Unit I: Introduction
I. Nature and sources of criminal law
a. State bring charges i.e. public law
b. A criminal conviction is guided by moral condemnation by the community
c. 4 sources of Criminal Law
i. Statues (limited by the constitution, interpreted by judges)
ii. Courts (judges)  precedent
iii. Constitution (8th, 5th and 14th Amendments)
iv. Model Penal Code
d. Model Penal Code is a guide for criminal statues (IT IS NOT LAW)
e. Federalism: each state has its own sovereignty to promulgate and enforce its own
criminal laws
II. Trial
a. Jury decides questions of FACT (they determine credibility)
b. Judges decide questions of LAW
c. The basis of an appeal is on matters of LAW, cannot appeal FACT
d. State cannot appeal decisions (“double jeopardy”)
e. Basis of an appeal
i. Insufficient evidence: gov (judge) fails to present sufficient evidence
o Directed judgement – dismiss because not proven (decision by
judgement) “as a matter of law”
a. This is a standard motion
ii. Improper jury instruction
iii. Evidentiary challenges
iv. Constitutional challenges
f. How do you prove a case at trial?
i. State’s burden of proof (beyond a reasonable doubt)
o This is the highest standard…why?
a. Maintains legitimacy, confidence in conviction
b. Must prove every fact/element of the offense beyond a
reasonable doubt
c. Defendant based system
d. Prosecution must find the right charge!
ii. Direct evidence
o No inference needed
iii. Circumstantial evidence
o Need to infer the facts from the facts that you have
a. This is legitimate evidence if you can prove the facts
beyond a reasonable doubt
iv. What are the elements at issue in a case? What are the charges?
o Ex. Owens v. State
a. How to define ‘highway’
b. Prove all of the elements of a DUI
c. Circumstantial evidence proving Owens drove on a
highway  needs to prove elements beyond a reasonable
doubt
v. Directed verdict: “as a matter of law” is the only thing that can be decided
on a directed verdict
o If a reasonable juror would convict, the conviction stands
o Prosecution has to prove the jurisdiction, if not directed verdict
a. If there is no fact to reasonably infer
o Why defer to the jury?
a. They decide credibility
b. Juries can see witnesses and read into things more than just
reading a transcript
vi. Appeal: “rational basis”
o Any rational trier of fact could have found essential elements of
the crime proven beyond a reasonable doubt
III. Punishment
a. What’s punished?
b. Who’s punished?
c. How do we punish?
d. Sentencing phase: what is the appropriate punishment considering whole
defendant and how crime affected victim
e. Theories of punishment
i. Retributivism (not revenge)  who may be punished and how much?
o Backward looking
o Justified because its deserved
o Restore societal balance
o Duty to punish
ii. Utilitarianism: “useful” maximize pleasure  why do we enact laws that
define specified conduct as criminal and punish those who violate?
o Specific/individual deterrence (specific to that defendant)
a. Avoid punishment and pain in the future
o General deterrence (potential defendants)
o Incapacitation and other risk management
a. Physical prevention of future offenses
o Rehabilitation
a. They don’t want to commit (“don’t want to be that person”)
f. Why do we punish?
i.
ii.
iii.
iv.
Supreme court recognizes theories
Culpability  retributivist
What’s the right charge?
Rehabilitation
o Contrast specific deterrence
v. Mix of theories
o What works in the jurisdiction
vi. What are you trying to deter?
g. How do we punish?
i. Proportionality  constitution requires (8th Amendment)
ii. Cruel and unusual punishment
iii. Grossly disproportional: not just limited to torture
o Excessive related to the crime committed
iv. How do we figure out what is grossly disproportionate? Depends on the
type of claim (pg. 73)
o Categorical restriction (implementation proportionality)
a. Nature of offender: this type of offender should not get
punished (tied to the mens rea)
i. Ex. Juveniles can’t get death, life without parole,
mentally ill
b. Nature of offense (this type offense does not deserve that
sentence)
i. Ex. Coker
o Challenges to the length of terms of sentences (Ewing)
a. Sentence too big for facts
v. Coker v. Georgia
o Objective test
o Legislative enactments/State practice: what are State’s doing?
