FALL 2013 CRIMINAL LAW – FINAL EXAM OUTLINE
THE THEORETICAL DIMENSIONS OF CRIMINAL LAW
Bentham  Optimal Deterrence: rational actors weigh the costs and benefits of actions; punishment must outweigh
benefits but only sufficient to deter.
 Normative (how law should be); Goal is to maximize utility for society
 Rule: gain < penalty x probability of penalty
 Unmeet for punishment punishment that is too high wastes punishment resources; causes people to go for
higher crimes OR self-help
o Ex: stealing hub caps, abortion clinic protesters; MAX more important than MIN
Kant  individual desert: people should be punished because they deserve punishment, not as means to benefit
society. Punishment acknowledges value of the individual – society expects better of a person, so punishment affirms
value. Also normative.
Hampton  expressive condemnation: law gives expression to society’s values (positive theory).
 Retributive idea: more severe the crime, more severe the punishment; victims dignity over criminal
 Punishment = scarce resource  must fit the crime because level of punishment shows how much society
values the victim of the crime
 Punishment is message to the public; helps regulates society
1. Why Punish?
a. State v. Chaney  ex-Marine found guilty of two counts of rape, but only gets 2-year sentence.
i. B: not enough punishment for general deterrence, only enough for specific.
ii. K: Defendant deserves worse, and in fact such a light punishment is a disservice to him.
iii. H: low punishment shows society values Chaney over a prostitute (not explicitly stated in court
but inferred from circumstances.
b. People v. Du  Korean storeowner suspects 15 yr old black girl shoplifting, claims girl assaulted her and
she grabbed gun in self defense, but gun had hair trigger. Du got voluntary manslaughter but sentence is
suspended.
i. B: Specific deterrence unnecessary because Du won’t do it again; but insufficient for general
deterrence because other storeowners now have a precedent.
ii. K: Du is not completely to blame because she feared for her life, but killing is inherently wrong
iii. H: hardworking Korean is valued over black girl; given Du’s status in a hostile area with gangs,
sends correct message.
2. How to Punish?
a. U.S. v. Bergman Rabbi charged with Medicaid fraud. D counsel proposes behavioral rehab instead of
jail. He gets 4 months in jail.
i. B: Specific deterrence unnecessary and he would increase social utility more through social
service, BUT general deterrence requires SOME degree of punishment
1. SN: no proof that general deterrence works v. shaming prevent others from repeating
ii. K: Deserves jail time because behavioral rehab will actually benefit him by repairing his
reputation, not punish him.
iii. H: Jail time necessary, otherwise affirms inequality based on wealth.
b. What’s Really Wrong With Shaming
i. Too many incarcerated = excessive cost on economy, society, community.
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FALL 2013 CRIMINAL LAW – FINAL EXAM OUTLINE
ii. Problems with public shaming: distressing to public to be around criminals
1. Reveal inequalities of justice system by showing more minorities  reinforce existing
prejudice against certain demographics.
iii. Kahan’s alternative  Restorative Justice: offender redresses the harm; compensates victim
and reintegrates criminal into society. *Hard to implement because people won’t agree.
3. What to Punish?
a. We want to punish acts that threaten social liberty and cause harm, but how to justify “moral” offenses
that don’t appear to harm our welfare?  Motivated cognition (reaching a conclusion because you
want to, regardless of veracity of conclusion.
b. Wisconsin v. Mitchell Assaulted white kid after watching movie. Charged with aggravated battery
with max sentence of 2 years, but Wisconsin statute extends it to 7 years if crime is motivated by race
bias. He got 4 years. SCOTUS  extension does not violate 1st amendment.
i. B: goal is deterring race biased crimes, but may lead to retaliation from punished group
ii. H: penalty enhancement is good; WI aspires to be fair and equitable, value all subgroups equally
iii. Rule: criminal law can condemn more than physical harm on victim; also used to express ideal
view on moral issues
iv. Eric Holder NY Times: “bias motivated acts of violence divide our communities, intimidate our
most vulnerable citizens, and damage our collective spirit.”
c. Bowers v. Hardwick  police invades D’s bedroom and caught D in consensual sodomy (criminalized in
GA). SCOTUS reviewed and said 9th amdmt does not protect sodomy. Overruled by Lawrence v. Texas
 moral outrage should not be enough to make an act criminal.
i. Rule: morality alone is not sufficient to criminalize conduct; need harm. SCOTUS found harm in
the offense (expressive value)
INSTITUTIONAL DIMENSIONS OF CRIMINAL LAW
1. Courts v. Legislatures
a. Desuetude: long and continued non-use of a law renders it invalid; not all courts follow this. Courts can
change laws through usage faster than legislature.
i. Commonwealth v. Stowell Police follows van w/ man and woman, charges them with
adultery. But MA adultery statute has not been used for ages. D argues for desuetude but court
says state has right to “regulate institution of marriage” with police power.
1. Rule: legislature should change the law; not the court (judicial restraint)
2. K: Any sex outside of marriage treats other as a means to an end???
3. H: Repeal statute because no longer in line with society’s views, but conversely, doing so
could encourage adultery.
b. Legality: law must be clear, ascertainable and non-retrospective; cannot impose sanctions for acts that
aren’t criminal.
c. Lenity  if statute is ambiguous, courts must interpret in favor of D.
i. Keeler v. Superior Court  Man assaults pregnant ex-wife, killing 7 mo old fetus. Court held
legislature did not intend to include fetus under “human” for murder and statue should be
interpreted narrowly (lenity).
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FALL 2013 CRIMINAL LAW – FINAL EXAM OUTLINE
1. Rationale – if enlarge statute to include fetuses, would deprive D of fair warning of
crime.
2. Dissent  Absurd to think that D would have consulted statute to get “proper notice”
before acting, also to think that he would not think that his act could be considered
“murder in any way”.
3. CHANGING LAW THROUGH UNDER-PUNISHING  easy for politicians to campaign on
court’s under-punishment to try and amend law; much harder to do the opposite.
Courts interprete laws narrowly to propel legislation chance. Bentham knew it was
more difficult to back away from penal code once established  so emphasized need to
set appropriate max limit on punishment.
ii. US v. Zavrell  D mails cornstarch to frame kids who bullied her son. Majority  it is
threatening communication because statute was expanded beyond only written material;
Dissent communication, but not threatening because harm already came from exposure to
powder, not any future conduct.
2. The Community
a. City of Chicago v. Morales  Gang Congregation Ordinance, police can basically tell anyone to disperse
and charge them if they return. SCOTUS: ordinance is unconstitutionally vague. Ordinance reformed.
i. Rule: Statue should provide PRIOR, SUFFICIENT notice to enable citizen to understand what
conduct is prohibited (offenders here don’t know they’re offending until told to disperse).
Dissent: officers always had power to exercise discretion; ordinance lets them continue to fulfill
duty and maintain the peace.
ii. B: broad ordinance prevents gangs from infringing on liberties of whole community
iii. K: unfair to gangs because police can target them arbitrarily, but being fair to them takes liberty
away from rest of community.
iv. H: law targets minorities because gangs are in low-income, high-crime areas. BUT city is
expending more resources on policing area  shows value for area and desire to make it safer.
v. SN: if you want the law to carry, use the exact wording the decision told you to
3. The Jury
a. Jury Nullification = acquitting D because jury does not agree with the law that D has been charged with
breaking, or believes it does not apply in this particular case.
i. Defense arguments: jury may be more likely to acquit if told they can; gives them a place to
attribute responsibility or sense of guilt if they were on the fence.
ii. Prosecution arguments: undue burden on Jury to be “mini-judges” and decided the law
b. Jury Nullification Movie  Man with low IQ buys gun to become a detective, after being a felon. He
voluntarily delivered gun to police when asked. Did not understand what he did was crime. Note: jury
acquitted, decided that the law didn’t apply. (Knowledge had to apply to actus reus and attendant
circumstance)
i. B: ignorance of the law is not a defense
ii. K: only give him what he deserves
iii. H: what would we show the community if we prosecute him?
c. Prosecutor’s Right to a Jury Trial – it may be impossible to find an unbiased jury but still ask for jury
trial. Judge must grant and there will be NO trial because of it.
