Crime/Defense
Common Law
Mens Rea
Intentionally/purposely (conscious Purposely (conscious objective;
objective)
aware or believes circumstances
exist; no transferred intend)
Knowingly
(If actor practically certain of
Knowingly
result)
(result practically certain; willful
blindness falls here)
Recklessly
(aware of risk, ignore it)
Recklessly
(aware of risk, ignore it)
Negligently (not aware of risk, but
should have been)
Negligently (Gross) (not aware of
risk, but should have been)
Diminished capacity: mental
condition can negate malice
If statute empty, read purposely,
aforethought required for murder knowingly, recklessly
Intentionally/purposely
Intoxication can negate specific
intent, but not general intent
Intoxication is a defense if it
negates the required mens rea
(doesn't differentiate between
general, specific intent); can't
negate negligence or recklessness
Note: trend now to deny all
voluntary intox. Defenses
Mens rea focus precludes general/
specific intent differentiation (?)
Note to self: Test intoxication
negating mens rea arguments on
self on Dec 18th
Intoxication
General intent: Requires only that
D desired to commit the act
Specific intent: Requires that D
desired to commit act and more
(i.e. a specific result)
Mistake of Fact
Model Penal Code
Ignorance/mistake of fact not a
defense unless it negates the
required mens rea
Reasonable ignorance can be a total
defense if D thought actions were
lawful
Requires reasonable mistake for
general intent; no reasonability
Unreasonable mistake negates all
mens rea but negligence
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Fed./Ky./State Statutes
Knowingly
Wantonly (ky language, like
MPC reckless)
Recklessly (ky language, like
MPC negligent)
(Kentucky law)
Note: can negate intentional or
knowing
req. for specific intent
Not a defense to strict liability
Mistake reduces conviction to
crime that D thought he was
committing
Mistake of Law
Normally not a defense, unless law
is mistakenly applied (a hole
police wrongly apply a law, not
very common, constitutional
defense better
Ignorance of law not a defense
UNLESS not published (i.e. new)
or erroneously written/
unreasonably vague
Strict liability crimes
When statute codifies common law Strict liability is not a “crime” but
offense and no intent specified, the more like a violation, and cannot
requirement to show intent
result in probation or imprisonment.
presumed
Conduct requirement
D's awareness of condition which Not guilty unless conduct voluntary
may impair coupled with disregard or omission of act physically
= culpability
capable to perform
(Involuntary includes reflex,
D not responsible if unconscious at convulsion, in sleep or unconscious
time of act
or hypnosis)
Note: Stupid argument, rarely if
ever succeeds
Note: SCOTUS in Morrisette set
general rule that crimes require
mens rea; exception: stat. rape
(applies to all sources of law)
Failure to act can be a crime if D
had a duty; duties imposed by law:
statute (tax day), relationship
(parent), contracts, voluntary
assumption of duty, child abuse
reporting-statutory in many states
Vagueness
Void if fails to give person of
ordinary intelligence fair notice
that contemplated conduct
forbidden; also encourages
Note: loitering and vagrancy
laws voided by this idea and by
constitutional protections (so its
legal for all the angry youths to
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arbitrary, erratic enforcement
loiter around the mall hating
their father for no apparent
reason)
SCOTUS requires fair notice that
conduct is forbidden to satisfy due
process requirement
Homicide
Causing the death of a human
being with some mens rea (see
below)
Murder
Murder=1. Unlawful killing of a
human being (conduct) with 2.
malice aforethought (MR)
Murder = 1. Causes death of a
human being (conduct) 2.
purposefully/knowingly OR with
extreme indifference to the value
malice aforethought= intent to kill, human life (MPC equivalent to
intent to seriously injure, reckless DH) (MR)
disregard for life, death during
commission of felony (maybe)
Recklessness = manslaughter
Gross negligence = negligent
Intent (express malice) +
homicide
premeditation (conscious
consideration of act before
No degrees of murder
commission; time ALONE not
sufficient to infer) + deliberation
Note: if A intends to kill B but
(decision made in cool,
instead kills C, it's still murder. It
dispassionate manner) = murder
requires the intent to kill a person
1st degree
and a person to die, but does not
Intent alone = murder 2nd
require them to be the same person.
