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Criminal Law Outline


  1. Presumption of Innocence

    1. Circumstantial evidence: A conviction upon circumstantial evidence alone is not to be sustained unless the circumstances are inconsistent with any reasonable hypothesis of innocence (Owens v. State)
    2. Directed Verdict: If the evidence is such that reasonable jurymen must have a doubt the judge must require acquittal. If a reasonable doubt might or might not have a reasonable doubt, the case is for the jury.
    3. Jury Nullification: Ultimately the jury has the raw power to acquit for any reason whatsoever. We conclude that the power of the jury to acquit despite not only overwhelming proof of guilt but despite the jury’s belief, beyond a reasonable doubt, in guilt, is not one of the precious attributes of the right to trial by jury. to the extent constitutionally permissible, it should be limited. Efforts to protect and expand it are inconsistent with the real values of our system of criminal justice (State v. Ragland)

  1. Limits of Criminal Law – Policy

    1. The method of the criminal law
      1. The only thing distinguishing a criminal from a civil sanction is the judgment of community condemnation which accompanies and justifies its imposition.
      2. Some scholars have defined crime as any social harm defined and made punishable by law.
    2. Model penal code: ALI developed the model penal code in order to bring coherence to criminal law.
    3. The purpose of the jury system: to defend against exercises of arbitrary power by the government.
    4. Reasonable Doubt: The concept of reasonable doubt is inherently qualitative. Any attempt to quantify may impermissibly lower the prosecution’s burden of proof.


  1. Theories of Punishment

    1. What is punishment?
      1. It is performed by and directed at agents who are responsible in some sense.
      2. It involves designedly harmful or unpleasant consequences
      3. The unpleasant consequences are usually preceded by a judgment of condemnation.
      4. The punishment is imposed by someone who has the authority to do so.
      5. It is imposed for a breach of some established rule of behavior on the actual or supposed violator of the rule.
    2. Retributivism: Retributivism is based on the principle that people who commit crimes deserve punishment. The moral culpability of the offender gives society a duty to punish.
      1. Negative Retribution: It is morally wrong to punish an innocent person even if society would benefit from the action.
      2. Positive Retribution: Not only must an innocent person never be punished but one who is guilty of an offense must be punished.
    3. Utilitariansim: Punishment is justified on the basis of the supposed benefits that will accrue from its imposition.
      1. General deterrence: Knowledge that punishment will follow crime deters people from committing crimes.
      2. Individual (specific) Deterrence: To deter an offender from repeating his actions, a penalty should be severe enough to outweigh in his mind the benefits of the crime.
      3. Incapacitation: Temporarily puts convicted criminals out of general circulation.
      4. Reform: Punishment may help to reform the criminal so that his wish to commit crimes will be lessened.

  1. How much Punishment should be Enforced?

    1. By using a firearm in the commission of the crime, a defendant is presumptively ineligible for probation except in unusual cases where the interests of justice would best be served if the person is granted probation.
    2. The following facts may indicate the existence of an unusual case in which probation may be granted if otherwise appropriate: A fact or circumstance not amounting to a defense, but reducing defendant’s culpability for the offense, including: (i) Defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense, and the defendant has no recent record of committing crimes of violence. (ii) The crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation. (iii) The defendant is youthful or aged, and has no significant record of prior criminal offenses.
    3. Criteria affecting the decision to grant or deny probation include: Facts relating to the crime, including: (1) The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime. (2) Whether the defendant was armed with or used a weapon. (3) The vulnerability of the victim. (4) Whether the defendant inflicted physical or emotional injury. (5) The degree of monetary loss to the victim. (6) Whether the defendant was an active or passive participant. (7) Whether the crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur. (8) Whether the manner in which the crime was carried out demonstrated criminal sophistication or professionalism on the part of the defendant. (9) Whether the defendant took advantage of a position of trust or confidence to commit the crime.
  1. Proportionality of Punishment
    1. 8th Amendment: Excessive bail shall not be required, not excessive fines imposed, nor crime and unusual punishment inflicted. nThe 8th amendment does not require strict proportionality between crime and sentence, rather it forbids only extreme sentences that are grossly disproportionate to the crime. The death penalty is disproportionate punishment for the crime of rape. A punishment is “excessive” and unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime. Statutory aggravating circumstances must be found before the death penalty may be imposed. (Coker v. Georgia)Trial courts may avoid imposing a three strikes sentence in two ways: first, by reducing “wobblers” to misdemeanors (which do not qualify as triggering offenses), and second, by vacating allegations of prior “serious” or “violent” felony convictions. (Ewing v. California)Factors relating to a determination of whether a sentence is so disproportionate that it violates the 8th amendment: 1) gravity of the offense and the harshness of the penalty; 2) sentences imposed on other criminals in the same jurisdiction; 3) sentences imposed for the commission of the same crime in other jurisdictions (Solem v. Helm)