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FALL 2013 CRIMINAL LAW – FINAL EXAM OUTLINE
d. Butler Essay- Nullify all black offenders in malum prohibitum (drugs, petty theft) crimes.
e. Duncan v. Louisiana  charged with simple battery but denied because LA only grants jury to capital
punishment cases, D said this violated his constitutional rights. SCOTUS agreed and reversed/remanded
case.
i. Rule: D has right to jury if max sentence exceeds 6 months.
f. U.S. v. Moon D charged with tax evasion, requested bench trial because “negative publicity would
never produced an unbiased jury.” Court denied, Moon tried/convicted on all counts. On Appeal, court
affirmed .
i. Rationale: “The ability to waive the benefit does not import a right to claim its opposite.”
g. U.S. v. Daughtery  Protestors broke into Dow Co. and defamed property to protest war. Appealed that
trial judge should have given instructions to allow jury nullification.
i. Rationale: “Encouraging individuals to make their own decisions about which laws to obey is an
invitation to chaos. The negative aspects of having a rigid system do not outweigh the danger of
removing the boundaries of constraint imposed by the judges’ instructions.”
ii. Dissent: Jury should know its power to disregard the law
h. Rodney King Case: Police charged with excessive force. Jury likely to side with person under arrest
because they could be in that position; Judge in a bench trial has no motivation to assess police power
to use force on people.
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FALL 2013 CRIMINAL LAW – FINAL EXAM OUTLINE
ELEMENTS OF A CRIME
1. Attendant Circumstance = other facts that must be true to establish culpability.
2. Actus Reus = the guilty act/unlawful omission (Prosecution must prove beyond reasonable doubt; NECESSARY
FOR ALL CRIMES)
a. Voluntary Act  MPC 2.01- act must be voluntary to be criminal (ALMOST UNIVERSAL IN STATES)
i. B: Must be voluntary because can’t deter involuntary act; K: Only bad thought that manifests in
action should be punished; H: shouldn’t place burden on society to be responsible for
involuntary actions.
ii. People v. Newton D was shot in the stomach, accused of shooting cop but claims he was
unconscious. Charged with voluntary manslaughter. Medical experts said it’s not uncommon for
Newton’s wounds to cause unconsciousness.
1. Defense: prejudicial error to not instruct jury that person who is unconscious at time of
act is not liable for crime. If prosecution cannot prove beyond reasonable doubt that
Newton was conscious, he should be acquitted.
2. Rule: where not self-induced, as by voluntary intoxication, unconsciousness is a
complete defense to a charge of criminal homicide.
iii. Jacobs v. Commonwealth Man tells D not to beat his kids, D stabs man; alleged that he is
effectively “unconscious” when he is angered and cannot maintain control over his actions.
1. Defense: Can’t deter involuntary acts (B); D does not deserve punishment if he suffers
from an ailment that renders him vulnerable to his rage (K).
2. Prosecution: Fact that D cannot control his temper strengthens the argument that he
has bad character and should be punished. Even if he could not control rage, he can
control whether to put himself in situations that would likely induce rage.
3. Rule: losing self-control is NOT involuntary. Courts sometimes view people to be the
moral authors of their own impulses, even where their actions are involuntary.
iv. Martin v. State  Police arrested Martin at his home and took him onto the highway, then
charged him with public intoxication. His act was voluntary but attendant circumstance was not.
1. B: ultimate purpose of statute is to deter public intoxication, not private.
2. Rule: both attendant circumstance and actus reus must be voluntary. Where there are
multiple attendant circumstances courts can read the voluntariness requirement as
applying to any or all of them. Court decides based on circumstances, like placing
oneself in a position where future acts will be compelled (e.g. being drunk at bar when it
closes).
b. Causation
i. Two accounts of legal causation:
1. Objective Person should not be held liable for harm unless they actually caused it.
2. Culpable If someone behaves immorally, it is more likely that they are the cause of a
harm that occurs around them and should thus be punished.
a. People intuitively assess crime this way.
b. Good = if we share intuitions about culpability, it affirms that punishment is just.
c. Bad = Makes it easier for judge and jury to convict someone who fits the
criminal stereotype.
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FALL 2013 CRIMINAL LAW – FINAL EXAM OUTLINE
ii. Traditional approach: D’s act must be (1) the “but for” cause AND (2) the proximate cause of
the forbidden result.
iii. But For  D’s conduct necessary for the result
1. People v. Acosta  D leads police on chase and two helicopters were dispatched. One
helicopter maneuvered in a way not compliant with regulation and collided into the
other, causing pilots to die.
a. But-for: Satisfied. Helicopters would not have been flying “but for” need to
catch him. Foreseeable?
i. Prosecution: D should know that by fleeing, he imposes on the police
the danger of chasing him.
ii. Defense: Helicopter’s duty not to catch offender, but to monitor chase.
ACTUAL cause of accident was pilot who violated regulation. Similar
accidents have never happened, shows that it is highly unforeseeable.
b. Rule: But-for cause DOES NOT have to be the ONLY cause.
iv. Proximate Causation  Result is reasonably foreseeable consequence of D’s act.
1. Foreseeability  Majority uses “reasonable person” standard, but even this can be
ambiguous. Prosecutors prefer broad interpretation; defense likes narrow.
a. People v. Arzon D started a fire in an abandoned building; firemen rushed in
to stop the fire and were trapped/killed by a second fire started at a different
location in the building. It is not clear whether D started the second fire.
b. But-for: Satisfied. If he didn’t start fire, firemen would not present.
Foreseeable? Yes. Building on “but for”, D started chain of events that led to
firemen’s death. It should have been foreseeable to D that firemen responding
to call would be put in great danger regardless of second fire.
i. Hypo: What if the coroner said he died of a heart attack while fighting a
fire? Depends  if heart attack started before fire, but-for not satisfied.
ii. Hypo: what is said there was a 50% chance he died from the heart
attack OR the fire? Not but-for  must be beyond reasonable doubt.
iii. Hypo: what if an arsonist is preparing flammables but it explodes from a
heat wave? Forseeable outcome (fire) is the same, the exact events
leading to it do not matter.
c. People v. Warner-Lambert  Company indicted with 2nd deg. manslaughter and
criminally negligent homicide. Explosion at chewing-gum factory killed and
injured employees. Management used two potentially explosive substances and
had been warned by their insurance carrier that there was an explosion hazard.
i. Defense: Foreseeability was not established. There was no hard proof
on what actually triggered explosion, only speculations by experts that it
could have been caused by the manufacturing process.
ii. State: But-for causation is all that is required for criminal liability. There
was evidence of a foreseen risk of explosion, D’s failure to remove the
risk, and an explosion actually occurring.
