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Capital PunishmentI believe capital punishment is the wrong way
to go except for the deterring effect. The reason is because for one some people are not afraid to die or may rather die than to rot in jail for consecutive life sentences. A better
and worse punishment would be extreme community service, tie the old ball and chain
and make them work on roads, mines or other places. Another reason is that the
charged person may be one day accidentally mistaken and be actually innocent. You can’t
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The act necessary to constitute a crime may also be the failure to act (an act of omission). There first must be a legal duty to act. A moral duty is
insufficient to establish an act of omission.
The legal duty to act arises primarily from statutory sources establishing legal relationships between parties.
Examples of a legal duty to act and an act of omission: the party who causes an accident or puts someone in harm’s way has a duty to provide assistance, a parent always has a duty to protect their children, and duties established by contractual relationships between parties.
commission of a crime where specific intent to commit the crime is not present. Refers to the intent to commit the act required for a crime.
General intent usually applies to situations where a crime is committed, but the defendant does not intend to bring about a particular social harm (crime). General intent may be presumed form the act itself.
Examples: Fishing without a license (not knowing a license is required), nude sunbathing (not knowing the beach is public), trespassing (not knowing you are on private property), and murder (shooting into a house not knowing it was occupied). Copyright (c) Allyn & Bacon 2008
The state of mind required for the commission of a crime where the intent to commit a specific crime is present. Refers to the intent to accomplish the precise criminal act
with which the defendant is charged. Specific intent of the crime cannot be presumed, it must be proven.
Requires scienter: the degree of knowledge making a person criminally liable for his or her physical acts.
Examples: Traditional Crimes: murder, robbery, assault, larceny, burglary, forgery, theft, attempt, solicitation, and conspiracy.
(a) Purposely.A person acts purposely with respect to a
material element of an offense when:(i) if the element involves the nature of his
conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and(ii) if the element involves the attendant
circumstances, he is aware of the existence of such circumstances or he believes or
(b) Knowingly.A person acts knowingly with respect to a
material element of an offense when:(i) if the element involves the nature of his
conduct or the attendant circumstances, he is aware that his conduct is of that nature or
that such circumstances exist; and(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a
(c) Recklessly.A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree
that, considering the nature and purpose of the actor's conduct and the circumstances
known to him, its disregard involves a gross deviation from the standard of conduct that a
law-abiding person would observe in the actor's situation.
(d) Negligently.A person acts negligently with respect to a
material element of an offense when he should be aware of a substantial and
unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree
that the actor's failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the
standard of care that a reasonable person would observe in the actor's situation.
• Concurrence of a Criminal Act and a Criminal State of Mind
• Causation = A relationship between two phenomena in which the occurrence of the former brings about change in the latter. In the legal sense, causation is the element of a crime that requires the existence of a causal relationship between the offender’s conduct and the particular harmful consequences.
• Concurrence of a Criminal Act and a Criminal State of Mind
• Causation = A relationship between two phenomena in which the occurrence of the former brings about change in the latter. In the legal sense, causation is the element of a crime that requires the existence of a causal relationship between the offender’s conduct and the particular harmful consequences.
SPECIAL INTENT• Constructive Intent: actor does not intend to cause harm but
should have known their behavior created a high risk of harm (recklessness).
• Criminal Negligence: gross deviation from the standard of care required of an individual. Creates a substantial unjustified risk of harm to others.
• Transferred Intent: Refers to situations where a person intends to commit a specific crime, or commit a crime against another person, and then either commits another crime or commits a crime against the wrong person.
• Strict Liability Crimes: No proof of intent is required. Mere proof the defendant committed the act is sufficient for conviction.
Presumptions operate to ease the burden of the government proving intent. Generally, a person is presumed to have intended the natural and probable consequences of their act. Permissible/Rebuttable Presumption: Upon proof of fact A
(the act), the fact finder may presume fact B (the intent) .
Mandatory/Conclusive Presumption: Upon proof of fact A (the act), the fact finder must presume fact B (the intent).
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For criminal responsibility, the actor must have the mental ability to form the necessary intent to commit the crime. Criminal responsibility defenses go to the actor’s lack of capacity (for whatever reason) to form the intent required for the crime.