Voir dire: A preliminary examination of a prospective juror by a judge or lawyer to decide whether the prospect is qualified and suitable to serve on a jury.

Peremptory challenges: One of a limited number of challenges that do not need to be supported by a reason.

Due process: The conduct of legal proceedings according to established rules and principles for the protection & enforcement of private rights.

Plurality: The greatest number regardless of whether it’s a majority.


  1. Principle of Legality and Statutory Interpretation

    1. Nullem crimen sine lege; nulla poena sine lege. No crime without law, no punishment without law. The principle of legality has been characterized as the first and most important principle of criminal law.
    2. The principle of legality prohibits judicial crime creation. Courts cannot create an offense by enlarging a statute. Penal statutes will not be made to reach beyond their plain intent.
    3. The first essential of due process is fair warning of the act which is made punishable as a crime.
    4. Void for vagueness: Where statue is susceptible to both a constitutional and an unconstitutional interpretation, the court should adopt the interpretation resulting in a finding of constitutionality.
    5. The intent of the legislature controls the interpretation of the statute.
    6. Lenity doctrine: If a statute can be reasonably interpreted as favorable either to the government or to the individual, the statute should be read in the light favorable to the individual.
    7. Selective enforcement: Ordinances that prohibit vagrancy or loitering have been attacked on constitutional grounds because they give virtually unfettered discretion to police and prosecutors to arrest anyone whose conduct or lifestyle bother them.
    8. Vagueness may invalidate a criminal law for either of two reasons: 1) It may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; 2) It may authorize and/or encourage arbitrary enforcement.
    9. The mere possibility of articulating a narrower construction does not by itself make the rule of lenity applicable.

Writ: A court’s written order commanding the addressee to do or refrain from doing some specified act.

Writ of certiorari: An extraordinary writ issued by an appellate court, at its discretion, directing a lower court to deliver the record in the case for review. Supreme Court uses certiorari to review most of the cases it decides to hear.

Indicia: Circumstances which tend to show or indicate that something is probable.


  1. Voluntary Acts

    1. Actus Reus: The physical or external part of the crime
    2. MensRea: The mental or internal ingredient
    3. Result Crime: The offense seeks to prevent or punish a harmful result.
    4. Conduct crime: No bad result is required to be guilty of such an offense. The law prohibits specific, dangerous behavior.
    5. An accusation of drunkenness in a designated public place cannot be established by proof that the accused, while in an intoxicated condition, was voluntarily and forcibly carried to that place by the arresting officer. (martin v. state)
    6. Homicide: The killing of a human being by the act, procurement or omission of another and is either (1) murder, (2) manslaughter, (3) excusable homicide or (4) justifiable homicide.
    7. Automatism: The existence in any person of behavior of which he is unaware and over which he has no conscious control. An act committed while one is unconscious is in reality no act at all. Unconsciousness does not in all cases provide a defense to a crime. When the state of unconsciousness is voluntarily induced through the use and consumption of alcohol or drugs, that state of unconsciousness does not attain the stature of a complete defense.
    8. Manslaughter: criminal intent is not an element of manslaughter.

