I.
Themes
A. Weaving of the Facts
B. Time Frame
C. Roles: Discretion of the Prosecutor
D. Role of the Jury & The Courts: Matters of Fact v. Law
E. Role of Trial and Appellate Court Judges
F. Marginalization/Race
G. Regina v. Dudley Stevens (Shipwrecked at Sea) p. 7-12
1. Facts:
a. Consideration of role of identity (captain, crew, & young eaten boy attracted by experience)
b. Issue: Is there willful murder when they kill young boy who might not otherwise live without his
consent? Is there a duty of Capt. To passengers/crew? Is there a duty to the young boy?
2. Rule:
a. Temptation is not an excuse
b. You cannot allow compassion for the criminal to weaken the legal definition of the crime they
committed.
II. Basic Principles and Constitutional Limitations
A. Basic Principles
1. Elements of a Crime:
a. Actus Reus: the prohibited act/social harm
b. Mens Rea: the prohibited mental state
c. Causation: links the actions with social harm
d. Concurrence: requirement that the actus reus and mens rea occur at the same time
2. Justifications
a. General Deterrence: Punishment to deter others from committing ht esame or similar defenses.
b. Specific Deterrence: Punishment to deter the individual defendant from committing the same crime in
the future
c. Rehab. (restorative justice): reform through vocational training, counseling, and drug counseling
d. Incapacitation/Isolation: Incarceration to keep D away from society
e. Retribution: Giving the D what he deserves
f. Cases
i. People v. Suite (unlicensed handgun in NYC) p 12-21
A) Facts
1) NY had a strict gun statute requiring all guns to be licensed
2) General Deterrence Case (deter unlicensed possesstion)
3) Issue: Whether a mandatory minimum sentence with the purpose of deterrence that
carries significant jail time is excessive.
4) Enforcement of LHno leniency
B) Rule: Legislature has great latitude of deciding which ills of society require criminal
sanctions and imposing punishments critical to each
C) Dissent:
1) Discussion of the objectives of punishments and fairness
2) Mandatory sentences prevents asking the following:
a) “Is it a proper exercise of discression to sentence a first offender who poses no
threat to society?”
b) “Does the nature of the crime committed make it a serious threat to community?”
ii. C-Blecker (Lorton Central Prison Study) p 21
A) VA prison survey
B) Findings: Prisons are good for retribution, alone.
1) Retribution: Prison officers ignore prisoners criminal records and sever the essential
retributive connection btw the past crime committed and punishment.
2) Gen. Deter.: The Criminal does not calculate the punishment before committing
crime. Children visiting prison associate prison with “family closeness.” People think
that engaging in criminal activity is an easy track to affluence/abundance.
3) Incapacitation: Inside prisons is more dangerous and noone’s incapacited (narcotics,
theft, assault, and murder).
4) Spec. Deterence:
a) Prisons are (1) a refuge and (2) an accepted part of life.
3.
4.
5.
b) It may work, ONLY, where family is the great motivator
5) Rehabil.: Recidivism (back out back in)
iii. C-Braithwaite ( ): pp1152-1155
A) Restorative justice (Rehabil.)
B) Goes beyond indiv. to involved community through the “healing circle.”
C) To make crime prevention work:
1) To create a supportive environment where difficult things becomes possible
2) Community ownership
3) Bring perspectives of stakeholder in (criminal’s girlfriend)
4) Allow citizens to freely choose to change behaviour (v. coercion)
5) Crime prevention should be transacted through networks of social support.
iv. C-White: 1083-1086
A) Looks at theories of punishment
B) abandons ends-means analysis.
C) Emphasizes that punishment derives meaning from community (blaming as preassure)
Presumption of Innocence & Proof Beyond a Reasonable Doubt
a. Burden of Proof: “beyond a reasonable Doubt.”
i. Burden of Production: Init. Responsibility to produce ev. In support of claim
ii. Burden of Persuasion: ultimate responsibility of proving that offense is committee or that
elements of D are present/absent.
A) Offense: Prosecution bears the burden
B) Defenses:
1) Prosecution
a) All in Case in Chief/PF Defense
b) Affirmative Defenses, unless otherwise specified
2) Defense
a) Where specified by legislature
iii. Defense Strategies
A) Case in Chief/Prima Facie Defense: D only need create a “reasonable doubt” as to an
element
B) Affirmative Defense: Acquittal b/c (1) it was justified, or (2) excuse
Standards of Review
a. Directed Verdict: Requires both:
i. TJ asks whether prosecution has proved case “beyond a reasonable doubt, AND
ii. Sufficient evidence that a rational jury could decide that prosecution could prove defense beyond
a reasonable doubt.
b. Appeal After Conviction: Sufficiency of evidence asks whether rat. Jury “could have’ found D guilty
beyond a reasonable doubty
c. Cases:
i. Curly v. US:
A) Facts pp 40-44
1) Violation of mail fraud statute
2) Motion for directed verdict on acquittal
B) Rule
1) How the case plays out with respect to sufficiency of evidence at the appellate level
2) If a reasonable person might fairly conclude that there is reasonable doubt then Judge
cannot grant the motion.
Role of the Jury
a. 6th Am: accused in criminal cases enjoys right to “speedy and public trial by impartial jury”
b. Federal Case: 12 jurors
c. Jury Nullification: jury returns verdict contrary to law/court instructions
d. Mistrial: Without unanimous verdit, judge requires mistrial
e. Cases
i. People v. Williams pp 46-54
A) Facts:
1) Trial for statutory rape
2) Judge asks juror “will you follow courts instructions?” Juror says “no.” He is
dismissed
B) Rule:
1) Criminal is tried by the law of the land, not the law of the jury.
2) Jury nullification is okay but they can’t say that they are doing.
C-Butler (race based nullification)
A) Selective jury nullification by Af. Am. for Af. Am. D’s b/c Am Criminal system is not just
B) Targe it drug crimes (not for violent crimes)
C) Jury nullification is part a political protest
iii. C-Leipold (Butler rebuttal)
A) Selective jury nullification will deter selection of Af Am jurors
B) “At the broadest philosophical level it is wrong” Race should not be the determining factor
of innocence.
6. Statutory Interpretation
a. Goals: respecting the “plain language” of the statutory text; discern and effectuate the intent of the
legislature or (for initiatives) the voters; and making sure that the interpretation of a particular statute
in one case does not contradict its interpretation in another case.
b. Noscitur a sociss the meaning of doubtful terms of phrases may be determined by reference to their
relationship with other associated words or phrases.
c. Ejusdem generis: where general words follow a specific enumeration of persons or things, the general
words should be limited to those things specifically enumerated.
d. Rule of Lenity: As a last resort, all doubts should be resolved in favor of defendant (based on
fairness).
e. Cases
i. US v Dauray (possession of minor pornography photos)
A) Facts:
1) Issue was whether these photos fell within the statutory language “other matter.”
2) Statute: “any person who knowingly possesses 3 or more books, magazines,
periodically…or other matter”
3) Resolution: Rule of leniety
B) Rule:
1) First, Plain meaning
a) Plain meaning itself
b) Statutory scheme
2) Second, Canons of Construction
a) Noscitur a sociss
b) Ejusdem Generis
c) Statutory Structure
d) Look at statute consistent with statutory amendments
e) Avoid any absurdity
3) Third, Legislative history
4) Fourth, Rule of lenity
ii. US v. Peterson Exercise
B. Constitutional Limitations
1. 14th Amendment:
a. Due Process/Void for Vagueness Doctrine
i. Papachristou v. City of Jacksonville pp 74-79
A) Facts:
1) Convicted of violating vagrancy ordinance
B) Rule:
1) Ordinance void for vagueness b/c fails to give a person of ordinary intelligence that
his conduct is forbidden under the statute and because it encourages arbitrary and
erratic arrest.
ii. Colender v. Lawson pp 81-85
A) Facts
1) Loitering statute is unconstitutionally vague
2) Holding: struck down b/c too much discretion of police
B) Rule
1) To avoid Void for Vagueness doctrine:
a) Ordinary people must be able to understand what conduct is prohibited
b) Statute does not encourage arbitrary and discriminatory enforcement.
2) C-Lindsay pp 79
a) P is educated black man who believes in physical fitness who had been stopped 17
times in LA.
ii.
b.
iii. C- “Walking While Black” pp 86-91
A) Black man is stopped by officers who don’t believe that he’s sitting on the front porch of his
own house
B) He says race is “an imprecise proxy for criminality
iv. City of Chicago v. Morales pp 91-98
A) Facts
1) Ordinance: “Gang congregation ordinance” to prevent loitering
2) First 2 yrs 42,000 arrested (first 2 yrs)
B) Rule
1) Vagueness invalidates a law for:
a) It fails to provide notice to ordinary people about prohibited conduct
b) It authorized and encourages arbitrary and discriminatory enforcement.
C) Reenacted law after it was struck down
1) Warn that they’re violating ordinance
2) Allow reasonable amount of time to allow dispersal.
Equal Protection
i. McCleskey v. Kemp pp 128-140
A) Facts
1) P convicted of armed robbery & murder
2) Baldus Study on race and capital punishment likelihood:
a) B murders W, most likely
b) B murder B, next “
c) W murder W, next “
d) W murder B, almost never.
B) Rule
1) Court affirmed the conviction and said P’s complaint (the data) should be addressed to
Congress.
ii. C-“Justice isn’t Blind” by Moren pp 140-141
A) The race & gender of victims has more to do with sentence length then the crime
1) Bl/male victim gets shorter sentence
2) Wh/f victim gets longer sentence.
B) Study vehicular deaths.
iii. State v. Russell pp 141-149
A) Facts:
1) MN statute:
a) Person is guilty of 3rd degree offense if they possess crack.
b) NOTE (96% arrests for crack poss=blk; 79% arrests for powder cocaine
poss=white)
2) SC of MN
B) Rule
1) Fed Rationale Basis Test: (statute would uphold, but not used)
a) A legit. Purpose for the legislation
b) It was reasonable for the lawmakers to believe that the use of the challenged statute
would promote that purpose.
2) State Rationale Basis Test: (statute fails)
a) The distinction for the classification is genuine and substantial.
b) The classification must be relevant to the purpose of the law
c) The purpose of the statute must be one that the state can legitimately attempt to
achieve.
3) Rationale for upholding:
a) Statute punishes with intent to sell.
b) Law has discriminatory impact
iv. C-State, Criminal Law, and Racial Discrimination Comment (Randall Kennedy) pp 1101-1104
A) Discusses State v. Russell: supports MN statute.
B) Those that champion the interests of Af Ams wrongly retard efforts to control criminality.
C) Facially race neutral law whose impact injures a group (blacks) as a whole.
v. C-“Drugs: it’s a Question of Connections” (Tracy Meares) pp 1104-1109
A) Rebuts Randall Kennedy, above
B) Discrimination by drug enforcement reinforces stereotypes that compromise Af Am crime
prevention efforts. (white police officer; black D).
2.
3.
8th Amendment:
a. Cruel and Unusual Punishment
b. Principle of Proportionality
c. Coker v Georgia pp99-104
i. Facts
A) Guy serving prison sentence escaped and raped a woman
ii. Rule
A) The death penalty is invalid for rape
B) Factors of excessive and unconstitutional punishment:
1) Makes no contribution to acceptable goals of punishment and only imposes needless
pain and suffering
2) It is grossly out of proportion with the severity of the crime.
C) Dissent:
1) This person had raped, killed, and kidnapped different woman on multiple occasions
2) He was already serving 3 life terms and many other punishments
3) “The only effective punishment [would have been the death penalty]”
4) Wanted to use prior crimes cumulatively to charge death penalty
a) He could have gotten death penalty for other crimes.
d. Ewing v. California pp 106-115 (compare to Ramirez, below)
i. Facts
A) California 3 Strikes law was designed
1) Incapacitation
2) Deterrence of repeat offenders
B) Statute: w/ 2 or more prior serious or violent felony convictions he “must receive a life
term.”
C) “Wobbler Crimes” Allow for prosecutorial discretion by allowing prosecutor to make a
similarly related, past crime (misdemeanor) a felony if a subsequent similarly related crime
(a felony) is committed.
ii. Rule
A) To determine whether a sentence is disportionate evaluate
1) Gravity of the offense and harshness of the penalty
2) The sentences imposed on other criminals in the same jurisdiction
3) The sentences imposed for commission of the same crime in other jurisdictions
B) Ewing Sentenct was not grossly disproportionate and did not violate the 8 th Am.
e. Ramirez v. Castro pp 116-127 (compare to Ewing, above)
i. Facts
A) California 3 Strikes Law
B) P convicted of 3 shoplifting offensive
C) 25yrs-life sentence
D) H: sentence was harsh b/c no possibility of parole
E) Prosecutor could have charged misdemeanor (max 6 mos jail); instead charged felony under
wobbler.
ii. Rule:
A) Apply the Ewing Test to find it is grossly disproportionate.
Federalism & the Supremacy Clause
III. Actus Reus
A. Basic Elements of Act Requirement:
1. Prohibited Act that results in some kind of social harm.
B. 5 principles:
a. Person should not be convicted solely on basis of thoughts. (Wisconsin v. Mitchell)
b. Act must not have been compelled or committed by the government.
c. Act must have been voluntary.
d. No liability for omission unless the person had a legal duty to act. (i.e. good Samaritan)
e. Status crimes are unconstitutional (race motivated or gender motivated.)
1. Thought Crimes
a. C-Jail on the Precipice of Crime (Theis)
i. Dalton kept a diary of pornographic and obscene thoughts.
ii. Dalton pleaded guilty to pandering obscenity involving a minor – which falls into Ohio’s
pornography law.
2.
3.
4.
iii. Dalton’s lawyer never raised a 1st amendment defense.
iv. Note: Thought crimes are prohibited under American law suggests that D must have committed
some actual act, but this Ohio law criminalizes conduct leading up to the social harm. Thus, a
thought crime.
b. Wisconsin v. Mitchell (penalty enhancement for hate crime)
i. Facts
A) Mississippi Burning movie – black men beat up white men who were selected on the basis of
race.
B) Issue: Do laws expanding sentencing for hate crimes violate the 1st and 14th amendments?
No.
ii. Rule: Hate crime statutes consists:
A) Prosecution requires that the individual committed some predicate offense set out in the
statute.
B) With the animus specified in the current statute, which operates to enhance the punishment
imposed for the predicate offense.
Acting Under State Compulsion
a. Martin v. State (Officers took drunk man on highway)
i. Facts
A) Officer arrested drunk man in his home and took him on the highway
B) Drunk man violates public intoxication rule.
ii. Issue – Whether one can be convicted of a crime when directly brought to commit the crime by
the police?
iii. Rule – State cannot force a person to commit a crime. (No voluntary element.) This constitutes an
affirmative defense.
b. Hypo – parachute man drunk on other property can be arrested.
Unconsciousness Defense
a. State v. Desina (epileptic seizure case)
i. Facts:
A) Desina has epileptic seizure while driving and kills 4 kids.
B) Desina was aware of his convulsions and problems
C) Desina had not had a seizure in several months but had no way of knowing when a seizure
would occur.
1) Dissent – narrow time frame because he was unconscious.
