Table of Contents Criminal Law 2019
I.
FAQ of Criminal Law: ...................................................................................................... 6
1.
What is criminal case and law? ...............................................................................................6
2.
Complaint ..............................................................................................................................6
3.
Protections for criminal defendant: ........................................................................................7
4.
Government can prove case by circumstantial evidence and direct evidence: ..........................7
5.
Jury nullification: ...................................................................................................................8
II.
Theories of punishment: why we punish? ....................................................................... 9
1.
Retributivism: ........................................................................................................................9
a.
2.
Why to punish when someone is wrongdoer? ...........................................................................................9
Utilitarianism ....................................................................................................................... 10
a.
III.
Why to punish?.........................................................................................................................................10
Proportionality of punishment. ................................................................................. 14
8th Amendment: no cruel or unusual punishment: ................................................................ 14
1.
a.
Death penalty cases dealing with retributivism point of view under 8 th Amendment “excessive”
punishment. .......................................................................................................................................................14
b.
Imprisonment cases: narrow proportionality principal ............................................................................15
IV.
Modern role of criminal statutes............................................................................... 16
1.
Role of criminal statutes: principle of legality. ...................................................................... 16
2.
Fair notice or vagueness : ..................................................................................................... 16
c.
d.
V.
Nondiscriminatory enforcement: .............................................................................................................17
Lenity doctrine: .........................................................................................................................................17
Actus reus. ................................................................................................................... 17
1.
Actus reus:........................................................................................................................... 17
2.
Elements of Actus Reus: ....................................................................................................... 17
a.
Voluntary Act or Legal Omission: .............................................................................................................17
b.
Common Law Definition of Voluntary Act: ...............................................................................................18
c.
Model Penal Code does not define “voluntary act”: ................................................................................18
d.
Constitutional Law: voluntary act: ............................................................................................................18
e.
To be guilty of an offense, it is sufficient that the person’s conduct included a voluntary act. It is not
necessary that all aspects of his conduct be voluntary. .....................................................................................18
f.
Rationale of Voluntary Act Requirements: ...............................................................................................18
3.
Omissions ............................................................................................................................ 18
a.
b.
c.
d.
e.
f.
General Rule .............................................................................................................................................18
Rationale for General Rule: ......................................................................................................................18
Exceptions to the General Rule: ...............................................................................................................19
Crimes of Omission: Statutory Duty: ........................................................................................................19
Crimes of Commission: .............................................................................................................................19
Duty by Status: .........................................................................................................................................19
g.
h.
i.
4.
Duty by Contract:......................................................................................................................................19
Duty by Voluntary Assumption:................................................................................................................19
Duty by Risk Creation: ..............................................................................................................................19
Social Harm: ........................................................................................................................ 19
a.
b.
c.
VI.
Definition: .................................................................................................................................................19
Identifying the Social Harm: .....................................................................................................................19
Breaking down the Social Harm into categories:......................................................................................20
Mens rea .................................................................................................................. 20
a.
b.
c.
d.
e.
f.
VII.
Means “guilty mind”, ................................................................................................................................20
Broad “Culpability” meaning: ...................................................................................................................20
Narrow “Elemental” meaning ..................................................................................................................20
Model Penal Code § 2.02: purposely, knowingly, recklessly and negligently. .........................................20
Intent – mens rea term is not in the MPC, but it is used in the common law. .........................................20
General intent crime.................................................................................................................................21
Strict liability ............................................................................................................ 21
1.
Public-welfare offense: ........................................................................................................ 22
2.
Hybrid strict liability crime: .................................................................................................. 22
3.
General intent crime: ........................................................................................................... 22
a.
b.
VIII.
Causation: ................................................................................................................ 23
1.
5 components of a crime: ..................................................................................................... 23
a.
2.
Actual causation: ......................................................................................................................................23
Proximate cause: policy idea to create justified outcome. ..................................................... 24
a.
b.
3.
Attended consequences rule: ...................................................................................................................24
Apparent safety doctrine: .........................................................................................................................24
Model Penal Code “causation”: §2.03 (1) – “but for test” ...................................................... 24
IX.
Criminal homicide (absent from the class) ................................................................. 25
1.
“Homicide” .......................................................................................................................... 25
a.
b.
2.
Definition ..................................................................................................................................................25
“Criminal Homicide” .................................................................................................................................25
“Human Being” .................................................................................................................... 25
a.
b.
3.
X.
§2.04 MPC Ignorance or Mistake .............................................................................................................23
Mistakes of law under black letter law: ....................................................................................................23
At the Start of Life ....................................................................................................................................25
At the End of Life ......................................................................................................................................25
Year-and-A-Day Rule ............................................................................................................ 26
Common law: murder................................................................................................... 26
1.
Definition of “Murder” ......................................................................................................... 26
a.
b.
2.
“Malice” ....................................................................................................................................................26
“Aforethought” .........................................................................................................................................26
Murder: Intent to Kill .......................................................................................................... 26
a.
b.
General Rule .............................................................................................................................................26
Proving Intent ...........................................................................................................................................26
3.
Statutory Reform: “Wilful, Deliberate, Premeditated” Formula ............................................ 26
a.
b.
c.
d.
4.
Wilful ........................................................................................................................................................26
Premeditated ............................................................................................................................................27
Deliberate .................................................................................................................................................27
What If . . . ................................................................................................................................................27
Murder: Intent to Inflict Grievous Bodily Injury .................................................................... 27
a.
b.
5.
“Grievous bodily injury” ...........................................................................................................................27
Statutory Approach ..................................................................................................................................27
Murder: “Depraved Heart” (Extreme Recklessness) .............................................................. 27
a.
b.
c.
6.
General Rule .............................................................................................................................................27
What is “Depraved Heart”/“Extreme Recklessness”? ..............................................................................27
Statutory Approach ..................................................................................................................................27
Felony-Murder Rule ............................................................................................................. 28
a.
b.
c.
d.
General Rule .............................................................................................................................................28
Statutory Approach ..................................................................................................................................28
Rationale of the Rule ................................................................................................................................28
Limitations On Felony-Murder Rule .........................................................................................................28
Murder: common law and statutory murder (1st and 2nd degree) and MPC ............................ 28
7.
a.
b.
c.
d.
XI.
Common law:............................................................................................................................................28
1st degree murder: ....................................................................................................................................28
2nd degree: ................................................................................................................................................28
MPC: 2.10.2 ..............................................................................................................................................29
Manslaughter .......................................................................................................... 29
1.
Common law: ...................................................................................................................... 29
a.
b.
2.
Voluntary manslaughter: ..........................................................................................................................29
Involuntary manslaughter (more severely treated previously), 2 types: .................................................29
MPC (p.1055-1056): two types of manslaughter under MPC .................................................. 30
a.
b.
c.
d.
XII.
210.3. (1) (a) criminal homicide committed recklessly; ............................................................................30
210.3 (1)(b) extreme emotional disturbance killing: ................................................................................30
2.10.4 Negligent homicide ........................................................................................................................31
O Pioneers hypothetical: ..........................................................................................................................31
Felony – murder. ...................................................................................................... 32
1.
At common law:................................................................................................................... 32
a.
b.
c.
Inherently dangerous felony limitation: ...................................................................................................32
Independent felony limitation: .................................................................................................................32
Agency principal .......................................................................................................................................33
XIII.
Capital murder. ........................................................................................................ 33
XIV.
RAPE: ....................................................................................................................... 33
1.
Common law rape: ............................................................................................................... 33
2.
Rape: Means Rea ................................................................................................................. 33
a.
Mistake of facts to the issue of consent: ..................................................................................................33
b.
Defense based on reasonable mistake of facts to the consent ................................................................34
c.
For the general intent crimes, the defense based on the mistake is only available for reasonable
mistake. Rape is general intent crime. ...............................................................................................................34
d.
e.
XV.
Rape by fraud: ..........................................................................................................................................34
Rape shield statues: ..................................................................................................................................34
General Defenses to Crimes. ..................................................................................... 35
1.
Justification v. excuse defense.............................................................................................. 35
2.
Most common justification defense is self-defense. .............................................................. 35
3.
Self-defense: ........................................................................................................................ 35
a.
b.
c.
d.
Common law .............................................................................................................................................35
Imminent threat: ......................................................................................................................................36
Necessity:..................................................................................................................................................36
Model Penal Code §3.04 and §3.09 ..........................................................................................................37
XVI.
Defense of others/ property/ Battered Spouse Syndrome.......................................... 37
4.
Battered Spouse Syndrome: ................................................................................................. 37
1.
Defense of others ................................................................................................................ 37
2.
Defense of property (things you own) in the common law: ................................................... 38
3.
Defense of habitation (your real property), common law two rules: ...................................... 38
XVII.
Necessity justification defense. ................................................................................. 38
1.
Justification of necessity: Common law ................................................................................ 38
2.
Duress ................................................................................................................................. 39
3.
Duress v. Necessity .............................................................................................................. 39
XVIII.
a.
b.
c.
Intoxication. ......................................................................................................... 39
Common law did not consider it defense to general intent crimes. ........................................................40
2.08 MPC seems more favorable to criminal defendants than the common law. ...................................40
Involuntary intoxication: somebody spikes your drink, unforeseen drug reaction. .................................40
XIX.
Insanity .................................................................................................................... 40
1.
Rationale of Defense ............................................................................................................ 40
a.
b.
2.
Utilitarian Argument .................................................................................................................................40
Retributive Argument ...............................................................................................................................40
The M’Naghten Test of Insanity: used more than any other test ............................................ 40
3. The “Irresistible Impulse” (“Control”) Test of Insanity/ In VA mix of irresistible impulse and
M’Naghten .................................................................................................................................. 41
4. The “Product” (Durham) Test of Insanity – only used in New Hampshire, leaves way too much
to the experts. ............................................................................................................................. 41
5.
Model Penal Code Test of Insanity – defense friendly, because of the terms it uses. .............. 41
XX.
Inchoate [INKOET] defenses. ..................................................................................... 43
1.
Attempt – always attempt of something ex. murder, arson etc. ............................................ 44
2.
Under US common law: how close the person was to completing the offense? ...................... 44
a.
b.
Physical proximity test: .............................................................................................................................44
Last Act Test:.............................................................................................................................................44
c.
d.
e.
Danger proximity test: ..............................................................................................................................44
Unequivocality / Res Ipsa Loquitur Test: ..................................................................................................44
Probable Desistance Test: ........................................................................................................................45
XXI.
Inchoate crimes: Attempt ......................................................................................... 45
1.
Pure legal impossibility: ....................................................................................................... 45
2.
Pure factual impossibility: .................................................................................................... 45
3.
Hybrid legal impossibility (courts rarely call it that) ............................................................... 45
4.
Common law: ...................................................................................................................... 46
5.
MPC: 5.01(c ) substantial step test for attempt ..................................................................... 46
6.
Defense of abandonment only under MPC, not common law: ............................................... 46
7.
Solicitation: ......................................................................................................................... 46
XXII.
Inchoate crimes: Conspiracy ..................................................................................... 46
1.
Common law: ...................................................................................................................... 46
2.
Actus reus: the agreement or the meeting of the minds. ....................................................... 47
3. Mens rea: unity of purpose (intent for parties to agree) and specific intent (intent that the
object of the agreement is achieved). Conspiracy is therefore the specific intent crime. ................ 47
4.
MPC 5.03: ............................................................................................................................ 48
XXIII.
Defense to conspiracy ........................................................................................... 49
1. Special Defense: Wharton’s Rule – highly disfavored by courts – exception to the rule that
conspiracies do not merge............................................................................................................ 49
a.
b.
c.
d.
XXIV.
1.
ACCOMPLICE LIABILITY: COMMON LAW ............................................................... 50
General Principles ................................................................................................................ 50
a.
b.
c.
2.
General Rule .............................................................................................................................................50
Accomplice Liability as Derivative Liability ...............................................................................................50
Justification for Derivative Liability ..........................................................................................................50
Common Law Terminology ................................................................................................... 51
a.
b.
c.
d.
3.
Principal in the First Degree .....................................................................................................................51
Principal in the Second Degree .................................................................................................................51
Accessory Before the Fact ........................................................................................................................51
Accessory After the Fact ...........................................................................................................................51
What Makes a Person an Accomplice: Assistance ................................................................. 51
a.
b.
c.
d.
4.
Special Defense: Legislative-Exemption Rule ..........................................................................................49
Special Defense?: Impossibility ...............................................................................................................49
Special Defense?: Abandonment .............................................................................................................49
MPC Special defenses ...............................................................................................................................50
If No Assistance ........................................................................................................................................51
Trivial Assistance ......................................................................................................................................51
Presence at the Scene ..............................................................................................................................51
Omissions .................................................................................................................................................51
What Makes a Person an Accomplice: Mens Rea .................................................................. 52
a.
b.
c.
5.
Rule: intent to assist principal in 1st degree .............................................................................................52
Crimes of Recklessness or Negligence ......................................................................................................52
Natural-And-Probable-Consequences Doctrine .......................................................................................52
Accomplice Liability: If the Perpetrator Is Acquitted ............................................................. 52
a.
b.
If No Crime Occurred ................................................................................................................................52
If Perpetrator Is Acquitted on Grounds of a Defense ...............................................................................52
6.
Perpetrator and Accomplice: Degrees of Guilt ...................................................................... 52
7.
Purpose v. Knowledge .......................................................................................................... 52
8.
Natural probable consequences common law doctrine: ........................................................ 52
9.
Special Defense: Legislative-Exemption Rule ........................................................................ 53
a.
2.06.6(a) MPC defense of abandonment .................................................................................................53
XXV.
Larceny .................................................................................................................... 53
1.
Common law larceny............................................................................................................ 53
a.
b.
c.
d.
e.
f.
g.
h.
i.
2.
Definition ..................................................................................................................................................53
Legal fiction for merchants .......................................................................................................................54
Custody v. Possession ...............................................................................................................................54
Legal fiction for employers: master and servant. .....................................................................................54
Legal fiction: bailors, custodians...............................................................................................................54
legal fiction: larceny by trick: ....................................................................................................................55
Carrying away: ..........................................................................................................................................55
Personal property: very limited. ...............................................................................................................55
Property of another: .................................................................................................................................56
Mens rea: with the intent to steal ........................................................................................ 56
a.
Legal fiction for continued trespass: ........................................................................................................56
FAQ of Criminal Law:
1. What is criminal case and law?