The age at which children become criminally responsible for their action varies. While all jurisdictions recognize 18 as the universal age of criminal responsibility, as a defense age differs according to jurisdiction. There are, however, a few general rules that guide the courts: Children under the age of 7 are not held criminally responsible for their
acts.
Children between 7 and 14 are presumed to lack the mental capacity to be held criminally responsible for their acts (but, this is a rebutable presumption).
Children 14 and older are presumed to have the mental capacity to be held criminally responsible for their acts (again, this is a rebutable presumption).
The insanity defense negates the ability of the actor to formulate the required intent to commit the criminal act
Insanity at the time of the offense is a defense that negates criminal responsibility.
Insanity at the time of trial (known as incompetency to stand trial) is not a defense to the crime, but will delay the trial until the defendant is sane (competent) enough to assist in their own defense.
Within the United States, there are five major tests used to determine a defendant’s sanity. M’Naghten Test: Due to a disease of the mind, did the defendant know
what he was doing or did he know it was wrong?
Irresistible Impulse Test: Due to a disease of the mind, was the defendant unable to control his conduct?
Durham Test: Was the criminal act the product of a mental disease or defect?
ALI/MPC: Does the defendant lack the substantial capacity to appreciate the wrongfulness of his conduct or to control it?
Federal Position: Does the defendant lack the capacity to appreciate the wrongfulness of his conduct?
Mental diseases, defects, or stresses that do not completely impair the defendant’s ability to reason and/or appreciate the wrongfulness of their conduct may still diminish the defendant’s criminal responsibility. Diminished responsibility is only a partial defense and does not negate
the crime. At best, the diminished responsibility defense lowers the penalty for the crime.
Diminished responsibility is not a universally recognized defense. Many states reject this partial defense.
Intoxication to the point where the actor, at the time of his conduct, lacks the substantial capacity either to appreciate its criminality or to conform his conduct to the requirements of the law is a complete defense. But, the intoxication must be involuntary.
Involuntary Intoxication I: Actor is tricked into consuming intoxicating substances.
Involuntary Intoxication II: Actor is forced, against his will, to consume intoxicating substances.
Certain syndromes (PMS and BSS) and disorders (PTSD and Nutrition) have been used to argue they cause a biochemical change in the brain and thus diminish/remove the defendant’s capacity to form the necessary intent to commit a criminal act. Where the syndrome/disorder can be shown to negate the element of
intent, or cause the actor to meet the requirements of the insanity defense, courts have in very limited circumstances negated the defendant’s criminal responsibility.
Of all syndrome/disorders, the battered woman syndrome has been the most successful.
A person may use force to protect himself or others. The force used, however, must be proportional to the original threat and it must be necessary to prevent imminent harm. The belief in the imminent harm must be reasonable.
Deadly Force: May only be used to combat imminent and unlawful deadly force.
Non-deadly Force: May be used to prevent imminent and unlawful force.
The rules regarding defending people and defending property are very different.
Defense of Others: In defending other people, an actor may use whatever proportional force is necessary to combat imminent and unlawful force. If the proportional and necessary force is deadly force, so be it.
Defense of Property: Deadly force may never be used to defend property, alone. If the defense is of both property and person, deadly force may be used where it is proportional and necessary.
Sometimes people commit acts because they are forced to do so based upon the evils they face.
Duress: Where there exists the immediate threat to injure or kill, and the threat is reasonable, a person will generally be excused from otherwise criminal conduct brought on by the threat. BUT, duress is not a defense to homicide or crimes involving serious physical injury. If the choice is between killing an innocent person and oneself, one ought to die rather than escape by the murder of an innocent.
Necessity: If a person faces a “choice of evils” he does not cause or contribute to, and he is forced to commit a criminal act based upon this evil, he may be excused for the necessity of his otherwise criminal conduct.
Our legal system very much disfavors defenses based upon mistake. In certain limited circumstances, however, reasonable mistakes that act to negate the required mental state (intent) may be allowed as a defense .
Mistake of Fact or Law? Where the mistake acts to negate the purpose, knowledge, belief, recklessness, or negligence required to establish the necessary intent on the part of the defendant, there may be a complete defense. Example: If a defendant reasonably believes the victim has consented to sex, the intent required for the crime of rape (the intent to have intercourse where there is no consent) is lacking, and there is a defense of mistake to the criminal act.
