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Kan Criminal Law Fall 2018 Outline

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This is an extract of our Kan Criminal Law Fall 2018 document, which we sell as part of our Criminal Law Outlines collection written by the top tier of Barry University School Of Law students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Criminal Law Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Chapter 2

Most states require a unanimous jury verdict

Constitution only requires that a substantial majority of the jurors support the verdict.

The only time a defendant has the burden of proof is for an affirmative defense; otherwise violates due process.
Typical affirmative defenses: insanity, duress, self-defense, necessity, intoxication, and entrapment

Felonies are those crimes that carry a possible sentence of more than one year in jail. (federal law)

Regulatory offenses or infractions are the least serious types of crimes (under misdemeanors)
and typically only carry a fine as punishment. (federal law)

Malum in se crimes are inherently immoral or dangerous, such as murder or fraud.

Malum prohibited violate a specific prohibition of the law, but do not necessarily carry with them moral opprobrium. i.e. traffic offenses

Regulatory crimes, because they carry such minimum punishment, may not require a criminal intent and may be classified as strict liability crimes.

Retributivist theory: holds that a defendant should be "deserves" to be punished because he has violated the rules of society.
Punishment constitutes ∆'s just desserts or payback for having committed the offense o
Often associated with "an eye for an eye"
∆ should be punished regardless of whether other persons will be deterred because society must send a message that its moral norms cannot be violated.

Legitimizes vengeance and inflicting pain even when it cannot be shown that punishment will promote the greater good.

Deterrence o
Utilitarian theory of punishment that holds that we must punish criminals to deter other individuals from committing the same crime.
Premised on the belief that criminals weigh the advantages and disadvantages of their acts before committing a crime.
Punishment increases the cost of criminal behavior and thereby provides a disincentive to commit future crimes.
Philosopher: Bentham o
Two types of deterrence:

General: punishment inflicted to deter others from committing the defendant's crime.

Specific: punishment inflicted to discourage that individual defendant from repeating his criminal behavior.

Considered ineffective in those cases in which a criminal is motivated by emotions, not rational decision.

Questionable whether it is just to punish one person to control the behavior of others.

Utilitarian o
Calls for a defendant to be punished so that he can be trained not to commit crimes. Most jurisdictions have abandoned because it is costly and precedes on the assumption that human beings in prison can and will change their behavior if given the opportunity and incentive to do so.
Incapacitation o
Strictly utilitarian purpose o
Holds that ∆'s should be incarcerated or executed to prevent them from doing further harm to society o
Ex. Three strikes law (mandates life imprisonment for certain offenders)
Costly theory that presumes that defendants will not continue their criminal activity while incarcerated.
Courts look to severity of offense, ∆'s prior history or criminal behavior, and other aggravating and mitigating factors that reflect on the need for punishment (when deciding what theory to apply)
Principle of legality requires that conduct be specifically prohibited by the criminal laws before it may be punished. Also, prohibits laws that are so vague that a person does not have fair notice as to when his behavior constitutes a crime.
Bill of attainder: legislative act that inflicts punishment without a criminal trial o
Ex post facto laws: laws that seek to make criminal an act that was innocent when done.
Purposes of priniciple of legality:
Provides notice as to what conduct is unlawful o
Confines discretion of the police in enforcement of the law o
Prevents judges and juries from arbitrarily creating new crimes o
Ensures that the criminal law only operates prospectively.
Rule of lenity: if there is ambiguity in a statute criminalizing a person's behavior, the interpretation of the statute must be resolved in the defendant's favor.
Proportionality: in deciding whether a sentence is grossly disproportionate, the court examines three factors:
The gravity of the offense compared to the severity of the penalty o
Penalties imposed for other crimes in that jurisdiction ("intra-jurisdictional analysis")
Penalties imposed in other jurisdictions for that same offense ("inter-jurisdictional"

Chapter 3: Elements of a Crime

All crimes require that a defendant commit a voluntary criminal act - an actus reus.

Actus reus may be a positive act, such as hitting another, or an omission, which is a failure to act when there is a legal duty to do so, such as a parent failing to seek medical care for her child.