Government is always first party in the case, not individual. Liability is not a
term of criminal law, it’s guilty or not guilty. Criminal law is series of
commands, binding upon everybody with sanction for disobedience. The only
area of law were society is naming someone moral wrongdoer – that’s was
particularly important about criminal law. Community is condemning
defendant for his/ her contact – that’s difference between criminal and civil
law – moral stigma is attached.
Sources: legislative statues, common law and Model Penal Code.
2. Complaint

that’s how proceeding start. Then there is warrant which is served, which
leads to preliminary hearing: judge needs to be convinced that there was a
crime/felony committed. Next, it’s grand jury, they determine whether they
establish possible cause which leads to indictment -> that leads to criminal
procedure. Trail is either with jury or judge without jury (bench trail), they
need to decide whether the defendant is guilty or not guilty. Then there is
appellee -> appellate court reviews whether 1) judge made an error of law – so
prejudicial that affected the outcome of case or 2) error of fact.
3. Protections for criminal defendant:
a) Presumption of innocence – stays with the defendant until government proves
all evidence without reasonable doubt. Reasonable doubt: reasonable
suspicion (traffic stop) -> probable cause -> Clear and convincing evidence
(taking away parental rights by government, that’s the test)-> Highest
standard to be met: beyond reasonable doubt.
b) Defendant doesn’t have to testify.
c) Right to trial by jury, for any crime that might lead to more than 6 months of
imprisonment.
4. Government can prove case by circumstantial evidence and direct evidence:
a) Direct evidence:
b) Circumstantial evidence: Owens v. State
 Owens v. State (1992):
o case on the appeal with circumstantial evidence. Question was whether
government can prove beyond reasonable doubt that Mr. Owens was
driving on the public highway while intoxicated.
Rule of law: A conviction may be based on circumstantial evidence
alone if the circumstances are such that they are inconsistent with
any reasonable hypothesis of innocence.
Facts: A police officer received a complaint about a suspicious truck
in the area. Upon investigating, he found a truck matching the
description parked in a private driveway with its lights on and the
engine running. Owens (defendant) was asleep inside at the wheel with
an open can of beer between his legs and two empty cans of beer in the
backseat. Owens was in an incoherent state, and sobriety tests
suggested he was intoxicated. He went to trial on the charge of driving
drunk on a public highway. At trial, Owens did not dispute that he was
drunk in the parked car but argued there was insufficient evidence to
prove he had been driving drunk on a public highway. The trial court
found him guilty.
Issue: Is circumstantial evidence alone legally sufficient to prove guilt
at trial?
Holding: Yes. In the absence of direct evidence, the jury must
make reasonable inferences from circumstantial evidence to
determine whether a criminal defendant is guilty. A jury should not
rely solely on these inferences to convict a defendant unless the
circumstances are incompatible with any reasonable theory of
innocence. Here, the officer found Owens drunk and asleep in a parked
car with the engine running and the lights on. From these
circumstances, there are only two reasonable inferences one can make.
Either Owens was already drunk when he entered the car but passed
out before he made it out of his driveway, or he had driven drunk on
the highway and passed out once he arrived in the driveway. If Owens
had not yet left the driveway, he did not commit a crime; merely
sitting in a car in a driveway is not against the law. On the other hand,
if he had just arrived from elsewhere, he did commit a crime because
driving drunk on a public highway is illegal. While it seems at first
glance that both scenarios are equally likely, a closer look at the
totality of the circumstances shows that a theory of Owens’ innocence
is incompatible with the evidence. In addition to the open can of beer
found between Owens’ legs, there were two empty beer cans in the
backseat. It is very unlikely that Owens drank in the house, carried the
empty beer cans into the car, and fell asleep with the lights and engine
on. Rather, it is apparent that Owens had been drinking in the car. It is
similarly unreasonable to suggest that Owens entered his car, turned
on the lights and engine, then drank three beers and passed out. It is
more likely that he had been drinking in his car before arriving at the
driveway. Additionally, the fact that the officer received a complaint
about the vehicle suggests that the car had been seen moving
erratically. Although none of these inferences alone prove Owens’
guilt, together they work to show that a theory of Owens’ innocence is
implausible. Because the circumstances in which the officer found
Owens are inconsistent with any reasonable explanation of innocence,
the lower court’s conviction is affirmed.
5. Jury nullification:

jury disregards what legislator says about crime even if the government
proves beyond reasonable doubt the guilt of the defendant. You can’t retry
after jury nullification.
 State v. Ragland (1986):
Court said that they won’t advise jury to disregard the legal system and try
to nullify.
Rule of law: The power of a jury to nullify the law is not essential to a
criminal defendant’s right to trial by jury.
Facts: Ragland (defendant) was charged with armed robbery and
possession of a weapon by a convicted felon. At the end of the trial, the
judge instructed the jury that it “must” find Ragland guilty of the offense
if the jury found Ragland was carrying a weapon at the time of the
robbery. The jury found that Ragland did indeed possess a weapon during
the robbery and convicted him. On appeal, Ragland argued that the use of
the word “must” was inconsistent with the jury’s nullification power. He
also argued the instructions should inform the jury of its nullification
powers, namely its power to acquit Ragland even if the State (plaintiff)
had proven its case beyond a reasonable doubt.
Issue: Is jury nullification an essential attribute of a criminal defendant’s
right to trial by jury?
Holding: No. A verdict of acquittal is final, and once a jury acquits a
defendant in disregard to the law, the jury has effectively nullified the law.
Some scholars believe that jury nullification ensures that jurors can
combat unfair laws or laws with unjust application. But it is not the role of
a juror to determine what is or is not a crime; that is a determination for
the legislature. Contrary to arguments, a jury’s power to nullify the law is
not essential to a defendant’s right to a trial by jury. Rather, it is an
unavoidable and undesirable consequence of the jury’s ability to acquit a
defendant. It is undesirable because it is inconsistent with the values of a
society governed by laws, not the arbitrary judgment of twelve citizens
selected at random. As such, a jury’s nullification power should be
diminished, not enhanced. Accordingly, the lower court’s instructions
requiring the jury to convict Ragland if it found Ragland possessed a gun
during the robbery was not in error. Ragland argues that the instructions
should have informed the jury of its nullification power, but such
instructions would only encourage juries to make judgments without
regard to the law. Ragland, and other defendants, may unavoidably benefit
from jury nullification, but such an undesirable power should not be
advertised. Consequently, the lower court’s original instructions are
proper.


I.
Guarder – process of questioning potential juror, that prevents the nullification
problems.
Mistrial.
Theories of punishment: why we punish?
1. Retributivism:

retribution in legal language means justice, when someone commits wrong
needs to pay for it. Proportional punishment related to the wrongdoing. You
should try to create moral equilibrium, by determining how much moral bad
was done. Punish people with free will (not under duress, mental
incapacitation). Retributivist cares about proportionality between harm caused
and punishment. Backward looking, proportional punishment.
a. Why to punish when someone is wrongdoer?
o Retributivist is backwards looking and proportional looking.
1)Somebody who commits crime owes the debt to society. We all
accept the burden of criminal law, give up some freedom as long as we
have guaranteed criminal law warranties. If you decided you want
protection from society but then you hate someone, then there is a
deficit. 2)Punishment creates equilibrium, defendant is not superior to
the plaintiff – he will be punished for wrongdoings.
2. Utilitarianism

looks forward, maximizing well-being of society. Punishment is bad, it
creates disutility. It is beneficial to punish someone, if the disutility touches
criminal but makes utility bigger for society in general. Is not concerned about
proportionality of the punishment, rather creating greater good for the
community by looking forward.
a. Why to punish?
People are like human calculators; actual criminals will weight in their
engagement in the crime by looking on cons and advantages. 3 different
forms:
- General deterrence: punish people in order to create lesson to everyone in
society (ex. Public hanging) – we don’t deter this individual, but everyone
else.
- Specific deterrence: prevent this specific individual from committing
crime in the future: short term is incapacitation, we will lock them up, so
they can’t commit more crimes; long term- intimidation: don’t do it or you
will have bigger sentence for recidivism.
 Ewing v. California (2003):
Rule of law: Sentencing a repeat felon to 25 years imprisonment
under a state’s three strikes law does not violate the Eighth
Amendment prohibition of cruel and unusual punishment.
Facts: Gary Ewing (defendant) was arrested for stealing golf clubs
worth $1,200. Ewing had prior convictions, including three burglaries
and a robbery. Under California’s “Three Strikes and You’re Out
Law,” defendants with more than two violent or serious felonies are
sentenced to “an indeterminate term of life imprisonment.” Some
crimes may be deemed felonies or misdemeanors at the discretion of
the prosecutor and the court. Courts may also avoid the three strikes
rule by vacating allegations of earlier serious or violent felonies.
Ewing was charged with felony grand theft, and the prosecutor
invoked the three strikes law. The trial court did not exercise its
discretion to reduce the charge or vacate earlier allegations. Ewing was
convicted and sentenced to 25 years to life imprisonment. The United
States Supreme Court granted certiorari to consider whether the
sentence violated the Eighth Amendment.
Issue: Does sentencing a repeat felon to 25 years imprisonment under
a state’s three strikes law violate the Eighth Amendment prohibition of
cruel and unusual punishment?
Holding: No. The Constitution does not prohibit a 25-year sentence for
serious, habitual offenders. The principle of proportionality that forms
part of the Eighth Amendment prohibition of cruel and unusual
punishment was limited by Harmelin v. Michigan, 501 U.S. 957
(1991), for cases not involving the death penalty. The state interest in
protecting public safety from habitual offenders spawned three strikes
laws across the country. California’s law reflects the policy choice of
the legislature to remove repeat violent or serious offenders from
society. About 67 percent of offenders released from prison will
commit another serious crime within three years. Recidivism laws
further the goals of incapacitation and deterrence. California saw a 25
percent drop in the recidivism rate following the passage of the law.
California’s legislature bears the responsibility for assessing the law’s
prudence, and this Court is satisfied that the state had a reasonable
basis for believing the law promotes its goals. In this case, there is no
great disproportion between the seriousness of the offense and the
sentence. Ewing was convicted of stealing items worth $1,200 after
four serious or violent felonies. The sentence is warranted by
California’s interest in protecting the public from repeat offenders like
Ewing through incapacitation and deterrence. Thus, Ewing’s sentence
is affirmed.
Concurrence (Scalia, J.)
The purpose of the Eighth Amendment prohibition of cruel and
unusual punishment was to bar particular methods of criminal
punishment, not disproportionate sanctions. The proportionality
principle only makes sense if the goal of punishment is retribution. If
the goals include incapacitation, deterrence, and rehabilitation, the
principle cannot be logically applied. Proportionality alone does not
justify Ewing’s sentence of 25 years to life for shoplifting golf clubs.
The truth underlying the majority’s opinion is the notion that criminal
sanctions should be reasonably related the state’s penological goals,
but this requires an admission that the Court is not simply applying the
law but making policy judgments.
Concurrence (Thomas, J.)
The Solem v. Helm, 463 U.S. 277 (1983), proportionality test cannot
be rationally applied, and the Eighth Amendment prohibition of cruel
and unusual punishment does not require proportionality.
Dissent (Stevens, J.)
The Eighth Amendment bars excessive punishment, and judges have
the authority to determine what punishment is permissible under the
amendment. Historically, judges have been given broad discretion in
sentencing, and those judges assessed the proportionality of a sentence
in light of all of the goals of criminal punishment. Thus, the principle
of proportionality underlying the Eighth Amendment considers each of
the penological goals of punishment.
Dissent (Breyer, J.)
The issue is whether Ewing’s sentence was proportionate to his crime.
Ewing will spend 25 years in prison for stealing golf clubs worth
$1,197 due to his prior convictions. Solem controls, and Ewing’s
sentence should be found unconstitutional. Shoplifting is a serious
problem, but the harshness of the sentence is not proportionate to the
crime. When the injury to the victim and community, the seriousness
of the crime, and Ewing’s blameworthiness are considered, stealing
the clubs is a relatively minor crime.
What’s important?
 State 3 strike law enhances the statutory range of punishment;
 Court ruled that two important elements are exercised through
the 3 strike laws: incapacitation and deterrence which are both
resulting in the lengthy sentence.
 Justice Scalia agreed, but added that 8th Amendment does not
require proportionality review of prison sentences.
 Justice Breyer dissented: Ewing’s sentence was cruel and
unusual – nearly a life sentence for relatively minor offense
and the disproportionate length of sentence was much longer
than comparable to different states. The length did not serve
the purpose of the punishment.

Rehabilitation: why the crime was committed and then try to treat that for
the public good.
P. 51 note 3: Atkinson committed murder when he was 13. When he was 30
years old he totally rehabilitated.
o Retributivism: looking backwards, proportional punishment,
Atkinson should go to prison for a long time. Utilitarian:
o rehabilitation: Atkinson won’t need any treatment since he already
rehabilitated;
o Short term specific deterrence: short term – incarceration not
needed anymore;
o Long term specific deterrence: punishing Atkinson harshly now
wouldn’t make sense;
o General deterrence: Atkinson should be punished, because people
will assume they can get away with murder.
 The Queen v. Dudley and Stephens (1884):
Rule of Law
The defense of necessity does not justify homicide unless the killing was
committed in self-defense.
Facts
Thomas Dudley and Edwin Stephens (defendants) were on the crew of an
English yacht, along with fellow seamen Brooks and Richard Parker. Due
to a storm, the men were lost at sea in an open boat for approximately
twenty-four days. They had no water except for occasional rainwater, and
little food. After over a week without any food, Dudley and Stephens
approached Parker, who was sick and in a much weaker state, and slit his
throat. The three remaining men fed off Parker’s body for four days until a
passing ship rescued them. Dudley and Stephens were put on trial in order
to determine whether the act of killing Parker was murder. The jury
determined that the men would not have survived to the time of rescue if
they had not fed off Parker’s body and that, at the time, it was reasonable
to assume they would die of starvation before they were rescued. The jury
also determined that Parker would likely have died before the other three
men. The jury made these conclusions of fact but was ultimately unable to
reach a verdict as to Dudley and Stephens’ culpability. It instead submitted
a special verdict requesting the court to determine Dudley and Stephens’s
culpability based on its findings of fact.
Issue
Will the defense of necessity justify a homicide committed to save the
defendants' own lives?
Holding and Reasoning (Coleridge, C.J.)
No. The intentional killing of another is murder unless there is some legal
justification. Necessity is only a justification for murder when the killing
is committed in self-defense. Thus, the defense of necessity may not be
used to justify the killing of an innocent bystander. The treatises of Lord
Hale make clear that necessity would not be a defense to larceny under
English law, much less murder. Hale’s Pleas of the Crown. Here, Dudley
and Stephens seek to justify the killing of their companion on the basis of
necessity. There is no authority supporting the principle that one may take
the life of an innocent person to save his own. The dictum of Lord Bacon
suggesting that a diver could push another off a raft to save himself and an
oddly decided American case suggesting that drawing straws was the
appropriate method of deciding who should be sacrificed in a shipwreck
are not binding on this court. To make such a ruling would cause too much
uncertainty as to whether a murder is truly necessary. Notwithstanding the
desperate circumstances Dudley and Stephens faced, their act of killing
the sailor was an intentional murder, and the defense of necessity is
unavailable to justify their act. Accordingly, Dudley and Stephens are
sentenced to death. [Editor’s Note: Dudley and Stephens's death sentences
were commuted to six months in prison.]
What’s important?
 Other than in self-defense, necessity is not a defense to murder.