2) Majority – broad frame because he voluntarily drove.
D) Desina took medication to prevent seizures
E) Statute – “Criminal negligence in operation of a vehicle resulting in death provided that a
person who operates or drives any vehicle of any kind in a reckless or culpably negligent
manner, whereby a human being is killed is guilty of criminal negligence in the operation of
a vehicle resulting in death.”
ii. Issue – When does the act become voluntary/intentional to make the crime?
b. Hypo: Amnesia man held up a pizza parlor. Was the act voluntary?
c. Hypo: Baker is on the highway, puts car in cruise control, car goes out of control, should he be
prosecuted.
d. C-Interpretive Construction in the Substantive Criminal Law – Kelman Time Frame Article
i. Hidden Interpretive Time Framing Construct - Effect of viewing criminal act’s time frame after
the fact. (unconsciously shift from broad/narrow in evaluating liability.)
ii. Martin – majority looked at a narrow time frame. (Look how far back before the arrest.)
iii. Desina – majority looked at a broad time frame – once he decided to drive then they found him
liable. Could have easily shifted to a narrow time frame.
e. C- Epileptic Convicted of Assault Cleared (AP)
iv. Man with epilepsy that was convicted of assault for grabbing a woman’s arm during a seizure
was cleared when he proved that he was not in control.
v. Evidence was videotaped – contrast to Desina.
Failing to Act – Liability for Omissions
a. Rule:
i. Liable if there is a legal duty to act
ii. Physically capable of acting
iii. Omission must cause the harm
iv. Knowledge of the circumstances (e.g. not the mother who left the child in the car by accident.)
v. Defendant must have requisite mens rea.
5.
A) Where mens rea is lacking, cannot be held criminally liable.
B) E.g. mother who sees drowning son, but cannot swim to rescue. However, she would have to
make another attempt to rescue given the circumstances.
C) Must possess knowledge the situation requiring action is occurring.
b. 5 situations where there is a legal duty to act:
i. Special relationship between D and victim.
A) Husband / Wife
B) Parent / Child
C) Master/ Servant
3) With increasing special relationship, decreasing requirement of mens rea.
ii. When d enters into a contract that requires D to act in a certain way (e.g. taking care of the
elderly)
iii. When there is a statutory duty to act (e.g. pay federal taxes.)
iv. When D creates the risk of harm to the victim.
v. When D voluntarily assumes the care of the person in need of help.
c. People v. Beardsley
i. Facts
A) Woman is at a man’s house on a drug and drinking binge.
B) Woman orders morphine and conceals them from D
C) D tries to prevent woman from taking the morphine.
D) Woman passes out and dies
E) D is too intoxicated to help, but another young man gave her care in the meantime.
ii. Issue – Does a man who is aware of a woman’s present vulnerability who is present in her house
give him a legal duty to care for her? No.
iii. Rule – Man’s relationship to woman did not fall under one of the special relationships as
delineated by the law and did not assume care or control over her.
A) Dissenting idea – he did give the care of the woman to a young man. Did he assume care?
B) Did he possess the knowledge that she was physically at risk for death?
d. Commonwealth v. Howard
i. Facts:
A) Child dies because bf regularly beats the child and suggested child to sadistic abuse.
B) Mother knew of the abuse but did not stop the bf from beating the child.
ii. Issue: Whether the mother was guilty of involuntary manslaughter because her reckless actions
caused the death of the daughter?
iii. Rule: Parent had a legal duty to protect the child and that the death was a direct result of the
mother’s failure to protect the child from the boyfriend. At the very least, mother had to evict ,
discourage, or report him to the authorities.
e. C- Motherhood and Crime (Roberts)
i. Why should a mother forego all self interest to avoid all criminal liability?
ii. Criticizes traditional role of woman being the caretaker of a child and places too much burden on
a mother.
f. Commonwealth v. Pestinikas (caretakers of 92 year old)
i. Facts
A) Caretakers agree to care for and provide for 92 year old.
B) D put man on porch, hide him, take his money, fail to give him medication, added their
names to his bank account, and starved him.
C) Man died of dehydration and starvation.
ii. Issue – Whether a person can be prosecuted for murder when they voluntarily assume the care but
fail to do so?
iii. Rule – Yes, they are found criminally liable. (Parallel – A volunteers to save and precludes all
others, but A maliciously does not save the victim)
No duty to rescue rule
a. C-Right to be Apathetic (Ashby)
i. College student watches friend sexually assault and strangle a young child in LV casino
bathroom, but fails to do anything.
ii. College student is found not guilty because he had no duty to rescue.
iii. In this case, California lacked a good Samaritan law.
iv. Also concerns regarding – his race as an educated, white man.
b. C-Two forms of Justice (Gunning)
i.
6.
Iverson case - Other man was sentenced to prison but the college student went back to a normal
life.
ii. Argument for a good Samaritan law.
Status Crimes
a. Robinson v. California (person punished for being a narcotics addict case.)
i. Facts
A) Statute that criminalized addiction to drugs.
B) D admitted to occasional use of drugs
C) D is imprisoned for 90 days
ii. Holding – Stewart says that the prison time violates the 8th amendment. “Crime of having a
common cold and putting someone in jail for a day.” Majority is concerned with the slippery
slope.
A) Non-criminal alternatives available to treat the problem.
B) Statute should punish the actual use of narcotics and not the statute as a drug user.
iii. Issue – Whether a statute that criminalizes the status of narcotic addiction violates the 8th
amendment “cruel and unusual punishment” clause as applied to the states through the 14th
amendment?
A) Dissent – statute punishes habitual users and pre-empts serious drug usage
b. Powell v. Texas (punishing a chronic alcoholic for being drunk in public.)
i. Facts
A) Texas Penal Code: “whoever shall get drunk or be found drunk in any public place or any
private house except his own, shall be fined, not exceeding $100.”
B) Person is found drunk and charged with being in a state of intoxication. – fined $20.00
C) Defense argues that he has chronic alcoholism and cannot control his appearance while
drunk.
D) Cross exam – expert reveals that first drink is a voluntary exercise.
ii. Holding – SCOTUS listens to expert testimony regarding medical condition. Parallels to idea
that a murderer who suffers from a “compulsion to kill” because of an exceedingly strong
influence that is not completely overpowering cannot control himself. Court looks at the
voluntary first drink idea.
iii. Difference  not just a status case. This guy was also DRUNK at the time of arrest versus the
drug addict who was not high. Poses a serious health and safety risk to the public. (An actus reus
committed.)
iv. Dissent - Violates 8th/14th amendments to hold an alcoholic culpable for violating drunk in
public statutes.
v. Values of traditional accountability
c. C-A Dissident Law Enforcement Perspective on Drug Prohibition (Schueller/McBride.)
i. Violence that is related to drug trafficking that is an inescapable consequence of prohibition.
ii. Advocates decriminalization to stop feeding and financing this violence.
A) Theory – Prohibition leads to violence, corruption, and diversion of resources.
iii. Drug Related Violence:
A) Intramural violence – between drug traffickers
B) Violence intended to hinder law enforcement
1) Assassinations, force, and threat intended to threaten and intimidate law enforcement,
witnesses, citizens, and activists.
2) When enforcement is tightened, responses are: leave the business, respond with
increased violence, respond with increased innovation, or subvert the process by
corrupting law enforcement.
C) Violence ascribed to consumption of illegal drugs
D) Proposals:
3) Repeal all criminal laws – federal and state for all illegal drugs without regulation.
4) Start with most dangerous drugs and encourage a legal market to replace the illicit
market (undercutting) – marijuana first drug to be decriminalized.
5) Excise tax structure to regulate the labeling.
d. C-Reconsidering Punitive Approach to US Drug Policy (Kay)
i. Drug prohibition leads to racial profiling and illegal searches
ii. Inordinately targets minority communities and low-income communities.
iii. Frustration with the war on drugs and disapproval b/c of failure.
iv. Drugs are a social and health issue not a penal issue.
Example – Netherlands – “Harm Reduction” Ideal. Approach legality by the level of the risk of
the drug.
A) Focus on prevention and treatment
B) Focus on risk minimization
e. C-Policing Possession (Dubber)
i. The crime of Possession has replaced vagrancy as the most convenient gateway into the Crim
Justice System.
ii. As a policing tool – it is flexible and convenient.
A) Greater burden of proof on the convicted.
B) Allows for constructive possession (e.g. gun in the car.)
C) Hypo: If X uses a gun in self-defense that X is not licensed to use, may still be convicted of
possession.
iii. Expands the scope of policing into the home and results in harsher penalties.
iv. Less vulnerable to legal challenges: “Possession does away with the requirement that criminal
liability must be predicated on an actus reus.” Only intent is needed for conviction.
v. Possession is easy to detect because it only requires a simple frisk.
vi. E.g. 1998, 18%
of all arrests is for possession.
IV. Causation and Concurrence
A. Causation
a. Definition = part of actus reas requirement
b. Actus reas consists of
i. voluntary act (or omission, if duty) &
ii. causes
iii. social harm.
c. Must possess both:
i. Actual/ “But for” (narrow) + Proximate (broad)
1. Actual/ “But For” Causation [narrow]
a. “But for D’s voluntary act (or omission, if duty) would social harm have occurred when it did?” If
noD is actual cause
2. Proximate Causation [broad]
a. Look at intervening cause analysis. If intervening cause is:
i. Dependant
A) =dependant upon or responsive to D’s voluntary act
B) rule: “D is proximate cause unless the intervening cause is extremely unusual or bizarre.”
ii. If independent
A) =independent or coincidental to D’s voluntary act
B) Rule: D is usually relieved of crim. Liability unless the intervening cause is foreseeable.
iii. Commonwealth v. Ramenter
A) F: Victim is crushed to death by bystanders car while escaping assaulting boyfriend. (she’s
screaming, running). He was charged for causing death.
B) I: Whether D’s conduct was an operative cause of victim’s death? (v. car being an
intervening cause)
C) R: Look at chain of causation between assault and death was broken.
1) Conduct was substantially linked to death.
2) Risk was inherent in activitythus foreseeable.
D) H: Court rejects that car was an intervening cause
iv. State v. Govan
A) F: Victim gets in fight w/ D. D shoots victim in neck & paralyzes her, but they then fall in
love & get married. D dies of pneumonia due to paralysis.
B) I: Whether shooting constituted causation for illness leading to death?
C) H: Yes, it was the causation
D) Theme: Broad time frame, Discretion of Prosecution
E) R: no intervening events.
F) Dicta: A victim may break chain of causation by voluntarily doing harm to himself (i.e.:
suicide).
v. Henderson v. Kibbe (arguably the worst case in book)
A) F: D’s rob man while driving him from bar. They rob him, then leave him on side of road at
night in freezing weather w/o coat or glasses. Speeding truck kills him.
B) D Argues: truck drivers negligence was intervening cause for death. D could not foresee
death.
v.
C) R: If (1) D’s are aware of & consciously disregard the substantial risk (of leaving someone
on the side of the road), AND (2) acts are reas. Relatedshould have foreseen harm.
B. Concurrence
1. It is the connection btw actus reas and mens rea & there are 2 types the must be present:
i. Temporal Concurrence: D must posess requisite mens rea at the same moment that her voluntary
conduct (or omission) causes harm (actus reas), AND
ii. Motivational Concurrence: Mens rea must be the motivating force behind the actus reas.
b. Thabo Meli (Motivational Concurrence)
i. F: Conspiracy to kill a man. D brings him to a hut & bludgeon him. They leave him as dead, but
he is unconscious. D then rolls body over cliff where he dies of exposure to elements.
ii. I: Whether murder when mens rea is not present at same time as actus reas?
iii. H: Crime is not reduced.
iv. R: D cannot escape temporal and motivational concurrence b/c they were under a
misapprehension at one stage (though had the requisite mens rea that motivated the killing) and
thought their guilty purpose had been achieved (when rolling him off hill, they thought he was
dead) before it actually had been achieved (intent to kill motivated killing and they thought that
they had accomplished the killing temporally).
v. Theme: Broad Timeframe
c. State v. Rose
i. F: Dirty white station wagon hits pedestrian, stops, and drags him.
ii. I: When did killing occur?
iii. Expert Testimony: it could have happened at either time
iv. If killed on impact
A) Intent to kill did not exist, so no mens rea
1) No motivational concurrence
2) No temporal concurrence
v. If killed by dragging
A) Both temporal and motivational concurrence exist
B) Continuing to drive was a choice with mens rea to kill (Motivational argument). Death was
temporally concurrent.
V. Mens Rea
A. Theory: Refers to culpability generally.
1. Intent requirement i.e. Moral blameworthiness that makes a person criminally responsible
2. Definition: Particular mental state provided for in the definition of the events.
a. Specific
b. General
3. MPC:
a. Purpose
b. Knowledge
c. Recklessness
d. Negligence
4. Common Law
a. Different terms with different meanings in different circumstances
B. Historical Development
1. Defining Malice
a. Regina v. Cunningham
i. Facts:
A) Steals the gas meter from the gas pipe, which results in the asphyxiation of his mother-inlaw.
ii. Issue: Did malice as stated in the statute mean “wicked” which required a practically certain
degree of knowledge.
iii. Rule: Judge erred in defining malice as “wicked” – different standards.
A) “Knowingly” = Practically certain
B) Actual Intention
C) “Recklessness” = Conscious disregard
D) Negligent = should be aware.
2. Problems of Statutory Interpretation
a. US v. Yermian
i. Facts:
A) Person is convicted of making false statements within the jurisdiction of a federal agency.
3.
B) Person admitted that the statement was false
C) Person said that he had no idea that his false statements would be transferred to a federal
agency.
ii. Issue: Must the government prove that the false statement was made with the knowledge of
federal agency jurisdiction.
iii. Question of defining the terms “knowingly” and “willfully”?
iv. Rule: “knowingly and “willfully” modified the term “making a false statement” did not require
that he knew he was doing so in a federal jurisdiction. Only necessary to demonstrate intent to
make a fraudulent statement.
A) Applied the plain language.
v. Dissent: 5-4 decision. Ambiguity should be resolved in favor of the prosecuted party. Rule of
Lenity.
b. Holloway v. US (carjacking case)
i. Facts:
A) D convicted under a carjacking statute that required “intent to cause death or serious bodily
harm.”
B) Ds robbed drivers at gunpoint after the driver parked their car – was their intent to use the
gun consistent with the statute?
C) Previously Ds never used violence other than a physical punch.
ii. Issue: Whether the gov.t has to prove that the D had an “unconditional intent” to kill or harm or
does it merely require an intent to kill or harm “if necessary”?
iii. Rule: Irrebutable presumption  Any carjacking involves the unconditional intent to kill.
A) No longer takes into consideration “a condition” of intent.
iv. Statutory Construction: Court looked to plain language and legislative intent in passing this
statute.
v. Policy Considerations: by interpreting statute in this way, the court finds that the statute acts as a
deterrent. Therefore a broad reading of the statute.
vi. Dissent: Scalia focuses on plain language and common usage of terms. Found the statute
ambiguous and should apply lenity. Cannot have an intent to act if those plans are contingent on
an event that is uncertain.
