Criminal law outline Slobogin
Criminal law outline
Table of Contents
Defining criminal law............................................................................................................. 3
Theories of punishment ........................................................................................................................................3
Guiding principles ................................................................................................................................................4
Defining criminal intent (mens rea) ........................................................................................ 6
General intent .......................................................................................................................................................6
General intent plus ...............................................................................................................................................7
Specific intent ......................................................................................................................................................8
Mistakes ............................................................................................................................... 9
Mistake of fact .....................................................................................................................................................9
Mistake of law......................................................................................................................................................9
Strict Liability ...................................................................................................................... 11
Model Penal Code ............................................................................................................... 13
Theft ................................................................................................................................... 15
Robbery ....................................................................................................................................... 15
Burglary ....................................................................................................................................... 16
Larceny & embezzlement ............................................................................................................. 17
Mistake & abandonment ............................................................................................................. 18
Drugs .................................................................................................................................. 19
Possession ................................................................................................................................... 19
Possession w/intent to distribute ........................................................................................................................ 20
Quantity of drugs possessed or sold ............................................................................................. 21
Drug free zones ............................................................................................................................ 21
Inchoate crimes and accomplice liability .............................................................................. 23
Attempt and legal impossibility .................................................................................................... 23
Complicity/aiding and abetting .................................................................................................... 25
Conspiracy ................................................................................................................................... 26
Homicide ............................................................................................................................. 29
Actus reas ........................................................................................................................................................... 30
Attempt and complicity for homicide ........................................................................................... 31
Murder ........................................................................................................................................ 32
MPC murder ....................................................................................................................................................... 32
First degree murder (CL) ................................................................................................................................... 32
Second degree murder (CL) ............................................................................................................................... 33
Felony murder ............................................................................................................................. 34
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Criminal law outline Slobogin
Death penalty ..................................................................................................................................................... 35
Manslaughter (provocation) ......................................................................................................... 35
Voluntary manslaughter (CL) and manslaughter- EMED (MPC)...................................................................... 36
Involuntary manslaughter (CL) .......................................................................................................................... 37
Negligent homicide (MPC) ................................................................................................................................ 37
Rape ................................................................................ Ошибка! Закладка не определена.
Defenses ............................................................................................................................. 38
Self defense in general ................................................................................................................. 38
Self defense in the home .............................................................................................................. 40
Duress/necessity.......................................................................................................................... 41
Sentencing .......................................................................................................................... 42
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Criminal law outline Slobogin
Defining criminal law
Theories of punishment
-Retribution: moral; backwards looking (opposite of utilitarianism); wrongdoing merits punishment,
morally fitting that person who does wrong should suffer in proportion to the wrongdoing even if the
benefit to society is not great.
 Looks at suffering of victim to determine the level of punishment
 Actor made a decision to do something wrong, indicating he has capacity to choose.
 Punishment requires moral blameworthiness- a responsible agent who was making a free choice.
 Amount of punishment will depend on
o Harm caused (proportionality)
o Mental state of actor (culpability)
 Critiques: how does punishment ‘make up for’ the harm to society?; determining the
proportionate punishment for harm caused is difficult; could lead to vigilantism
UTILITARIAN
-Argument about respect for the law being undermined or enhanced
-Utilitarian: forward looking; goal is to prevent crime from happening again (harm). Only punish if some
‘good’ is achieved by doing so.
 Reinforces norms and informs the community of the proper standard of conduct and
expresses victim’s worth (other people know it’s a crime)
 Increases respect for the system
 Reduces vigilantism
 Includes deterrence, incapacitation, and rehabilitation
 Critique; difficult to put the public on notice for what punishments crimes have; disparity across
jurisdictions.
-Deterrence: economic; punishment to prevent future harms—the pain of punishment is justified based
on the lesser pain that will result in the future
 Whether to punish depends on level of deterrence
o General deterrence- D is punished in order to convince general community to forgo
crime; D’s punishment serves as a lesson to others.
 Money damages do not deter the very rich or very poor; crim law is better than torts.
 Does not require moral blameworthiness.
 Notice is required for effective deterrence; may target groups with notice if they are more likely
to commit crimes.
 Credibility of threat matters.
o Also means that plea bargaining, early release, etc. undercut deterrence b/c criminals
know how to avoid full punishment and are less likely to be deterred.
 Crimes of passion are arguably less likely to be deterrable
 The threat of punishment, not the actual punishment, is what matters.
-Individual prevention
 Specific deterrence- punishment makes D himself less likely to commit a crime in the future.
 Rehabilitation- treat person until he can perform productively in society; we still want to prevent
future harms  parole boards will determine when a person is cured.
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Criminal law outline Slobogin

o Punish if the condition can be ‘cured’
o Punish only until the person is rehabilitated—could lead to indeterminate sentencing
Incapacitation- imprisonment prevents D from committing crimes, preventing harm to society
o Punish if person is dangerous to society
 Not dependent on blameworthiness.
o Punish for the amount of time necessary to remove the risk.  explains the establishment
of parole boards
o Opponents argue it is not possible to determine who will commit crimes again. (and
locking everyone up for long periods of time is too high a price to pay).
o Theory that most criminal activities are market driven, so even if one person is locked up,
another will take his place to supply the ‘good’ (e.g. drugs, theft)
Regina v. Dudley- two men stranded at sea kill and eat the third (weakest) who is about to die. Court held
they were guilty of murder. Argue their action did not constitute murder
 No deterrence argument b/c the situation was extreme and unlikely to happen again.
 Retributist argument applies.
 Homicide is not justified unless “necessity” – not present here. Necessity is taking another’s life
to save your own.
o But we cannot allow temptation to serve as an excuse b/c it could lead to crimes that the
criminals try to justify by saying “necessity” when a victim was not threatening you or
anyone else. (Does not qualify as self defense)
Fuller Hypo- Spelunkers got stuck in a cave and a doctor told them they would likely die before they
could be rescued. If they were to eat one person they would likely live.
 If it is the job of the judiciary to apply the law strictly as written, the spelunkers should be
hanged.
 If it is the job of the judiciary to apply the law as it should be, they should not be hanged.
Kellogg- Homeless alcoholic arrested for public intoxication. Argues 8th cruel and unusual punishment
b/c he can’t drink in private and will experience withdrawal if he doesn’t drink. Agrees he violated the
law, but believes he should not be punished.
 You cannot impose criminal liability on a person for a condition/addiction, but you can punish
behaviors that will create a moral hazard (punishing conduct – public intoxication).
 Court upholds punishment. His conduct clearly imposes potential for harm to others.
 A state statute may constitutionally impose criminal liability on a person for improper conduct,
even if the conduct is the result of a condition or status that cannot be constitutionally penalized.
