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Principles of Punishment – Chapter One
All of criminal law revolves around punishment
What is a crime?
A conduct which will incur a formal and solemn pronouncement of the moral condemnation of the community (Hart)
A. Who makes it a crime? Legislature
B. Rationale for making it a crime? Punishment
Theories of Punishment (Dudley & Stephens)
A. Should we punish the conduct?
B. Should it be a crime? What’s the rationale for making something a crime? Punishment
C. Rationales for punishment?
a. Utilitarianism – net happiness to society – Looks Forward – rationale thinking people – avoid criminal
activity if the perceived potential pain (punishment) outweighs the expected potential pleasure (criminal
i. General Deterrence – individuals will not commit crimes for fear of suffering the same
punishment that a current defendant has suffered – deter people generally
ii. Specific Deterrence – punishing the actor him or herself to deter that actor from future criminal
iii. Rehabilitation (Reform) – punish to reform the individual (educate them)
iv. Incapacitation (Isolation) – isolate the individual from society (protect society)
b. Retribution – punishment for the sake of punishment – pay debt to society – Looks Backward
c. Denunciation – Hybrids of utilitarianism & retribution
D. Prosecutorial discretion’s role – whether to charge, what to charge, where to charge, who to charge
E. Overcriminalization movement – “smart on crime”
Determining the Appropriate Sentence (State v. Jensen)
1. What factors should the court consider in sentencing a person? (Jensen, a nurse, plead to 1st degree M, killing H’s
girlfriend with lethal dose of insulin, given determinate life sentence, appealing on claim of excessive sentence)
a. Court can use different factors – the three used here were:
i. Nature of the Offense – Deceased mother of 6 kids (# of kids matter? Should we look at
victim?); how she did the killing (presence of child), how she could have stopped it
ii. Character of Offender – Nurse, capable and caring, fun loving, devoted wife and mother, sub
scout den mother, etc.
iii. Protection of Public Interest – is a life sentence necessary here – would she commit the crime
again – is it general deterrence, retribution?
iv. Victim
b. What is the standard of review – appellate review of sentence – abuse of discretion
Federal Sentencing Guidelines
1. Uses a grid (criminal offense history vs. offense level)
a. Present – guidelines are advisory (Supreme Court cases caused the shift)
b. Factors a Federal court considers in sentencing – 18 U.S.C. § 3553(a) factors:
i. The nature and circumstances of the offense and the history and characteristics of the defendant
ii. The need of the sentence imposed –
1. To reflect the seriousness of the offense, to promote respect for the law, and to provide
just punishment for the offense
2. To afford adequate deterrence to criminal conduct
3. To protect the public from further crimes of the defendant and
4. To provide the defendant with needed educational or vocational training, medical care, or
other correctional treatment in the most effective manner
iii. The kinds of sentences available
iv. The kinds of sentence and the sentencing range established for—
1. The applicable category of offense committed by the applicable category of defendant as
set forth in the guidelines ***
2. Sentencing Process
a. Might include probation office preparing presentence report (PSR)
b. Attorneys may be presenting evidence at sentencing hearing
c. May be preponderance of the evidence
d. Federal system eliminating parole
Proportionality (Ewing v. California)
3 strikes California law, “wobbler”, prosecutorial discretion to charge as misdemeanor or felony, sentence of 25 to
life, arrested for stealing golf clubs
1. 8th amendment – “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted” – punishment should fit the crime
2. Solem v. Helm – Three Part Test – (1) gravity of the offense and harshness of the penalty; (2) the sentences
imposed on other criminals in the same jurisdictions; and (3) the sentences imposed for commission of the same
crime in other jurisdictions
3. Ewing – 4 dissenting justices and 3 justices in plurality agree that 8th amendment has some measure of
a. O’Connor – not cruel and unusual punishment – “long history of felony recidivism”: need to take into
effect the State’s legitimate penological goal (study of punishment)
b. Scalia – purpose of statute – incapacitation
c. Thomas – 8th amendment cruel and unusual provision has no proportionality principle
d. Stevens (Breyer, Ginsburg, Souter) – dissent – advocates for case by case approach, individualized
Capital Punishment (Roper v. Simmons)
1. What does one do with a 17 year old that commits a crime of murder? Unique Role for Minors
a. Court looks at – “history, tradition, and precedent, and with due regard for its purpose and function in the
constitutional design.” “Evolving standards of decency” (Trop v. Dulles)
b. Court looks at – precedent (Thompson – under 16 no death – juveniles not trusted with the privileges and
responsibilities of an adult and their irresponsible conduct is not as morally reprehensible as that of an
adult; Atkins – no death for “mentally retarded”) – juveniles less susceptible to deterrence, retribution
c. What role do state legislatures and statistical data play in the Court’s decision?
d. Comparative Law - should courts use international law?
