or to affect the conduct of government by mass destruction, \nassassination, or kidnapping.18 U.S.C. \u00a7 2331(1), accessed May 3, \n2011, http://www.law.cornell.edu/uscode/718/usc_sec_18_00002331----000-\n.html. Specific crimes such as murder, attempted murder, and conspiracy to \ncommit murder committed against an American national (defined as an \nAmerican citizen or individual who owes permanent allegiance to the United \nStates)8 U.S.C. \u00a7 1101(a) (22), accessed May 3, \n2011, http://www.law.cornell.edu/uscode/html/uscode08/usc_sec_08_000011\n01----000-.html. while outside the United States are graded as high-\nlevel felonies with all ranges of sentencing options available, including the death \npenalty.18 U.S.C. \u00a7 2332, accessed May 3, \n2011, http://www.law.cornell.edu/uscode/718/usc_sec_18_00002332----000-\n.html.Domestic terrorism is defined exactly the same as international terrorism, \nexcept that the violent acts are committed within the territorial jurisdiction of the \nUnited States.18 U.S.C. \u00a7 2331(5), accessed May 3, \n2011, http://www.law.cornell.edu/uscode/718/usc_sec_18_00002331----000-\n.html. Prohibited as terrorism are the use of a weapon of mass destruction, which \nis defined as any destructive device or weapon designed to cause death or serious \nbodily injury through the release of chemicals, toxins, or radioactivity,18 U.S.C. \n\u00a7 2332A(c) (2), accessed May 4, \n2011, http://www.law.cornell.edu/uscode/718/usc_sec_18_00002332---a000-\n.html. bombings of places of public use\u2014including public transportation \nsystems18 U.S.C. \u00a7 2332F, accessed May 4, \n2011, http://www.law.cornell.edu/uscode/718/usc_sec_18_00002332---f000-\n.html.\u2014financing of terrorism,18 U.S.C. \u00a7 2339C, accessed May 3, \n2011, http://www.law.cornell.edu/uscode/718/usc_sec_18_00002339---C000- .html. harboring or concealing terrorists,18 U.S.C. \u00a7 2339, accessed May 3, \n2011, http://www.law.cornell.edu/uscode/718/usc_sec_18_00002339----000-\n.html. or attempt or conspiracy to do any of the foregoing. All these crimes \nare graded as serious felonies. \nExample of Terrorism \nZacarias Moussaoui, a French citizen, was the only defendant prosecuted for the \nSeptember 11, 2001, terrorist attacks. Although Moussaoui was not onboard any \nof the planes that crashed into the World Trade Center, Pentagon, and a \nPennsylvania field because he was in federal custody, he was indictedZacarias \nMoussaoui indictment, Justice.gov website, accessed May 4, \n2011, http://www.justice.gov/ag/moussaouiindictment.htm. for several counts of \nconspiracy to commit terrorism and aircraft piracy and pleaded guilty to all \ncharges. Specifically, Moussaoui pleaded guilty to conspiracy to commit acts of \nterrorism transcending national boundaries, conspiracy to commit aircraft \npiracy, conspiracy to destroy aircraft, conspiracy to use weapons of mass \ndestruction, conspiracy to murder US employees, and conspiracy to destroy \nproperty of the United States. After the extended trial, during which Moussaoui \nattempted to represent himself, and the resulting guilty pleas, the jury carefully \nconsidered and recommended against the death penalty for Moussaoui, who was \nthereafter sentenced to life in prison.Jerry Markon, Timothy Dwyer, \"Jurors \nReject Death Penalty for Moussaoui,\" Washington Post website, accessed May 11, \n2011, http://www.washingtonpost.com/wp-\ndyn/content/article/2006/05/03/AR2006050300324.html. Moussaoui later \nmoved to withdraw his guilty pleas, but his motion was rejected by the US \nDistrict Court for the Eastern District of Virginia,U.S. v. Moussaoui, Criminal No. \n01-455-A (2003), accessed May 4, \n2011, http://law2.umkc.edu/faculty/projects/ftrials/moussaoui/withdrawguilty.\npdf. whose decision was later affirmed by the US Court of Appeals for the Fourth \nCircuit.U.S. v. Moussaoui, 591 F.3d 263 (2010), accessed May 4, 2011, http://scholar.google.com/scholar_case?case=5511221851556025255&q= \nU.S.+v.+Moussaoui&hl=en&as_sdt=2,5. \nFigure 13.4 Moussaoui Indictment Constitutional Challenges to the USA PATRIOT Act \nPortions of the USA PATRIOT Act provide for enhanced government surveillance \ncapabilities, which are considered a search, so constitutional implications are \npresent pursuant to the Fourth Amendment, which prohibits unreasonable \nsearch and seizure. In addition, provisions of the Act that prohibit financing \nterrorists and terrorism have been attacked as violative of the First \nAmendment's protection of free speech, free association, and freedom of \nreligion. Litigation involving these challenges is ongoing and was filed on behalf \nof citizens by the American Civil Liberties Union (ACLU).Nancy Kranich, \"The \nImpact of the USA PATRIOT Act: An Update,\" Fepproject.org website, accessed \nMay 4, 2011, http://www.fepproject.org/commentaries/patriotactupdate.html. \nFigure 13.5 Diagram of Crimes Involving National Security and Terrorism KEY TAKEAWAYS \n\u2022 Three statutory schemes targeting terroristic conduct are the Omnibus \nDiplomatic Security and Antiterrorism Act of 1986, the Antiterrorism and \nEffective Death Penalty Act of 1996, and the USA PATRIOT Act. \n\u2022 The Department of Homeland Security enforces terrorism laws. \n\u2022 The definition of international terrorism is violent acts committed outside the \nUnited States that would be criminal if committed in the United States and that \nappear to be intended to influence a civilian population or government by \nintimidation, or to affect the conduct of government by mass destruction, \nassassination, or kidnapping. The definition of domestic terrorism is exactly the \nsame, except the criminal acts take place within the territorial jurisdiction of the \nUnited States. \n\u2022 Examples of crimes involving terroristic conduct are murder, use of a weapon of \nmass destruction, bombing places of public use, financing terrorism, harboring a \nterrorist, and conspiracy or attempt to commit any of the foregoing. \n\u2022 The USA PATRIOT Act expands government surveillance capabilities, so it is \nsubject to a Fourth Amendment challenge as an unreasonable search, and also \nprohibits financing terrorism, so it is subject to a First Amendment challenge as a \nprohibition on free speech, freedom of religion, and freedom to associate. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the \nend of the chapter. \n1. Joshua shoots and kills Khalid in front of the Pakistani Embassy in Washington, \nDC. Is this an act of domestic terrorism? Why or why not? \n2. Read Humanitarian Law Project v. Reno, 205 F.3d 1130 (2000). Did the US Court \nof Appeals for the Ninth Circuit uphold 18 U.S.C. \u00a7 2339, which prohibits \nproviding material support to terrorists? What were the constitutional challenges \nto this federal statute? 