Substantive Criminal Law : Week of September 25

25 September

• Review
  • Lesser included offenses
    • The main advantage to a defendant is the fact that the penalty is lesser.
    • And to the system, maybe there's the advantage of more granular, precise justice.
    • Blockburger standard
    • Factual test: does the evidence support both charges, and does a theory support either?
    • There are other situations that fall under the lesser included standard, enumerated in the statute
    • The judge doesn't have to decide that the lesser charge is the right one, just that a jury could possibly see it that way
    • Prosecutor generally wouldn't want to put a lesser included in the charging document, unless they're trying to put together some kind of deal
    • MKE: lack of clerical resources sometimes results in under-charging (i.e., you get informal notice that there might be greater charges: "we have four more like this one"), which you can take advantage of if you plead.
  • Charging discretion
    • Practical considerations, resource limitations, etc., that influence charging decisions. They'll even communicate their policies to LEAs, to conserve resources (i.e., delegate to municipal non- criminal authorities).
    • Screening out charges that shouldn't be brought is a service to the system and the community
  • Venue and jurisdiction over subject matter
    • In WI, this is straightforward: our courts have general jurisdiction over subject matter (i.e., no separation between misdemeanors and felonies)
    • Also, pick a county. This is a minor element, but it can be contested.
  • Notice
    • All elements of the charge must be established
    • Cite the statute, in order to establish notice. Then you can be less stringent about the points of the complaint
    • The five w's. Who, what, where, when, why, and who said so. So that's six. But that's what you need to establish probable cause
    • Need probable cause in order to justify proceeding with the charges; also the defense needs this info in order to prepare a defense.
• Jury instructions for intent, theft, and possession with intent to deliver
  • Intent
    • Intent comes in two main categories (not in the statutes, but in articles, etc.
    • General intent: the defendant intentionally engaged in prohibited conduct. It was not accidental, in other words. OWI is a general intent crime. Lots of the reckless/negligent conduct crimes. You don't intend a specific result. Knowingly is stautorily defined. Like any of the possession crimes (see the jury instructions for this definition, even though the statute doesn't say anything about knowingly).
    • Specific intent: you have a specific result in mind. Like battery: with intent to harm to another person (in a certain way, even, sometimes). §939.23 defines intent:
      • Has a purpose to do a thing or cause a result
      • Is aware that the acts are practically certain to cause a result
      
      The statute also requires knowledge of the fact necessary to make the conduct a criminal act. (i.e., had a mental purpose to cause bodily harm, and had knowledge that there was no consent to the harm)
    • Different states do this slightly differently, and even WI has revised from time to time. IL is pretty confusing.
    • Many (most) affirmative defenses are only available for crimes that involve specific intent (because the defense tends to be directed towards the intent element).
    • Can be proven by acts, words, other facts or circumstances
    • Note that the jury instructions include the possibility that the jury may not be able to determine intent ("...if found at all..."); it is possible to decide that the state has not proved intent beyond a reasonable doubt. (i.e., "you are not required" to find intent, on the jury... the state wants you to, though).
    • Timing of intent, and whether there's motive, are not like on TV. Motive is not required (it can be a part of a circumstantial case). Intent can be pretty ephemeral.
  Some jurisdictions do deputize DAs, but not ours. Some DAs carry glamor badges.
  • Possession with intent to deliver
    • Specific intent: intended to deliver
    • General intent: knew the substance was controlled
    • Note the "street name" clause.
  • Theft
    • Specific: intent to deprive, intentionally take and carry
    • General: knowledge that there was no consent
  • Burglary
    • General: knowledge of no consent
    • Specific: intentionally entered building, intent to steal (this in turn requires the theft-y stuff... recursive intent)
    • The statutory definition of some terms (i.e., building, enter) will influence what kinds of evidence are needed
• State v. Bowden
  Commentary in class
  Appeals based on the claim that the evidence was insufficient are an uphill battle. Intent is often inferred from circumstances. Actually, circumstantial evidence can be more trustworthy than direct evidence: lots of wrongful convictions result from (good faith, but mistaken) eyewitness testimony.