Act must be voluntary (as long as the person is engaged in conscious and volitional movement,
the act is considered voluntary)

MPC identifies four situations in which many jurisdictions are willing to say that the defendant did not act voluntarily o
Reflex or convulsion o
Bodily movement during unconsciousness or sleep o
Bodily movement under hypnotic suggestion o
Bodily movement not otherwise the product of the effort or determination of the actor,
either conscious or habitual.

MPC: as long as the defendant's action "includes" a voluntary act, the defendant is culpable. 

Although the general rule is that omission is not an actus reus, an omission may satisfy the actus reus requirement for a crime if the defendant has a duty to act and fails to do so. The duty to act may arise from several sources:
A statute o
A status relationship o
A contractual agreement o
Voluntarily assuming the care of another
Although there may be a duty to help, a defendant is ordinarily excused from that duty unless she can fulfill it without harming herself
Some fact situations can be analyzed as either positive acts or omissions.
MPC: possession itself may be a crime, but the MPC requires that the defendant at least be aware that she is in control of the item illegally possessed and have sufficient time to terminate possession.
It is not enough for ∆ to be found with contraband. For the actus reus component, the ∆
must be aware that she has the contraband and does not try to discard it.
Actus non facit reum, nisi mens sit rea: there is no crime without a vicious will
Culpability is the extent to which a defendant's mental state shows the defendant deserves to be punished for his acts.
Mens rea: focuses on levels of awareness and intention with which the ∆ acted

i.e. did the ∆ purposely cause a harm or was the harm the result of the defendant's carelessness?
The person who purposely harms another is most deserving of punishment under a retribution theory of punishment.
Because that person is considering her acts before committing them, the person who acts purposefully should be subject to deterrence.
The most serious crimes ordinarily require that the ∆ acted intentionally in committing the crime; the less serious crimes may impose criminal responsibility for careless, but unintentional,
Common law and MPC take same approach in which "maliciously" was interpreted to require at least reckless conduct.
Absent a statute that clearly indicates otherwise, criminal violations require a ∆ act with at least a reckless state of mind.
Maliciously: the ∆ realizes the risks her conduct creates and engages in the conduct anyway o
MPC term for this level of intent is recklessness o
∆ foresaw that his acts might cause harm, but he nevertheless engaged in them.
Some situations, it has meant that the ∆ had the purpose to cause a specific harmful result o
Can also refer to situations in which the defendant is aware of the harm she is likely to cause, although the harm is not her primary aim.
Negligently: generally, under common law, means not exercising the standard of care a reasonable person would under the circumstances
Willfully: common law o
Sometimes it means doing an act with the purpose of violating the law o
Can also cover situations in which ∆ doesn't necessarily want to protest the laws, but intentionally does an act that has illegal consequences.
MPC Terms (in order of level of intent) Purposely: if it is the ∆'s goal or aim to engage in particular conduct or achieve a certain result.

The phrase "intent to" is often used in criminal statutes to indicate that the ∆
must have a specific purpose in mind when she commits an unlawful act. i.e. burglary.

If the phrase "specific intent to" is used in a statute, that is also a signal that the level of mens rea is purposely. A lower level of intent will satisfy.
Knowingly: a person acts knowingly if she is virtually or practically certain that her conduct will lead to a particular result.

Deliberate/willful ignorance doctrine or the ostrich defense

Courts often recognize that conscious avoidance of confirming the contents of the suitcase is the equivalent of knowing the contents and therefore the ∆'s willful blindness is not a defense.
Recklessly: if she realizes that there is a substantial and unjustifiable risk that her conduct will cause harm but consciously disregards the risk.

Gross deviation from the conduct of a law-abiding person when the ∆ knew she was taking a risk makes the ∆'s intent reckless.

Recklessness is the minimum mens rea standard for most crimes.

Aka general intent or maliciousness o
Negligently: if she is unaware of and takes a risk that an ordinary person would not take.