13.3 Perjury, Bribery, and Obstruction of Justice \nLEARNING OBJECTIVES \n1. Define the elements of perjury. \n2. Identify the issues commonly encountered in a perjury prosecution. \n3. Identify a potential defense to perjury. \n4. Define perjury by inconsistent statements and subornation of perjury. \n5. Analyze perjury and subornation of perjury grading. \n6. Define the elements of bribery, identify the primary difficulty in a prosecution for \nthis offense, and analyze bribery grading. \n7. Define the elements of various forms of obstruction of justice, and analyze \nobstruction of justice grading. \nCrimes against the administration of justice impede the government's ability to carry out the \nimportant functions of prosecuting and convicting criminals, which, in turn, destroys \ncitizens' confidence that the US legal system is effective in ensuring individual safety and \nsecurity. This section analyzes perjury, bribery, and obstruction of justice, along with the \nissues commonly encountered when prosecuting these offenses. Additional statutes \ncriminalizing contempt of court, resisting arrest, and escape are also available for review. \nPerjury History and Elements \nWitness testimony is important in a variety of settings. Juries depend on witness \ntestimony to reach a fair and impartial verdict in civil and criminal trials, and \ngrand juries depend on witness testimony to indict defendants for criminal \nconduct. Thus modern laws of perjury are calculated to ensure that witnesses \ntestify truthfully so that justice can be done in each individual case. \nIn the Middle Ages, the witnesses were the jurors, so the criminalization of false \nwitness testimony did not occur until the sixteenth century when the idea of a \ntrial by an impartial jury emerged. The first common-law prohibition against \nwitness perjury criminalized false testimony, given under oath, in a judicial proceeding, about a material issue. This definition was also incorporated into \nearly American common law.\"Perjury\u2014Perjury at Common Law,\" Jrank.org \nwebsite, accessed May 5, 2011, http://law.jrank.org/pages/1632/Perjury-Perjury-\nat-common-law.html. \nIn modern times, every state prohibits perjury, as well as the federal \ngovernment.18 U.S.C. \u00a7 1621, accessed May 5, \n2011, http://www.law.cornell.edu/uscode/718/usc_sec_18_00001621----000-\n.html. Most state statutes or state common law, in states that allow common-law \ncrimes, define perjury as a false material statement (criminal act), made with \nthe specific intent or purposely to deceive, or the general \nintent or knowingly that the statement was false, in a judicial or official \nproceeding (attendant circumstance), under oath (attendant \ncircumstance).Ga. Code tit. 16 \u00a7 16-10-70, accessed May 5, \n2011, http://law.onecle.com/georgia/16/16-10-70.html. The Model Penal Code \ndefines perjury as a false material statement, that the defendant does not believe \nto be true, made under oath in any official proceeding (Model Penal Code \n\u00a7 241.1(1)). The biggest issues commonly encountered in any perjury prosecution \nare proving the validity of the oath, the defendant's criminal intent, the \nmateriality of the false statement, and any requirement of corroborative evidence. \nNecessity of a Valid Oath \nThe defendant must be under oath when making the statement at issue in any \nperjury prosecution, and the oath must be administered by someone of legal \nauthority or someone authorized to take evidence under oath,Connecticut Jury \nInstructions \u00a7 53a-156, accessed May 5, \n2011, http://www.jud.ct.gov/ji/criminal/part4/4.5-9.htm. including a referee, \nhearing examiner, commissioner, notary, or other person authorized to take \nevidence in connection with an official or judicial proceeding.Connecticut Jury \nInstructions \u00a7 53a-156, accessed May 5, \n2011, http://www.jud.ct.gov/ji/criminal/part4/4.5-9.htm. Federally and in many jurisdictions, the false statement can be written, as long as it is certified, such as \na signature on an income tax return18 U.S.C. \u00a7 6065, accessed May 5, \n2011, http://www.law.cornell.edu/uscode/26/usc_sec_26_00006065----000-\n.html. or a report.Cal. Penal Code \u00a7 129, accessed May 5, \n2011, http://law.onecle.com/california/penal/129.html. The Model Penal Code \nalso considers a false written statement perjury, as long as the document \ncontaining the statement is made upon oath or affirmation (Model Penal Code \n\u00a7 241.1(3)). In spite of the attendant circumstance requirement that the \nstatement be made under oath, many jurisdictions disallow a defense to a \nprosecution for perjury based on the assertion that the oath or affirmation was \nadministered or taken in an irregular manner.Ala. Code \u00a7 13A-10-108, accessed \nMay 5, 2011, http://law.onecle.com/alabama/criminal-code/13A-10-\n108.html. The Model Penal Code has a similar provision (Model Penal Code \n\u00a7 241.1(3)). In addition, many jurisdictions have a provision that witnesses \nwho refuse to take an oath shall have the option of making a nonreligous \naffirmation that has the same legal effect as the oath.42 Pa. Cons. Stat. Ann. \n\u00a7 5901, accessed May 5, 2011, http://law.onecle.com/pennsylvania/judiciary-\nand-judicial-procedure/00.059.001.000.html. The Model Penal Code allows for \nan \"oath or equivalent affirmation\" (Model Penal Code \u00a7 241.1(1)). \nPerjury Criminal Intent \nAs stated previously, in many jurisdictions, the defendant must know that a \nstatement is false or must make the statement with the specific \nintent or purposely to deceive. When the intent requirement is general intent \nor knowledge that the statement is false, proof that the statement is false could \ngive rise to an inference of intent.State v. Kimber, 48 Conn. App. 234 (1998), \naccessed May 5, \n2011, http://scholar.google.com/scholar_case?case=17399056576949304157&q\n= State+v.+Kimber+48&hl=en&as_sdt=2,5. Materiality Requirement \nPerjury generally requires a false statement that is material, which means that it \nsubstantially affected or could substantially affect the outcome of the \nproceeding.Mo. Ann. Stat. \u00a7 575.040, accessed May 5, \n2011, http://www1.law.umkc.edu/suni/CrimLaw/calendar/Class_4_Mo_perjury\n.htm. In many jurisdictions and federally, materiality is a question of fact for the \ntrier of fact, which could be a jury.U.S. v. Gaudin, 515 U.S. 506 (1995), accessed \nMay 5, \n2011, http://scholar.google.com/scholar_case?case=12281686524757008977&hl\n=en&as_sdt=2&as_vis=1&oi=scholarr. The Model Penal Code defines materiality \nas a statement that could have affected the course or outcome of the proceeding \nand declares that materiality should be a question of law, which means it should \nbe determined by a judge, not a jury (Model Penal Code \u00a7 241.1(2)). Typically, it \nis not a defense to perjury that the defendant did not know that the statement \nwas material.Mo. Ann. Stat. \u00a7 575.040(3) (1), accessed May 5, \n2011, http://www1.law.umkc.edu/suni/CrimLaw/calendar/Class_4_Mo_perjury\n.htm. The Model Penal Code has a similar provision (Model Penal Code \n\u00a7 241.1(2)). \nCorroborative Evidence Requirement \nSome jurisdictions have a requirement of corroborative evidence for perjury, \nwhich necessitates the testimony of two witnesses to support a conviction, \nsimilar to a treason conviction.Tex. Code of Criminal Procedure, \u00a7 38.18, \naccessed May 5, 2011, http://law.onecle.com/texas/criminal-\nprocedure/38.18.00.html. The Model Penal Code also has this corroborative \nevidence requirement (Model Penal Code \u00a7 241.1(6)). \nDefense of Retraction \nMany jurisdictions provide a defense to perjury if the defendant retracts his or \nher false statement in the course of the same proceeding in which it was made before it becomes manifest that the falsification will be exposed.Ala. Code \u00a7 13A-\n10-107, accessed May 6, 2011, http://law.onecle.com/alabama/criminal-\ncode/13A-10-107.html. The Model Penal Code has