Guiding principles
Proportionality doctrine- The 8th amendment requires a rough correspondence between the severity of
the crime and punishment. Used by SC in capital cases.
Vagueness doctrine- Due Process clause (no deprivation of life and liberty without due cause) requires
that a crime be defined with enough precision to inform potential offenders how to avoid punishment
 A law can be invalid for vagueness based on the conduct it prohibits or b/c it encourages
discriminatory/arbitrary enforcement
 E.g. vagrancy and loitering statutes
 Only works if vague in all applications (insufficient notice to public)
-Purposes of doctrine:
 It must give public sufficient notice
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

Minimize discretion in prosecuting people for the crime (breadth)
Avoid chilling innocent behavior (first amendment freedoms)
Nash- D violated Sherman Act and asserts vagueness doctrine (unreasonable restraint of trade = illegal 
lacks notice), but the court upholds the statute. The law does require a man to estimate what is reasonable
conduct (conspiracy) sometimes. “you know restraint of trade when you see it” – would a common social
duty suggest more circumspect conduct?
 A statute criminalizing a person’s conduct is constitutionally enforceable even if the statute
requires some degree of estimation by the person as to whether the conduct is prohibited.
Gray v Kohl - P passed out Bibles in 500 ft school safety zone. Statute only allowed presence if one has
“legitimate business” – P had no reason to believe his conduct was criminal.
 Court strikes down part of statute that says a person must have “legitimate business” to be outside
school b/c it did not give notice (lots of businesses in area), but upholds ban on harassment
outside schools b/c that term was defined in the statute (have to leave after school officer asks
you to leave after reasonably anticipating criminal conduct/student harassment  not vague).
 Vagueness may invalidate a statute b/c:
o It fails to provide the kind of notice for people to understand what conduct it prohibits
o It encourages arbitrary or discriminatory enforcement (14th due process)
Morales- Statute said people w/no apparent purpose and appear to be in a gang will be asked to disperse
and fined if they don’t.
 Statute could lead to arbitrary enforcement but does give notice through asking to disperse. This
notice is NOT sufficient b/c it still leaves the public uncertain as to what conduct is prohibited
and there is no notice in regards to who will be asked to disperse.
o Loitering definition = does not distinguish between innocent/criminal conduct + office
order to disperse not helpful (given after conduct occurs  vague as to where they must
disperse)
o Gives police broad discretion to determine loitering “for no apparent reason”
 A criminal law is unconstitutional under the Due Process Clause on vagueness grounds if it either
fails to give adequate notice of the prohibited conduct or permits arbitrary/discriminatory
enforcement of the law.
Rule of Lenity- If the statute is vague/ambiguous, interpret in favor of D.
 Keeler: D stomped on pregnant wife and killed fetus - exonerated b/c statute defined human being
with intent to allow abortion doctors to continue work.
 Rule of Fair import: find the plain meaning of a statute, legislative history, rules of statutory
construction
o Goal is to not frustrate legislative purpose.
Double Jeopardy
o
o
o
If crimes are distinct, then the offenses can be stacked (Carter – larceny and robbery
were distinct crimes, not a lesser included offense so could be stacked)
when the same criminal conduct violates more than one statute, offenses are different if
each requires proof of an element that the other does not. If each requires proof of an
element the other does not, then neither can be included within the other.
To stack crimes, each must require proof of an element the other does not –
Blockburger test
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Criminal law outline Slobogin
Defining criminal intent (mens rea)
Crimes are composed of:
 Conduct: elements that describe D’s prohibited act
 Circumstance: elements that describe the factual conditions under which D acted
 Result: specific harmful consequences that were caused by D’s act.
Common law intent definitions




Intentionally – ∆ hopes or wants to engage in conduct/to cause result/that the fact exists
o Desire/conscious object to cause the social harm, or if ∆ acts with knowledge that social
harm is virtually certain to occur as the result of conduct
o Willfully = typically means intentional
Knowingly – ∆ knows or believes he is engaged in conduct that will cause result/that the fact
exists
o Aware of the fact; correctly believes the fact exists, or willfully blind or deliberately
ignorant and takes deliberate action to avoid or purposely fails to investigate fact
Recklessness – ∆ is aware of the risk he is engaged in the conduct/that the result will
occur/or that fact exists but acts anyways (crossed his mind)
o Disregard of substantial and unjustifiable risk of which he was aware (subjective fault
standard, must show ∆ was aware, but there are object ways to create presumption)
o Harder to ptove: prove D knew risks/consequences
Negligence – ∆ should have realized he was engaged in conduct/that result would occur/or
that fact existed, but it didn’t occur to him (objective: reasonable person would realize)
o Conduct that deviates from the standard of care that a reasonable person would have
observed in the actor’s situation that creates unjustifiable risk that is objectively fault
worthy
o Criminal negligence = gross deviation
o If a reasonable person in the ∆’s position would have been aware of the risk involved,
then ∆ is presumed to have had such an awareness
General intent
General Intent: intent with respect to conduct (intent to commit the act). This is the standard that applies
to most crimes and courts will presume it unless there is a good reason to use specific intent.
 Where statute merely describes an act without reference to intent to any further result or act, the
question is whether the defendant simply intended to DO the proscribed act.
 Less defendant friendly – easier for prosecution to prove
 Focuses entirely on the conduct elements  requirement is that defendant engaged in the conduct
intentionally or consciously.
 Notion that the act itself is predictive of the harm
 Crime is “complete” once the forbidden act is committed (not punishing underlying motives but
the act itself)
 Crimes of physical violence  usually general intent
 Magic words = “willfully, maliciously”
 Can usually think of negligence or recklessness as general intent crimes.
-Typically, when a statute merely describes an act, without reference to intent or to do any further act or
to achieve any specific consequence, the question is whether D intended to do the proscribed act.
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Criminal law outline Slobogin
-For general intent, P only needs to prove the intent of D to do the conduct (and sometimes circumstance
elements need to be present). Do NOT need to prove that the consequences were intended.
Rationale
-The act itself is predictive of harm.
-Specific intent is harder for P to prove.
-Crime may be complete once the proscribed act is committed.
D can argue honest + reasonable belief
Stark- D intentionally diverted funds from one construction project to pay for another but he intended to
pay back the money.
 “Willfully fails” and “wrongly diverts” in statute  general intent  D intended to divert the
funds (that’s the only mens rea required; we don’t care about the consequences)
 D: specific intent via Dollar threat (court disagrees, statute doesn’t care why he diverted)
 A crime under a state penal statute that describes a prohibited act, but does not require intent to
cause a certain consequence or commit a future act, is properly classified as a general-intent
crime.
Sargent- D shook his baby and the baby (born premature) almost died. This is a case of active child abuse,
so P only had to show general intent – that D intended to shake the baby.
