CLASS GRADE: A
MPC Criminal Law ATTACK Outline
1.
What was the crime?
a. Theft? Assault? Attempt? Bribery?
b. Homicide? : Murder? Manslaughter? Negligent homicide?
c. Are the 5 elements proven? (Voluntary act, social harm, mens rea, actual cause, proximate cause)
2. Interpreting the statute
a. Is the statute understandable or vague?
b. Was there mens rea in the statue? (2.02(3) If a statute does not have a mens rea, read recklessly into it, unless there is
some clear indication otherwise)
c. Strict liability statute? (Public welfare crimes, protecting public, restricted to violations and punishable by fines)
3. Actus Reus (Voluntary act + social harm) MPC 2.01
a. Was the act voluntary? Three components: 1) conduct (physical behavior), attendant circumstances (objective
condition that exists when D engages in conduct), and result (social harm)
b. Was it an omission? Was there a legal duty? (Relationship status, contractual duty, statute, voluntarily assumed)
4. Mens Rea MPC 2.02
a. Did the statutes say if it was purposefully (intentionally for ARS), knowingly, recklessly, or negligently?
i. Purposefully: conscious object with conduct and results (desire for a certain outcome)
ii. Knowingly: Conscious awareness that results practically certain to occur (indifference to a certain outcome)
iii. Recklessly: Consciously takes a substantial and unjustifiable risk of causing a specific harm.
iv. Negligence: Should have been aware of a substantial and unjustifiable risk.
b. If there is no mens rea, is this a strict liability crime? (ARS says yes)
c. Was there a mistake involved?
i. Is it a mistake of fact? D must prove by preponderance of evidence. (May only reduce to negligence)
ii. Mistake of law? (Belief that conduct does not legally constitute an offense) Slippery slope
d. Willful blindness? MPC 2.02(7)
5. Causation MPC 2.03
a. Was the defendant’s conduct the but-for cause (actual cause) of the harm?
b. Was the defendant’s conduct the proximate cause of the harm? (Culpability) Actual result within the purpose of the
actor? Actual result involve the same kind of injury or harm as that designed? See chart
i. Was there an intervening cause defendant can argue made the harm worse?
ii. Transferred intent doctrine? 2.03(2)(b)
iii. Apparent safety doctrine, voluntary human intervention, intended consequences, responsive intervening cause,
and coincidential intervening cause (Page 9)
6. Homicide MPC 210: abolishes the term “malice” ad the distinction between first and second degree murder. Three charges:
a. Murder:
i. Was the killing made purposely or knowingly? Yes? Murder
ii. Extreme reckless: Recklessly under circumstances manifesting extreme indifference to the value of human
life. Presumed extreme recklessness: The killing made in commission of another felony (rape, robbery,
kidnapping, burglary)? Still on prosecution to prove Yes? Murder
b. Manslaughter:
i. Was the killing made recklessly?
ii. Was the killing made under the influence of extreme mental or emotional disturbance?
c. Negligent Homicide
i. Was the killing made negligently?
ii. Under the ARS, was it made with premeditation? Was the killing a fetus?
7. Theft MPC 223
a. Was there a taking of property of another? Was it made purposefully?
8. Accomplices: Principal is graded based on the conduct, while the agent is graded based on his culpability. MPC 2.06
a. Was the help physical aide? (Actually being there and acting)
b. Was the help psychological? (Encouraging the defendant)
c. Did the accomplice have the same mens rea as the actor? What was his culpability?
d. Is there a relationship between the parties that could make the accomplice vicariously liable? (Employer)
e. Is the actor acting on behalf of a corporation in order to allow for corporate liability? MPC 2.07
9. Attempt MPC 5.01
a. Was there an attempt to do the act but the result was unsuccessful? Was it purposeful?
10. Assault MPC 211.1
a. Simple assault: P, K, R causes injury or negligently causes bodily injury with a deadly weapon
b. Aggravated assault: Causes “serious bodily injury” under circumstances manifesting extreme indifference to the value
of human life. OR Purposely or knowingly with a deadly weapon
11. Burglary MPC 221.1
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a. 1) Enters a building 2) With purpose to commit a crime. At night? Second degree felony
12. Defenses
a. Self-Defense MPC 3.04 Was the defendant acting in reasonable self-defense of himself?
i. Was the threat imminent or immediately necessary? Was the belief of the threat reasonable?
ii. Was the reaction proportional? Could of he retreated
b. Self-Defense of Others: MPC 3.05: Would of the defendant had the same right to self-defense?
c. Self-Defense of Property: MPC 3.06 Was there an invasion of property?
i. Did the defendant use deadly force? Was it proportional/justifiable?
d. Defense of Necessity: MPC 3.02
i. Was there a threat, usually from a natural force? (Stranded on a boat) Imminent injury?
ii. Was the evil sought to be avoided greater than that sought to be prevented by law?
iii. Did the defendant create the conditions of his own dilemma? IF so, no defense.
e. Defense of Duress: MPC 2.09
i. Was D coerced by unlawful force? Reasonable firmness in D’s situation
ii. Did D negligently or recklessly put himself in that situation? IF so, no defense.
f. Defense of Intoxication: MPC 2.08
i. Does intoxication take away an element of the offense? Was it self-induced?
g. Defense of Insanity: MPC 4.01 Lack of substantial capacity
i. Does D lack the substantial capacity to appreciate the criminality? (Know that he is wrong) or
ii. To conform his conduct to the requirements of the law (Does D think that society will view his actions as
wrong) (Under ARS – did he know that his conduct was wrong?)
iii. MPC focuses on appreciation, not merely knowledge (CL) Child may know he is pulling trigger, but does he
know how bad that is
h. Defenses NOT IN MPC
i. Was there an addiction to a substance?
ii. Was there any euthanasia?
13. Policies: Ambiguous situation? Look at policy
a. Beyond a reasonable doubt? Being absolutely certain you are guilty
b. Mistake of law/self-defense other things based on reasonable beliefs (reasonable person standard) Not allowing a
slippery slope/people setting their own standard
c. Are we putting away someone that is a danger to society?
d. Retributive justification: people get what they deserve
e. Utilitarianism: General and specific deterrence. People are rational calculators
f. Strict liability statutes: IS there a public welfare offense that should be protected?
g. Mistake: Cannot allow for slippery slope and people to set their own standards, Yet, legislators might make things more
clear. And judges and juries can usually spot unreasonable interpretation
h. Justification/Excuse: Was the act socially tolerable/benefits public? Was D morally blameworthy? (reasonable person)
14. Jury vs. Court
a. Proximate cause: not for jury
b. Jury instructions: IF you find that D acted with extreme indifference to human life? = murder
c. Burden of proof on prosecution to prove beyond a reasonable doubt
d. Jury: Homicide: Not whether killing is excused, but whether was there a reasonable explanation for being in that
emotional state?
MPC and ARS differences
 ARS uses intentionally, not purposefully
 ARS defines fetus as a person, MPC does not.
 ARS no duty to retreat, MPC yes
 ARS there is first and second degree murder
 They both have felony murder, but enumerated crimes are different are ARS (BROAD) Selling marijuana
 Wording of theft might be different?
 Under the ARS, if a statute does not have a mens rea specified, the statute is read as being a strict
liability offense
 A.R.S. Requires that the defense proves insanity by clear and convincing evidence.
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I.
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INTRODUCTION
Crime in general: Actus reus + mens rea + Causation – Defenses
Burden of proof: Beyond a reasonable doubt. Prosecution has burden. Jury Instructions: proof that
leaves you firmly convinced that the allegation occurred. If there is a real possibility that the allegation did
not occur than you have to give the benefit of the doubt and hold that it did not happen.
o Policy: In order to ensure that innocent people do not go to prison, we would rather make a guilty
person go free than otherwise. We want to be absolutely sure you are guilty before you are punished
Owens v. State: (Guy found drunk sleeping in car) R: A conviction based upon circumstantial evidence
alone, may be sustained if the circumstances are inconsistent with any reasonable hypothesis of innocence.
The Queen v. Dudley & Stephens: (People ate man on boat): A person may be punished and convicted of
murder, despite killing out of necessity. (slippery slope)
People v. Superior Court (Du): The amount of punishment imposed for voluntary manslaughter
depends on the facts of each case. Rule: Probation is a permissible punishment in unusual cases.
United States v. Gementera: R: The death penalty is a grossly disproportionate and excessive punishment
for the crime of raping an adult woman, prohibited by the Eighth Amendment.
Ewing v. California: (D golf clubs, 3 strikes law) The Eighth Amendment does not require strict
proportionality between the crime and sentence, but rather, it only prohibits extreme sentences that are
grossly disproportionate to the crime.
II.
POLICIES:
Retributive Justification: People should get what they deserve. When people commit moral wrongs, they deserve
to be punished. Basis:
 Humans have free will. Person has chosen to take something from society when they commit a crime thus
they owe a debt to society. Punishment is the repayment of that debt.
 People burden themselves in society by not committing crimes. We give up freedom to not harm others. A
criminal gets the benefits of everyone else not committing crime and does not reciprocate by committing
crime. Thus, we punish to bring the criminal back into equilibrium with us.
 We would never punish an innocent person and only punish proportionately to the crime.
Utilitarianism:
 All forms of pain are bad. Thus, society should punish (impose pain) if future crime or pain will be reduced
by a greater degree than what was imposed. People are rational calculators: criminal wants to commit crime
because it brings pleasure, but will think about the pain that punishment will be imposed.
 Types of Utilitarianism:
o General Deterrence:
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Punish not because you want to deter one person, but you use that person as an object lesson
for the rest of society. “Don’t do what this guy did”.
o Specific Deterrence:
 Goal is to deter the specific criminal from committing that crime again in two ways:
 “By Incapacitation”- since criminal is in jail, he cannot commit crime.
 “By intimidation” – criminal will remember pain he suffered and will think twice.
o Rehabilitation:
 Find out why crime was committed and try to fix the problem that caused the crime.