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FALL 2013 CRIMINAL LAW – FINAL EXAM OUTLINE
iii. H: indictment dismissed (Braman disagrees). D’s actions must be a
sufficiently direct cause; must find actual cause before establishing
“foreseeability.”
v. Intervening Acts
1. Volitional approach = victim’s subsequent voluntary act breaks chain of causation
2. Reasonableness approach = victim act reasonably foreseeable (minority)
3. MPC = silence.
4. Stephenson v. State  KKK leader kidnaps lady and forces her to perform various sex
acts. She found a chance to buy poison and took the pills. D delayed getting her
emergency treatment until next day and she died.
a. Rule: Victim rendered “mentally irresponsible” for act because D created an
environment which impelled her to act and from which she could not escape.”
b. When intervening act requires medical care, Majority Rule  “The more
severe the harm inflicted by the defendant and the less problematic the care,
the more likely the defendant will be seen causing the death. The less severe
the harm and the more problematic the care, the less likely the defendant will
be seen as causing the death.”
c. Alicke: she knew what she was doing – preferred death over being KKK sex slave
5. Hendrickson v. Commonwealth  D and his wife were fighting, she flees outdoors and
freezes to death. A jury convicts of manslaughter. Reversed on retrial; court considers
her prior conduct of abusing husband and “disposition.” D is lame in one arm, makes it
less credible that he was dominating the fight.
a. Rule: Apprehension of immediate violence must be grounded in the
circumstance with no other way of escape. Not the case for wife.
b. Alicke: We find volition where we want to (wife’s disposition)
i. MPC- too incidental or remote v. she was pregnant in the cold
6. Regina v. Blaue  Victim was female Jehovah’s Witness. After being raped and stabbed
by D, she was told she could only be saved with a blood transfusion. She refused and
died.
a. State: But-for satisfied. Death from stabbing, with or without blood transfusion,
is foreseeable. It was reasonable for her to refuse treatment in light of religion.
b. Defense: Still a volitional decision from Victim; religion does not by default
preclude her from getting a transfusion.
c. Rule: D convicted. Must take victim as he finds her (eggshell). D inflicts an injury
which results in death could not excuse himself by pleading that his victim could
have avoided death by taking better care of herself.
d. Alicke: outcome may be right, but rationale is wrong. Only reason is that court
likes victim and dislikes D, based on conduct.
c. Omissions
i. Courts are more reluctant to punish omissions; in line with Benthan’s view that under-punishing
is easier to redress through legislature reform.
ii. When doing nothing is like doing something. Must meet three requirements (MPC):
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FALL 2013 CRIMINAL LAW – FINAL EXAM OUTLINE
1. D must have Legal duty to act. Can arise from:
a. Statute (e.g. filing income tax, reporting accident)
b. Contract obligating D to act (lifeguard, nurse)
c. Special relationship (parent/child, spouses)
d. Voluntary assumption of care by D of victim. Generally there is no duty to help,
but once aid is rendered, Good Samaritan may be held criminally liable for not
satisfying reasonable standard of care.
e. Creation of peril by D.
2. D is aware of facts creating duty to act. (e.g. parent must know child is drowning before
being liable for failure to rescue). Sometimes law will impose duty to learn facts (e.g.
lifeguard asleep at post has legal duty to aid drowning swimmer).
3. Act is reasonably possible to perform. (Parent who can’t swim under no duty to save
drowning child).
iii. People v. Beardsley  D gets drunk/sleeps with woman while wife was away, she takes
morphine while with him and dies.
1. Defense: no legal duty to help woman. If it were two men, neither would be held
responsible for life of other.
2. Rule: Omission is only criminal if there is a legal duty.
iv. Jones v. U.S. D had mom and child live with his. Child severely malnutrition and died. D was
convicted with involuntary manslaughter based on his failure to provide for child. Trial judge
failed to charge the jury that it must find beyond a reasonable doubt that D was under a legal
duty to provide for child. D appeals.
1. Rule: Reversed; D had no legal duty to supply food. Moral obligation not enough.
v. Pope v. State  D took in mentally ill mom and child. Witnessed mom beat child but does not
give aid or report, child dies. Trial court found D guilty of child abuse and misprision of felony.
1. Rule: D had no duty because the mother was always present and D had no right to usurp
the role of the mother. Person cannot be punished for failing to fulfill a moral obligation
where no legal obligation exists. Misprision is also no longer chargeable offense.
2. Public policy – would be slippery slope to encourage people to usurp parenting role.
d. Conduct v. Result Crime
i. Result crime  forbidden result must occur; (no homicide w/o death)
ii. Conduct crime  has no required result; act itself is punishable (blackmail)
3. Mens Rea = the guilty mind (typically required but not for strict liability crimes).
a. Intent is not Motive. Good motive will not excuse crime; lawful act with bad motive is unpunished.
b. Purpose is to distinguish between inadvertent and intentional acts. Latter is more blameworthy and
arguably can be deterred.
c. MUST CONCUR WITH ACTUS REUS
i. A decides to kill B, drives to store to buy gun and negligently runs over B. No murder for A
because although he had intent to kill, it did not prompt the act (bad driving) causing B’s death.
ii. A decides to kill B, strangles him to point of unconsciousness but not death, buries B thinking he
is dead and B dies. In majority of courts, A is guilty of murder because death-causing act was
done with intent to kill B.
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FALL 2013 CRIMINAL LAW – FINAL EXAM OUTLINE
d. Common law distinctions:
i. Specific Intent: crime requires doing an act with specific intent or objective. Prosecution must
offer evidence proving the specific intent.
ii. Malice – Common law murder and arson (created to deny D of specific intent defenses)
iii. General Intent: D aware she is acting in proscribed way and any attendant circumstances
required are present (or reasonably certain they exist). Jury can infer required intent merely
from doing the act.
e. Model Penal Code  most state uses because it is clear and straightforward
i. Purposefully = conscious objective for forbidden result or wish them to exist (e.g. burglary)
ii. Knowingly = aware with high probability (and avoids learning truth) that required circumstances
exist; knows/substantially certain that result will occur.
iii. Recklessly = consciously disregards substantial likelihood that result will occur; constitutes gross
deviation from reasonable person standard of care for situation.
iv. Negligently = fails to be aware of substantial and unjustifiable risk that circumstances exist or a
result will follow; constitutes substantial deviation from reasonable person standard of care for
situation. D’s good intentions are irrelevant.
v. [Strict liability]  does not require awareness of factors constituting crime.
vi. Default Rules:
1. Any lower mental state applies if person fulfills the highest required
2. If not stated, mens rea applies to all elements of the crime (e.g. “knowingly makes a sale
of an intoxicating beverage to a minor,” D would avoid liability if she can show she did
not know that a sale happened, the beverage was intoxicating, or buyer was minor.)
3. Read in RECKLESSNESS if statute is silent on mens rea (for non-strict liability offense).
f.
Common Law  difficult to apply; no express definition; depends where you are
i. Intentionally ~ MPC purposefully
ii. Willfully ~ MPC knowingly
iii. Maliciously ~ MPC recklessly
iv. Negligently ~ MPC negligently
v. Psuedo Rules1. Judges don’t want to move to MPC because they have to relearn options
2. If mens rea is knowledge, reasonable or unreasonable mistake is defense
3. If mens rea is negligence, only reasonable mistake is a defense
4. If silent, default to strict liability, depending on if act is naturally good or bad.
g. Mistake of Fact
i. Common Law:
1. Mens rea = knowledge  any honest mistake of fact (even an unreasonable one) is a
defense.
2. Mens rea = negligence  only a reasonable mistake of fact is a defense.
3. If the statue specifies strict liability, then there is no mistake of fact defense.
4. If statute is silent, take value-laden approach: if imagined underlying act would have
been good, tends to allow mistake of fact defense. Otherwise, generally refuse defense.
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FALL 2013 CRIMINAL LAW – FINAL EXAM OUTLINE
ii. When reading in mens rea, consider Chilling Effect - discouraging legitimate exercise of legal
right by the threat of punishment (could be people in same situation or those who might fear
becoming implicated as accomplice if the statute is applied to broadly).
1. Reading in negligence is good middle ground  encourages people to investigate
before acting, but doesn’t chill behavior that is reasonably expected to be innocent, Jury
decides whether mistake was reasonable.
iii. Morisette v. U.S.  People hunt deer on Gov property despite signs to keep out. After
unsuccessful hunting, D took discarded bomb casings thinking they were abandoned, sold them
for profit. D charged with unlawfully and knowingly stealing and converting government
property. Trial court refused to let jury decide whether petitioner acted with innocent
intention. SCOTUS reversed.
1. Rule: When intent is ingredient of crime charged, jury should decide whether it exists.
2. Court took Common Law Value-laden approach: Bentham would approve – encourages
people to take useless junk and convert to profit. If honest mistake, no reason to punish.
Hamption: D not disregarding others’ rights; he didn’t think property belonged to
anyone.
3. MPC Approach  read “knowingly” into all elements of statute; better to restrict
criminal liability and give legislature impetus to expand the law.
iv. Regina v. Prince  D convicted of statutory rape for taking a 14-year-old unmarried girl out of
the possession and without the consent of her parents because she told him she was 18. Statue
was silent on mens rea.