Intent
a. MPC – “purposely”
b. Common law – encompasses “knowledge to a virtual certainty.”
c. Intent may be inferred from Circumstantial Evidence
i. “Natural and probably consequences” doctrine  shortcut.
d. State v. Fugate
i. Facts:
A) D convicted of robbery and first degree murder
B) D entered a garage, strikes man with the barrel of a gun twice to affect the robbery, and
results in the death.
C) Victim unable to defend because of substantial size difference.
ii. Rule: An intent to kill may be presumed where the natural and probably consequence of the
wrongful act is to produce death and such intent may be deduced from the surrounding
circumstances.
e. Virginia v. Black (cross-burning case)
i. Facts:
A) Black led a Klan rally on private property, which was observed by Sherriff and Neighbors.
During the rally, klan members were making threats regarding non-whites.
B) Burned a cross. Black was arrested under a statute for being the leader of a rally.
C) Neighbor claims that he was scared.
ii. Statute: “ It shall be unlawful for any persons with the intent of intimidating any person or group
of persons to burn or cause to be bured a cross on the property of another…Any person who shall
violate any provision of this section shall be guilty. Any such burning of a cross shall be a prima
facie evidence of an intent to intimidate a person or group of persons.””
iii. Rule: SCOTUS overturns the prima facie evidence provision that finds a cross burning as
evidence of the requisite intent. SCOTUS finds it unconstitutional to shift the burden to the D to
establish that it did NOT burn the cross based on the criminal intent to intimidate.
A) Low threshold for a prosecutor, who does not need to distinguish between the different types
of intent.
iv. Dissent: Addresses the conduct and not the intent.
v.
4.
5.
6.
Hughes notes: Prima Facie Evidence: Evidence that will establish a fact or sustain a judgment
unless contradictory evidence is established.
Transferred Intent
a. Definition: A shooter can be held criminally liable for intentionally killing the wrong person. (??)
b. People v. Scott (drive-by shooting)
i. Facts
A) Bystander was killed not the intended victim
B) CA statute: “a D who shoots with the intent to kill X and kills Y instead is subject to the
same criminal liability as if he had hit X.”
C) CL: D’s guilt is thus “exactly what it would have been had the blow fallen upon the intended
victim instead of the bystander.”
ii. Different views on transferred intent by illustrating cases involving two deaths (of the original
party and the bystander.)
A) Birreuta: A murderer who premeditates and deliberates two killings is more culpable, and
should be punished more severely, than the murderer who intends to kill only one victim and
inadvertently kills another.
1) First degree murder is for the intended victim.
2) Bystander gets less than first degree murder
B) Carlson – Transferred intent applies even though the original victim is killed as well as the
person who was the unintended result of the intent to kill the original.
1) Intended Victim – First Degree
2) Bystander – First Degree
iii. Rule: Court finds 2 crimes – killing of unintended victim and attempted murder. Note: Intent is
not a limited quantity.
iv. Note (Dressler): Fiction of transferred intent is unnecessary because mens rea of the killing is an
intent to kill (i.e. a human being, thus identity of the victim is immaterial.) If actus reus has
occurred and if the mens rea to kill a human being, no need to transfer mens rea.
Specific/General Intent Distinctions
a. People v. Atkins
i. I: Is evidence of voluntary intoxication admissible on the issue of whether D formed the required
mental state for arson? No
ii. H:Arson=Gen Intent Crime, so evidence of vol. intoxication is admissible
iii. F: D heavily intoxicated and burns house of nemesis.
iv. Admissibility:
A) General Intent Crimes: When the definition of a crime consists of only of the description of a
particular act, without reference to intent to do a further act or achieve a future consequence,
we ask whether D intended to do the proscribed act
1) Arson=(1) to set fire to, (2) to burn OR (3) to cause to be burned any structure, forest
land, or property.
2) Required mental state requires only intent to do the act that causes the harm.
3) e.g.: (1) Arson (even accidental, e.g.: campfire); (2) Rape
B) Specific Intent Crimes: Language: “w/ the intent to achieve” or “for the purpose of
achieving.” When the D’s intent to do some further act or to achieve some additional
consequence.
1) Required mental state entails an intent to cause the resulting harm.
2) e.g.: “it shall be a crime to receive stolen property, with knowledge that it is stolen”
(additional layer of knowledge).
C) MPC: No distinction between general and specific intent crimes.
Knowledge:
a. US v. Jewell
i. Willful blindness=deliberate ignorance
ii. Issue: does willful blindness amounts to knowledge? Yes
iii. Facts: Young man transporting 110 lbs of MJ across border. (1) they claim they didn’t know they
had MJ;
iv. Policy: Drug Contol Act: purpose is to deal with drug abuse; considering willfully blindness as
intent furthers policy
v. Rationale: Requirement of positive knowledge would make deliberate ignorance a defense.
A) Burden of Proof to demonstrate willful blindness: Gov.t must prove beyond a reasonable
doubt that if D was not actually aware, his ignorance was solely a result of a conscious
purpose to avoid learning the truth.
7.
Strict Liability Crimes
a. Crimes for which gov.t need not prove any requisite mental state, but a statute must specifically state
that it is a strict liability crime and that no mens rea is required.
b. If silent on intent, then the requisite mens rea is necessary.
c. Morissette v. US
i. Facts:
A) Strict Liability for stealing government property.
B) D collected bombshells to sell. D thought that the property was abandoned and spoke
candidly of his act.
ii. Rule: If a criminal statute does not state an intent, then there is no strict liability.
VI. Mistake and Ignorance
A. Mistakes of Fact
1. CL: Distinction between specific and general intent crimes.
a. Specific: An honest intent negates a specific intent and constitutes a complete defense. The mistake
need not be reasonable as long as it is in good faith.
b. General: A mistake of fact that negates an element of the crime must be both honest and reasonable.
c. MPC: (No distinction between general and specific) Mistake of fact is a defense if it negates the
mental state required for the commission of the offense.
i. Possesses a rule similar to the CL “legal wrong” doctrine – even if D’s mistake negates the
mental state required, if D would be guilty of another offense, they would be guilty of another
offense if the facts were as D believed them to be. Then he will be guilty of the charged offense.
ii. BUT: MPC only allows D to be punished at the penalty set for the lesser crime. (e.g. charged
with burglary of an occupied house, but penalized with unoccupied house burglary.)
2. Mistake of Fact
a. People v. Navarro (provides explanation to common rules)
i. Facts:
A) D was charged with stealing wooden beams from construction site.
B) Evidence was that a jury could have found that the beams were abandoned or could have
found that they had not been abandoned.
ii. Issue: Whether D should be acquitted if there is reasonable doubt that:
A) (Subjective) he had a good faith belief that the property had been abandoned or that he had
permission OR
B) (Objective) whether that belief must be a reasonable one as well as being held in good faith?
(Subjective or reasonable man standard)
iii. Rule: Apply the subjective man standard if the belief was in good faith. Thus, not necessary that
the belief was reasonable. (This was a specific intent crime).
b. Bell v. State
i. Facts
A) A man who pimps out two women under-age but asserts mistake of age defense.
B) Man is charged with engaging in prostitution when the girl was under age, which had a
higher penalty of first degree.
ii. Court distinguishes this case from a mistake of age defense in a statutory rape case because this
act is criminal in and of itself regardless of the age. (Only distinguishing factor is the penalty)
Minority view.
iii. Legislative Intent: Legislature intended to create a strict liability crime and thus denies the
mistake of age defense,
iv. Rule: Legislature may consistent with due process preclude mistake of age as a defense for the
crime of promoting prostitution in the first degree.
v. Note Case: Regina v. Prince: Even if the D can assert a reasonable mistake of fact, he will not be
exculpated if had the facts been as the D believed them to be, he would still be guilty of crime.
(e.g. burglary of an occupied house if he thought it was unoccupied.)
3. Mistake of Law:
a. Rule: A person cannot defend against a crime by claiming that he did not know what he was doing
was unlawful. Ignorance of the law is no excuse except when:
i.
A person who relies on an official interpretation of the law that turns out to be erroneous.
(Entrapment by estoppel.)
ii. If knowledge that the prohibited conduct is unlawful is an element of the crime.
iii. In certain limited circumstances, prosecution of a person who lacks fair notice of a legal duty
imposed by law can violate due process.
b. Official Interpretation – Entrapment by estoppel.
i.
c.
People v. Marrero
A) D was convicted of carrying a loaded gun in a nightclub.
B) D thought he was entitled to carry without permit as a peace officer.
C) D thought that under official interpretation a corrections officer qualified as a peace officer.
D) I: Was D’s misunderstanding of the statute an excuse for the criminal conduct under the
circumstances? No.
E) Rule: Ignorance of the law is no excuse.
F) Policy Concern: If D’s arguments was successful, then exceptions would “swallow the rule.”
Thus, encourages mistakes of law.
G) Dissent: Disagrees with idea that mistake of law defense is available only when the official
interpretation that the person correctly read and relied on was invalidated. Majority requires a
two fold requirement: 1) Correct reading of official interpretation 2) official interpretation is
invalidated. Thus, contrary to legislative intent of creating a mistake of law defense.
ii. United States v. Clegg (weapons to Afghan rebels)
A) D asserts that he relied on US military officials that led him to believe that he was lawfully
transporting the guns.
B) US military even assisted him in shipping the weapons.
C) D was convicted of exporting firearms without a license.
D) Rule: Claims of being “helped and encouraged” by federal officials of the highest rank is a
fair defense.
iii. State v. Fridley
A) D was convicted of driving with a revoked license.
B) D’s defense that DMV told him that his license was revoked only for 7 days.
C) I: Is representation of a DMV call-taker of official gov.t law was an official interpretation
that could be relied upon?
D) Rule: This is a strict liability crime and mistake of law defense is not available. (i.e. defense
is not available for infractions where proof of culpabiloity is generally not required.
Ignorance or mistake that Negates the Mens Rea
i.  Knowledge that prohibited conduct is unlawful is an essential element of the crime.
ii. Places BOP on prosection to assert that they did have knowledge because it is an essential
element.
iii. Cheek v. United States
A) D is a pilot who did not pay taxes after attending certain seminars because he later believed
paying taxes is unconstitutional.
B) I: In federal tax statutes, what does the mens rea “willful” require?
C) Rule: In a federal tax case, willfulness is no defense. Court finds that D knew of the tax laws
and the duties imposed.
D) Concurrence: Wilfulness is traditionally interpreted with “evil motive to violate a legal
duty.”
E) Policy consideration: Court does not want to encourage defenses for tax evasion that one
believes paying taxes is unconstitutional.
iv. Bryan v. US (corner firearms dealer)
A) D was convicted of dealing in firearms without a license
B) D knew conduct was unlawful but asserted that did not know of the federal licensing
requirement.
C) I: Whether knowledge of the federal licensing requirement was an essential element of the
conviction?
D) R: Simply knowing that the action was unlawful suffices in “willfulness.’
E) H: “knowingly” merely requires proof of knowledge of the facts that constitute the offense,
unless the statute dictates a different result. Here, b/c petitioner knew conduct was unlawful,
ignorance of spec. statute was not excuse.
F) Dissent: The mens rea was entirely divorce from the actus reas. The majority’s answer
effectively allows no mistake of law defense; this means that to be innocent, he would have
to be innocent of every law that would make his behavior unlawful.
v. Fair Notice & Due Process: The Lambert Exception
A) Lambert v. CA
1) D was unaware of convicted felon registration requirement
2) I: whether a registration act violates due process when it is applied to a person who
has no knowledge of his duty to register.
3) H: Due Process Exception
a) You must have actual knowledge of the duty to register
b) State must show proof of probability of such knowledge
c) w/o both, you cannot be convicted
4) Dissent:
a) Mala in Se=bad in itself,
b) Mala Prohibitium=something we decided is evil (not paying taxes)
B) State v. Bryant
1) Sex Offender failed to register when he moved from SC to NC.
2) H: NC holds sex offender statute unconstitutional for person moving into state.
3) R: He lacked notice of duty to register
4) R: It imposes a duty to act (v. affirmative duty to act a certain way like taxes). Statute
didn’t address the reality of a mobile society; had NC informed new residents of duty
to register, due process argument would fail.
Completed Offenses
VII. Criminal Homicide
A. Elements:
1. An intent to kill;
i. Intent can be inferred from circumstantial evidence e.g. deadly weapon rule, natural and probably
consequences doctrine.
2. An intent to commit serious bodily injury
3. An “abandoned and malignant heart” or “depraved heart” (aka depraved heart); or
4. The felony murder rule applies.
B. Common Law
1. Capital Murder
a. Elements:
i. Punishment applied to those offenders who commit a narrow category of the most serious crimes
and whose extreme culpability makes them the most deserving of execution.
b. Commentary
i. C-Why the Death Penalty?
A) Morality
1) Pro
a) Old Testament eye-for-an-eye
b) Retaliation/Retribution
c) Redemption (redeeming victim)
2) Con
a) New Testament forgiveness
b) Retribution is illegitimate
i) Death is disproportionate relative to other penalties (state does not rape the
rapist, etc.)
ii) Given time lapse, execution can’t provide retributive justice
iii) Extends timeline of grief for family members
B) Utility of Crime Prevention
1) Pro
a) Serves general deterrent purpose (proportionately higher penalty deters more
egregious crime)
b) Life in prison allows for further murder in prison
2) Con
a) No empirical evidence of deterrence
i) Comparative studies regarding effectiveness of death penalty as deterrent have
not found deterrent effect)
ii) The only studies that demonstrate a deterrent effect are those based on
mathematical models some of which encourage brutalization effect of homicide
iii) Because homicides occur frequently in heat of passion, punitive consequence is
not considered
iv) Little meaningful difference between life in prison and death
b) Cost/Expense of death penalty
i) Cost to prosecute capital case is more expensive than prosecute life in prison
case (16x in KS study)
C) Reliability and Fairness/Consequences (given the realities of the American criminal justice
system)
a)
While morally and socially useful, death penalty should be abolished because it
cannot be fairly imposed (Columbia Study)
2) Pro
a) Execution of innocent people
i) Nature of system is subjective
ii) Empirical data is not significant re: numbers of innocent people being put to
death
b) Racial bias
i) Inconsistency of statistical evidence
c) Arbitrariness
i) Misconduct corrected through judicial process/appeal
ii) Inconsistency is justified b/c important humanitarian and democratic values are
served
iii) Unjustified results are inevitable/unremarkable
3) Con
a) Execution of innocent people
i) Death penalty unacceptable because inevitably leads to execution of innocent
people
ii) Difficult to prove that innocent people are being executed, little incentive to
seek evidence
iii) Innocent people are being released from death row
b) Racial bias
i) Studies show race has been significant factor (Baldus study)
c) Arbitrariness
i) Prosecutors have unlimited discretion to seek DP
ii) Defendants are poor and receive inadequate counsel
iii) Judges are elected so decisions political
d) While morally and socially useful, death penalty should be abolished because it
cannot be fairly imposed (Broken System: Error Rates in Capital Cases)
ii. C-What Federal Prosecutors Really Think (Little)
A) Statistical Race Bias: While statistical disparity does not prove purposeful racial
discrimination in fed cap prosecution, it’s existence is persistent and disturbing
B) Prosecutors
1) Guilt – prosecutors believe in it when they seek DP
2) Race neutral rationale (they look at facts of specific cases)
3) Thorough examination/review before and after prosecution to ensure that bias doesn’t
infect process
4) DP sought when innocence is implausible/nonexistent
C) Specter of Timothy McVeigh – fits the profile due to the crime, harm caused, unrepentant
lack of remorse
D) Legislature
1) DP can be restricted by legislative criteria when evidence insufficient (single
eyewitness, unreliable confessions, etc.)