 “willfully inflicting unjustifiable physical pain under conditions likely to produce great bodily
harm or death”  D argues specific intent (statute language implies knowledge: maybe he
shook baby to stop crying) and court disagrees (this is general intent, prove he shook baby
intentionally, reasons irrelevant  reasonable person infers shaking child = injury)
 The circumstance that act is likely to produce great bodily harm or death is also required in the
statute. But this does not negate the need for general intent. Just acts as an objective plus factor
 (Cases about passive child abuse/neglect require an element of criminal negligence (plus factor))
 Under California law, a conviction for felony child abuse based on direct abuse does not require
criminal negligence in addition to general intent to perform the prohibited conduct.
General intent plus
General Intent PLUS: for certain general intent crimes, courts require something more, a “plus” factor
that the government must prove in addition to the ordinary general intent standard.  the plus factor has
to do with the result.
 Usually the plus factor has to do either with the risk of harm the defendant’s conduct wrongfully
created, or the deliberate commission of an act known by the defendant to be wrongful.
 Criminal Negligence + Malice  both “plus” factors – so the requirement would be GI to
commit the conduct + gross negligence or recklessness w/r/t the result.
 Used for failure to act when there is a duty (e.g. passive child abuse cases)
In Re VV- Two boys threw firecrackers on dry brush (wanted to hear noise), causing a fire. Statute says a
person is guilty of arson when he ‘willfully and maliciously’ sets fire to forest land.
 Court holds this is general intent plus crime (specific intent not required)
 Intended to set fire by intending to throw the firecracker down hill.
 Court also holds his act was malicious b/c his intentional act created an obvious fire hazard
without justification (aware of fire risk  friend refused to light + purposefully aimed at areas
less likely to burn  intention for brush to catch fire is irrelevant
 Under California law, arson is a general-intent crime that does not require a specific intent to start
a fire or cause the burning of a structure, property, or forest land.
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Criminal law outline Slobogin
Fennell- D threw lit firework into barn of horses. Even if he didn’t intend the result (to injure horses), he
intended to throw the firework into the barn. – D is guilty of the general intent crime.
 P must also prove D acted with malice with respect to the result: he knew the conduct was wrong
and disregarded the risk that the horses would be injured.
Specific intent
Specific intent: P must prove: Intent to do that act + intent to cause the result
 Theft and fraud usually require specific intent
 Crim law punishes the specific intent version of a crime more harshly than the GI version
 “With intent to”
 Committing the act can indicate the mens rea re: intent as to result
 Act itself is generally not predictive of the harm
Defense: Honest mistake re: circumstances
Justification:
 Law allows distinction between GI and SI crimes
 Holmes: law uses SI to criminalize actions before they are brought to fruition
 SI and GI used to distinguish between crimes committed while intoxicated (may negate SI)
Schminkey- D drunkenly left a bar and took someone else’s car w/o consent, ran through intersection, and
killed someone. Is the taking of the car theft b/c theft requires specific intent?
 Court holds that theft requires the intent to deprive permanently, and D could not be guilty of
theft b/c there is no evidence of what he was going to do with the car b/c he was caught so
quickly after taking it  taking without consent does not infer permanent deprivation
 Theft of a vehicle requires the intent to permanently deprive another person of his or her vehicle.
Morris- A man was warming up his car when D got in and drove away. Police found the car a few
minutes later while D was still driving it. D fled on foot but was caught. Court held state could not prove
SI (intent to permanently deprive). Fleeing on foot ensures the car will be returned to the owner.
 Catching a thief shortly after the taking limits evidence that would prove SI.
 Although the intent to permanently deprive happens at the time of the taking, without D’s
confession, you can’t prove that easily if you catch him right after.
Orsello- Ex-husband is convicted of stalking his ex-wife after repeatedly contacting his children. Court
held that, although the statute did not specify an intent, SI applied (language = intentional conduct… but
conduct is general = act “in a manner that would cause a reasonable person to feel oppressed”)
 GI would mean one could be guilty of accidental stalking—D needs to have at least the
knowledge that the harm (e.g. making victim feel super uncomfortable) will occur.
 The mere fact wife felt harassed is not enough for specific intent. Harder to convict harasser.
With specific intent, harasser can lie and say they didn’t intend to harass (but maybe there’s
circumstantial evidence saying there was intent
Intoxication
-Intoxication is not a defense to a crime, but can be helpful when a statute requires SI b/c D might not be
capable of forming the requisite intent at the time of the act.
 Growing number of states never allow intoxication to negate SI, but will differ by jx.
 NEVER allowed to negate GI. (culpable in getting drunk in public)
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Criminal law outline Slobogin
Mistakes
Mistake of fact: I didn’t think I committed X [theft/bigamy]
-For GI cases, valid defense requires an honest + reasonable mistake about circumstances.
-For SI cases, mistake just needs to be honest about the circumstances.
 Rationale: For GI cases, we want D to take reasonable steps before engaging in what might be
criminal activity. GI is more about actions.
o For SI cases, if a D is mistaken about a set of facts, he likely doesn’t have the requisite
mens rea. Practically, though, jury will likely consider reasonableness in determining if a
mistake was honest.
 Mistake is NEVER a defense for strict liability crimes.
-Mistake is a question of circumstances. Circumstances are not changeable by the D.
 Intent does not do a good job of addressing circumstances. A mistake may mean no culpability
regarding the circumstances.
-Defendant should always try to characterize a mistake as a mistake of fact! (& want specific intent)
Oglivie: D soldier got remarried under mistaken belief he was divorced.
 Conduct: Got remarried without a divorce
 Circumstance: married to two people
 Result: Bigamy
 Bigamy is a GI crime, so need honest + reasonable belief. D honestly thought he was divorced,
but not reasonable b/c he did not do his due diligence to ensure he was no longer married
 Also convicted of making a false statement b/c he made a copy of a divorce decree and put his
name on it. Court held this was a SI crime, so he only needed an honest belief he wasn’t making a
false statement.
o He was exonerated of this crime b/c his mistake was honest
 Also convicted of altering a public record. But he altered a copy, not the actual record, so his
conviction was overturned.
o This is more about actus reas than mens rea.
Binegar: D was found guilty of stealing contact lenses b/c he gave them out to those not entitled to them
against procedure b/c no one followed procedure  court overturned
 Essentially a charge of theft: SI crime (honest mistake of fact standard).
 Court held his belief it was okay was honest b/c his supervisors didn’t follow the regulations and
he had no official training  mistake was about the circumstance that the conduct was wrongful.
 Seemed like mistake of law, but D made it seem like mistake of fact enough!
Stagner: Charged with possessing stolen property after friend told D he bought the car and she bought it.