2. Use of aggravating and mitigating factors – five factors rendering a murderer eligible for capital punishment:
a. The murder of a peace officer killed in the performance of their official duties
b. The murder of any person occurring at a correctional facility
c. The murder of two or more persons regardless of whether the deaths occurred as the result of the same act
or of several related or unrelated acts as long as (a) the deaths were the result of either an intent to kill
more than one persons or (b) the defendant knew the act or acts would cause death or create a strong
probability of death or great bodily harm
d. The intentional murder of a person involving the infliction of torture
e. Hate crimes added later – depends on statute in jurisdiction
3. Many states moving away from having death penalty (ALI – removed it from MPC; other jurisdictions having
suspension on death penalty)
4. Post – Roper - Graham v. Florida (2010) – Court held that it would violate the 8th Amendment to give a juvenile
offender life without parole for a non-homicide case
5. Victim Impact statements
Hate Crimes
1. Motive typically not an element of a crime – hate crimes are an exception
2. Increase the punishment based upon hate
3. Groups included depend on legislation (race, ethnicity, religion, sexual orientation)
Problems in the Criminal Justice System
1. Wrongfully convicted – what went wrong??
a. DNA and scientific testing; Poor identification; Prosecutorial misconduct – not providing exculpatory
evidence to defense counsel; Insufficient defense counsel; Police misconduct
Criminal Statutes – Chapter Two
Basics of Criminal Prosecution
1. Participants in the criminal justice system: Defendant, Defense counsel, prosecutor, victims, law enforcement,
magistrates & judges, jurors, corrections officials, public, media.
2. Criminal Justice Process: Next year in Criminal Procedure
3. Vehicles of Appeal
a. Insufficient Evidence – this sucks! Doesn’t work on appeal usually.
b. Improper Jury Instruction – jury instruction can also not be given – viewed as a whole
c. Evidentiary – improperly admitted or excluded – rare
d. Constitutionality
e. The government can appeal sentencing issues (not jury imposing (or not) death penalty)
Statutory Basis of Criminal (Legislative) Law
1. Common Law approach – codifying CL – many overlap as to result in multiple charges
a. Felonies and misdemeanors
b. Malum in se (wrongful in itself) v. Malum prohibitum (wrongful by legislative prohibition)
i. As a general matter, prohibitum crimes have a lower intent, or are strict liability
2. Medal Penal Code (ALI) – drafted in 1962 – not adopted in whole – states adopt portions that they want it is
model to use in drafting their own statutes
Interpreting Criminal Statutes
1. Text of Statute *** Important – start here!!
a. Language of the statute – plain meaning
b. Words same as words used in similar statute; but can have different meaning in different contexts
c. Title of the statute
d. Esjusdem Generis - when general language follows specific terms in a statute, the esjusdem generis rule
limits the general language to the specific terms
e. Expressio unis est exclusio alterius – “the expression of one thing is the exclusion of another”
f. Noscitur a sociis – statute contains list – each word in that list presumptively has a similar meaning
g. Is a common law or Model Penal Code (MPC) approach being used?
h. Rule of Lenity – if two possible meanings, both constitutional, then interpreted to favor the accused –
Rationale: don’t want to convict person of a crime they were unaware of
2. Legislative Intent
a. Legislative history – should you look at it (dynamic approach) or use a strict textual approach
b. Modifications to the statute
3. Precedent
a. Which law? Within jurisdiction, if MPC – within jurisdiction using MPC?
b. Can you use international law?
4. Policy – what was the reason behind the legislation
Principles of Legality – Constitutional Considerations
1. Vagueness (Columbus v. Kim)
a. Vague on its face vs. vague as applied
b. A statute cannot be so “vague that men of common intelligence must necessarily guess at its meaning and
differ as to its application.” – reasonableness – must have notice of the crime
c. Protection afforded by prohibiting vague statutes (Kolander)
i. To allow people to arrange their conduct so as to steer clear of unlawful acts,
ii. To prevent arbitrary and discriminatory enforcement of laws, and
iii. To avoid limiting the freedom of speech and expression
2. Overbreadth – criminal statutes may not infringe on those constitutionally protected rights
3. Overcriminalization
4. Federalism
a. Is there a federal basis for the statute? Ex. commerce clause, tax, postal
b. Appropriate balance between state and federal
5. Other Constitutional Limitations
a. Right to Privacy – Substantive due process (Lawrence v. Texas)
b. Ex Post Facto – can’t be charged with crime that becomes a crime after you have done it
c. Bill of Attainder – when legislature declares person guilty of crime and punish w/o trial or conviction
d. Jury Nullification – it is improper to instruct a jury that they have a right to disregard the law
e. International Law – a court may limit the law to the United States in interpreting a statute (Small)
The elements of a crime generally fall into four categories: (A) the act (actus reus) + (B) the mental state (mens rea) + (C)
causation + (D) Attendant circumstances = (X) Crime – must have concurrence of the elements
Actus Reus – Chapter Three
The Act
1. The act must be voluntary (Martin v. State) – mere thoughts are not voluntary acts, but speech can be
2. Model Penal Code – Elements: defines as conduct, attendant circumstances or result of conduct as:
a. Material Element – connected with (1) the harm or evil, incident to conduct, sought to prevented by the
law defining the offense, or (2) the existence of a justification or excuse for such conduct
3. MPC specifies certain forms of conduct that will not constitute a voluntary act: (MPC § 2.01(2))
a. A reflex or convulsion
b. Bodily movement during unconsciousness or sleep
c. Conduct during hypnosis or resulting from hypnotic suggestion
d. Bodily movement that is not a product or effort or determination of the actor, either conscious or habitual
