MASSACHUSETTS CRIMINAL LAW DISTINCTIONS PROFESSOR MICHAEL CASSIDY BOSTON COLLEGE LAW SCHOOL

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1 MASSACHUSETTS CRIMINAL LAW DISTINCTIONS PROFESSOR MICHAEL CASSIDY BOSTON COLLEGE LAW SCHOOL CHAPTER 1: ACTUS REUS; MENS REA Massachusetts des nt have a, it is a cmmn-law state supplemented by statute. Three general elements f criminal law: 1) ; 2) ; 3). A. Actus Reus Must be a act Smetimes a failure t act may cnstitute the actus reus N Gd Samaritan Law Vluntary act nt required when: 1) Statute specifically makes an a crime 2) Defendant wes a t the victim 3) There is a t render aid 4) Defendant places the victim in peril 5) If yu begin t render aid, yu must d it with. Exceptin: In Massachusetts, a citizen has a duty t reprt a r that he is witnessing in prgress. B. Mens Rea Mental state that must accmpany the actus reus Actus reus and mens rea must ccur. Generally required fr all crimes ther than crimes Strict liability ffenses are generally public welfare ffenses (e.g., selling liqur t a minr). Massachusetts des nt fllw Mdel Penal Cde (MPC) mens rea categries. N "purpseful"

2 Massachusetts des nt presume a default mens rea f. Massachusetts als des nt fllw default presumptin that mens rea applies t all elements f a statute. In Massachusetts, curts lk t the intent f the t determine the mens rea. Malice in Massachusetts is a disregard fr a risk f harm. C. Specific Intent Requires an additinal intent beynd the mens rea can affect the presence r absence f specific intent, but nt general intent. An unreasnable can defeat liability fr a specific intent crime. Which crimes will be interpreted as specific intent crimes? F-I-A-T F I A T Example 1: A bystander witnesses a murder and believes that the murder victim is dead. The bystander takes ut a knife and stabs what he believes t be a crpse, but it turns ut the victim was still alive at the time f the stabbing. Can the bystander be cnvicted f first-degree murder?. First-degree murder is a specific intent crime. An unreasnable mistake f fact can defeat specific intent. Example 2: D is tired and driving hme frm wrk late at night. He lives n a cul de sac where all the huses lk similar. He mistakenly pulls int the wrng driveway, leaves the car, and enters the wrng huse. Is D s mistake f fact sufficient t defeat liability fr trespass?. In Massachusetts, mistake f fact is a defense t general intent crimes nly if that mistake is reasnable. A reasnable mistake f fact will defeat mens rea fr a general intent crime. Mistake f fact is never a defense t crimes Themis Bar Review, LLC MA Criminal Law Distinctins

3 CHAPTER 2: JURISDICTIONAL AND OTHER ISSUES A. Jurisdictin Generally Three primary curts fr criminal ffenses: Curt Curt Curt Superir Curt is the curt f jurisdictin. District Curt is the curt f jurisdictin. District Curt has jurisdictin ver: ; Felnies punishable by nt mre than in prisn; Certain specified felnies; Example 3: A cnfrnts B n the street and frces B t drive t an ATM and withdraw $200. The prsecutr wishes t charge A with kidnapping and larceny under $250. If the prsecutr wishes t charge bth ffenses tgether, A wuld have t be charged in Superir Curt. While larceny under $250 is a misdemeanr within the District Curt s jurisdictin, kidnapping is a felny punishable by mre than five years in prisn and accrdingly is nt within the District Curt s jurisdictin. Juvenile Curt has jurisdictin ver all cases invlving delinquency f minrs under years ld with the exceptin f cmmitted by defendants ver years f age. Massachusetts distinguishes between felnies and misdemeanrs by the f incarceratin. If the defendant can be incarcerated in, it is a felny. If the defendant can nly be punished by a fine r up t in the. B. Statute f Limitatins The general statute f limitatin in Massachusetts is years. Excludes any time the defendant spent utside the state after the crime was cmmitted Which crimes have lnger statutes f limitatins? In cases in which the victim is less than years f age the statute des nt begin t run until the victim turns. N statute f limitatins fr: ; MA Criminal Law Distinctins 2016 Themis Bar Review, LLC 3