  As a rule, WI does not have assault as a crime. You might find it in some specialized areas (restraining orders, e.g.), but not in the regular statutes. Attempted battery, maybe.

• State v. Midthun
  Commentary in class
  WI has a pretty low threshold for expert testimony-- the judge can decide if the testimony would be helpful to the jury. Intent is inferred from the facts in evidence (i.e., quantity). With this particular crime, there often is more direct evidence (lists of customers, etc.). Or the person says, "it wasn't for me... it was for my cousin." Now they have converted simple possession into intent to deliver, probably because they thought the statement would be an excuse. It's not. It makes things worse.
• Sartin, Sartin, and Pierce v. State
  Commentary in class
  Again, an ode to circumstantial evidence and its value in determining intent. The joyriding statute §943.23(3m) is pretty narrowly defined. Almost all these operating without consent issues are felonious. Note that this is still a fairly unconventional choice of charge.

27 September

• For writing assignments: IRAC. Consider the form as well as getting the right answer.
• Interesting side note: the writing assignment had a date in the middle of TIS reforms... this wasn't an intentional trick, though.
• Don't neglect definitional sections of statutes (i.e., mental states)
• Don't presume that general Issue matters can be presumed: discuss them so that it's known you've picked up on the main source of authority/interest
• Don't miss rules: outline thoroughly
• Homicide: differentiating between common law ("malice aforethought"), MPC, and WI statutes./LI>
  Commentary in class
  Distinctions between gradations of culpability are based on mental states.

  But why is an intentional killing considered more culpable? This is clearly a moral judgment.

• Intents in order of seriousness:
  1. Intentional (or aware that practically certain)
  2. Aggravated recklessness: aware of unreasonable and substantial risk + utter disregard for life
  3. Simple recklessness: aware of unreasonable and substantial risk
  4. Negligence: should realize substantial and unreasonable risk

Commentary in class
We're only willing to go into so much hair-splitting detail about what factors mitigate from one level down to the next (i.e., how provoked do you need to be, etc.).

Note also that many of the extra kinds of offenses (e.g., homicide by intoxicated use of motor vehicles) could easily be classed in one of the main categories. They get their own special treatment for a variety of reasons.

• There are mitigating factors: provocation, duress, etc.
• Negligent homicides: those committed with a vehicle (less serious) and those with a weapon (more serious)
• Strict liability homicides: felony murder, intoxicated use of vehicle or firearm, delivery of controlled substances. No mental state required for these.
• ALI MPC §2.02(2)(a): what is "attendant circumstances," preciousss?
• "Degree structure" was from the Pennsylvania reform of 1794
• People v. Caruso

Commentary in class
An old case, in NY. It's in there in order to expose us to "reasoning to a conclusion," instead of jumping to one. Otherwise, it's kind of pointless to us. But it has such pitiful facts that it tempts us (and the trial court) to act on sympathy.
• Reasoning to a conclusion: do not form a conclusion and then apply facts and rules.
• Codification re-classified some homicides.
• Problem 5:
  Intent to commit the murder is not required under §940.02(2). He had intent to deliver, but even that may not be required under §961.41(1)(a). Ah, but I misread the question. That's a reckless one, not First Degree Intentional Homicide. So he intended to supply less cut heroin, and he probably knew that was risky. He did say it was good quality stuff and charged more, so that's perhaps a form of telling him?
• Mullaney Case for Tuesday!!!
• Note the question of jury unanimity under the new definition of intent. The Dickey article deals with this; the court might want to give both instructions, or only one. So if "intent" is:
  • Mental purpose
  
  OR
  • Practically certain
  and the jury comes back "guilty," are they required to be unanimous about the kind of intent that satisfies that element? Is there a time when someone could have mental purpose, but not be aware that their act would be practically certain to cause the result? Yes, of course. The article assumes a competent murderer (i.e. certainty is included in intent, sort of).
• There's almost always an appeal on first degree intentional homicide. Issues often include sufficiency of evidence, sufficiency of evidence for intent. Generally on appeal, the court will only change judgment if it finds no reasonable jury should have convicted. These appeals tend not to go very well for the defendant.