Retributivist: they should be sentenced to death because they killed
someone.
 Utilitarian:
-specific deterrence: death penalty should not apply, because people
were in the very specific situation, that the odds of them finding
themselves in the same situation is close to zero;
- rehabilitation: there is no justification to rehabilitating them;
- general deterrence: doesn’t justify death penalty, because what’s the
lesson we are teaching society (very unique situation, in terms of
teaching tool for rest of the society will not work); does justify death
penalty from the point of view that it will deter other people from
using necessity as a tool to get away with murder.
 People v. Superior Court (Du) and People v. Du: no self-defense
applicable if someone walks away from you and you shot them in the
back. While sentencing, goals of punishment for California were (p.58): 1)
protecting society through punishing the defendant (utilitarian point of
view), 2) Punishing the defendant for the crime committed (backward
looking, retributivism), 3) Encourage the defendant to live law binding life
(Utilitarian, rehabilitation), 4) Punish in order to deter others (Utilitarian,
general deterrence), 5) Isolate defendant so she/he does not commit
another crime (Utilitarian, short term specific deterrence through
incarceration), 6) Restitution for the victim – proportional punishment
(Retributivist: false claim of defendant’s superiority), 7) Uniformity
(neither utilitarian or retributivist).
 District attorney: “sending a message that killing African
American children is not acceptable” – utilitarian idea focused on
general deterrence.
 Judge Karlin: decision grounded on specific deterrence: this
specific woman is not a danger to society; short term deterrence
won’t work neither long- term. Incarceration is not an option.
II.
Proportionality of punishment.
th
1. 8 Amendment: no cruel or unusual punishment:
-
Limits who can be punished: state is not allowed to execute juveniles,
people deemed to be mentally retarded
- Limits types of punishments: state cannot torture people to death.
- Proportionality of the penalties.
a. Death penalty cases dealing with retributivism point of view under 8th Amendment
“excessive” punishment.
 Coker v. Georgia:
rape punishment could have been life in the prison or death penalty.
Death penalty only if there is an aggravating circumstances: 1) prior
record of conviction for a capital felony, 2) when rape was committed in
the course of committing another capital felony.
-
We need to look on sociable norms to establish if the punishment was
excessively disproportional: that is retributivists idea about the
proportionality of the punishment presented by the plurality of the Court.
- Dissenting opinion by Justice Burger and Justice Rehnquist: utilitarian
argument about the general deterrence (discouraging the rapists) and
specific deterrence (chronic rapist as the continuous danger to the society).
Punishment can exceed the actual victims’ costs, doesn’t have to be
proportional.
- Majority clearly grounding striking down Georgia statue, by looking
backwards and using retributivism. Punishment is grossly disproportional.
b. Imprisonment cases: narrow proportionality principal
 court will refer to the state legislature. Punishment needs to be so
grossly excessive that it shocks the consciousness. When the goal
is based utilitarian principles (no proportionality)- they will hold
the sentencing structure. Court recognizes that state can have
multiple ways to create their goals, by creating their own criminal
law to be either utilitarian or retributivist.
 Ewing v. California:
3 strikes law in California, 2nd time crime the punishment is doubled, the
3rd time defendant will get 25 to life in prison. Mr. Ewing’s 3rd offense
was stealing 3 golf clubs, he got sentenced with the life in prison without
the ability to apply for parole. Court mentions
 Rummel v. Estelle
where court sentenced defendant to life in prison with possible parole in
10-12 years.
 Solem v. Helm
defendant was sentenced to life without the parole. In Harmelin v.
Michigan, justice Kennedy identified 4 principles of proportionality
review: 1) the primacy of the legislature; 2) the variety of legitimate
penological schemes; 3) the nature of the federal system; 4) the
requirement that the proportionality review be guided by objective factors
– 8th Amendment does not require strict proportionality between crime and
sentence, rather it forbids only extreme sentences that are “grossly
disproportionate”.
- In Ewing, plurality says that looking on the recidivism rate going down
and recidivists moving out of California the general deterrence have been
met. There is no need for proportionality.
- Scalia concurrence: once we acknowledge that the legislator can establish
the reasoning behind their statues, then we don’t have to focus on the
retributivism. Judges trying to evaluate the public policy. If the legislature
is based on the utilitarianism we don’t have to figure out the correlation
between the punishment proportionality. As long as it is a major crime, a
felony, we should not look on the effectiveness of the punishment –
analyzing the crime rates is policy analysis not looking into constitutional
issues.
- Case it’s not based on utilitarianism, Ewing is closer to Solem.
III.
Modern role of criminal statutes
1. Role of criminal statutes: principle of legality.

The first principle of criminal law: we only punish someone legally
if the conduct was defined previously as a crime. Can’t create a
crime and make it retroactive, because Constitution prohibits it.
Courts cannot fill loop holes in the law, because it would violate
the due process clause and non-retroactive criminal law.
2. Fair notice or vagueness:

person cannot be punished for offense unless statue is sufficiently
clear that a person of ordinary intelligence can understand it.
 Strict bigness argument: “I don’t know what it means”, statues
constructed the way you can’t understand them. Language of the
statue is not understandable to the ordinary person.
 Overbreadth? Language of statue is too broad.
 Commonwealth v. Mochan:
Mochan charged with misdemeanor for making multiple crank calls to the
Louise Zivokovich. There was no common law crime that dealt with crank
calling. Penn. Code incorporate in the Code all common law crimes before
the Code. Prosecutor found cases in common law saying, “that any fact
that scandalously affect community is a crime”. Rationale: Court says
soliciting act of sodomy (if it would be only adultery, then community is
not offended) scandalously affects community. Also issue of
discriminatory enforcement, judge let’s go the soliciting the adultery, but
wants to punish sodomy. Dissent: legislatures are making law, judge is
violating the legislative power.
 Keeler v. Superior Court:
Case where defendant seeks writ of prohibition (asking higher court to tell
lower court what to say). A viable fetus is not a “human being” under the
law to which one may be charged with murder. Legislature is free to
define any word in the code. Judges were looking into the meaning of the
“human being” in the common law at the time of statue being codified –
which is fetus born alive. Prosecution points that the viability of fetus is
much different from the times were the statue was codified.
 In re Banks:
“Peeping Tom” statue is too vague – that is the argument. The challenge to
the statue is that it is too broad: ‘if you read the statue literally, reasonable
people can disagree on the definition”. It is not the strictness argument, it
is when you read it literally two people might argue to the meaning. Court
says that they can hold defendant accountable, because they previously
defined “peep” in State v. Bivins. Court haven’t analyzed the word
“secretly” in the same case, but they did define that in State v. Banks.
Those prior definitions are narrowing down the broad legislation
according to the Court. Court looks on the cases to find eligible standard.
 Desertrain v. City of Los Angeles:
3 strikes, when the Police sees homeless person for the 1st time they get
warning, 2nd time they get citation – summoned to be heard in the court
but not charged, 3rd time – they get arrested. Statue void for vagueness,
because 1) what does ‘standing upon” mean? 2) What does “living
quarter” mean? Language of statue is not legible to average person.
Diverse group on plaintiffs helped to undermine the vagueness of the
statue. Strict vagueness: essentially there is no notice what is legal for
those people: can they talk on the phone in the car, can they sleep in the
car, what about staying there during rain? All those litigants would not be
able to create a list of the things allowed and prohibited.
Nondiscriminatory enforcement: City applies law to the homeless people,
it should be applicable to everybody – you can’t target the one that are
homeless only, you should stop everyone who is hiding in the car from the
rain. If the law is broadly worded, officers will go after the homeless folks,
because that will be easier. Even if city of LA would do it to everyone, it
would still be way to vague. We wouldn’t be able to articulate the
determination based on the statue language.
 Chicago v. Morales:
Chicago City Council in 1992 enacted the Gang Congregation Ordinance,
in response to serious gang activity, which was largely responsible for the
City’s rising homicide rate, as well as escalation in other violent and drug
crime. The City found that gang members “establish[ed] control over
identifiable areas * * * by loitering in those areas and intimidating others
from entering those areas.”.
c. Nondiscriminatory enforcement:
 statue shouldn’t be so broadly worded as to discriminate. Those
enforcing the law should not be put in the odd situation, when they
know what legislator want them to target, which specific group.
d. Lenity doctrine:
 when the statues is ambiguous and looking on the prior cases, and
the legislative intent is unclear – favor the defendant.
IV.
Actus reus.
1. Actus reus:

The “actus reus” of an offense is the physical, or external,
component of a crime what society does not want to occur.
2. Elements of Actus Reus:

The actus reus of a crime consists of two components, both of
which must be proved by the prosecutor beyond a reasonable
doubt:
a. Voluntary Act or Legal Omission:
A person is not ordinarily guilty of a criminal offense unless his conduct
includes a voluntary act.
Generally speaking, there can be no crime in the absence of conduct. But, only
a certain type of conduct qualifies, namely, conduct that includes a voluntary
act. In rare circumstances, a person may be prosecuted because of what he or
she did not do—an absence of conduct. An “omission” substitutes for a
voluntary act when the defendant has a legal duty to act.
b. Common Law Definition of Voluntary Act:
A “voluntary act” is a willed muscular contraction or bodily movement by the
actor. An act is “willed” if the bodily movement was controlled by the mind of the
actor.
c. Model Penal Code does not define “voluntary act”:
The MPC does not define “voluntary act.” It provides examples of involuntary
actions: a reflex or convulsion; bodily movement while unconscious or asleep;
conduct during hypnosis or as a result of hypnotic suggestion; and/or “a bodily
movement that otherwise is not a product of the effort or determination of the actor,
either conscious or habitual.”
d. Constitutional Law: voluntary act:
The Supreme Court has never expressly held that punishment of an involuntary actor
is unconstitutional. However, it has invalidated statutes that criminalize a “status”
or “condition” (such as being a drug addict), rather than conduct.
e. To be guilty of an offense, it is sufficient that the person’s conduct included a voluntary
act. It is not necessary that all aspects of his conduct be voluntary.
f. Rationale of Voluntary Act Requirements:
Utilitarian: A person who acts involuntarily cannot be deterred. Therefore, it is
useless to punish the involuntary actor. It results in pain without the benefit of
crime reduction.
Retribution: A more persuasive justification for the voluntary act requirement is
that blame and punishment presuppose free will: a person does not deserve to be
punished unless she chooses to put her bad thoughts into action.
3. Omissions
a. General Rule
Ordinarily, a person is not guilty of a crime for failing to act, even if such failure
permits harm to occur to another, and even if the person could act at no risk to personal
safety.
b. Rationale for General Rule:



Proving the Ommiter’s State of Mind: Criminal conduct
requires a guilty state of mind (mens rea). It is unusually
difficult to determine the state of mind of one who fails to act.
Line-drawing problems: Difficult line-drawing problems—
which omitters should be prosecuted? —arise in omission
cases.
Promoting individual liberty: In a society such as ours,
premised on individual liberties and limited government, the
criminal law should be used to prevent persons from causing
positive harm to others, but it should not be used to coerce
people to act to benefit others.
c. Exceptions to the General Rule:
Notwithstanding the general rule, a person has a legal duty to act in limited
circumstances, if he is physically capable of doing so.
d. Crimes of Omission: Statutory Duty:
Some statutes expressly require a person to perform specified acts. Failure to
perform those acts, by definition, constitutes an offense. Such an offense may be
characterized as a “crime of omission.”
e. Crimes of Commission:
The criminal law sometimes permits prosecution for a crime of commission (an
offense that, by definition, appears to require proof of conduct, rather than an
omission), although the basis of the prosecution is an omission. Thus, we have a
case of what might be characterized as commission-by-omission.
f. Duty by Status:
A person has a common law duty to protect another with whom he has a special status
relationship, typically, one based on dependency or interdependency, such as parentto-child, spouse-to-spouse, and master-to-servant.
g. Duty by Contract:
A person may have an express contract to come to the aid of another, or such a contract
may be implied-in-law.
h. Duty by Voluntary Assumption:
One who voluntarily assumes the care of another must continue to assist if a
subsequent omission would place the victim in a worse position than if the good
samaritan had not assumed care at all.
i. Duty by Risk Creation:
One who creates a risk of harm to another must thereafter act to prevent ensuing harm.
4. Social Harm:
People are not punished for conduct (or omissions), but rather for conduct (or
omissions) that result in “social harm.”
a. Definition:
“Social harm” may be defined as the destruction of, injury to, or endangerment of,
some socially valuable interest.
b. Identifying the Social Harm:
You can determine the “social harm” of an offense by looking at the definition of the
crime and identifying the elements of it that describe the external conduct that
constitutes the crime.
c. Breaking down the Social Harm into categories:
It is sometimes essential for a lawyer (especially in jurisdictions that follow the Model
Penal Code) to be able to look at the definition of a crime, more specifically the actus
reus portion, and divide up the “social harm” elements into one or more of the
following three categories.
 “Result” Elements (or Crimes): Some crimes prohibit a specific
result, such as the death of another person.
 “Conduct” Elements (or Crimes): Some crimes prohibit specific
conduct, whether or not tangible harm results thereby, such as
offenses that prohibit drunk driving.
 “Attendant Circumstance” Elements: A “result” or “conduct” is
not an offense unless certain “attendant circumstances”
exist. An “attendant circumstance” is a fact that exists at the
time of the actor’s conduct, or at the time of a particular result,
and which is required to be proven in the definition of the
offense.
V.
Mens rea
a. Means “guilty mind”,
state of the mind that the actor needs to have at the time of committing crime. Has
two meanings: broad “culpability” and narrow “elemental”.
b. Broad “Culpability” meaning:
somebody committed actus rea with morally blame worthy state of mind
c. Narrow “Elemental” meaning
a person commits the actus reus of an offense with the particular mental state
set out expressly in the definition of that offense.
d. Model Penal Code § 2.02: purposely, knowingly, recklessly and negligently.
a) Purposely- the actor’s conscious objective to cause the harm. 2nd Hardest to
prove.
b) Knowingly- actor is aware that the result is virtually possible.
c) Recklessly – actor consciously taking substantial and unjustifiable risk that
causes the harm. Unjustifiable risk – reasonable person at that actor’s situation
wouldn’t have taken that risk. Substantial – grossly out of the duty of care.
Actor needs to be conscious of the risk, aware of the risk.
d) Negligence – higher degree of negligence then torts. Substantial and
unjustifiable risk, government have to prove to that the actor knew they rook
substantial and unjustifiable risk. Easiest to prove for government.
e. Intent – mens rea term is not in the MPC, but it is used in the common law.
a) Under Model Penal Code, there are 4 mens rea terms.
b) Specific intent crime: is a crime by definition requires proof of some state of
mind besides the intent to cause a social harm defined in the statue. There are
3 types:
 Crime, where the defendant has an intent to commit the future act
in addition to the actus reas. Some act over and beyond the actus
reus of the offense Ex. Burglary – actus reus is breaking into the