 Mistake was about whether the car was stolen.
 Possession is GI, so mistaken belief needs to be honest and reasonable.
Mistake of law: I didn’t know X [theft] was a crime
-Mistake of criminal law is NEVER a defense. Saying you did not know something was a crime is not
an excuse.
 We don’t want people to define what the law is. That is the legislature’s job.
 Belief that your conduct is morally right is not a defense and neither is ignorance.
 Would rather people not engage in potentially criminal conduct if a statute is ambiguous.
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Criminal law outline Slobogin

EXCEPTION: An honest claim of legal right to allegedly stolen property may excuse D from
liability if the crime requires proof of SI and the mistake is made in good faith. (e.g. D believes
that he is the owner of X’s car and proceeds to take it “back,” D is not guilty if mistake is made
in good faith)
-Mistake of civil law MAY be a defense if it is made in good faith and negates mens rea.
-MPC 2.04(1)(a): Mistake of criminal law only allowed when D has statement from public official (e.g.
AG) that is actually invalid (page 224 of textbook)
 Does NOT permit a defense for someone who acts in good faith upon a mistaken belief that a
statute authorizes his conduct (Marrero).
 Mistake of civil law/fact is recognized if it negates mens rea.
Marrero: Federal corrections officer was arrested in a night club for possession of a firearm that he
mistakenly believed he was entitled to carry under a statute authorizing the action for “state peace
officers.”
 D: state officers should be considered peace officers in statute interpretation (“I mistakenly
believed I was state officer” = mistake in fact)
 Court says mistake does not apply to him b/c he was mistaken about the law’s application to him.
 mistake of law.
 Court notes that a mistake defense could be valid in this case if the law actually authorized his
conduct and there was later found to be a mistake in the law itself. Here, the statute wasn’t
mistaken: D was mistaken about what the statute meant.
 One who violates a statute may not raise a good faith mistaken belief as to the meaning of the law
as a defense.
Darab: D was arrested for disorder in a mosque. He thought he could not be removed from the mosque
based on the fatwa (religious freedom to remain in the mosque).
 Court held that morality/religion is a not a valid mistake of law defense and does not amount to a
bona fide belief of legality.
 More accurate to say that Ds disagreed with the law’s application to them, not that they were
mistaken about the law.
Varsgezi: D, landlord, broke into victim’s apartment (tenant) and took her property to recover rent, which
he was authorized to do in the lease contract.
 Theft is a SI crime. Here, mistake of fact (that he had a lawful claim to the property) is valid b/c
it negates SI  not stealing if not property of another (reality says otherwise but honest belief)
o Does not even have to be a reasonable belief (just honest – lease authorized it!)
 Could also be viewed as a mistake of civil (contract) law b/c he was “authorized” to take her
computer in the lease contract
 a good faith/honest claim of legal right negates the required intent for larceny (reasonableness not
required)
Questions to ask!
-Was the mistake about circumstance or conduct/result?
 Circumstance: element outside of D’s control/can’t change.
 E.g.
o Benigar- mistake about whether he was authorized to give out contacts
o Ogelby- mistake about whether he was divorced
o Stagner- mistake about whether a car was stolen
-Is it SI or GI?
 SI = honest
 GI = honest + reasonable
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Criminal law outline Slobogin
Strict Liability
***CL only, NOT MPC. Mistake is not a defense.
-Mostly traffic crimes or other low level offenses.  generally a failure to do something.
-Only requirement is that D meant to engage in the physical conduct (or lack thereof) that leads to the
actus reas (difference from GI, see below)
-P does not have to prove any mens rea.
-Generally involve activities likely to be regulated and that carry a risk of harm to the public
Policy reasoning
-Proof issues w/certain crimes. Might be really hard to figure out what is true and false.
-Whatever the intent of the D, the injury is the same.
-Provides maximum deterrence (we don’t care why you were speeding).
Loge- D cited for driving with an open container in his car he allegedly didn’t even know was in the car.
Court upheld strict liability of the statute. Presence of open container = guilty (vague staute language of
kept/allow)
 Imposed even though it imposes an affirmative duty of care.
 No mens rea term (willfully) = it’s fine b/c it’s a low level crime. Also there were mens rea terms
for the other parts of the statute (“consciously exercising domain” = knowledge) so omission here
was intentional
 Could’ve also been GI+ (negligence b/c a reasonable person would’ve looked to make sure no
open containers).  would’ve been GI+ if “willfully” had been in the statute
 In a prosecution under Minn. Stat. § 169.122(3), the State need not prove that the driver and sole
occupant of a motor vehicle on a public highway knew of the existence of the open bottle
containing intoxicating liquors in the motor vehicle.
Kremer- D ran a red light due to brake failure. Court held he was not strictly liable b/c he did not intend
to engage in the physical conduct that led to the actus reas.
 Slobogin thinks Loge closer to Kramer, maybe decided wrongly
TRD- D failed to mail in his sex offender registration. D tried to say P had to prove he knew he had a duty
to mail it in. No mens rea term in statute (offendors given lots of prior notice to mail).
 Court holds it is a strict liability offense, so P does not have to prove any mens rea.
 Policy:
o Based on the consequences to society regardless of intent and D is in the best position to
prevent the harm
 Crime of failing to comply with sex offender registry requirements is a strict liability offense
Kansas v Hendricks (see Loge doc)
GI v. SL
-In GI, D intends to do a specific action that causes a result (and maybe didn’t intend the result. We don’t
care though).
-In SL, there was inaction where D had a DUTY to act.
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Criminal law outline Slobogin
Conduct
Circumstance
Result
Strict Liability
Do not have to
show underlying
intent
N/A
Specific Intent
Know or intend 
Prosecution has to
show the ∆
knew/made a
mistake about
Intend to bring about
the result
N/A
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General Intent +
General Intent
Prosecution has to show a reasonable
person would know about ...
Negligence or
recklessness
If ∆ intended
underlying
conduct, doesn’t
matter what result
∆ intended
Criminal law outline Slobogin
Model Penal Code
-Goal: to simplify the law and make it more predictable by leaving less up to judges to decide. (and more
for legislators to decide)
-Big focus on mens rea.
-Mistake can only be a defense if it negates the MR.
-Intoxication can only be a defense if it negates the purpose/knowledge MR of the crime. Being drunk =
reckless/negligent.
Differences w/CL
-Replaces GI and SI with 4 mens rea terms
-Precise in terms of the actus reas terms required.
-Applies a MR term to each element, while CL applied an intent standard to the entire crime
Rules for analysis
-Recklessness is the default MR term. Takes the place of GI.
-If statute has one MR term, that is assumed to apply to the entire statute unless a contrary purpose plainly
appears.  pay attention to the commas and where the MR term appears (if at the end, likely
applies to just that last part)
-Determine the material elements by asking what the legislature is concerned about.