What is used?
o Standards of cruel and unusual punishment evolve
o Federalism  different State’s with different penalty
th
IV. 8 Amendment: cruel and unusual punishment
a. Limited to torture? No
b. Grossly disproportionate to the crime
c. What is grossly disproportionate?
i. Categorical challenge: doesn’t care about facts
o Nature of the offense/offender
a. Choose what fits your client
o What is the test for this challenge?
a. Objective test: legislative enactments/state practice,
national consensus, evolving standards
b. Subjective test: courts own understanding/precedents,
independent judgement
ii. Term of year challenge  based on facts
o Ewing – 3rd strike rule (CA) stole $1,200 in golf clubs (felony) and
given 25 to life
a. Sentence grossly disproportionate
o What is the test for this challenge?
a. Gravity of offense, severity of sentence  can we infer
disproportionality? i.e. threshold test
i. If we can’t infer this, can’t go on to other steps
ii. Federalism: no one penological code over another,
legislative
iii. No inference if crime is serious (felony) and nondeath or life without parole penalty case
b. Intra-Jurisdictional comparison
i. Compare defendant sentences with other sentences
for same crime
c. Inter-Jurisdictional
i. Same/similar offences in other jurisdictions
V. How do we read statutes?
a. Plain meaning
i. Always start here  if meaning is clear, go with that
b. Legislative intent
i. Legislative history
ii. Findings of legislature
c. 3 doctrines
i. Legality: argument to the court
o Can’t be convicted if it wasn’t already a crime
o Legislature makes laws – judges are limited in their interpretation
o Can’t make something illegal if it wasn’t already illegal
a. Ex. Commonwealth v. Mochan
i. Defense: argument of legality
ii. His calling of the woman and making lewd
comments was upheld as a crime by the court
1. Dissenting judge believes that the court
convicting Mochan is violating the principle
of legality by making something illegal that
was not illegal before (Ex post facto)
b. Ex. Keeler
i. Ex post facto laws not permitted
ii. Legislative intent (1850) “born alive”
iii. Principle of legality would be violated if convicted
– arg.
iv. Keeler would not have known that an unborn fetus
would be considered a human being in the meaning
of the statute
ii. Vagueness
o Targeting legislature
o Test: people have to guess meaning/application (important!)
o Concerns:
a. Fair warning
b. Arbitrary/discriminatory enforcement
c. Inhibit exercise of legit freedoms
o Ex. Desertrain v. City of Las Angeles
a. LAPD officers abusing the statute by following their own
interpretations and forcing homeless people to move their
cars and arrested them
i. Arbitrary and discriminatory enforcement
iii. Lenity: always last!
o Strict construction of criminal statutes
o When there is ambiguity after everything else
o If 2 reasonable interpretations favorably either to government or
defendant, then read in the light most favorable to defendant
o Must be ambiguous after all the other tests
o Courts not apply if it will override overarching intent of legislature
o Often not applied today
I.
Unit II: Elements of a Crime
Actus Reus: voluntary act (bodily movement) that causes the social harm
a. Actus Reus + Mens Rea = Crime
b. Voluntary Act: willed movement
i. Not a reflex, convulsion, conduct during sleep/hypnosis
c. Ex. Martin v. State
i. Taken out of his home and then convicted of public intoxication
ii. Convicted in state court but on appeal, and appellate court reversed
because they held that a person must be engaged in a voluntary act to be
liable
d. MPC §1.13, 2.01
II.
e. Ex. State v. Utter
i. Argument: involuntary response
ii. Must be involuntarily induced: Utter drank a lot voluntarily and then had
this response which killed his son
iii. Intoxication not a defense for an involuntary act
iv. Must have enough evidence to prove it was an automatistic response
f. Ex. People v. Beardsley (Omissions)
i. No criminal liability for failing to act (not voluntarily) EXCEPT when
there is a legal duty to care
o Status relationship (husband/wife, parent/child)
o Assumed care then secluded
o Statute imposes duty (teacher/student)
o When a person creates the risk of harm to another
g. Social Harm: negation, endangering, or destruction of individual/group/state
interest that is socially valuable
i. Prohibited conduct + attendant circumstances (facts that must be present in
conjunction with conduct)
o Result crime: crimes defined in terms of prohibited result
a. Ex. Murder
o Conduct crime: social valuable interest endangered
a. Harmful results not required; social harm is conduct that is
targeted (ex. Drunk driving)
Mens Rea: mental state regarding social harm
a. Ex. Regina v. Cunningham
i. Trial court convicted Cunningham of sneaking into his mother in law’s
house and stealing “maliciously”
o Instructed jury that maliciously=wickedness
ii. Appellate court reversed saying that malice was more than wicked
b. General intent
i. Any bad intention at all
ii. Mental state  morally culpable state of mind
o Ex. Battery
c. Specific intent: specific mens rea  statute will lay this out
i. What was the social harm?
ii. What is the requisite mens rea?
iii. Purposeful
o Conscious object
a. Conduct (consciously engaged in conduct)
b. Cause result (goal is the result)
iv. Knowing
o Consciously aware
a. Conduct
b. Cause result (be aware *practically certain* that conduct
will cause result)
o Subjective only
v. Reckless
o Did they see the risk? Substantial and justifiable risk?
o Conscious disregard of substantial and unjustifiable risk (social
harm)
a. Subjective, gov. must prove they knew and did it anyway
b. Risk of what?
i. Evaluate risk from defendant’s perspective
ii. Is it substantial and unjustifiable?
vi. Negligent
o Should they be aware of substantial and unjustifiable risk
o Gross deviation from the standard of care of a reasonable person
vii. Non-MPC: intentionally (purposeful/knowing)
d. Ex. People v. Conley
i. Intentionally/knowingly, battery, cause permanent disability
o Intention (purposeful)
o Look at circumstances, words, weapon, etc. can infer that
practically certain
e. How far does the Mens Rea term modify?
i. MPC §2.02(1) with respect to EACH material element
o Element §1.13(9)
o Material Element §1.13(10) something that is not jurisdictional,
venue, etc.
ii. Modifies the material elements as to the social harm
III.