house than stealing property. Intentionally breaking into the house
with the intent to steal – you need to prove that this person
intentionally went to the house to commit felony – not just break
in.
Crime that requires proof of the special motive or purpose to
commit crime ex. A special motive for committing the actus reus
of the offense. Lacerny – taking and caring away a property of
another with the intend to permanently deprive the owner of the
property.
Crime that requires proof of the defendant’s awareness of
attendance circumstances. Awareness of attendance circumstances.
f. General intent crime
that person acts with culpable state of mind. Ex. Rape crimes. If you don’t see
the mens rea in the statue– that means that it is general intent crime.
 Regina v. Cunningham:
Trial judge says: “maliciously” means wicked. Appellate court says that
malicious means conscious actor that causes the fixation.
 People v. Conley:
aggravated battery case. Jury can infer the natural and probable causes of
actions. That way government can prove mens rea of the actor instead of
confessing. Transferred intent – Conley got hit because his friend ducked,
it’s a legal fiction – mens rea can be applied to the Conley. Transferred
intent requires it to be the same crime, you cannot transfer intent to
destroy property to committing a murder.
 State v. Nations:
“willful blindness” problem. Endangering child, statue required that actor
“knowingly” encourages. § 2.02 (7) MPC “willful blindness” is often jury
instruction. What it means is, as long as the government can establish
recklessness, then they will treat defendant as they would knowingly knew
about child’s age. In this case Missouri didn’t adopt that part of the statue.
 Flores-Figueroa v. United States:
fake papers, defendant didn’t know that they were matched with actual
person: Flores didn’t know that he was using documents with SSN of
existing person. If legislator put mens rea in the front – it describes all of
the offenses. If you use “knowingly” in the beginning of the sentence – it
applies to whole rule. That is consistent with §2.02 (4) Model Penal Code.
Government needs to prove that he knowingly used false identification
and KNOWINGLY – meaning he knew that it was someone’s else’s id.
VI.
Strict liability
highly disfavored, Courts will have to find clear legislative intent that the Congress
intended those crimes to be strict liability. State won’t have to prove mens rea. 3
characteristics of strict liability crimes: Low punishment, low stigmatizing and they are
malum-prohibitum crimes.