Mixed Theory Of Punishment: Punishment purpose is utilitarian: to reduce crime. But this purpose must be
pursued within retribution’s limits: can’t punish disproportionately.
Principle of Legality:
 We don’t punish someone because he is immoral or dangerous. We only punish if the act is a crime.
o Ex: Keeler case- guy punched his wife in the stomach, Fetus was not defined as a human thus he
could not be charged with murder.
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III.
Modern Role of Criminal Statutes
Criminal Law in AZ: all statutes
50 percent chance juries and judges agree on decision
Three principles of statutes:
o Should be understandable to reasonable law-abiding persons.
o Should be crafted so that they do not “delegate basic policy matters to policemen, judges, and juries
for resolution on an ad hoc and subjective basis”
o Rule of lenity: Judicial interpretation of ambiguous statutes should be “be biased in favor of the
accused.”
ARS 13-103: Abolition of common law offenses and affirmative defenses
 All common law offenses and affirmative defenses are abolished.
 Affirmative defenses are excuse defenses. Different from justification defenses or trying to negate an
element of a crime.
ARS 13-104: Rule of construction:
 The general rule that a penal statute is to be strictly construed does not apply to this title, but the provisions
herein must be construed according to the fair meaning of their terms to promote justice.
Commonwealth v. Mochan: R: When a criminal statute does not prohibit the conduct alleged expressly, conduct
may nevertheless be found to be illegal if a criminal statutory provision permits punishment of common law
offenses.
Keeler v. Superior Court: (Husband kicks pregnant wife, kills fetus):
 R: There is a violation of the Due Process class when a court construes a criminal statute contrary to the
legislative intent and applies its expanded definition of the statute retroactively to a person’s conduct. D
is entitled to the benefit of every reasonable doubt as to the true interpretation of words or the
construction of language used in the statute D not guilty, court does not accept viable fetus arg.
 Policy: Penal statutes will not be made to reach beyond their plain intent, they include only those
offenses coming clearly from the plain language.
 Policy: Would deny due process: D was not given fair notice based on statutes
In re banks: (Peeping Tom Statute sufficiently definite and not overbroad):
 RULE: Where a statute is susceptible to two interpretations: the Court should adopt the interpretation
resulting in a finding of constitutionality.
Desertain v. City of L.A.: (Use of streets/parking lots as habitation)
 RULE: A statute fails under the DPC clause if its is so vague and standard-less that it leaves the public
uncertain as to the conduct it prohibits.
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APP: We will not allow there to be selective prevention of the homeless and poor from using their
vehicles for activities many other citizens also conduct in their cars
Yates v. United States: (fish as a tangible object)
 RULE: The plainness or ambiguity of statutory language is determined not only by reference to the
language itself, but also by the specific context in which that language is used, and the broader context of
the statute as a whole.
 APP: IF congress meant to make statute 1519 an all-encompassing ban on the spoliation of evidence, one
would have expected a clearer indication of that intent. Language too overbroad to make tangible object
any physical object.
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ELEMENTS OF A CRIME:
 Actus Reus: Conduct including a voluntary act or an omission to act when there was a duty to act,
combined with causing a social harm.
 Mens rea
 Actual and proximate cause
IV.
ACTUS REUS: the physical or external part of the crime (objective)
Definition: Actus refers to the voluntary physical movement in the sense of the conduct and reus expresses the
fact that this conduct results in a certain prescribed social harm.
MODEL PENAL CODE
MPC Section 2.1 Requirement of a voluntary act (Page 947)
1) A person is not guilty of an offense unless his liability is based on conduct, which includes a voluntary act
or the omission to perform an act of which he is physically capable.
 An omission to act will only count if there was a duty.
2) Involuntary acts include reflex, convulsion, movements during sleep or hypnosis, unconscious
4) Possession is an act, within the meaning of this Section, if the possessor knowingly procured or received
the thing possessed or was aware of his control thereof for a sufficient period to have been able to
terminate his possession.
MPC Section 1.13
 2) “act” or “action” means a bodily movement whether voluntary or involuntary;
 3) “voluntary” has the meaning specified in 2.01
 9) Breaks down actus reus into three components: conduct (physical behavior), attendant circumstances
(objective condition that exists when D engages in conduct) ,and result (consequence/social harm)
ARS 13-201, Requirements for criminal liability
 The minimum requirement for criminal liability is the performance by a person of conduct, which includes
a voluntary act or the omission to perform a duty. (SAME)
COMMON LAW: Actus reus: voluntary act + social harm
1. Rule: Crime requires either a voluntary physical act or an omission when there is a legal duty to act.
2. Voluntary vs. Involuntary: Some courts say no punishment if acts are not voluntary.
a. A gun to the head forced to do something, still qualifies as a voluntary act
A. Martin v. State: (Voluntary act): Any person who while drunk appears in a public place where at least one
person is present will be fined for indecent conduct. BUT assumes person entered voluntary. Person not
guilty because he was in public involuntarily and thus no actus reus
B. State v. Utter: (Drunk father with condition stabs son) R: A voluntary act requires the consent of the
actor’s will. The absence of consciousness not only precludes the existence of any specific mental state,
but also excludes the possibility of a voluntary act without which there can be no criminal liability.
o Policy: Unconsciousness is not a valid defense if the person voluntary put himself in that
condition (drunk)
3. Omissions (“Negative Acts”) An omission to act will only count if there was a duty.
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Situations that pose a legal duty: SCRAP statute, relationship status (parent child, marriage, employer
employee) contractual duty (babysitter), voluntarily assumed the risk, person creates a risk of harm to
another, Good Samaritan (some)
A. People v. Beardsley: (Drunk male fails to assists female friend who drank/drugs)
 R: A person may be criminally liable if he fails to perform a legal duty and his omission causes harm.
The duty neglected must be a LEGAL duty, and not a mere moral obligation.
 Case: Woman voluntarily put herself in that position. No liability
B. Barber v. Superior Court: Removal of life support equipment from a comatose patient who is unlikely to
recover is not an affirmative act, but an act of omission, that, if in accord with the patient’s or surrogate’s
wishes, does not give rise to criminal liability. TEST of Proportionality: The burdens of the treatment
versus the chance of survival.
 H: Must provide treatment in immediate aftermath of cardio arrest, but no duty once it has shown to be
ineffective. Doctors NOT guilty.
SOCIAL HARM: harm to the whole society, not just the victim (people’s fear of going outside)
 Look at the express words of the statute to see the external act we want to prvent
 Example: burglary: breaking and entering of a dwelling at night
Results vs. Conduct Crime:
o Results: purpose is to prevent a harmful result (murder)
o Conduct: defined by the conduct, no ultimate result is required to be guilty of the crime. Ex: drunk
driving- no need to crash or hurt someone to be guilty.
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V.
MENS REA: the mental or internal ingredient (subjective)
Definition: A guilty mild, a criminal intent, a guilty or wrongful purpose.
Concept: A socially harmful act is not a crime unless it is accompanied by evil intent (Exception: strict liability)
MODEL PENAL CODE
MPC 2.02: Four categories:
(1) Minimum requirements of culpability. Except as provided is section 2.05, a person is not guilty of an offense
unless he acted purposely, knowingly, recklessly, or negligently, as the law may require, with respect to each
material offense.
1. Purposefully – conscious object with conduct and results. Must be aware of the existence or believe or
hope that such circumstances do exist.
2. Knowledge – Conscious awareness that results are practically certain to occur.
3. Recklessness – Consciously takes a substantial and unjustifiable risk of causing a specific harm.
a. Unjustified Risk: a reasonably person in the actor’s shoes would not have taken that risk. We
look at various factors to see what a reasonable person would do.
i. Gravity of harm and probability of harm occurring which is balanced against the reason
why the risk was taken. Ex: speeding to a party-reckless; speeding to hospital; not
reckless
b. Substantial: has to be completely unreasonable behavior, grossly outside the norm.
c. Consciously: must be aware of the risk being taken.
Negligence – Should have been aware of a substantial and unjustifiable risk. lack of awareness Subjective test.
(reasonable person standard)(requires gross negligence)
ARS 13-202. Construction of statutes with respect to culpability
 If no mens rea defined, crime is strict liability, unless conduct necessarily involves a culpable mental state.
 Uses MPC terms and means of substituting mens rea (intentionally, knowingly, recklessly can equal
negligence). Uses intentionally instead of purposefully.
Intentionally: CL TERM: Purposefully OR knowingly
A. NATURE OF CULPABILITY (MENS REA) MPC 2.02
1. 2.02(3) – if a statute does not have a mens rea, read recklessly into it (unless there is some clear
indication otherwise)
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2. Distinguishes between elements and material elements of a statute
3. Elemental analysis – when reading a criminal statute, answer the questions:
a. What are the actions?
b. What are the circumstances required?
c. What is the required result?
d. Are there other collateral purposes?
e. What is the minimum mens rea required for each part?
COMMON LAW: Two concepts:
 Culpability meaning of mens rea (Broad): D is guilty of a crime if she commits the social harm of the
offense with any morally blameworthy state of mind (intentionally or recklessly)
1. Elemental meaning: (Narrow): a person is only guilty if she intentionally does the specifc crime. Has the
requisite mens been proven for each actus reus element of the crime?
Regina v. Cunningham: A showing of either intentional or reckless conduct satisfies the mens rea requirement; a
showing of malice or wickedness will not suffice.
People v. Conley (party, fight, wine bottle) R: A person acts with intent if it is his conscious object to cause a
social harm or he knows that such harm is almost certain to occur as a result of his conduct.
 Case: The surrounding circumstances, the use of a bottle, the absence of warning and the force of the blow
are facts from which the jury could reasonably infer the intent to cause permanent disability.
Lenity doctrine: if the statute is unclear, it should be interpreted in favor of the defendant
INTENT
 The term intent does not only include proving those results that are the conscious objective of the actor
(what he wants to occur) but also those results that the actor knows are virtually certain to occur from
his conduct, even if he does not want them to arise.
