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Check Sound Check Mike

Check Sound Check Mike. Time. Today’s Lecture: . Criminal Law & Procedure 1. Affirmative Defenses 2. Mental State 3. Miranda. Lecture Organization:. Class Announcements. Review. Affirmative Defenses. Mental State & Its Defenses. Politics of Defining Crime. Miranda.

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Check Sound Check Mike

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  1. Check Sound Check Mike Time

  2. Today’s Lecture: Criminal Law & Procedure 1. Affirmative Defenses 2. Mental State 3. Miranda

  3. Lecture Organization: • Class Announcements • Review • Affirmative Defenses • Mental State & Its Defenses • Politics of Defining Crime • Miranda • Course Evaluations? Time

  4. Class Announcements • 1. Quiz is up • -- 29 or 30 questions • -- 58 minutes • -- all lectures online • -- deadline is Saturday at 10:00 • 2. Final exam • -- expect questions that show you either attended or listened to what you missed • -- you are welcome to bring your book in, but nothing else

  5. Class Announcements • 3. Your Paper • -- 1 inch margins • -- Times New Roman Font, 12 pt. (no courier) • -- page numbering • -- double spaced • (number from the start of the text to the end of the text. Do NOT number cover pages or any back material) • -- don’t put the things in binders! • Grade penalized one half step for missing formatting requirements • -- penalized 1 grade per day (amnesty on Friday) Time

  6. Affirmative Defenses • -- There are two kinds of defenses that exist in criminal law • -- for example, larceny – • (1) taking and carrying away • (2) property of another • (3) with intent to permanently deprive Negation Simply negates an element E.G., (1) I didn’t intend to steal, only to borrow. (2) The property belongs to me. He said I could have it. Anything that negates any of these elements is a “regular” defense. It is premised only upon negating elements. Affirmative Defenses Excuses the crime Actus reas Mens Rea

  7. Affirmative Defenses • -- There are two kinds of defenses that exist in criminal law • -- for example, larceny – • (1) taking and carrying away • (2) property of another • (3) with intent to permanently deprive Negation Simply negates an element E.G., (1) I didn’t intend to steal, only to borrow. (2) The property belongs to me. He said I could have it. Affirmative Defenses Excuses the crime • Affirmative defenses are different • If you have one of these, you are ALLOWED to commit the crime • It’s like have a license or permission to commit the crime • You don’t have to negate anything

  8. Affirmative Defenses 1. self defense Affirmative Defenses • Non-deadly? • -- Reasonable belief • -- of imminent force • (first-aggressor rule) • Deadly? • -- reasonable belief • -- of imminent force • -- that may cause death/serious bodily injury

  9. Affirmative Defenses 1. self defense 2. defense of a dwelling Affirmative Defenses • Non-deadly? • -- Reasonable belief • -- is necessary • -- to prevent unlawful entry/attack upon dwelling • Deadly? • -- never allowed • (trick question on bar exam)

  10. Affirmative Defenses 1. self defense 2. defense of a dwelling 3. defense of property Affirmative Defenses -- Reasonable belief -- that force MUST be used -- to prevent interference with property rights -- the threat must be immediate -- you must own or possess the property (deadly force never allowed.)

  11. Affirmative Defenses 1. self defense 2. defense of a dwelling 3. defense of property 4. defense of others Affirmative Defenses -- Reasonable belief -- that the person you assisted -- had the legal right to defend himself

  12. Affirmative Defenses 1. self defense 2. defense of a dwelling 3. defense of property 4. defense of others 5. prevention of a crime Affirmative Defenses -- SERIOUS crime -- can use reasonable force (deadly allowed only if the crime involves risk to human life)

  13. Deadly force? • Police Officer? • (a) Reasonable Belief • (b) felon threatens death/serious bodily injury • (c) to officers or others • (d) deadly force necessary to prevent escape • Private Citizen? • -- same, except: • felon must be actually guilty of the crime • Non-deadly force? • -- crime in fact committed • -- reasonable grounds to believe the person did it. Criminal law – Elements and Defenses Affirmative Defenses 1. self defense 2. defense of a dwelling 3. defense of property 4. defense of others 5. prevention of a crime 6. stopping a fleeing felon Affirmative Defenses