1. Rule: Mistake of fact not a defense to a crime where the statute making the act a crime
contains no requirement of knowledge of that fact to begin with.
a. MPC: read in “knowingly” when statute is silent
b. COMMON LAW: act was bad so you read in strict liability; girl’s age irrelevant.
Result different than Morrisette because court wants to DETER people from
violation this statute; no fear of over-punishing.
v. Lesson from Tyco case  Mistake of fact when mens rea is “knowingly” is tricky – D argued that
his displays of wasting company money were so public it implies he honestly believed he had
right to abuse company assets  gave him honest mistake of fact defense.
vi. US v. Feola- D drug dealers assaulted federal officers who were acting as undercover
confederate agents. D sentenced with enhanced penalty for conspiracy to assault federal
officers. D argues he must have intent and knowledge to be guilty. Convicted.
1. Rule: Value laden approach again; conduct was wrongful regardless of knowledge. Also
purpose of the statute was to provide a federal forum for assault federal officers, so no
need to read in knowledge.
2. Deterrence: Strict liability desirable to deter possible assaults on federal officers, but
will it be effective if D does not know he is assaulting federal officer? Bentham: better to
construe narrowly and let legislature expand.
3. Fairness: Conduct was wrong regardless of officer’s status, but shouldn’t punishment be
proportional to crime? Someone who knowingly assaults fed officer arguably should be
punished more than someone who does not know.
4. Expressive value: All victims deserve expense of punishment capital, regardless of
federal status.
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FALL 2013 CRIMINAL LAW – FINAL EXAM OUTLINE
vii. Statutory Rape  where negligence standard may not be so good. No fear of chilling effect
here – we want to discourage adults having sex with minors.
1. Under most jurisidictions, no mens rea requirement with respect to age, and no
honest/reasonable mistake defenses.
2. Some states have Romeo & Juliet clause: if age difference is only a few years, does not
trigger statutory rape offense.
viii. State v. Stiffler  Rule: Majority view - not a defense to statutory rape charge that D
reasonably believed that the female with whom he had intercourse was at least 18 years old
h. Strict Liability/Public Welfare Offenses
i. Majority view = strict liability is constitutional.
ii. U.S. v. Balint  D indicted for violation of Narcotic Act. Appealed on grounds that they didn’t
know it was cocaine, but statue has no knowledge requirement. Appellate court denied.
1. Rule: Act’s purpose was to require person dealing in drugs to ascertain at his peril
whether that which he sold came within the inhibition of the statute.
2. B: good policy; purpose is to capture risky behavior. If “reasonable person should know
act is subject to stringent regulation and may seriously threaten society,” should be
deterred. Purely about welfare enhancement.
3. K: doesn’t like person being charged for the “good of society”
iii. Staples v. U.S. (outlier) D owned a semi-auto that had been altered to auto machinegun, but
failed to register under federal law. Statute is silent on mens rea and provides up to 10 years
imprisonment.
1. Minority View: Court did not read silence as default strict liability. D may assert defense
that he was not aware that weapon was automatic. Type of statute and harsh penalty
indicate that Congress did not intend to dispense with mens rea requirement.
i.
Mistake of Law
i. Ignorance of law is not a defense EXCEPT when:
1. Law itself requires knowledge of the law
2. D is mistaken about a law that is “collateral” to the law being enforced.
3. D relied on an official empowered to interpret the law.
ii. “Collateral law” as defense:
1. Common Law  any mistake of collateral law usually must be “honest” AND
“reasonable”; valid defense when mistake negates the mental element of crime.
2. MPC  more forgiving then common law; apply mens rea for the element in question.
iii. If accepted as defense, mistake of law effectively applies negligence standard  more incentive
for private citizens to learn law. Otherwise there is strict liability  diminishes value or learning
law, will be punished anyway.
iv. Long v. State  D married 1st wife in Delaware, where he had resided. After separating, D
moved to Arkansas (claimed to be for his health), where he lived for the statutory period
required to obtain a divorce. D got divorce, returned to Delaware and married his 2nd wife,
subsequently charged with bigamy. D argues for mistake of law as defense. Evidence showed he
made good effort to determine legality of 2nd marriage, relied in good faith on wrong legal
advice. Court accepted mistake of law as defense.
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FALL 2013 CRIMINAL LAW – FINAL EXAM OUTLINE
1. Rule: D did due diligence and relied on legal authority. “Collateral law” defense – D not
mistaken about bigamy law in DE, but was mistaken about legality of his divorce.
v. People v. Marrero  D carries gun into nightclub while off duty, thinking that peace officer rule
applies to him. D convicted of criminal possession of a weapon in 3rd degree, affirmed on appeal
1. Rule: to be valid defense, mistake of law must be based on an official statement of the
law, not subjective interpretation.
2. Dissent: law’s purpose is to deter wrong-doing and D was mistaken as to the
wrongfulness of an action and therefore did not intend to do a wrong.
3. Collateral law defense can still be value-laden  court will interpret a “good” mistaken
act to be mistake about collateral law.
vi. State v. King  D charged with possession of phentermine, after which it was made a controlled
substance under MN law. Trial court granted D’s motion to dismiss. Reversed on appeal.
vii. Reliance: when mistake results from reasonable reliance upon official, but mistaken statement
of law or law overruled, there is a defense.
1. US v. Albertini  D forbidden from entering military bases, he did anyway to conduct
peaceful protest, convicted of criminally re-entering military base after receipt of bar
letter (strict liability). Court reversed on appeal, holding that military base was a
temporary public forum during the open house. While petition for cert was pending, D
entered twice more during open house. SCOTUS said military base was NOT public
forum even during open house.
a. Rule: intervening convictions reversed because he was entitled to rely on
judicial pronouncement until cert was granted.
2. Cox v. Louisiana D permitted to demonstrate across the street from courthouse,
never told by police to leave. Rule: when statute delegates to someone else to define
term, you cannot charge D for following delegator’s instructions.
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FALL 2013 CRIMINAL LAW – FINAL EXAM OUTLINE
RAPE
1. Common Law: Penetration of female sex organ without victim’s effective consent. Majority have abolished
requirement that parties not be married.
a. No question re consent is raised if intercourse is accomplished by force. Consent obtained under
duress is ineffective. Victim does not need to “Resist to the utmost” if resistance is prevented. If victim is
incapable of consenting (unconscious, intoxicated, insane), sex with her is rape.
b. Consent obtained by fraud is rape if victim fraudulently caused to believe act is not intercourse.
1. Mens Rea
a. Knowledge (uncommon)  honest mistake of fact regarding consent is a defense.
i. Creates problem of subjectivity (consent) v. objectivity (theft)
ii. Dual consciousness (guy thinks she consented); no sometimes means yes (token resistance)
iii. Regina v. Morgan  D persuaded 3 friends to have intercourse with his wife, him included. Wife
resisted but Ds said they thought she was acting. H: still upheld conviction BUT honest mistake
of fact instruction is correct.
b. Recklessness (only Alaska)
i. Too difficult to frame so courts usually avoid
c. Negligence (majority) - reasonable mistake of fact
i. Problem of reasonableness dependent on the NORMS of the community
d. Strict Liability No means No (creates a chilling effect = good)
i. Argue what is preferred? Token resistance standard or infringing on some people’s view.
ii. Wisconsin: Yes means yes (need explicit consent)
iii. Massachusetts: No mean no, so once you hear “no” proceed at your own risk.
iv. Commonwealth v. Fisher & Commonwealth v. Lefkowitz  Strict liability standard, “a nice
woman does NOT need to resist.” Saying no is enough.
2. Actus Reus
a. Common Law  traditionally, force or threat of force required. Proven by physical resistance. Threat
must be enough to make reasonable woman submit.
b. State v. Rusk (MD) Met at bar and drank together, P drives D home and D asks her to come in, takes
her car keys. According to P she asked “if I have sex with you, will you not kill me” and D says it was
consensual. First appeal: rape conviction reversed because of victim’s lack of resistance. Final appeal:
conviction affirmed because only question is whether victim’s apprehension was reasonable under
circumstance; no physical resistance is required.
c. State in Interest of MTS (NJ) 17 yr old boy and 15 yr old victim lived in same house, had kissed before.