2) DP threshold can be better defined by legislature to ensure deterrent effect
iii. C- ABA standards
A) Prosecutors
1) Should not permit criminal charges when prosecutor knows that it is not supported by
probable cause or if there is an absence of sufficient admissible evidence.
2) Prosecutor not obliged to present all charges which evidence may support for good
cause consistent with public interest:
a) P’s reasonable doubt that accused is guilty
b) Extent of the harm caused by offense
c) Disproportion of the authorized punishment
d) Possible improper motives of a complainant
e) Cooperation of the accused in apprehension or conviction of others (snitches)
f) Availability and likelihood of prosecution in other jurisdictions.
3) Prosecutor should not be compelled to prosecute by supervisor if prosecutor has
reasonable doubt about guilt
4) Prosecutor should give no weight to personal or political advantages
5) Prosecutor should not take into account jury’s past decisions
2.
3.
6) Prosecutor should not bring or seek charges greater in number or degree than can
reasonably be supported with evidence
7) Prosecutor should not condition a dismissal of charges unless accused has agreed to
the action freely and voluntarily, and where the waiver is approved by the court.
B) Defense Counsel: D’s functions/obligations
1) Duty to serve as counselor/advocate (1) with courage and devotion, and (2) rendering
quality representation.
2) In Capital Punishment cases, a higher standard (1) make extraordinary efforts for
clients (2) comply with ABA guidelines for appointments.
3) Seek reform and improvement for administration of crime.
4) No intentional misrepresentation of facts/law
5) Disclose if adverse to accused
First Degree
a. Elements:
i. Premeditation and deliberation
A) Premeditation means the killer must have reflected upon the killing in advance, no minimal
time period required.
B) Deliberation refers to the quality of the accused’s thought process – undertaken with a “cool
head.”
ii. If the murder is committed using the means specified in a first degree murder statute (e.g. lying in
wait, poison, torture.)
iii. Murder occurred during the commission or attempted commission of an enumerated felony.
b. Elements (Mo Statute):
i. A person commits the crime in the first degree if he knowingly causes the death of another person
after deliberating upon the matter.
c. Cases:
i. State v. Brown
A) Reduced from first degree to second degree
ii. State v. Bingham (premeditation)
A) Reduced from first degree to second degree
iii. Gilbert v. State (Husband Euthanasia)
A) Victim/Wife is suffering from arthritis, osteoperosis, etc. with a worsening condition. Victim
was not bedridden and otherwise enjoyed life. (Couple married for decades)
B) Victim said she wanted to die.
C) Husband cared for her over a long period of time.
D) Husband asserted that he shot her to end her suffering. Husband believed that her pain could
not go on. He loaded his gun with bullet, shot her, checked pulse, and shot her again.
E) Husband was sentenced to life imprisonment for premeditated murder.
F) I: Do mitigating circumstances can be considered to alter mandatory sentencing?
G) R: Affirmed the conviction. Good faith is not a defense to first degree murder.
H) Concurrence: Murder is a murder. Do not focus on the kind of wrongdoer – e.g. no
distinction between hired killer and misguided mercy killer.
iv. Note: CL and MPC both find suicide and euthanasia illegal. Oregon allows for physician assisted
suicide.
Second Degree
a. Elements: (MO Statute)
i. A person who knowingly causes the death of another person or
ii. With the purpose of causing serious physical injury
iii. Causes the death of another person.
b. Case:
i. State v. Brown
A) Reduced from first degree to second degree
B) Victim is a 4 year old child, injuries indicated that he had been continually abused.
C) Victim died of cerebral hemorrhage and aspiration
D) Victim had fallen down a flight of stairs and blood was found all over the house
E) D only remembers spanking the child and D had a swollen hand
F) I: Whether constant child abuse leading to death of a child constitutes adequate
premeditation and deliberation to lead to a 1st degree murder charge? No
G) R: Prosecutors failed to establish BOP that there was premeditation and deliberation.
ii. State v. Bingham (premeditation)
A)
B)
C)
D)
4.
5.
Rape and first degree murder of a mentally retarded adult, reduced to second degree.
Cause of death was strangulation
Expert testified that strangulation took place over a 3-5 minute period.
I: Whether evidence of premeditation was sufficiently demonstrated in order for the issue to
go to the jury to sustain a first degree charge? No.
E) D: Majority requires premeditation before commencement of the act. Dissent allows for
premeditation to occur during the act. Jury is allowed to put themselves in the D’s and
victim’s shoes to determine what occurred.
Depraved Heart Murder – Implied Malice (lack of intent to kill)
a. E.g.: Commonwealth v. Pestinakas (92 y.o man dies of starvation)
b. Elements
i. When the individual who kills acts with an abandoned and malignant heart (implied malice).
ii. Implied malice exists if D acted with gross recklessness and extreme indiff. To human lifeD
realized actions created a subst. and unjustified risk of death but went ahead and committed
actions anyway.
iii. Note: punished as 2nd degree (b/c it’s implied malice w/o proof of intent to kill – which would be
acting with express malice).
iv. BE CAREFUL: Depraved Heart v. Involuntary Manslaughter (gross neg’l/simple recklessness)
c. Cases
i. Commonwealth v. Malone (Russian Poker Case)
A) F: Boys were friends. 17 y.o. took gun, put one bullet in, & asked 13y.o. to play game.
Pointed gun at boy, pulled trigger 3 times. Killed him.
B) I: Involuntary Manslaughter?
C) H: Depraved heart murder.
D) R: Killing resulted from an act intentionally done in reckless and wanton disregard of
consequences.
ii. State v. Davidson (rotweiller case)
A) F: 11 y.o. killed by dogs. Patern of violent behavior of dogs. D trained them to be
aggressive and failed to remedy problem of dogs leaving yard.
B) I: Depraved heart murder of little boy (while school bus kids watching)
C) R: D could reasonable foresee the result. D knew of substantial risk. She was grossly
reckless.
D) Theme: Time frame (Broad)—estaplished by prior pattern of dogs running after kids/they’d
escaped/her prior training.
Felony Murder
a. Elements
i. A person who kills during the commission or attempted commission of a felony (2nd Degree
murder conviction—Accomplices too.).
ii. Certain jurisdictions also elevate certain killings to first degree murder status if killing occurred
during perpetration or attempted perpetration of enumerated felony. I.E.:
A) Rape
B) Robbery
C) Arson
D) Burglary
E) Kidnapping
b. Elements – 2nd degree felony murder – non-enumerated (MO Statute):
i. A person who commits or attempts to commit
ii. Any felony
iii. And in its perpetration or in flight from its perpetration
iv. Another person is killed as a result of
v. Its perpetration or immediate flight from its perpetration.
vi. Note: “Its perpetration” also means attempted perpetration.
c. Case: People v Stamp (take your heart attack victim as you find him)
i. F: victim dies of heart attach shortly after robbery. Victim dies of heart attack 20 minutes later.
He had a history of heart disease.
ii. I: Whether felony murder rule should apply during unforeseeability of heart attack resulting from
trauma of robbery. Yes
iii. H: Robber takes victim as he finds them.
iv. R: FMR not limit to foreseeable deaths.
v.
6.
R: Robbery is inherently dangerous to human lifeintent to commit robbery is only intent
needed
d. Limiting Rules
i. Inherently Dangerous Felony Limitation
1) To convict for FM offense must carry a high probab. That death will result.
B) Case: People v. Patterson (Coco Puff’s—not high prob. of death)
1) F: Victim is coke addict, lives in hotel room & does coke and drinks alot. D is coke
supplier.
2) I: can one be charged for felony murder when one distributed drugs which cased death
of victim? No.
3) R: Selling drugs is not inherently dangerous.
4) R: It is the legislature’s job to make changes to the rule—not the court. The FMR acts
as a substitute for mens rea for murder—calling it malice aforethought.
5) Std: Do not look at facts look at the felony—“is there a high probability death will
result?”
C) Case: Hines v. State (Dick Chaney goes Hunting!)
1) F: Convicted felon is hunting (drinks 1 beer). Mistakens friend for turkey. Kills him.
2) I: Given murder, can one be convicted of a FM when—b/c they are convicted felon—
there mere possession of a firearm constitutes a felony itself? Yes.
3) Dissent (Hughes’ focus): Felony of possessing a firearm has nothing to do with
murder.
a) R: circumstances may establish D was neg’l but they can not establish high
probability that death would result
b) Theme: Pros. Disc: Sanction of life imprisoned for murder should be reserved for
cases in which D’s moral failing moral such punishment.
ii. Res Gestae Requirement
A) 2 parts:
1) Felony & killing must be close in time & distance (temporal and geographical
proxim.)
a) Killing occurs before felonydoes not apply
b) Killing occurs after felonmight apply (1 cont. trans.)
2) Requisite causal connection btw felony & killing
B) Cases:
1) People v. Bodely (supermarket murder)
a) F: D enters market, grabs money and runs. Man pursues him. Bystander tries to
stop D and gets hit by car, strikes head on ground, then dies.
b) I: Whether death occurred in perpetration of burglary (given he’d left the market).
(1st degree FM)
c) R: 1 Continuous Transaction Test:
i) Killing is so closely related to felonythey are part of one continuous
transaction.
ii) The crime continues until the criminal has reached place of temporary safety.
2) King v. Commonwealth (Beachcraft Bonanza Drug Plane)
a) F: plane gets stuck in heavy cloud cover or fog. While navigating they crash into
mountain. Passenger dies; pilot is alive.
b) I: Whether pilot could be convicted of 2nd degree FM (not enumerated) for
accidental death of co-felon occurring during the commission of a felony?
c) H: b/c death was not caused by an act of the felons in further of the felony, D not
liable.
Voluntary Manslaughter
a. Common Law Categorical Test
i. Elements
A) One can claim provocation mitigation if and only if one killed in response to: 1) aggravated
assault or battery 2) observation of a serious crime against a close relative, 3) an illegal arrest
4) mutual combat or 5) catching one’s wife in the act of adultery
B) Mere words rule: mere words are never enough to constitute adequate provocation (with one
exception: People v Ambro)
ii. Elements (MO Statute):
A) A person commits voluntary manslaughter if he causes the death of another person under the
influence of a sudden passion arising from adequate cause or
b.
B) if he knowingly assists in the commission of suicide.
C) Note: D has the burden of injecting the issue of influence or sudden passion arising from
adequate cause.
iii. Cases
A) People v Ambro (Wife in Adultery)
1) Married couple experiencing marital difficulties.
2) Husband became suspicious that wife was having an affair.
3) Wife tells husband of her affair and tells him. Also insults his masculinity. “I know
you want to kill me. Pull that knife and make it easy for me.”
4) Husband stabs her to death.
5) I: Whether verbal insults coupled with extramarital relations of the wife and goading
to kill constitutes a provocation reduction for voluntary manslaughter?
6) R: Mere words are not sufficient, but this is an exception where there is a heat of
passion defense and a long history of marital discord. Also noted that victim goaded
the D to kill. Felony or acts in furtherance thereof must contribute to cause the death
to constitute a FM killing.
7) R: no causal connection existed btw felony of drug distribution and plane crash. Cause
of deathpiloting in adverse weather conditions.
Modern Reasonable Person Test:
i. Elements
A) Provocation:1) The D actually acted in a heat of passion; 2) the heat of passion was provoked
by an act or event that would have also provoked a reasonable person in the D’s shoes to lose
self control 3) D did not have sufficient time to cool off between the provocative act or event
and the killing and 4) a reasonable person in the D’s shoes would not have had sufficient
time to cool. 5) A causal connection between the provocation, the passion, and the killing
must exist.
B) Reasonable Person: From the viewpoint of a reasonable person in the D’s position,
considering who D is (age, mental, etc.).
ii. Cases
A) People v Berry (Jury can determine if there was provocation)
1) Young wife and husband – wife commits adultery, professes new lover, and asks for
divorce.
2) Husband kills her after lying in wait for 20 hours.
3) Expert witness testified in favor of the Husband saying that wife basically was a
suicidal unstable young woman. Said D was provoked to kill her in an uncontrollable
rage and consummated her desire for suicide.
4) Is there a heat of passion defense? Yes.
5) R: Court finds a narrow time frame and focuses on when wife starts screaming and not
the 20 hour period of husband lying in wait.
B) CC-Heat of Passion and Wife Killing: Men Who Batter/Kill (Coker)
1) Discusses Berry and looks at the persuasive weaving of the facts to frame wife as the
instigator and husband as the helpless victim that was compelled to kill by wife.
C) CC-Heat-of-Passion Manslaughter and Imperfect Self-Defense (Taylor)
1) Provocation and heat of passion defenses are applicable to both and men HOWEVER:
2) Husbands are the ones that generally invoke this defense
D) CC-Homophobia in Manslaughter: Homosexual Advance as Insufficient Provocation
(Mison)(pro-gay article)
1) I: Whether a nonviolent secual advance constitutes suff. Provocation to incite a reas.
Man to lose self control and kill in the heat of passion? Yes, if it is a homosexual
advance –mitigates from murder to manslaughter
a) Case: Shick v. State—young man hitches ride and male driver offers blow job.
Victim makes sexual advance in field, d stomps him to death. H: adequate
provocation to instruct jury on vol. manslaughter
b) Less dignity via mitigated charge is unjustice
E) CC-When Heterosexual Men Kill Homosexual Men: Reflections on Provocation Law and
the Reasonable Man Standard (anti-gay article)
1) Mison Art. Response
2) Sexual desires are profoundly complicated. This is a gender based issue and men are
more likely to violently respond then women. A reasonable man finds gay advances
repulsive and gender tendencies toward violence makes this response appropriate.
3) Plays down the notion that this is not “homophobia” but merely finding of distasteful
conduct.
F) Commonwealth v Carr
1) F: 2 women camping, w/ sexual relns. D, male observer, kills one (other escapes).
Defense—he was provoked by “show” (impassioned).
2) R: There must be legally adequate provocation: “Whether reas. Man confronted with
this series of events would have become impassioned to the extent that his mind was
incapable of cool reflection”
3) H: This was not adequate provocation.
4) Reas. Std—A reas. Person would simply retreat.
5) ***You cannot simply present history of past injury or dischord.
c. MPC’s Extreme Emotional Disturbance Test (more subjective than CL)
i. Elements/Std:
A) Under the influence of extreme mental or emot. Disturbance for which there is reas.
Explanation & excuse which shall be determined from the viewpt of a person in the actors
situation under the circumst. As he believes them to be.
B) MPC v. CL: MPC is broader than heat of passion doctrine. A cooling off period intervening
act & disturbance does not negate the defense.
ii. Cases
A) State v Dumlao (transferred intent murder of m-in-law)
1) F: D kills mother-in-law & has extreme personally disorder (thought wife was
cheating). Defense: thought wife’s brother was attacking him w/ knife.