  14. Affirmative Defenses 1. self defense 2. defense of a dwelling 3. defense of property 4. defense of others 5. prevention of a crime 6. stopping a fleeing felon 7. discipline Affirmative Defenses -- Parents/Guardians -- can use reasonable force -- to discipline a child

  15. Affirmative Defenses 1. self defense 2. defense of a dwelling 3. defense of property 4. defense of others 5. prevention of a crime 6. stopping a fleeing felon 7. discipline 8. consent Affirmative Defenses 1. consent freely given 2. by a party of legal capacity

  16. Affirmative Defenses 1. self defense 2. defense of a dwelling 3. defense of property 4. defense of others 5. prevention of a crime 6. stopping a fleeing felon 7. discipline 8. consent 9. entrapment Affirmative Defenses • 1. Criminal design or intent • 2. originated with law enforcement officers • 3. the defendant was not predisposed to committing the crime (key point!) • Examples -- • -- undercover drug sting • -- New Orleans prostitution • -- child porn mailing Time

  17. Mental State & Its Defenses • -- As a general rule, crimes will require a mental state (mens rea) • -- this is a degree of “mental fault” that must accompany the crime in order for the person to be guilty • -- This is the most important part of the crime for criminal defense lawyers: • Much harder to prosecute crimes that require a high level mental guilt/fault [explained in a moment] • Therefore, the most important defense opportunity may be the negation of mental state • -- let’s have a look … Caveat: these are common law rules (explain why)

  18. Mental State Defenses • Will have a structure to them • Will go from most stringent to least stringent

  19. Mental State Defenses Specific Intent • Toughest standard Requires Knowledge AND Purpose • Need more than mere awareness of act(s) alone; • Need evidence that the D acted purposely to cause the result Example: Burglary 1. unauthorized entry 2. into a dwelling 3. with intent to commit a crime* Hiding from someone? Guy who came through my window *(can’t be trespass) *theft, kidnapping, assault

  20. Mental State Defenses Specific Intent • Toughest standard Requires Knowledge AND Purpose • Need more than mere awareness of act(s) alone; • Need evidence that the D acted purposely to cause the result Example: Larceny Example: Burglary 1. unauthorized entry 2. into a dwelling 3. with intent to commit a crime* Hiding from someone? Guy who came through my window *(can’t be trespass) *theft, kidnapping, assault

  21. Mental State Defenses Specific Intent • Toughest standard Requires Knowledge AND Purpose • Need more than mere awareness of act(s) alone; • Need evidence that the D acted purposely to cause the result Example: Larceny 1. taking/carrying away 2. property of another* 3. with intent to permanently deprive the owner My client & the suitcase My recent vacation *if above a certain value, grand larceny

  22. Mental State Defenses Specific Intent • Toughest standard Requires Knowledge AND Purpose • Need more than mere awareness of act(s) alone; • Need evidence that the D acted purposely to cause the result Example: Larceny 1. taking/carrying away 2. property of another* 3. with intent to permanently deprive the owner Example: First Degree Murder My client & the suitcase My recent vacation *if above a certain value, grand larceny

  23. Mental State Defenses Specific Intent • Toughest standard Requires Knowledge AND Purpose • Need more than mere awareness of act(s) alone; • Need evidence that the D acted purposely to cause the result Example: First Degree Murder 1. “Malice aforethought” (specific objective was trying to kill the person) (no accidental death)

  24. Mental State Defenses Specific Intent • Toughest standard Requires Knowledge AND Purpose Malice • Need more than mere awareness of act(s) alone; • Need evidence that the D acted purposely to cause the result Example: First Degree Murder 1. “Malice aforethought” (specific objective was trying to kill the person) (no accidental death)

  25. Mental State Defenses Specific Intent Malice • Second toughest standard Requires a depraved indifference to human life (“depraved heart crime”). Examples: Terrorism (placing a bomb at the Post Office to explode after midnight)

  26. Mental State Defenses Specific Intent Malice • Second toughest standard Requires a depraved indifference to human life (“depraved heart crime”). Knowledge Examples: Terrorism (placing a bomb at the Post Office to explode after midnight)