  1. Omissions

    1. Duty of Care: Under some circumstances the omission of a duty owed by one individual to another, where such omission results in the death of the one to whom the duty is owing, will make the other chargeable with manslaughter. This rule of law is always based upon the proposition that the duty neglected must be a legal duty, and not a mere moral obligation. It must be a duty imposed by law or by contract, and the omission to perform the duty must be the immediate and direct cause of death. (people v. Beardsley)
    2. Failure to act: May constitute a breach of legal duty: 1) where the statute imposes a legal duty; 2) where one stands in a certain relationship status to another; 3) where one has assumed a contractual duty to care for another; 4) where one has voluntarily assumed care for another and so secluded the helpless person as to prevent others from rendering aid.
    3. There is no criminal liability for failure to act unless there is a legal duty to act. (Barber v. Superior Court)
    4. Murder: The unlawful killing of a human being with malice aforethought. Malice can be express or implied. It is express when there is an intent to unlawfully take any life. It is implied when circumstances show an abandoned and malignant heart.

  1. Voluntary Acts & Omissions – Policy

    1. One is responsible only for those consequences that are caused by his actions, and not for those things in which his body, but not his acting self, is casually implicated.
    2. Why does the law permit bystanders to let harm come to others when they could prevent or mitigate the harm at no significant physical risk to themselves? 1) non-doings are inherently more ambiguous than wrongdoings. It is harder to determine motive and culpability of the omitter; 2) Line-drawing problems arise – which of the bystanders assume criminal liability? All of them?; 3) Well-meaning bystanders often make matters worse by intervening.
    3. Absent special circumstances a person has no legal duty to inform the police of another person’s plans to commit a criminal offense. Active concealment of a felony is prohibited, but not simple non-disclosure.
    4. Social Harm:
      1. Some criminal offenses contain both conduct and result elements.
      2. Attendant circumstance: Constitutes part of the actus reus of an offense. It is a condition that must be present in conjunction with the prohibited conduct or result in order to constitute the crime.


  1. Definitions of Mens Rea

    1. Mens rea has both a broad and a narrow holding. The modern trend is to use the term in its narrow context, but both meanings retain significance.
    2. Broad holding – culpability: Mens rea means guilty mind, vicious will, immorality of motive, morally culpable state of mind. A defendant is guilty of a crime if she commits the social harm of the offense with any morally blameworthy state of mind; it is not significant if the social harm was caused intentionally or instead with some other blameworthy mental state (wantonly, willfully, recklessly).
    3. Narrow holding – elemental: The mental state of the defendant with regard to the social harm elements set out in the definition of the offense. A defendant is not guilty of an offense even if she has a culpable frame of mind, if she lacks the mental state specified in the definition of the crime.