She claims she awoke to him having sex with her; he claims she consented. Convicted.
i. New Rule: court essential read “force” element out of statute. Found that she did not give
consent, so lack of physical resistance is not required.
ii. Public policy: moving towards defining it like other assaults.
d. Commonwealth v. Berkowitz  victim never physically resisted D, but she did repeatedly verbally
protest. They had sex and D convicted of “indecent assault”
i. How does society view labels? Hierarchy of rape-like offenses allows jury to convict when
incident does not meet traditional idea of “rape”.
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FALL 2013 CRIMINAL LAW – FINAL EXAM OUTLINE
HOMICIDE
Common Law
(Majority)
1st Degree
Murder
2nd Degree
Murder
Intentional (purpose or
knowledge)
Premeditated
Unintentional (neither
purpose or knowledge)
Killing during a felony
Intentional but
unpremeditated
Voluntary
Manslaughter
Adequate provocation (verbal
never sufficient)
+ heat of passion
+ insufficient cooling time
Felony murder
Gross recklessness
Intent to inflict great
bodily harm
Gross negligence or
recklessness
Unlawful act
1st Degree Murder
2nd Degree Murder
Involuntary Manslaughter
1. First Degree Murder v. Second Degree Murder
a. Common Law/Conventional/PA Method:
i. 1st Degree  All murder perpetrated by poison or lying in wait; or by any other kind of willful,
deliberate and premeditated killing, or felony murder (listed ones in statute)
ii. 2nd Degree  Every other kind of murder (and every other felony murder not listed under 1st
degree)
b. MPC  abolished degrees. Murder =
i. Purposefully or knowingly killing another human being (similar to intentional murder)
ii. Killing another human being in circumstances showing extreme recklessness (similar to
depraved heart murder)
iii. NO FELONY MURDER, but rebuttable presumption that that defendant acted with extreme
indifference to human life for killings that occur during listed felonies.
c. Commonwealth v. Carrol (PA)  D and wife argue, Wife is schizo. About 5 min after her last statement
while laying in bed, he remembered he had loaded gun and shot her twice, killing her. D argues for 2nd
degree murder – says there was no premeditation.
i. Rule: Premeditation can be instantaneous. “No time is too short for a wicked man to frame in
his mind the scheme of murder” (intent inferred from deadly weapon on vital body part).
ii. States like PA require very little for adequate premeditation.
iii. Public policy: society is protected by not allowing emotional impulse to be an excuse, but can
you deter someone who is in a fit of rage?
d. People v. Anderson (CA)  Trial court convicted D of 1st degree murder for killing 10-year old girl. On
appeal, reversed and reduced to 2nd degree.
i. Rule: Premeditation in CA requires proof of some design (prior acts, motive, manner of killing)
before the act. D stabbed girl to death in brutal, messy way, even stabbed her after death 
actually mitigates culpability here.
ii. Bentham: those who premeditate will have calculated the likelihood of getting caught, and so
will take actions after the killing to hide it. People who get caught are likely the ones who didn’t
plan things out beforehand.
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FALL 2013 CRIMINAL LAW – FINAL EXAM OUTLINE
2. Voluntary Manslaughter
a. Huge difference in penalty between Murder and Voluntary Manslaughter
b. Majority/Common law: Intentional killing + Adequate provocation + heat of passion, without sufficient
cooling time.
c. Few states/MPC: killing recklessly OR killing under the influence of extreme mental or emotional
disturbance for which there is reasonable excuse. (much more liberal than CL). Also includes involuntary
manslaughter.
d. State v. Thornton  D and wife separated, D trying to get her back, wife said she’s dating other people.
D went to see wife and saw victim, went back to get camera to take pics of them, also took his gun for
protection. D is small and weak; victim was much stronger. D walks in on wife and victim having sex,
attempts to take pics, then shot victim in the leg. Victim dies of infection. D convicted of 1st degree
murder. Reduced to voluntary manslaughter on appeal.
i. Rule: Adequate provocation  would it cause a reasonable person to act on passion instead of
reason? Yes in this case. No intent to kill  D only shot victim in the leg; reasonable fear for his
own safety due to victim’s strength.
ii. SN: Maryland only state that has gotten rid of marital infidelity rule.
e. Commonwealth v. Carr  D sees lesbians in erotic acts while camping, shoots them both and claims that
he has history of psychological illness regarding homosexuality. Trial court convicted of 1st degree
murder. Affirmed on appeal.
i. Rule: adequate provocation is an objective test, so an individual’s specific situation does not
matter. Any reasonable person knowing his own mental issues would have stopped watching.
f. People v. Cassassa (MPC Approach in NY) D liked a girl, she denied him, he stabs her multiple times
and then drowns the body. Convicted of murder, affirmed on appeal.
i. MPC Rule: Extreme mental disturbance is an excuse but not for him. Subjective-acted under
influence of a disturbance. Objective- reasonable response to the disturbance.
3. Involuntary Manslaughter:
a. Common Law  Unlawful killing with negligence or recklessness. It is not so grossly reckless that it
would be considered depraved heart murder. Can also be result of strict liability (misdemeanor
manslaughter) – A kills B while running red light, liable.
b. MPC  not distinguished from voluntary.
c. Commonwealth v. Welansky  Nightclub owner D was hospitalized, left staff in charge. One employee
dropped match and started fire, all emergency exits were blocked and 492 patrons died. D’s operation =
wanton and reckless conduct. Convicted.
i. Rationale: D was not aware of risk, but has duty as business owner to learn the risks to his
patrons. Jury will likely weigh D’s intentions in evaluating culpability.
d. State v. Williams - Indian parents don’t take child to hospital when his tooth got infected, child died.
Wisconsin Rule- conviction based on negligence if parents did not take reasonable care.
i. Justice Thomas- letting person off for ignorance would diminish their dignity (Kant).
4. Depraved & Malignant Heart Murder (Common Law, under 2nd degree)
a. Killing someone in a way that demonstrates a callous disregard for the value of human life. E.g., if a
person intentionally fires a gun into a crowded room, and someone dies.
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FALL 2013 CRIMINAL LAW – FINAL EXAM OUTLINE
b. Commonwealth v. Malone  17 year old playing Russian poker shoots 3 times at 13 yr old, kills him. Not
1st degree murder because lack of premeditation, but crosses the line of involuntary manslaughter into
2nd degree murder.
i. Rule: malice does not have to be malevolent to the deceased, but “wickedness of disposition”
c. United States v. Fleming D is drunk and speeding, kills woman. Convicted of 2nd degree murder,
appeals on grounds that he did not have malice and should be reduced to manslaughter. Denied.
i. Rule: when voluntary intoxicated, mens rea is moved to the time of drinking and not the time
of accident. That mens rea eliminates the necessity of awareness of the risk. State only needs
to show D intended to operate his car in the manner that he did – with excessive speed and
drunk - and that he did so without regard for the life of others.
d. People v. Watson  Drunk, missed one car, but hits the next one killing passenger. 2nd degree murder.
i. CA Rule: D acted wantonly and with reckless disregard to human life.