  27. Mental State Defenses Specific Intent Malice • Significantly weaker standard Knowledge Mere awareness of the behavior Examples: Someone slips cocaine into your suitcase at an airport. You are busted for possession

  28. Mental State Defenses Specific Intent Malice • Significantly weaker standard Knowledge Mere awareness of the behavior Example: Voluntary Manslaughter “Heat of passion killing” (police officer catching someone else in bed with spouse after work)

  29. Mental State Defenses Specific Intent Malice • Significantly weaker standard Knowledge Mere awareness of the behavior Recklessness Example: Voluntary Manslaughter “Heat of passion killing” (police officer catching someone else in bed with spouse after work)

  30. Mental State Defenses Specific Intent Malice Example: California dog case (Two lawyers owned a pit bull, and it killed a child next door) Knowledge Recklessness • Extremely low standard Requires something MORE than ordinary negligence. “Gross negligence” “criminal negligence”

  31. Mental State Defenses Specific Intent Malice Example: California dog case (Two lawyers owned a pit bull, and it killed a child next door) Knowledge Recklessness • Extremely low standard Requires something MORE than ordinary negligence. “Gross negligence” “criminal negligence” Strict Liability

  32. Mental State Defenses • -- As a general rule, the Constitution does not allow strict liability crimes (all crimes must have mens rea) • -- But the exception is for traffic crimes and “regulatory crimes” • (e.g., speeding & food inspection laws) • -- it does not matter if you did not know the speed or even if you should not have known it • -- Court held: violated Due Process. Non-petty crimes must have some kind of fault requirement Specific Intent Malice Knowledge Question: Why? Is this fair? Lambert v. California Case involving a curfew Recklessness Strict Liability Requires no criminal fault whatsoever!!!

  33. Mental State Defenses • -- legislatures began drafting license crimes in the 80s and 90s that did not specify a mental state • -- Example • driving on a suspended license • [explain the story in West Virginia] • -- in theory, should be a good defense to DUI Specific Intent Interesting recent problem Malice Answer: It can’t be knowledge. “I was too drunk to know I was drunk” (would be absurd) Answer: To be consistent with the Constitution, it must be some kind of criminal negligence Knowledge Question: What is mens rea for for DUI? Spiked-drink theory? Recklessness Strict Liability Requires no criminal fault whatsoever!!!

  34. Mental State Defenses We want to consider an extremely important defense that may negate the mental state: • -- legislatures began drafting license crimes in the 80s and 90s that did not specify a mental state • -- Example • driving on a suspended license • [explain the story in West Virginia] • -- in theory, should be a good defense to DUI Specific Intent Interesting recent problem Malice Knowledge Spiked-drink theory? Recklessness Strict Liability Requires no criminal fault whatsoever!!!

  35. Mental State Defenses We want to consider an extremely important defense that may negate the mental state: Specific Intent Reasonable Mistake of Fact: Malice “I thought the gun wasn’t loaded” Knowledge “I thought I had permission to enter the house” “I thought the powder he gave me was pregnenolone, not cocaine Recklessness “I thought the license wasn’t suspended” Strict Liability

  36. Mental State Defenses We want to consider an extremely important defense that may negate the mental state: Specific Intent Reasonable Mistake of Fact: Malice “I thought the gun wasn’t loaded” Question: What do you think the mental state requirement is for the crime of rape? Knowledge “I thought I had permission to enter the house” “I thought the powder he gave me was pregnenolone, not cocaine Recklessness “I thought the license wasn’t suspended” Strict Liability

  37. Mental State Defenses Specific Intent • 1. having sex • 2. without permission • “he/she consented” • “I THOUGHT he/she consented” Malice Actus reas: Knowledge Mens rea? Recklessness Negates the act Strict Liability Example: Kobe Bryant Time Negates the mental state

  38. The Politics of Defining Crime • -- In order to get around the mental state requirement, legislatures have found an interesting little maneuver • (a) specify as LOW of a level of fault as possible • (b) turn one criminal act into multiple criminal acts • -- Example: drugs laws “Piling on” • -- The “regular” crime • possession & possession with intent to distribute • -- Then you have the “add ons:” • commission of a crime with a firearm • commission of a drug felony with a beeper or electronic communication device • possessing paraphernalia • selling within 1,000 feet of a school