 Intent cannot be presumed, must be proven. Can be proven through an inference (intent through natural and
probable consequences of action) but cannot be presumed because it violates due process
 Transferred intent doctrine: Does not matter if you intended to cause harm to one person, and
accidentally forced that same harm upon another. Justice is served by punished someone for a crime of the
same seriousness as the one he tried to commit against his intended victim
General Intent v. Specific Intent
SAK’S FAV INTERPRETATION:
 Specific intent crimes are those that are satisfied by either purpose or knowledge
 General intent crimes are satisfied by recklessness or negligence
General Interpretation
 Specific Intent Crime: Three Kinds:
o 1) Intention to commit some future act, separate from the actus reus of the offense (possession with
intent to sell)
o 2) Require proof of a special motive or purpose for committing the actus reus. (contact with intent
to cause humiliation)
o 3) Require proof of actor’s awareness of an attendant circumstance (sale of contraband to persons
known to be under age 18).
General Intent Crime:
 No specific mens rea requirement, only that morally blameworthy state of mind existed
 Ex: rape—sexual intercourse by a male with a female not his wife w/ no consent.
VERSUS MPC 2.02 The prosecutor must prove that D committed each material element of the charged offense
with the particular state of mind required in the definition of that crime (not just morally blameworthy matter)
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State v. Nations: Missouri Court ruled that a requirement that a person commit a certain act “knowingly”
with respect to a particular fact will not be satisfied unless the person had actual knowledge of the
existence of the particular fact.
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Court narrowly applied MPC 2.07, which says that if the individual is aware of a high probability
of the existence of an aspect of the crime, that can be considered knowledge.
Willful blindness: (Court did not recognize this): D cannot escape the reach of statutes by deliberately shielding
themselves from clear evidence of critical facts that are strongly suggested by the circumstances.
 Statute Interpretation Rule: all crimes (except strict liability) must have a mens rea thus courts will infer
a mens rea requirement into any crime.
o Unless the legislature clearly stated that it is strict liability or it is a public welfare offense.
Flores-Figueroa v. United States (Problems in statutory interpretation) Gov argued that the term “knowingly” did
not apply to one part of the statute RULE: Unless a contrary purpose is established, if the mens rea appears at the
beginning of the statute, it applies to the rest of the requirements of the statute.
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B.
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a)
STRICT LIABILITY: do not require a mens rea (statutory rape, drug manufacturer wrong name on label)
Strict liability statutes are public welfare offenses to protect the health, safety, and welfare of the public
Public welfare offenses: Conduct that is not morally wrongful, but still a crime (speeding0
Usually the punishment is relatively small fine and does not involve prison sentences.
Morisette v. United States: Intent is not always a necessary element for a crime (expections)
 Case: Guy guilty even though he did not know he was stealing government property. He knew he
possessed a particular dangerous type of weapon and should have been aware.
b) Staples v. United States: (Federal statute requiring registration of automatic weapons)
 R: If a federal crime does not expressly state a mens rea requirement, the determination of the
necessary mental state is made by construing the statute itself and by examining the intent of Congress.
(Must construe statute in light of CL)
 Intent of Congress: Congress did not intend for a 10-year imprisonment to a guy that did not know his
gun was that dangerous. Narrow Holding: Guy not guilty. No criteria for establishing which crimes
need a mental element: based on facts of case
c) Garnett v. State: Mistake of age is not a defense to the strict liability crime of statutory rape.
 Maryland’s second degree statute says no mens rea or knowledge element is required
MISTAKE (MENS REA) has to be actual and reasonable
COMMON LAW
 Mistake of Fact: common law acquits persons who, because of mistake of fact, commit what turn out to be
crimes. However, if defendant makes an honest, but unreasonable mistake, he is punished for the crime as
though he had made no mistake at all
o People v. Navarro: (Guy stole beams he thought were abandoned) R: Even an unreasonable mistake
will be a defense to a specific intent crime if it negates the specific mens rea requirement. Doesn’t
matter if objectively reasonable or unreasonable (Subjective element)
 Mistake of law: Ignorance of law is generally not an excuse, however, mistake of law, particularly one
generated by reliance on what appears to be a reasonable source, such as a court opinion, government
official, should be granted, since the defendant had not acted in a morally blameworthy way.
o People v. Marrero: (peace officer, unlawfully carried a gun) R: An erroneous interpretation of the
law does not excuse violation of the law, even where the interpretation is reasonable.
o Ignorance of the law is no excuse. Policy: Allowing Marrero (D) this arguably “reasonable”
exception would make mistake of law a generally applied or available defense, rather than an
unusual exception. Slippery slope: mistakes of the law would be encouraged. Must serve justice and
avoid game playing.
Effect of “Reasonable” Interpretation (Problem of Mistake of Law)
 Marrero argues that the statute is so ambiguous that his interpretation is completely reasonable. The
majority possibly exaggerates the effect an acquittal would have. For most statutes, the window of
“reasonable” interpretation is fairly narrow, and judges and juries could be trusted to spot the
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occasional “unreasonable” interpretation. A positive effect of allowing a broader mistake-of-law
defense would be that, where a law allows a wide array of reasonable interpretations, legislators might
make a better effort to ensure that legislation is clear and understandable.
a) Cheek v. United States: (guy stopped filing tax returns in reliance on a group who told them they were
unconstitutional) An honest mistake of law, either reasonable or unreasonable, will be a defense to a
crime if it negates the specific intent required for conviction.
 Reasoning: The more unreasonable the beliefs are, the more the jury will consider them to be nothing
more than a simple disagreement with known legal duties imposed by the tax laws and will find that the
government has carried its burden of proving knowledge.
 Dissent: I fear that the Court’s decision today will encourage taxpayers to cling to frivolous views of
the law in the hope of convincing a jury of their sincerity.
MPC
MPC 2.04 Ignorance or Mistake
1. Ignorance or mistake as to a matter of fact or law is a defense if:
a) The ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to
establish a material element of the offense; or
 No distinction between general and specific intent. Can negate mens rea.
 Ex: a hunter shoots a human instead of a deer and is charged with murder which requires purposely to kill
another. Mistake would negate the crime.
 Mistake of fact would reduce the degree of the offense to that of what the offense would have been had the
facts been as the criminal thought they were.
 Legal wrong doctrine : If a mistake of fact would exonerate, but if the facts as viewed by the D still
constituted an actual but less serious crime, he still may be guilty of the more serious crime.
ARS 13-204. Effect of ignorance or mistake upon criminal liability:
 Mistake of fact only relieves if negates mens rea or supports a defense or justification.
OVERVIEW: it has to be actual and reasonable. In some statutes it is an all or nothing thing. (New York)
According to the MPC it depends on the mens rea, however, if it is a mistake than it would probably be viewed as
negligence (would allow for a lower punishment).
CAUSATION MPC 2.03
1. Cause in Fact (But for cause)
 Test: if the result would not have happened in the absence of the defendant’s conduct
 Where two injuries have been inflicted, the latter injury “causes” death only if it accelerates
 This tends to be too broad, the cone of causation
 Used in both MPC and CL
 Oxendine v. State: The court could not establish cause in fact for the dad beating his son (there was
ongoing beatings and the girlfriend had beat the kid prior)
2. PROXIMATE CAUSE: comes into play when there is an intervening act (narrower than torts)
 Substantial Factor test: the defendant’s conduct has to be a substantial factor in bringing about the said
result
 (Which causes are fair or reasonable or just) – 6 factors to look at)
a) Does the cause play an important part in the result?
b) Is the result foreseeable?
c) Was the result what the defendant intended?
d) Have dangerous forces come to rest? (apparent safety) (car coming to a rest on the side of the road
following an accident and then someone else subsequently acting)
e) Did omissions by the victim or other parties play a role?
f) Where there actions by free human beings?
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 Dependent intervening event (There was a reasonably foreseeable sequence of events)
 Independent intervening event (There was a separate free will force that created new danger)
g) Must prove but for and proximate cause. Independent Intervening event? No proximate cause.
People v. Rideout: For a defendant’s conduct to constitute the proximate cause of an injury, the victim’s injury
must be a direct and natural result of the defendant’s actions. TEST: Typical linchpin of whether there is an
intervening cause is if it was foreseeable based on an objective standard of reasonableness.
Apparent-safety doctrine: Victim was able to get out of harm’s way and to a relatively safe position at the side of
the road. Thus, if an other car comes and hits him, not the fault of first driver
Voluntary human intervention: Victim made the voluntary decision to return to the vehicle on the roadway,
despite the danger that it posed. No crim liability if free, voluntary and consciously informed human intervention.
“Intended consequences” doctrine: if an intentional wrongdoer got what he wanted, no matter in what matter,
they are guilty. Ex: Woman wants to kill, and leaves gun at table, her child uses to shoot man
Responsive Intervening Cause A force that exists in response to the defendant’s conduct.
 Example: doctor performing surgergy. Only liable if response is abnormal
Coincidental Intervening Cause: Already existed, just defendant put victim in a position where the consequence
can occur. Original actor is only liable if coincidence is reasonably foreseeable. Battered victim drives to doctor
for medical car, hit by lighting. Not foreseeable
Velazquez v. State: (drag-racing incident, racer lost control)
 POLICY: Court has declined to impose criminal liability where the prohibited result of D’s conduct is
beyond the scope of any fair assessment of the danger created by D’s conduct or where it would be unjust
to impose liability based on fairness and policy considerations. No proximate cause: D killed himself by
his own voluntary reckless driving. Other driver not guilty.
State v. Rose (driver, negligent manslaughter charge) R: Elements of a crime must occur concurrently in order to
impose criminal liability for that crime. PROCEDURE: In a criminal case, in passing on a motion for a directed
verdict, full credibility must be given to the state’s evidence, it must be viewed in a light most favorable to the
state, and draw from reasonable inference consistent with guilt. However, there must be sufficient evidence to
establish guilt beyond a reasonable doubt or directed verdict not granted.