Strict liability crimes are one exception to the rule that the crimes
need to have mens rea.
1. Public-welfare offense:
courts are more tent to conclude that it is regulatory offense. Those are consumer
protection kind of crimes. 3 characteristics to determine if it’s public welfare
offense: (1) They are generally malum prohibited conduct. Malum per se offenses
are crimes that are per se bad – killing, rape. Malum prohibitum – something is
bad because the government prohibited it. There is nothing really bad if someone
didn’t properly describe medication – but it might have big consequences .(2)
Convictions is not stigmatizing, and (3) a punishment is usually a fine.
2. Hybrid strict liability crime:
sex with minor – usually it doesn’t matter if the person knew about the age of the
child.
 Garnett v. State:
Statutory rape case. Defendant was retarded, he wasn’t sexual predator.
He had sexual intercourse and got girl pregnant. There were indications,
that the girl told him previously that she was 16 years old. Issue is whether
there was mens rea for that crime. Court said: no there is no mens rea here.
No mens rea in the statue of Maryland. No mens rea in the statue? It might
be general intent crime.
 Morissette v. United States:
Morissette entered Air Force base and took several spent bomb casings
that had been lying there for the years. The Government charged him with
violation 18 U.S.C. §641. Which made it a crime to “knowing convert” of
government property. Morissette argues that he didn’t know he steal from
the U.S. government. Prosecution argued they didn’t have to prove the
“knowingly” element. According to the court, Congress clearly intended
to include the criminal mind with the offense of theft or conversion - since
they did not state otherwise. Lack of culpability element in the common
law crimes can be only added by clear word of Congress.
 Strict liability crime hypothetical: faulty speedometer – no mens rea, even
if you drove above speed limit because of the faulty speedometer – still
committed crim.
 Specific intent crime hypothetical: Alice and golden watch.
Nonconsensual carrying and taking someone else’s property with intent to
permanently deprive someone of that property. Genuine but unreasonable
mistake defense is still available as long as you are negating the mens rea
set forth by a statue. She could even use an unreasonable mistake of facts.
Specific motive: permanently deprive of the property.
3. General intent crime:
Unreasonable mistake of the facts is not a defense. Reasonable and “good
faith” mistake can be a defense. Genuine, but unreasonable mistake does
not guarantee the defense.
 People v. Navarro:
Navarro took wooden beads from work. He says he didn’t know that they
belong to his employer. He claims he didn’t know that they belonged to
anyone. Dispute over jury instructions.
a. § 2.04 MPC Ignorance or Mistake
as long as the mistake is negating the knowledge, purpose, recklessness,
negligence – you have a defense. If the mistake negates mens rea – there is
defense in ignorance or mistake available.
b. Mistakes of law under black letter law:
Ignorance of the law is no excuse. There is no defense available if the
defendant is mistaken about the law.
 People v. Marrero:
Ignorance to the reasonable or unreasonable mistake it’s not a defense.
There are two exceptions, under §2.02 (7) ignorance of the law is no
excuse. 1 exception: Under §2.04 (3b) – Official interpretation of
law/opinion exception.: relaying on the official opinion – you will be
immune from the criminal charges. 2nd exception: §2-04 (1b) – Criminal
statutes stating verbally that the mistake or ignorance can be a defense.
 Strict liability: factual mistake is no defense.
 Specific intent crime: mistake of fact will exonerate as long as it would be
genuine mistake (“good fair” doesn’t matter if it was reasonable or
unreasonable).
 General intent crime: mens reas – morally blameworthy state of mind ->
defense: reasonable mistake.
VII. Causation:
(For the act to be a crime, it needs to be: voluntary act + social harm = actus reus and we
need to add mens rea - culpability).
1. 5 components of a crime:
(1) Voluntary act or omission when there is legal duty?
(2) Was there a social harm caused as defined in the statue itself?
(3) In the time of actus reaus did the defendant had required by the statue mens
rea?
(4) Was the defendant’s conduct cause of the resulting harm – “But for” doctrine.
(5) Proximate cause: A person is not guilty unless she is an actual cause of the
ensuing harm.
a. Actual causation:
who caused the act? Both common law and MPC provide that conduct is the
“actual cause” of the prohibited result, if the result would not have occurred but
for the actor’s conduct. It’s called “But for” test – with defendant’s voluntary act
or omission (with legal duty) would have crime happened?
 If you accelerate someone’s death -> you are cause of actor.
2. Proximate cause: policy idea to create justified outcome.
a. Attended consequences rule:
Court looks on all of the causal actors. Then he would draw a line between defendant’s
voluntary acts and the social harm. Court would start with Social harm and move
backwards. The first person, who would be found – that should be the proximate cause
factor. That can be also superseding.
b. Apparent safety doctrine:
Even though the defendant has created a dangerous situation, she is not responsible
for the ensuing result if it can be determined that the dangerous situation created by
the defendant is over—that the victim, once at risk, has reached apparent safety.
 Voluntary free will human intervening event:
In general, a defendant is not the proximate cause of a result if a free,
deliberate, and informed act of another human being intervenes.
 Responsive intervening cause:
Force comes to existence as a response to defendant’s conduct.
 Responding intervening cause:
Initial wrongdoer is the criminally responsible. Doctor is usually the
responding intervening cause, so he is not the one who should be punished for
murder.
 Coincidental intervening cause
Cause already existed, but the defendant’s conduct put the actor on the scene.
The original actor would not be held accountable, unless his action results
would be foreseeable.
 “Substantial factor” test from Velazquez v. State -> this one won’t be
tested at all.
3. Model Penal Code “causation”: §2.03 (1) – “but for test”
 Oxendine v. State:
Both codefendants tried at the same time. The government has a burden of
proving beyond the reasonable doubt and that’s why they are presenting
evidence first. According to Government, Ms. Tyree caused internal
bleeding and Mr. Oxendine actions accelerated his son’s death. Mr.
Oxedine cannot be convicted of the death of young Jeffrey because there
is lack of the evidence that he was “but for” cause of action.
 People v. Rideout:
great example of apparent safety doctrine and Voluntary free will human
intervening event. DUI case, passenger dies, but not by the direct car
accident with Rideout. Victim died while on the accident scene and being
hit by the other vehicle. Government wanted to prosecute the drunk driver,
Mr. Rideout. Was he actual cause? But for the defendants volunteer act of
drunk driving the victim would have not die. Jury instruction was given to
the “but-for” causation -> case needed to be retried to advice the jury not
only about “but-for” test but also about proximate causation.
Voluntary act – drunk driving ----- Place of apparent safety -> Voluntary Free Will Human
Intervening event: victim made a volunteer decision to go on the side of the road after being in
the position of apparent safety ------ Social Harm: death of the victim
Test of proximate causation: whether it would be foreseeable for the
defendant that the harm would occur?
 Velazquez v. State:
race driving case. But for Mr. Velazquez agreeing to race, victim would
not have died (social harm). But for Victims participation in the case,
victim would not have died. Intervening event: Victim driving over 123
mph after the race. Superseding event according to the court: victim
driving fast after the end of race.
Voluntary act: participate in the drag race  Voluntary Free Will Human Intervening Event:
Post race 123 mph while drunk and without seatbelt  Social Harm: Death
 State v. Rose:
Pedestrian got hit, car drove away, and the victim was stuck under the car.
Defendant Mr. Rose is charged with negligent manslaughter and leaving
the scene of the accident (hit and run statue). According to a court: At the
time of the initial impact Mr. Rose was not negligent. Duty
Voluntary act: driving into victim  Mens rea: not negligent, Mr. Rose didn’t want to kill him
 Social harm: death of the victim
Voluntary act: Driving with victim under the car  Government cannot prove, because court
cannot pin point causation. 
Omission, when there is duty to act: render care to the car accident victim  Social harm: death
of the victim
Mens rea: negligence
Actual causation: expert wasn’t able to certify when did death occurred: by initial hit or by
dragging. So, the death would not occurred but for defendant’s initial hit or but for defendant’s
dragging the body.
VIII. Criminal homicide (absent from the class)
1. “Homicide”
a. Definition
The English common law defined “homicide” as “the killing of a human being by a human
being.” In American common law, it is “the killing of a human being by another human
being.”
b. “Criminal Homicide”
A criminal homicide is a homicide committed without justification (e.g., in self-defense) or
excuse (e.g., as the result of insanity).
2. “Human Being”
a. At the Start of Life
The common law provides that a fetus is not a human being until it is born alive.
b. At the End of Life
At common law, a person is legally dead (and, therefore, ceases to be a “human being”)
when there is a total stoppage of the circulation of the blood and a permanent cessation of the
functions of respiration and heart pulsation. Today, virtually every state provides that a
person may be deemed legally dead if he experiences an irreversible cessation of breathing
and heartbeat (the common law definition), or suffers from “brain death syndrome,” which
occurs when the whole brain (not just one portion of it) permanently loses the capacity to
function.
3. Year-and-A-Day Rule
At common law, a homicide prosecution may only be brought if the victim dies within one
year and a day of the injury inflicted by the accused. Today, in light of medical advances and
life-support machinery, many states have abolished or modified the rule.
IX.
Common law: murder
1. Definition of “Murder”
Common law murder is a killing of a human being by another human being with malice
aforethought.
a. “Malice”
A person acts with “malice” if she unjustifiably, inexcusably, and in the absence of any
mitigating circumstance, kills a person with any one of the following four mental states: (a)
the intention to kill a human being; (b) the intention to inflict grievous bodily injury on
another; (c) an extremely reckless disregard for the value of human life (often called
“depraved heart” at common law); or (d) the intention to commit a felony during the
commission or attempted commission of which a death accidentally occurs (the “felonymurder rule”). These four categories of malice are considered below.
b. “Aforethought”
Originally, the term “aforethought” meant that the actor thought about the killing beforehand,
i.e., that he premeditated the killing. Over time, the term lost significance.
2. Murder: Intent to Kill
a. General Rule
In view of the definition of “malice aforethought” set out above, an intentional killing that is
unjustifiable (e.g., not committed in self-defense), inexcusable (e.g., not committed by an
insane person), and unmitigated (e.g., not the result of sudden heat of passion) constitutes
common law murder.
b. Proving Intent
The prosecutor must prove beyond a reasonable doubt that the killer purposely or knowingly
took another’s life. For a long time, juries were instructed in murder prosecutions that “the
law presumes that a person intends the natural and probable consequences of his voluntary
acts.” However, this instruction violates the Due Process Clause of the United States
Constitution, because it improperly shifts the burden of proof regarding an element of the
offense (malice aforethought, via a finding of intent-to-kill) from the prosecutor to the
defendant. Nonetheless, the jury instruction simply points out the obvious. Therefore, even
without an instruction, a jury may infer (but not presume) intent in such circumstances.
3. Statutory Reform: “Wilful, Deliberate, Premeditated” Formula
In many states that by statute divide murder into degrees, a “wilful, deliberate, premeditated”
killing is first-degree murder.
a. Wilful
In the context of murder statutes, this term means, simply, “intentional.”
b. Premeditated
To “premeditate” is “to think about beforehand.” Some courts state that “no time is too
short” for a person to premeditate. In contrast, others courts more properly require proof that
the actor thought about the killing “some appreciable time.”
c. Deliberate
Unfortunately, courts often fail to distinguish “premeditation” from “deliberation”—they
treat it as a single entity. When courts do draw a distinction, as they should, the latter term
means ‘‘to measure and evaluate the major facets of a choice or problem.”
d. What If . . .
If a jury concludes that the defendant acted wilfully—intended to kill—but did not
premeditate and/or deliberate, the defendant is guilty of second-degree murder in states with
murder statutes of the sort being considered here. It is murder because the killing was
intentional (remember: intent-to-kill is one form of malice aforethought); since the killing
was not premeditated and/or deliberate, it is not first-degree murder. So, by matter of
elimination, it drops to second-degree.
4. Murder: Intent to Inflict Grievous Bodily Injury
A person acts with malice aforethought if she intends to inflict grievous bodily injury on
another human being. Therefore, if a death results from her conduct, she is guilty of murder.
a. “Grievous bodily injury”
This term has been defined as injury “that imperils life,” “is likely to be attended with
dangerous or fatal consequences,” or is an injury that “gives rise to the apprehension of
danger to life, health, or limb.”
b. Statutory Approach
In states that distinguish between degrees of murder, one who kills another person with this
state of mind is usually guilty of second-degree murder.
5. Murder: “Depraved Heart” (Extreme Recklessness)
a. General Rule
A person who acts with what the common law colorfully described as a “depraved heart” or
an “abandoned and malignant heart” is one who acts with malice aforethought. If a person
dies as a result of such conduct, the actor is guilty of murder, although the death was
unintended.
b. What is “Depraved Heart”/“Extreme Recklessness”?
Common law judges did not provide a clear definition of “depraved heart” or “abandoned
and malignant heart” behavior. In general terms, it is conduct that manifests an extreme
indifference to the value of human life. Although no single definition of such extreme
indifference can explain all of the common law decisions, today most courts would probably
agree that an actor manifests an extreme indifference to the value of human life if he
consciously takes a substantial and unjustifiable foreseeable risk of causing human death. In
short, “depraved heart” equals “extreme recklessness.”
c. Statutory Approach
In states that divide murder into degrees pursuant to the traditional model, a depraved-heart
homicide ordinarily is second-degree murder.
6. Felony-Murder Rule
a. General Rule
At common law, a person is guilty of murder if she kills another person, even accidentally,
during the commission or attempted commission of any felony.
b. Statutory Approach
Many states that divide murder into degrees have a dual approach to felony-murder. The
murder statute will often provide that a killing that occurs during the commission of certain
specifically listed felonies (most commonly: arson, robbery, rape, and burglary) is firstdegree murder; a death during the commission of any non-enumerated felony constitutes
murder of the second-degree.
c. Rationale of the Rule
The most plausible deterrence argument—the one that is used most often to defend felonymurder—is that the harshness of the rule will cause felons to commit their crimes in a less
dangerous manner, thereby decreasing the risk that deaths will ensue.
d. Limitations On Felony-Murder Rule
Because the felony-murder rule is unpopular, many courts have limited its scope.
 Inherently-Dangerous-Felony Limitation
Many states limit the felony-murder rule to killings that arise during the commission of
“inherently dangerous” felonies. Courts disagree, however, on how to determine whether a
felony is inherently dangerous. Some courts consider the felony in the abstract: they look at
the definition of the crime and ask whether the offense could be committed without creating
a substantial risk of loss of life. Other courts consider a felony inherently dangerous if it is
dangerous in the abstract or in light of the circumstances surrounding the particular case.
 Independent-Felony Limitation
Some courts require that the felony that serves as the predicate for the felony-murder rule be
“independent” of the homicide. A felony that is not independent “merges” with the
homicide. The most obvious and least controversial example of a felony that merges is
assault with a deadly weapon.
7. Murder: common law and statutory murder (1st and 2nd degree) and MPC
a. Common law:
killing human being by another human being with malice and forthought???(5 states of mind)
Common law didn’t have degrees of murder – all of the carried the death penalty. Degrees
were created by the statues:
b. 1st degree murder:
3 scenarios: 1. Some homicides committed in particular way, ex poison etc (specific in each
statue) 2. Felony murder rule for certain enlisted felonies (ex. During robbery, arson, rape) 3.
Killing that is done I willful, premediated and deliberated way. (murder after stalking etc).
Premediated: someone thought about the killing before committing it.
c. 2nd degree:
All other murders. Killing done with abended and malignant heart. Intent to cause the bodily
injury resulting in death.
 People v. Knoller:
implied malice is the killing with abended and malignant heart or reckless
killing.
d. MPC: 2.10.2
purposely, knowingly, recklessly in a manner showing disvalue to the human life.
No malice required, no felony murder rule.
X.
Manslaughter
1. Common law:
unlawful killing of human being without malice and forethought.
a. Voluntary manslaughter:
Sudden heat of passion manslaughter. Almost always there is intent to kill a victim.
Words alone cannot satisfy the adequate provocation. 3 elements
(1) actor was under the adequate provocation: important to the extent
that actors culpability was less than in the murder. Adequate
provocation, reasonable person standard. Words alone would not be
considered the adequate provocation.
(2) actor killed the victim during heat of passion: actors need to be in
the highly emotional state during the killing
(3) the actor didn’t have enough time to cool off: no reasonable
amount of time to cool off between
Ex. Husband finding wife in the act of adultery – adequate
provocation, immediate killing (sudden passion), no time to cool off.
 Girouard v. State:
Example of voluntary manslaughter case. Case revolving around the issue,
if the words alone can be provocation adequate to justify a conviction of
manslaughter rather than on of the 2nd degree murder.
Court states that there are 4 requirements of the Rule of Provocation:
1. There must have been adequate provocation;
2. The killing must have been in the heat of passion;
3. It must have been a sudden heat of passion—that is, the killing must
have followed the provocation before there had been a reasonable opportunity for
the passion to cool;
4. There must have been a causal connection between the provocation,
the passion, and the fatal act. The one that provoked you is the only person you
can kill and use the provocation as the defense. You cannot kill someone not
connected to the provocation.
b. Involuntary manslaughter (more severely treated previously), 2 types:
 Criminal negligent manslaughter:
killing that occurs as a result of criminal negligence. Actor
commits lawful act, that might product death when committed in
the unlawful matter without the precaution. Reasonable person (not
subjective test) have known that they have been taking substantial
and justifiable risk that might result in death.
 The unlawful act manslaughter (misdemeanor manslaughter)
unintended homicide that was committed during act of
misdemeanor or infraction. Were you engaged in the unlawful act?
Yes, Did someone die? Yes.
2. MPC (p.1055-1056): two types of manslaughter under MPC
Comparing to (murder is not manslaughter): 2.10.2 Murder: purposely, knowingly, recklessly in
a manner showing disvalue to the human life.
a. 210.3. (1) (a) criminal homicide committed recklessly;
b. 210.3 (1)(b) extreme emotional disturbance killing:
 (1) defendant needs to act under the extreme emotion’s disturbance
and if (2) there is reasonable explanation to that disturbance.
Broader defense than the common law “heat of passion.”
 People v. Casassa:
did the judge applied appropriate test when it comes to the extreme
emotional disturbance defense.
The defense of “extreme emotional disturbance” has two principal
components—
(1) the particular defendant must have “acted under the influence of
extreme emotional disturbance,” and
(2) there must have been “a reasonable explanation or excuse” for such
extreme emotional disturbance, “the reasonableness of which is to be
determined from the viewpoint of a person in the defendant’s situation
under the circumstances as the defendant believed them to be.”
 No real explanation to why the defendant was
experiencing extreme emotions. We need subjective
and objective reasoning.
 “Reasonable explanation
or excuse”: The trier of
fact must evaluate the
actor’s conduct under
the circumstances that the
actor believed to exist.
Thus, for example, a man
who reasonably but
mistakenly identifies his
wife’s rapist and kills the
wrong person may be
eligible for mitigation if
his extreme emotional
disturbance were
otherwise subject to
reasonable explanation or
excuse.
c. 2.10.4 Negligent homicide
 State v. Williams:
there is omission when there is legal duty to act. There is the omission of
the parental duty to take care of the children. Negligence occurred
between child getting sick and child developing life threatening infection.
Contrast with Knoller case, when the prosecution was able to establish the
Common Law Jurisdiction
Murder:
(1) Intent to kill,
(2) Intent to harm,
(3) Abandoned Heart
(rough recklessness),
(4) Felony - Murder
Voluntary manslaughter:
(1) Adequately provoked
killer,
(2) person in highly
emotional state of
mind,
(3) no cooling off time.
Involuntary manslaughter:
Negligent Killing,
Misdemeanor
1st/2nd degree jurisdiction (ex.
Pennsylvania)
1st degree murder:
(1) Willful
Deliberate
Premeditated,
(2) Some types of
FelonyMurder,
(3) Some type of
killing (ex. By
poison,
torture)
nd
2 All other murders
MPC Jurisdiction
§ 210.2: Murder
Purpose, Knowledge or
Reckless manifested by
extreme indifference to the
value to human life.
§ 210.3: Manslaughter
(1) Unlawful killing with
Common law analysis applied
reckless state of mind.
to analyze that (look on the
(2) Killing occurs when
left column)
the defendant
experiences extreme
emotional or physical
disturbance. (No
cooling off
requirement, no
adequately provoked).
Manslaughter: statue specific § 210.4 Criminal Negligent
killing
d. O Pioneers hypothetical:
 Under Common Law Jurisdiction:
o Voluntary act: picking up a gun and shooting 3 times
o Social harm: killing of 2 people
o He is cause of actor, but for him shooting 2 people could have
lived.
o Murder: Did he have intent to kill? Probably no. Did he have intent
to harm? Maybe yes. The easiest way is to go with Abandoned and
malignant Heart.
o Voluntary manslaughter: if we can prove he was aware of the
adultery of his wife, we can try to prove the voluntary
manslaughter.
 Under 1st/ 2nd degree murder jurisdiction:
o 2nd degree: Abandoned and
Malignant heart is 2nd degree
killing.
 Under MPC:
o Issue is whether he was aware of
substantial and unjustifiable risk?
o Did he manifest extreme
indifference to the human life? If
yes, then we have §210.2
Murder.
o If no, there is manslaughter under
the reckless theory under §210.3.
XI.
Felony – murder.
1. At common law:
engaging in the felony with malice and forethought causing death. Doesn’t have to
prove that the defendant had any proof of means rea for the killing itself. 2 excuses,
doctrines to escape the felony-murder:
a. Inherently dangerous felony limitation:
the death needs to occur during inherently dangerous felony. 2 jurisdiction
approaches to determine what is inherently dangerous felony: (1) Looking into the
statue (can be: (a) explicitly in the statue, (b) in the abstract or (c) you need to
consider whether crime carries high probability of loss of life) or (2) looking in
the facts of the case.
b. Independent felony limitation:
person can’t be charged with felony murder if the predicate felony has a sole
predispose to cause violence to the other person. If the predicate crime is
offensive and can cause death, then you cannot prosecute under the felony-murder
rule, rather you need to prosecute under the Murder with intent to kill, intent to
harm or Abandoned heart (present mens rea). Assaultive felony merges into a
killing itself
o Exemption: Robbery has 2
purposes: taking the property, by
taking by the force. Therefore
“taking by the force” can be
presumed to be intent to harm.
 People v. Fuller:
when the doors are unlocked – grand larceny (the killing committed
during grand larceny is only 2nd degree murder). When the doors are
locked, then there is burglary: when there is murder during burglary, then
we have felony-murder which 1st degree.
 People v. Howard:
3 or more traffic violations satisfies mens rea for the wanton
 People v. Smith:
assault is merged with the murder.
c. Agency principal
Look into this and make notes: Agency principal applies to all the jurisdiction – if you are
committing a felony with accomplice and your accomplice commits murder, you can be
prosecuted for the felony-murder. Minority says that even if your agent does the killing,
you are still responsible for the killing, it can be even police officer killing your
compliance escaping from the crime scene.
XII. Capital murder.
 Furman v. Georgia
 Gregg v. Georgia
 McCleskey v. Kemp
A lot 5-4 decisions in death penalty cases under Supreme Court.
 Tison v. Arizona
XIII. RAPE:
https://www.law.georgetown.edu/american-criminal-law-review/inprint/volume-55-number-2-spring-2018/a-new-mens-rea-for-rape-moreconvictions-and-less-punishment/
1. Common law rape:
forcible rape in most of the states.
 In the common law: if the perpetrator uses the amount of force,
that shows visible heavy body injury or threat of death – the victim
doesn’t have to prove resistance.
 Moderate force by the perpetrator: victim had to resist.
2. Rape: Means Rea
a. Mistake of facts to the issue of consent:
Minority jurisdictions do not allow the defense based on the mistake of facts to the issue
of consent, no matter if it was reasonable or unreasonable. Ex. Massachusetts
 Commonwealth v. Lopez:
Facts: Kenny Lopez (defendant) and the victim had sexual intercourse in
the woods near the victim’s home. The victim testified that she repeatedly
told Lopez that she did not want to have sex with him, but that he
nonetheless forced her to engage in intercourse. Lopez, on the other hand,
testified that his sexual encounter with the victim was entirely consensual.
Lopez was convicted of rape and indecent assault and battery. Before the
jury retired, Lopez requested a mistake of fact instruction regarding the
victim’s consent. The trial judge refused to give the instruction. Lopez
appealed.
b.
c.
d.
e.
What’s important?
What is required to establish rape: (1) lack of consent, (2) degree of force
in excess of what usually be sexual intercourse, something more than just
penetration;
Resistance requirement was removed from the jurisdiction; therefore it
would be unethical to proceed to allow the defense based on the mistake
of facts.
Defense based on reasonable mistake of facts to the consent
Majority jurisdictions allows defense based on reasonable mistake of facts to the
consent. There is now defense available when the mistake was unreasonable. Reasonable
mistake of facts (genuine or honest), that means that the person didn’t act with
blameworthy mind, therefore the defense based on reasonable mistake is admissible.
For the general intent crimes, the defense based on the mistake is only available for
reasonable mistake. Rape is general intent crime.
Rape by fraud:
 Common law standard:
a seducer is not a rapist, even if he fraudulently induced a female to consent to the
intercourse. Ex. Someone pretends that is a movie star.
o Fraud in the inducement wasn’t
rape in the common law, it can
be punished in torts.
 Common law standard - Fradum to factum:
consent to be engage in the sexual intercourse was invalid if there was a fraud and
the victim didn’t know that she did consent to an intercourse. Victim doesn’t
know (doesn’t realize) that she has/had sexual intercourse. Ex. Doctor who
inserted penis instead of some medical device during exam.
o It was rape in the common law.
Rape shield statues:
Cover whole range of sex crimes, not just specific crime of rape. Statue needs to
enumerate which sex crimes are covered.
 If the defense to the prosecution would like to put up some facts
about victim (being prostitute, divorced, drug addict etc.) – prior
sexual conduct or reputation- they need to put a hearing before the
trail – and judge will decide if it’s admissible. Usually they are
inadmissible, because it is just trashing the victim. If they are
admissible, it’s usually because victim is perjuring or lying.
 Rape shield statues are constitutional, because they allow the
evidence on the limited level – therefore it is not violation of 6th
Amendment (right to confront your accuser), that allows defendant
in the criminal trial to confront the victim and pursued the jury to
believe him.
 Statues allow to present the evidence, if it shows that victims
conduct in the past was related to the case (ex. Victim accused
different people of the same behavior etc.).