Page 202 (section 2.02)
PURPOSE
RESULT
∆’s conscious
object is to cause
result (intentional)
∆ is aware or
practically
certain that
conduct will cause
a result
CIRCUMSTANCE
∆ believes or is aware
of the circumstances, or
hopes they exist
∆ is aware of high
probability that
circumstances exist
CONDUCT
∆’s conscious object is
to engage in the
conduct
∆ aware his conduct is
of that nature
RECKLESSNESS
(default term)
Not intending or knowing, but
being aware of a substantial
risk
-SUBJECTIVE: consider RPP
in D’s situation and
circumstances.
∆ consciously
disregards
substantial and
unjustifiable risk
that element will
result from
conduct
∆ consciously
disregards substantial
and unjustifiable risk
that the proscribed
circumstances exists
Consciously disregards
a substantial risk that
he is engaging in the
proscribed conduct.
NEGLIGENCE
Moves away from subjective
definition to whether the
person SHOULD have been
aware of substantial material
risk
∆ should be aware
of substantial and
unjustifiable risk
that material
element will result
from conduct. D
fails to perceive.
∆ should be aware of
substantial and
unjustifiable risk that
material element exists
∆ fails to perceive
substantial and
unjustifiable risk that
he is engaging in this
conduct
KNOWLEDGE
You know you’re engaging in
the conduct and are aware of
the circumstances

Willfully
-OBJECTIVE: gross departure
from RPP conduct
13
Criminal law outline Slobogin
-Purpose/knowledge: akin to SI under the CL. The focus is on D’s cognitive fault: What D did and did
not know, his subjective understanding of his conduct and circumstances, and his subjective intentions as
to the result of his conduct.
-Recklessness/negligence: akin to GI under the CL. More about the moral quality of D’s conduct. How
little he valued the costs of his behavior
Ducker- A woman left her two infants in a car all night and morning while she got drunk in a hotel room.
When she came back, they had died. She was convicted of aggravated child abuse. The statute required
she knowingly commit the crime. D argument: I did conduct (left in car) but did not know it would lead to
result element (serious bodily injury) because of mental illness/drunk. Court disagrees. P says mom
should’ve known based on past history (and wasn’t drunk when left kids in car).
 Conduct: knowingly left them in the locked car
 Circumstance: knew it was hot, knew they were children
 Result: was aware her conduct was reasonably certain (TN statute) to cause harm.
Example
A person commits a misdemeanor if, knowing he has no privilege to do so, he falsifies, destroys,
removes, or conceals any writing or record, with purpose to deceive or injure anyone or to conceal
any wrongdoing.
(1) Conduct: Falsifies, destroys, removes or conceals
 Mens rea: reckless—it appears that “knowing” doesn’t apply to the actual act b/c of the commas.
(2) Circumstance: he doesn’t have the privilege, and the item is either a writing or record
 Mens rea for privilege: knowing (knowing he has no privilege to do so)
 Mens rea for writing or record: recklessness
(3) Result: deceive or injure or conceal wrongdoing
 Mens rea: purpose (must have intent to deceive or injure)
14
Criminal law outline Slobogin
Theft
Basic Elements of Theft:
(1) taking (conduct)
(2) property belonging to another (circumstance)
(3) with the intent to permanently deprive (result)
Criminal law of theft traditionally focuses on 3 main crimes:
1. Robbery: theft by direct, person to person force (theft + assault)
2. Burglary: form of trespass rather than theft; force is directed against a home/dwelling
3. Larceny/Embezzlement: non-violent theft; stealth rather than threatened violence.
Basic Elements of Assault:
(1) assaultive conduct (conduct)
(2) human being (circumstance)
(3) intimidation/fear/pain (result)
Robbery = theft + assault
-Theft by direct, person to person force (assault).
-Specific intent.
Elements
 Taking
o Carrying away or changing location where complete control is transferred from the true
owner to the thief. (Can be a very small change in movement if the thief intended to gain
control & possession of the good (Lardner in Notes)).
 Property belonging to another
 W/intent to permanently deprive
 By force or threat of force (assault)
o May not even need touching, just conduct that will cause fear of touching.
o In some jx, all that is required is a subjective intent to cause fear, which can be inferred
from circumstances (See Keeton).
o If the statute requires specific intent for the assault, must show that D intended to cause
fear or injury to the victim.
Rationale:
-Theft w/addition of force is inherently more dangerous than other types of theft.
-If you take something by force, we can assume you had the intent to steal (Holmes).
Keeton: D stole $20 money from store, and clerk tried to block his exit. She moved after he extended his
arm towards her, she grabbed his cap, he left. Was clerk really intimidated?
 Court held that D’s actions (moving his arm) could support an inference of intent to place the
clerk in fear of harm. She had to let him leave store.
 CL statute says this is GI but has SI language (weird) – court doesn’t want to address this.
o In most jurisdictions: assault is GI and aggravated assault is SI (this place is fucked up)
15
Criminal law outline Slobogin

Under state law, the mens rea of the assault element of a robbery offense is satisfied if the
defendant intended to cause pain or injury; make offensive or insulting physical contact; or make
the victim fear immediate painful, injurious, insulting, or offensive physical contact.
Federal law robbery
-Punishes robberies that affect interstate commerce and bank robberies.
-If state can also charge the crime (as with a bank robbery), double jeopardy doesn’t apply (fed + state
can both convict)
Carter- D, unarmed and wearing a ski mask, went into a bank and stole money.
 Court holds that federal bank larceny is not a lesser offense of federal bank robbery but, rather,
are separate offenses b/c there is at least one different face P has to prove in the offenses.
o Larceny requires the intent to steal and the property must exceed value of $1000.
Robbery is silent on both issues.
o Larceny also says “take and carry away” and robbery says “take”
o See Blockburger Test below
 Federal Bank Robbery
o Taking (conduct) + federal bank (circumstance) + from person/presence of another
(circumstance) + by force/violence/intimidation
 Federal Bank Larceny
o Taking + asportation/carrying (conduct) + property of another (circumstance) + federal
bank (circumstance) + value greater than 1000 (not element) + intent to steal
 Court: larceny not lesser offense of robbery, jury does not have to consider larceny if
deciding on robbery
 Even though at common law, larceny may be a lesser offense of robbery, Congress clearly meant
them to be different crimes based on the construction of the statute.
o So at common law, Carter likely would’ve succeeded on his claim b/c robbery is larceny
but with “taking” being accomplished by force.
o Federal law is a mess, does not actually call it larceny/robbery
 Under Schmuck v. United States, 489 U.S. 705 (1989), the jury may be instructed on and an
individual may be found guilty of a lesser offense than the charged offense as long as the
elements of the lesser offense are a subset of the elements of the charged offense.