Intent + Heat of passion =
manslaughter
MPC says defendant must be aware
Depraved heart murder= no intent of their extremely risky and
(implied malice), but kill with
indifferent behavior to fulfill
extreme recklessness –death would extreme indifference factor
be likely to result (i.e. blindly
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Like MPC, Kentucky has no
degrees of murder
Ky. Murder (intent or depraved
heart)
Note: Reckless murder can
include guard dog attacks, deadly
traps etc. since they show a
“wanton disregard for human
life” and took active measuresdog is like a deadly weapon
(Berry v. Superior Court)
Note to self: train Mia as
ferocious attack dog
shooting into a crowded room)=
murder 2nd
Intentional use of deadly weapon
allows inference of intent
Manslaughter
1. Unlawful killing of human being Requires mens rea of recklessness
2. w/o malice aforethought
or (intent + EED)
Heat of Passion: Requires adequate
provocation from a single incident
(enough to enrage a reasonable
person), killer in sudden HOP at
time of killing (no time to cool
off), causal connection between
provocation and killing
Acceptable provocations:
discovering spouse having sex,
mutual combat, assault and battery,
frat kids wearing croakies and
sperries
Voluntary: Intent + HOP
Involuntary: reckless or negligent
but without malignant heart
Example of invol. Manslaughter:
negligently hunting next to a
suburb and shooting someone or
vehicular manslaughter
Unintentional Killings
Killing without intent to murder
Extreme Emotional Distress:
causation not necessary, cooling off
time acceptable, includes
cumulative provocation, words
along no longer rules out as
provocation
Ky. Manslaughter (w/degrees)
Intent + EED OR wantonly
w/extreme indifference to human
life (leaving child in car)
Note: Mutual combat usually
manslaughter (neither can be
said to be aggressor) –
Thuderdome!!
a. not a mental disease or defect
(insanity)
b. exposed to extremely unusual
and overwhelming state
c. extreme emotional reaction to
that exposure, reason overborne by
intense feelings
Leaves it trier of fact (jury) to
determine if there is reasonable
explanation or excuse, rather than
fixed categories of acceptable
provocations
No voluntary/involuntary
distinction like C/L
Negligent homicide (requires gross Ky. Reckless homicide
negligence, not just tort negligence) (equivalent of MPC negligent
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Usually involuntary manslaughter
unless implied malice (test: 1.
subjective awareness of risk and 2.
base or antisocial purpose/wanton
disregard for life), then depraved
heart murder
Felony Murder
Felony + death = murder
Misdemeanor + death =
manslaughter
Eliminates need to prove
causation; basically serves as a
shortcut for prosecutors
homicide, given different names
for mens rea)
Presumption that a violent felony
Federal: If imposed by statute,
indicates an extreme indifference to felony + death = murder 1st Deg.
the value of human life
Kentucky among states which
D can rebut if proves doing crime
does not have a felony murder
with care
charge
Note: Felony Murder rule all but
abandoned in favor of
accomplice liability
Most courts reject for accomplice
liability or depraved heart; Mich.