4. Unconsciousness (Cox v. Director of Revenue) – timing of Act – which act is voluntary?
5. Attendant Circumstances – may determine if a crime is a misdemeanor or felony
6. Corporate Criminal Liability – Individual and corp. can be punished!
Possession as Actus Reus
1. Must be voluntarily in possession of controlled or illegal substances to constitute the required actus reus but a
criminal’s location when in voluntary possession is not relevant. (State v. Winsor)
2. If not in actual possession can have constructive possession – requires knowledge, dominion and control
a. Living with a relative doesn’t necessarily constitute constructive control (Watson v. State)
Omission as Actus Reus (West v. Commonwealth)
1. When does a person have the legal duty to act? – not mere moral obligation
2. Four situations in which failure to act may constitute breach of a legal duty & criminally liable: (Jones v.
United States)
a. Where a statutes imposes a duty to care for another; Statute
b. Where one stands in a certain status relationship to another; Status Relationship
c. Where one has assumed a contractual duty to care for another; Contractual
d. Where one has voluntarily assumed the care of another and secluded others from rendering aid.
3. MPC § 2.01(3) – provision for when an omission can constitute a voluntary act: by statute or law
4. Good Samaritan Statutes – Duty to Aid – not very common - Courts generally agree about the need to report
crimes or contact medical assistance – especially when creating the danger
Status or Condition (Robinson v. California)
1. Unconstitutional to allow a status or condition to be criminalized
2. If criminalizing act of public indecency and not status that is constitutional (Powell v. Texas)
Mens Rea – Chapter Four
Specific Intent v. General Intent (U.S. v. Cortes-Caban)
1. General intent requires a showing that a defendant intended to perform a certain act. In contrast, where specific
intent is required, a heightened mental state is sine qua non. Inferred: direct, circumstantial evidence, acts
2. Common Law Approach – crimes generally specify which intent is required:
a. Culpability – wicked or wrongful?
b. Elemental – determines if general or specific intent required (1 = general; 2 = specific)
The Model Penal Code
General Requirements of Culpability – § 2.02
1. Kinds of Culpability Defined. Keys Words in Bold.
a. Purposely. A person acts purposely with respect to a material element of an offense when:
i. If the element involves the nature of his conduct or result thereof, it is his conscious object to
engage in conduct of that nature or to cause such a result; and
b. Knowingly. A person acts knowingly with respect to a material element of an offense when:
i. If the elements involves the nature of his conduct of the attendant circumstances, he is aware
that his conduct is of that nature or such circumstances exist; and
ii. If the element involves a result of his conduct, he is aware that it is practically certain that his
conduct will cause such a result.
c. Recklessly. A person acts recklessly with respect to a material element of an offense when he
consciously disregards a substantial and unjustifiable risk that the material element exists or will
result from his conduct. The risk must be of such a nature and degree that, considering the nature and
purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross
deviation from the standard of conduct that a law-abiding person would observe in the actor’s
d. Negligently. A person acts negligently with respect to a material element of an offense when he should
be aware of a substantial and unjustifiable risk that the material element exists or will result from his
conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering
the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation
from the standard of care that a reasonable person would observe in the actor’s situation.
2. If you met the standards of Purposely you met all standards below it, same goes of each kind of culpability
3. Motive is NOT intent
Proving Intent
Elements can require intent
Direct and Circumstantial Evidence – intent can be inferred from evidence and circumstances and
Natural and Probable Consequences
Willful Blindness (Rice v. State)
1. Deliberate ignorance requires a conscious purpose to avoid enlightenment; a showing of mere negligence or
mistake is not sufficient
2. Global Tech – Willful blindness requires two basic elements: (1) the defendant must SUBJECTIVELY believe
that there is a high probability that a fact exists (can be infer from evidence) and, (2) the defendant must take
deliberate actions to avoid learning that fact
Transferred Intent (State v. Fennell)
1. Transferred intent is for the purposes of general deterrence
2. Misaim = a transferred intent
3. Exceptions to Transferred Intent
a. Misidentification
b. Causes harm to intended person and also causes harm to bystander (sometimes)
c. Precluded by statute
d. Cannot transfer to different crime
Strict Liability (People v. Nasir) Exception to Mens Rea
1. Disfavored by court; purpose – efficiency in the court
2. Is the offense strict liability?
a. No mens rea term in the statute
b. Not derived from the common law, MPC – no jail time
c. Legislative policy would be undermined by a mens rea
i. Oppressive burden to prosecutor burden?
