CRIMINAL LAW DISTINCTIONS PROFESSOR ANTHONY M. DILLOF WAYNE STATE UNIVERSITY LAW SCHOOL

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1 CRIMINAL LAW DISTINCTIONS PROFESSOR ANTHONY M. DILLOF WAYNE STATE UNIVERSITY LAW SCHOOL CHAPTER 1: MENS REA; DEFENSES OF INSANITY; INTOXICATION; AND INFANCY A. Mens Rea 1. Strict Liability An ffense is ne f strict liability if it is NOT a defense that the actr reasnably believes he is engaged in a lawful activity. Michigan law - presumptin ffenses being interpreted as strict liability. Need clear legislative intent t vercme presumptin Example 1: A statute states, It is an ffense t send a prngraphic image by cellphne t anther persn. In Michigan, unless there is clear legislative intent, the statute shuld NOT be interpreted as strict liability. 2. Accmplice Liability Crime f intent Tw exceptins: Fr crimes f specific intent, even if the accmplice des nt intend that the persn cmmit a crime, the accmplice knws that the persn intends t cmmit a crime. Fr crimes f general intent, e.g., invluntary manslaughter - must have the intent t participate in the activity that is unlawful. B. Insanity Defense Michigan fllws the. Tw ways t satisfy the defense: M Naghten Rule: A defendant is legally insane if, due t a mental disease r defect, he cannt the wrngfulness f his actin; OR Test: A defendant is legally insane if, due t a mental disease r defect, there is an irresistible impulse that prevents the defendant frm restraint in engaging in the ffense. The bears the burden f prf. Must shw either by a f the evidence Michigan rule - pssible finding by the jury f.

2 In rder fr a jury t find a defendant guilty but mentally ill, they must cnclude: The defendant cmmitted each element f the ffense beynd a reasnable dubt; The defendant asserted the insanity defense and shwed by a prepnderance f the evidence that he is mentally ill; BUT The defendant failed t establish either that he culd nt appreciate the wrngfulness f the act r had an irresistible impulse. The difference between guilty and guilty but mentally ill is that the latter may impse certain treatment requirements n the defendant, but he is still fund guilty f the ffense. C. Intxicatin Defense General rule - if, by virtue f intxicatin, ne cannt pssess the required mental state, then that persn cannt be guilty f a specific intent crime. Michigan rule - a bit narrwer. Must shw: Intxicatin prevented the frmatin f the required mental state and the ffense is ne f specific intent; The defendant btained and prperly used medicatin r ther substances; and The defendant reasnably culd nt have knwn that the effect f using it wuld be t create intxicatin. Example 2: Yu take a few shts f whiskey and becme intxicated. Yu take a laptp thinking that it is yurs but it belngs t smene else. Theft is a specific intent ffense. In mst places, yu wuld nt be liable fr theft. In Michigan, hwever, yu will prbably be liable because yu shuld have knwn that the few shts f whiskey wuld create intxicatin, causing yu nt t realize it was nt yur laptp. D. Infancy Defense Family Curt in Michigan - jurisdictin ver matters invlving children r under. Family Curt can waive jurisdictin fr cases f children wh are,, and. Can be sent t criminal curt If cnvicted, will be sentenced like an adult The tw mst imprtant factrs the curt shuld take int accunt when impsing punishment are: f the crime; and f the juvenile Themis Bar Review, LLC MI Criminal Law Distinctins

3 CHAPTER 2: MURDER; VOLUNTARY MANSLAUGHTER; AND INVOLUNTARY MANSLAUGHTER A. Hmicide Michigan has abandned the year and a day rule. Causatin requires bth and cause f death. B. Murder 1. Secnd Degree: a. Definitin Causing the death f anther with b. Mens rea 4 ways t establish malice afrethught: Intent t cause ; Intent t cause great bdily ; Actr is with respect t the pssibility that anther persn might be killed; and Actr is willful r wantn with respect t the pssibility that anther might suffer great bdily harm. The intent t engage in a felny is NOT a mental state that wuld supprt a finding f malice afrethught in Michigan. 2. First Degree: Secnd-degree murder PLUS: ; Killing f a plice r crrectins fficer; r Actr is engaged in a. What felnies? ; 1st-, 2nd-, r 3rd-degree criminal sexual cnduct; Child abuse; ; Carjacking; Breaking and entering int a dwelling; Hme invasin; Larceny; ; Kidnapping; MI Criminal Law Distinctins 2016 Themis Bar Review, LLC 3