Burglary
-Specific intent
Elements (CL)
 Breaking and entering
o We don’t really require “breaking” anymore, just “entering”
 The dwelling of another
o MPC specifies it must be at least a separately secured room
 In the night time
o No longer relevant
 W/intent to commit a felony
o Intent is formed before entering
o Specific intent
o You do not have to actually commit the felony to be guilty of burglary
-Modern elements: Entering/dwelling of another/ with intent to commit a felony (formed before
entering)
16
Criminal law outline Slobogin
-If you can’t get them for burglary, can sometimes get them for possession of burglary tools.
Sparks- D entered house as a salesman, formed the intent to rape, then entered D’s bedroom after she
asked him to leave and committed the rape.
 Court found him guilty of burglary b/c entry into another room is burglary when intent was
formed in a different room in the house.
 Rationale: entry into a bedroom raises the risk that a burglar will come into contact with home
occupants and harm will occur
 He would not be guilty of burglary under MPC b/c the bedroom is not a separate dwelling
(separated secured/occupied standard)
 CA precedent is odd, not MPC or common law (why is it worse crime to form intent in kitchen
and steal from bedroom compared to forming intent/stealing in kitchen)?
o Young: railway office is different room from railway station
o McCormack: bedroom is different from kitchen– intent formed before entry into room
o O’Keefe: college dorm is like apartment, not single family home
o Thomas: garage is separate from kitchen
o Elsey: stealing from six classrooms in same school  6 counts of burglary
Larceny & embezzlement
-Specific intent
Elements of larceny
-Taking or carrying away
 Complete control transferred to thief
 Can be a very small movement (just need the thief to have gained control)
-The property of another
 Can be intangible. Under CL, it had to tangible
 Value is fair market price at the time of the theft
-W/intent to permanently deprive
 Circumstances in which the owner is unlikely to recover = inference that thief meant to
permanently deprive
 Ask: did the thief make beneficial use of the property (e.g. Perry)
Elements of embezzlement
-Conversion
-Of another’s property
-After that property was entrusted to D.
 (Keeping property rather than taking it)
Moon- D was a treasurer of a fraternity and transferred funds for personal use, though he meant to repay
it. He returned $100,000 but still had $20,000 unpaid (detailed auditing + filed for bankruptcy).
 Intent to return money was irrelevant b/c “intent to deprive” included making it unlikely the
owner would recover it.
 After D takes the money, the mens rea (intent to deprive) can occur later. MR and AR do not
have to be simultaneous.
 Under state law, a defendant who consciously uses property in a way that makes return to the
property’s owner unlikely may be liable for theft, even if the defendant intended to return the
property.
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Criminal law outline Slobogin
Perry- D stayed in a hotel for a few months without paying 15K.
 Court held that using the hotel without paying permanently deprived the business of the income
for those nights, so he could be convicted of larceny.
o Property = anything of value
o State did not have to prove that the hotel could’ve rented out that room for the nights D
stayed in them (D argument, what is hotel was empty? You cannot steal a room).
 Dissent is worried about the repercussions for landlord tenant law.
 Under state law, occupancy of a hotel room is considered property such that occupancy achieved
by deception constitutes theft.
Mistake & abandonment
-Abandoned property cannot be subject to theft (owner thrown it away)
 If D honestly thinks property is abandoned, he will have a defense b/c larceny is a specific intent
crime.
 If the crime is GI, D needs and honest and reasonable belief.
-Mislaid property can be subject to theft, even if there are no clues as to who the owner is (owner
voluntarily/intentionally places property down and then forgets about it)
 Will likely be in a public area b/c owner voluntarily parts w/property and forgets.
 CL: always theft
-Lost property can be subject to theft, only if accompanied by intent to steal and there is a clue as to who
the owner is.
 Property an owner involuntarily/unintionally parted with.
 CL: maybe theft but not if you diligently try to find owner
Coffman- A marine took and used gear that was placed in a trash room w/other abandoned property. He
asked around about it, but no one claimed it, so he used it.
 Honest belief property is abandoned is a complete defense b/c the crime was SI.
 Circumstances indicated the property could’ve been abandoned and he tried to find the true
owner.
 In a larceny case, a defendant’s honest belief that the taken property was abandoned negates the
specific-intent element of the offense.
Simms- D was charged w/tampering with a vehicle with broken windows after trying to load a stripped
Jetta onto his tow truck. He thought it was abandoned but it had actually been stolen. Was in an area
where stolen cars are known to be dumped. He saw it for a month before tampering; told a lady that he
wasn’t sure if it was stolen/abandoned.
 Crime was GI, so he needed an honest + reasonable belief the car was abandoned. Does not
seem honest + reasonable that the car was abandoned (what are the odds that someone would just
leave their car in a place where many stolen cars were? Broken windows indicate theft)
 Should’ve been more diligent to satisfy reasonable prong: call police to figure out if car was
stolen (but what if afraid to call cops)
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Criminal law outline Slobogin
Drugs
Possession
Elements
-Possession (conduct)
 Will be knowledge or strict liability.
 If knowledge, the jury can infer you knew from the proximity of the drugs.
-Of a controlled substance (circumstance)
 Knowledge
-Of a certain quantity
 Will determine sentence
 Generally strict liability b/c a sentencing enhancing factor (CL)
 For MPC, amount possessed may be element of the crime (recklessness if no other MR)
Actual possession = drugs are actually on his person. Constructive possession = drugs are in the
immediate vicinity and he can be said to exercise control over the drugs.
 Spatial proximity is not enough; there must be another element linking D to the drugs.
o Other elements that may be enough: fleeing police, large amounts of cash, etc.
Policy and MR
-It is difficult to prosecute drug crimes b/c drug offenses are hidden: there are no “victims” b/c everyone
is a willing party, so the government must prosecute Ds with incomplete information or as undercover
agents.
-Why are sentences so high? Often a pretext to punish other more violent crimes that state lacks evidence
for.
-There are also challenges of grading b/c we aren’t sure how to measure the harm of the drugs. No MR
b/c all D’s have “knowledge.” Thus, once possession is shown, the quantity is measured by strict liability
 Prosecutor will usually use the quantity of drugs
 Will use greater sentences for plea bargains or for D to inform.
-Under MPC, the amount possessed is a separate element of the crime, so MR must be proven (i.e. must
prove “knowledge” of the amount possessed- not just the drug possessed.)
 When the amount per container is well known, knowledge of the container possessed may be
enough to show MR
Kier- D was getting a ride home, driver got pulled over. Others in the car were smoking weed. She was
arrested for constructive possession b/c there was a joint on the floor in the backseat where she was.