d. Standard reasonable to what properly expected of person
e. Small penalty
f. Little stigma to individual
g. Malum prohibitum as opposed to Malum in se
h. Public welfare offense – welfare of the public more important that individual having intent
3. Strict Liability Elements – venue, status of victims and nature of weapon, statutory rape & felony murder
Mistake of Fact (State v. Contreras)
1. Defense of mistake of fact requires the ∆’s mistake to be honest and reasonable – should be a question for jury
2. Legislative intent – main interpretation tool – general vs. specific intent
a. CL Specific Intent: ∆ had good faith belief, irrespective if belief was reasonable or unreasonable
b. CL General Intent: ∆ had good faith belief was legal and belief was reasonable
c. Strict Liability: mistake irrelevant because intent not an element of the crime
d. MPC – if it negates an element of the offense, then you can have mistake of fact
3. A defendant is entitled to a “theory of the case” instruction if there is sufficient evidence to support the defense
position and it is consistent with the law. In determining whether to give instruction, the court:
a. Construes the evidence in light most favorable to the defendant
b. Defendant need not introduce evidence apart from prosecution’s case-in-chief to qualify for instructions
Mistake of Law (Cheek v. U.S.) U.S. 1991
1. Ignorance of the law is seldom an excuse – defendant must prove defense through preponderance of the evidence
2. Seldom an excuse – exceptions: (tax law)
a. Reasonable reliance of official interpretation of the law
b. Fair notice – sex offender registration law (Lambert)
c. Willfulness requires the Government to prove that the law imposed a duty on the defendant, that the
defendant knew of this duty, and that he voluntarily and intentionally violated that duty. (Cheek)
3. There is NO requirement that a claimed good-faith belief must be objectively reasonable
Causation – Chapter Five
For crimes that require a specific result the government must prove beyond a reasonable doubt that the defendant
caused the particular harm as an element of the offense – two components to causation: (1) cause-in-fact, which requires
the government to prove that but for actions of the defendant the result would not have happened when it happened; (2)
the defendant be the proximate cause of the result.
Cause-in-Fact (State v. Lane)
1. Involuntary manslaughter is “the unintentional killing of a human being without malice, proximately cause by (1)
an unlawful act not amounting to a felony nor naturally dangerous to human life, or (2) culpably negligent act or
omission – state must prove that defendant’s actions was the cause-in-fact (actual cause) and the proximate cause
(legal cause) of the victim’s death to satisfy causation element
2. Generally – the issue of causation comes up most frequently in homicide prosecutions – exact cause of death
3. Actual cause terminology: “but-for-cause,” “sine qua non,” and “factual cause”
4. Conditions – a condition is not considered part of the actual cause
5. Concurrent Sufficient Causes – any partaker can be charged with the crime
6. Obstructed Cause – precludes the initial ∆ from suffering consequences beyond the crime that he/she committed
7. Accelerating a Result – acceleration requires specific proof of when the victim would have died, to establish the
liability of the first defendant, and then how the second defendant’s conduct caused the otherwise inevitable death
to occur earlier
MPC § 2.03 Causal Relationship between Conduct and Result
1. But for cause
2. If the actual result differs from the result intended (mens rea of purposely) or contemplated (knowingly) or is not
within the risk the defendant ignored (recklessness) or should have been aware of (criminal negligence), there is
no causation for that actual result.
3. For strict liability crimes, the Model Penal Code finds causation only if the actual result is a probable consequence
of the actor's conduct.
Proximate Cause (Legal Cause)
Was the harm intended or foreseeable at the time
No single rule in common law
Unexpected result from negligence or recklessness
Independent and dependent intervening causes
a. A defendant may be relieved of criminal liability for a victim’s death if an independent intervening cause
has occurred, meaning an act of an independent person or entity that destroys the causal connection
b. If an intervening cause is a normal and reasonably foreseeable result of defendant’s original act the
intervening act is “dependent.”
2. De Minimis Causes – very minor effect to social harm
3. Transferred intent – different victim than intended
Concurrence and Proof of the Elements – Chapter Six
The elements of an offense must all concur. Material elements vs. non-material (jurisdiction and venue)
Jurisdiction and Venue (Jones v. State)
1. State is required to introduce evidence establishing that venue is properly laid – may have more than one
2. Slight evidence of proper venue will be deemed sufficient if, (1) venue is not challenged, and (2) there is not
conflicting evidence regarding venue – entering a “not guilty” plea automatically enters conflicting evidence
3. Burden of proving venue – different states = different standards
4. Extraterritorial Jurisdiction – extent of criminal jurisdiction***
a. “Objective” territorial jurisdiction, which allows countries to reach acts committed outside territorial
limits but intended to produce detrimental effects within the nation
b. Nationality jurisdiction based on the nationality of the offender – less likely
c. Protective jurisdiction based on the protection of the interests and integrity of the nation
d. Universality jurisdiction where custody of the offender is sufficient – Human Rights Crime
e. Passive personality jurisdiction based on the nationality of the victim
5. Three ways to get Extraterritorial Jurisdiction
a. Statute focused on extraterritorial conduct
b. Specific provisions – explicitly provides laws that applies to conduct outside the U.S. & can prosecute
c. Judicial interpretation – when statutes are older, judicial interpretation determines if the legislature
intended to apply extraterritoriality - What did Congress intend?
Proof Beyond a Reasonable Doubt
Reasonable Doubt – U.S. v. Jackson
1. The test for determining a challenge to the
sufficiency of the evidence asks whether a “rational
trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.”