4 Vulnerable adult abuse; Trture; Stalking; and Majr cntrlled substance ffense. Example 3: Yu sell smene herin and that persn verdses. That by itself will nt make yu liable fr felny murder. Hwever, if yu were willful r wantn with respect t the pssibility the persn wuld die (liable fr murder), the fact that yu were invlved in a majr substance ffense wuld make it firstdegree murder. C. Vluntary Manslaughter In Michigan, wrds alne MAY cnstitute adequate prvcatin. The decides if it is sufficient t reduce murder t vluntary manslaughter. Infrmatinal wrds are mre likely t prvke an individual than insulting wrds. E.g., wrds that describe an event r alleged event that tk place D. Invluntary Manslaughter A killing dne with Grss negligence: Editr's Nte 1: Prfessr Dillf misspke here. In Michigan, the standard fr invluntary manslaughter is grss negligence, NOT criminal r grss negligence. When a persn fails t take ; When the persn shuld knw that failing t take rdinary care culd result in disaster (severe injury r death) t anther. Engaged in - can be liable fr invluntary manslaughter if: Used excessive frce; r Acted in a grssly-negligent manner. E. Other Crimes 1. Shplifting, switching the price tags n an item t lwer the price, returning a gd fr a refund withut entitlement t d s, etc. 2. False Pretenses Obtaining (nt just pssessin) t prperty r mney thrugh criminal misrepresentatin. In Michigan, alne can make a persn liable fr false pretenses if: The defendant knws a abut the exchange; Themis Bar Review, LLC MI Criminal Law Distinctins

5 The defendant knws the victim des NOT knw that fact; The defendant fails t disclse the material fact; AND The defendant has the the ther persn. There is an affirmative bligatin t disclse a material fact in Michigan when ne is aware that the ther persn is ignrant f it. 3. Rbbery Larceny by r Michigan - frce can be met during the actual act, r during r evasin. Armed rbbery - can be cnvicted t life. Weapn is used Either smething that can cause injury t anther r that yu represent culd cause injury t anther, e.g., putting yur hand in yur cat pcket t make it appear t the victim that yu have a gun. 4. Burglary in Michigan Tw categries in Michigan: : The breaking and entering f a dwelling with the intent t cmmit a felny therein. Des NOT have t be at night Breaking and Entering: Des NOT have t be a CHAPTER 3: OTHER CRIMES (CONT D); INCHOATE OFFENSES A. Other Crimes (cnt d) 1. Arsn The burning r destructin by explsin a. First-Degree Arsn Setting fire and causing t anther persn; OR Setting fire t a multiunit residence (e.g., an apartment building) b. Secnd-Degree Arsn Setting fire t a c. Third-Degree Arsn Setting fire t a ; OR MI Criminal Law Distinctins 2016 Themis Bar Review, LLC 5

6 Causing damage t f ver $ d. Furth-Degree Arsn Causing damage t persnal prperty with a value f ver $ ; OR Setting fire t wds, grunds, prairies (nt a structure) e. Fifth-Degree Arsn Setting fire and causing damage t persnal prperty valued at less than $ 2. Cntrlled Substances Offenses f a cntrlled substance is a crime in Michigan. Three types - actual, cnstructive, r jint Example 4: Mb bss tells an underling t stre ccaine in his huse fr a week. The underling has pssessed the ccaine. The mb bss has pssessed it since he has cntrl ver it. Jint pssessin is als present. Additinal cntrlled substances ffenses in Michigan: Pssessin with intent t deliver a cntrlled substance New ffense - pssessin f an cntrlled substance. Wuld lead a reasnable persn t believe it was a cntrlled substance 3. Firearm Pssessin Michigan definitin f firearm - smething that can prpel a prjectile thrugh explsin, air, r gas. E.g., cannn, BB gun Item need nt be currently peratinal 4. Theft Offenses Sme jurisdictins have cnslidated prperty crimes under the general heading f theft. Michigan cnslidated its theft ffenses. Larceny, embezzlement, and false pretenses are all distinct ffenses. 5. Fleeing and Eluding Example 5: Plice fficer tries t stp a car but the driver refuses t stp. 6. Battery Michigan requires an r willful tuching that causes injury r an unwanted cntact with anther Themis Bar Review, LLC MI Criminal Law Distinctins

7 7. Assault Basic Assault: A persn r a battery. Frms in Michigan: assault - attempt r threat withut a weapn t cause a serius bdily injury; Assault with the intent t ; Assault with intent t maim; Assault with the intent t cause serius bdily injury; Assault with the intent t rb; and Felnius assault assault with a deadly weapn but withut intent t inflict great bdily harm 8. Kidnapping Michigan rule - unlawful restraint f anther persn fr ne f six reasns: T engage in sexual cnduct; T hld that persn fr invluntary servitude; T use that persn as a ; T hld the persn fr ransm; T take the persn utside Michigan; r T engage in sexual abuse f a child 9. Criminal Sexual Cnduct Exam Tip 1: Please refer t the Themis Michigan Criminal Law distinctins utline fr mre details regarding these ffenses. a. Criminal Sexual Cnduct f the Third Degree Basic rape - having sexual intercurse with anther thrugh cercin r frce Statutry rape - age f cnsent is Sexual intercurse with persns wh are incapacitated, physically r mentally Incest b. Criminal Sexual Cnduct f the First Degree Third-degree criminal sexual cnduct plus enhancements : Victim is r less; Occurred in the curse f a felny; Perpetratr was armed; r Perpetratr caused MI Criminal Law Distinctins 2016 Themis Bar Review, LLC 7