MPC 2.03(2) and (3) p. 949:
 Culpability instead of calling it proximate cause.
1) What was the actual result?
o 2) Was the actual result “within the purpose of the actor?
 Yes proximate cause;
 No question 3
o 3) Did the “actual result involve the same kind of injury or harm as that designed”?
 No no proximate cause
 Yes question 4
o 4) Was the “actual result too remote or accidental in its occurrence to have a just bearing on the
actor’s liability?”
 Yes no proximate cause
 No is a proximate cause
 ARS 13-203 (B and C) Proximate cause-same as MPC.
CRIMINAL HOMICIDE OVERVIEW (Common law in green, Model Penal Code in red)
Common Law Category
INTENDED KILLINGS
NON-INTENDED KILLINGS
First Degree Murder
CL: Premeditation, deliberation, and CL: Statutory predicates of felony
willfulness
murder
MPC: Purpose or knowingly
Second Degree Murder
CL: Intentional
CL: Depraved heart felony murder
MPC does not distinguish between
MPC: Purpose or knowingly
MPC: Recklessly under
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first and second degree murder
Manslaughter (Voluntary)
CL: Heat of passion
MPC: Extreme emotional or mental
disturbance
Manslaughter (Involuntary)
circumstances manifesting extreme
indifference to the value of human
life
CL: Heat of passion: Reckless
culpable negligence
MPC: EED or Reckless
CL: Culpable negligence
MPC: Criminal Negligence
Grades of Murder (COMMON LAW)
1. Was the killing a “murder” (was it done with malice aforethought and depraved mind? )
2. If so, was it premeditated, deliberate, and willful (premeditation in an instant)
3. Yes = first degree
4. No = second degree
Common Law
Murder (Malice aforethought)
Intent to Kill
Premeditation, Deliberation (and
Willfulness M1)
Death Penalty eligible or Not
Impulsive (M2)
Intent to cause serious bodily arm
Abandoned & Malignant heart (extreme
recklessness)
Felony murder (strict liability)(In some
jurisdictions could be 1st degree murder)
Manslaughter
Voluntary (provocation & intent)
Involuntary (unintended, risk)
Negligent Homicide
“Gross” and “Criminal” negligence
Model Penal Code
Murder 210.2
Purpose or knowingly
Knowledge or recklessness with extreme
indifference
Extreme Indifference to the value of human
life, Recklessness
Extreme Indifference, recklessness,
committing a felony can be presumed to be
extreme recklessness
Manslaughter 210.3
Purpose & extreme emotional disturbance
Reckless
Negligent Homicide 210.4
Negligence 2.02(2)(d) gross deviation
(should have been aware that actions were
creating a substantial and unjustifiable risk)
§ 210.5. Causing or Aiding Suicide.
(1) Causing Suicide as Criminal Homicide. A person may be convicted of criminal homicide for causing another
to commit suicide only if he purposely causes such suicide by force, duress or deception.
 Typically, the only Actus Reus in a homicide statute is causing the death of another person.
COMMON LAW
Murder: killing of a human being by another human being. Two forms: murder and manslaughter
 Human being: Under CL, a human being is a person born alive, thus no fetus. Although some states have
recognized fetus. MPC says born alive
 When is a person dead? CL: when there is a permanent session of breathing and heart beating
People v. Eulo: (person pronounced brain dead, subsequently died at hospital) Extended CL
 RULE: When a person is brain dead, he is dead for purposes of assigning criminal liability for homicide.
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REASONING: When the legislature has failed to assign definition to a statutory term, the courts will
generally construe that term according to “its ordinary and accepted meaning as it was understood at the
time”
Mens rea: Under CL, Unlawful killing with “malice aforethought) Four states of mind that qualify:
1. Intended to kill a human being
2. Intends to inflict grievous bodily injury
3. Acting with abandoned and malignant heart
4. Felony murder rule: kills another during the commission of a felony.

A. Intentional Killing
 Why not punish all killing? Not actual dangers to society. However, we all are put in bad situations. We
should be able to react accordingly
 If the jury is persuaded that you had a severe emotional disturbance that is reasonably justified, then they
can find for manslaughter and not murder.
 Very dependent on the facts of each case. D must lose temper but also put under the reasonable person
standard (objective test)
1) Premeditation-Deliberation
 Motive – the criminal law is not interested in why an individual killed another person (mercy killing or
killing out of malice). Rather, it looks at the intent and the surrounding factors, for example, was there
planning and deliberation (common law 1st degree murder) or not (second degree), or if there was
sufficient provocation and intent (manslaughter).
a. State v. Guthrie: (Coworker stabbed another for making fun of him) R: Murder in the first degree consists of an
intentional, deliberate, and premeditated killing, which means that the killing occurs after a period of time for
prior consideration.Case by case: The requisite time varies with the circumstances of each case.
 TEST: Any interval of time between the forming of the intent to kill and the execution of that intent that is
of sufficient duration for the accused to be fully conscious of what he intended is sufficient to support a
conviction for first-degree murder.
b. Midgett v. State: (Father abused kid for long period of time, one beating resulted in child’s death)
 R: Evidence of intentional child abuse, which eventually resulted in the child’s death, is not sufficient by
itself to show the premeditated or deliberate intent to kill necessary to sustain a conviction for murder in
the first degree.
 CASE: Insufficient evidence for first degree. Overrules jury verdict. He had abused the child before
without the child dying. Plus, he was drunk and enraged at the time.
 Aggravated Battery (Note): Some states have law that aggravated battery is still first-degree murder. BUT
this is not the law in this state
 Dissent: This is the case of a child who died as a result of being subjected to deliberate, methodical,
intentional and severe abuse. Thus, jury could have easily found that the father was trying to kill the child
for months through his constant beating.
c. State v. Forrest: (Boy shoots his father who is terminally ill) R: Killing someone to prevent his further suffering
is still murder in the first degree, if it is willful, deliberate, and premeditated.
2) Manslaughter: Provocation
Manslaughter: An unlawful homicide without malice aforethought
Voluntary manslaughter: Intentional killing done “on a sudden” in the “heat of passion” after adequate
provocation
Involuntary manslaughter: either “merely” reckless (but not the result of a “depraved mind”) or “criminally
negligent” killing.
Rule of Provocation:
1. There must have been adequate provocation
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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 casual connection between the provocation, the passion, and the fatal act.
Four Situations recognized for adequate provocation:
1. Discovering your spouse having sex with someone else
2. Being engaged in mutual combat
3. Having been subjected to assault and batter by the victim
4. Discovering injury to a family relative or third party
Legal Reasoning
 Difference between CL 2nd degree murder and manslaughter is “adequate” provocation.
 When we ask about the Reasonable person, we are looking at some group of people that have the kind of
characteristics of the defendant (that is the objective side of the standard)
 The courts do not allow for the defense when it is highly peculiar to the defendant but when it is
understandable. When it is familiar (happens with some frequency)
i.
The law would say that we are taking into account the frailties of human nature
ii.
Criticism is that we are rewarding people for not having self-control.
a) Girouard v. State: (Husband stabbed wife 19 times after threats to leave him)
 R: Words alone are not adequate provocation to provoke a reasonable person to kill in the heat of
passion, thus they are not enough to mitigate murder to manslaughter.
 Policy: In order for provocation to be adequate it must be capable of causing a reasonable man to act
from passion rather than reason.
b) Dressler Theories
 Policy for heat of passion: D should not be punished because he is not morally blameworthy
 Adultery: “The highest invasion of a husband’s property”
 Provocation Defense: Defending an ordinary person in the circumstances, even a law-abiding person
of reasonable temperament, who might become sufficiently upset by the provocation and suffer such
an emotional outburst as to experience substantial impairment of his capacity for self-control.
c) People v. Cassasa: (stalker killed woman, claimed extreme emotional disturbance)
 R: The test of whether the extreme emotional disturbance of the killer had a reasonable explanation or
excuse depends on a reasonable evaluation of the external circumstances that the killer believed he
was facing and not on the killer’s personal point of view.
 Test: Ultimately objective. Courts still require a level of reasonableness in the response, severe
emotional disturbance or not.
 Case: Jury found that the murder was result of D’s malevolence rather than an understandable human
response deserving of mercy.
3) Unintentional Killing
Involuntary Manslaughter (Murder): “Gross deviations” from the standard of care used by an ordinary
person where the neg conduct can reasonably be said to manifest a “a wanton or reckless” disregard of
human life
a) People v. Knoller: (dogs killed woman, dog owner charged with second degree murder)
 Malice: To satisfy the elements of second-degree murder, malice requires a defendant’s awareness of
the risk of death to another.
o Express malice: a deliberate intent to take away the life of a fellow creature
o Implied malice: When no considerable provocation appears, or when the circumstances
attending the killing show an abandoned and malignant heart.
 Holding: Trial court held D guilty because she subjectively knows that the conduct he or she is about to
engage in has a high probability of death to another human being. BUT
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o Objective component: “High probability of death”
o Subjective component: Acted with antisocial motive, with wanton disregard for human life.
b) Walker v. Superior Court: – a father did not give treatment to a kid because it was against their religion.
The child died.
 Rule: A showing of ordinary negligence may be sufficient to support a conviction for manslaughter.
The concept of ordinary negligence requires a failure to exercise the “ordinary caution” necessary
to make out the defense of excusable homicide.
 Ordinary caution is the kind of caution that a man of reasonable prudence would exercise under the
same or similar conditions
 Question: What are the limits to determining reasonableness?
4) Unintentional Killing: The Felony Murder Rule
 Doctrine: A commission of a felony that results in a death equals murder
 Example: A seller of liquor in violation of a statutory felony becomes a murderer if his purchaser falls
asleep on the way home and dies of exposure.
 Most states still have some kind of felony murder, but it typically limits it to inherently dangerous
crimes.