2. Policy Rationale – better that ten guilty go free than
one innocent suffer
3. Burden of Production/Burden of Persuasion
a. Burden of Production - “sufficiency of the
b. Burden of Persuasion - “Beyond a
reasonable doubt standard” ALL elements
4. Defendant does not need to offer a defense
5. Affirmative Defenses – if the legislature designates
it as an affirmative defense – may require defense to
prove, usually state does NOT need to disprove (MPC doesn’t)
Defining Reasonable Doubt – State v. Rimmer
1. Jury Unanimity – while the Sixth Amendment does not require a unanimous jury in state court proceedings, it
does in federal criminal prosecutions and a number of states require unanimous jury verdicts in criminal cases
a. Must be unanimous on each separate element for each separate crime
Homicide – Chapter Eight
Model Penal Code. Criminal Homicide
§ 210.1. Criminal Homicide - requires that the victim be born alive for a murder prosecution
1. A person is guilty of criminal homicide if he purposely, knowingly, recklessly or negligently causes the death of
another human being
2. Criminal homicide is murder, manslaughter or negligent homicide
§ 210.2. Murder
1. Except as provided in § 210.3(1)(b), criminal homicide constitutes murder when: (a) it is committed purposely or
knowingly; or (b) it is committed recklessly under circumstances manifesting extreme indifference to the
value of human life. …
§ 210.3 Manslaughter (felony, 2nd degree)
2. Criminal homicide constitutes manslaughter when:
a. (1) it is committed recklessly; or
b. (2) a homicide which would otherwise be murder committed under the influence of extreme mental or
emotional disturbance for which there is reasonable explanation or excuse. Reasonable person in their
shoes standard – mere words not enough – some informational words are
§ 210.4 Negligent Homicide
1. Criminal homicide constitutes negligent homicide when it is committed negligently
2. Negligent homicide is a felony of the third degree
Common Law of Homicide
Common law Elemental Approach – malice aforethought - Today – many states use degrees of murder
1. First degree murder (Potentially Subject to the Death Penalty) Express Malice
a. Willful, deliberate, and premeditated; or
i. Willful – intent
ii. Deliberation – process of determining course of action – weighs reasoning and consequences
iii. Premeditation - designed determination to kill - passage of time is not, in and of itself, premed.
b. Felony murder as specified by statute; or
c. Killing by poison or lying in wait
2. Second Degree Murder – implied Malice
a. Any intentional killing but not premeditated other than first degree murder or voluntary manslaughter; or
b. Intentionally causing serious bodily injury but where death, though never intended, results; or
c. Felony murder; or
d. Depraved heart murder (extremely reckless killing that exhibits indifference to the value of human life).
3. Voluntary Manslaughter
a. Killing that would otherwise be murder but manslaughter b/c reasonably provoked into a sudden heat
of passion without cooling off where a reasonable person would have cooled off. causal connection
i. Mere words not enough – some informational words are (rare)
4. Involuntary Manslaughter
a. In some jurisdictions, a reckless killing (provided that it is not recklessly+); in other jurisdictions, a
criminally negligent killing; and, in still other jurisdictions, a killing done with negligence; or
b. Misdemeanor-manslaughter
c. Imperfect self-defense
i. Gross or simply negligence depending on jurisdiction
The Felony Murder Rule (Strict Liability) – Disfavored Doctrine
Developed as a separate means to hold a person liable – rule provides that if a person causes the death of another
during the course of a felony, or an attempt to commit the felony, 2nd degree CL – MPC: Murder
- Many states have expanded 1st degree murder to include situations of child and spousal abuse – to be held liable
for the killing, it does not matter whether the death was intentional, and the government need not prove any level
of mens rea for the killing, just the intent for the underlying felony that led to death
- Misdemeanor-Manslaughter Rule – most states permit for manslaughter rather than murder when the death occurs
during the commission of an offense that is a misdemeanor rather than a felony
- Agency approach – majority view – limits the application of the doctrine to those homicides committed by the
felon or an agent of the felon – identity of killer becomes threshold requirement
- Proximate cause approach – provides “liability attaches for any death proximately resulting from the unlawful
Requirements – Restrictions
- Inherently dangerous – nature of the offense in the abstract, circumstances surrounding the act
- Merger Doctrine (Ireland Rue): If the felony “merges” into the homicide, then the felony murder rule cannot be
applied – part and parcel of crime itself
- Death must be a consequence of the felony (victim killed in furtherance of the felony)
- Co-felon rule – murder by one other than felons (agency or proximate cause approach)
Rape – Chapter Nine
- At CL, rape is a general intent crime***
- Can’t bring in prior sexual history
Factors to be considered:
- Force
- Against Will
- Without Consent
- Gender Neutral
- Marital Rape
- Rape By Fraud
- Rape Or Sexual Assault – degrees?
Theft and Property Offenses – Chapter Ten
Specific Intent
Under the CL, the basic theft offense was larceny, which required the government to prove the following elements: (1) a
trespassory taking and (2) carrying away of (3) personal property (4) of another person (5) with intent to steal.
- Robbery – depends on whether force or fear is used
- Embezzlement – depends whether the person has lawful possession of the property and converts it to personal use
- False pretenses – depends whether title, rather than possession, was obtained by false statement of past or present
- Burglary – CL felony that punishes the enter into a dwelling at night with intent to commit felony therein
Theft Offenses
- Taking – asportation
- Personal property – of another
- With the intent to permanently deprive
Some Points
- How many larcenies?