a similar provision (Model \nPenal Code \u00a7 241.1(4)). \nExample of a Case Lacking an Element of Perjury \nMarcus is a witness in a civil suit for damages against Lindsay. Macy's \ndepartment store is suing Lindsay for the alleged theft of a diamond necklace. \nMarcus takes an oath sworn by the court commissioner. He thereafter testifies \nthat he saw Lindsay try on the necklace and then walk out of the store without \npaying for it. When the Macy's attorney asks Marcus what he was doing at \nMacy's, Marcus responds that he was buying some jewelry as a gift for his wife. In \nactuality, 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 \na civil rather than criminal trial, but this satisfies the perjury requirement that \nthe testimony be offered during a judicial or official proceeding. Before \ntestifying, Marcus took an oath that was administered by a court commissioner, \nalso satisfying the perjury requirement that the defendant take an oath \nadministered by someone with the legal authority or authorization to take \nevidence under oath. Marcus's statement is false, and he made the statement \nwith knowledge of its falsity, which satisfies the perjury criminal intent \nrequirement. However, Marcus's statement does not appear to be material to \nthis judicial proceeding because the reason for Marcus's presence at Macy's will \nnot affect the outcome of Lindsay's civil theft trial (usually called the tort of \nconversion). Thus Marcus is probably not subject to prosecution for and \nconviction of perjury, based on his testimony in this case. \nExample of Perjury \nReview the example in Section 13 \"Example of a Case Lacking an Element of \nPerjury\" with Marcus. Change this example so that Marcus testifies that he did not see Lindsay walk out of the Macy's department store without paying for \nthe necklace because he does not want to admit that he was shopping for jewelry \nto buy his girlfriend. Anthony, the Macy's civil trial attorney, cross-examines \nMarcus, and forces him to admit that he saw Lindsay steal the necklace, and that \nhe was lying previously. Marcus has most likely committed perjury in this \nexample. Marcus made a false statement, under a validly administered oath, in \na judicial proceeding, with knowledge of its falsity. Marcus's statement \nwas material because, if believed, it would have helped exonerate Lindsay in her \ncivil case. In many jurisdictions, the trier of fact, which could be a judge or jury, \ndetermines whether or not the statement is material. Marcus's admission that he \nwas lying is not a retraction that could serve as a defense because it was not \nmade until the lie was about to be exposed. Thus all the elements of perjury \nappear to be present, and Marcus may be subject to prosecution for and \nconviction of this offense. \nFigure 13.6 Diagram of Defenses to Perjury Perjury by Inconsistent Statements \nSome jurisdictions criminalize perjury by inconsistent or contradictory \nstatements, which is slightly different from criminal perjury.Ala. Code \u00a7 13A-10-\n104, accessed May 6, 2011, http://law.onecle.com/alabama/criminal-code/13A-\n10-104.html. Perjury by inconsistent statements is easier to prove than \ntraditional perjury because the prosecution can simply offer evidence that the \ndefendant made statements that are inconsistent, in a judicial proceeding, after \ntaking a validly administered oath. Corroborative evidence is not required, and \nthe prosecution does not have the burden of proving that one of the statements is \nfalse, just that one or the other was false and not believed by the defendant to be \ntrue.Ala. Code \u00a7 13A-10-104, accessed May 6, \n2011, http://law.onecle.com/alabama/criminal-code/13A-10-104.html. The \nModel Penal Code has a similar provision (Model Penal Code \u00a7 241.1(5)). \nExample of Perjury by Inconsistent Statements \nReview the example with Marcus in Section 13 \"Example of Perjury\". If Marcus's \njurisdiction criminalizes perjury by inconsistent statements, Marcus could most \nlikely be prosecuted for this offense. Marcus made two inconsistent statements \nwhile under a validly administered oath in Lindsay's conversion trial, which is a \njudicial proceeding. In Marcus's criminal perjury by inconsistent statements \nprosecution, the prosecutor need only offer evidence of the inconsistent \nstatements to the trier of fact. The prosecutor does not have to provide \ncorroborative evidence and does not have the burden of proving that the first \nstatement was false, which will simplify and expedite the trial and may subject \nMarcus to conviction of this offense. \nSubornation of Perjury \nMost jurisdictions criminalize subornation of perjury, which is typically \nprocuring another to commit perjury (criminal act) with specific \nintent or purposely, or general intent or knowingly, and factually and legally causing the resulting harm that perjury is in \nfact committed.N.C. Gen. Stat. \u00a7 14-210, accessed May 6, \n2011, http://law.onecle.com/north-carolina/14-criminal-law/14-210.html. \nExample of a Case Lacking an Element of Subornation of Perjury \nReview the example given with Marcus in Section 13 \"Example of Perjury\". Add \nto this example and assume that Marcus begs Janelle, another witness in \nLindsay's conversion trial, to say that she did not see him at Macy's the day \nLindsay stole the necklace. Janelle flatly refuses. Marcus has not committed \nsubornation of perjury in this case. Although Marcus tried to procure Janelle to \ncommit perjury, with specific intent or purposely, Janelle did not cooperate \nand did not commit the perjury. Thus the harm element of subornation of \nperjury is lacking, and Marcus can be prosecuted only for attempted subornation \nof perjury or solicitation to commit perjury, rather than the completed offense. \nFigure 13.7 Comparison of Perjury by Inconsistent Statements and Subornation of \nPerjury Perjury Grading \nPerjury is generally graded as a felony,N.C. Gen. Stat. \u00a7 14-209, accessed May 6, \n2011, http://law.onecle.com/north-carolina/14-criminal-law/14-209.html. with a \npotential sentencing enhancement for committing perjury that causes another to \nbe sentenced to prison or the death penalty.Ga. Code tit. 16, \u00a7 16-10-70, accessed \nMay 6, 2011, http://law.onecle.com/georgia/16/16-10-70.html. The Model Penal \nCode grades perjury as a felony of the third degree (Model Penal Code \u00a7 241.1(1)). \nSubornation of perjury is also graded as a felony.N.C. Gen. Stat. \u00a7 14-210, \naccessed May 6, 2011, http://law.onecle.com/north-carolina/14-criminal-law/14-\n210.html. However, because of the procedural difficulties in successfully \nconvicting a defendant of perjury and subornation of perjury, these crimes are \nnot often prosecuted. Nonetheless, the threat of a felony conviction still serves as \na deterrent and helps to ensure that witnesses testify truthfully in judicial and \nofficial proceedings and give accurate statements in certified writings. \nBribery Elements \nBribery is often compared to extortion, yet extortion is considered a crime of \nthreatened force or violence, while bribery involves financial inducement.U.S. v. \nAdcock, 558 F.2d 397 (1977), accessed May 6, \n2011, http://scholar.google.com/scholar_case?case=189694239263939940&hl=\nen&as_sdt=2&as_vis=1&oi=scholarr. At early common law, bribery was the \nreceiving or offering any undue reward