5. Felony Murder
a. No felony murder in MPC. Rebuttal presumption of disregard for human life.
b. Common Law:
i. 1st degree felony murder  felonies listed in statute that serve as basis. If killing is committed
during one of these, no purpose/premeditation required for conviction (accident counts). Jury
instructions need only contain required elements of the felony, no need for intent/purpose to
kill. Common felonies = burglary, arson, rape, robbery, kidnapping, and other felonies inherently
dangerous to human life. Some states  certain ways of killing (lying in wait, poison, torture)
ii. 2nd degree felony murder  not listed under 1st degree felony murder. (possession of narcotics,
etc.) Ask  is it inherently dangerous to human life?
c. Most states recognize Merger – only apply felony murder where predicate felony is independent of
the killing (manslaughter, battery, assault, etc. do not qualify for predicate felony)
i. If D has substantive defense that negates underlying felony, he has defense to felony murder.
ii. Majority requires death be a foreseeable result of felony, but most courts are willing to find
death foreseeable.
d. Regina v. Serne Co-Ds indicted for the murder of Serne’s sons. Allegedly set fire to Serne’s house for
insurance money. Convicted of 1st degree felony murder.
i. Rule: any act done with the intent to commit a felony and which causes death amounts to
murder.
e. People v. Aaron (Minority View) Rule: need intent to kill or cause GBH or wanton/willful disregard in
addition to malice for underlying offense. Most courts think that legislature not court should change
f. People v. Phillips Daughter has eye cancer, chiropractor promises that he will heal her. H: grand theft
is not inherently dangerous (elements approach). Under facts approach- he would have been guilty.
g. People v. Smith  D beat child to death. Merger: if crime causes death, it is merged with murder count
(battery, assault, child abuse)
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FALL 2013 CRIMINAL LAW – FINAL EXAM OUTLINE
INCHOATE CRIMES
1. Attempts
[highlighted = majority]
Actus Reus
Mens Rea
Punishment
Renunciation
j.
k.
l.
m.
n.
o.
Common law
Dangerous proximity
Purpose (specific intent) no matter
what the mens rea of the offense
Half of real offense
None, cannot abandon
MPC
Substantial step
Same mens rea for “conduct
crimes”; purpose for “result
crimes”
Equal to full offense
Complete and voluntary
renunciation
Elements:
i. Specific Intent to commit the crime.
1. Majority/MPC  same mens rea for conduct crimes; purpose for results crimes
2. Reckless or negligent crime cannot be attempted – if attempt is made, it becomes
attempt to intentionally commit crime.
3. Attempt to commit strict liability crime requires intent (although crime itself does not)
ii. Overt act beyond mere preparation in furtherance of that intent.
1. Majority/MPC  Substantial step (must be strong corroboration of criminal purpose).
a. E.g. lying in wait, enticing, reconnoitering, soliciting
b. Broader than Common law approach  encourages abandonment  good
deterrence
2. Traditional/CL  Dangerous proximity (pointing loaded gun is; not buying bullets)
If completed, attempt merges with principal offense (unlike conspiracy)
Commonwealth v. Peaslee  D arranged to blow up building – explosives set up, offered to pay a guy to
light them but guy refused. D and guy drove to building, but D changed mind and never got closer than
¼ miles away. Trial court charged attempted arson, Appellate court reversed.
i. Rule: D did not show a present intent to set fire and he did not, at any time, come close to
setting fire. (used Common Law proximity test)
People v. Rizzo D and 3 others agree to rob a guy, drove around looking for him but police started
following them. They were arrested before they found their target. Charged with attempted robbery
and appealed. Appellate court reversed.
i. Rule: Significant acts must actually come or advance very near the accomplishment of the
intended crime. D never found target, never had opportunity to commit crime.
ii. Imagine conduct without alleged intent  If it’s something people could do without intention
to commit a crime, like driving around, it cannot be considered “dangerously proximate.”
US v. Buffington  Police were informed that Ds were going to rob a bank and shopping center. Ds
approached targets but never actually went inside before they were arrested. They were carrying
firearms. Ds charged with attempted robbery but appellate court reversed.
i. Rule: Mere preparation not a substantial step.
People v. Dorsey  D admitted that he had intention to make 30-150 g of meth, but at time of arrest he
only had enough supplies to make at most 15.25 g. Not convicted.
i. Rule: Intent alone is not enough; needs "substantial step" toward manufacturing the claimed
amount of drugs, otherwise cannot convict. Dissent: intent should be culpable.
ii. Fairness: Doesn’t make sense to punish for unrealistic intentions.
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FALL 2013 CRIMINAL LAW – FINAL EXAM OUTLINE
p. Legal Impossibility is a defense; Factual Impossibility is not.
i. Courts are more willing to treat factual impossibility that bumps up grade of the offense as not
relevant to the liability of the offense.
2. Group Criminality
a. Accomplice Liability
i. Underlying offense and accomplice offense run parallel; add more requirements to accomplice
because D is not committing the actual crime.
ii. Common Law  4 types of parties to a felony. Most modern courts have abolished.
1. Principal in the 1st degree (actually engages in act/omission)
2. Principals in the 2nd degree (aid/command/encourage the principal; present at scene)
3. Accessories before the fact (aid/abet/encourage principal; NOT present at scene)
4. Accessories after the fact (assist principal after crime)
iii. Modern Approach  all “parties to the crime” can be found guilty
1. Principal = with requisite mental state, actually engages in the act/omission; also anyone
who acts through an innocent, irresponsible, or unwilling agent.
2. Accomplice = with intent to assist principal and intent that principal commit the crime,
actually aids/counsels/encourages the principal before/during the commission.
3. Accessory after the fact = acts to help felon escape arrest, trial, or conviction. Principal’s
crime must be felony and must be completed at time of aid. Usual max sentence = 5 yrs.
iv. Actus Reus
1. Wilcox v. Jeffrey  D charged with aiding and abetting because he paid to attend an
illegal jazz concert, then wrote an article about it. His attendance encouraged the illegal
act. Defense could argue that Wilcox was not an integral part of the crime. His presence
was a passive contribution.
a. Rule  minimal Actus reus requirement; perpetrator need not even know D
was “aiding & abetting” him.
2. Martin v. Tally  Judge sends telegram to operator to not warn victim that he was
being pursued. Court says Tally deprived victim of possible chance of survival – and this
suffices as aiding and abetting.
v. Mens Rea
1. Dual intent required for accomplice:
a. (1) to assist principal, and (2) that principal commit the underlying crime.
b. For underlying crime with Recklesness/Negligence mens rea, requires (1) intent
to facilitate, and (2) acting with recklessness/negligence.
2. Suggestive measure of “purposefully” – “stake in the venture” or “criminal nexus”
a. A tells B he wants to buy can of gas for arson. B sells A can of gas and A commits
arson. B not liable as accomplice unless it was illegal to sell gas in cans or B
charged twice his usual price because of A’s purpose.
3. Wilson v. People  Wilson set up Pierce for a burglary then called the police to get
even, believing that Pierce had stolen his watch. Wilson charged with aiding and
abetting. Appealed that jury instruction should have contained a requirement that D
had the felonious intent to commit the burglary.
a. Rule: Reversed. Jury should decide if D has required mens rea.
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FALL 2013 CRIMINAL LAW – FINAL EXAM OUTLINE
4. State v. Gladstone  Undercover agent tries to buy weed from D, he directs agent to
another seller (Kent) with address and map. No evidence of any communication
between D and Kent. D charged with aiding/abetting and appeals.
a. Rule: Remanded to be dismissed. D did not have did not have any
understanding, agreement or purpose, intention or design to participate in the
purchase. No stake in venture.
5. Institutional question: who should decide if it should be purpose or knowledge? If
legislature doesn’t like court decision, they can overturn it with statute.
vi. Derivative Liability
1. What if principal doesn’t commit the crime?
2. When is accomplice liable when principal is not?
a. Common Law = never; MPC = sometimes
3. State v. Hayes (CL)  D asked Hill to help him rob store, not knowing Hill’s relatives
owned store. Hill pretended to go along at police request. Hayes opened window and
Hill entered and stole bacon. Hayes charged with burglary, argued that he never entered
store so can only be aid/abetting. But Hill’s intent was to help police, not commit crime.
a. Rule: Unlawful acts of one defendant are imputable to another only where
there is a “common motive and a common design.” D cannot be charged with
burglary because accomplice (Hill) had no felonious intent.
4. Vaden v. State (MPC)  D takes undercover agent on trip to kill foxes out of season. D
argued that charges should have been dropped because the undercover agents who
hired them as guides also engaged in illegal hunting and fishing activity.
a. Rule: Convictions affirmed. There is liability as long as he believes the principal
will or has committed the crime. Justifications are personal, non-transferable to
accomplice.
vii. Gebardi Exception  victim or class of people to be protected cannot be conspirator/aider or
abettor of a crime.