  1. Proving culpability

    1. Knowingly: A person knows or acts knowingly or with knowledge of the result of his conduct, described by a statute defining an offense, when he is consciously aware that such result is practically certain to be caused by his conduct. (People v. Conley)
      1. Aggravated battery is the commission of a battery where an offender intentionally or knowingly causes great bodily harm or permanent disability or disfigurement. Because the offense is defined in terms of result, the state has the burden of proving beyond a reasonable doubt that defendant either has a conscious objective to achieve the harm defined, or that defendant is consciously aware that the harm defined is practically certain to be caused by his conduct
    2. Intent: Intent can be inferred from the surrounding circumstances, the offender’s words, the weapon used, and the force of the blow. (People v.Conley).In the context of result crimes, intent ordinarily is defined to include not only the results that are the conscious object of the actor but also those that the actor knows are virtually certain to occur from his conduct, even if he does not want them to arise. The ordinary presumption is that one intends the natural and probable consequences of his actions.
    3. Transferred intent: When a person means to cause harm to one person and accidentally causes it to another, courts typically assert the doctrine of transferred intent.
    4. General intent v. specific intent: culpability & elemental elements of intent
      1. Specific intent: An offense in which the mental state is expressly set out in the definition of the crime. (elemental)
      2. General intent: In some circumstances it refers to offenses where no particular state is set out in the definition of the crime and the prosecutor need only prove actus reus was committed with a morally blameworthy state of mind. (culpability)
    5. General intent v. specific intent: Mens rea element of intent
      1. Specific intent: Used to denote an offense that contains in its definition the mens rea element of intent or knowledge.
      2. General intent: Reserved for crimes that permit conviction on the basis of a less culpable standard such an recklessness or negligence.
    6. General intent v. specific intent: Most common usage
      1. Specific intent: A special mental element which is required above and beyond any mental state required with respect to the actus reus of the crime. 1) an intention to commit some future act separate from the actus reus of the offense; 2) an offense may require proof of a special motive or purpose for committing the actus reus; 3) proof of awareness of an attendant circumstance.
      2. General intent: Any mental state, expressed or implied, in the definition of the offense that relates solely to the acts that constitute the criminal offense.
    7. Model Penal Code:
      1. The code consistently applies an elemental approach to the issue of mens rea. The prosecutor must prove that D committed each material element of the charged offense w/the particular state of mind required in the definition of that crime. Guilt cannot be based on the proof that D committed the actus reus of an offense in a morally blameworthy manner.
      2. Four culpability terms: purposely, knowingly, recklessly, and negligently.
      3. Knowingly & purposely: An actor’s conduct is not purposive unless it was his conscious object to perform an action of that nature or to cause such a result. the Model Penal Code proposes that when knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence. The Model Penal Code proposes that when knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence
      4. Recklessly: Involves conscious risk creation. Less than substantial certain probability of risk. The risk itself must be substantial and unjustifiable. Substantial risks may be created without recklessness when they serve a proper purpose.
      5. Negligently: It does not involve a state of awareness. A person acts negligently when he inadvertently creates a substantial and unjustifiable risk of which he ought to be aware. The substantiality of the risk and the elements of justification in the situation form the relevant standards of judgment.
      6. Willful: 1) Actor intentionally committed the prohibited act; 2) alternatively the term requires proof that the actor intentionally performed the prohibited act in bad faith, with a wrongful motive.

  1. Strict Liability

    1. In cases involving public welfare offenses, criminal liability has been permitted to attach without regard to fault.
    2. Some offenses do not expressly possess any mental-state element. All that seemingly must be proved is the actus reus. A statute that is silent regarding mens rea may still be interpreted as requiring at least some minimal level of mens rea.
    3. An offense may contain a mens rea requirement with regard to some but not all elements of an offense. Almost always it is the attendant circumstance that does not require proof of culpability.
    4. Absent a clear statement from Congress that mens rea is not required, a court should not apply the public welfare offense rationale to interpret any statute defining a felony offense as dispensing with mens rea.
    5. Where the law requires a specific intent crime, it is not enough merely to prove that a reasonable man would have had that intent, without meeting the burden of proof that the defendant himself also entertained it. There is no such thing as larceny by negligence. An honest mistake of fact or law is a defense when it negates a required mental element of the crime. (People v. Navarro)
    6. A reasonable mistake of fact, but not an unreasonable one, exculpates a defendant prosecuted for a general intent crime.

  1. Mistake of Law
    1. Mistake of law is a viable exemption in those instances where an individual demonstrates an effort to learn what the law is, relies on the validity of that law and, later, it is determined that there was a mistake in the law itself.
    2. A statute which is so indefinite that it either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law and is unconstitutional.
    3. a defendant’s views about the validity of the tax statutes are irrelevant to the issue of willfulness and need not be heard by the jury. It makes no difference whether the claims of invalidity are frivolous or have substance.