Problems
Common Law/Non-Model Penal Code
Model Penal Code
1. Multiple terms
§2.02(1)(3)
2. What does MR modify?
§2.02(1)(4); 1.13(10)
3. General v. Specific intent
§2.02(1)
a. General intent: morally culpable state of mind  if the statute is silent in non-MPC
figure out if GI or SI
b. MPC: can’. Gv’t be convicted unless one of the 4 mens rea
i.
If statute is silent  at least RECKLESS
ii. No general intent crimes in the MPC
IV.
V.
Transferred Intent
a. (Non-MPC) Actual harm differs from intended harm due to an accident
i. Transfers intent from intended victim to actual victim
ii. Does not matter if reasonably did not know
b. MPC §2.03 (2)(a)(b)
i. Transferred intent is extremely narrow
ii. Only applies if only difference is different victim
iii. Only applies to purposeful/knowing (result crimes) mens rea crimes (2.03
(2)(a))
o If only difference was different victim (person/property) then there
was transferred intent
o If more harm occurred  no transferred intent
iv. MPC tries to accurately represent culpability
c. Pg. 173 n. B
i. Keeler example  would there be transferred intent if the wife died and
the baby lived?
ii. Keeler’s intended to kill the fetus
iii. Prosecution charging with purposeful murder MPC §210.2 (1) (a)
iv. Is the child considered a human being in jurisdiction? No
o Intended harm not to kill a human being but to destroy a fetus
o Actual harm was death of a human being
v. 2..02(3) no transferred intent unless actual result different only in respect
to a different person/property
o In this case the intended harm and the actual harm different
vi. Injury or harm more serious?
o No, killing a fetus is less serious than a human
vii. i.e. transferred intent not possible for the purposeful murder of the fetus
Strict Liability
a. Offense by definition does not contain mens rea regarding one or more elements
of a crime
i. No mens rea as to attendant circumstances
b. Either a public welfare offense or something like felony murder/statutory rape
c. In non-MPC: is it strict liability or a general intent crime?
i. Step 1: rule out strict liability
ii. Narrow presumption against strict liability
o Usually only want to convict with mens rea
iii. Public welfare offenses: 1 person can cause a lot of damage to the health,
safety, and welfare to a significant amount of people
o 3 characteristics test
a. Reasonably in position to prevent violating it
VI.
VII.
b. Penalty is small
c. Conviction not damaging to reputation
iv. Malum in se: inherently wrong, evil in itself
v. Malum prohibitum: prohibited evil (made so by legislature)
d. MPC
i. No strict liability in MPC expect for violations
ii. Violation: offense that only results in a fine (§1.04(5))
Mistake of Fact
a. Situation in which if the facts were as the defendant believed them to be she
would not be committing a crime
b. Gov. can’t prove mens rea
i. Not a defense for strict liability
c. If mistake negates mens rea, defendant is not guilty
d. Non MPC
i. Specific intent? Does it negate the Mens Rea (does not have to be
reasonable)?
o If no, then no defense
o If yes, then defense (gov. can’t prove mens rea)
ii. General intent? Is it reasonable?
o If no, no defense
o If yes, then check
a. Morally wrong doctrine: if facts were as she believed them
to be, but morally wrong, then you lose the defense
b. Legally wrong doctrine: if facts were as she believed them
to be but engaged in another crime, then lose defense
iii. Ex. People v. Navarro
o The trial court mis instructed the jury that Navarro had to have a
good faith belief that the beams were abandoned, and he would be
guilty if it wasn’t reasonable  gov. argues mistake is
unreasonable
a. This is a specific intent crime, therefore the mistake does
not need to be reasonable for mistake of fact to be a defense
Mistake of Law
a. IGNORANCE OF THE LAW IS NO EXCUSE (generally speaking)
b. 3 exceptions
i. Reasonable reliance
o Someone who relies on official interpretation of law (ex. Appellate
court decisions) **narrow!