4 Rape f a child under years f age; f a child under years f age; Sexual assault n a persn; Massachusetts prvides by statute that crimes invlving sexual assault n a minr, if prsecuted mre than years after the event, must have sme crrbratin ther than the victim s testimny. C. Citizens Pwer t Arrest In Massachusetts, citizens have the right t arrest fr a but nt a. Unlike plice, citizens are nt justified in making an arrest fr a felny unless it was. D. Victims f Crimes Eligible fr up t $ fr physical and psychlgical damages frm the Victim Cmpensatin Fund. Victim must apply within f the crime and must have the crime t law enfrcement. E. Immunized Accmplice Rule In Massachusetts, a defendant may nt be cnvicted f a crime based slely n the testimny f an. Example 4: Plice arrest W fr a murder and W tells them it was a killing fr hire n behalf f D. The gvernment immunizes W n cnditin that he testify against D. D cannt be cnvicted based slely n W s testimny. The curt will require additinal crrbratin. F. Parties t a Crime Like the MPC, Massachusetts has eliminated the distinctin between and accessries. In Massachusetts, accmplices are knwn as. Accessries after the fact: Punished fr a maximum f in Massachusetts. Requires knwledge f the felny and an intent t assist the feln in aviding detectin Certain family members cannt be guilty as accessries after the fact: Themis Bar Review, LLC MA Criminal Law Distinctins

5 CHAPTER 3: HOMICIDE CRIMES Three frms in Massachusetts: ; ;. Victim Must be alive at time f event leading t death A can be a victim f a hmicide in Massachusetts Year-and-a-day rule: abandned in Massachusetts Murder A murder that is either r cmmitted with is first-degree murder. All ther intentinal murders are secnd-degree murders. First-degree murder is punishable by life in prisn withut the pssibility f parle. Felny Murder Massachusetts splits felny murder int first- and secnd- degree murder depending n the underlying felny If the underlying felny is punishable by life in prisn, it is first-degree felny murder Any ther inherently dangerus felny: secnd-degree felny murder Example 5: D decides t burn dwn a dwelling t cmmit insurance fraud. Unbeknwnst t D, a persn is sleeping in the dwelling and dies in the fire. D culd be guilty f secnd-degree felny murder because arsn is an inherently dangerus felny but is nt punishable by life in prisn. Inherently dangerus crime: crime that either has as an element a risk f serius bdily injury r creates a serius risk f bdily injury because f hw it was cmmitted. Defendant charged with felny murder cannt be sentenced t sentences fr the felny murder and the underlying felny except in certain circumstances. Example 6: Same facts as Example 5. D is charged and cnvicted with bth secnd-degree felny murder and arsn. The judge shuld nly sentence the D fr felny murder because a sentence fr the arsn as well wuld be duplicative. MA Criminal Law Distinctins 2016 Themis Bar Review, LLC 5

6 If the judge gives the jury a special jury frm and the jury finds that the thery f murder is based n ne f the ther elements f malice rather than the underlying felny, cncurrent sentences are. Example 7: Same facts as Example 5 except the gvernment charges D with murder based n depraved heart malice. If the jury returns a special verdict frm that the defendant is guilty under this thery, D may be sentenced fr bth the murder and the arsn. Victim s death must result frm an act f either the r a. Example 8: Tw armed men enter a liqur stre t rb it. The wner fires at the rbbers and hits anther custmer, killing him. Under the prximate cause apprach t felny murder (nt fllwed in Massachusetts), the rbbers culd be guilty f felny murder. In Massachusetts they are nt guilty f felny murder because the custmer was nt killed by a c-feln. 1. Vluntary Manslaughter Intentinal killing mitigated when the killer is under the and heat f passin with n time t cl ff. Example 9: A father sees his child beaten up during a sprting event. The father is enraged and runs nt the field, striking the initial aggressr in the head with a baseball bat. If the victim dies, the father s charge might be reduced t manslaughter based n the father s heat f passin. In Massachusetts, the prvcatin must actually cme frm the. Can als be an intentinal killing resulting frm an claim. Example 10: Tw individuals fight. The victim is the initial aggressr and punches the defendant. The defendant respnds by stabbing the victim, killing him. The defendant may nt use self-defense as a ttal defense because he used excessive frce. Imperfect self-defense with excessive frce may still be used t mitigate murder t vluntary manslaughter. Can cme up in cases f r when the defendant misperceives the need fr deadly frce 2. Invluntary Manslaughter Engaging in a r act resulting in death Themis Bar Review, LLC MA Criminal Law Distinctins