2) H: There was evidence of extreme emotional disturbance to reduce to
manslaughterso court should allow jury to consider this (case remanded)
3) R: Existence of Evidence=expert testimony.
4) Jury should engage in gender, racial, (etc) switching to determine reasonableness of
D’s actions.
7. Involuntary Manslaughter
a. Elements
i. The mental state is (1) criminal neg’l or malice aforethought OR (2) simple recklessness.
ii. Std: Turns on whether D was aware of substantial and unjustifiable risk and chose to disregard it.
(recklessness requiring awareness of risk v. neg’l not requiring such awareness.
b. Elements (MO):
i. First Degree: If person recklessly causes the death of another person.
ii. 2nd degree: If person acts with criminal negligence to cause the death of another person.
c. Cases
i. Commonwealth v. Welansky (the nightclub case)
A) F: D was owner of nightclub serving hundreds of customers. He regularly had inspectors
visit. Busboy lit match to screw in lightbulb, and started fire. All were killed b/c doors were
locked, blocked, & jammed. D in hospital during incident.
B) R: to convict for voluntary manslaughter, state is not required to prove D caused fire by
reckless of wanton conduct. State must prove only that death resulted from wanton or
reckless disregard of safety of patrons in event of fire for any cause.
C) Themes: Role of prosecutor (high profile case); Cultural ID roles (they needed someone to
blame and D was owner); narrow timeframe (didn’t consider his inspection compliance).
ii. State v. Williams (native Am. Case)
A) F: sick baby has gangrene. Parents don’t take hospital b/c they were afraid welfare
department would take child.
B) H: this was ordinary neg’l & therefore involuntary manslaughter
C) R: Caring for child is duty at common law. Court requires ordinary caution (call services of
position).
D) Theme: Cultural & ID role
iii. C: The Indian Child Welfare Act of 1978 (state v wms)
A) F: 25-35% of Indian children are in foster home. Discrepency—Indians have 10x greater
rate than others.
B) Reasons for orphanage: neglect
VIII. Sexual Offenses
A. Policy Considerations:
1. What is the harm caused by rape/analogies to other crimes?
2. What interests does rape law protect and should it protect? (e.g. male to female, sexual autonomy, bad sex)
3.
Are there good reasons for treating different kinds of rape differently? (e.g. statutory rape, intentional or
negligent rape, stranger v. acquaintance, presence or absence of violence, meaningful consent.)
4. What doctrinal rules will further the goals of preventing and redressing rape and protecting the rights of
D? (Pervasion of class and race bias.)
5. Do we look beyond the CJ system to solve the problem of rape?
B. Forcible Rape (General Intent Crime)
1. Test:
a. Whether D used force or threat of force to accomplish the sexual intercourse?
b. Does the woman have to physically resist? (some jurisdictions require demonstration of resistance but
all jurisdictions look for evidence of resistance to negate consent).
2. Elements:
a. Sexual Intercourse
b. Lack of consent AND
c. Force or Threat of Force
d. Against the Will
e. Factors to consider (Berkowitz):
i. Age
ii. Mental and physical conditions
iii. Atmosphere and physical setting
iv. Extent to which D is in a position of authority
v. Domination or custodial control
vi. Duress
3. Cases
a. The Element of Force or Threat of Force
i. Rusk v. State
A) Woman meets man in bar and gives him a ride home
B) He asks her to come up, she refuses, he pulls out the keys from her car and then she agrees.
C) Woman asserts rape because she was frightened. Woman concedes that there were
alternatives that she did not pursue.
D) Woman argues that she was lightly choked but court finds that it may have been a heavy
caress and did not constitute force.
E) R: Court reverses rape conviction because they found the evidence legally insufficient to
warrant a conclusion that D’s words or actions created in Woman’s mind a “reasonable fear
that if she resisted, he would have harmed her OR that faced with resistence, he would have
used force to overcome it.”
F) Dissent: (Weaving of facts example) Look at the woman’s perspective but majority
disregarded perspective of a young woman in a strange neighborhood, late at night. Most
rape victims use verbal resistance use of physical resistance often leads to injury. Argues for
deterrence as policy consideration.
G) Court of Appeals reversed this court and thus, reinstated the conviction. (Found that
reasonableness of fear was a question for the jury).
ii. State v. Alston
A) Facts
1) V and D were in a consensual sexual relationship but relationship ends.
2) D finds V at school. D grabs V to go for a walk and says “you are coming with me,”
they walk for 2 hours and pass several people.
3) D never physically restrained V but did make threatening remarks.
4) D and V walk to D’s friend’s house. V claims no exit.
5) D makes sexual overture and V ambiguously declines
6) V then asserts that she was raped in this house and makes a complaint to the police.
7) At a later period, they then engage in consensual sex.
B) R: Consent that is induced by fear of violence and is not legal consent.
C) Holding: Court says prosecution successfully establishes no consent element but fails to
establish element of force or threat to use force.
iii. Commonwealth v. Berkowitz (College Dorm Case)
A) Facts:
1) Victim is looking for boyfriend in college dorm
2) V walks into D’s room, whom she knows.
3) D asks her to stay
4) D possibly shoves or leans against V
5) V says she has to leave and D does not respond.
6) Sexual intercourse occurs
7) V keeps saying that she has to leave and leaves crying
B) I: Whether there was sufficient evidence beyond a reasonable doubt that an accused engaged
in sexual intercourse by forcible compulsion?
C) Court’s rationale: Facts show no more than “reluctant submission” and not “forcible
compulsion.” Court finds that there was no mental coercion because it was a familiar
atmosphere and no physical coercion because V could easily leave.
iv. C-Rape and Responsibility (Henderson)
A) Ann Landers letter to demonstrate the idea that women are in control of sex . “The female
who agrees to hours of petting but does not want to complete the sex act is asking for trouble
and she will probably get it.” e.g. agreeing to drinks, make-up, etc.
B) Henderson disagrees and sees that men are using this rationale as an excuse.
b. What [Should] Constitute Consent?
i. Consideration:
A) Changed Mind -What if you consent and then change your mind?
B) Mistaken Belief - What if victim says no and you honestly believe she or he says yes? Most
jurisdictions recognize a mistake defense as long as the mistake of consent is both honest and
reasonable.
1) E.g. Texas A&M: 61% of women who said no really meant yes and sought a more
aggressive partner. Corroborated by other University studies around the country.
ii. In Re John Z.
A) Facts:
1) V and Juan meant a few weeks earlier and V agrees to take Juan to a party.
2) V and Juan and D end up in a room. Juan and D are making sexual advances, which
she initially consented to but then changed her mind and said she “needed to go
home.”
3) D and V end up in a situation where they have sexual intercourse for a period of time,
and then V says she needs to go home. They continued to have sex and after a period
V leaves.
B) R: Court says” Offense of Forcible Rape occurs when, during apparently consensual
intercourse, the victim expresses an objection and attempts to stop the act and the d forcible
continues despite the objection.
C) Dissent: Concerned that crime has not been proven beyong a reasonable doubt. Facts create
doubt about the withdrawal of consent and the use of force. V’s silent motions could have
been misinterpreted.
iii. C-Antioch College Sex Offense Prevention Policy (Page 529)
c. Toward a right of sexual autonomy?
i. C-The Feminist Challenge in Criminal Law (Schulhofer)
A) Concerned that existing law of rape does not punish sexual misconduct that is not physically
violent.
B) Sexual offense law should protect a broad right of sexual autonomy  create a new offense
for sexual misconduct or sexual abuse that would reach non-violent interference with
freedom of choice.
C) This new offense would have the lack of consent element but NOT the force element.
d. Rape and Race
i. C-The Social Construction of a Rape Victim (Brown)
A) Black Community Perspective: Thought Mike Tyson was victimized and that the woman
impliedly consented by going to his hotel room at 2am. Believed that Tyson was the victim
of the white criminal justice system.
ii. C-Patriarchal Stories I: Cultural Rape Narratives in the Courtroom (Taslitz)
A) Tyson’s defense portrayed as an oversexed sex beast and that the victim knew that Tyson had
this nature and thus impliedly consented.
B) Victim had a motive to claim rape because Tyson is high-profile.
C) Articles into the account the different of sizes between Tyson and Desiree. Also noted that
Desiree appeared frantic and disoriented afterwards, clothes had been ripped, and there was
evidence of blood.
C. Statutory Rape (Strict Liability Crime)
1. Elements
a. All elements as above plus
b. Sex with a minor (as specified by the statute)
Cases
a. Garnett v. State
i. Facts
A) D is retarded with a low IQ
B) D (20 years old) and V (13 years old) begin a relationship that turns sexual.
C) D had been told and believed that V was older than 13.
D) V gives birth to a baby.
ii. I: Whether the State must prove that D knew that V was younger than 14 and whether it was error
at trial to exclude evidence that he had been told and believed that she was 16.
iii. Rule: Court looks at legislative history and finds that legislature rejects mens rea element/mistake
of age defense. Thus, this statute is strict liability and prosecution need not establish mens rea.
Court finds that mistake of age defenses are rarely available when V is younger than 14.
b. State v. Yanez
i. D is (18) and engaged in consensual sex with V (13 years old).
ii. D and V cruise around in D’s car and agree to have sex at a friend’s place.
iii. Mom finds out and calls police.
iv. D’s defense is mistake of age and that V appeared more physically mature for her age and that V
had said she was 16. V refutes this info.
v. I: Whether a mistake of age defense is available for statutory rape?
vi. R: Court finds that State has sexual assault statutes which require mens rea in contrast to child
molestation statutes that do not have a mens rea element. Court says this omission is intentional
and thus, legislative history demonstrates that NO mens rea was intended for this statute.
vii. D: Legislative intent was not to make teenagers engaging in consensual sex a felon. Instead, this
law was intended to punish child molestors and not consensual teenage sexual partners. A rising
trend with the MPC to reject strict liability and require some knowledge of age.
c. C-Statutory Rape Laws: Does it make sense to enforce them in an increasingly Permissive Society?
(ABA)
d. C-Yes, the Risk of Psychological Harm is too Great (Oberman)
i. Minors are vulnerable to coercion and exploitation.
ii. Girls are particularly susceptible because of their insecurities.
iii. These sexual encounters result in permanent harm of depression, disease, and pregnancy.
e. C-No, Selective Enforcement Targets Unpopular Men (Delgado)
i. Statutory Rape cannot be applied across the board but instead is used as a tool to target men who
are politically unpopular, socially unacceptable, the wrong color, or make the mistake of having
sex with someone from a socially upstanding and well-connected family.
ii. Deprives women in mid-to-late teens of choice.
f. C- Gender, Violence, Race, and Criminal Justice (Harris)
i. Men are more prone to commit violent crimes because it is an affirmative way of proving
masculinity.
IX. Theft Offenses
A. Theft
1. Larceny
a. Elements:
i. Trespassory taking and carrying away of property (even moving a couple of inches).
ii. From the possession of another
iii. With the intent to permanently deprive the owner of it.
iv. Note: Actor must have no right to use the property and the taking and intent to deprive must
occur simultaneously. (e.g. If Annabel lends Jared laptop and after Jared borrowed for it a few
days then decides to keep it permanently  no larceny.)
b. Hypo: In retail context, what happens if someone picks up merchandise and moves it around the store
with the intent to steal it? Yes, there has been “asportation” and shopper may be found guilty of
larceny (Craig v State in AL). But People v. Parrott (NY) says otherwise.
c. State v Robertson – defendant stopped by greeter at Wal-Mart while wheeling goods toward exit with
intent to steal convicted of larceny because she falsely asserted she had sales receipt and thus claimed
to be rightful owner when wasn’t.
d. Carrier’s case: Even though merchant had lawful possession of boxes, once the merchant broke the
boxes open – there was an unlawful taking of the contents. “Breaking Bulk” doctrine.
2. Larceny by Trick
a. Elements
2.
i. When you obtain custody of a thing
ii. Through deceit
iii. With the intent to permanently deprive the owner of it
b. Definition of constructive possession:
i. Eg: Rex v. Pear: Pear hired a horse, told the owner he was going to Surrey but in fact rode to a
different city and sold the horse. Jury found that Pear had intent to sell even when he hired the
horse. Legal fiction invented: When horse was entrusted, Pear received only custody and P
retained constructive possession. Therefore, when Pear decided to permanently deprive the owner
 Pear violated the owner’s constructive possession.
ii. Constructive possession occurs under Modern law when:
A) Principal delivers property to an agent to use, keep, or make a delivery for the principal
B) When the owner of property loses it or mislays it and someone else finds it.
C) A property owner delivers property to another person as part of a transaction to be completed
in the owner’s presence. (??)
3. Embezzlement
a. Elements
i. The intentional conversion
A) Conversion – when it seriously interferes with the owner’s ability to use the property
ii. Of the property of another
iii. By someone who is already in lawful possession of it (or by someone to whom it’s already
been entrusted)
b. Distinguishing factors between larceny by trick and embezzlement:
i. Larceny by trick – D’s initial taking is achieved by deceit (never constitutes lawful possession)
ii. Embezzlement – D already has receives lawful possession of property (when constructive
possession would be stretched too far)
c. Examples of embezzlement
i. Eg: King v Bazely: In 1799, bank clerk pockets hundred pound note given by bank customer for
deposit. Bank clerk makes credit entry so victim is bank, not customer. Not guilty of larceny
since bank never had possession of note. Led to passage of first embezzlement statute.
ii. Eg: Gwaltney v Commonwealth: bank teller stole from momentarily unattended drawer of another
teller. Gwaltney says she committed larceny, not embezzlement, because she had never been
entrusted with the particular currency that she stole. Court says embezzlement because
Gwaltney’s position of trust extended beyond confines of her station to entire teller line.
4. False Pretenses
a. Elements
i. A false statement of fact
ii. That causes the victim to
iii. Pass title to the Defendant
iv. The Defendant must know the statement is false and
v. Thereby intend to defraud the victim
b. Distinguishing factors between larceny by trick and false pretenses:
i. Determining whether title passed (false pretenses – must gain both possession AND title)
ii. Transfer of ownership at issue for false pretenses
c. Example of False Pretenses
i. DC Staffer from last year – DC staffer buys goods at store and leaves with receipt, returns later
with receipt, picks more goods off shelf and goes to return counter to receive cash in exchange
for goods he never purchased. DC staffer makes 1) false statement of fact when he presents
receipt 2) that causes store to 3) pass title of money to him 4) DC staffer knows receipt is false
and 5) thereby intends to defraud store.
B. Aggravated Theft
1. Burglary
a. Elements
i. Breaking
ii. And entering
iii. Of a structure/dwelling (knowing entry is not licensed)
iv. With intent to commit a crime therein
b. Cases
i. United States v Eichman – armed forces recruiting station in Times Square
A) Facts
1) Ds climb onto roof, pour oil on surface and lower American flag and set it on fire in
protest of Persian Gulf War
2) Gov’t doesn’t pursue arson but instead charges burglary
B) I: whether presence on top of roof of structure constitutes entry into the structure as defined
by burglary statute
C) H: Ds must have entered the four walls, there had to have been some movement across the
external boundariesthe penetration of the four walls or entering beneath the roof
ii. State v Thibeault – permission to enter at anytime is not burglary
A) Facts
1) D enters apartment with intent to steal valuables
2) However, D was given permission to enter the apartment at anytime
B) I: If someone has permission to enter/be in building but attempts to steal therefrom, is there
burglary?