 Limitations on Felony Murder (NOT THE LAW OF OUR LAND)
o Most states have attempted to limit the rule’s potential harshness either by limiting the scope of
its operation or by providing affirmative defenses
o The “inherently dangerous felony” limitation – courts have attempted to reduce the scope of
the felony murder doctrine in the way of looking at only inherently dangerous felonies
o Independent felony (or merger) limitation – it has to be separate from a different kind of
murder, like assault leading to 2nd degree murder, etc.
o Misdemeanor manslaughter – although not as popular, there are some states that have a
misdemeanor manslaughter punishment.
 Policies Supporting Felony Murder Rule
o Rational Classification and Proportional Grading of Offenses
o Condemnation: Reaffirming the Sanctity of Human Life
o Deterrence of felonies
o Clear and Unambiguous Definition of Offenses and Sentence Consequences
c) People v. Fuller: (Two guys, high speed chase, accidental death of another driver)
 Rule: The felony-murder rule imposes strict liability for deaths caused by the commission of one of
the enumerated felonies, which include burglary, even when the death is accidental
 Court was bound by PR or would not have applied felony-murder rule.
 If the doors to the vehicles in this case had been unlocked so that the tire thieves did not have to break
into the cars, then they could only have been charged with theft (probably a misdemeanor) and the
felony-murder rule would not have applied.
210.1. Criminal Homicide.
(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.
Section 210 of the Code abolishes both the term “malice” and the distinction between first and second
degree murder. It characterizes as “death eligible” all killers who cause the death of human being:
 Purposely
 Knowingly, or
 Recklessly under circumstances manifesting extreme indifference to the value of human life
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First two Encompasses “premeditated and deliberate”
Third category encompasses “depraved heart”
 Critical to notice that the Code’s definition of reckless would require that the defendant subjectively
recognize the risk of death
 Circumstances manifesting extreme indifference
 If D is merely reckless, the death is manslaughter
MPC 210.3 (p.979):
 Does not distinguish between voluntary/involuntary, just manslaughter
 Any MPC murder (purposely or knowingly or recklessness manifesting extreme indifference to human life)
which occurs as result of “extreme mental or emotional disturbance for which there is a reasonable
explanation or excuse.”
 No heat of passion, thus person can kill later instead of within the moment.
 Words may be enough, not explicitly forbidden.
 Question for jury- not whether killing is excused, but whether there was a reasonable explanation for being
in that emotional state.
ARS 13-1103. Manslaughter
 Committing 2nd degree murder upon a sudden quarrel or heat of passion resulting from adequate
provocation.
 Helping someone commit suicide.
 Committing 2nd degree murder under coercion (physical or deadly threat) which a reasonable person would
have been able to resist.
 Unborn child by injuring the mother (abortion exception).
Diminished Capacity (partial responsibility):
 Some mental condition which makes the defendant less morally culpable for the murder, but is less than
that required for insanity.
 MPC: “extreme mental or emotional disturbance” covers mental disturb.
MPC §210.3(a):
 Reckless killing (non-murder form).
o Unlike reckless murder, here the conduct, although reckless, does not manifest an extreme
indifference to the value of human life
MPC §210.4 Negligent Homicide: lower than manslaughter.
 Unlawful act killing under CL is abandoned under MPC. Stop sign example would not be manslaughter
under MPC.
ARS 13-1102. Negligent homicide same as MPC, but including fetus.
DEFENSES
1. Five Kinds of Defenses:
a. 1) failure of proof defense:
i. All elements of a crime cannot be proven
b. 2) offense modification:
i. Actor has apparently satisfied all elements of the offense charged, but has not caused the
harm or evil sought to be prevented by the statute.
1. Ex: someone paying ransom to a kidnapper (complicity in kidnapping)
2. Common law rule: victim of a crime cannot be held as an accomplice.
c. 3) Justifications:
i. All elements are satisfied, but it is conduct which is the right or sensible thing to do. “I did
nothing wrong.” Negates the social harm of the offense.
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d. 4) Excuse:
i. Admit that the deed may be wrong, but excuse the actor because he has not exercised
meaningful free will, and thus no criminal liability. No moral blameworthiness.
e. 5) non-exculpatory public policy defense:
i. Ex: SOL, diplomatic immunities, judicial, legislative immunities, incompetency.


Burden of proof – in trial law, the burden of proof refers to both the burden of production and the
burden of persuasion.
The defense has the burden of proof for affirmative defenses (preponderance of the evidence, usually
not beyond a reasonable doubt)
Justifications: Under special justifying circumstances, the harm is outweighed by the need to avoid an even
greater harm or to further a greater societal interest. (Burning a house down to save a village)
o Same internal structure: triggering conditions permit a necessary and proportional
response. Triggering conditions: circumstances that must exist before actor will be eligible
under a justification defenses
o To be justified, the responsive conduct must satisfy two things:
 It must be necessary to protect or further the interest at stake
 It must cause only a harm that is proportional or reasonable in relation to the harm
threatened or the interest to be furthered
o Explanatory Theories
 Public benefit theory: justified because it was in public’s interest
 “Moral Forfeiture” theory: people posses certain moral rights that society recognizes
through its laws, like the right to life, but which may be forfeited by the holder of the
right (Guy committing felony may forfeit right to life)
 “Moral Rights” Theory: Conduct may be justified on the ground that the actor has a
right to protect a particular moral interest (enforcing a natural right of autonomy)
 Superior Interest or Lesser Harm Theory: when the interests of D outweigh those of
the person whom he harms (person invading property during tornado)
 Excuse: The defendant is exculpated only because her condition at the time of the offense suggests that
she has not acted through a meaningful exercise of free will and therefore is not an appropriate
subject for criminal liability
Distinctions between Excuse and Justifications
 Both: all conditions of the offense are satisfied and result in acquittal of defendant
 Justified conduct is based on what is socially acceptable or tolerable (negates the social harm), an
excuse negates the moral blameworthiness of the actor for causing the harm.
 Plausible argument that burden of proof should be on gov for justification cases but on defendant for
excuse cases
1. Self-Defense MPC 3.04 ARS 13-404, 405
a. United States v. Peterson – man confronted individuals stealing windshield wipers off of junk cars,
he went back inside, got the gun and then shot one of them.
 Rule: The aggressor that provokes a conflict that results in another’s death cannot
justify his actions under the right of self-defense.
 Rationale: Self-defense is a law of necessity.
 Note: Arizona says that an individual has no duty to retreat.
b. Common Law Doctrines: (Court follows CL in this case, as opposed to majority rule)
 There has to be no alternative – a genuine necessity to kill
 Eminent: The threat must be real and apparent, unlawful and immediate.
16
Objective: The defender’s beliefs must also be objectively reasonable in light of the
surrounding circumstances.
 Aggressor: No defense. Only if the aggressor communicates to opponent his intent to
withdraw and in good faith attempts to do so may he claim self-defense. (Provoker can
renounce provocation)
 CL rule “Retreat to wall”: forbids the use of deadly force when it is possible to make a
safe retreat. (Not majority rule)
 Deadly force may not be used to protect property (Open question under MPC)
 Police cannot shoot to kill in order to capture someone whose crime is only a misdemeanor
(has to be a felony)
 At some common law here is a requirement to retreat, except in your own home (in
Arizona there is no requirement to retreat)
Laws of War – talk about an inherent right of a state to defend itself. Laws of war allow for defense
even if innocent people are killed.
Specific Intent – the crime has some intention, some mental state, some mens rea, some particular
mental state/intention that a defendant has to have had and be proven to have had in order to be
guilty of a specific intent crime. (Example: Intent to kill, maybe breaking with intent to commit a
felony)
General intent – everything else
Mental State for Self-Defense
i.
“He reasonably believes the force is necessary to prevent the reasonably assumed risk of
serious bodily injury”
ii.
There has to be a reasonable perception of an imminent threat. (The individual has to
believe it and the reasonable person in a similar situation would have believed the
same)
iii.
In response to that there has to be a reasonable responsive force (The individual has to
believe it and the reasonable person too)
Mistake – it has to be actual and reasonable. In some statutes it is an all or nothing thing. (New
York) see People v. Goetz. According to the MPC it depends on the mens rea, however, if it is a
mistake than it would probably be viewed as negligence (which would allow for a lower
punishment.
People v. Goetz (NY 1986) (BIG CASE) (man with unlicensed pistol shot four youths that he
believed were about to steal from him)
a. Rule: To prevail on self-defense, it must be shown that his “reasonable belief” regarding
the necessity to use deadly force comports with a “reasonable man” objective standard.
b. Circumstances: Can still look at conditions facing defendant, but through objective lens
(actions taken by the alleged assailant, the physical characteristics of all persons involved,
and defendant’s relevant knowledge about the assailant)
c. POLICY: To completely exonerate such an individual, no matter how aberrational or
bizarre his thought patterns, would allow citizens to set their own standards for the
permissible use of force.
MPC 3.04 for self-defense really is not for deterrence but for determining justice after the fact.
Because it is an ex post analysis.
State v. Wanrow (1977) (woman killed neighborhood child molester in confrontation)
a. Rule: All the facts and circumstances known to a defendant, including those known prior
to the incident and the genders of the persons involved, must be taken into consideration
when deciding if a defendant’s belief of danger was reasonable and thus justifies selfdefense.

c.
d.
e.
f.
g.
h.
i.
j.
17
b. Change: The common law defense used to look at the average reasonable man (objective)
now it looks more at the individual characteristics of an individual in determining
reasonableness.
c. POLICY: In today’s society women are rarely provided the means to acquire the skills
necessary to protect themselves against attack without using a deadly weapon.