1. Gebardi v. U.S.  Mann act makes it unlawful to carry a woman across state lines for
prostitution or debauchery. Ds were not then husband/wife, indicted for conspiring to
transport the woman between states for prostitution.
a. Rule: Gebardi Exception. Both convictions reversed because mere acquiesce by
transported woman cannot lead to punishment under Mann act.
b. Policy: without this exception, pimps and prostitutes would be punished alike
2. U.S. v. Pino-Perez  D sells drugs to king pin who then distributes, but D deals in much
larger quantities than kingpin. D convicted of aiding/abetting, appeals.
a. Rule: Conviction affirmed. Gebardi Exception only applies to minions under the
king pin, not the seller. Statute requires aider/abettor get same punishment as
principal.
b. WWBD: limit liability; if the legislature doesn’t like it, they will change the law.
3. Limitations: Culpability capped at the principal (Hayes); MPC- only applies to
justification defenses and sometimes not event then (Vaden).
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FALL 2013 CRIMINAL LAW – FINAL EXAM OUTLINE
b. Conspiracy
i. Common Law  agreement between two or more persons to accomplish some criminal or
unlawful purpose, or to accomplish lawful purpose by unlawful means.
1. Many states expanded by making it a crime to conspire to commit acts injurious to
public welfare. SCOTUS says these statutes are unconstitutionally vague unless
construed narrowly.
Rule
Requires overt act?
Able to withdraw?
Cumulative punishment?
Common Law
No
No
Yes (majority)
MPC
Yes (majority)
Yes (majority)
No
ii. No merger (Majority)  If conspirators are successful, can be convicted of both criminal
conspiracy and substantive offense.
iii. Pinkerton v. U.S.  Brothers Walter and Daniel both found guilty of violating tax code and
conspiracy. Actual crime may have been making moonshine but gov prosecuted tax evasion. No
evidence that Daniel committed substantive crime; he appealed.
1. Rule: once agreement is made, if you do not make affirmative steps to withdraw, you
are responsible for all acts in furtherance.
2. Pinkerton Doctrine: D is liable of any foreseeable crimes committed by co-conspirators
in furtherance of conspiracy, as long as he is still part of the conspiracy when those
crimes are committed.
a. Any conspirator is subject to the stupidity and recklessness of co-conspirator.
iv. Elements
1. Actus Reus = agreement between two or more persons;
a. Majority requires overt act, but mere preparation will usually suffice. Also
requires object to be some crime/felony, or achievement of lawful object by
criminal means.
b. Need not be express agreement, can be concert of action over period of time
under circumstances showing they were aware of purpose /existence of
conspiracy (But courts increasingly unwilling to infer agreement).
2. Mens Rea = intent to agree AND intent to achieve objective of agreement.
a. Intent to agree can be inferred from conduct.
b. Intent to achieve objective for each D must be established. Common Law – at
least 2 persons must intend to achieve same purpose.
c. Modern trend/MPC: “Unilateral”  only one party need have genuine criminal
intent (D can be convicted if conspiring with undercover agent).
d. Traditonal/CL: “Bilateral”  if one party is feigning agreement, other cannot be
convicted. Husband/wife, Corporation/single agent cannot conspire together.
e. Intent to facilitate  cannot be inferred from knowledge. (Merchant who sells
good in ordinary course of business that he knows will be used to further
conspiracy does not join conspiracy. But may be liable if he sells specialty item
or otherwise has stake in venture.)
f. Knowledge  Majority = need not be aware of plan being illegal.
g. Conspiracy to commit Strict Liability crimes Majority = requires intent (A and
B agree to persuade 12-yr-old C to have sex with one of them and think she is
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FALL 2013 CRIMINAL LAW – FINAL EXAM OUTLINE
21. No conspiracy charge because it requires knowledge of C’s age, even though
crime of statutory rape does not.)
3. Withdrawal = not a defense to conspiracy charge of crimes already done.
a. MPC/Majority  withdrawal is defense if D takes affirmative act to notify all
members of conspiracy in time for them to abandon, and notifies authorities.
b. D is guilty if he fails to withdraw, even if he no longer has mens rea.
4. Impossibility  factual impossibility NOT a defense, but legal impossibility is.
v. Why charge for conspiracy? hearsay rules don’t apply (each member’s statement can be used
against others), venue is where any overt act took place, statute of limitations doesn’t start until
final act is committed, leverage for confessions & plea bargains, easy to charge (only need
agreement and overt act).
vi. Conspiracy v. Accomplice Liability
1. Conspiracy allows members of group who do not directly aid others’ acts to be
convicted; not true in accomplice.
2. Majority = no gradation of punishment in conspiracy.
vii. Cases
1. Interstate Circuit v. US  Two theater chains agreed to send letters to eight movie
distributors proposing contracts with price fixing. Each letter had names of all eight
distributors receiving it. All of the Ds agreed to terms but didn’t talk with each other.
a. H: unified action + knowledge of nature of price fixing = inference of agreement.
Conspiracy can exist without express agreement to enter into a conspiracy.
2. US v. Alvarez  Prior to unloading drugs concealed in appliances from truck to be put
on a U.S. bound airplane, D smiled and nodded when undercover agent asked if he
would be at the unloading site. D convicted of conspiring to transport weed.
a. Rule: D guilty, even if he joined conspiracy until well after its inception and
played only a minor role therein.
b. Dissent: Evidence shows only he unloaded appliance and agreed to be at
unloading site; does not indicate he knew criminal activity was involved.
Difference from Interstate: price fixing scheme requires participation of all
members so agreement implied in conduct; if Alvarez withdraws it will have
little effect on entire operation.
3. US v. Stavoulakis  D and his conspirator bank officer were charged with laundring
money. He knew the money came from narcotics and conspirator thought it came from
gambling. Ds argue that they cannot be charged with conspiracy because they believed
the money came from different sources.
a. Rule: mistake of fact is NOT a defense. Source of money not central to money
laundering scheme. Prosecution can argue he was negligent towards source of
money – had duty to determine if it came from illegal source.
4. Agreeement- the more you can get jurors to think the “act” is a societal way of
agreeing, the more likely they will convict.
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FALL 2013 CRIMINAL LAW – FINAL EXAM OUTLINE
DEFENSES
1. Justification – D must show some evidence that act was justified, then state may require prosecution to prove
that use of force was not justified, or may impose on D the burden of proving defense by preponderance of
evidence.
2. Self-Defense
a. D who is without fault may use such force as she reasonably believes is necessary to protect form
imminent use of unlawful force upon herself.
b. State v. Nahak  D repeatedly bullied at bar and police advised him to stop going. He returns with a gun
and shoots/kills the two men who picked on him. Convicted of manslaughter.
i. Minority Rule- self-defense justifies conduct even if conduct unreasonable, protect against
dignity.
c. People v. Goetz  D riding subway when a black youth approached him and asked for $5. He
methodically shoots the boy and his three companions. D said he meant to kill all of them, even after
the first shot made the boys disperse. Defense argues that because of his prior experience, his fear for
life was reasonable under circumstances.
i. Rule: objective standard of apprehension should apply to D. Reinstated all counts of indictment.
d. Imperfect self defense when someone’s belief of imminent threat is honest but unreasonable, his
conviction could be reduced to manslaughter
e. Differences in MPC:
i. No imminence requirement. Defense needs to be “immediately necessary to protect against
prospect of unlawful force.”
ii. D negligently/recklessly makes mistake about how much force is necessary to defend, still
entitled to self-defense.
iii. Allows for battered woman syndrome as defense.
f. Duty to Retreati. True Man Doctrine (Majority) NO duty to retreat if 1) in a place you have a right to be, 2)
must perceive imminent threat that lethal force was necessary to defeat
ii. Castle Doctrine (Even minority states that impose duty to retreat): No duty to retreat if in your
home, except if aggressor also lives there.