7 A resulting in death 3. Vehicular Hmicide Driving a car that results in death CHAPTER 4: OTHER SPECIFIC CRIMES A. Larceny In Massachusetts, all larceny ffenses have been merged int ne crime. Larceny; Larceny by false pretenses; and Embezzlement Bad Check Legislatin Prima facie evidence f false pretenses if: funds in accunt t cver the check; After being prvided ntice, defendant fails t pay the amunt due plus fees within. B. Burglary Massachusetts statutry burglary is brader than cmmn law N breaking necessary passing thrugh any threshld is a breaking, even if pen Structure des nt have t be a Des nt have t ccur at Intent t cmmit a can supprt a charge f burglary. C. Battery Nncnsensual tuching that causes r At cmmn law, a battery was aggravated if it was cmmitted with a r caused. In Massachusetts, the battery statute prvides fr greater penalties in certain circumstances: Victim is ; Victim is ; Victim is ; Victim is ; Battery causes. Mayhem MA Criminal Law Distinctins 2016 Themis Bar Review, LLC 7

8 Battery with intent t that results in either a f the victim s limb r a f the victim s face. Specific intent crime D. Rape Massachusetts is a jurisdictin. Requires: ; ; cnsent. Mistake f fact as t the victim s cnsent is nt a defense. Example 11: Defendant and Victim knw each ther scially. Defendant became verly aggressive, used frce, and had sex with Victim. Victim frze in fear and did nt resist. T cnvict Defendant f rape, the jury must nly find that Victim did nt cnsent. The jury des NOT need t find that the Defendant believed she did nt cnsent Aggravated Rape Life felny in Massachusetts Frcible rape cmmitted in the curse f: rbbery; ; ; By ; By use f a. Rape f a Child Under 14 N statute f limitatins Delay f ver 27 years (incident t indictment): Must have crrbrating evidence f the rape E. Kidnapping Three elements in Massachusetts ; ; Either r. Example 12: A lcks B in a clset and des nt tell anyne where B is. A demands a ransm. A is guilty f kidnapping B Themis Bar Review, LLC MA Criminal Law Distinctins

9 Example 13: A frces B int a car at knifepint and drives B t anther lcatin, where A rapes B. A is guilty f bth rape and kidnapping. Example 14: A drives B hme frm wrk. They get int an argument and A lcks the drs t his car and refuses t let B ut. A is likely nt guilty f kidnapping because he has neither mved nr hidden B. Aggravated Kidnapping dne fr the purpses f cllecting ransm A minr child can be kidnapped by a parent nly if it is in vilatin f a r a. F. Arsn Massachusetts des nt fllw cmmn-law definitin Burning f any structure can be arsn, whether wned by the defendant r smene else G. Narctics Massachusetts has the pssessin f r less f marijuana. Still subject t civil fine f up t $ and f the substance Only applies t crime f Shared use: Supreme Judicial Curt said this is a frm f pssessin. Recreatinal use, if shared, is still pssessin if it is ne unce r less. In Massachusetts it is a crime t be present where is fund. CHAPTER 5: INCHOATE CRIMES AND DEFENSES A. Inchate Crimes 1. Attempt Having the mental state t cmmit a crime and ding an act tward cmpletin f the crime Massachusetts law des nt distinguish between and attempts. Hw far must the defendant g t be guilty f attempt? Test under MPC has the defendant taken a substantial step tward cmpletin Massachusetts dangerus prximity test Example 15: D plans t blw up a building. Under the MPC test, purchasing materials necessary t create the bmb cnstitutes a substantial step. In MA Criminal Law Distinctins 2016 Themis Bar Review, LLC 9