2. Battered Woman Defense, Battered Woman Syndrome and Beyond
 Abused spouse syndrome: refers to situations where one spouse has achieved almost complete
control and submission of the other by both physchological and physical domination. (Excuse
defense)
 State v. Norman – (woman killed sleeping husband after enduring endless abuse)
o Rule: The fact that an abusive aggressor was passive at the moment of his killing does not
necessarily preclude a defendant from claiming self–defense.
o Rationale: Lower court held that it would allow for a battered woman defense in this case
because the threat was “eminent” in the mind of the defendant
o SC: A threat is imminent when it must be instantly met and cannot be avoided by
calling others for help, including the protection of the law.
o Case: SC said there was plenty of time and opportunity to prevent future abuse.
o POLICY: The Supreme Court rejected to not allow slippery slope of defense (Women could
kill abusive husbands solely on the basis of their testimony and their speculation as to the
probability of future assault)
3. Defense of Others MPC 3.05 ARS 13-406
a. Generally: If the other (3rd party, the person being threatened) would have had the right to selfdefense, than someone else could do it for them.
b. People v. Kurr (2002) – a woman who was pregnant with kids, killed her husband after he punched
her in the stomach in order to protect the fetuses.
a. The question is: What does the statute say in terms of the rights of unborn children? If the
statute gives unborn children protection than it would likely be considered the defense of
others.
b. Note: that under the MPC that it just says person and the definition of person does not
include unborn children.
4. Defense of Property MPC 3.06 ARS 13-407, 408
a. Generally: Defense of Habitation: you are typically allowed to use more force sooner if someone
invades your home.
b. State v. Boyett: (D shot woman outside her front door, claimed defense of habitation)
a. Defense of habitation: A person has a right to defend his residence not only when an
intruder is already inside the home, but also when an intruder is outside the home and
attempting to enter to commit a violent felony.
b. Policy: Home is one of the most important institutions of the state, and has been regarded as
a place where a person has the right to stand his ground and repel
c. Application: The use of deadly force is justified only if the defendant reasonably believed
that the commission of a felony in his or her home was imminent and it was necessary to
kill the intruder to prevent that occurrence
5. Note: In terms of self-defense, the old common law used to try to keep the criminal alive (There would
be deterrence for killing in self-defense). The MPC seems to be more willing to be ok with the death
of the criminal during self-defense.
6. Necessity
MPC 3.02 ARS 13-417 (Choice of Evils)
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a. Nelson v. State (1979) – An individual stole equipment to try to get his truck out of the mud. The
defense of necessity may be raised if the defendant’s actions, although violative of the law, were
necessary to prevent an even greater harm from occurring. Three elements: (See MPC)
i.
The act charged must have been done to prevent a significant evil
ii.
There must have been no adequate alternative (emergency situation)
iii.
The harm caused must not have been disproportionate to the harm avoided.
a. ALSO: Does not apply if the actor caused the risk in the first place.
b. There must be no legislative purpose to exclude the justification claimed
b. Origin – comes out of a utilitarian ideal because the harm avoided is more than the harm that was
caused.
c. MPC 3.02: this is an after the fact analysis (ex post, rather than ex ante). Probably a matter of law
determined by the judge. Under the common law the balance would be screened by the judge and
then let it go to the jury. Does not require an emergency and does not exclude the taking of a life.
Only two states have applied the MPC verbatim. The MPC says that if other defenses are
available specific to the crime, than do not use the necessity defense (although there is an
exception - Duress).
d. A.R.S. 13-417 – if a reasonable person in that circumstances would have felt compelled and the
person did not have any reasonable alternative (average reasonable person), the injury avoided was
greater than the injury that reasonably could have occurred. (This is all looking at the reasonable
person, rather than an objective after the fact) (The Arizona version says that the necessity
defense cannot be used to defend against a charge of homicide or serious bodily injury)
7. Civil Disobedience (An attempt at a defense of necessity)
a. Indirect civil disobedience: A protest in which the participants violate a law which is not itself the
object of protest, as opposed to direct civil disobedience, where the participants violate the very law
they mean to protest.
b. United States v. Schoon (Protest congressional policies at IRS office, necessity claim)
c. Rule: The defense of necessity is not available in indirect civil disobedience cases, it might be
available in direct civil disobedience cases in which a specific law is broken to prevent an evil.
i.
Balance of Harms – the mere existence of a policy or law validly enacted by Congress
cannot constitute a cognizable harm.
ii.
Necessity is a utilitarian defense. It justifies criminal acts taken to avert a greater harm,
maximizing social welfare. (No aversion of harm by the protest)
i.
Legal alternatives (voting, protesting, petitioning, etc)
d. Queen v. Dudley and Stephens: (Ate a sailor to survive)
a. Rule: A defendant’s actions are not justified under the defense of necessity if he
deliberately kills an innocent person in order to save his own life.
b. Policy: Awful danger. Who is to be the judge of this sort of necessity?
A. Excuse – not saying that the action was better but rather there is some sort of mercy involved, still a bad
action but should not be punished for some reason (why? Utilitarian or moral or both?) (Social
engineering or moral issue)
a. Arguing no moral blameworthiness, as opposed to social good (See above)
b. Defendant is exculpated only because she has not acted through a meaningful exercise of free will
and therefore is not an appropriate subject for criminal liability.
c. Burden of proof usually shifts to defendant in excuse cases
d. Defended in non-utilitarian terms
B. Theories
a. Causation theory: D should not be blamed for her conduct if it was caused by factors outside her
control. Lead to slippery slope?
b. Character theory: A person of good character may still do an unlawful act: (rob a bank because of
terrorist threat)
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c. “Free Choice” (or Personhood) Theory: defined in terms of the actor’s capacity and opportunity
regarding their free choice at the moment of the criminal act
1. Duress MPC 2.09 ARS 13-412
a. United States v. Contento-Pachon (1984) – a drug mule got caught coming through the airport.
There are three elements of duress:
i.
An immediate threat of death or serious bodily injury
ii.
A well-grounded fear that the threat will be carried out
iii.
No reasonable opportunity to escape the threatened harm
b. Note: The common law historically just allowed for duress when the threat of death or serious
bodily injury was to the person.
c. MPC 2.09 – unlawful force to the person or to another (at least would get to a jury even if just
threatened with a punch – unlawful force) Held to reasonable person standard
i.
Under the MPC if the defense thinks that the necessity defense could be used, the defense
could use the duress or necessity defense.
d. People v. Anderson: (Kidnapping, Person threatened to harm D if he didn’t kill person)
a. Rule: (CL) Duress is not recognized as a valid defense to murder nor will it serve to
reduce a murder charge to manslaughter.
b. POLICY: Duress defense rationale is based on when a person is faced with two evils, a
defendant should be allowed to choose the lesser evil. However, the death of an innocent
person, is at least as great as the harm threatened. Thus, we require people to resist rather
than kill an innocent person
i. Would essentially encourage killing (gang-related murders)
c. First-degree murder: a malicious, premeditated killing, is first-degree murder, even when
duress is involved.
e. Note: The common law and modern non-MPC law says that an individual cannot claim duress in
cases of murder, the MPC does not have this limitation.
2. Intoxication MPC 2.08 ARS 13-503
a. MPC 2.08 – intoxication can be used as a defense for knowledge or purpose but not for
recklessness.
b. A.R.S. 13-503 – voluntary consumption of alcohol is not a defense.
c. Rule: under the common law, intoxication could exculpate from a specific intent crime (the mens
rea element) but it could not exculpate from a general intent crime.
d. United States v. Veach: because a defendant must have a particular mens rea in order to be
guilty of the crime charged, Veach (D) should have been allowed to present evidence that he was
too intoxicated at the time of his arrest to form the requisite specific intent.
e. GENERAL INTENT: The intent to perform an act even though the actor does not desire the
consequences that result (recklessness or negligence)
f. SPECIFIC INTENT: The intent to accomplish the precise criminal act that one is later
charged with. (robbery, assault, larceny, burglary, etc.)
g. Involuntary intoxication: (coerced, pathological, innocent mistake, unexpected from prescribed
drug) Essentially render person “temporarily insane”. Must not conduct the mens rea or specific
intent of that offense.
3. Addiction/Alcoholism Constitutional Defense
a. Robinson v. California (conviction for being addicted to narcotics overturned by SC)
b. Rule: To the extent that a state law which requires imprisonment for the use of, or addiction to,
narcotics is interpreted to allow imprisonment for addiction alone, such law inflicts cruel and
unusual punishment, violating the Fourteenth Amendment.
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c. Rationale: Narcotic addition is an illness which can be contracted innocently (use of prescribed
drugs) or involuntarily (addicted from the moment of birth).
d. Evidence: No evidence that D ever touched a drug in the State or was guilty of any irregular
behavior there. Unknown if D was convicted solely for being an addict.
e. EIGHTH AMENDMENT: “Excessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.
4. Insanity MPC 4.01, 4.03 ARS 13-502
 MPC 4.01 A person is not responsible for criminal conduct if at the time of such conduct as a result
of mental disease or defect he lacks substantial capacity either to appreciate the criminality
[wrongfulness] of his conduct or to conform his conduct to the requirements of law.
 MPC 4.03: Mental disease or defect excluding responsibility is an affirmative defense
 A.R.S. Requires that the defense proves insanity by clear and convincing evidence.
o Many jurisdictions just require the preponderance of the evidence. Burden of persuasion
regarding sanity on the defendant
 If an insanity defense is granted, the individual goes to a mental facility until deemed able to reenter society. Plea called “Not guilty by reason of insanity (NGRI)
 Policy: The asserted purposes of criminal law (rehabilitation, deterrence, and retribution) are
not satisfied when the truly irresponsible are punished. Those who are insane can hardly be
expected rationally to weigh the consequences of their conduct.
 Mental illness: Medical term. One can be mentally ill without be insane
 Sexual Predator Laws – an individual who was convicted for some sort of sexually violent crime
can be kept locked up following their original sentence if the state can argue that he individual is not
mentally ill and dangerous.
 Tests for Insanity:
o Right/Wrong M’Naghten defense: 2 Different kinds of tests.
 Cognitive test – they do not know the nature or the quality of the act they are
performing (no logical reasoning)
 Moral test – (Saks calls it Cognition 2) If the person does not know the nature or
quality act, i.e. they did not know it was wrong.