1. Yoshirio Hattori Shooting- neighbor shoots exchange student who scares wife. H:
acquitted at trial under Castle doctrine. Then new law barring civil claims for “lawful
shooting.”
iii. All jurisdictions  no duty to retreat to defend against rape, robbery, or while using force in
course of making lawful arrest.
g. The Battered Woman
i. Cycle of physical and emotion abuse which erodes the woman’s sense of dignity and self worth.
She becomes entrenched in the belief that if she leaves her husband/aggressor he will kill her.
She remains with him even though the cycle repeats.
ii. State v. Norman- D was severely abused and shot her husband while he was sleeping.
1. Defense tries to argue complete self-defense (which would result in acquittal);
prosecution asks: Why didn’t she leave husband? Battered woman syndrome testimony
would have made her more credible.
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FALL 2013 CRIMINAL LAW – FINAL EXAM OUTLINE
2. Rule: Not entitled to self-defense in jury instruction. D was not confronted with
imminent death or great bodily harm; court does not want to encourage this type of
“homicidal self-help.”
iii. Justifiable Homicide- you assume the risk IF you keep beating someone up.
1. Should courts or legislature decide if this is a defense? WWBD
2. If courts have the defense, all of society isn’t aware and it is applied case by case
3. Necessity
a. D is not excused, only justified, when confronted with a choice between committing a crime and abating
an imminent, greater evil by committing the crime.
b. Common Law (Majority) 1) imminent greater evil requires choice, 2) choice not created by D, 3) D
chooses lesser evil. Not contrary to legislative intent (if legistlature ruled it out) & not a defense to
homicide.
i. MPC (Minority) 1) immanency not required but bears on claim of no alternatives; 2) self-created
choices aren’t barred (may be liable for reckless/negligent crimes); defense to homicide
ii. Buckoke v. Greater London  fire truck running red light is illegal but necessary to save life
iii. Lovercamp Doctrine (conjunctive): Prisoner faced specific immediate threat of death, forcible sexual
attack or substantial bodily injury; No time for a complaint to authorities or a history of futile
complaints; No time or opportunity to resort to the courts; No force or violence towards prison
personnel or other ‘innocent’ persons; Prisoner immediately reports to authorities when he has attained
safety from the immediate threat.
iv. People v. UngeI D escaped work camp in fear of sexual assault and an unknown person who called
him with a death threat. D claims he was planning to return once he had legal counsel.
1. Rule: does not meet lovercamp doctrine.
v. U.S. v. Schoon  D broke into IRS office in protest of US military activities in El Salvador, claimed it was
necessary to avoid further bloodshed.
1. Rule: not a defense because alternative avenue existed (lobbying legislature), and D’s
actions would not abate the evil.
vi. U.S. v. Hill  D shot and killed abortion doctor, claims necessity because he was preventing greater evil
of imminent abortions doctor would have performed.
1. Rule: abortion is constitutionally legal, not evil to be abated. Necessity not a defense to
homicide under common law
vii. Regina v. Dudley & Stephens- Three men eat boy boy to stay alive. Necessity not a defense to murder
1. Attempt- substantial step
2. Accomplice liability- mens rea of act plus encouragement (Alvarez)
3. Conspiracy- agreement plus overt act (Pinkerton)
4. B: utility (1 better than 4 dead v. General deterrence for the community); K: cannot treat people
as a means to an end (kill yourself or cast lots); H: what does this express
4. Excuses  D behavior is socially undesirable but D should not be blamed
a. Duress
i. Bentham/Kant’s Voluntarist Theory: D is excused for her bad acts because she could not resist
the threat of force. Where the will is “overcome” it is impossible to deter and unjust to punish.
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FALL 2013 CRIMINAL LAW – FINAL EXAM OUTLINE
ii. Hampton’s Expressive theory: D is excused for her bad acts if they reflect appropriate values. As
with necessity, courts will weigh the moral quality of the choice made.
MPC [more in line with B/K approach]
CL (MAJORITY)
Threat of
unlawful force
death or GBH [keeps defense narrow]
Against
any person
D or close friend or relative
Reasonableness
person of reasonable firmness would resist
Ordinary person would yield
Imminence
need not be imminent
MUST be imminent (limits alternative)
Self-created
not recklessly, knowingly, purposefully
not allowed AT ALL
Murder
available
not available
iii. State v. Toscano  D committed insurance fraud under physical threat to him and his wife. Trial
court denied duress, but reversed on appeal.
1. Rule: Court adopts MPC view that immanency is note required; police might not be able
to prevent future harm from happening.
iv. People v. Romero D argues she was coerced by boyfriend and suffers battered women
syndrome. She wants court to present expert opinion on battered women syndrome to lend
credibility to her defense of duress
1. Jury views her act as forgivable – values own life over money/property of others.
v. Webb  Mother does not report husband killing their child. Claims BWS for not reporting.
1. Even if she makes the claim, people not likely to acquit. Social norms of mom obligation.
vi. Fleming  POW threatened with deathly march to another camp or being locked in a pit of
human waste, other prisoners didn’t submit. D had no reasonable chance to escape.
1. Military personnel different standard
vii. Contento-Pachon  forced to swallow balloons of cocaine to smuggle into US or they would kill
him and his family. D had reasonable chance to escape.
b. Insanity
i. M’Naghten Rule (Majority)  must prove that D (1) did not know the nature and quality of act
OR (2) did not know what she was doing is wrong.
1. Shortcoming: does not distinguish between those who can distinguish good and evil but
has no control over behavior.
ii. Durham  D not responsible for actions that are product of mental disease (broader than
M’Naughten). E.g. Knows something is wrong, but thinks god is telling her to do it.
1. Advantages: eliminates “right-wrong” dichotomy, permits expert testimony
iii. MPC Volitional, D is excused when mental disease impairs capacity to control behavior.
1. Irresistible impulse is a defense (most liberal)
iv. Most states follow Federal Code:
1. Insanity is affirmative defense when D was unable to appreciate nature/quality or
wrongfulness of acts at time of commission.
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FALL 2013 CRIMINAL LAW – FINAL EXAM OUTLINE
2. D has burden of proving insanity by clear and convincing evidence.
v. US v. Freeman  D found guilty of selling narcotics under M’Naghten rule. D expert said that he
suffers from frequent toxic psychosis and delusions; cognizant of selling heroine but not that it
was wrong. P said he could distinguish, evidenced by fact that he feared getting caught.
1. Rule: M’Naughten too restrictice; reversed conviction.
vi. State v. Green  D had long history of mental illness, charged with 1st degree murder of officer.
D tried under MPC and insanity was sole defense. On appeal, experts say he was insane, likely
responding to voices.
1. Rule: In light of evidence of mental history, burden fell on prosecution to prove his
sanity beyond a reasonable doubt (Edward Standard), which they failed to do
vii. Lorena Bobbitt  Cut off husband’s penis with kitchen knife after he raped her, claimed
temporary insanity.
1. Rule: Jury accepted that she suffered from battered woman syndrome, but not that she
was in “brief reactive psychosis” when she committed the act. Still acquitted.
SELF DEFENSE- FL
1. Trayvon Martin
Best Pros- don’t pursue, Trayvon has on weapon, uses the “n” word on phone call
If while in the altercation, it can be voluntary manslaughter
2nd Degree- no premeditation and start the fight so shooting isn’t adequate provocation; second degree
1st Degree- told not to go and still does, may be premeditation (tough)
If he is first aggressor, he can’t then claim self-defense because he gets beat up.
Best Def- laceration on the back of head
Since he wasn’t the first aggressor and he is attacked, he has reasonable belief of death/GBH and lethal force is
necessary when head being banged on concrete *Self-defense
DEFINTION of Culpable negligence was a cluster bumble of words that made crap more confusing. (cloud of
words)
2. Marissa Alexander- fight over text messages saying she will leave the current husband to go back to exhusband.
Best Def- her going back isn’t lack of fear, they have a baby together; garage door didn’t work
Best Pros- she left his presence to get gun and then came back; he has a right to be in the house too; children
were in the house
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