8 c. Criminal Sexual Cnduct f the Furth Degree: Third-degree sexual cnduct but instead f sexual intercurse, there is ther sexual cntact d. Criminal Sexual Cnduct f the Secnd Degree First-degree sexual cnduct but instead f sexual intercurse, there is sexual cntact in sme ther frm B. Miscellaneus Offenses Carjacking Carrying a cncealed weapn in a vehicle Stalking Dmestic vilence Causing the death f a fetus Vulnerable adult abuse Trture Terrrism C. Merger Dctrine When a defendant is charged with tw ffenses, ne f which is a lesser-included ffense, a defendant cannt be cnvicted f bth ffenses. A lesser-included ffense is an ffense in which f the elements f that ffense are included in anther ffense. Example 6: Larceny is a lesser-included ffense t rbbery. Rbbery invlves a larceny. Under the merger dctrine, yu cannt cnvict smene f bth larceny and rbbery based n a single set f facts. Defendant is entitled t have the lesser-included ffense charged Exceptin: cases where it is nt ratinally pssible fr a jury t find nly the lesser-included ffense Example 7: It is abslutely clear that a rbbery ccurred. The nly defense fr the defendant is that it was nt him. In that case, n jury culd ratinally find that merely a larceny ccurred. Thus, the defendant wuld nt be entitled t a charge that wuld allw fr the jury t find nly larceny. D. Inchate Offenses 1. Slicitatin a. Michigan Rule Defined narrwly in Michigan Themis Bar Review, LLC MI Criminal Law Distinctins

9 In Michigan, ne is liable fr slicitatin nly if ne r smething f value t anther t cmmit a crime. b. Recruitment f Minrs Michigan ffense f recruitment f minrs One may be liable if he recruits the minr t cmmit a crime by ffering mney r smething f value, OR by encuragement r mral supprt. c. Defense - Must establish that yu have renunced by: Ntifying the slicited party that yu n lnger want him t engage in the crime; Taking apprpriate measures (necessary steps) t prevent the crime frm ccurring (i.e., warn the plice); and The crime des NOT ccur. 2. Cnspiracy Fur NO s f Michigan cnspiracy law: N requirement: There nly must be an agreement t engage in an ffense in Michigan. N cnspiracy: One cannt be liable f cnspiracy if all the ther c-cnspiratrs are acquitted f cnspiracy, AND acquitted by the same trier f fact (judge r jury). N cnspiracy t cmmit : One cannt agree t cmmit murder, since this wuld include premeditatin, a first-degree murder enhancer. N defense f is permitted. 3. Attempt Michigan - a tward cmmitting the crime is required. Mre than mere preparatin is required Example 8: If ne planned n rbbing a bank, then arranging fr a getaway driver/car, learning the flr plans fr the bank, and recruiting helpers are mere preparatry actins. These actins wuld nt be enugh fr attempt. Hwever, getting in the car and driving tward the bank culd be enugh fr attempt. Michigan has the defense f. MI Criminal Law Distinctins 2016 Themis Bar Review, LLC 9

10 Abandnment must be and. Sme affirmative actin beynd giving up the crime may be required if yu ve set in mtin actins that are ging t result in the crime Example 9: If yu set a bmb, yu have t prevent the bmb frm ging ff. CHAPTER 4: DEFENSES A. Self-Defense 1. Deadly Frce In Michigan, ne is permitted t use deadly frce if threatened with imminent serius bdily harm r death, OR. 2. Retreat Michigan - NO duty t retreat Stand yur grund jurisdictin S lng as the persn wh seeks t use deadly frce is NOT engaged in a crime 3. Defense f Others In Michigan, a pregnant wman is entitled t use deadly frce in self-defense when threatened with assault and believes that her fetus might be gravely injured r die. 4. Arrests A plice fficer use deadly frce t stp a fleeing feln UNLESS the feln presents an imminent threat t the cmmunity. A private citizen use deadly frce t stp a fleeing feln, even if that feln des nt present a threat t the cmmunity. Unlawful arrest - ne has the right t use frce t resist arrest when the arrest is unlawful. B. Duress One may establish the defense f duress if ne: Is expsed t a threat f death r serius bdily injury; Is in fear f his life/harm; and Acts and cmmits the crime ut f the fear. Michigan prcedure rule - t raise the defense, must the crime ccurred. C. Entrapment Michigan fllws the apprach fr entrapment (MPC apprach) Themis Bar Review, LLC MI Criminal Law Distinctins

11 T raise this defense, the defendant must establish that the plice engaged in cnduct that wuld cause a t engage in the ffense, r a substantial likelihd that a reasnable citizen wuld engage in the ffense. The subjective belief/intent f the defendant des NOT matter. Example 10: The plice ffer yu a stlen cellphne fr a penny. Yu take it and are immediately arrested fr receiving stlen gds. In Michigan, yu culd raise the defense f entrapment if yu culd establish that even a reasnable citizen wuld have engaged in the ffense, r that there is a substantial prbability that he wuld have. [END OF HANDOUT] MI Criminal Law Distinctins 2016 Themis Bar Review, LLC 11

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