 Rephrase: 1. They do not know what they are doing. 2. They know what they are
doing but they do not know that it is wrong.
 Irresistible impulse or “control” test: When an individual is unable to resist sustained psychic
compulsion or to make any real attempt to control his conduct.
 Product Test: If a psychologist determined that the mental illness made someone do it, an
individual could be acquitted. Case was rejected by same judge later on.
 MPC: relieves the defendant of responsibility under two circumstances
o Cognitive: When, as a result of mental disease or defect, D lacked substantial capacity to
appreciate the criminality (wrongfulness) of his conduct
o Volitional: When, as a result of mental disease or defect, the defendant lacked substantial
capacity to confirm his conduct to the requirements of law
o Getting widespread acceptance
 Knowledge vs. appreciation: A child may know that she is pulling a trigger, but may not appreciate
the magnitude of what she is doing. MPC better than M’Naghten? (MPC focuses on appreciation,
not merely knowledge) See State v. Wilson
 Despite the test: Juries usually look at the history of the mental illness, the ability of an individual to
recall events, the degree of remorse, and cognitive and volitional capacities. They use their own
thoughts and conscious, regardless of what test they are instructed on.
 State v. Wilson: (Guy shot victim because he thought he was mastermind of conspiracy)
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
o R: Even if a defendant appreciates that his actions were illegal, if he believes, due to his
mental disease or defect, that his actions were morally justified (society would condone his
actions if it understood the situation like the defendant understands the situation) then
he will not be criminally responsible for his actions. (Court’s rule for wrongfulness)
o Note: MPC gives terms criminality and wrongfulness, giving power to states to decide.
Wrongfulness incorporates more of a moral element. “Under the circumstances D
honestly and mistakenly understood them”
o Societal, not personal, standard: Did D actually believe society would condone his
actions?
Criticisms to Insanity Defense:
o Label serious wrongdoers as blameworthy. Idea that the plea is frequently invoked by
violent criminals who fraudulently use it to evade just punishment.
o Psychiatric diagnosis should be employed primarily after conviction to determine
correctional treatment instead of prior to conviction to determine criminal responsibility.
o Can distinctions be made between those responsible and those not?
2. Diminished Capacity and Euthanasia
 Diminished Capacity Doctrine: allows a criminal defendant to introduce evidence of a mental
abnormality (mental disturbance)
 Mens Rea Variant: If the prosecution fails to carry its persuasion burden on a requisite mental
element, the defendant must be acquitted of any crime that includes such an element in its definition.
 Partial Responsibility Variant: Defendant is claiming that, as a result of mental abnormality, he is not
fully responsible for the crime proven against him.
 Three categories of evidence bearing on mens rea:
o Observational: what D did and said at time of incident
o Mental disease: Medical testimony that D suffered from mental disease
o Capacity: Testimony relating to D’s capacity to form a moral judgment
 Policy distinction: Diminished capacity is an effort to reduce punishment because the actor is not
like all humans, whereas heat of passion reduces punishment because the actor is, unfortunately, like
most humans.
 Some states have prohibited the admission of mental abnormality evidence for all crimes except on the
issue of legal insanity
o Insanity vs. diminished capacity: Difference in degree
 Clark v. Arizona (SC, 2006) R: Under Arizona’s Mott rule, a court will not allow evidence of a
mental disorder short of insanity as bearing on a defendant’s capacity to form specific intent.
 AZ Court did not restrict observational evidence, but restricted mental disease and capacity
 Policy: There is a presumption of sanity under the 14th amendment. Legislatures are given wide
latitude in defining the presumption’s strength, and Arizona acted within that latitude here.
 Dissent: The fact that mental-illness evidence may be considered in deciding criminal responsibility
does not compensate for its exclusion from consideration on the mens rea element of the crime.
 Debate: Courts continue to struggle with balancing the need for uniformity in the enforcement of
criminal justice standards against the recognition that mentally ill persons must, in appropriate cases,
be afforded special treatment.
Euthanasia: “Mercy Killing”
 Nonvoluntary euthanasia: killing committed without the consent of the suffering party
 Voluntary euthanasia: a person requests another to kill him, to put him out of misery
 As with euthanasia, most states prohibit suicide assistance.
 Latimer v. The Queen: (Father killed disabled daughter)
o R: See Necessity elements. D loses on all 3 elements and is guilty
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

Note: MPC proposes that the defense of necessity would be available for homicide
However, American jurisdictions are divided on this question.
3. MORE THAN ONE: the main distinction in accomplice liability are after the fact accomplices and
everyone else. After the fact accomplices are a lesser crime except in the case of treason.
MPC
Before Target Crime Principal
During Target Crime Principal
After Target Crime
1. Solicits another to commit a
1. Personally commits Target
1. Hinders apprehension or
crime, which is then
Crime OR
prosecution
committed by person
2. Uses Innocent or
solicited OR
Irresponsible person
2. Aids, agrees, or attempts to
aid another in planning a
Principal
crime who then commits
1. Aids, agrees, or attempts to aid
the crime OR
another in committing a crime
3. Having a legal duty to
prevent the commission of
the crime, fails to do so
Common Law
Before Target Crime Accessory
Before the Fact
1. Helps or encourages P-1 to
commit Target crime
BUT
IS not present at or near
crime scene
During Target Crime Principal in After Target Crime Accessory
First Degree
After the Fact
3. Personally commits Target
4. Helps P-1, P-2, or A-BTF
Crime OR
after Target Crime
4. Uses Innocent Agent to
commit Target crime
Innocent Agent
1. Commits criminal act, but
2. Lacks capacity or mens rea
for cime, and
3. Is fooled or forced to
commit criminal act
Principal in Second Degree
2. Helps or encourages P-1 to
commit Target Crime AND
3. Is at or near crime scene
A. Accomplice Liability MPC 2.06 ARS 13-301 thru 13-306
1. Under the common law, there has to be some help provided by the accomplice in order for him to be
guilty.
2. 2.06(3) Accomplice: A person is an accomplice of another person in the commission of an offense
if: he acts with the purpose of promoting or facilitating the commission of the offense by soliciting,
aiding, or ignoring a legal duty OR his conduct is expressly declared by law to establish his complicity.
3. Common Law divided parties into principals and accessories:
a. A principal in the first degree: one who actually commits a crime, either by his own hand, or
by an inanimate agency, or by an innocent human agent.
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4.
5.
6.
7.
8.
b. A principal in the second degree: One who is guilty of felony by reason having aided,
counseled commanded or encouraged the commission thereof in his presence, either actual or
constructive.
c. Accessory before the fact: one who is guilty of felony by reason of having aided, counseled,
commanded or encouraged the commission thereof, without having been present either actually
or constructively at the moment of perpetration.
d. Accessory after the fact: one who, with knowledge of the other’s guilt, renders assistance to a
felon in the effort to hinder his detection, arrest, trial or punishment.
e. Accessory could not be convicted of a higher crime than his principal
Complicity: the secondary party’s liability is derivative, which is to say, it is incurred by virtue of a
violation of law by the primary party to which the secondary party contributed
People v. Laurie: the individual has to have an interest in the crime or a desire for the crime to be
accomplished.
State v. Hoselton – a “lookout” who did not know that he was a lookout was not guilty of breaking and
entering.
a. Rule: Both the requisite act and mental state must be present in order to support accomplice
liability.
b. Lookouts are aiders and abettors: “by prearrangement, keeping watch to avoid interception or
detection or to provide warning during the perpetration of the crimes and thereby participating
in the offenses charged.”
c. Intent of accomplice: The prosecution must demonstrate that he or she shared the same
criminal intent of the principal in the first degree.
Riley v. State (Two men shot into crowd at bonfire, no evidence to who created wound)
a. MPC 2.06(4) Court relies on this. In situations where causing a particular result is an actual
element of the offense, an accomplice is guilty when he or she acts with the kind of
culpability sufficient to bring about that result.
b. Case: the applicable mental state remains recklessness as to the possibility that this conduct
would cause serious injury. (D did not actually have to intend that the young people sustain
serious wounds: the actual forbidden result)
State v. Linscott: (Robbery by two men led to one robber shooting victim)
a. FORESEEABLE CONSEQUENCE RULE: An accessory is liable for a criminal act that was
the natural or probable consequence of the crime he intended, even though such
consequence was not intended.
i. Creates an objective standard that can find D guilty even if he did not have the culpable
subjective mental state to commit the crime of murder
B. Vicarious Liability
1. Commonwealth v. Koczwara : (Liquor code violation, employees fault, underage drinking)
a. Rule: An employer cannot be imprisoned (but can be fined) under a theory of respondeat
superior for the criminal acts of his employees committed on his premises without his
presence, participation or knowledge (No mens rea)
b. Policy (For giving fine): the social interest in the general well-being and security of the
populace outweighs the individual interest of the particular defendant. Bar owner as highest
degree of responsibility towards fellow citizens.
c. Policy (For no jail time): For jail time, must be based exclusively on personal causation. Would
be unfair to licensee, cannot control everything
2. Historically courts will not hold the owner of a company individually liable for the actions of the
companies’ employees. Policy issues of punishing someone who did not even act.
3. Strict liability: allows for criminal liability without the element of mens rea found in the definition of
most crimes.
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4. Vicarious liability: eliminates the requirement of the actus reus and imputes the criminal act of one
person to another.
5. Vicarious liability is based solely on the relationship of the parties, as opposed to accomplice
liability, where the justification for holding a secondary party liable for the actions of the primary
party is that the accomplice has willingly participated in the criminal acts.
C. Corporate Liability
MPC 2.07
1. Corporate liability is a kind of accomplice liability.
2. Most courts today recognize that corporations may be guilty of specific intent crimes.
3. it must, in some sense, reflect corporate policy so that it is fair to say that the crime was the
activity of the corporation.