  1. Policy
    1. Transferred intent: (Mosk) It is nothing more than a legal fiction based on the assumption that in its absence the perpetrator could escape liability for murder if he killed an unintended victim. That assumption is based on another assumption that mens rea exists in the perpetrator only in relation to an intended victim. However, requisite intent is the intent to kill a human being, not a specific human being. Confusion can arise when the intent to create one kind of social harm is transferred to another kind of social harm.
    2. Model Penal Code: An element of mental culpability must be proved with respect to each material element of the offense, except for a small class of strict liability offenses for which a sentence no severer than a fine may be imposed.
    3. Strict liability:
      1. Usually criticized on two grounds: 1) it does not deter since by hypothesis the actor is unaware of the facts that render his conduct dangerous. 2) it is unjust to condemn a person who is not morally culpable.
    4. Moral Wrong doctrine: A court may permit conviction of an actor whose mistake was reasonable if the conduct itself was immoral. The intentional commission of an immoral act serves as the requisite blameworthiness to justify conviction
    5. Legal wrong doctrine: If a defendant’s conduct, based on the facts as he believes them to be, constitutes a crime, he may be found guilty of the more serious crime of which he is factually guilty.


  1. Actual Cause (Cause-In-Fact)

    1. But-For Test: A defendant’s conduct is a cause-in-fact of the prohibited result if the said result would not have occurred but for the defendant’s conduct.
    2. Substantial Factor: When two defendants, acting independently and not in concert with one another, commit two separate acts, each of which alone is sufficient to bring about the prohibited result.
    3. Manslaughter: A person is guilty of manslaughter when he recklessly causes the death of another person.
    4. Assault in the second degree: A person is guilty of assault in the second degree when he intentionally causes serious physical injury to another person. The range of punishment is from 2-20 years.

  1. Proximate Cause (Legal Cause)
    1. Doctrine of proximate cause: Serves the purpose of determining who or what events among those that satisfy the but-for standard should be held accountable for the resulting harm. A person or event cannot be a proximate cause of harm unless she is the actual cause, but a person or event can be the actual cause without being the proximate cause.
    2. Issues of proximate cause generally arise when an intervening force exists; when a causal agent comes into play after the defendant’s voluntary act or omission and before the social harm occurs.
    3. A person is guilty of murder in the second degree when under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person. Intent to kill is not a requirement under the statute.
    4. where death is produced by an intervening force the liability of one who put an antecedent force into action will depend on the difficult determination of whether the intervening force was a sufficiently independent or supervening cause of death. the controlling questions are whether the ultimate result was foreseeable to the original actor and whether the victim failed to do something easily within his grasp that would have extricated him from danger. (Kibbe v. Henderson)
    5. Contributory negligence of the victim: Although it is a factor to consider, it is not a defense.
    6. Omissions: No matter how unforeseeable an omission may be, this negative act will not cut off the liability of an earlier positive act.
    7. Intended consequences: If an intentional wrongdoer gets what she wants, even through unforeseeable circumstances, she should not escape criminal responsibility.
    8. Apparent safety: When a person reaches a position of safety the original wrongdoer is no longer responsible for any ensuing harm.
    9. Free, deliberate and informed human intervention: Criminal law does not hold a person responsible for resulting harm if there is an intervening cause that springs from free, deliberate, and informed human action.
    10. Statutory elements to vehicular homicide: are that a the defendant must operate a motor vehicle in a reckless manner likely to cause the death of, or great bodily harm to, another, and this reckless operation of a motor vehicle must be the proximate cause of the death of a human being. There can be no criminal liability for result-type offenses unless it can be shown that the defendant’s conduct was a cause-in-fact of the prohibited result, whether the result be the death of a human being, personal injury to another, or injury to another’s property. A defendant’s reckless operation of a motor vehicle is a cause-in-fact of the death of a human being under Florida’s vehicular homicide statute if the subject death would not have occurred but for the defendant’s reckless driving or would not have happened in the absence of such driving. (velasquez v. state)