C) H: Consent to enter is a complete defense to burglary
D) Prosecution must have proved beyond a reasonable doubt that he was not licensed to enter
the structure
2. Robbery
a. Elements
i. Felonious intent of
ii. Taking away the property of another from his person or in his presence (immediate presence)
iii. Accomplished by use of force or fear
iv. Note: all three elements must be present at same time
b. Cases
i. Crocker v State – guy steals guy’s money
A) Facts
1) P and D are drinking and P takes off clothes leaving money inside them (leaves room)
2) D comes in room, removes $500, and leaves
B) Court says: prosecutor should have indicted larceny and not robbery because element
“force/fear” was not present, plus P was not in room at time (no “immediate presence”)
ii. Miller v Superior Court (narrow) – toilet paper guy steals velcro wallet
A) Facts
1) P goes to public restroom to change into bathing suit and accidentally leaves pants
with wallet inside hanging in bathroom
2) P goes back to bathroom to retrieve pants/wallet and they’re not there (stall directly
across is occupied)
3) P hears his Velcro wallet opening in D’s possession and D refuses to leave stall or
give stuff back
4) D keeps asking for toilet paper and P continues to insist
5) D finally opens stall and tries to escape and overcome resistance but fails and P gets
his stuff back
B) Rule: circumstances otherwise constituting mere theft will establish robbery where
perpetrator peacefully acquires property but then uses force to retain or escape with it
C) Here, P confronted D to return items and D refused, constituting immediate presence
D) H: Robbery conviction upheld
E) Dissent
1) Uses broad timeframe (theft had already occurred before)
2) Says P was not at location at time of theft (no immediate presence)
3) Dissent defines immediate presence as an area within which the victim could
reasonably be expected to exercise some physical control over his/her property (P was
out of sight)
X. Criminal Law Defenses
A. Case-in-chief: One in which the D attacks the prosecution’s case in chief by arguing that the prosecutor has
failed its burden of proof on one essential element of the crime (e.g. actus reus, mistake defenses)
B. Affirmative Defense: One in which the D’s attorney admits that the gov.t has met its BOP regarding the c-inchief, but argues that D should be acquitted for some other reason. (Defense bears BOP for affirmative
defense).
1. Justification – D claims that D took the most appropriate action under the circumstances. (e.g. Self
Defense) Accomplices are not guilty either.
2. Excuse – D’s act is presumed wrongful but D asks to be excused for another reason (e.g. insanity.)
Excuses are personal to the actor.
3. Typically, preponderance of the Evidence to establish elements of Affirmative Defense
Justification
A. Self Defense
4. Elements:
a. Factors taken into account:
i. Necessity
ii. Imminence
iii. Proportionality
b. Must have honestly and reasonably believed in the need to act in self-defense, even if her belief was
mistaken.
5. Case: Culverson v. State (I’ll take you somewhere, if you pay me.)
a. Facts: Four pool money to buy cocaine. Two men are in car and one man points a pellet gun at the
other men and says “Give me all your money.” Unclear who was first aggressor. Driver said he shot
the other man in self-defense, who dies.
b. R: Homicide is justifiable if there was no actual or immediate danger to the D but he reasonably
believed that the assailant could kill or seriously harm him.
c. Concurrence: Require a non-aggressor to retreat if he/she could do so in complete safety. Says retreat
is not cowardly. Jury also can determine whether a reasonable person can or should retreat. If you
can retreat, then there is necessity which is an important factor of self-defense. Look to the totality of
the circumstances.
d. “True Man Rule” rationale for not requiring retreat: 1) Non-aggressor should not be forced to act in a
cowardly manner 2) unjustified aggression should not be protected 3) difficulty in jury determination
of when it is safe to retreat. [Cultural Perception of Self-Reliance]
e. Rule: Initial aggressor may regain the protection of self-d if he 1) withdraws AND 2) makes it plain to
the other party. If aggressor does not withdraw, loses justification but may be able to use imperfect
self-d.
f. Case: People v. Goetz (subway massacre SD?)
i. D was riding subway car with 4 black youths. Two come up and ask him for $5. D was carrying
an unlicensed pistol loaded with rounds. D established in his head a pattern of fire and from left
to right knocking over all the youths, and goes to find the last youth and shoots him point blank.
ii. D had been previously been mugged and had 2x warded off robbers by flashing his pistol.
iii. D asserts self-defense for robbery.
iv. No mention of race in trial but subvertly used by defense.
v. I: Whether a reasonable belief of danger is an objective or subjective standard of danger? Court
says a balancing of subjective and objective.
A) Actor must in good faith and honestly believe (subjective).
B) If a reasonable person in the actor’s shoes would believe. (objective)
vi. R: Deadly force may be used in kidnapping, forcible rape or sodomy, or robbery. (Some
jurisdictions have taken out robbery.)
vii. Holding: Court remands but says that jury must take into the account the reasonable man
standard.
A) At subsequent trial, Goetz is found not guilty on all counts (except gun) by a predominately
white jury. 9 years later, an all minority jury orders Goetz to pay the youth $43 million in
damages.
g. Case: State v. Simon (Subjective v. Objective Std) (Ks. Defense ag. Kung Fu artist)
i. F: D had “general fear” b/c “more ‘Orientals’ were moving into neighborhood.” Mr. Wong rented his
top floor. D believed Mr. Wong was an imminent threat to him; firing of gun appeared reasonable to
him. D killed him.
ii. I: Whether a reasonable belief of danger is a subjective or objective standard? Objective. D must
“reasonably believe”
A) Reasonable belief: 1) belief 2) existence of facts that persuade a reasonable man to that
belief.
iii. H: The proper jury instruc:
“A person is justified in the use of force against an aggressor when and to the extent it appears to him
and he reasonably believes that such conduct is necessary to defend himself or another against such
aggressor’s imminent use of unlawful force. A reasonable belief implies both a belief and the
existence of facts that would persuade a reasonable man to that belief.”
iv. R: Expert Test: D had “anxiety neurosis” causing him to “misjudge reality”
v. Subjective v. Objective
A) Subj: from the viewpoint of the accused’s state of mind
B) Obj: From the viewpt of a reasonable man in an accused’s position
THEME: Race/Gender/Cultural Roles & Identity
h. C: Murder and the Reasonable Man: Passion & Fear in the Crim. Ctroom, Lee
i. The Asian-as-Foreigner Stereotype:
ii. Hattori Case
A) Facts: Two students (one is a Japanese foreign exchange student) are dressed in costumes
looking for a Halloween party in Baton Rouge.
B) They ring the doorbell, no one answers, as they are walking around to the carport, the wife
opens the door and screamed for her husband to “get the gun.” Husband gets a laser-scoped
Smith and Wesson. 2 students are already on the sidewalk.
C) Husband runs out with the gun and Hattori and smiled, trying to explain in broken English
“we are here for the party.” Husband says “freeze” and fires at his chest. Killing him.
D) Husband says Japanese man “looked like a crazy man.” Jury finds that after 3 hours of
deliberation found him not guilty of manslaughter. Jury found that killing was necessary to
prevent great bodily harm or death. Spectators applauded.
iii. Articles observes that Husband easily could have retreated by staying indoors.
iv. Economic uncertainty has historically incited resentment and violence against asian Americans.
i. Case: State v. Stewart (battered wife homicide void imminent danger)
i. D being abused by current husband. D begins experiences schizophrenia and begins suffering
from Battered Woman Syndrome. Husband starts messing with her medication. Husband abusing
the daughters and also abuses D. Husband refuses to allow D to have contact the daughters.
ii. D files for divorce after pattern of violence (e.g. beating with baseball bat.)
iii. Husband implies that D will alive much longer. D gets gun and shoots husband while he is
sleeping. D asserts fear for her life.
iv. Expert testimony – finds that there is BWS.
v. I: Whether self-defense excuses a homicide committed by a battered wife where there is no
evidence of a deadly threat or imminent danger contemporaneous with the killing?
vi. Holding: Jury instructions of self-d needed to be objective – a reasonable person in her
circumstances NOT her subjective viewpoint.
vii. Holding: NARROW: When a battered woman kills her sleeping spouse when there is no
imminent danger the killing is not reasonable necessary and a self-defense instruction may not be
given.
A) No imminence in the threat, but being asleep does not preclude the imminence.
B) No one can attack and kill another because he may fear injury or death at some future time.
Perceived imminent danger had to occur in the present time specifically during the time in
which D and actor were engaged in final conflict.
C) BWS is not a defense.
D) Where self-d is asserted, evidence of decedent’s long-term cruelty and violence is
admissible.
viii. Dissent: BROAD TIME FRAME: There was evidence of self-defense that should have been
admissible because the facts (threats to kill, loaded gun, disconnected phone) indicate very clear
threat to kill and broad time frame.
j. C-Battered Woman and Self Defense (Walker)
i. Walker looks at the concept of “learned helplessness in the cycle of violence.”
ii. Critiqued feminist legal scholars because Walker treats women as victims.
iii. Critics fear too rigid of an application of the cycle of violence that causes denial of judicial denial
of applicable facts.
iv. Psychological focus obscures the relevance of the objective element.
k. C: Juries & Expert Evidence: Social Framework Testimony (Schuller)
i. References social framework testimony e.g. BWS, Rape Trauma syndrome, brainwashed victims,
Vietnam vets.
ii. Social framework testimony do not directly bear on ultimate facts but social and psychological
context (to evaluate claims of ultimate fact.)
iii. Social Framework Evidence: (Over past 15 yrs) Increase of social science expert testimony re:
eyewitness unreliability, post-tram. Stress disorder, cross-cultural differences in the meaning of
behavior.
l. Case: State v. Wanrow (molested daughter/murder)
i. F: Daughter of widow (w/ broken leg & crutch) was allegedly molested by “Mr. Wesler,” who
had background of molestation & was prior committed for mental illness. Upon police summons,
they alleged that they could not arrest him until Mon. Morning. LL “conk him over the head”
should Wexler enter house, and police agreed and told her to wait until he comes into the house.
Someone tried to get in house & slashed window screen. 2 days later shooting occurred when D
entered widow’s house (where 8 kids, D’s wife, & widow were holed up). Widow screamed for
him to get out, enlisted help of men outside, and—startled—shot him “in what amounted to a
reflex action.”
ii. Was SD jury instruction to consider “only those acts or circumstances occurring ‘at or immet.
Before the killing” correct? Court said jury should use a subjective standard
iii. Rule: Jury instructions for SD should focus on subjectivity  her own subjective impressions –
not what a detached jury might see as reasonable.
iv. HR: Imminent Danger (p760) is not an objective std. Widow was entitled to have the jury
consider her actions in the light of her own perceptions of the situation, including those
perceptions (“which were the product of our nation’s ‘long & unfortunate history of sex
discrimination’”)
A) Court concentrated on the sizes of the man and widow. Widow was also on crutches.
B. Imperfect Self Defense
1. Common Law Elements
a. If you honestly believe that force is necessary but your belief is unreasonable OR
b. If someone attacks you with non-deadly force and you wrongfully escalate the conflict by using
deadly force THEN
c. Under the traditional common law, you do not have a valid self-defense claim and will be convicted
of murder; however, under the modern common law, your crime may be mitigated from murder to
voluntary manslaughter under the “imperfect self-defense” doctrine
2. MPC’s Mitigation Principle: when an actor that seeks affirmative defense for use of force:
a. is reckless or negligent in having a belief about necessity of force under circumstances OR
b. When actor is reckless or negligent in acquiring or failing to acquire material knowledge concerning
justifiability of her use of force
c. She loses any justification defense against prosecutions based on recklessness or negligence (on a
lesser offense – similar to common law imperf. self-defense)
C. Defense of Others
1. Test:
a. When a person uses force against another person to defend a third person he thinks is in imminent
danger of an unlawful attack.
b. Like self-defense there are three requirements:
i. Imminence/triggering condition – 3rd person under imminent unlawful attack
ii. Necessity Requirement
iii. Proportionality Requirement (deadly force may be used only if the third party is at risk of
death or grievous bodily injury)
c. D must honestly AND reasonably believe the force he used was necessary to protect the 3rd person
from an imminent unlawful attack.
2. Older CL Restrictions:
a. “Act at Peril” – permitted the use of defense of a 3rd person only if D was correct about the 3rd
person’s ability to use force in self defense.
b. Status Relationship – Defense was only available for particular status relationships (e.g. employee,
servant, or family member)
3. Modern CL has jettisoned these restrictions
4. Case: People v. Young (Mistaken Assault on Civilian Police Officer)
a. Facts:
i. Detectives in civilian dress attempt to chase a man to place him under arrest.
ii. D came out of the crowd and hit the detective over the head with his fist.
iii. D sees detectives rip the pants of the young man and that the young man was crying.
iv. D had a mistaken but reasonable belief that he was protecting another.
b. I: Whether one, who in good faith aggressively intervenes in a struggle between another person and a
police officer in civilian dress attempting to effect the lawful arrest of the third person, may be
properly convicted of assault in the third degree.
c. Holding: Old common law “act at peril” and D was convicted. Mistake of fact defense not available
under this charge. Man being arrested did not have the right to defend himself and thus, defendant had
no right to defend the man.
d. Dissent: Criminal intent requires an awareness of wrongdoing. In this case, D reasonably believed he
was assisting another. Attempt to get rid of act at peril rule and urging Majority to adopt modern rule.
Even under circumstances, D must act reasonably and jury should determine whether D acted
reasonably.
D. Defense of Habitation
1. Rule:
a. Old Common Law: Permitted an occupant of the dwelling to use ANY force necessary, including
deadly force, if he reasonably believed the force was necessary to prevent an imminent unlawful
entry.
b. Modified Old CL: Occupant must reasonably believe such force is necessary to prevent imminent
unlawful entry AND the intruder intends to commit a felony or cause injury to the occupant or another
occupant of the dwelling.
c. Modern Modified CL: Occupant of a dwelling may use deadly force against intruder only if he
reasonably believes such force is necessary to prevent imminent unlawful entry AND that intruder
intends to commit a FORCIBLE felony or KILL or cause GRIEVOUS bodily injury to occupant or
another occupant of the dwelling.
2. Case: People v. Brown (Domicile Defense: Escalated Landscaping Dispute)
a. F: D (Occupant) gets into fight with bricklayer. B walks to the back of the house with a hammer and
knocks off the top layer of bricks because he is angry at being fired.
b. Front porch is connected to walkway, which is connected to public street. Doorbell next to the front
door on front porch to announce visitors.
c. D shoots the B who is on front porch knocking the bricks down.
d. I: Whether entry onto an unenclosed front porch constitutes an entry into the residence?
e. H: Entry on porch did not satisfy “defense of home” jury instruction.
i. Resident does not have a reasonable expectation of protection from unauthorized intrusion
onto the kind of front porch involved in this case.