Exception: if the defendant and victim were seeing in the public
hooking up and where the rape was shortly after – then that can be
admissible defense. In opposite, if the defendant wants to show
evidence that he saw victim hooking up with other people – that is
inadmissible, that is just blaming the victim – that is the defense
that the rape shield statues are trying to prevent.
 Percipient evidence inadmissible: no prior bad acts of the defendant
should be allowed in the process. You cannot base your prosecution on the
fact, that defendant did something bad in the past.
XIV. General Defenses to Crimes.
1. Justification v. excuse defense.

Justification: under the circumstances the defendant did right thing
or at least did nothing wrong, ex. Necessity, self-defense.

Excuse defense doesn’t look at the act that happened it rather looks
on the defendant. Defendant did something wrong, but there is
some excusing conditions not to hold him blame worthy, ex.
Insanity (not guilty by reason of insanity).
2. Most common justification defense is self-defense.
Justification (3) elements + (1) extra for self-defense:
(1) The use of the force was necessary under the circumstances
(2) The degree of force was proportional to the threat
(3) The actor had reasonable believe that the use of force was necessary and
proportional to the imminent, unlawful, deadly threat. They don’t have to be
correct, the belief needs to be only reasonable.
(4) For self-defense, there will be additional element of the aggressor – person
who claims self-defense cannot be the aggressor.
3. Self-defense:
a. Common law
Virginia follows Common Law: if the actor reasonably believes that at the
time of using a force that such force was necessary to stop the imminent,
unlawful, deadly force. Can be asserted in deadly and non-deadly situation.
 The actor has to reasonably belief: the law does not require
defendant to be correct in his analysis, it is enough if he/she has the
reasonable belief based on the facts and circumstances that they
knew at the time.
 People v. Goetz:
10 count jury indictment, Goetz shot 4 young men on a subway, because 2
of them approached him and told him to give him $5. Subjective belief
controls, not whether the subjective belief was reasonable. NY based their
statue on the MPC, but they maintained the reasonable belief from
common law. According to court, you should look on all of the
defendant’s facts and circumstance (ex. Previously mugged etc.) and then
knowing all of the facts that he knew, should he have believed that he is
going to be mugged and use the self-defense. Consider the subjective facts
and circumstances to determine the reasonable belief that the force was
unnecessary.
o Subjective component: Gather defendants experience and facts (ex.
He was previously mugged).
o Objective component: you need to make the determination that this
person was reasonable knowing what they knew. Was his/her
believe reasonable considering all of the subjective
component(which means his experience and facts he knows).
 Defendant needs to be responding to unlawful threat: no defense
if the police is chasing you and you have lawful threat.
b. Imminent threat:
it is just about to happen in this instant, if I don’t act now – I will get killed. In
common law it is very strict element.
c. Necessity:
you can’t use deadly force if the force is not necessary, even if the threat is
imminent, unlawful, deadly force. It needs to be reasonable response that is
necessary.
o Response can’t be
disproportional.
o Retreat from the
confrontations, if you can do so
safely. If you have reasonable
belief that you are facing the
imminent, unlawful, deadly force
– the law required you to retreat
from the confrontations. Many
jurisdictions do not require the
retreat, they eliminated it by
State your own ground laws (ex.
Florida, Trevion case). Persons
home is considered your castle,
you don’t have to retreat from
your home (as long as you are
not aggressor) to satisfy this
requirement, it is so called
“castle” doctrine – all of the
states adopted some sort of castle
doctrine on the criminal
meaning.
 A person who claims a self-defense cannot be an aggressor. Ways
to change being aggressor and become non-aggressor statue by
which you restore use of the self-defense: (1) By the words and
actions make it clear that you are not interested in a fight anymore,
discontinue the conflict and express the peace intentions;
 State v. Wanrow:
d. Model Penal Code §3.04 and §3.09
 § 3.04 Use of force in self-protection:
o Immanency requirement from
common law, under MPC is:
your response needs to be
immediately necessary for the
purpose of protecting yourself at
the present occasion.
o Reasonable belief was not
implemented in the MPC.
XV. Defense of others/ property/ Battered Spouse Syndrome.
4. Battered Spouse Syndrome:
a) Person is justified in killing person if the actor (usually women) reasonably believe
that she is acting in self-defense to defeat the imminent, unlawful and deadly force.
 Imminent element: During the acute fight syndrome battered
spouse is in the state of mind that does not allow them to use any
kind of force. Based on that, some jurisdictions, will allow
claiming self-defense for a person with battery spouse syndrome,
even if the decedent was in a passive state at the time of the killing
(slept, watched tv, etc.).
 Most jurisdictions, in the confrontational homicide you will allow
to present expert who will testify about battered spouse syndrome.
 In non confrontational (aggressor asleep etc.) homicides most
jurisdictions won’t allow the battered spouse syndrome as a
defense.
 What would reasonable person with battered spouse syndrome do?
 State v. Norman:
Defendant charged and convicted for the 1st degree murder. On the appeal
defense raised the issue that there was no jury instruction that would
instruct jurors about self-defense.
1. Defense of others
a) Person could use the force, if the victim would be able to act in the self-defense, to
the extent to which victim would have a right to self-defense.
b) When person that is intervening in the situation to help the victim, is mistake to the
actual situation (ex. Person looks like he/she is a victim, when in fact they are the
criminals)
 If the intervener makes a reasonable mistake -> than there is defense
available – good Samaritan laws, most of the jurisdictions.
 Minority of the jurisdictions use the alter ego rule: established that you
have as much rights as the victim would have to self-defend; rights not
any greater as the person you defend.
2. Defense of property (things you own) in the common law:
Bright line rule: you can’t use deadly force to defend property. Person can use moderate
non deadly force as long as they reasonably believed that such a force was necessary to
prevent an imminent, unlawful disposition of your property.
 A person is never justified in using deadly force to defend her real
or personal property.
 Some jurisdictions require, that prior to using a force, the property
defender must ask the dispossessor to desist from his conduct,
unless such a request would be futile or dangerous.
3. Defense of habitation (your real property), common law two rules:

Older, broader rule: Defendant is justified in using deadly force
against Victim if the actor reasonably believes that: (1) Intruder
intends unlawfully and imminently to enter Defendant’s dwelling;
(2) Intruder intends to commit forcible felony inside, or to cause
bodily injury, no matter how slight, to any occupant; and (3)
deadly force is necessary to prevent the entry.
 Narrower Rule: Most jurisdictions no longer apply the broad rule
and instead hold that deadly force is limited to circumstances in
which Defendant believes that Victim will commit an atrocious
(violent) felony inside the dwelling if Victim enters. The other
requirements still apply: (1) Victim intends unlawfully and
imminently to enter Defendant’s dwelling, and (3) deadly force is
necessary to prevent the entry.
 State v. Boyett:
deadly force is justifiable, if the defendant reasonably believe that the
intrusion of the dwelling is imminent and there is reasonable believe that
victim is trying to enter the home to commit violent felony.
XVI. Necessity justification defense.
1. Necessity justification is used when any other justification is not applicable. You go
through the list like with Homicide: First check self-defense, later defense of other,
property and habitation – if none of them works -> you can try necessity defense.
1. Justification of necessity: Common law
(1) Actor reasonably believed that there was imminent threat of harm to
himself or your property.
(2) Reasonably believed that the harm caused is the only way to prevent
threat of harm to occur.
(3) The actor cannot be at fault in creating an emergency situation (a
necessitating state) - you cannot be tornado chaser and call the defense of
necessity if you trespass someone’s property.
(4) The harm that the actor causes must be in fact lesser of the two evils.
Was the value judgement in regard to foreseeable damage to foreseeable harm?
 In most of the jurisdictions it did not apply this defense to murder.
 Nelson v. State:
Defendant was given a drive by someone to the highway department yard,
there is visible “No trespassing” sign but he tress passes and takes a dump
truck to try to pull out his car.
a) Model Penal Code approach to justification of necessity
 3.02 MPC Necessity defense, only 2 states adopted – difference
between MPC and common law - in MPC Necessity defense
applies to all the crimes, including murder.
2. Duress
1st excuse defense. First think if the government proved all of the elements of the
crime. If the government has proven prima facia case, then you should think about
defense (is it self-defense?). If no justifications, there is time to think about excuses.
1. Excuse defenses are more narrowly designed
a) Common law: person is excused of committing a crime, if
(1) Actor committed a crime because another person threatened the actor or third
person with imminent death or heavy bodily injury;
(2) The actor reasonably believed that he has to commit a crime to avoid imminent
death or bodily injury; and
(3) The actor wasn’t at fault for being in that situation.
3. Duress v. Necessity

Duress always involves ONLY human threats (knife/gun to a
head). Duress is an excuse, we do not analyze whether person
made right decision.
 Necessity in the common law involved only natural threats
(tornado, storm). Today many states apply necessity to both human
and natural threats, but the duress excuse can be only used when
involves human threats.
 United States v. Contento-Pachon
 People v. Unger
XVII. Intoxication.
1. Voluntarily intoxication is not technically an excuse. It’s a mens rea/mistake of facts
defense for specific intent crimes. It is very disfavored in the law. First step is to establish
whether the defendant is voluntarily or involuntarily intoxicated.
a) In the common law it can serve as a defense: Voluntarily intoxication
can be used in the specific intent crimes defense, but never in general
intent crime defense. It works exactly the same as mistake to the fact.
 Ex. Burglary, if someone is so intoxicated that they took and
carried another person’s property, but there is lack of the element
to permanently deprive a victim of a property because person was
so blacked out - that can be defense. Lack of morally blameworthy
state of mind.
a. Common law did not consider it defense to general intent crimes.
b. 2.08 MPC seems more favorable to criminal defendants than the common law.
Voluntarily intoxication can be used to show that the defendant did not
have required mens rea.
2.08.02: You cannot use the voluntary intoxication as a defense when
there is required mens rea of recklessness.
c. Involuntary intoxication: somebody spikes your drink, unforeseen drug reaction.
a) Common law: Mens rea defense for specific and general intent crime.
b) MPC 2.08 § 4 Mens rea defense for specific and general intent, you can attack
all of the cases: knowledge, recklessness, negligence.
 United States v. Veach
XVIII. Insanity
1. Rationale of Defense
a. Utilitarian Argument
A person who suffers from a severe cognitive or volitional disorder, i.e., a disorder that
undermines the actor’s ability to perceive reality (cognition) or to control her conduct
(volition), is undeterrable by the threat of punishment. Therefore, punishment is
inefficacious. See the Main Outline for counter-arguments.
b. Retributive Argument
The insanity defense distinguishes the mad from the bad; it separates those whom we
consider evil from those whom we consider sick. A person is not a moral agent, and thus
is not fairly subject to moral condemnation, if she lacked the capacity to make a rational
choice to violate the law or if she lacks the capacity to control her conduct.
2. The M’Naghten Test of Insanity: used more than any other test
a) Rule
A person is legally insane if, at the time of the act, he was laboring under such a defect of
reason, from disease of the mind, as: (1) not to know the nature and quality of the act he
was doing; or, (2), if he did know it, that he did not know what he was doing was wrong.
See the Main Outline for criticisms of the M’Naghten test.
b) Clarification of the Rule
a. “Know” versus “Appreciate”
Although the M’Naghten test originally was phrased in terms of
whether the defendant “knew” the nature and quality of his action
or “knew” right from wrong, many jurisdictions now use the word
“appreciate.” “Appreciate” is a word intended to convey a deeper,
or broader, sense of understanding than simple “knowledge.” See
the Main Outline for clarification.
b. “Right/Wrong” Prong
Courts have split fairly evenly on whether this prong refers to legal
or moral wrongfulness. In jurisdictions that use the “moral wrong”
test, the relevant issue is not whether the defendant believed that
his act was morally right, but rather whether he knew (or
appreciated) that society considered his actions morally wrong.
3. The “Irresistible Impulse” (“Control”) Test of Insanity/ In VA mix of
irresistible impulse and M’Naghten
c) Rule
In general, this supplement to M’Naghten provides that a person is insane if, as the result
of mental illness or defect, she “acted with an irresistible and uncontrollable
impulse,” or if she “lost the power to choose between . . . right and wrong, and to avoid
doing the act in question, as that [her] free agency was at the time destroyed.” See the
Main Outline for criticisms of the test.
4. The “Product” (Durham) Test of Insanity – only used in New Hampshire,
leaves way too much to the experts.
d) Rule
A person is excused if his unlawful act was the product of a mental disease or defect. As
subsequently defined, “mental disease or defect” is “any abnormal condition of the mind
which substantially affects mental or emotional processes and substantially impairs
behavior controls.” Thus, to be acquitted according to this rule, two matters must be
proved: the defendant suffered from a mental disease or defect at the time of the crime;
and, but for the mental disease or defect, he would not have committed the crime. See
the Main Outline for criticisms of the test.
5. Model Penal Code Test of Insanity – defense friendly, because of the terms it
uses.
e) Rule
The MPC test represents a broadened version of the M’Naghten and irresistible impulse
tests. With modifications, it retains the second prong of M’Naghten and adds to it a
volitional prong. The Code provides that a person is not responsible for her conduct if, at
the time of the criminal act, as the result of a mental disease or defect (a term left
undefined), she lacked the substantial capacity either: (1) to appreciate the criminality
(or, in the alternative, wrongfulness) of her actions; or (2) to conform her conduct to the
dictates of the law.
f) Closer Analysis
a. Avoiding All-or-Nothing Judgments
Both MPC prongs are modified by the phrase “lacks substantial capacity.” Total
cognitive or volitional incapacity is not required.
b. Cognitive Prong
First, the Code uses the word “appreciate” rather than M’Naghten’s “know,” to
permit a deeper, fuller analysis of the individual’s cognitive capacity. Second, the
drafters chose not to decide between “legal wrong” and “moral wrong”: they
invited legislators, in adopting the Code provision, to choose between the words
“criminality” (legal wrong) and “wrongfulness” (moral wrong).
c. Volitional Prong
This prong is phrased to avoid the undesirable or potentially misleading words
“irresistible” and “impulse.” A person who has a very strong, but not irresistible,
desire to commit a crime, including one who acts non-impulsively after
considerable thought, can fall within the language of the MPC.
Hypo for exam:
You have been court appointed to represent Mr. B, who is charged with second degree murder of
his wife. There is no doubt the state can prove the elements of the offense. The only issue is
whether Mr. B was legally insane at the time of the killing. Here’s what you’ve learned.
Police find Mr. B, age 45, at home after he called 911 to report that he killed his wife. Covered in
blood, he confesses immediately and is holding the knife he used to stab her. The knife has not
been cleaned. There is no indication of efforts by Mr. B to sanitize the crime scene. Police arrest
him without resistance and charge him with murder.
Mr. B has a history of schitzoaffective disorder and has required three past psychiatric
hospitalizations. He had no alcohol or drugs in his system on the day of the killing.
When you interview Mr. B one month after the arrest, he is not psychotic. He says he ran out of
his medications 6 months before he killed his wife and resumed taking them while in jail
awaiting trial. Mr. B relates that in the months before the offense, he grew concerned that his
wife was involved in “ritualistic sexual perversions” commanded by the devil. He began thinking
of killing his wife about a month prior to the actual event. Mr. B tried to discuss his concerns
regarding his wife’s alleged “ritualistic sexual perversions” with his mother-in-law. Then he tried
to discuss this with his minister. Neither individual gave a satisfactory response.
Mr. B further tells you that on the evening of the killing, he felt particularly agitated while
waiting for his wife to return home from work. She walked in wearing a red scarf, which
indicated to him at the time that she had engaged in sexual intercourse with 17 different men at
work that day. To save her from eternal damnation for adultery, Mr. B believed he had to stab
her 17 times before sunrise. He becomes tearful and says he wishes he “could go back in time
and fix things.”
Based on what you have learned, analyze the strength of a potential insanity defense under the
Model Penal Code, Section 4.01 (Casebook, p. 1040). For purposes of the first prong, assume the
jurisdiction uses the term “wrongfulness” instead of “criminality.”
Exam:





Organize your answer – saves you time with answering.
Demonstrate the whole rule, even if it’s not applicable.
Always write a conclusion – weak or strong case?
Analysis is the key, if you analyze and organize and articulate law
– then apply facts. Even if you analyze in the oppose to the
application in the class -professor grades your analysis and
application.
Break facts apart. Don’t put it all in one fact pattern.
Model answer:
Under MPC 4.01 a person is not responsible for criminal conduct if as a result of a mental
disease of defect, the actor lacks substantial capacity to (1) appreciate the wrongfulness of his
conduct or to (2) conform his conduct to the requirements of law. [This is identification of
applicable law]
In term of conduct resulting from mental disease of defect, Mr. B’s mental health diagnosis prior
to killing (schizoaffective disorder), repeated institutionalization and medicine non-adherence all
indicates evidence of severe mental disease during the incident. [Identify the legal prong, state
some relevant facts, and move onto what I believe requires more analysis]
In the terms of MPC’s first prong, note that this test is less rigid standard than the M’Naghten
test for defendant for two reasons. The term “substantial capacity” presents the lower burden
than proving “total incapacity”, and the term “appreciate” connotes a deeper understanding by
Mr. B of the wrongfulness of his conduct, at the time of the killing. Several facts suggest that he
lacked substantial capacity to appreciate that the killing was wrongful [Identify the test and
adding a little more context before analyzing facts].
Mr. B made no effort to sanitize the crime scene, hide or clean the decedent’s body, or conceal
the weapon used. He called the authorities and confessed to the killing without appearing to
minimize his involvement in any way. This all suggests a lack of deception that one would
expect to see from someone who recognizes the wrongfulness of their action and has sense of
guilt or shame. Likewise, his rationale for the killing at the time of the offense resembles the
deific decree case law that courts have found to warrant an insanity defense to the extent the
defendant can credibly argue that society would not condemn his conduct if society knew the
information about the “ritualistic sexual perversions” and the means for “purifying” his wife.
I also note that Mr.B ‘s explanations of what he perceived while in non-medicated state at the
time of the killing is in sharp contracts to his expression of remorse made while Mr. B was in
medicated, non-psychotic state during his conversation with counsel a month after killing. This
ould seem to further connect Mr. B’s
In terms of the second prong the issue is whether Mr. B lacked the substantial capacity to
conform his conduct to the requirements of law. The facts are not so favorable to Mr. B. While
the “substantial capacity” language (applicable to both prongs for the MPC test) is in contrast to
the absolute standart of the irresistible
The fact that Mr. B felt “agitated” on the night of the killing is helpful to Mr. B. Likewise this
prong contemplates that an impulse can build up over time. Yes, the fact that Mr. recognized
other alternatives
XIX. Inchoate [INKOET] defenses.


Crimes of attempt, conspiracy, and solicitation;
Attempt merges into completed offense - You can’t be convicted
of attempt of murder and murder.

Goal of those defenses is to allow police to intervene before actual
crime is committed – they might be able to stop actual crime.
1. Attempt – always attempt of something ex. murder, arson etc.
a) Mens rea: person needs to have specific intent to commit a crime
in question, ex. Murder, burglary. The specific intent must be
proven. If person lacks intent to kill someone, they cannot be
convicted of attempt of that murder. If the offense has different
mens rea’s, than you need to meet the one with specific intent – not
malignant heart, but specific intent to kill.
b) Actus Reus: Proximity under English common law – the person
needs to be on the last proximate act just before the actual offense
to prove the attempt.
2. Under US common law: how close the person was to completing the offense?
a. Physical proximity test:
actor needed to have apparent power to complete the crime wright there and
then. To be guilty of attempt under this test, an act “must go so far that it would
result, or apparently result in the actual commission of the crime it was designed
to effect, if not extrinsically hindered or frustrated by extraneous
circumstances.” Or, stated differently, the actor’s conduct must approach
sufficiently near to the completed offense “to stand either as the first or some
subsequent step in a direct movement toward the commission of the offense after
the preparations are made.”
b. Last Act Test:
The rule used to be that a criminal attempt only occurred when a person
performed all of the acts that she believed were necessary to commit the target
offense. Today, there is general agreement that an attempt occurs at least by the
time of the last act, but no jurisdiction requires that it reach this stage on all
occasions.
c. Danger proximity test:
The more serious is the crime, the further away from the crime you can be. Minor
crime – you need to be really close to where the crime is going be complete
geographically. With major crime geographical location is not as important.
Oliver Wendell Holmes announced the “dangerous proximity to success”
test. This standard is not satisfied unless the conduct “is so near to the result that
the danger of success is very great.” In this regard, courts consider three factors:
the nearness of the danger; the substantiality of the harm; and the degree of
apprehension felt. The more serious the offense, the less close the actor must
come to completing the offense to be convicted of attempt.
d. Unequivocality / Res Ipsa Loquitur Test:
Look at the persons conduct and imagine that you cannot hear anything he/she
can say. As soon as you are going to be able to tell what they want to do – that
is the step that is attempt. This test provides that a person is not guilty of a
criminal attempt until her conduct ceases to be equivocal, i.e., her conduct,
standing alone, demonstrates her criminal intent.
e. Probable Desistance Test:
A person is guilty of attempt if she has proceeded past “the point of no return”, the
point which an ordinary person is likely to abandon her criminal endeavor. Point past
where the normal citizen would stop.
 Under MPC: how far they were, how many steps were taken in the
direction of offense? Did the person took substantial step into
committing the crime?
o (1) Specific intent plus (2)
substantial step. The actor
doesn’t have to be close
geographically to commit crime.
o You need to prove the specific
intent, and then you need to
prove that the actor took
substantial test to coordinate the
attempt
o Virginia adopted the substantial
step test.
o Person needs to commit the
offense; ex. wants to kill with
malignant heart.
o Substantial step: act does not
have to be the last in the chain to
commit crime but needs to be
substantial.
 People v. Gentry
 State v. Reeves: MPC application
 ALL DEFENSES APPLY TO ATTEMPTS: self-defense,
habitation etc.
XX. Inchoate crimes: Attempt
defense of legal impossibility. Courts talks about different impossibilities. Know how
to argue both ways and that many jurisdictions abolished the impossibility in general.
1. Pure legal impossibility:
person ignorant of the law and does something that is not illegal. Ex. Person
arriving in US thinking that touching women is rape punishable by US Law, as it
is in his/her home country.
2. Pure factual impossibility:
3. Hybrid legal impossibility (courts rarely call it that)
– when you make factual mistake about the legal status of some necessary
element to the crime. Ex. law makes it illegal to bribe a juror, you try to bribe
someone, but the person is not a juror; you shoot corps instead of person – you
make a factual mistake. Always deals with something in the statue, like a word in
the statue: ex. Bribing. Juror – if you don’t bribe JUROR than you have defense.
4. Common law:
a) Legal impossibility: defense to the crime of attempt. When actors conduct
even if fully carried out as the act he desires would not be crime.
b) Factual impossibility: not a defense to the crime of attempt. Actor’s object or
goal is a crime, but some factual things that the actor was unaware of does not
make it a crime. Ex. Pick pocketing an empty pocket;
 People v. Thousand: legal impossibility not a defense in Michigan
5. MPC: 5.01(c ) substantial step test for attempt
a) 5.01(a): factual mistake to whether ex. In extorsion, the information is secret;
b) 5.01(b): if you shoot Bob and he is already dead, if you make a legal mistake
it is not a defense – you wanted to kill Bob. There is no defense, because you
have blameworthy state of mind.
c) Legal impossibility is not the defense under MPC.
6. Defense of abandonment only under MPC, not common law:
Criminal attempt statue 5.01 (4) :(1) abounded attempt voluntarily and it has to be
more than just a (2) temporary abandon.
 Commonwealth v. McCloskey:
7. Solicitation:
merges into other offense, it merges into crime of conspiracy, attempt, etc. It’s
like with attempt, it will merge into more mature crime. CONSPIRACIES DO
NOT MERGE
o Solicitation it’s a first prong, then
conspiracy, then attempt, then
offense.
o Solicitation merges into the
conspiracy if there is meeting of
minds.
o Conspiracy does not merge, so
you can be convicted of
conspiracy to commit the murder
and attempt of murder;
a) Common law: some say that recipient needs to receive the solicitation offer to
commit solicitation; other assume MPC approach.
b) MPC: uncommunicated solicitation can still satisfy crime of solicitation.
Recipient of the solicitation offer does not even have to accept it, it can be just
sent.
 State v. Cotton:
XXI. Inchoate crimes: Conspiracy
1. Common law:
Conspiracy agreement between two or more people to commit an unlawful act.
o Solicitation merges into the
crime of conspiracy.
o Conspiracy does not merge to an
attempt or completed crime.
Policy makers have belief that
there is apparently something
more dangerous when you have
several people to commit crime.
2. Actus reus: the agreement or the meeting of the minds.
o Many states require over act - act
leading to committing a crime
(ex. Buying gun, checking the
location). It doesn’t have to be a
substantial step – it can be
something small, act that is not
itself illegal.
3. Mens rea: unity of purpose (intent for parties to agree) and specific intent
(intent that the object of the agreement is achieved). Conspiracy is therefore
the specific intent crime.
o Plurality requirement in common
law: no conspiracy if there is lack
of plurality, at least two people
with mens rea.
 Simply because one of
the people is conconspirator, they won’t
have to indicted. Those
people are called
unindicted coconspirators, people who
testify against
conspirators.
o Number of conspiracies:
agreement itself is punishable.
Ex. If we agree that we will agree
to rob bank every moth – this is
only one agreement = one
conspiracy.
 If it is initial agreement,
amounting in number of
crimes – this is one
conspiracy.
 People v. Foster:
o Knowledge alone does not
suffice, when it comes to
knowing that someone uses your
product illegally.