  1. Intentional Killings: Degrees of Murder

    1. Circumstances considered in determining Premeditation  & deliberation: 1) want of provocation on the part of the deceased; (2) the conduct and statements of the defendant before and after the killing; (3) threats and declarations of the defendant before and during the course of the occurrence giving rise to the death of the deceased; (4) ill-will or previous difficulty between the parties; (5) the dealing of lethal blows after the deceased has been felled and rendered helpless; and (6) evidence that the killing was done in a brutal manner. The nature and number of the victim’s wounds is a circumstance from which premeditation and deliberation can be inferred.
    2. First-degree murder is the intentional and unlawful killing of a human being with malice and with premeditation and deliberation. Premeditation means that the act was thought out beforehand for some length of time, however short, but no particular amount of time is necessary for the mental process of premeditation. Deliberation means an intent to kill, carried out in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation. The phrase “cool state of blood” means that the defendant’s anger or emotion must not have been such as to overcome his reason.

  1. Intentional Killings: Manslaughter

    1. Under certain circumstances, one who kills another human being in the “heat of passion,” produced by adequate provocation sufficient to negate malice, is guilty of manslaughter rather than murder. A killing in the heat of passion on sudden and adequate provocation means a killing without premeditation under the influence of a sudden passion which renders the mind incapable of cool reflection. Mere words or insulting language, no matter how abusive, can never be adequate provocation and can never reduce murder to manslaughter under the “heat of passion” doctrine. Adequate provocation may be found in an assault or threatened assault, and the discovery of the deceased spouse and a paramour in the act of intercourse.
    2. Facts that mitigate murder to manslaughter: (1) discovering one’s spouse in the act of sexual intercourse with another; (2) mutual combat; (3) assault and battery. There is also authority recognizing injury to one of defendant’s relatives or to a third party and death resulting from resistance of an illegal arrest as adequate provocation for mitigation to manslaughter. Those acts mitigate homicide to manslaughter because they create passion in defendant and are not considered the product of free will.
    3. Requirements of the rule of provocation: 1. There must be adequate provocation; 2. The killing must be in the heat of passion; 3. It must be a sudden heat of passion; the killing must follow the provocation before there is a reasonable opportunity for the passion to cool; and 4. There must be a causal connection between the provocation, the passion, and the fatal act.
    4. Extreme emotional disturbance defense: it is an affirmative defense to the crime of murder in the second degree where the defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse. This defense allows a defendant charged with the commission of acts which would otherwise constitute murder to demonstrate the existence of mitigating factors which indicate that, although he is not free from responsibility for his crime, he ought to be punished less severely by reducing the crime upon conviction to manslaughter in the first degree
    5. The defense of “extreme emotional disturbance” has two principal components: (1) the particular defendant must have “acted under the influence of extreme emotional disturbance,” and (2) there must have been “a reasonable explanation or excuse” for such extreme emotional disturbance, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be. The first requirement is wholly subjective. It involves a determination that the particular defendant did in fact act under extreme emotional disturbance and that the claimed explanation as to the cause of his action is not contrived or sham.