o Following a law that later changes – not your own interpretation of
the law or an attorney’s interpretation
a. Ex. People v. Marrero
i. Marrero’s own interpretation of the law is not
reasonable reliance
o Definition: reliance on an official statement of the law by
someone/body with power to enforce/interpret/administer the law
(that specific law) that is later found erroneous
ii. Element of the offense – know illegal
o Ex. People v. Cheek
a. You have to act knowingly (Cheek in regard to tax fraud)
 government must prove mens rea, should be up to the
jury
o Mens rea has to be proven
iii. Notice
o Due process places limits on ignorance as no excuse – requires
notice
o Ex. Lambert
a. Failure to act, wholly passive
i. It’s an omission, passive
ii. Duty to register based on status, no indication
someone should have known
iii. Malum prohibitum: prohibited by law
b. No reason to think she actually knew that she had to
register as a felon
VIII. Model Penal Code 2.02 (9) 2.04: Mistake of Fact and Mistake of Law
a. Analysis of MPC mistake of fact only has to do with the SPECIFIC INTENT
b. Analysis of MPC mistake of law – do the same thing but MPC defines official
interpretations of law
i. 2.04(3)(b)
IX.
Causation
a. Actus Reus + Mens Rea + Causation = Crime
i. Causation only relevant in result crimes
o Actual cause: did you cause it or not
Must have both!
o Proximate cause: is it fair to hold you accountable
ii. Test for actual cause
o But for the voluntary act would the social harm have occurred
when it did/how it did
iii. Actual cause
o Science, did you cause death or not
a. Test of exclusion
i. Who are potential defendants?
ii. Who can you exclude as a potential defendant?
o Prosecution wants the answer to be no to the But For test – because
the social harm occurred when it did/how it did because of the
defendant
o Substantial factor test: what’s substantial? (pg. 227)
a. Current sufficient causes
b. Accelerating
c. Obstructed cause
iv. Proximate cause – legal cause
o Who is it fair to hold responsible?
o Direct cause: no proximate cause problem
o Intervening cause: another actual cause that happens in between
voluntary act that causes social harm
o Super ceding cause: severs liability from first actual cause  at
some point too far to home someone accountable
a. Look at intervening causes and find what is super ceding to
sever liability
o 6 factors
a. Foreseeability (most important, but not determinative)
i. Of the intervening cause (response or coincidence
pg. 240 n. 3)
b. De Minimus
i. Of defendant’s actions
c. Intended consequences
i. Defendant’s actions
d. Apparent safety
i. Defendant’s actions came to a place of safety
e. Free, deliberate, and informed act
i. Intervening act, did the victim do it on their own
f. Omission of others
i. If the intervening act is an omission it will never be
super ceding
I.
Unit III: Homicide
Homicide: the killing of a human being by a human being
a. Criminal homicide: unlawful killing of a human being by a human being with
i. Murder: unlawful killing of a human being by another human being
WITH MALICE
o Non-Model Penal Code
a. 1st question: Murder or Manslaughter
i. Murder  homicide with malice (presence of 1 of 4
elements)
1. Intent to kill
2. Grievous bodily harm (serious risk of
death/permanent loss)
3. Depraved heart (extreme recklessness)
4. Felony murder
ii. Ex. State v. Guthrie
1. Look at WV statute – 1st degree
(premeditated/willful/deliberate); 2nd degree
(anything else of the malice list)
iii. Catch all phrase – willful/deliberate/premeditated
1. Quantitative element: time to think about
action before doing it
2. Qualitative element: facts show defendant
was fully conscious
3. Infer from the facts the difference between
an assassin and others (but who may still be
guilty)
ii. Model Penal Code § 210
o No degrees of murder
o Purposefully/knowingly (210..2 (1)(a))
a. Conscious object/practically certain
b.  intentional killing
iii. When is an intentional killing – MANSLAUGHTER (not a defense, a
mitigation)
o HEAT OF PASSION – intentional killing that is manslaughter
o Rigid test
a. Acting under heat of passion (facts point to behavior)
b. Adequate provocation – calculated to inflame a reasonable
person to act out of passion
c. No opportunity to cool off
d. Casual connection between provocation/passion/act
o Why heat of passion? Sometimes a reasonable person act out of
passion – caught up in extreme emotion
o Words alone never adequate
Intentional killings
Unintentional killings
(unreasonable risk)
Non MPC
Murder – malice
m/s: heat of passion
Murder – depraved heart
m/s: recklessness
MPC
Murder: 210.2(1)
m/s: EED 210.3(1)(a)
Murder: 210.2(1)(b)
m/s: 210.3(1)(a)
o Heat of passion
This is rigid! Make sure
a. Acting under head of passion
you understand what the
b. Adequate provocation
provocative event was
c. No opportunity to cool
d. Causal connection – provocation/passion/act
b. MODEL PENAL CODE
i. 210.3(1)(b): extreme emotional distress
ii. More broad
iii. Want the jury to have more discretion
iv. Test: extreme emotion has to be reasonable – not homicide
o Reasonableness determined from viewpoint of actors (defendant)
situation
o What is the situation?
a. Reasonable person in the defendant’s situation with the
facts situation as he believed them to be
v. Ex. People v. Casassa
a. What is the standard for EED?