by or to any person in a public office in \norder to influence his or her behavior in office and induce him or her to act \ncontrary to the known rules of honesty and integrity.Legal definition of bribery, \nDuhaime.org website, accessed May 6, \n2011, http://www.duhaime.org/LegalDictionary/B/Bribery.aspx. In modern \ntimes, many criminal statutes define bribery as conferring, offering, agreeing to \nconfer, or soliciting, accepting, or agreeing to accept any benefit upon a public \nofficial (criminal act) with the specific intent or purposely or the general \nintent or knowingly to form an agreement or understanding that the public official's vote, opinion, judgment, action, decision, or exercise of discretion will \nbe influenced by the benefit.N.Y. Penal Law \u00a7 200.00, accessed May 6, \n2011, http://law.onecle.com/new-york/penal/PEN0200.00_200.00.html; N.Y. \nPenal Law \u00a7 200.10, http://law.onecle.com/new-\nyork/penal/PEN0200.10_200.10.html. The crime of bribery is often extended to \napply to persons other than public officials, such as employees, agents, or \nfiduciaries for the purpose of influencing the bribed individual's on-the-job \nconduct.N.Y. Penal Law \u00a7 180.00, accessed May 6, \n2011, http://law.onecle.com/new-york/penal/PEN0180.00_180.00.html. This \ntype of bribery is typically called commercial bribery.N.Y. Penal Law \u00a7 180.00, \naccessed May 6, 2011, http://law.onecle.com/new-\nyork/penal/PEN0180.00_180.00.html. Bribery can also cover members of a \nstate legislature,Cal. Penal Code \u00a7 85, accessed May 6, \n2011, http://law.onecle.com/california/penal/85.html; Cal. Penal Code \n\u00a7 86, http://law.onecle.com/california/penal/86.html. any judicial officer, juror, \nreferee, umpire,Cal. Penal Code \u00a7 92, accessed May 6, \n2011, http://law.onecle.com/california/penal/92.html; Cal. Penal Code \n\u00a7 93, http://law.onecle.com/california/penal/93.html. or witnessOr. Rev. Stat. \n\u00a7 162.265, accessed May 6, 2011, http://law.onecle.com/oregon/162-offenses-\nagainst-the-state-and/162.265.html; Or. Rev. Stat. \u00a7162.275, accessed May 7, \n2011, http://law.onecle.com/oregon/162-offenses-against-the-state-\nand/162.275.html. when a bribe is conferred or offered, asked for, received, or \nagreed to be received to influence their vote or decision. The Model Penal Code \ncriminalizes as bribery the act of conferring, offering, agreeing to confer, \nsoliciting, accepting, or agreeing to accept any pecuniary (which \nmeans monetary) benefit in exchange for a public servant, party official, voter's \ndecision, opinion, recommendation, vote, or other exercise of discretion (Model \nPenal Code \u00a7 240.1(1)). The Model Penal Code also criminalizes as bribery the act \nof conferring, offering, agreeing to confer, soliciting, accepting, or agreeing to \naccept any benefit in exchange for a judicial or administrative officer's decision, vote, recommendation, or other exercise of official discretion (Model Penal Code \n\u00a7 240.1(2)). \nProsecutorial Burden in Bribery Prosecutions \nSimilar to perjury, bribery is notoriously difficult to prove, which is a factor \nprosecutors must consider when deciding whether or not to charge an \nindividual(s) with this offense. The most difficult bribery element to prove \nbeyond a reasonable doubt is the criminal intent element of specific \nintent or purposely or general intent or knowingly to enter into an \nagreement that influences the bribed individual's decision. \nExample of Bribery \nIsabel, a defendant on trial for perjury, notices the judge presiding in her case \nshopping at Macy's department store. Isabel thereafter buys an expensive watch, \nhas it wrapped, walks up to the judge, and offers it to him as a gift. Isabel has \nmost likely committed bribery in this case. Although the judge did not accept \nIsabel's \"gift,\" most states criminalize as bribery the offer of any benefit, so the \nact of bribery is complete when Isabel proffers the watch. In addition, based on \nthese facts, Isabel's connection to the judge is only through her perjury \nprosecution, so her act appears calculated to influence his decision in that case, \nespecially because the watch is expensive and not merely a token. Note that a \nprosecutor is required to prove beyond a reasonable doubt Isabel's specific \nintent or purposely or general intent or knowingly to enter into an \nagreement with the judge influencing his decision, which is challenging even \nunder the obvious circumstances apparent in this case. \nAnother Example of Bribery \nReview the example with Isabel in Section 13 \"Example of Bribery\". Add to this \nexample and assume that the judge graciously accepts Isabel's gift and thereafter \nrules in her favor, acquitting her of perjury. In this example, both the judge and Isabel have likely committed bribery because most states criminalize the \nconferring, offering, and accepting and receiving a bribe as the criminal act \nelements. Thus both Isabel and the judge may be subject to prosecution for and \nconviction of this offense, and the judge's acquittal of Isabel will ease the \nprosecutor's burden in proving the specific intent or purposely or general \nintent or knowingly to enter into an agreement corruptly influencing the \ndecision making in this case. \nExample of a Case Lacking an Element of Bribery \nIsabel notices a gentleman struggling to pay his bill at a local coffee shop. Isabel \nsteps up and charitably offers to pay the gentleman's bill. Later in the day, while \nwatching her son's professional baseball game, Isabel notices that the umpire \nlooks familiar. After pondering it for a few minutes, she realizes that he is the \nsame gentleman who could not pay his bill at the coffee shop. Isabel and the \numpire probably have not committed bribery in this case. Although Isabel gave \nthe umpire money, and he was the decision maker in her son's baseball game, \nIsabel did not give the money, nor did the umpire accept it, with the specific \nintent or purposely or general intent or knowingly to enter into an \nagreement influencing the umpire's decisions. Thus the criminal intent element \nfor bribery appears to be lacking, and neither Isabel nor the umpire are subject to \nprosecution for and conviction of this offense. \nBribery When No Authority to Act Is Present \nIn many states and under the Model Penal Code, it is no defense to bribery that \nthe individual bribed does not have the authority to act or make the decision \nthat is the subject of the bribe (Model Penal Code \u00a7 240.1).Ala. Code \u00a7 13A-10-61, \naccessed May 7, 2011, http://law.onecle.com/alabama/criminal-code/13A-10-\n61.html. Example of Bribery When No Authority to Act Is Present \nReview the example with Isabel and the judge in Section 13 \"Another Example of \nBribery\". Change this example and assume that the \"judge\" in question is an \nimposter who is merely masquerading as a judge to live out a lifelong fantasy. \nIsabel and the \"judge\" may still be prosecuted for and convicted of bribery in \nmany jurisdictions and under the Model Penal Code because lack of \nauthority is typically not a defense to bribery under modern statutes \ncriminalizing this offense. \nFigure 13.8 Diagram of Defenses to Bribery Bribery Grading \nBribery is typically graded as a felonyN.Y. Penal Law \u00a7 200.00, accessed May 6, \n2011, http://law.onecle.com/new-york/penal/PEN0200.00_200.00.html. with \nenhancements for bribery that is carried out with a larger sum of moneyN.Y. \nPenal Law \u00a7 200.03, accessed May 6, 2011, http://law.onecle.com/new-\nyork/penal/PEN0200.03_200.03.html. or bribery that results in someone's \nprosecution or incarceration for a felony.N.Y. Penal Law \u00a7 200.04, accessed May \n6, 2011, http://law.onecle.com/new-\nyork/penal/PEN0200.04_200.04.html. When a state legislatorCal. Penal Code \n\u00a7 88, accessed May 7, 2011, http://law.onecle.com/california/penal/88.html. or a \npublic officialCal. Penal Code \u00a7 74, accessed May 7, \n2011, http://law.onecle.com/california/penal/74.html. commits bribery, it is \ntypical to disqualify that individual from his or her office for life, in addition to \nany other sentence. \nObstruction of Justice \nObstruction of justice takes many forms and is a classic example of an offense \nagainst the administration of justice. States and the federal government exercise \nbroad latitude in enacting statutes that criminalize interference with any aspect \nof law enforcement procedure or the prosecution and conviction of criminal \noffenders. Some typical examples of obstruction of justice are as follows: giving \nfalse identification to a law enforcement officer,720 ILCS \u00a7 5/31-4.5, accessed \nMay 7, 2011, http://law.onecle.com/illinois/720ilcs5/31-4.5.html. impersonating \na law enforcement officer,Fla. Stat. Ann. \u00a7 843.08, accessed May 7, \n2011, http://law.onecle.com/florida/crimes/843.08.html. refusing to aid a law \nenforcement officer when requested,N.Y. Penal Law \u00a7 195.10, accessed May 7, \n2011, http://law.onecle.com/new-york/penal/PEN0195.10_195.10.html. giving \nfalse evidence,720 ILCS \u00a7 5/31-4, accessed May 7, \n2011, http://law.onecle.com/illinois/720ilcs5/31-4.html. hiding or concealing \noneself and refusing to give evidence,720 ILCS \u00a7 5/31-4, accessed May 7, 2011, http://law.onecle.com/illinois/720ilcs5/31-4.html. tampering with \nevidence,Or. Rev. Stat. \u00a7 162.295, accessed May 7, \n2011, http://law.onecle.com/oregon/162-offenses-against-the-state-\nand/162.295.html. and tampering with a witness18 U.S.C. \u00a7 1512, accessed May 7, \n2011, http://www.law.cornell.edu/uscode/718/usc_sec_18_00001512----000-\n.html. or juror.Ariz. Rev. Stat. \u00a7 13-2807, accessed May 7, \n2011, http://law.onecle.com/arizona/criminal-code/13-2807.html. All these acts \nare generally supported by specific intent or purposely or general \nintent or knowingly. The Model Penal Code prohibits threatening unlawful \nharm to any person or public servant with purpose to influence his decision, \nopinion, recommendation, vote, or other exercise of discretion (Model Penal \nCode \u00a7 240.2). Obstruction of justice offenses are most often graded as a \nmisdemeanor or felony, depending on the offense. \nExample of Obstruction of Justice \nBarry Bonds, a baseball player and record-breaking home run hitter for the San \nFrancisco Giants, was found guilty by a federal jury for obstruction of justice, \nbased on his refusal to answer a question during a grand jury investigation of his \nsteroid use.Juliet Macur, \"Bonds Guilty of Obstruction, but Not of Perjury,\" New \nYork Times website, accessed May 8, \n2011, http://www.nytimes.com/2011/04/14/sports/baseball/14bonds.html?page\nwanted=1&_r=1. 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.Jorge L. \nOrtiz, \"Verdict in: Bonds Found Guilty, but Case Not Closed Yet,\" USA TODAY \nwebsite, accessed May 8, 2011, http://www.usatoday.com/sports/baseball/2011-\n04-13-verdict-barry-bonds-guilty_N.htm. The perjury charges stemmed from \nBonds's claim while testifying under oath that he never knowingly used steroids, \nnever knowingly used human growth hormones, and was never injected with a \nsubstance by anyone other than his trainer. The obstruction of justice conviction \nresulted from Bonds's evasive answer to the question of whether his personal \ntrainer had ever injected him with steroids.Juliet Macur, \"Bonds Guilty of Obstruction, but Not of Perjury,\" New York Times website, accessed May 8, \n2011, http://www.nytimes.com/2011/04/14/sports/baseball/14bonds.html?page\nwanted=1&_r=1. Instead of answering yes or no to this question, Bonds began \nreminiscing about his friendship with the trainer, who went to prison four times \nin five years for also refusing to testify in the investigation.Juliet Macur, \"Bonds \nGuilty of Obstruction, but Not of Perjury,\" New York Times website, accessed \nMay 8, \n2011, http://www.nytimes.com/2011/04/14/sports/baseball/14bonds.html?page\nwanted=1&_r=1. The perjury charges support the obstruction of justice charge, so \nthe defense asked for a court dismissal of the obstruction of justice conviction in \norder to clear the way for an appeal.Jorge L. Ortiz, \"Verdict in: Bonds Found \nGuilty, but Case Not Closed Yet,\" USA TODAY website, accessed May 8, \n2011, http://www.usatoday.com/sports/baseball/2011-04-13-verdict-barry-\nbonds-guilty_N.htm. Note that Bonds's obstruction of justice charge of \nevading the question and refusing to give evidence appears easier to prove than \nthe perjury charges, which have a daunting criminal intent requirement, as \ndiscussed in Section 13 \"Perjury Criminal Intent\". \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(click to see video) \nAdditional Crimes against the Government \nAdditional crimes against the government that impair the orderly administration \nof justice are contempt,N.C. Gen. Stat. \u00a7 5A-11, et seq., accessed May 8, \n2011, http://law.onecle.com/north-carolina/5a-contempt/index.html. resisting \narrest,18 Pa. Cons. Stat. Ann. \u00a7 5104, accessed May 8, \n2011, http://law.onecle.com/pennsylvania/crimes-and- offenses/00.051.004.000.html. and escape.Tex. Penal Code \u00a7 38.06, accessed \nMay 8, 2011, http://law.onecle.com/texas/penal/38.06.00.html. Review the \nstatutes in the endnotes for common elements and grading of these offenses. \nFigure 13.9 Diagram of Perjury, Bribery, and Obstruction of Justice KEY TAKEAWAYS \n\u2022 Most jurisdictions define perjury as a false material statement (criminal act), \nmade with specific intent or purposely to deceive, or the general intent or \nknowingly that the statement was false, in a judicial or official proceeding, or in a \ncertified writing (attendant circumstance), under oath (attendant circumstance). \n\u2022 The issues commonly encountered in any perjury prosecution are proving the \nvalidity of the oath, the defendant's criminal intent, or the materiality of the false \nstatement, and any requirement of corroborative evidence. \n\u2022 Many jurisdictions provide a defense to perjury if the defendant retracts his or \nher false statement in the course of the same proceeding in which it was made \nbefore it becomes manifest that the falsification will be exposed. \n\u2022 Perjury by inconsistent statements is when the defendant makes statements that \nare inconsistent (criminal act), in a judicial proceeding (attendant circumstance), \nafter taking a validly administered oath (attendant circumstance). The \nprosecution does not need to prove which statement is false for this offense. \nSubornation of perjury is procuring another to commit perjury (criminal act), with \nspecific intent or purposely, or general intent or knowingly, and factually and \nlegally causing the resulting harm that perjury is actually