rejects as unjust to hold all liable
for one
Note: death almost always
required to be one foreseeable in
the process of committing felony
(not too hard to prove)
Can include death of co-felons
Felony child abuse resulting in
death of child merges w/homicide,
precluding 2D murder on FM
theory because abuse is part of the
murder
Beginning/End of Life
Born alive rule: Baby must be born
alive; but mothers can't be charged
(Shifting to viability)
Some statutes make it a crime to
kill a fetus past the point of
viability (better than 50% chance
of survival); doesn't require
knowledge of viability, but reck./
want. resulting in death
Brain dead = dead
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Turning off life support not
chargeable w/consent
Negligent act/error by doc treating
crime victim not intervening cause
of death, does not relieve criminal
actor of liability
Suicide
Causation
Tends to view assistance
(reckless/wanton conduct) as
homicide (usually voluntary
manslaughter)
(Example: Russian roulette)
Tends to view assistance as
aiding/abetting***
(Start here on exam)
Generally requires suicide pact
(both parties at equal risk; murdersuicide doesn't work due to
skepticism about shooter's intent)
Note: MPC assisted suicide,
aiding/abetting
1) Is D actual physical cause of
situation?
2) Is D legal cause (proximate
cause)?
Compare actual result with either
desired result (purposefully or
knowingly) OR probable result
(recklessly/negligently)
Note: Actual death and probably
death should be foreseeable
related
Note: Common law does
voluntary manslaughter
Hard for causation to negate a
An independent intervening cause Is the actual result so different as to reckless/negligent/wanton charge
can break chain of causation,
be unjust?
making harm unforeseeable and
thus negating mens rea, but only if
unforeseeable
Insanity
Didn't know nature of act, didn't
know act was wrong, or can't
control action
Not responsible for criminal
conduct if @ time of act, because of
mental disease or defect, actor lacks
substantial capacity to appreciate
M'Naughten: D must prove mental wrongfulness/criminality of act or
disease/defect causing moral
to conform to law (basically moral
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Refers to D's cognitive ability to
distinguish right from wrong.
Fed. Law accepts cognitive and
moral arguments, not violational
incapacity (don't know act is
wrong) or cognitive incapacity
(don't know what you're doing)
Some states add irresistible
impulse (unable to control
conduct)
incapacity and irresistible impulse) SCOTUS allows mens rea
approach, which allows insanity
MPC most accommodating of all
to negate required mens rea but
standards for insanity, basically has not as affirmative defense
all three possible prongs included
Alternative: Guilty but mentally
ill
Ct. adopts moral wrong: includes
legal wrong, given law's reflection
of society's moral beliefs
Note: Usually burden on
defendant to produce evidence of
insanity as an affirmative
defense. Burden of proving
insane or not splint in half about
in states
Not guilty by reason of insanity: D
walks free
Guilty by reason of insanity:
involuntarily committed
Aff. Def.: Duress
(aka coercion/
compulsion)
Various limits imposed under
common law
Elements:
1. Coerced by physical force or
threat
2. to self or 3P
3. that a reasonable person unable
to resist
4. not available if place self in
situation recklessly
No mention of opportunity to
escape; no balancing of crimes; 3P
not limited to close relative
Aff. Def.: Self-defense/ Elements:
D can use force when:
defense of 3P
Elements:
D can use force when:
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Note: Duress must always be
physical threats; emotional,
financial, etc. don’t count
Note: Can apply to third party if
reasonably closely related
(currently expanding)
1) has actual and reasonable belief
2) that using force is necessary
3) to defend self or 3P
4) against aggressor's imminent
use of unlawful force
1) has actual and reasonable belief
2) that using force is necessary
Note: Castle rule to not retreat
3) to defend self or 3P
applies to place of business too
4) against aggressor's imminent use
of unlawful force
Note: Castle rule does not apply
if attacker also lives there
Alter ego rule: In defense of 3P,
Nature of belief of necessity to use
courts considered D to know what force:
Note: typically objective
the 3P did
1) accurate - never required
standard of if defendant was in
(i.e., if V defending self from 3P, D 2) reasonable - required for
danger or not, but courts can take
guilty for killing V who he thought complete defense
into account outside/specific
was aggressor; D would be
3) sincere - always required
factors
officious intermeddler)
necessary - duty to retreat, because
Under MPC, >>>>>>
if you can, force unnecessary; force
it's based on the facts as actor
must be proportional to threat
believed them to be, knowledge is
not imbued
Aff. Def.: Prevention of Deadly force cannot be used to
defend property because property,
crime
unlike life, can be restored by
courts
Cannot resist arrest even if police
don't have probable cause
Can't use deadly force for making
arrest for crime that doesn't
involve deadly force
Use of deadly force to defend
property OK if actor believes
intruder committing felony
threatens use of deadly force
placing inhabitants in substantial
danger
Some states have adopted
statutes allowing property
owners to use deadly force
against any intruder (Make My
Day statutes)- really a self
defense rule
Use of force not justifiable to resist
arrest by police officer, even if not
justified UNLESS actor believes
necessary to protect self from harm
or death
Note to self: Batman question
still lingers, find nerdy law
profess to discuss this with; he is
not liable after all.