4. State v. Christy Pontiac-GMC, Inc. A corporation may be prosecuted and convicted for the crimes of
theft and forgery.
a. Proof: Beyond a reasonable doubt that the acts of the individual agent constitutes the acts
of the corporation: 3 elements
i. The agent was acting within the course and scope of his or her employment, having
the authority to act for the corporation with respect to the particular corporate business
which was conducted criminally
ii. The agent was acting, at least in part, in furtherance of the corporation’s business
interests
iii. The criminal acts were authorized, tolerated, or ratified by corporate management.
Attempt
Inchoate Offenses
 Incomplete offenses
 Three kinds:
o Attempt
o Solicitation
o Conspiracy
 Policy:
o We want the police to be able to stop the crime before it occurs, but we do not want the police to
step in too early and arrest someone who is innocent.
o If we believe in retributivist theory of crime prevention: we want people to be able to change their
mind.
Attempt:
 Mens Rea:
o Person must have specific intent to commit the crime in question
o Intent must be proven even if the intent is not required be convicted of the actual offense.
 Ex: attempted murder; under CL, you can be convicted for murder if you act with “malice
aforethought” which would include four types. However for attempted murder, only the
intent to kill is enough to convict for attempted murder. Thus if acting with abandoned or
malignant heart or extreme recklessness, you would not be convicted of attempted murder.
 No attempted felony murder since felony murder is not a specific intent crime.
 Actus Reus:
o How far must a crime go before a conviction/arrest is allowed?
o We draw the line between preparation versus perpetration. This is a policy issue. Some tests focus
on how close the defendant is to committing the crime versus how far they have gone towards the
crime?
o Physical proximity test:
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Person cannot be guilty unless they have the apparent power to commit the crime
immediately.
 Ex: being at the scene with a loaded gun, not guilty until the victim shows up.
 The overt act required for an attempt must be proximate to the completed crime, or directly
tending toward the completion of the crime, or must amount to the commencement of the
commission
o Dangerous proximity test:
 How close is the person to committing the crime physically?
 How close temporally (time)?
 How serious is the crime?
 Greater the gravity and probability of the offense, and the nearer the act to the crime,
the stronger is the case for calling the act an attempt.
o Unequivocality test:
 As soon as you can unequivocally tell what the defendant is trying to do, you have attempt.
 You just look at defendant’s conduct, not what he says.
o Probable Desistance Test
 Point where a normal citizen would desist. Conviction after the point were an ordinary
person would not desist.
o Indispensable element Test:
 Emphasizes any indispensable aspect of the criminal endeavor over which the actor has not
yet acquired control.
o MPC Test §5.01 (p.971):
 “substantial step in the direction of committing the crime.
 This step must corroborate the person’s intent, thus you first have to prove intent before
finding an act that corroborates.
 This makes a conviction easier since a victim that does not show up, but defendant was lying
in wait would convict him since that is a substantial step.
 (1)(a)-(b): applies to completed attempts. (a) is for result crimes; (b) is for conduct crimes;
1(c) is for incomplete attempt.
o 13-1001. Attempt; classifications
 Acts intentionally to aid another party
 “Any step” instead of “substantial step”- difference.
 Factual impossibility is not a defense.
o 13-1004. Facilitation; classification
 knowingly provides the other person with means or opportunity for the offense.
Defenses to Attempt:
o Normal defenses apply (self-defense, insanity, etc).
o Two unique defenses that apply in inchoate crimes.
 Defense of Impossibility (CL):
 You draw a distinction between factual and legal impossibility.
 Legal impossibility was a defense, but factual was not.
 Leal impossibility: when defendant’s conduct even if fully carried out would not
constitute a crime.
o Ex: fires gun at a bed, but victim is already dead. This would not be attempt
of murder since murder requires you to shoot someone who is alive. Even if
fully carried out, this would not be murder since defendant was shooting at a
corpse.
o Some cases could go either way (factual vs. legal) impossibility.


26
Factual impossibility: object of defendant is a crime, but some factual circumstance
unknown to the defendant prevented him from bringing about the crime.
o Ex: pickpocket attempt, but there was nothing in the pocket. Still guilty of
attempt even though factually it was impossible for the crime to occur as
there was no money in the pocket. Had the situation been as he had believed
it to be (money) present, it would have been larceny.
o Ex: tried to shoot, but no bullet in gun.
 Most courts have abolished this distinction since both people in factual and legal
impossibility are equally culpable and dangerous.
 MPC had abandoned this concept.
 One small category of cases that would result in conviction even if the concept
between legal/factual impossibility has been abandoned.
o Ignorance of the law does not make you a criminal:
 If someone thinks they have committed a crime, that is a legal
impossibility, they would not be convicted (ex: tapping a woman on
the shoulder and thinking it is rape).
 This is unnecessary since the concept of legality would prevent
conviction. Tapping someone on the shoulder is not a crime, thus no
conviction.
Defense of Abandonment (MPC only defense “Renunciation of Criminal Purpose)
 If I cross the line of attempt, but then voluntarily and totally (completely) abandon
the crime (renounce purpose).
 You have to do so voluntarily, not because the police are there, not because it has
become more difficult to commit the crime, has to be more than a temporary
renunciation of the crime.
13-1005. Renunciation of attempt, solicitation, conspiracy or facilitation; defenses
 a voluntary and complete renunciation of his criminal intent



3 Types of Theft
Larceny:
1. CL Definition of Larceny: trespassory taking and carrying away of the personal property of another with the
intent to steal.
a. Trespassory Taking: wrongful or non-consensual
i. Larceny protects possessory rights, not ownership rights. Ex: owner taking back something he
lawfully gave to someone to use.
ii. Constructive Possession: having custody of an item is different from possession, but the
merchant having constructive possession of the right. If someone ran off with the ring, they have
converted their custody into possession.
1. Ex: taking a car on a test drive by yourself. You would take possession lawfully, thus no
larceny. If he decides to drive away with the car, still no larceny since he took possession
lawfully.
iii. Employer/employee exception: employer giving property to an employee. Courts created legal
fiction that if a master (employer) gives tools to the employee, the employee would have
custody instead of rightful possession. Thus if employee leaves, the gets trespassory possession.
iv. Bailor/Bailee exception: When bailee receives property in a container (FedEx driver gets a
box), employee has lawful possession of the box, but only custody of the content of the box.
Possession by the employee occurs when he opens the container which would be trespassory
possession.
v. Fraudulently Obtained Consent: asking to borrow a car for an hour, but the person knows that
they will keep it. Although they received lawful possession because they did it through fraud
27
b.
c.
d.
e.
and intended not to return it from the beginning, then the taking is trespassory possession.
Sometimes called larceny by trick.
1. This only applies if the person intended to keep the property from the onset. Practically
this is hard to prove intent from the beginning verses intent while in possession.
Asportation (Carrying Away):
i. In CL, even if someone moved something an inch, that was a carrying away.
Personal Property:
i. Something which was real property can become personal property (cutting a tree down that
becomes personal property).
Of Another
i. You cannot be guilty of larceny against yourself, but larceny focuses on possessory rights, not
title.
ii. If you lease someone a car, but take it early, that is “of another” and is larceny.
Intent to steal (mens rea-specific intent)
i. In CL- defendant intended to permanently deprive the other person of the property.
ii. Legal fiction- Continuous trespass: every split second that someone retains wrongful
possession constitutes a brand new trespassory taking.
1. This allows someone to get charged if they intend to return something when they take an
item, but later change their mind and keep the item.
Embezzlement:
1. It is a statutory crime, not CL.
2. Definition:
a. Person receives lawful, non-trespassory possession of property, but then coverts it for his own use.
b. Ex: bailor-bailee: where someone has lawful possession of your property (thus not larceny), but then
keeps it thus becoming embezzlement.
False Pretenses:
1. Person trespassorily obtains title (ownership) of the property, but this occurs due to misrepresentation or fraud
by a party.
Miscellaneous Statutes:
Assault:
1. MPC 211.1 (p.983):
a. Simple Assault
i. Purposely, knowingly, recklessly causes injury or negligently causes injury with deadly weapon
ii. It is a misdemeanor
b. Aggravated Assault
i. Causes “serious bodily injury” under circumstances manifesting extreme indifference to the
value of human life or causes injury with a deadly weapon
ii. It’s a felony.
2. ARS 13-1203 Assault:
a. Intentionally, knowingly or recklessly causing any physical injury to another
b. Knowingly touching another person with the intent to injure, insult or provoke such person
c. Difference: just language, but pretty much the same
3. 13-1204. Aggravated assault;
a. Very specific enumerated tasks and victims constituting aggravated assault.
Bribery and Corrupt Influence:
1. MPC 240 (p.998);
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2. 13-2601: looks the same
Burglary:
1. MPC 221.1 (p.990):
a. Enters a building… with purpose to commit a crime therein, unless premises are open to the public.
b. If it is perpetrated in the dwelling of another at night, it’s a 2nd degree felony.
c. Cannot be convicted both for burglary and for the offense which it was his purpose to commit after
entry, unless additional offense is a first or second degree felony.
2. 13-1508. Burglary in the first degree:
a. Committing other two degrees of burglary with a deadly weapon or dangerous instrument
3. 13-1507. Burglary in the second degree:
a. Entering a residential structure with the intent to commit any theft or any felony therein.
4. 13-1506. Burglary in the third degree:
a. Entering or remaining unlawfully in or on a nonresidential structure or in a fenced commercial or
residential yard
b. Difference: includes entering a vehicle with intent to commit a felony or theft inside
Theft or Related Offense:
1. MPC 223.0 (p.991):
a. Affirmative defense includes unawareness that property was that of another
b. Unlawful Taking:
i. Guilty if unlawfully takes, or controls moveable property of another with the purpose to
deprive him thereof.
2. 13-1802. Theft
a. Controls property of another with the intent to deprive the other person of such property;
b. Same types as MPC, but also includes ferrous metals specifically called out.
29