committed. \n\u2022 Perjury is generally graded as a felony, with a potential sentencing enhancement \nfor committing perjury that causes another to be sentenced to prison or the \ndeath penalty. Subornation of perjury is also graded as a felony. \n\u2022 Many criminal statutes define bribery as conferring, offering, agreeing to confer, \nor soliciting, accepting, or agreeing to accept, any benefit upon a public official \n(criminal act) with the specific intent or purposely, or the general intent or \nknowingly to form an agreement or understanding that the public official's \ndecision making will be influenced by the benefit. The crime of bribery is often \nextended to apply to persons other than public officials, such as employees, \nagents, or fiduciaries for the purpose of influencing the bribed individual's on-\nthe-job conduct, which is called commercial bribery. Bribery can also cover \nmembers of a state legislature, any judicial officer, juror, referee, umpire, or witness. The primary issue in a bribery prosecution is proving the defendant's \ncriminal intent to enter into an agreement that influences the bribed individual's \ndecision making. Bribery is typically graded as a felony, with enhancements for a \nbribe that is a large sum of money or bribery that results in incarceration for a \nfelony, along with a disqualification from office. \n\u2022 Some typical examples of obstruction of justice are as follows: giving false \nidentification to a law enforcement officer, impersonating a law enforcement \nofficer, refusing to aid a law enforcement officer when requested, giving false \nevidence, hiding or concealing oneself and refusing to give evidence, tampering \nwith evidence, and tampering with a witness or juror. All these acts are generally \nsupported by specific intent or purposely, or general intent or knowingly. \nObstruction of justice is graded anywhere from a misdemeanor to a felony, \ndepending on the offense. \nEXERCISES \nAnswer the following questions. Check your answers using the answer key at the \nend of the chapter. \n1. Susannah, a Hollywood movie star, is a witness in a civil personal injury case. \nSusannah saw a car accident and is subpoenaed to testify that the defendant was \nat fault. After the court commissioner administers an oath to tell the truth, \nSusannah takes the witness stand. She knows the case will generate significant \npublicity, so Susannah shaves ten years off of her age when asked routine \nbackground questions by the prosecutor. If Susannah is thereafter caught in this \nlie and prosecuted for perjury, what will be the primary issue in her perjury \nprosecution? How will this issue be resolved? \n2. Read State v. Carr, 172 Conn. 458 (1977). In this case, the defendant was \nconvicted of bribery when he paid an undercover detective to refrain from \ninvestigating narcotics crimes in the area. The defendant appealed, claiming the \njury should have been instructed on the lesser included offense of offering gifts \nto state police officers. Did the Supreme Court of Connecticut uphold the defendant's bribery conviction? Why or why not? The case is available at this \nlink: http://scholar.google.com/scholar_case?case=14705028387089517508&q= \n%22State+v.+Carr%22&hl=en&as_sdt=2,5. \n3. Read People v. Silverberg, 771 N.Y.S. 2d 274 (2003). In this case, the defendant \nwas convicted of witness tampering for a single telephone call he made to an \nattorney that implied he would send letters to a grievance committee if the \nattorney did not drop charges against him. Did the Supreme Court of New York \nuphold the defendant's conviction? Why or why not? The case is available at this \nlink: http://scholar.google.com/scholar_case?case=3089258849772766127&q= \n%22witness+tampering%22&hl=en&as_sdt=4,33&as_ylo=2003. \nLAW AND ETHICS \nShould Former President Clinton Have Been Criminally Prosecuted for Perjury \nand Obstruction of Justice? \nOn May 6, 1994, Paula Jones filed a civil lawsuit for sexual harassment against \nthen-president Bill Clinton. The US Supreme Court ruled that the president was \nnot immune to this lawsuit, allowing it to continue.Clinton v. Jones, 520 U.S. 681 \n(1997), accessed May 9, 2011, http://www.law.cornell.edu/supct/html/95-\n1853.ZS.html. An investigation pursuant to the Jones lawsuit revealed that the \npresident was currently having an affair with a White House intern, Monica \nLewinsky.\"Presidential Impeachment Proceedings,\" Historyplace.com website, \naccessed May 9, \n2011, http://www.historyplace.com/unitedstates/impeachments/clinton.htm. D\nuring a Jones lawsuit deposition, the president stated under oath that he did not \nhave sexual relations with Ms. Lewinsky pursuant to the definition of sexual \nrelations given by the questioning attorneys.Deposition excerpts, Jones v. Clinton \ndeposition, Historyplace.com website, accessed May 9, \n2011, http://www.historyplace.com/unitedstates/impeachments/jones-\ndeposition.htm. He also stated that he could not recall ever being alone with \nLewinsky at the White House.Deposition excerpts, Jones v. Clinton deposition, \nHistoryplace.com website, accessed May 9, 2011, http://www.historyplace.com/unitedstates/impeachments/jones-\ndeposition.htm. After the deposition, he was involved in an effort to get Ms. \nLewinsky a federal job outside Washington, DC.\"Presidential Impeachment \nProceedings,\" Historyplace.com website, accessed May 9, \n2011, http://www.historyplace.com/unitedstates/impeachments/clinton.htm. Al\nthough the Jones lawsuit was dismissed, the president was evasive when asked \nquestions regarding the Lewinsky affair during a grand jury investigation \ninstigated by Prosecutor and former Solicitor General Kenneth Starr. The evening \nof the grand jury investigation, the president appeared on national TV and \nadmitted, \"Indeed, I did have a relationship with Ms. Lewinsky that was not \nappropriate. In fact, it was wrong. It constituted a critical lapse in judgment and a \npersonal failure on my part for which I am solely and completely \nresponsible.\"\"Presidential Impeachment Proceedings,\" Historyplace.com \nwebsite, accessed May 9, \n2011, http://www.historyplace.com/unitedstates/impeachments/clinton.htm. Th\ne House of Representatives later impeached Clinton for perjury and obstruction \nof justice, based on the statements he made at the grand jury investigation and \nhis conduct during the Jones deposition. After a trial in the Senate, he \nwas acquitted of both counts and thereafter served out his term as \npresident.