Knowledge that the buyer
will commit crime, does
not constitute seller’s
intent.
You need to check
whether seller has a stake
in the venture.
 Pinkerton v. United States: important
even if you are in jail, you can still be guilty of conspiracy – if beforehand
you and meeting of minds and intent.
o Common law: conspiracies do
not merge into completed crimes
or attempts;
o Any member of conspiracy can
be convicted of conspiracy even
if he did not commit any crime. It
is rejected by MPC.
 Anderson v. Superior Court:
 People v. Swain: Conspiracy is specific intent crime.
 People v. Lauria: someone who sells otherwise legal good/ service but the
buyer will facilitate the crime.
o If you establish “a stake in the
venture” – ex. person jacking up
the price, selling grossly
disproportionate quantity – there
is conspiracy.
o Knowledge alone does not
suffice to prosecute conspiracy.
o It needs to be seller’s intent to
help the buyer in the crime to
establish conspiracy.
 Braverman v. United States: one agreement that can be charges under
multiple offenses – it is still one conspiracy. You can be convicted for
multiple substantive offences.
4. MPC 5.03:
o MPC does not have plurality
requirement:
o 2.06: accomplice liability: in
order to be responsible for
someone else’s conduct you need
to do something to facilitate
person to commit crime, even if
it’s just as simple as screaming
“kick him one more time.”
o Unilateral conspiracy does not
require the plurality of meetings
of minds. Ex. If you conspire
with cop under cover.
XXII. Defense to conspiracy
1. Special Defense: Wharton’s Rule – highly disfavored by courts – exception to
the rule that conspiracies do not merge.
a. Rule
If a crime by definition requires two or more persons as willing participants, there can
be no conspiracy to commit that offense if the only parties to the agreement are those
who are necessary to the commission of the underlying offense. This is Wharton’s
Rule, a common law defense to conspiracy.
b. Wharton’s Rule Exceptions
There are two major exceptions: (1) Wharton’s Rule does not apply if the two
conspirators are not the parties necessary to commission of the offense; and (2)
Wharton’s Rule does not apply if more persons than are necessary to commit the
crime are involved in the agreement to commit the crime.
c. Breakdown of the Rule
Wharton’s Rule is increasingly disliked by courts. The Supreme Court has stated that
in federal courts the doctrine is no more than a judicially-created rebuttable
presumption. If there is evidence that the legislature intended to reject Wharton’s
Rule, then the doctrine will not be enforced.
 Iannelli v. United States:
 Gebardi v. United States:
 People v. Sconce:
a. Special Defense: Legislative-Exemption Rule
A person may not be prosecuted for conspiracy to commit a crime that is intended to protect
that person.
b. Special Defense?: Impossibility
Case law here is particularly thin, but it has been stated that neither factual impossibility nor
legal impossibility is a defense to a criminal conspiracy.
c. Special Defense?: Abandonment
a.
No Defense to Crime of Conspiracy
At common law, the crime of conspiracy is complete as soon as the agreement is
formed by two or more culpable persons. There is no turning back from that.
Once the offense of conspiracy is complete, abandonment of the criminal plan by
one of the parties is not a defense to the crime of conspiracy.
b.
Relevance of Abandonment
Although abandonment, or withdrawal, from a conspiracy is not a defense to
prosecution of the crime of conspiracy, a person who withdraws from a
conspiracy may avoid conviction for subsequent offenses committed in
furtherance of the conspiracy by other members of the conspiracy, if the
abandoning party communicates his withdrawal to every other member of the
conspiracy (a near impossibility in many-member conspiracies).
d. MPC Special defenses
The MPC does not recognize Wharton’s Rule, nor any impossibility defense.
a.
Legislative-Exemption Rule
The Code provides that it is a defense to a charge of conspiracy “that if the
criminal object were achieved, the actor would not be guilty of a crime
under the law defining the offense or as an accomplice.” The effect of this
language is to permit a defense if enforcement of the conspiracy law
would frustrate a legislative intention to exempt that party from
prosecution.
b.
Renunciation of Criminal Purpose
A person is not guilty of conspiracy under the Code if he renounces his
criminal purpose, and then thwarts the success of the conspiracy “under
circumstances manifesting a complete and voluntary renunciation of his
criminal purpose.”
o 5.03 §6: renunciation of criminal
purpose – complete (not
temporarily, no discontinuation)
and forth the success –
renunciation of criminal purpose.
XXIII. ACCOMPLICE LIABILITY: COMMON LAW
1. General Principles
a. General Rule
Subject to clarification below, a person is an accomplice in the commission of an offense
if she intentionally assists another person to engage in the conduct that constitutes the
offense.
b. Accomplice Liability as Derivative Liability
Accomplice liability is derivative in nature. That is, an accomplice’s liability derives
from the primary party to whom she provided assistance. The accomplice is ordinarily
convicted of the offense committed by the primary party.
c. Justification for Derivative Liability
Accomplice liability is loosely based on the civil concept of agency. That is, when a
person intentionally assists another person in the commission of an offense, she manifests
thereby her willingness to be held accountable for the conduct of the other person, i.e.,
she allows the perpetrator of the crime to serve as her agent. Essentially, “your acts are
my acts.”
2. Common Law Terminology
a.
b.
c.
d.
There are four common law categories of parties to criminal offenses.
Principal in the First Degree
He is the person who, with the requisite mens rea, personally commits the offense, or
who uses an innocent human instrumentality to commit it. The “innocent instrumentality
doctrine” provides that a person is a principal in the first degree if she dupes or coerces
an innocent human being to perform the acts that constitute an offense.
Principal in the Second Degree
She is the person who intentionally assists the principal in the first degree to commit the
offense, and who is actually or constructively present during its commission. A person is
“constructively” present if she is close enough to assist the principal in the first degree
during the crime.
Accessory Before the Fact
She is one who intentionally assists in the commission of the offense, but who is not
actually or constructively present during its commission.
Accessory After the Fact
She is one who knowingly assists a felon to avoid arrest, trial, or conviction.
3. What Makes a Person an Accomplice: Assistance
a.
b.
c.
d.
A person “assists” in an offense, and thus may be an accomplice in its commission, if she
solicits or encourages another person to commit the crime, or if she aids in its
commission.
If No Assistance
A person is not an accomplice unless her conduct in fact assists in commission of the
crime.
Trivial Assistance
If a person intentionally aids in the commission of an offense, she is liable as an
accomplice, although her assistance was trivial. Indeed, an accomplice is liable even if
the crime would have occurred without her assistance, i.e., she is guilty although her
assistance did not cause the commission of the offense. Because any actual assistance, no
matter how trivial, qualifies, a person may be an accomplice merely by providing
psychological encouragement to the perpetrator.
Presence at the Scene
A person who is present at the scene of a crime, even if she is present in order to aid in
commission of the offense, is not an accomplice unless she in fact assists in the crime.
Although “mere presence” does not constitute assistance, it does not take much to convert
presence into trivial assistance. In some circumstances, a person’s presence could
provide psychological encouragement to the principal, which is enough to trigger
accomplice liability.
Omissions
Although a person is not generally an accomplice if she simply permits a crime to occur,
one may be an accomplice by failing to act to prevent a crime when she has a duty to so
act.
4. What Makes a Person an Accomplice: Mens Rea
a. Rule: intent to assist principal in 1st degree
A person is an accomplice in the commission of an offense if she possesses two mental
states. She must: (1) intentionally engage in the acts of assistance; and (2) act with the
level of culpability required in the definition of the offense in which she assisted.
b. Crimes of Recklessness or Negligence
The prosecutor does not have to prove that the accomplice intended a crime of
recklessness to occur: it is enough that she was reckless in regard to the ensuing harm;
as for a crime of negligence, it is enough to show that the would-be accomplice was
negligent in regard to the ensuring harm.
c. Natural-And-Probable-Consequences Doctrine
An accomplice is guilty not only of the offense she intended to facilitate or encourage,
but also of any reasonably foreseeable offense committed by the person whom she aided.
That is, once the prosecutor proves that A was an accomplice of P in the commission of
Crime 1 (using the analysis discussed so far), A is also responsible for any other offense
committed by P that was a natural and probable consequence of Crime 1.
5. Accomplice Liability: If the Perpetrator Is Acquitted
a. If No Crime Occurred
If a jury finds that the alleged crime never occurred and, therefore, acquits the principal
in the first degree, it logically follows that any accomplice must be acquitted as well, as
there is no guilt to derive one cannot be an accomplice to a nonexistent crime.
b. If Perpetrator Is Acquitted on Grounds of a Defense
If a jury acquits the alleged perpetrator of a crime on the ground that he was justified in
his actions, then the accomplice should also be acquitted, as this means she aided in a
justified (proper) act. But, if the jury acquits the perpetrator on the ground of an excuse,
the jury has determined that a crime has occurred. The perpetrator’s excuse claim is
personal to him, and should not protect the accomplice.
6. Perpetrator and Accomplice: Degrees of Guilt
The common law rule used to be that an accessory before the fact could not be convicted
of a more serious offense, or a higher degree of an offense, than that for which the
principal was convicted. (It has nearly always been the case that an accomplice may be
convicted of a lesser degree of crime than the principal in the first degree.) This rule is
breaking down. Even in an earlier era, however, most courts treated criminal homicides
differently: on the proper facts, courts were and are prepared to convict an accomplice of
a higher degree of criminal homicide than the perpetrator.
7. Purpose v. Knowledge
Most jurisdictions say Knowledge: Knowledge alone that the purchaser will commit
crime will not establish mens rea for the accomplice.
In the jurisdictions with purpose, you can work with knowledge and establish that the
person had a stake in a venture.
8. Natural probable consequences common law doctrine:
if the other crime is natural foreseeable consequence of another crime and you are
accomplice in only 1st crime – you are responsible for the 2nd crime as well if it was
natural probable consequence of 1st crime.
It can be separate jury instruction.
Pinkerton doctrine: any member of conspiracy can be convicted of any crime committed
by other conspirators, even if he takes no part – no actus rea. it is followed in federal
court.
9. Special Defense: Legislative-Exemption Rule
A person may not be convicted as an accomplice in her own victimization. Ex. Drug
distribution (buyer not accomplice to drug distribution).
 In re Meagan R.
Felony that they intended to commit according to prosecution is
statutory rape – they broke into the house with intent.
Court rules that Meagan cannot be prosecuted, because she is a
member of a protected class – victim, young women. Therefore, she
cannot be charged with abiding the statutory rape.
2.06.6(b) common law rule as well: 2 parties but only one is liable
if the statute provides crime that involves 2 individuals and attaches criminality of crime to one
person – it is presumed that the legislature presumed the other participant cannot be criminally
convicted. Ex. Statutory rape, the only person convicted is an adult.
a. 2.06.6(a) MPC defense of abandonment
2.06.6(a) –common law rule, adopted to MPC
Defense of abandonment 2.06.6(c) MPC: terminates his complicity prior to the commission of
the offense and
(1) wholly deprives it of effectiveness in the commission of the offense ex. If you
encouraged to commit crime you need to discourage, if you provided gun you
need to take it away; or
(2) gives timely warning to the law enforcement authorities or (3) otherwise makes
proper effort to prevent the commission of the offense.

Common law: you committed a crime as a accomplice – you will
be guilty if you try to lessen the damage – that can lessen the
amount of punishment.
 State v. Formella
XXIV.
Larceny
1. Common law larceny
a. Definition
Larceny istrespassory taking and carrying away personal property of another with the intent to
steal.
Actus reus: trespassory taking and carrying away personal property of another
Taking: caption, Carrying away: transportation
Mens rea: intent to steal
Example 1: If I lease a car to you and I take it back when you still have time to possess it– I can
be tried for larceny. Trespassory taking: nonconsensual possession.
 Topolewski v. State:
Example 2: You go to jewelry store to look at particular ring, as soon as the shop assistant gives
you the ring to look at - you run away with it.
b. Legal fiction for merchants
While you had custody of ring while you in the store, merchant retained constructive possession
of the ring – the merchant was present at store of all the time. When you run out of the store it
was a trespassory taking– because you escaped from the merchant, who was still at store.
Someone who swipes the ring from the store is in the same situation as a person who steals after
they are handed a ring by merchant.
 Rex v. Chisser
c. Custody v. Possession
Example 3: You test drive a car you take it out of lot by yourself. You were consensually given
possession of the car. Car dealer is no longer there as a merchant or jeweler who was still present
in the store. You have no trespassory possession of vehicle, dealer gave you keys.
Example 4: Supposed to the car dealer goes with you for a test ride. Auto dealer maintains
possession of the car, as long as you drive you are custodian of the car. If you push the auto
dealer from the car – you have a possession and that would be larceny by force. There is
trespassory possession of a vehicle.
d. Legal fiction for employers: master and servant.
When a master gives his servants the tools of his job employee gets custody of the tools.
Example 5: employer gives employee an item of work (tools of the trade). Employee takes the
tools with intent of using them permanently for personal use and custody would convert for
possession. It would be trespassory taking, non-consensual possession.
e. Legal fiction: bailors, custodians
Custodian: agent taken charge of an asset belonging to another, ex. employer-employee
Bailsman: ex. Ups or FedEx driver (bailee), you are sending package (bailor). Bailee
Dishonest bailee:
When a bailor provides property to bailee and they are in the sealed container bailee receives
possession of container itself but unopen content he holds simply as a custodian. If bailee opens
container is said to break a bulk – he commits larceny. No longer custody, it converts into
possession without the consent of bailor.
Example 6: FedEx driver with box of DVDs, delivering to purchaser. Common law would say he
has the lawful possession of the box, but only custody over DVDs itself.
 United States v. Mafnas
custody converted to possession when he opened money bags.
f. Legal fiction: larceny by trick:
Example 7: Alice asks Bob to borrow his car for an hour. She had no intention to return a
vehicle. Bob turned over the keys to a car, it is no trespassory non-consensual assumption of a
car. If consent was absent by fraud it was deemed to be invalid. Only applied if the Alice from
the very beginning wanted not to return the car. If she would decide after driving for an hour to
take car forever.
 Rex v. Pear:
larceny by trick applies, based on the lack of the intention to return the hore because he sold it
right away.
Hypothetical 1: Alice borrows bobs car and intends to return it the next day but later decides to
keep the car. Bob did not stay in the car, gave keys – he transferred possession. it was non
trespassory taking of a car, no larceny
Hypothetical 2: Alice intended to take car from the very beginning – larceny by trick would
apply, initial taking nonconsensual.
Hypothetical 3: carl works for state bank as a teller and he is given cash to make change for
customers. By the end of day he pockets cash and leaves. He was given custody of cash when he
was in the office. He had cash in the possession while working – when he took it home it was
trespassory non-consensual taking.
g. Carrying away:
slightest movement required by common law. You need to actually carrying, you cannot just try
to lift.
h. Personal property: very limited.
You can’t carry away real property (by definition land and it’s fixtures). Taking services without
paying was not a larceny.
Exemption, when real property can convert to personal property:
Example 8 when John cuts tree on janes property and carries it away right away – there is no
trespassory taking (no larceny) because it is real property. If he leaves the tree, goes get the truck
and comes back to pick up the three – it is larceny because the tree became personal property.
 Lund v. Commonwealth
i. Property of another:
Several people can have the possession interest in one personal property. The property is
person’s who has the superior possessory right (if someone takes your car that was 70% paid
off).
Abounded property is deemed to have no owner or possessor.
Lost property or mislead is deemed owned and constructively possessed by the owner.
 Brooks v. State:
guilty of non-consensual taking of property of Mr. Newton’s lost money.
2. Mens rea: with the intent to steal
It is specific intent crime. Stealing means permanent depravation.
Example 9: Jane takes Jacks car without his consent but with intent to return it. She doesn’t have
permanent depravation intent – so it is not larceny, because she lacks mens rea required by law.
a. Legal fiction for continued trespass:
When Jill made non-consensual assumption of the property – every second was new trespassory
taking. In the moment when she decided to keep the car – there was a moment where actus rues
combined with right mens rea: permanent depravation.
Jill took car, she trespassed, it was non-consensual – but had an intent to return. Sometime after
she took it, she decides to keep it. Technically in the moment when she stole it she did not have
the required intent
Hypo 1: Jill takes jacks car without his consent but intends to return. Later on decides not to
return – it is the legal fiction – she is
Hypo 2: she asks to borrow car, gets his consent and decides later to keep car. When she asked
for vehicle, she actually had intent to return it.
 People v. Brown:
 People v. Davis: property crime case
The relaxation of common law mens rea intent to permanently deprive. The relaxation was done
by the statutory legislation.
Sales cases: where somebody takes a product that the store owner already has and sends to him
Reward case: you steal a cow and then return it to get reward or finder’s fee
Refund cases: store that don’t require gift receipt. People will take staff from store and try to
return the thing that they just took of the hanger.
In a sense, none of those cases Defendant has the intent to permanently deprive the owner of
their property: they want them to have it back – buy it back from them. They are making a public
claim of the ownership by taking it.
Final exam: review
Open book, 6 questions – essay, practical questions – analyzing legal issues. 3 hours