Can use deadly force to arrest only
if authorized peace officer or aiding
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person believed to be authorized
police officer
Aff. Def.: Consent
No defense because reasonable
person would not consent
(exception: sports, not serious
bodily harm)
Generally not a defense
Note: Stupid rule, if people want
Exceptions: sporting events, or if
to whip each other in naughty
negates an element of the crime (i.e. ways let them
rape)
Minority rule (objective):
Would police's conduct have led
reasonable person to commit crime?
(Police overstep their boundaries)
Majority rule (subjective): Did D
have predisposition to commit
crime prior to contacts with
police?
(sometimes not fair since
Police entrap if induce illegal act by defendants history plays in as a
1) making knowingly false
factor)
representations that act not illegal,
or 2) employing techniques that
Valid defense when:
create substantial risk act will be
1. Police officer creates intent to
committed by persons other than
commit crime in person not
those ready to do so
otherwise predisposed to do so
2. Police employed methods that
created substantial risk act would
be committed by persons other
than those ready to do so
Aff. Def.: Entrapment
Mere promoting or supplying
necessary component of crime
not enough sustain defense
UNLESS deception actually
implants criminal design in mind
Aff. Def.: Necessity
"Defense allows us to act as onetime legislatures, amending a
particular criminal provision or
Choice of Evils
Conduct D believes necessary to
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3 factors needed:
-greater harm to be avoided
Inc. Crime: Attempt
crafting a one-time exception"
avoid harm justifiable if harm to be -no legal alternative
avoided greater than that that
-imminent harm is what is being
prevented by law violated UNLESS avoided
D acted recklessly or negligently to
put self in position and
recklessness/negligence sufficient
to convict
Three elements:
1) intent to commit specific crime
2) overt act toward the commission
of that crime
3) a failure to consummate the
crime (eliminates charging
w/murder and attempt; charges
merge)
Instead of C/L's overt act, calls for
substantial step. Listed examples:
1) lying in wait, creeper
2) luring victim to scene
3) recon of scene
4) breaking into scene
5) possession of implements
6) having implements at scene
7) soliciting an innocent to engage
in element of the crime
If design to commit crime clearly
shown, slight acts in furtherance of
the design constitutes attempt; if
Also differs from C/L in that it
design will be carried out if not
allows renunciation/ abandonment
interrupted
MPC limits conviction to ONE
Impossibility not a defense
incohate crime (Attempt,
Conspiracy or Solicitation)
Merges with substaniative crime
Inc. Crime:
Conspiracy
Elements:
1. Intent to commit crime
2. agreement on both sides
(bilateral)
3. an overt act toward the
commission
Unilateral: If D has sincere intent, Does NOT merge
motives of other party do not matter w/substantiative crime; protects
(i.e., undercover cop)
society from dangers of
concerted criminal activity
MPC limits conviction to ONE
(Group Danger rationale)
incohate crime (Attempt,
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Conspiracy or Solicitation)
Each conspirator is an
accomplice of each other
Conspiracy merges into
member, meaning each can be
substantiative crime; one or the
charged with the substantiative
other, not both; if crime committed, crimes of the others
go to accomplice liability
Wharton's Rule: Some sub.