b. Two prongs
i. Extreme emotional disturbance (subjective)
ii. Reasonable explanation (objective in defendants’
situation)
c. MPC much more flexible
c. Murder
i. Depraved heart – unjustified risk taking (non-MPC)
o Malice is implied
o Deliberate perpetration of knowingly dangerous act with
indifference if anyone is killed
o Conscious disregard for substantial and unjustifiable risk
o Prosecution has to prove that they actually saw the risk to human
life and proceeded anyways
d. Murder
i. Intent to kill (express)
ii. Grevious bodily harm
iii. Depraved heart
Implied
e.
f.
g.
h.
i.
iv. Felony murder
Ex. People v. Knoller
i. Thomas test: high degree of probability that it will result in death
o Base, antisocial mode, wanton disregard
ii. Phillips test: malice is implied when killing proximately caused by act,
natural consequences of which are dangerous to life, knows conduct
endangers the life of another/acts with conscious disregard for life
Model Penal Code
i. 210.2(1)(b)
o Extreme indifference (disregard) for the value of human life
ii. 210.3(1)(a)
o Saw risk someone might get hurt (manslaughter)
Negligence – gross deviation from the standard of care of a reasonable person
i. Does the defendant have a legal duty to the decedent?
ii. Look at the time frame of the act and the death (Ex. State v. Williams)
Grievous bodily injury
i. No parallel in MPC
ii. Accidentally died when someone caused GBI
iii. Injury with a serious risk of death or protracted disfigurement or
impairment of a bodily function
Felony Murder: non-MPC
i. Rule: guilty of murder if death results from conduct during the
commission or attempted commission of any felony
o Without felony murder prosecution would have to prove mens rea,
or show one of the elements of murder
ii. Limits:
iii. Inherently dangerous felony: look to the statute
o KNOW YOUR FELONY
a. Ex. People v. Howard
i. Felony – evading police officer
1. Willful/wanton disregard for safety
ii. Issue: is this felony inherently dangerous?
iii. Holding: it is possible to commit this felony without
creating the substantial risk and therefore is not
inherently dangerous
o Abstract rule: look to statute
a. Test: whether a felony, by its very nature, cannot be
committed without creating a substantial risk that someone
will be killed
o Facts and circumstances
a. Test: court looks at facts and circumstances of the
particular case to determine if there was a foreseeable
danger to human life
o *answer depends on jurisdiction*
iv. Independent felony: merger doctrine
o Felony must be independent of homicide
o FM only applies if the predicate felony is independent of or
collateral to homicide
o Guidance: felony murder is barred “where the purpose of the
conduct was the very assault which resulted in death” (smith)
o Look to the elements of the predicate felony
a. “Assaultive in nature” involves threat of immediate violent
injury  will merge
o Felony last from the beginning of the felony through flight
v. Homicide must be in furtherance of the felony
o Test: consider the factors of time, distance, and causal relationship
between the felony and the death
o If death occurs from a third-party non-felon
a. Agency theory: felony murder doesn’t apply if the killing is
directly attributable to the act of one other than the
defendant and those associated with him in unlawful
experience  was death foreseeable?
b. Proximate cause theory: felon is responsible for a death that
is a proximate result of the felony, regardless of whether
the killer is a co-felon or a third party
i. *facts matter!
vi. Model Penal Code 210.2(1)(b)
o MPC says it will presume extreme recklessness in a list of felonies
o Don’t have to worry about limits
o It is a PRESUMPTION, not rigid
a. Therefore, it can be overcome
o Use the facts to make an argument, need to prove that they saw the
risk to human life
o Robbery, rape, arson, burglary, kidnapping, or felonious escape
Unit IV: Defenses
Justification: conduct ordinarily criminal, but under the circumstances is socially acceptable and
doesn’t deserve punishment
Excuse: conduct not acceptable, but no culpability
Justifications:
Self Defense
 Threshold test
o Aggressor? One who engages in affirmative unlawful act reasonably calculated to
produce an affray foreboding injurious and fatal consequences
 Rule: unless renounced nullifies the right of homicidal self-defense
o Duty to retreat (only with deadly force)?