\"Presidential Impeachment Proceedings,\" Historyplace.com website, \naccessed May 9, \n2011, http://www.historyplace.com/unitedstates/impeachments/clinton.htm. He \nwas never criminally prosecuted for perjury or obstruction of justice outside the \nimpeachment procedure, although he was later disbarred for his behavior.Ann \nGearan, \"Clinton Disbarred by Supreme Court,\" Famguardian.org website, \naccessed May 9, \n2011, http://famguardian.org/Subjects/LawAndGovt/News/ClintonDisbar-\n011001.htm. \n1. Is it ethical to allow the president to avoid a criminal prosecution for perjury and \nobstruction of justice while he is in office? Why or why not? 13.4 End-of-Chapter Material \nSummary \nThe federal government protects national security by primarily regulating crimes \nagainst the United States. One of the only crimes defined in the Constitution, \ntreason, prohibits levying war against the United States, most likely with general \nintent or knowingly, or providing aid and comfort to the enemy with the specific \nintent or purposely to betray the United States, and is graded as a serious felony \nwith all sentencing options available, including capital punishment. The \nConstitution specifies the evidentiary requirement that treason be proven by the \ntestimony of two witnesses or the defendant's confession in open court. Sedition \ncriminalizes the advocating, aiding, organizing, or teaching with general intent or \nknowingly, or publishing, printing, or circulating writings that advocate, aid, or \nteach with specific intent or purposely the forceful or violent overthrow of the US \ngovernment and is graded as a serious felony that can prohibit the defendant \nfrom holding federal office for five years postconviction. Sabotage is destroying, \ndamaging, or defectively producing specified property with specific intent or \npurposely, general intent or knowingly, or negligently to impede national defense \nand is graded as a serious felony. Espionage is gathering or transmitting defense \ninformation with general intent or knowingly or the specific intent or purposely \nto damage the United States or assist any foreign nation, during peace or war, \nand is graded as a serious felony with all range of sentencing options available, \nincluding capital punishment. \nThe federal government also primarily regulates terrorism and terroristic acts \nusing the Omnibus Diplomatic Security and Antiterrorism Act of 1986, the \nAntiterrorism and Effective Death Penalty Act of 1996, and the USA PATRIOT \nAct. The Department of Homeland Security enforces criminal laws targeting \nterrorism. Terrorism is violent acts committed inside (domestic) or outside \n(international) the United States that appear to be intended to influence a civilian population or government by intimidation or to affect the conduct of government \nby mass destruction, assassination, or kidnapping. Currently prohibited as \nterrorism or terroristic conduct are murder, use of a weapon of mass destruction, \nbombing places of public use, financing terrorism, harboring a terrorist, and \nconspiracy or attempt to commit any of the foregoing. The USA PATRIOT Act \nexpands government surveillance capabilities, so it is subject to a Fourth \nAmendment challenge as an unreasonable search, and also prohibits financing \nterrorism, so it is subject to a First Amendment challenge as a prohibition on free \nspeech, freedom of religion, and freedom to associate. \nThe state and federal government both criminalize conduct that impedes the \nadministration of justice, including perjury, bribery, and obstruction of justice. \nPerjury 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 \ngeneral intent or knowingly that the statement is false, in a judicial or official \nproceeding or in a certified writing. The biggest issues encountered in a perjury \nprosecution are proving the validity of the oath, the defendant's criminal intent, \nthe materiality of the false statement, and any requirement of corroborative \nevidence. One defense to perjury is retraction of the false material statement \nduring the same judicial or official proceeding before it becomes manifest that \nthe falsity will be exposed. Many jurisdictions also criminalize perjury committed \nby inconsistent statements made under oath or affirmation in an official or \njudicial proceeding and subornation of perjury, which is procuring another to \ncommit perjury with specific intent or purposely. Perjury and subornation of \nperjury are typically graded as felonies. Bribery is conferring, offering, agreeing \nto confer, or soliciting, accepting, or agreeing to accept a benefit upon a public \nofficial, employee, legislator, participant in a judicial proceeding, or sports official \nwith the specific intent or purposely, or the general intent or knowingly to \ninfluence the bribed individual's decision making. The most difficult bribery \nelement to prove is the criminal intent element. Bribery is typically graded as a \nfelony. Obstruction of justice crimes interfere with the orderly administration of justice. Examples of obstruction of justice offenses are giving false identification \nto a law enforcement officer, impersonating a law enforcement officer, refusing to \naid a law enforcement officer when requested, giving false evidence, hiding or \nconcealing oneself and refusing to give evidence, tampering with evidence, and \ntampering with a witness or juror, with specific intent or purposely, or general \nintent or knowingly. Obstruction of justice is graded as a misdemeanor or felony, \ndepending on the offense. \nYOU BE THE USA \nYou are an assistant US attorney starting your first day on the job. You have been \npresented with four case files and told to review them and recommend criminal \nprosecutions based on the facts. Read each one and then decide which crime \nshould be prosecuted. Check your answers using the answer key at the end of \nthe chapter. \n1. The defendant, an army intelligence analyst stationed near Baghdad, Iraq, \ndownloaded thousands of classified Iraq and Afghanistan documents and \nconfidential cables and released them to an ex-computer hacker who thereafter \nexposed them to the public. Which crime should be \nprosecuted: treason or obstruction of justice? Read about this case at this \nlink: http://coto2.wordpress.com/2011/03/02/bradley-manning-charged-with-\n22-crimes-including-capital-offense-aiding-the-enemy. \n2. The defendant typed up notes while her husband was analyzing sketches of a \ntop-secret bomb's design for the purpose of passing the design on to another \nnation. Which crime should be prosecuted: conspiracy to commit \nespionage or sabotage? Read about this case at this \nlink: http://law2.umkc.edu/faculty/projects/ftrials/rosenb/ROS_ACCT.HTM. \n3. The defendant, a cosmetic company, paid Chinese officials to obtain direct \nlicensing of its product in China. Which crime should be prosecuted: harboring \nterrorists abroad or bribery? Read about this case at this link: http://fashionablyjust.com/2011/05/avon-bribery-case-in-china-an-\nembarrassment. \n4. The defendant, a corrections officer, lied to federal law enforcement during an \ninvestigation of her role in the assault of an inmate. Which crime should be \nprosecuted: perjury or obstruction of justice? Read about this case at this \nlink: http://www.stltoday.com/news/local/crime-and-courts/article_3d7cd11a-\n8f67-11df-bc07-00127992bc8b.html. \nCases of Interest \n\u2022 Kawakita v. U.S., 343 U.S. 717 (1952), discusses a treason conviction \nbased on the treatment of American \nPOWs: http://scholar.google.com/scholar_case?case=1427019188116080\n2490&q= %22treason%22&hl=en&as_sdt=2,5. \n\u2022 U.S. v. Rosen, 445 F.Supp.2d 602 (2006), discusses prosecution under the \nEspionage \nAct: http://scholar.google.com/scholar_case?case=180139897445277223\n25&q= %2218+U.S.C.