10 Massachusetts, mre is required befre D can be guilty f attempt. Curts will lk at factrs like prximity t the bmbsite, whether D recnnitered the bmbsite, etc. 2. Cnspiracy Cmbinatin f tw r mre peple t cmmit a crime Many states require an vert act in furtherance f the cnspiracy Massachusetts definitin: N requirement Objective f cnspiracy des nt need t be a. Need nly an unlawful bjective against public plicy. Example 16: D builds a new additin t his huse withut installing fire alarms as required by law. D, the builder, and the Fire Department cllude t falsely certify that fire alarms were installed. In Massachusetts, each party can be guilty f cnspiracy even if the underlying false certificatin r failure t install a fire alarm is nt a crime. Narrwer than cmmn law definitin in ne respect Pinkertn Dctrine Massachusetts the Pinkertn Dctrine. C-cnspiratrs nly liable fr each ther s substantive acts if they are. Defendants can t a jint trial f a cnspiracy charge and the underlying substantive ffense. 3. Threats Elements: A ; Ability t the threat; Putting the victim in. Des nt require actual intent t execute the threat Misdemeanr punished by up t in the huse f crrectins. B. Defenses 1. Self Defense Massachusetts puts burden f disprving self-defense n the Themis Bar Review, LLC MA Criminal Law Distinctins

11 a. Defense f Others Example 17: D walks dwn the street and sees a fight ccurring. D jumps int the fight and attempts t assist the persn wh appears t be lsing and punches the ther persn. Unbeknwnst t D, the persn D tried t prtect was the initial aggressr. Under the in the same shes requirement, the persn D aided had n right t self-defense and accrdingly D wuld nt have the defense either. Massachusetts des nt fllw the in the same shes rule and pts fr the MPC apprach Allws yu t defend anther when yu reasnably believe that persn wuld be allwed t defend themselves. b. Retreat Rule Massachusetts is a retreat jurisdictin Befre using deadly frce, yu must avail yurself f f retreat. Castle exceptin yu d nt need t retreat if attacked in yur wn hme by smene wh is there. Castle exceptin des nt authrize the use f deadly frce when nt therwise necessary Example 18: D is awakened in the middle f the night by an intruder. He walks dwnstairs and discvers a burglar carrying his televisin away. D pints a gun at the burglar and tells him t put dwn the televisin. The burglar tells D he is unarmed. D des nt have the right t use deadly frce against the burglar. 2. Insanity Massachusetts fllws MPC test: As a result f a mental disease r defect, des the accused lack either the capacity t appreciate the f his cnduct r the capacity t his cnduct t the requirements f the law. Massachusetts nly differs frm MPC test be remving wrd substantial Diminished capacity is nt a defense in Massachusetts except in cases. Vluntary intxicatin r mental illness may be cnsidered n the questin f mens rea. Once the defendant raises an insanity defense, the gvernment has the burden f prving sanity. 3. Entrapment Massachusetts takes a apprach MA Criminal Law Distinctins 2016 Themis Bar Review, LLC 11

12 Gvernment must the defendant t cmmit the crime beynd mere slicitatin. Was the defendant t cmmit the crime? Example 19: D is charged with selling ne kilgram f ccaine t an undercver infrmant. D had previusly sld smaller amunts f ccaine t the infrmant, but the gvernment rdered a kilgram n this ccasin. T raise entrapment as a defense, D has t prve that the cntacts with the infrmant went beynd merely establishing an pprtunity. If D succeeded, the burden wuld shift t the gvernment t shw that D was predispsed t cmmit the crime. [END OF HANDOUT] Themis Bar Review, LLC MA Criminal Law Distinctins