 Majority: no duty to retreat if deadly force reasonably necessary to save
himself
 Minority: retreat to the wall
 Castle doctrine: no duty to retreat in your own home
 Model Penal Code
o § 3.04(2)(b)(i)
 Aggressor: purpose of causing death or serious bodily injury
 Conscious outcome
o § 3.04(2)(b)(ii)
 Retreat: deadly force not justifiable if know retreat to a place of complete
safety (have to retreat)
 Don’t have to retreat in own home or workplace UNLESS
aggressor or other aggressor is a lot at their workplace (co-worker)
Elements of SD NON-MPC:
1. Reasonably believes
2. Force (or deadly force) is necessary to protect from imminent use of
3. Unlawful force (or deadly force)
3 components (non-MPC)
1. Reasonable
 First, actually believed deadly force was necessary
 Reasonable in light of the circumstances
 You can be wrong, but reasonable and still keep the defense
2. Necessity
 Immediate means NOW
 Necessary to repel imminent deadly force (reasonably believe DF is needed to repel DF)
 Require threat to be imminent
o If non-deadly force is sufficient, should be used
o If retreat is available, it (perhaps) should be used
3. Proportionality
 Force is used in defense cannot be excessive in relation to the harm threatened
 DF is risk of death or serious bodily injury
 Non-deadly force is always required with a non-deadly threat

Never use DF to prevent what one knows to be non-deadly threat
o In some jurisdiction: it is a partial defense (wrongly use DF, reduce to MS)
Self-Defense MPC § 3.04, 3.09
 Subjective test:
o Believe force is immediately necessary
o If wrong and unreasonable, can still get defense (if reckless in assessment of
threat)
o Charge matters  compare MR of the charged crime to the MR of the
assessment of the threat
 MR of the charged crime has to equal the MR of the assessment of the
threat to lose the defense
 R/N in assessing the threat
Lose defense
 R/N crime
Defense of Others
 One is justified in using reasonable force in defense of others when:
o Reasonably believes
o Force (or deadly force) necessary to protect another from an imminent use of
o Unlawful force
 Issue: mistake
o Majority rule: even if wrong, gets defense as long as reasonable
o Minority rule: “alter ego rule”
 Stands in the shoes of the individual for whom providing self defense
 If they don’t get SD, then 3rd person does not get defense of others
Defense of Property/Habitation
Property:
 Cannot use deadly force
 Rule: one is justified in using reasonable force to protect property from dispossessing
when:
o Reasonably believes
 Property is in imminent danger of unlawful dispossessing AND
 Force is necessary to avoid that danger
Habitation:
 Deadly force is permissible if D reasonably believes:
o Intruder intends
 Unlawful/imminent entry into dwelling AND
 To commit a forcible felony (one committed by force, violence, and
surprise) or to kill or severely injure the occupant
o DF is necessary to repel intrusion


*don’t have to know, just have to reasonably believe
No requirement for a person to cross dwelling threshold if they reasonably believe is
imminent
Castle Doctrine:
 If in your home, no duty to retreat
o Even in a retreat jurisdiction, have to be IN your home
Necessity
 Charged act must have been done to prevent a significant evil (emergency)
o Clear and imminent danger
 No adequate alternative must have existed
 Harm caused must be less than the harm avoided
 Legislature must have not already weighed the evils and struck a balance
 Limits:
o Legislature must not have already weighed choices
o Non-human cause
o D must not have substantially contributed to emergency
o Not a defense to homicide
 Model Penal Code § 3.02
o D must actually believe (subjective)
 No imminence requirement
 Limited to natural forces
 Available to homicide
o What does D have to show?
 Believes conduct is necessary to avoid harm to himself or another
 Harm to be avoided is greater than sought to be prevented by law
 Law hasn’t provided exceptions/defenses
 Legislative intent
o Does not automatically lose defense if at fault for creating necessity
 Unavailable if R/N in bringing about emergency and the crime charged is
R/N
 If R/N is assessment of the necessity than no defense to a R/N crime
Excuses:
Duress
 Non-MPC: cannot be used for murder
o D acted under a threat which produced in D:
 A reasonable fear of
 Imminent death or serious bodily injury (to D or someone else)
 Present, imminent, impending

 No reasonable opportunity to escape
o D not at fault for exposure to the threat
 U.S. v. Contento Pachon (duress to smuggle drugs to the U.S. and was
under constant surveillance, fear of harm to himself and family)
MPC § 2.09
o Elements
 D compelled
 To commit offense because use or threatened use of unlawful force by a
coercer upon him or another person
 A person of reasonable firmness in D’s situation would have been unable
to resist coercion
o Defense unavailable if recklessly put self in situation (also unavailable if
negligently put oneself in situation and charged with negligent crime)
o Differences
 MPC overall broader
 No immanency requirement
 Threats can be prior, duress as a result of non-imminent threat
 Threatened harm need not be deadly, just “unlawful force”
 Person of reasonable firmness
 Can be someone close to them
Difference between necessity and duress
Necessity
 Justification
 Charged act must have been done to
prevent a significant evil from nonhuman force
 Clear and imminent
 No adequate alternative
 Harm caused must be less than harm
avoided
 Legislature must not have already
weighed evil and struck a balance
 D must not have “substantially
contributed” to the emergency
Intoxication
1. Voluntary or involuntary?
 Voluntary
Duress
 Excuse
 D acted under a human threat which
produced in d
 Reasonable fear
 Imminent death/serious bodily injury
 No reasonable opportunity to escape
but be present
o Knowingly ingesting a substance that he knows or should have known could
cause him to become intoxicated (could it cause you to become intoxicated?)