  39. The Politics of Defining Crime • -- In order to get around the mental state requirement, legislatures have found an interesting little maneuver • (a) specify as LOW of a level of fault as possible • (b) turn one criminal act into multiple criminal acts • -- Example: drugs laws “Piling on” • -- The “regular” crime • possession & possession with intent to distribute • -- Then you have the “add ons:” • commission of a crime with a firearm • commission of a drug felony with a beeper or electronic communication device • possessing paraphernalia • selling within 1,000 feet of a school -- Turning 1 felony into 7 -- Most of them have a low-level of fault

  40. The Politics of Defining Crime • -- In order to get around the mental state requirement, legislatures have found an interesting little maneuver • (a) specify as LOW of a level of fault as possible • (b) turn one criminal act into multiple criminal acts • -- Example: drugs laws “Piling on” • -- The “regular” crime • possession & possession with intent to distribute • -- Then you have the “add ons:” • commission of a crime with a firearm • commission of a drug felony with a beeper or electronic communication device • possessing paraphernalia • selling within 1,000 feet of a school • -- Why not include: • Planning a crime for more than seven days? • Being the mastermind of the planning? • Planning 1,000 feet near a school • Planning too close to a church • Using a computer to help you commit a crime

  41. Miranda • -- Having looked at elements, affirmative defenses, & mental state, let’s examine some issues in criminal procedure • -- There are two basic things that any police officer is going to seek when he/she wants to arrest you: • (a) your statements (“talking) • (b) your things (documents, possessions, tangibles) • -- Each of these involves a different provision of the constitution: 5th Amendment self incrimination 4th Amendment search and seizure

  42. Miranda • -- The Fifth Amendment says the following: • -- “being a witness” is a colorful expression. It isn’t limited to actually testifying – it means giving any verbal ammunition at all (statements, conversations, etc.) • -- Because the Constitution says this, the Warren Court justices decided that it would be nice if police officers warned you about this before they arrested you. (Miranda v. Arizona) • I’ve always thought the ruling was kind of strange [explain] • Does policing entail counseling? (Idealism about police work?) No person shall be compelled in any criminal case to be a witness against himself • Hence the famous warnings: • “you have a right to remain silent. Anything you say can and will be used against you. You have a right to an attorney during question. If you can’t afford one, an attorney will be appointed to your case.”

  43. Miranda • -- There is also something in the law called the “exclusionary rule.” • -- Hence, if police officers violate Miranda and obtain utterances before giving the warnings, the evidence is thrown out (theoretically) • -- But the problem is that Miranda has all kinds of exceptions to it that I will now explain • -- First, let’s take a look at Miranda’s basic formula If a police officer gathers evidence in violation of the Constitution, it cannot be used in the trial Custody + Interrogation < “Waive” \ “P.S.E.”

  44. Miranda • 1. reasonable belief • 2. that you are not free to leave the scene • does not include routine traffic stops • the officer intent is irrelevant – your mindset matters • “He’s not a suspect; we just want to talk” • A. express questioning • B. when police know/should know that their conduct will illicit damaging information Custody Interrogation Example -- cellmates OR

  45. Miranda • If you have custody and interrogation, the warnings must be given, UNLESS: • -- oral or written • -- blurting!!! • (Illustration) • PSE = Public Safety Emergency • 1. police need to find quick answers • 2. to a public safety emergency Waiver Example: D sits in the back of a car (prolonged silence) P.S.E. example: missing gun at the crime scene

  46. Miranda • -- Hence, we have the formula: • (Note: there is another exception that I will give you tomorrow. It arises out of 4th Amendment cases). • -- a formality. (a form to sign at the station house) • -- doesn’t interfere with police officers • -- probably was never a great idea to begin with • --”Officer, is this a custodial situation? Am I free to leave?” Custody + Interrogation < “Waive” \ “P.S.E.” What Miranda has become Answer: You can violate the Constitution and force the defendant to stay off the stand! Answer: The evidence can STILL be used for impeachment purposes! Trick Question: What happens if Miranda is violated? Question: How might this affect theory construction (“false theories”)? Final word of advice

  47. Class Evaluations • -- Good and Bad: Be specific • -- online lectures • -- website fora • Website

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