(720 ILCS 5/4‑8) (from Ch. 38, par. 4‑8) Sec. 4‑8. Ignorance or mistake. (a) A person's ignorance
or mistake as to a matter of either fact or law, except as provided in Section 4‑3(c) above, is a defense if it
negatives the existence of the mental state which the statute prescribes with respect to an element of the
offense. (b) A person's reasonable belief that his conduct does
not constitute an offense is a defense if: (1) The offense is defined by an administrative regulation
or order which is not known to him and has not been published or otherwise made reasonably available to him, and he could not have acquired such knowledge by the
exercise of due diligence pursuant to facts known to him; or
(2) He acts in reliance upon a statute which later is determined to be invalid; or
(3) He acts in reliance upon an order or opinion of an Illinois Appellate or Supreme Court, or a United States appellate court later
overruled or reversed; (4) He acts in reliance upon an official interpretation of the statute, regulation or order defining the offense, made by a public officer or
agency legally authorized to interpret such statute. (c) Although a person's ignorance or mistake of fact or law, or
reasonable belief, described in this Section 4‑‑8 is a defense to the offense charged, he may be convicted of an included offense of which
he would be guilty if the fact or law were as he believed it to be. (d) A defense based upon this Section 4‑‑8 is an affirmative defense.
As criminal acts operate to harm both individuals and society. Accordingly, the general rule is that consent of the victim does not operate as a defense to otherwise criminal activity. Example: A person who assists a terminally ill person commit suicide by pulling the trigger of a gun or giving them poison may be found guilty of manslaughter or even murder.
When the government induces a person to engage in criminal activity they would not ordinarily be predisposed to commit, the entrapment defense is available. The entrapment defense does not operate to justify criminal behavior. Instead, it exists to discourage government misconduct. Entrapment as a defense is not available for crimes of serious bodily harm or injury, or sexual assault. Look for entrapment issues where the government encourages or promotes the criminal behavior in issue.
These defenses are based on constitutional maxims of justice and fairness within the legal system.
Double Jeopardy: Prevents the government from prosecuting the same person for the same crime after either an acquittal or a conviction. BUT, does not prevent the government from retrying the case due to either a hung jury or in some cases, a mistrial .
Statute of Limitations: A jurisdictional requirement that certain crimes be prosecuted within a set period of time. The statute of limitations starts to run when the crime has been, or should have been, discovered. BUT, since this a jurisdiction based defense, if the defendant leaves the jurisdiction this may stop the time limit from running.
• (720 ILCS 5/3‑2) (from Ch. 38, par. 3‑2) Sec. 3‑2. Affirmative defense. (a) "Affirmative defense" means that unless the State's evidence raises the issue involving the alleged defense, the defendant, to raise the issue, must present some evidence thereon. (b) If the issue involved in an affirmative defense, other than insanity, is raised then the State must sustain the burden of proving the defendant guilty beyond a reasonable doubt as to that issue together with all the other elements of the offense. If the affirmative defense of insanity is raised, the defendant bears the burden of proving by clear and convincing evidence his insanity at the time of the offense. (Source: P.A. 89‑404, eff. 8‑20‑95; 90‑593, eff. 6‑19‑98.)
• (720 ILCS 5/3‑1) (from Ch. 38, par. 3‑1) Sec. 3‑1. Presumption of innocence and proof of guilt. Every person is presumed innocent until proved guilty. No person shall be convicted of any offense unless his guilt thereof is proved beyond a reasonable doubt. (Source: Laws 1961, p. 1983.)
• (720 ILCS 5/3‑2) (from Ch. 38, par. 3‑2) Sec. 3‑2. Affirmative defense. (a) "Affirmative defense" means that unless the State's evidence raises the issue involving the alleged defense, the defendant, to raise the issue, must present some evidence thereon. (b) If the issue involved in an affirmative defense, other than insanity, is raised then the State must sustain the burden of proving the defendant guilty beyond a reasonable doubt as to that issue together with all the other elements of the offense. If the affirmative defense of insanity is raised, the defendant bears the burden of proving by clear and convincing evidence his insanity at the time of the offense. (Source: P.A. 89‑404, eff. 8‑20‑95; 90‑593, eff. 6‑19‑98.)