o Courts unsympathetic to a claim of an unexpected reaction to an intoxicant
 Involuntary (extremely narrow)
o Innocent mistake (character of substance unknown)
o Coerced intoxication (if you don’t drink, threat… i.e. duress)
o Unexpected intoxication resulting from medically prescribed drug
o Likely to be a defense for a general intent crime
o Temporary insanity: due to substance, state while under the influence
2. General intent or specific intent
 Common law rule
o General intent: morally culpable (engaging in the conduct with a state of mind
that is morally culpable)  no defense
o Specific intent: if intoxication negates the MR  defense
 Infer MR from facts
 United States v. Veach (should have given jury instruction for SI crime,
voluntary intox. in itself not an excuse but can lead to failure of proof)
3. How is the defendant claiming the intoxication?  does it negate the MR
 If you claim a lack of MR, defense to a specific intent crime
Insanity
 Not mental illness
 Not competency
o Competency is the ability to consult with attorney with reasonable rational
understanding
 Not guilty but mentally insane (GBMI)
o Guilty, however sentencing usually at a mental health facility
 Insanity is an affirmative defense
o Initial burden of evidence regarding defendant’s mental state is on the defendant
(burden of persuasion, preponderance of the evidence)
o Then… government on rebuttal proves the defendant is sane
 Defense has to give notice of insanity defense
McNaughten test
D insane if:
 Due to a mental disease or defect at the time of the criminal act:
Either:
D does not know the nature
and quality of his actions
(volitional prong: does now
know what is going on) know is
considered to be an absolute
term
D does not know what he was doing
was wrong (moral incapacity)
Test: knowinlgy violated societal
standards of morality and knows
society will condemn even if he
thinks actions are morally proper
Irresistible impulse test:
D insane if:
 Due to a mental disease or defect
 Although he knows abstractly that his actions are wrong
 D is irresistibly driven to commit the insane act
Model Penal Code;
D insane if:
 Due to a mental disease or defect
Either:
D lacks the substantial capacity
to conform his conduct to the
rule of law
D lacks the substantial
capacity to appreciate the
criminality (or wrongfulness
(legally or morally wrong)) of
his conduct
Unit V: Inchoate Crimes
Attempt
 Attempted what?
o What was the crime attempted?
 Complete attempt: underlying criminal goal not achieved, involves conduct (nothing left
to do)
 Incomplete attempt: some actions left to achieve goal, either quits or is prevented
Specific intent to engage in the conduct that constitutes a
crime
Mens Rea
(Purposeful/
Knowing)
Specific intent of target crime (specific intent to cause
result)
*cannot attempt an accidental result crime
 You do not intend an accident
o Ex. Cannot attempt felony murder
 Rule: if you have an attempted result crime, defendant must have intended to cause the
result
Actus Reus: substantial step
 Passed preparation and into perpetration
 2 categories
o Tests that look at what remains to be done
 Indispensable act not yet occurred
o What has already been done
 Step goes beyond point
Model Penal Code § 5.01 (very focused on intent)
 Focus on what has been done
 Dual mens rea
o Purposefully engage in the conduct
o Mens rea of target crime
 Completed attempts
o 5.01(1)(a) conduct
o 5.01(1)(b) result
 Incomplete attempts
o 5.01(1)(c) plus 5.01(2)
 Required that a significant step adds to the criminal intent
 Strongly corroborates the criminal purpose
 Conduct plus other evidence adds significantly to the criminal intent
o 5.01(2)
 If any of the examples are the significant step and is strongly corroborative
 it gets to go to the jury
Abandonment: complete defense
Either:
 Never was attempt
 Or attempt but attempt abandoned (mens rea and substantial step)
 Abandoned after substantial step but before target offense complete
o Voluntary: internally decides not to commit the crime (not because fear of getting
caught)
o Complete: mere postponement not enough, decision must be to not complete
crime
 Cannot apply to completed conduct crimes
o Cannot abandon if put in motions that cannot be stopped
Model Penal Code § 5.01(4) Renunciation
 Two options for defense to think about
o No attempt (failure of proof)
o Abandonment (complete defense)
Conspiracy (common law only)
 Dual intent (MR)
o Specific intent to agree
o Specific intent to commit target offense (that the object of the agreement is
achieved)
o Therefore: knowledge is not enough BUT in situations in which D is supplying
materials to criminal venture (Lauria) seller wants the criminal objective to be
achieved and will benefit from it
 Knowledge of conspiracy not enough
 But intent can be inferred through knowledge
 Direct evidence
 Indirect evidence
o Supplier has a stake in the criminal venture
o No legitimate use of the goods/services exists
o Volume of business with the buyer is grossly
disproportionate to any legitimate demand
 Agreement (AR) – to commit target offense
o Agreement (to do what?) + Overt Act (outward indication of conspiracy)
 Agreement: need not be explicit and can be inferred from facts (Azim)
 Over: may be minimal and once done by any co-conspirator enough for all
coconspirators
 Does not have to be illegal
 Can conspire to a legal act by illegal means
 Issues:
o Bilateral or unilateral?