 Prosecution had to show that D knowingly had the power and intent to exercise control over the
drugs. Can be inferred from the circumstances.
 The court found her innocent b/c there was only spatial proximity (and witness testimony that D
was not smoking it, did not evade police). P argue: well she can smell it.
 To obtain a conviction for constructive possession of marijuana, the prosecution must show that
the defendant knowingly had both power over the marijuana and the intent to exercise control
over the marijuana.
19
Criminal law outline Slobogin
Possession w/intent to distribute
Specific intent
Elements
-Possession
 Possession does not need to be exclusive
-Of a controlled substance
 May need to know it was a controlled substance (look at statute)
-W/intent to distribute
 Participation in plan to distribute can be enough – D must be more than an ordinary bystander.
Hunte- D went on a road trip w/drug dealing boyfriend. She helped roll a joint, shut the blinds when they
were loading the drugs, and drove the car with drugs in it at one point. Did not really handle the drugs
directly.
 D: barely touched drugs, just did what my boyfriend said, booked hotel (but she lied to cops)
 Court upheld conviction: circumstantial evidence was enough to establish a nexus between D and
the drugs.
 Possession does not have to be exclusive: she clearly knew about the drugs and took steps to help
hide their activities and sampled the drugs.
o Doesn’t matter if she never even touched the drugs (even though she did)
 Constructive possession may lead to conviction of a drug offense if the actor knowingly had the
power and intention, either directly or through others, to exercise dominion/control over drugs.
Garcia- D was pulled over for drunk driving, and the police found meth wrapped in black tape under
passenger seat. His car had been stolen, and he claimed to not know what was in the black tape.
 Knowledge of possession + knowledge of substance are essential elements: D was trying to
argue he didn’t know the substance was illicit (by saying he didn’t even know the package
existed)
o D had clear possession b/c he had exclusive control of the car.
 The offense of possession of an illegal substance requires knowledge of both the presence of the
substance and the nature of the illicit substance.
 (Later, FL changed the statute so that knowledge of the illicit nature was not required, but
knowledge of possession still was. Lack of knowledge of the nature of the substance was on D to
prove—makes it harder for D)
Pigford- D was hauling marijuana in his semi truck, but claimed he didn’t know it was in the bed. He was
driving from California to New York but was arrested in Louisiana (suspicious route to take).
 D had control over his trailer b/c he had the key to get back there. Guilty knowledge can be
inferred from circumstances.
o How likely is it someone would just put $50K worth of drugs in the back of his cab?
o Super off course for his delivery
o He was very nervous to have his truck checked
 For purposes of establishing guilty knowledge and constructive possession, dominion and control
over a substance can be inferred from surrounding circumstances. Guilty knowledge (essential
component to show constructive possession) may be inferred from circumstances.
20
Criminal law outline Slobogin
Quantity of drugs possessed or sold
-Quantity/selling a school zone can act as sentence enhancing factors and not as elements of the crime to
which the MR term would normally apply. (i.e. you don’t have to know the quantity of drugs you’re
possessing)
 STRICT LIABILITY, but court may read recklessness into the statute if it’s an MPC jx (or will
apply the MR term to the whole statute)
-Willful blindness: D consciously chooses not to discover information in an effort to escape legal
responsibility for his crime.
 Allows jury to impute knowledge
-Reasoning:
 Ds caught with the largest quantities of drugs are responsible for distributing the largest quantities
of drugs, which makes their behavior more reprehensible.
Whitaker- D found on a bus w/1000 gram of meth in a bag. He said it wasn’t his, he just put some of his
stuff in it. D wanted knowingly MR on quantity/importation (statute beginning says knowingly). Court
disagrees.
 Court held no MR applied to the quantity. Quantity was strict liability. (and so was the fact that
he imported the drugs). P: we need SL otherwise we will never prove drug crimes.
 Quantity is a sentencing factor, not an element of the offense. Just intended to punish greater
quantities more severely
 For conviction of possession with intent to distribute, state law does not impose a mens rea
requirement with regard to the quantity of the drug involved or the special-offender finding of
importing the drug into the state
Ryan- D possessed hallucinogenic mushrooms but didn’t know how much of the drug substance there
actually was in 2 lbs of shrooms. NY is MPC state (page 428 for analysis).
 MPC: The quantity of the drug is an element of the offense, so the MR term (knowledge) applies.
In this case, D would actually have to know the amount of drug he possessed.
o Knowledge will often be present in negotiations or in D’s handling of the material or
through typical ratios
 (Note: this seems like negligence mens rea – it is actually very difficult to prove
knowledge).
 P has to prove tht reasonable person would know drug weight in 2 lbs
mushrooms (hard to prove)  doesn’t require knowledge standard (impossible
for P to win)  Slobogin: NY mucking with MPC rules to allow this
 See how this is different from Whittaker
o State overturned this statute and held that quantity is not an element of the offense.
 Rationale: Holding D unknowingly responsible for larger quantity is inconsistent w/culpability
 The knowledge requirement in a criminal statute applies to all elements of the offense absent a
clear evidence of a contrary legislative intent.
Drug free zones
-In most jx, location is strict liability
Benniefield- D, walking home from work at night, walked yards away from a school zone with drugs.
 D: I did not intend to be in school zone, just walking in most efficient path home (harsh
punishment violate equal protection – rational basis test – + school zone is knowledge element)
21
Criminal law outline Slobogin



Court held that knowingly possessing drugs in a school zone is not an element of the offense, but
rather a sentence enhancement
Rationale: (Rational Basis Test)
o We want to protect children from picking up drugs
o It is always illegal to possess drugs anyway, so D is put on notice not to carry them in a
school zone (unlike a knife)
o (this could lead to racial disparities b/c school zones are less spread out in urban areas)
The state offense imposing harsher penalties for drug possession within school zones does not
violate the state’s equal protection guarantee and does not require proof of intent to be in a school
zone (location = strict liability)
Whatley- D is arrested in home, police found drugs. He lived 1000 feet from a church. Church was found
to be a “youth program center.” D argument – YPC language is vague (how am I supposed to know?)
 Q: would ordinary person be aware that RCC was youth program center (statute says knowingly)?
Irrelevant if D knew he was in zone (mistake of law not an excuse)
 Court held this was a sentence enhancement.
o D could’ve easily learned the church had youth programs or observed children coming
and going
o D could try to argue that the church is not readily identifiable as a youth center (fails) –
still lose under negligence standard (which you get at best)
 Same rationale as Benniefield.
22
Criminal law outline Slobogin
Inchoate crimes and accomplice liability
Attempt and legal impossibility
You actually try to commit the crime, but do not complete it. More than mere preparation.