+793%22&hl=en&as_sdt=2,5. \n\u2022 Schultz v. Sykes, 638 N.W. 2d 604 (2001), discusses the dismissal of a civil \ncase based on subornation of \nperjury: http://scholar.google.com/scholar_case?case=388587652656164\n4390&q=%22subornation \n+of+perjury%22&hl=en&as_sdt=2,5&as_ylo=2000. \nArticles of Interest \n\u2022 Treason prosecutions in modern \ntimes: http://www.nysun.com/editorials/time-of-treason/41533 \n\u2022 The trial of Faisal \nShahzad: http://www.csmonitor.com/USA/Justice/2010/1005/Life-\nsentence-for -Faisal-Shahzad-could-join-shoe-bomber-in-Colorado \u2022 The extension of certain portions of the USA PATRIOT \nAct: http://www.washingtonpost.com/politics/patriot-act-extension-\nsigned-into-law-despite-bipartisan-resistance-in-\ncongress/2011/05/27/AGbVlsCH_story.html \n\u2022 The famous perjury trial of Alger Hiss: http://www.history.com/this-day-\nin-history/alger-hiss -convicted-of-perjury \n\u2022 High-profile bribery \ncases: http://www.reuters.com/article/2010/04/01/bribery-usa-cases-\nidUSN 0121072820100401 \n\u2022 The criminal prosecution of a sitting \npresident: http://www.justice.gov/olc/sitting_president.htm \nWebsites of Interest \n\u2022 The U.S. v. Lindh case: http://notablecases.vaed.uscourts.gov/1:02-cr-\n00037/Index.html \n\u2022 Information about \nterrorism: http://www.fema.gov/hazard/terrorism/index.shtm \n\u2022 Information about the USA PATRIOT \nAct: http://civilrights.uslegal.com/usa-patriot-act \n\u2022 The Department of Homeland Security: http://www.dhs.gov/index.shtm \nStatistics of Interest \n\u2022 Terrorism: http://www.fbi.gov/stats-services/publications \n\u2022 Bribery: http://www.oecd.org/infobycountry/0,3380,en_2649_37447_1_\n1_1_1_37447,00.html \nAnswers to Exercises \nFrom Section 13.1 \"Crimes Involving National Security\" 1. Stephanie has not committed sedition because she did not advocate for \nthe use of force or violence or the commission of an unlawful act. \nStephanie's speech is most likely protected because she might be \nenvisioning a peaceful government overthrow by legitimate means. \n2. The US Court of Appeals for the Eighth Circuit upheld the defendants' \nconvictions for sabotage, stating that the specific intent or purposely to \nimpede the US national defense could be gleaned from the defendants' \nconduct in deliberately damaging the missiles. \n3. The District of Columbia Court of Appeals upheld the defendant's \ndisbarment based on convictions for crimes of moral turpitude, and stated \nthat other than treason, no act was more base, vile, or depraved than an \nintentional act to breach the confidentiality of national defense secrets that \nhave come into the hands of an individual. \nAnswers to Exercises \nFrom Section 13.2 \"Crimes Involving Terrorism\" \n1. Whether or not this is an act of terrorism requires more information. \nAlthough the killing takes place in front of the Pakistani Embassy within \nthe territory of the United States, this evidence is not enough to prove that \nJoshua intended his conduct to influence a civilian population or \ngovernment by intimidation or to affect the government's conduct by \nassassination. The location of the shooting could be a pure coincidence, \nand Joshua could have a nonterroristic motive for the killing, such as \na personal hatred or malice toward Khalid. \n2. The US Court of Appeals for the Ninth Circuit upheld the statute, which \nwas in place before September 11, 2001, and under AEDPA prohibited \ndomestic material support to terrorists and terroristic organizations. The \ncourt held that the statute was not an unconstitutional prohibition on the \nright of free association or expression under the First Amendment, nor did \nit violate federal due process under the Fifth Amendment by granting the secretary of state unfettered and unreviewable authority to designate \norganizations as terroristic. However, the court affirmed the US District \nCourt's decision that portions of the statute defining \"personnel\" and \n\"training\" were unconstitutionally vague. \n3. The US Court of Appeals for the Ninth Circuit upheld the statute against a \nFifth Amendment due process challenge by construing the statute to \nrequire proof that the defendant act with the general intent or knowledge \nof the terrorist organization's designation or of the unlawful activities that \ncaused it to be so designated. \nAnswers to Exercises \nFrom Section 13.3 \"Perjury, Bribery, and Obstruction of Justice\" \n1. The primary issue in Susannah's perjury prosecution is the materiality of \nher false statement made under oath in a judicial proceeding. While \nSusannah was asked her age during routine background questions, her lie \nmight still be material if her advanced age affected her vision because \nSusannah is testifying about an important personal observation. In many \njurisdictions, the trier of fact, which could be a jury, determines the \nmateriality of this statement. \n2. The Supreme Court of Connecticut upheld the defendant's bribery \nconviction, holding that offering gifts to state police officers is not a lesser \nincluded offense of bribery because it requires specific intent, and bribery \nunder Connecticut law is not a specific intent crime. \n3. The New York Supreme Court reversed the defendant's conviction because \nthe defendant did not have a complaint filed against him, so the \"witness\" \nwas not about to testify in a judicial proceeding, which is required under \nthe witness tampering statute. Answer to Law and Ethics Question \n1. The criminal prosecution of a sitting president would set a good example \nfor the citizens of the United States, but it would pose an immense \ndisruption to the orderly functioning of the government without a leader \nor commander in chief of the armed forces and would also expose the \nnation to a security risk. The US Supreme Court decision to allow a civil \nlawsuit against the president forced him to spend time away from office \nattending depositions that were protracted and inordinately time \nconsuming. If the case had not been dismissed, the president would have \nexpended an additional amount of time and effort in preparing for and \ndefending against the Jones lawsuit. A similar and even more time-\nconsuming disruptive process would ensue if a sitting president were to \nbe criminally prosecuted. Not only would the criminal prosecution require \na series of procedures from arrest, indictment, and discovery through \npretrial motions, hearings, and the trial itself, but if the president were to \nbe convicted, the consequences to the nation would be irreparable. It \nmight not be ethical to spare a sitting president a criminal prosecution \nwhen a \"normal person\" would not be spared, but the ethical concerns \nare outweighed by the important interests at stake, and most countries \nwould protect their leaders from this type of legal action while in office. \nAnswers to You Be the USA \n1. This conduct aids the enemy, rather than impeding the administration of \njustice by interfering with law enforcement procedure, criminal \nprosecution, or conviction, so the proper crime to prosecute is treason. \n2. Copying a top-secret design and providing it to another nation is spying, \nrather than destroying, damaging, or producing defective property to \nimpede national defense, so the proper crime to prosecute is conspiracy \nto commit espionage. 3. This payment is made for the purpose of influencing a public official's \ndecision, rather than harboring a terrorist abroad, so the proper crime to \nprosecute is bribery. \n4. The defendant was not under oath when she made the false statement. She \nwas giving false evidence and impeding a law enforcement investigation, \nso the proper crime to prosecute is obstruction of justice."}...
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