- Modern theft more expansive
Bell v. U.S. (got to Sup. Ct.) - If a thief, through his trickery, acquired title to the property from the owner, he has
obtained property by false pretenses; but if he merely acquired possession from the owner, he has committed larceny by
People v. Shannon
1. It doesn’t matter if a thief intends to sell the victim’s property back to the victim after wrongfully stealing the
property and claiming to be the rightful owner, thus ultimately stealing the victim’s money rather than the
2. Continuing trespass doctrine – under which the defendant’s retaining possession of the item is a trespass, and at
the moment the intent to permanently hold the item the larceny is then complete.
3. Stealing from a Thief – the CL did not require that the victim of the larceny be the lawful possessor of the
personal property taken by defendant
4. Single Larceny Doctrine – Factors for single larceny: location, lapse of time between the taking, general and
specific intent, number of owners, and whether intervening events occurred between the takings
5. Retrieving ill-gotten gains, pick pockets – personal presents or constructive control
6. Larceny by Trick – CL – consent was obtained by a lie and did not constitute valid consent to negate the trespass
Embezzlement (U.S. v. Lequire)
Embezzlement – is different from larceny because the victim entrusts the property to the defendant and the defendant then
converts it to person use – Rationale for development is that offense is not only against ownership but against society
1. Without “entrustment” there is no embezzlement
Receiving Stolen Property (State v. Jennings)
1. Constructive Possession = immediate control and therefore, convicted
Force of Threat (Commonwealth v. Powell)
1. Case law holds that a replica or fake weapon is a dangerous weapon if the victim would, in all the surrounding
circumstances, reasonably believe that the object was a real weapon (serious injury or death or appears in can)
2. Whose Viewpoint – victim’s viewpoint as the determinative factors
3. Include imitations in statute
Timing of Use of Force (Commonwealth v. Jones)
1. We have held that, in order to establish a robbery, the violence or intimidation “must occur before or at the time
of the taking,” Branch v. Commonwealth VA. 1983)
a. objective vs. subjective vs. both
Burglary (State v. Crossman)
1. Jury can “draw any reasonable inference that logically flows from the testimony or proved physical facts,” to
“believe some parts of witness testimony to the exclusion of other,” and to “selectively accept or reject testimony
and to combine such testimony in any way.”
2. Common Law Burglary – (1) breaking and entering of (2) a dwelling of another (3) in the nighttime (not as
common) with (4) intent to commit a felony therein – intent formed before the burglary
3. Possession of burglar’s tools can be circumstantial evidence and most states criminalize it
Generally – Inchoate (Incomplete) Offenses
They attach criminal liability for conduct in which the actor does not achieve the actor’s criminal purpose.
1. When studying attempt, solicitation or conspiracy it is important to remember that sometimes they are not
considered discrete, or separate crimes; rather, they can attach to specific criminal offenses.
Attempt – Chapter Eleven
1. Mere Preparation is Insufficient – Specific Intent!
2. Common law elements required to prove an attempt to commit a crime: (1) intent to commit the crime alleged
attempted and (2) some acts in furtherance of that intent
3. The best way to think about an attempt crime is to view the defendant’s conduct as occurring along a continuum,
and asking whether the evidence is sufficient to establish (a) the actus reus of the offense and (b) the mens rea
4. Some jurisdictions divide criminal attempt into two types
a. Complete attempt – the defendant does everything possible to effect the crime but does not cause the
result of the particular offense
b. Incomplete attempt – defendant stops short of completing offense – law treats complete and incomplete
identically as far as proving the crime and imposing punishment
Mere preparation  perpetration
Attempt Tests Focusing On What Remains
1. Last Act – not used in any jurisdiction
2. Physical Proximity Doctrine – the act must be sufficiently proximate to the intended crime – the accused must be
engaged in the “last proximate act,” that is, done everything necessary to bring about the intended result
3. Dangerous Proximity Doctrine – dangerous proximity to success – Factors to be considered: nearness of danger,
greatness of harm, degree of apprehension felt – Holmes Test
4. Indispensable Element – would have completed the crime if not for the missing indispensable element
Attempt Tests Focusing On What Has Occurred
5. Probable Desistance Approach – contemplates an act which in the ordinary course of events would result in the
commission of the intended crime except for the intervention of some extraneous fact
a. Accused’s conduct must pass that point where most men, holding such an intention, would think better of
their conduct and stop
6. Res IPSA Loquitur Test (Equivocality Approach) – the act which transforms the accused’s conduct from
preparation to perpetration constitutes a step towards the commission of the intended crime, and the doing of the
act can have no other purpose than the commission of that crime
7. The MPC Substantial Step Approach – has he taken a substantial step in a course of conduct planned to culminate
in his commission of the crime
At Common Law
- Factual Impossibility (picking an empty pocket)  No
- Legal Impossibility (shooting a stuffed dear)  Yes
Today – just not a crime, wouldn’t be charged
- Legal & Factual Impossibility  No
- True Legal Impossibility (not real)  Yes
Abandonment and Renunciation
Criminalizing Preparatory Conduct
Some states do, differing between usual household items that could be used to burglarize vs. tools made
specifically for burglary
Solicitation – Chapter Thirteen
Specific intent crime for evidentiary and deterrence purposes
Asking, inviting, inducing, commanding, requesting, hiring another to commit a crime
Not the same as an innocent instrumentality
o Which lacks mens rea – were tricked into it
Uncommunicated Solicitations (People v. Saephanh)
Some states require that communication be received – if not received usually will charged with attempted
MPC does not require the communication be received
Solicitation IS NOT attempt
Conspiracy – Chapter Thirteen
Elements & Agreement (U.S. v. Fitz)
1. Agreement to essential nature of the plan
a. Plurality
b. Bilateral or unilateral approach (cops?) – depends on jurisdiction
c. Inconsistent verdicts – happens sometimes – if in same trial might be a problem – separate trials – okay!