  1. Unintentional Killings (unjustified risk-taking)

    1. The test of implied malice in an unintentional killing is actual appreciation of a high degree of risk that is objectively present. There must be a high probability that the act done will result in death, and it must be done with a base antisocial motive and with wanton disregard for life.
    2. Malice, for the purpose of defining murder, may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. Implied malice is present when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. When it is established that the killing was the result of an intentional act committed with express or implied malice, no other mental state need be shown in order to establish malice aforethought.
    3. The concept of implied malice has both a physical and a mental component. The physical component is satisfied by the performance of an act, the natural consequences of which are dangerous to life. The mental component involves an act deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life. Classification of the underlying offense as a misdemeanor does not in itself preclude a resulting death from constituting murder. The circumstance that an act may be punishable as a misdemeanor does not render it incapable of being performed in a manner that, under the circumstances, is sufficiently dangerous to human life to support a jury’s finding of implied malice. Even if the act results in a death that is accidental, the circumstances surrounding the act may evince implied malice.
    4. Criminal negligence: Refers to the degree of culpability of the defendant’s mental state. It is the least culpable of the defined mental states. Criminal negligence is conduct which amounts to a gross deviation from the standard of care which a reasonable person would exercise in the situation. A person acts with criminal negligence or is criminally negligent when he fails to be aware of a substantial and unjustifiable risk that circumstances exist or a result will follow, and such failure constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.
    5. simple or ordinary negligence: describes a failure to exercise the ordinary caution necessary to make out the defense of excusable homicide. Ordinary caution is the kind of caution that a man of reasonable prudence would exercise under the same or similar conditions. If, therefore, the conduct of a defendant, regardless of his ignorance, good intentions and good faith, fails to measure up to the conduct required of a man of reasonable prudence, he is guilty of ordinary negligence because of his failure to use ordinary caution. If such negligence proximately causes the death of the victim, a defendant is guilty of statutory manslaughter.
    6. Felony-murder rule: provides that all murder which is committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary, mayhem, or lewd acts with a minor, is murder of the first degree. This statute imposes strict liability for deaths committed in the course of one of the enumerated felonies whether the killing was caused intentionally, negligently, or merely accidentally. Malice is imputed and need not be shown. The purpose of the felony-murder rule is to deter felons from killing negligently or accidentally. Flight following a felony is considered part of the same transaction as long as the felon has not reached a place of temporary safety. Whether the defendant has reached such a place of safety is a question of fact for the jury.
    7. A felony is not inherently dangerous to human life unless it carries a high probability of loss of life.
    8. Implied (depraved heart) malice: when D kills a person while committing an act which poses a high probability that it will result in death, trier of fact may infer malice aforethought.
    9. Felony murder: Under the above circumstances, if the felony is inherently dangerous D is seemed to have acted with malice aforethought as a matter of law.
    10. A reviewing court should look first to the primary element of the offense at issue, then to the factors elevating the offense to a felony, to determine whether the felony, taken in the abstract, is inherently dangerous to human life or whether it possibly could be committed without creating such peril.
    11. A second-degree felony-murder instruction may not properly be given when it is based upon a felony that is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged.
    12. Time, distance, and the causal relationship between the underlying felony and a killing are factors to be considered in determining whether the killing occurs in the commission of the underlying felony and the defendant is therefore subject to the felony murder rule.
    13. Felony murder: The agency approach: The majority rule is that the felony-murder doctrine does not apply if the person who directly causes the death is a non-felon.
    14. The thing which is imputed to the felon under the felony-murder doctrine is the malice not the act of killing.
    15. Res gestae
    16. Misdemeanor-manslaughter rule: An unintended homicide that occurs during the commission of an unlawful act not amounting to a felony constitutes common law involuntary manslaughter.

  1. Capital Murder

    1. When a form of punishment in the abstract rather than in the particular is under consideration, the inquiry into “excessiveness” has two aspects. First, the punishment must not involve the unnecessary and wanton infliction of pain. Second, the punishment must not be grossly out of proportion to the severity of the crime.
    2. In order to prevail under the equal protection clause, a defendant must prove that the decision makers in his case acted with discriminatory purpose.
    3. If the state chooses to permit admission of victim impact evidence and prosecutorial argument, the eighth amendment erects no per se bar.
    4. The Court holds that evidence and argument relating to the victim and the impact of the victim’s death on the victim’s family are admissible at a capital sentencing hearing.
    5. Substantial participation in a violent felony under circumstances likely to result in the loss of innocent human life may justify the death penalty even absent intent to kill.
    6. Execution of mentally retarded criminals constitutes cruel and unusual punishment. Executions of murderers who were under 16 at the time of homicide are also barred.

Criminal Law Outline


Written by freelawschooloutlines

October 3, 2009 at 1:05 am

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