An objective standard

Focus not on ∆'s state of mind, but on what an ordinary person would have known and done in the ∆'s situation.
MPC: if a statute defining an offense "prescribes the kind of culpability that is sufficient for the commission of the offense, without distinguishing among the material elements thereof," a court should interpret the designated level of culpability as applying to every material element of the offense "unless a contrary purpose plainly appears."
If the statute provides for different culpability levels for different clauses of the statutory provisions, then the court should follow the language of the statute.
General intent crimes are those that only require that the defendant intend to commit the act that causes the harm.
∆ need not intend the consequences of her acts o
By acting in a reckless manner, ∆ may satisfy the requirements of general intent
Specific intent refers to crimes that require a higher level of intent o
Prosecution must prove that the ∆ acted either with the specific purpose to cause the harm or while knowing the harm would result o
Many statutes use the words "with intent to" to describe the crime as a specific intent offense o
The requirement that the ∆ have a specific purpose when she engages in her unlawful conduct makes the crime a specific intent crime.
Whether a crime is a specific or general intent crime becomes most important when the ∆ raises a defense, such as intoxication or diminished capacity, in which the ∆ claims she could not have formed the purposeful intent required to be guilty of the charged offense.
For there to be a crime, a ∆ must have a culpable mens rea at the time she commits her actus reus.

Chapter 4: Strict liability Crimes 

Strict liability crimes are those crimes in which the ∆ is guilty, even if he honestly and reasonable believes his conduct was proper.
The prosecution has no responsibility of proving a culpable mens rea.
Once the prosecution has established that the ∆ committed a wrongful act, the ∆
automatically guilty regardless of whether he acted purposely, knowingly, recklessly, or even negligently.
MPC has rejected the concept of strict liability crimes, except for violations that cannot result in imprisonment or probation.
Strict liability is typically imposed for two types of crimes: public welfare offenses and common law mortality crimes.
Public welfare offenses:
Traffic violations, improper handling of food and pharmaceuticals, and unsafe conditions at power plants o
A ∆ charged with one of these crimes is guilty regardless of whether he intended any harm or even if a reasonable person would have made the same mistake.
∆ is automatically guilty upon committing of the crime o
Most common is speeding
Morality Offenses o
Statutory rape, bigamy, and adultery
Common law crimes are presumed not to be strict liability crimes even of the statute codifying that offense does not expressly mention a mens rea requirement o
Even though the statute did not use any mens rea language, mens rea is a requirement of all crimes unless there is clear legislative intent not to require mens rea.
Under MPC, if a mens rea is required and not otherwise specified, the ∆ must act recklessly when committing the offense.
To determine whether a crime is strict liability:
First, look at statute language

If it expressly states that no mens rea is required, it is strict liability

If it merely omits language of intent, move to step two.
Second, look at the legislative history of offense

Some laws, such as child pornography laws, will have clear legislative history that states that a ∆ who distributes such materials is guilty regardless of whether he knows the age of the child in the pornographic photos.
Third, look at the purpose of the law and the amount of penalty imposed.

Except for common law strict liability crimes, strict liability offenses generally carry very low penalties, such as fines or minimal jail time.

The more the crime seems like a regulatory offense, the easier it is for the prosecution to argue that it is a strict liability crime o
Finally, look for signs that the legislature wanted to relieve the prosecution of the burden of proving mens rea, often because of the number of violations that occur under the questioned statute.
Even though mens rea is not an element of a strict liability crime, actus reus is.
A ∆ must always voluntarily engage in an illegal act, even in strict liability crimes.
A ∆ who acts involuntarily may have a defense to a strict liability crime.
Vicarious liability: the responsibility of the defendant for the criminal acts of another person,
ordinarily without a showing that the defendant has a culpable mens rea.
"good faith" defense to strict liability crimes


Way to amerliorate the harsh effects of strict liability crimes
Do not require prosecution to prove mens rea, but they allow the defense to prove a lack of culpable mens rea

Chapter 5: Mistake of Fact

Mistake of fact: a claim that the ∆ did not have necessary mens rea for the crime because the ∆
made a mistake or was ignorant of a fact she has to know to be guilty of the charged offense.

May be raised either during the prosecutions presentation of its case (through crossexamination of prosecutions witnesses) or in the defense's case.

If successful, it is a complete defense.