2. Unlawful objective
3. Knowledge and intent
4. Overt act?
Prosecutorial Advantages
- Joinder of co-conspirators (guilt by association)
- Venue
- Evidentiary advantages – hearsay
- Expanded relevant evidence
- Don’t have Merger in Federal & Inchoate crimes – doesn’t have to be completed
- Pinkerton rule – charge defendant with co-defendant’s substantive offense
o Is it foreseeable?
o Is it in furtherance?
Mens Rea (U.S. v. Jones)
o Knowledge of conspiracy’s existence
o Knowledge of the objective of the conspiracy
o Knowledge of jurisdiction element is not required – Feola
Intent (Specific Intent)
o Intent to participate in the conspiracy
o Intent for crimes within conspiracy
Single and Multiple Conspiracies (U.S. v. McDermott)
Single or multiple?
Wharton’s Rule – if crime by definition requires a set number of people and all you have is that set number of
people, you don’t have conspiracy but if have one more than required you can charge conspiracy
- Voluntary & Complete
- Does the jurisdiction require that co-conspirators be notified?
- Does the jurisdiction require that police be notified?
Some jurisdiction – requirement of corroboration
Can you charge conspiracy and substantive offense?
Do the two charges merge and you can only charge one?
Accomplice Liability – Chapter Fourteen
Old Common Law
- Principle in first degree
- Principle in second degree
- Accessory before the fact
- Accessory after the fact – retained
Actus Reus (State v. Barnum)
Innocent instrumentality – when a person uses another individual to commit a crime for them, and the person
being used does not have the mens rea for the crime
Mere presence if not enough
Feigning accomplice – a person who joins in a crime in order to apprehend the people doing the crime undercover
Natural and probable consequences rule – similar to Pinkerton – foreseeable?
- Other substantive offenses
- Rules:
o Did P commit target crime A?
o If yes, did S intentionally assist in the commission of crime A?
o If yes, did P commit any other crimes?
o If yes, were these crimes, although not contemplated by S, reasonably foreseeable consequences of
crime A?
Some jurisdiction – requirement of corroboration
Mens Rea (U.S. v. Cruz)
Must have mens rea – specific intent
- Intent to assist the primary party
- Intent that the primary party commit the offense
Defenses – Chapter Fifteen
Common Law
Justification Defense – can impute to accessory
o Necessity, proportionality, reasonable belief (subjective)
Excuse defense – cannot impute to accessory (insanity)
The Right to Present a Defense (Beaty v. Commonwealth)
Defendant has the right to introduce evidence that another person committed the offense with which he is charged
o Trial court may only infringe on right when defense theory is unsupported, speculative, and far-fetching
and could thereby confuse or mislead the jury – may also apply to evidence
Constitutional Right to testify (or not)
Alibi Defense (State v. Deffebaugh)
What do you have an alibi? Two perspectives:
o General Denial
o At a different place at the time of the crime
Purpose of Alibi Notice – Avoid Surprise
The court need not give the jury alibi instruction absent some evidence that the defendant was elsewhere when the
crime occured
Cultural Defenses (People v. Romero)
When should they be allowed?
Entrapment – Chapter Eighteen
Predisposition to Commit Offense
Subjective Predisposition (Jacobson v. U.S.)
Government must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act
prior to first being approached by government agents – why cops now wait many times
Entrapment – question of law or for the trier of fact? Florida – trier of fact
Objective Approach – MPC § 2.13
(1) A cop perpetrates an entrapment if: for the purpose of obtaining evidence, he induces or encourages another
person to engage in conduct constituting such offense by either:
a. making knowingly false representations designed to induce belief that such conduct is not prohibited; or
b. employing methods of persuasion or inducement which create a substantial risk that such an offense will
be committed by persons other than those who are ready to commit it.
(2) Except as provided in Subsection (3), a person prosecuted for an offense shall be acquitted if he proves by a
preponderance of evidence that his conduct occurred in response to an entrapment.
(3) The defense afforded by this Section is unavailable when causing or threatening bodily injury is an element of
the offense charged and the prosecution is based on conduct causing or threatening such injury to a person other
than the person perpetrating the entrapment.