 You can be convicted of a unilateral conspiracy (confidential informant,
undercover cop)
o Objectives for conspiracy?
 Determined by the statute used, the facts of the agreement, circumstances
surrounding agreement, etc.
o Punishment: does not merge with the completed offense (AR+MR=Conspiracy)
*Conspiracy is done when the agreement is made
Abandonment:
 Once agreement is made and over act is done the conspiracy is complete (cannot
abandon)
 Abandonment is NOT a defense to conspiracy
 Important because if D withdraws from conspiracy, then he can avoid liability for crimes
later committed in furtherance of the conspiracy
 D MUST communicate withdrawal to each co-conspirator
Conspiracy as a theory of liability:
Definition: a way in which one can be held criminally liable for the criminal actions of another
 Conspiracy liability
o D is responsible for the criminal acts of his co-conspirators
o BUT: this is limited by the Pinkerton Doctrine which holds a defendant liable
for only those actions that are “in furtherance of the conspiracy”:
 A term of the agreement; or
 A reasonably foreseeable consequence of the agreement
Unit VI: Theft
$500 value (or more) item stolen  felony theft (sometimes called grand theft)
Larceny
Elements:
 Trespassory taking (actor has no right to use the property)
 Carrying away (no matter how slight)
 Personal property
o Can be services
 From possession of another
 To permanently deprive
*Intent to permanently deprive must happen at the same time as trespassory taking
Problem: at the time of the taking, they had permissions (therefore not trespassory taking)
 Solved by Larceny by trick
Larceny by trick
 When the owner gives consent to a temporary possession for limited purpose
o Gives custody to another but retains constructive possession
o Trespassory taking occurs when limited purpose is over
o Custody: when one has physical control over an item; usually for a short period of
time, but the right is severely limited
o Possession: legally greater dominion over the property than above; control over
an item to use it in a reasonably unrestricted manner
 Larceny by trick happens when item is misappropriated with the intent to permanently
deprive
o Constructive possession: when one not in physical control, but no one else has a
right beyond limited purpose either
 Recognized when:
 Employer delivers property to employee to use for a specific
purpose


Lost or misplaced items
o Rule: when you lose an item  construct possession if
reasonable clue of ownership
o Reasonable clue of ownership if finder:
 Knows who owner is; or
 Reasonable grounds to believe from nature of
property/circumstances around loss that owner will
be ascertained
o It matters what the mens rea was when the person takes
control of the property
 If at the time had intent to permanently deprive
thereof **has to be at the time of the taking
Temporary handling of property of another to complete a
transaction (ex. Test drive)
Embezzlement
Elements:
 Fraudulent conversion (bad motive/intentional)
o Interferes with owners right to the property
 Does not have to be permanently deprive
 Of property of another
 By one who is already in lawful possession of it as a result of entrustment by owner
(fiduciary duty)
Ex. Mills
 Not larceny because no trespassory taking
 Not embezzlement because not in fiduciary relationship
Robbery
Assault + larceny
 Assault
o General intent
o Threat of bodily harm and present apparent ability to cause harm (reasonable fear
that you will be hurt)
o Also attempted battery*
 Battery
o General intent
o Unconsented touching of another
o Harmful for offensive touching
 Don’t have to cause injury
 Aggravated battery
o Battery in which touching causes serious bodily injury
 Risk of death; permanent disfigurement; loss of limb; etc.
*not a robbery if you don’t feel it
Elements:
 Larceny
o Trespassory taking/carrying away of personal property of another with the intent
to permanently deprive
 From a person (physical person or immediate control)
 By use or threat of force (however slight, victim must experience something)
Burglary
Breaking and entering + felony (often larceny)
Elements:
 Breaking and entering (you don’t have to break a physical thing)
o No matter how slight  break the plane or threshold
o Must be broken by a part of the body or a tool that is an extension of the body
 Dwelling of another
o You don’t have to know it’s a dwelling
o Dwelling  can be litigated (residence, someone lives there, etc.)
o Of another (can’t be the owner of the house)
 With intent to commit a felony therein
o More than $500 value
o Does not just have to intent to commit larceny
o What is the felony/crime?
 What is the specific intent for the target crime?
o WHAT IS TARGET FELONY?
*intent to commit the felony has to be at the time of the breaking and entering
Larceny by trick v. Embezzlement
Larceny by trick
 Initial taking obtained by deceit,
therefore never lawfully possessed
(although in custody of the item)
Embezzlement
 Defendant received lawful possession
of property, then fraudulently
converted
 Fiduciary relationship (relationship of
trust)