crimes require more than one
party (bribery, drug traffic)
require multiple parties, so
conspiracy merges
An overt act of one partner may
be considered an act of all w/o a
new agreement or even
knowledge, as long as it's a
natural and probable
consequence or foreseeable
crime
Inc. Crime: Solicitation Elements:
1. intent to commit the crime
2. invites another to be the
principal/ co principal
Renunciation not a defense
Elements:
1. Intent to commit substantiative
crime
2. Commands, encourages or
requires another party to engage in
conduct that would constitute crime
3. Actual communication not
necessary, only attempt
Renunciation can be a defense, if
complete, voluntary and crime not
committed
Conspiracy merges into
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substantiative crime
MPC limits conviction to ONE
incohate crime (Attempt,
Conspiracy or Solicitation)
Assault
Elements:
1. Attempts to cause (purposely
only)
2. or purposely, knowingly or
recklessly causes
3. bodily injury;
4. or negligently causes 5. bodily
injury
6. with deadly weapon
Reckless
Endangerment
When D acts recklessly, putting
In Kentucky, the equivalent
others at risk, if there's no harm (if charge is wanton endangerment,
there was harm, it would be assault) reflecting the different terms
used for the mens rea states
Accomplice Liability
MR = intent/knowing
MR = intent/knowing
Originally participants divided into
four categories:
1) Principal (did it)
2) Principal, 2nd Deg. (aid/abet &
present)
3) Accessory before fact (aid/abet
before crime)
4) Accessory after fact (aid/abet
after crime)
Person punishable as principal if:
1) causes an innocent or
irresponsible person to engage in
the act
2) solicits another to commit the act
3) aids or agrees or attempts to aid
another in planning or committing
crime
4) having a legal duty to prevent the
commission of the act, fails to make
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Note: now many courts are
including intentional inducing of
fear of imminent harm (pointing
a gun and saying, “I am going to
shot you”
Anyone who aids, abets,
counsels, commands, induces or
procures the commission of
crime, or who willfully causes a
criminal act to be done, is
punishable as principal
Anyone knowing a crime has
been committed who receives,
relieves, comforts or assists the
offender to hinder or prevent
apprehension is punishable as
First three categories now the same a proper effort to do so
(aid/abet carries same max penalty
as principal), while accessory after Not punishable if:
the fact carries lesser liability
1) victim of crime
2) terminates involvement prior to
Elements:
commission, either depriving
1) Crime committed by principal principal of any effective aid or
2) knowledge of principal's intent gives timely warning to police or
AND intent to assist
attempts to prevent act
3) conduct that in fact assists in
commission
Hindering apprehension or
prosecution if harbors or conceals
Aid need not be substantial; ANY actor; provides weapon,
aid toward commission of crime, transportation, disguise; conceals or
including moral support
destroys evidence, or tampers with
witness; warns actor of impending
Conduct required:
discovery or apprehension; or
aids/abets/assists (lenient standard) volunteers false information to
police
accessory after the fact; sentence
half as long up to 15 years
Note to self: Find a posse or
“crew” to help commit crimes
and illustrate accomplice liability
in practice
If act was 1st or 2nd degree felony,
hindering is a 3rd degree felony;
otherwise a misdemeanor
Possession
Elements:
Conduct (possession) + mens rea
(knowingly)
Two kinds of possession: actual
(item in person's hand) or
constructive (item in something
controlled by person, such as a car,
house, bag, locker, etc.);
constructive possession requires
Mens rea: knowingly
Conduct: voluntary act or omission
to perform act capable of
Not voluntary: reflex, convulsion,
movement during sleep or hypnosis
Act requires knowing procurement
or receipt, with awareness of
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Note: willful ignorance not a
defense against possession
control, but not ownership
Joint possession just as good as
solo possession
control for time sufficient to
terminate possession without doing
so
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