Outrageous Government Conduct
Looking at government conduct from an objective standard
Defending Self, Others, and Property – Chapter Sixteen
Basic Rules:
- Crime of Necessity
- Arises only when necessity begins and ends when the necessity ends
- Cannot use excessive force – proportionality rules
Key Requirements
- Threat, actual or apparent of use of deadly force against defender
- Threat must have been unlawful and immediate
- Defender must have believed that he was in imminent peril of death or serious bodily harm, and that response
was necessary to save him/herself
- Must be honest beliefs and objectively reasonable in light of surrounding circumstances (MPC - subjective)
- Not available to one who provokes a conflict or is the aggressor in it
- Mere words do not constitute provocation
- If precipitated the altercation but thereafter withdrew from it in good faith and informed other by words or act,
then can use deadly force to save oneself from imminent death or grave bodily harm
- Common Law – No deadly force if could safely retreat
- American Majority – no duty to retreat – force okay if reasonably necessary to save oneself
- Exception to Retreat Rule:
o If alternative would be perilous to him or her (not in retrospect)
o Castle Doctrine – Normally do not have to retreat from one’s own home (Exception – unavailable to one
who provokes or stimulates the conflict)
“Stand Your Ground”
- No duty to retreat when a person is not engaged in any unlawful activity and confronted with force or threat of
- “Meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent
death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.”
Batter Spouse Syndrome (Bonner v. State)
Batter women is or has been in an intimate relationship with a man who repeatedly subjects or subjected her to
forceful physical and/or psychological abuse – should have allowed expert testimony on subject
Defense of Others and Property
Common Law
- Limited by Relationship
- Act at peril rule (alter ego rule) – intervenor could only use force if third party was in fact justified to use the
More Modern Approach
- Reasonable person in actor’s position – is it necessity?
- Would a reasonable person believe it was justified?
- MPC – rejects act at peril rule
Defense of property & habitation
- CL – never permitted for property, may be permitted in certain circumstances for habitation
- Never deadly force to protect property
- Habitation may be different – castle
- Was it property or self-defense?
Arrest (State v. Johnson)
Officer can use reasonable force to arrest
Restrictions on use of deadly force
o CL – deadly force to prevent felon from escaping
o Today – Tenn v. Garner – found it improper to kill fleeing burglary suspect
Necessity and Duress – Chapter Seventeen
Initial Distinction – outside forces is necessity and duress is human forces
Today – distinctions often blurred, defendants argue both
- Both necessity and duress can be affirmative defenses
Necessity/Choice of Evils (People v. Fontes)
Common Law
1. “Emergency measure to avoid imminent danger” - not one that is debatable or speculative
2. Action taken is proportional to injury being avoided
3. No reasonable alternative which will be effective in abating the danger, and
4. Causal Link between defendant’s conduct and the harm seeking to abate
Defense Does Not Apply
- Legislature precludes
- Accused causes the harm
- Some courts will not allow it with economic harm
MPC – Omits Immediacy Requirement
Civil Disobedience (U.S. v. Maxwell)
Direct – Violating a Law that is the Object of a Protest
Indirect – Violating a Law that is not the Object of the Protest
Duress (State v. Harvill)
Common Law
- Coerced act
- By a threat of imminent death of serious bodily injury
- Examples of when might not be allowed: when it is a future harm, economic harm or murder
MPC – Imminence not required – can be used with homicide
Insanity and Diminished Capacity – Chapter Nineteen
Insanity – time of crime
Incompetency – at time of trial – consult with attorney & understanding proceedings against you
- Placed in facility till competent to stand trial
Standard of Review
- Some – proof beyond a reasonable doubt
- Clear and convincing evidence or preponderance of the evidence
- Is it an affirmative defense?
- Is there a separate verdict for guilty but mentally ill? Some states have gone to
Deific Decree – similar to insanity, knows difference between right and wrong but believes was ordered by GOD
- CL – some have instructions – insanity or not?
Competency to Stand Trial (Medina v. California)
It is usually a pretrial determination in which a court ascertains if the accused
(a) Has the capacity to consult with his or her attorney “with a reasonable degree of understanding of the
proceedings,” and
(b) Whether the accused understand the proceedings against him or her
Premised upon the requirement of due process
Many have abolished insanity
Insanity Tests
- Must have defect of the mind – four major tests
- M’Naghten – cognitive test
o Mental disease?
o Does he know nature and quality?
o Does he know it is wrong?
- Irresistible impulse – volition test – can they control their conduct?
- Durnham – not used anymore – was crime result or product of your mental disease or defect – excluded criminal
- ALI – MPC – combination of M’Naughten and Irresistible impulse test
Diminished Capacity (People v. Carpenter)
Negating the Mens Rea – some states:
o Limited use to murder prosecutions only
o Limited use to Specific intent crimes only
o Not a defense
- Partial Responsibility – only recognized by a few states and for murder only and to mitigate murder to
- MPC – Murder to Manslaughter – Extreme Mental or Emotional Disturbance
Intoxication – Chapter Twenty
Common Law – Voluntary intoxication is rarely excused – sometimes might get to insanity
- General intent crimes – never excuses
- Specific intent crimes - excuses
More Modern View
- In homicide – some states allow it to show no premeditation or deliberation – to reduce it to murder 2
- Some states – no felony murder if can’t form the intent for the felony
- Status or condition? – have they done the act?
- Intoxication can be a defense if it negates an element of the offense
- Pathological & intoxication not self-induced are affirmative defenses if the intoxication caused the actor to suffer
a mental condition comparable to insanity
Involuntary Intoxication (Miller v. Florida)
Is it voluntary or involuntary?
Could be an excuse for both general or specific intent crimes
o Coerced intoxication
o Intoxication by innocent mistake
o Intoxication unexpectedly from a prescribed medicine
o Pathological intoxication
MPC – Subjective and no imminence standard USUALLY