Focus on whether, despite her ignorance or mistake, the ∆ knew enough to be guilty of the crime.
If she does, it isn't a defense. If she doesn't, it is one.

If the crime is labeled a specific intent offense, it is much more likely that the defendant will be entitled to a mistake of fact defense than if the crime has been labeled a general intent offense.

Step one: understand how a ∆'s mistake may affect whether the ∆ had the necessary mens rea for the offense.
MPC: "ignorance or mistake is a defense when it negatives the existence of a state of mind that is essential to the commission of an offense."

Basic question of whether the mistake has caused the ∆ not to have the required mens rea for the offense. If so, it is a defense.

A mistake of fact only matters if it shows that the ∆ didn't know something she needed to know to be guilty of the crime. Once she knows these facts, the other mistakes do not matter.

The crucial qusetions for mistake of fact cases are: which facts does the defendant need to know to be found guilty, and which facts, although part of the definition of a crime, do not require the defendant's knowledge? How do we determine which mistakes of fact trigger the defense and which do not?

MPC: a fact that the ∆ needs to know is considered to be a "material" element.
Elements that relate to the harm or evil the offense is designed to prevent.
The type of elements that help us judge whether a ∆ should be punished for her behavior.

"Jurisdictional only" elements do not relate directly to the harm or evil the offense addresses.
Dictate which court has jurisdiction to decide the case o
If a ∆ makes a mistake as to a jurisdictional element, there is no mistake of fact defense.

Under common law, many courts characterize offenses as general intent crimes if they don't require that the defendant have the specific intent to defraud a particular type of agency or injure a particular type of office.
Chapter 6: Mistake of Law

Three categories of cases in which mistake of law is a defense:
When mistake of law operates like mistake of fact

There are some occassions when a statute requires that a ∆ "knowingly violate the law." if the defendant doesn't know what the law requires, the ∆ is not guilty of violating the law.

When the element of the crime require that the ∆ know what the law requires but lacks the mens rea for this element because of his ignorance or mistake of the law. 

MPC: "ignorance or mistake as to the matter of fact or law is a defense if the ignorance or mistake negatives the purpose, knowledge, belief, recklessness, or negligence required to establish a material element of the offense."
When a ∆ has been misled by a judicial authority or official misstatement of the law

In those situations the government is estopped from claiming that the ∆'s legal error is not a defense.

MPC: a ∆ may be misled either by reliance on a judicial decision, reliance on an invalid statute, reliance on an administrative order, or, in rare situations, reliance on an official interpretation of the law.
Very narrow category of crimes in which the ∆ may claim ignorance or mistake of law because there has been insufficient notice of the ∆'s legal duty

MPC: if a law-abiding and prudent person would not have learned of the law's existence, the ∆ may argue ignorance of the law.
Despite these exceptions, the general rule is that mistake or ignorance of the law is no defense.

Chapter 7: Causation

Actus Reus + Mens Rea
Result = Crime

Causation refers to the connection between the ∆'s acts and resulting harm.

Issue that generally arises only in the context of those crimes requiring specific results.

Two step process:
Is there actual cause ("but for" cause)?

Was the ∆ a link in the chain of causation?

Cause in fact

The but for test does not require that the ∆ be the sole or exclusive factor in the victim's death.

When there are multiple causes for a harm, the causes are called concurrent causes.

Acceleration theory: a ∆ who hastens death has still met the but for test, so long as there is sufficient evidence that the ∆'s acts hastened the victims demise.
Is there proximate cause ("legal" cause)?

Were the ∆'s actions a sufficiently direct cause of the harm to warrant imposing criminal liability?

Proximate cause is the term historically used to designate those situations in which a ∆ is held responsible.

MPC: the term legal cause is used in lieu of the common law term proximate cause

Factors that guide courts and juries in determining whether a ∆ should be held criminally responsible for the harm that her actions caused:

Consider whether the harm was foreseeable

Whether intervening acts should break the chain of causation and relieve the ∆ of criminal responsibility

Direct Cause

The harm to the victim is foreseeable and there are no intervening acts to account for the death.

Proximate cause clearly established.

Intervening causes

Acts of nature

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