E. Defense of Property
1. Rule: One is not allowed to use deadly force in defense of property.
2. Case: People v. Ceballow (Living Quarters Above Garage)
a. F: D had his garage broken into and decided to mount a loaded gun to the door. Turns out that the
intruders were young teenagers who went back to the garage to break in for musical equipment.
Teenager opens door and gets hit in face with a bullet.
b. H: D did not have the right to use deadly force because in this case had D been present, he would still
have been unjustified in using deadly force. D therefore is not justified in setting a gun trap to prevent
a burglary.
c. R: Gun trap provides no warning and is indiscriminate (no discretion) and has an excessively
d. Policy consideration: Not encourage use of trap guns that may cause death to innocent.
3. C: Killer Thief Wins Wide Support (Bair)
a. F: 70 year Barkeeper shot an unarmed thief in the back of head. Thief had committed series of
robberies. Barkeeper shot thief when he caught thief with hand in the cash register.
b. D defended himself, arguing “justifiable homicide”
c. I: Did he have good reason?
4. Case: People v. Quesada (burglar shot & killed)
a. F: D had his house burglarized and had his stereo stolen. Neighbor told D that Edie had been trying to
sell a stereo that matched the description of D’s stereo. D and neighbor set up a sting and yell at Edie
to “freeze and get out of the car.”
b. Edie reaches under the seat, and D and neighbor thinks he is reaching for a gun.
c. Edie tries to flee by accelerating, hits two trees, D fires into the driver’s door with the fear that he was
going to be run over. Edie accelerates again and D runs after him and shoots again. Edie died of the
bullet wound.
d. H: Deadly force not justified
e. Rat: In this case, burglary had already occurred when no one was on premises and thus could not
threaten death or serious bodily harm; therefore, D could not justify the use of deadly force in
apprehending the criminal after the fact.
F. Necessity
1. Conduct otherwise criminal is justifiable if: as a result of natural forces, D reasonably believed that
conduct was necessary to avoid some greater harm (necessity defense is question of fact for jury)
2. Elements
a. CL Test for someone to be acquitted under the Necessity D:
i. Balance of harms
1. MPC allows for killing under certain circumstances
2. Common law says necessity is never a defense to killing
ii.
iii.
iv.
v.
3.
4.
5.
6.
Excuse
Legislature is silent
Causal connection
No effective legal alternative available to the D
D seeks to avoid clear and imminent danger (not in MPC)
1. MPC: Harm avoided is greater than the harm caused and that D believes the action
was necessary.
vi. D is not at fault for creating the dangerous situation
b. In re Eichorn
i. To prevent a significant evil
ii. With no adequate alternative
iii. Without creating a greater danger than the one avoided
iv. With a good faith belief in the necessity
v. With such a belief being objectively reasonable
vi. Under circumstances in which he did not substantially contribute to the emergency
Case: US v. Schoon
a. F: Ds took over IRS office in protest of US involvement in El Salvador
b. D uses necessity defense because it is necessary to take over IRS to prevent continuous funding of
war to avoid further bloodshed in El Salvador
c. H: Necessity defense inapplicable to cases involving indirect civil disobedience
d. Rat: immediacy lacking, actions taken would not abate evil, other legal alternatives existed
e. Rule: Indirect protests of congressional policies can never meet requirements of necessity doctrine
(court doesn’t want to encourage this behavior – Ds could resort to political process, petitioning, etc.)
Case: Commonwealth v. Hutchings
a. Medical marijuana necessity defense
b. D suffers from scleroderma, has been unsuccessfully treated, cannot control constriction of
esophagus, two doctors agree that marijuana has helped
c. H: court upholds conviction of drug offenses
d. Rat: accepting D’s point of view would result in harm/negative impact on US drug laws and the
public at large and ignore gov’t’s overriding interest in regulating narcotics
e. Two Note Cases in which necessity defense is acceptable:
i. Thurber – convict escapes from prison asserting his life was in imminent danger at prison.
Escape was peaceful and he immediately surrendered. Court said harm avoided was greater
than harm if he had stayed in prison
ii. Iglesia – D was attacked by man with a gun and D successfully wrested gun from man and
goes to police station to turn the gun in (even though he’s unlicensed to carry it)
f. Dissent
i. Harm to individual in having to endure symptoms outweighs society’s general interest in
prohibiting the use of marijuana
Case: US v. Oakland Cannabis Buyers Coop
a. CA passed compassionate use act of 1996 authorizing medical use of marijuana
b. D is a non-profit that has physician who writes prescriptions for marijuana
c. US gov’t seeks to enjoin D
d. D says marijuana is only drug that can alleviate severe pain and symptoms of D’s patients
e. I: Is medical necessity a legally cognizable defense to violations of the Controlled Substances Act?
f. H: Court says no
g. Court looks at statutory construction and legislative history and finds Congress declined to provide
medical marijuana exception (deliberated and rejected it)
Case: In re Eichorn
a. Homeless person convicted of violating Santa Ana ordinance banning sleeping in designated public
places
b. On this night, D was unable to find shelter anywhere
c. D took every opportunity to work, save money but could not earn enough to find a permanent place to
live
d. I: Whether the ordinance was unconstitutional as applied to D based on his alleged involuntary
homelessness?
e. H: Necessity defense is available because sleep is a physiological need and not an option and D met
his burden that he could find no alternatives
f. Note: no necessity for an alien seeking emergency medical aid
1.
Even though D broke the law & was not morally justified in doing soUnder some circumstances D
should not be punished
2. D lacks moral responsibility for her actions given
a. Situational (Duress)
b. Personality (Insane/Diminished Cap./Minor)
A. Duress
1. Elements:
a. The defendant acted in response to an imminent threat of death or serious bodily injury
b. The defendant had a well-grounded (reasonable) fear that the threat would be carried out unless she
committed a specified crime
c. The defendant had no reasonable opportunity to escape threatened harm
2. Distinguishing between common law and MPC
a. MPC: duress defense is not limited to situations involving threats of death or great bodily harm
(broader than common law)
b. MPC: duress is available for a killing even if victim is innocent (unlike CL)
3. Distinguishing between necessity and duress
a. Duress is a response to a threat from a specific individual to commit the acts constituting the crime
b. Necessity is in response to a dire situation
4. Cases
a. US v. Contento-Pachon
i. D was caught transporting cocaine in his stomach to the US
ii. D asserts that he was under duress because in Columbia the drug lords have threatened his life
and his family if he did not cooperate (they had specific information that reaffirmed the belief)
iii. When caught he immediately gave himself up to police
iv. I: whether threats by drug lord against D’s family/life constitute duress that excuses illegal
transport of drugs
v. H: Jury may consider duress defense in this case because he demonstrates immediacy and lack of
ability to escape and b/c he immediately surrendered (triable issue of fact exists)
b. State v Hunter
i. D hitches ride with Walters, Remeta, and Dunn in Wichita
ii. D fixes Remeta’s gun and D asks to be let off
iii. Remeta talks about wishing he had killed a hitchhiker and describes several murders
iv. Cop car pulls up to investigate and someone fires at cop and hits him
v. Group of four leaves scene and heads to grain elevator where a shootout occurs (D asserts he
never had an opportunity to escape) and people die
vi. I: Whether defense of duress/compulsion is available to criminal defendant charged with felony
murder?
vii. H: Yes because D never had opp. To escape from Remeta’s sight (ample evidence presented from
which jury could have concluded that D’s acts were justified by compulsion  Remeta
armed/dangerous)
B. Insanity
5. Can be raised at three different stages
a. Pre-trial: Defense can argue D is incompetent to stand trial, incapable of understanding proceedings
b. During trial: D should not be found guilty by reason of insanity (insanity determined at the time
criminal act was committed)
c. Post-trial: Convicted D may raise mental capacity when on death row (rat: cruel and unusual
punishment to execute insane person)
6. Common law elements: M’Naghten Test (insane man tried to kill English PM, guilty)
a. D suffers a mental disease
b. Causing a defect in his reasoning powers
c. Resulting in D having inability at the time of his actions to either:
i. Understand the nature and quality of his act OR
ii. Know that his act was wrong
7. MPC elements (ALI)
a. D suffers from mental disease or defect
b. Resulting in D lacking substantial capacity to either:
i. Appreciate (more than know) the criminality/wrongfulness of his conduct OR
ii. Conform his conduct to the law
8. Distinguishing between common law and MPC
a. MPC: actor lacked substantial capacity to appreciate criminality or wrongfulness of conduct
Thus, MPC uses appreciate vs. CL “know” and MPC uses “lacked substantial capacity” vs. CL
“inability”
9. Cases
a. US v Freeman
i. Drug addict sold narcotics to undercover police agent who accidentally shortchanged D
ii. D asks for money and in second transaction D wants to do drug deal in restroom out of public
sight
iii. At trial expert testifies D had consumed large amounts of heroin/whiskey and engaged in prize
fighting (had been knocked out), destroying brain tissue
iv. Another expert says despite brain trauma, D still knew diff. betw. right/wrong
v. H: Court reverses conviction (MPC), stating treatment in mental institutions would better serve
interests of society as well as the truly incompetent/D
vi. M’Naghten Test criticized because
A. narrow scope, only cognitive aspect considered (no consideration of uncontrollable behavior
 counter to rehabilitation theory of punishment)
B. test recognizes no degrees of incapacity (only looks at whether person knows right/wrong not
whether they can control their behavior)  you either know what you’re doing and you’re
not insane or you don’t know what you’re doing and you are insane
C. expert testimony is limited to discussion of whether D knew between right and wrong and is
unable to elaborate further on personality  thus limits information to jury
vii. Durham Test
A. D is not criminally responsible if his unlawful act is a product of his mental disease/defect
(BUT FOR)  avoids problems of M’Naghten Test
B. Vague standard for mental disease/defect
C. Eliminates right/wrong requirement
b. State v Crenshaw
i. D is suspicious that wife is unfaithful. D beats wife unconscious, steals knife at nearby store, and
stabs wife to death 24 times. Takes care in cleaning up.
ii. D then borrows an ax and decapitates her. Hides body in blanket and head in pillowcase in car
and hides in thick rush. Leaves car in a river.
iii. I: Whether the insanity defense is available for someone of the Moscovite religious faith who
kills his wife because she committed adultery (A muscovite should kill his wife for adultery) in
the religion and has been previously hospitalized for mental illness in the past?
iv. H: Applies M”Naghten test: Finds that D was “rational, coherent, and sane” in his dealings with
others during the act of murder. Therefore, D was not affected by mental disease at the time of
the act AND that he was NOT legally insane.
10. Diminished Capacity
a. Test: If a D cannot prove he was insane at the time of the crime, D can seek to introduce evidence
about mental illness to mitigate or eliminate responsibility for the crime.
i. Mens Rea Variance: A D who can show that he was suffering from a mental disease or defect not
amounting to insanity at the time he committed the crime and therefore lacked the mental state
required for commission of the offense, will not be found guilty of the offense. (attacks mens rea
element)
ii. Partial Responsibility Variant: D argues that b/c of some mental disease or defect not amounting
to insanity, he is less blameworthy than others charged with the same offense. (e.g. Dan White’s
“Twinkie Defense” in SF assassination).
Other Defense Theories
1. Black Rage  attacks mens rea element
a. C - Black Rage Confronts the Law (Harris)
i. Black Rage is a legal strategy that centers on the racial oppression experienced by the D. It
is an attempt to explaint to the judge and jury how the D’s environment contributed to his or
her crime
1. Attribute’s social framework to D’s commission of act
ii. Discusses the LA Riots – Reginald Denny Case
1. Defense argued that D (man who smashed a brick into Reginald Denny’s head) was
part of an unthinking riot and lacked the specific intent.
2. Heat of passion of the mob. Mob got into a frenzy that was consumed with emotions
of frustration. Thus, could not rationally entertain the reflective thought to give rise
to the specific intent.
b.
3.
2.
Contextualized the mass rage within the context of the Rodney King beating
verdict.
“Cultural Defense”  attacks mens rea element.
a. Case: People v. Aphaylath
i. F: D is a Laotion refugee living in US for 2 years who kills his wife of one month. D asserts
that he lost control because wife had expressed preference for an ex boyfriend and displayed
affection for another man.
ii. Court says that information regarding D’s inability to assimilate into American culture and
the refugee experience should have been admitted.
b. C-Cultural Evidence and Male Violence (Maguigan)
i. Chen in NY case:
1. Chen killed his wife with a claw hammer. Defense admitted testimony saying that
Chen’s rage and violent impulses were normal in his culture of origin in China. D
was convicted of manslaughter rather than murder.
ii. Rhines in LA
1. Rhines was accused of rape. Defense contended that black people speak to each
other very loudly but the court excluded this information.
iii. Asserts that there is a misplaced focus on a separate cultural defense as the cause of tension
between feminist and multicultural reform goals.
1. MC Reform: Seeks a more pluralistic approach to the assessment of blame and that
cultures do not share values of a traditional white, male culture.
2. This defense is largely raised with immigrant populations but it tends to mitigate
punishment for male violence against women and children.
iv. Conclusion: There is no tension between multicultural reform and feminist legal thought.
c. C-Misidentifying Culture: Asian Women and the Cultural Defense (Vopp)
i. Culture defense is a legal strategy that Ds use in attempts to excuse criminal behavior or to
mitigate culpability based on a lack of requisite mens rea.
1. Also used in self defense or mistake of fact.
2. No formal cultural defense but used at discretion of court.
ii. Chen Case:
1. Expert testified that traditional Chinese values about adultery and loss of manhood
drove Chen to kill his wife.
2. Notes that testimony highlighted the dichotomy between foreign and American.
Author asserts that there is a bizarre portrayal of Chinese culture.
3. In this case, Judge took into account the marriagability of Chen’s daughters if he
was found guilty of murder  author says focus wrongly was not on the victim. In
fact, the victim was invisible.
4. Articles says that there was a total of female perspective.
d. C- Individualizing Justice Through Multiculturalism: The Liberals Dilemma (Coleman)
i. Japanese Santa Monica Woman:
1. She drowns her two young children and tries to kill herself. She is saved and
explains that her actions are a Japanese tradition of parent-child suicide. Woman
spends only one year in jail.
ii. NY- Chen Case
iii. Fresno Laotian Case.
1. Young Laotian woman is abducted from place of work at Fresno State U and raped.
D explains that in his tribe – this behavior is accepted and expected. Customary
way to choose a bride. D is sentenced to only 4 months in jail. Woman receives
$400 compensation.
iv. Somali Georgia Immigrant
1. D cuts off niece’s clitoris and botches the job. D says its female circumcision – a
time-honored tradition to ensure virginity. State charges child abuse but is unable to
convict. Court accepted cultural excuse for otherwise criminal conduct.
v. Note:
1. Cultural defense judges the D according to his or her own cultural standards rather
than that of the jurisdiction.
2. Whether US should be a unified justice system or one that reflects a culturally
pluralistic nation?
3.
4.
5.
6.
When cultural defense is allowed, women and children tend to be denied the
protection of criminal laws and potential victims have no hope of relief in the
future.
Cultural defense defeats the deterrent effect of the law and may become precedent
in many more instances.
Anathema to liberal agenda because it goes against securing legal protections for
women and children. Discriminatory effect:
a. Disparate treatment of immigrants and other members of American
society.
b. Different cultural norms are inherently discriminatory, contrary to
contemporary to international contemporary progressive values. In fact,
backwards.
Conclusion – choose rights over culture.
a. CJ system allows for D to use adequate non-discriminatory defenses.
b. Affords little or no protection to victims
c. Leads to balkanization of criminal law as applied to immigrants.
d. It reinforces racial attitudes and stereotypes.
A. Attempts
Elements:
a. Def: An act done with attempt to comitt a crime but failing to effect it’s commission.
i. Look for: (1) more than mere preparation & (2) tended to affect commission, & (3) specific
commission.
b. If attempted felonyfelony
c. If attempted mis.-->misdemeanor (but one step done, i.e. class B v. A)
d. MPC: requires substantial step toward the culmination of the commission of the targeted (focuses on what
D has done, not what remains to be done.
e. Defenses:
i. Impossibility
1. MPC wants to sweep aside b/c crime is one of a criminal purpose implemented by overt
act that strongly corroborative such purpose i.e.: subjectively from actor’s viewpoint
2. Theme: prosecutorial discretion
3. LEGAL IMPOSSIBILITY V. IMPOSSIBILITY IN FACT
a. LI: if intended act is not criminalno liability
i. Not punishable under CL
ii. MPC is trying to make it punishable
b. IIF: if intended substantive crime is impossible of accomplishment b/c of some
physical impossibility unknown to accusedelements of criminal attempt are
present.
i. Punishable in preponderance of cases
ii. Abandonment
The Actus Requirement
a. Case: People v. Rizzo (bungled robbers--substantial step)
i. F: Intended robbery of bank’s payroll. It’s thwarted. They are watched and followed by police.
D jumps out of car, police arrested all. Payroll collector was not there. D’s did not see the person
they’d intended to arrest; however they did (1) intend to rob him (2) were looking for him.
ii. I: Whether this constitutes attempt to commit robbery in 1 st degree? NO
iii. R: they had not found the person they’d attempted to rob.
1. No attempt can be made at least until he came into site.
2. Opportunity never came.
iv. Rule: The act must come or advance very near to the accomplishment of the attempted
crime. Felonious attempt is not enough—there must be an overt act to establish. (There
must be dangerous proximities to success, for an attempt)
3. overt act=one done to carry out the intention & it must be such as would naturally affect
that result unless prevented by some extraneous cause.
b. Case: People v. Staples (mathematician—wannabe burglar)
i. F: D attempts to burglarize bank. He rents office space above bank vault, & brings in equipment
to “drill” in (linoleum rug, gas torch, etc). LL calls police. He’s arrested. D concedes he:
4. began to drill, &
5. had intended to break in, but stopped.
ii.
iii.
iv.
v.
vi.
I: whether there’s suffic. Evidence to convict him of attempt to burglarize
H: Yes—D conceded that attempt was established
R: D’s acts had gone beyone prep. Stage and was an unequivocal step to completion of burglary
Note—court says P must establish that “acts went beyond mere preparation”
(Note—potential defense: possibility of abandonment)
The Mens Rea Requirement
Specific intent to commit the targeted offense.
a. Case: People v Harris (Mrs. Baker’s escape)
i. F: attempted murder case of a young, unmarried woman. D & Ms. Baker in car, D picks up &
points at her, making threats to kill. She eventually gets control of car, but D points gun at her &
shoots (he misses, but rear window broken & bullet fragment found in backseat).
ii. I: Whether D had specific intent to kill? (D claimed he only attempted great bodily harm)
iii. H: Intent to cause great bodily harm = murder
iv. R: Intent to commit specific offense of murder occurs when D does any act which constitutes a
substantial step toward the commission of that offense.
b. Case: State v. Hinkhouse (HIV +Sex=Att. Murder?)
i. F: D informed probation officer that he was HIV +. They discussed the D should not have sex b/c it
“would be killing someone.” D agreed (which acknowledged his awareness of possibility of death).
D engaged in sexual relations with 10 women. He made overt statements of intending to spread
disease. He was charged 10 counts of attempted murder. He insisted on having unprotected sex.
ii. H: there is sufficient evidence that he intended to cause death b/c of physical actions & knowledge.
iii. R: Pattern (of Behavior)(suggested) deliberate acts.
6. If (1) pattern & (2) deliberateAttempted ____
The Defense of Impossibility
i. When an attempt conviction can be set aside on the ground that it was legally impossible to commit
the crime contemplated.
1. Existence e.g.:
a. A person accepts goods he believes were stolen. They were not stolennot
guilty of attempt to receive stolen goods.
b. An accused who offered a bribe to a person who he believed was a jurorno
attempt to bribe a juror. (mens rea; no actus reas)
c. Mistaken identity cases
d. Pulling the trigger of an unloaded gun believing it was loaded (at wife’s head)
2. Insufficientno defense of impossibility available e.g.:
a. Attempt to steal from empty pocket/empty house
b. Possession of talcum powder (believed cocaine)
c. Use of narcotic (thought to be cocaine, but not)
c. Case: US v. Thomas (Leg. Impos. No defense to Sleezy Sailor Rape Case)
i. F: 3 sailors bar hopping. They come upon heavily intoxicated woman & dance w/ her until she
passes out. Sailors take her & rape her (believing she was drunk). At some point they realized she
was not reviving—ambulance called. Heart failure on the dance floor (she died there), but they did
not know.
ii. I: Can an attempt of rape occur when the victim is dead, but perpetrator believes she is (1) alive &
(2) incapacitated. (Does victim death permit legal impossibility?)
iii. H: The fact that female was already dead is no bar to conviction for attempted rape.
iv. Rationale:
1. D’s committed certain overt act
2. Act done w/ spce. Intent to commit rape
3. Act amounted to > mere preparation
4. Act apparently tended to effect commission of intended offense (even though…)
5. The intended offense failed of completion b/c unknown to D’s & as a matter beyond
their control V was already dead.
B. Accomplice Liability/Complicity
a. Elements:
i. Accomplice=one who intentionally assists another in the commission of a crime can be convicted
of the offence (accomplice)
ii. Distinctions:
1. Principal 1st Degree: person who commits acts constituting offense
Principal in 2nd Degree: person who intentionally assisted commission of crime in the
presence of principal in 1st degree
a. Can be actual or construct
b. E.g: Constructive Presence: accomplice outside bank watching for police
3. Accessory before fact: Person who intentionally assisted in commission of crime but
was not present in commission.
a. E.g.: Someone who helps buy guns before a robbery but does not accompany
robbers to bank.
4. Accessory After the Fact: person who helped principal in 1 st degree and accomplices to
arrest, trial, or conviction.
a. E.g.: providing shelter to fugitives
5. Note: Accomplice must intentionally assist the principal in the 1st Degree.
a. Some kind of assistance is required
b. Mere presence generally is no sufficient
Case: Pace v. State (NOTRE DAME WALLET STEALING—Accessor before fact)
i. F: Several people riding in car (Rootes—accomplice, Hitchhiker, & child in backseat). Rootes
pulls knife & took Hitchhikers wallet & watch. Driver (Def.) does nothing.
ii. I: Is mere presence of D at scene of crime sufficient to establish they were accessor before the
fact?
iii. Rule: Neg. acquiescence is not enough. There must be affirmative conduct.
iv. R: D had no duty to act (b/c no reln. to hitchhiker).
Case: State v Parker (MINN LAW STUDENT LARRY CASE)
i. F: Law student Larry (victim driver) & Principal Sam pick up Accomplice Parker. Principal Sam
throws Larry in back and starts driving. While driving, Passenger 3 starts beating up Larry
(bloody mess). Larry leaps and fleas from car. Police apprehend.
1. D Accomplice Parker: denies participation in (1) assault or (2) robbery. He told
Principal Sam: “knock it (beating) off”
ii. H: His inaction was enough
iii. R: He joined cohorts in assault, robbery, & stealing:
1. Close association w/ other men
2. Presence (before & after crimes charged were committed)
3. All 3 apprehended together
4. He knew of robbery
iv. Rule: It has been established that one may aid or abet w/o presence of overt act.
v. COMPARED TO PACE:
1. The ct. looks at all men collectively (like gang). His statement “knock it off” was
insufficient.
2. It was more obvious what was going on.
2.
b.
c.
C. Conspiracy
a. Elements
i. CL:
1. An agreement
2. by two or more persons
3. to commit either one or more criminal acts, or
4. one or more acts that are non-criminal but are
5. corrupt, dishonest, fraudulent, immoral, and illegal.
6. Note: CL allows for the charge of conspiracy and the target crime.
ii. Why conspiracy charge exists?
1. Conspiracy to commit a felony is a felony, misdemeanor is a misdemeanor.
2. Prosecutors favor the conspiracy charge:
a. Can try co-conspirators together
b. Scope of punishment is very broad
c. Hearsay evidence is available
d. Circumstantial evidence is easily admitted
iii. MPC: (p.1196)
1. Can charge conspiracy even if only one person is involved.
2.
b.
c.
Crime of conspiracy merges with the completed crime. Thus, the actor cannot be
punished for both the conspiracy and the target crime.
3. Narrower than CL since Conspiracy must have a crime as its object vs. CL’s “immoral,
corrupt.”
4. Broader than CL because MPC imposes criminal responsibility not only when the actor
intends to promote or facilitate of the target crime but also when the actor intends only
to aid others in its promotion.
iv. Distinguish Conspiracy from Attempt by:
1. In conspiracy, no need to prove that Ds ever came close to committing the target act.
2. The agreement itself is a crime vs. “tending to effect the commission of the crime” or
more than “mere preparation.”
v. Establishing Conspiracy – Trends in law
1. Older CL: Proof of an agreement completes the crime
2. Modern CL: Proof of some overt act in furtherance of the conspiracy is required. (e.g.
telephone call or a meeting would satisfy if the call/meeting is done for the purpose of
furthering the conspiracy.
vi. Defenses:
1. Withdrawal: D must inject the initial evidence (burden of production not persuasion)
regarding the withdrawal from a conspiracy but they remain liable for all actions that
occurred before withdrawal subject to the SOL.
2. Impossibility
vii. The Pinkerton Rule
1. There is liability:
a. if the substantive crime falls within the scope of the unlawful project
b. or was part of the ramifications of the plan, which could be reasonably foreseen
as a necessary or natural consequence of the unlawful agreement.
2. Note: If the substantive crime was a reasonably foreseeable consequence of the
conspiracy, court need not assess the individual culpability of a particular conspirator.
[An objective consequence]
viii. Wharton’s Rule
1. If a crime requires two or more people, then you need one extra one for conspiracy.
2. Examples: adultery, polygamy
ix. The Hyde Rule:
1. D must do some act that disavows or defeats the purpose of the conspiracy in order to
withdraw.
The Agreement
i. Case: State v. Pacheco (Conspiracy with Undercover Police)
1. Facts: Pacheco was a deputy Sheriff. Dillon owned a private investigative firm but
contacted the FBI when Pacheco was bragging about his illegal activity. Dillon follows
Pacheco.
2. Dillon (has become an undercover agent) offers $10K to Pacheco to “take care of the
situation” and indicates there are other people.
3. Plan was that Pacheco was supposed to kill the buyer. Pacheco enters hotel with loaded
gun but does not have to contact buyer before the police arrest him.
4. I: Whether a government agent feigning agreement with the D is enough to constitute
conspiracy under the CL because no “genuine” agreement is reached.
5. H: Yes, an actual and genuine agreement must exist. This jurisdiction requires a
bilateral agreement. Finds that conspiratorial group activity is more dangerous than a
feigned conspiracy with a government agency.
a. When one party merely pretends to agree, the other party in fact is not
conspiring with anyone. “Although the deluded party has the requisite criminal
intent, there has been no criminal act.”
The Pinkerton Rule
i. Case: US v. Mothersill
1. Facts: An elaborate drug distribution operation which included distribution from
Bahamas, trafficking in Florida, plotted robbery, and murder of a dealer.
2. A gf found out and D threatened to kill her if she informed the police.
3. D constructed a pipe bomb to kill her.
4. D’s car was pulled over by a police officer for speeding and arrested.
5.
d.
e.
Police officer found the pipe bomb in a microwave, which exploded and killed the
officer.
6. I: Whether the explosion of a pipe bomb that killed a police officer was reasonably
foreseen as a natural consequence of the unlawful drug distribution operation?
7. H: Court finds sufficient evidence for a reasonable jury to conclude beyond a reasonable
doubt that the murder was a reasonably foreseeable consequence of the drug conspiracy.
Pinkerton Rule was properly imposed.
The Shape & Boundaries
i. Case: Kotteakos v. US (Spokes of a wheel)
1. Facts: Fake applications to the FHA through one individual who organized all
transactions as a broker. Eight separate groups dealing with D who did not know each
other or of each other’s existence.
2. I: Whether petitioner suffered substantial prejudice for being convicted of a single
general conspiracy by evidence that showed eight or more separate conspiracies?
(Spokes of a wheel)
3. H: Court cannot charge eight separate conspiracies as one conspiracy because it violates
due process.
4. Rule: There must be some relation to the other parties charged in order to charge
multiple conspiracies as one.
ii. Case: US v. Bruno (Links in a chain)
1. Facts: Huge drug operations across three states that was brought done that consisted of
four linked groups:
a. Importer/Smuggler
b. Middlemen/Distributors
c. Retailers/Sellers
2. Holding: One conspiracy is ok because they are all engaging in the same related act
along the chain in furtherance of a conspiracy along the chain. All links are dependent.
Special Defenses to Conspiracy: w/Drawal & Impossiblity
i. Case: US v. Read (Withdrawal)
1. Facts: D claims he withdrew from the conspiracy more than 5 years before the
indictment was filed. (Company that manipulated finances to defraud stockholders and
SEC.)
2. Rule: Government must prove beyond a reasonable doubt evidence that disproves the
D’s withdrawal from the conspiracy.
3. Rule: Prosecution must prove beyond a reasonable doubt ever fact necessary to
constitute the crime charged.
a. 1) Alleged conspiracy existed 2) an overt act was committed in furtherance of
the conspiracy 3) D knowingly and intentionally became a member of the
conspiracy.
4. Rule: SOL is 5 years and if it has run, withdrawal would be a complete defense.
ii. Case: US v. Recio
1. Facts: Truck with drugs stopped by police. Police use drivers as government agents to
continue their attempted drop (as a sting). D is caught by police as he attempts to get
drugs from drivers.
2. Wharton Rule utilized here.
3. I: Whether a conspiracy automatically ends when the object of conspiracy becomes
impossible to achieve?
4. H: No, SCOTUS finds there is no automatic termination rule because it is inconsistent
with basic conspiracy law. (Public Policy Consideration: A threat to the public remains
even if impossible).
iii. C-Conspiracy Theory (Katyal)
1. Conspiracy creates efficiency and a group psychological identity
2. Groups are more likely to polarize to extremes, take courses of action that advance
group interests (even in the face of personal doubt), to act with greater loyalty.
3. Groups suppress dissent and induce conformity
4. Groups are more likely to have extreme attitudes and behavior  risky behavior and
polarization.
5. Working in groups often results in producing physical evidence that increases the
probability of being caught and senteneced.