Rationale:
 You must act on your thoughts to be blameworthy (retributivist). We cannot punish thoughts b/c
you can’t really stop yourself from thinking (utilitarian)
 Argument for not punishing attempt the same as the crime is deterrence- we don’t want criminals
to say “well, might as well complete the crime now”
 Attempt people aren’t as dangerous
ATTEMPT
COMMON
LAW
MPC
ACTUS REUS
MENS REA
Coming “dangerously close” to committing the
crime.
 Intent alone is not enough—intent
PLUS conduct toward commission of
the crime is required. (Acosta)
Purpose (can’t recklessly attempt something); intend
the act, intend the result, intend the circumstances
e.g. If all you’ve done is buy a crowbar, probably
not sufficient. But if you aimed gun and pulled
trigger and missed, that is dangerously close.
“Substantial Step” Test: requires only taking a
substantial step towards committing the crime.
 “more than mere preparation”
(Kohlmeier)
 Requires less than the common law
 Could include lying in wait, enticing,
seeking to entice…
 Page 491 examples (5.01(2))
Purpose
 But when causing a particular result is an
element of the crime, the belief that the result
will occur from one’s conduct is also
sufficient.
 A person who acts w/o purpose but w/
knowledge w/r/t a particular result should be
culpable for attempt.
POLICY:
Substantial Step Test is meant to
(1) ensure the “firmness” of the criminal intent
(2) insulate “very remote preparatory acts”
(3) still allow for some convictions at an early
stage in the crime.
E.g. if you prepare to commit arson, buy kerosene and
matches and go to the house, light match, but cop finds
you before you light it, and there are people in the
house, you could be guilty of attempted homicide if the
prosecution could how you knew people were there and
believed or were practically certain they’d die.
Model penal code
-You will receive the same sentence for attempt as you will for the crime under MPC b/c the MR is the
same for both crimes and MPC really cares about the MR.
 CL cares more about the harm/result
-Elements
 AR: MPC uses “substantial step” (lower bar than CL but still more than mere preparation)
o CL uses “dangerously close”
 MR: Under MPC, if you can show purpose, you won’t need as much for the actus reas. Often,
the MR will also include knowledge.
23
Criminal law outline Slobogin
o
If D believes a crime will result from his actions, he will have attempted it, regardless of
whether that belief is true or intended. This is expanded beyond the CL approach
-Defense:
 Impossibility is never a defense
o If D thinks he is committing a crime, the MPC will treat him as if he is committing that
crime
 Renunciation is a defense if it is permanent and voluntary
-Unlike CL, MPC prohibits convicting D of more than one inchoate crime with respect to the same
intended actual crime
Common law
-Elements
 AR: “Dangerously close”
 MR is purpose (to commit the crime). Need intent + conduct.
o Cannot attempt a reckless or negligent MR crime
-Defense:
 Legal impossibility is a defense, but factual impossibility is not. Determine by asking whether the
law had anything to do w/the crime being impossible. Can also ask what element made it
impossible: legal impossibility has to do w/circumstance element, while factual impossibility has
to do w/result element.
 Legal impossibility: crime cannot be completed lies in law, not facts. Occurs when the conduct,
even if it is completed as intended, would not constitute a criminal act. For example, if state law
provides that a child under 14 years of age is conclusively presumed incapable of rape, then a 13year-old person also cannot be liable for attempted rape. This can be a defense to attempt.
o Exs. Of legal impossibility- shooting deer if really stuffed object; bribing a juror who
wasn’t a juror; McElroy. Did all the conduct and still didn’t complete the crime. Kind of
have the result.
 Factual impossibility: obstacle to crime completion is a fact that D is ignorant about. Occurs
when the conduct is not criminal because of some fact or circumstance unknown to the actor
o Exs of factual impossibility- shooting at empty bed, pickpocketing an empty pocket,
abortion on undercover agent (no baby). Did not complete all the conduct. Missing
circumstance and result.
 Abandonment is a defense if it is permanent.
Kinds of attempts
-D thought he was committing the crime, but b/c of a failure of circumstance, he didn’t actually commit
the crime
-D might have done everything he thought was necessary to cause a prohibited result, but that result never
actually occurred.
-D never managed to complete the conduct that would result in the commission of the crime
McElroy- D was found w/ a large bag of pills and told the officer it was meth. Later analysis showed it
was not an illegal drug. (MR = knowledge; “belief it will cause the result”). Arizona modeled after MPC.
 MPC model
 The court says this is a case of factual impossibility. Slobo says legal impossibility. Either way,
this was MPC state, so he was convicted b/c MPC recognizes no impossibility defenses.
o Under CL, if it had actually been legal impossibility, he would not have been guilty
o Under MPC, it would be an offense if the circumstances were as he thought they would
be so it is an offense
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Criminal law outline Slobogin
Acosta- D intended to possess cocaine, ordered it from a supplier, admitted the courier into his home and
examined the drugs, but rejected them b/c of low quality (heard via surveilliance and code language)
 Common law
 Court upheld conviction for attempt. He was clearly dangerously close to committing the crime.
 Abandonment must be permanent to work as a defense: D would’ve continued making efforts to
obtain the drugs; did not have a change of mind. Not abandonment if you’re scared of cops.
 If MPC applied: purpose + substantial step
Kohlmeier- D purchased matchbooks, methanol, pseudophedrine, and a cookstove (ingredients necessary
to make meth).
 Court held this qualified as a substantial step – MPC jurisdiction.
o D argued he was still in the “mere preparation” stage (not close to manufacturing)
 P can show purpose through circumstantial proof.
Complicity/aiding and abetting
-D is not the person actually committing the crime, but helped the commission
-MPC: Different MR for aiding and for the actual crime
-Aiding and abetting does not have to actually be effective
-Don’t forget Pinkerton (only for some CL states)
COMPLICITY
ACTUS REUS
COMMON LAW
Aiding / abetting
MENS REA FOR
AIDING
Intent (purpose or
knowledge)
MENS REA FOR
RESULT
Purpose (intending the
result)
MPC – §2.06
Aiding / or attempting
to aid
Purpose of promoting
or facilitating the
commission of the
offense
Mens rea for result
element of the
completed crime
Model penal code (page 510, section 2.06)
-Elements
 Actus reas: aiding or attempting to aid
 MR when aiding: purpose
 MR for result: same mens rea as for the crime you are going to be charged with .
o E.g. if a wife asks husband to discipline the child and stands by as he beats the child and
the husband is convicted for abuse w/MR of recklessness, the wife can also be convicted
if she was reckless in letting him hit the child.
-Act of soliciting/conspiring with someone to commit a crime will one an accomplice in that person’s
commission of a crime (i.e. actually providing aid is not required)
 But you will need the same mens rea for the result element of the completed crime.
 Of course, if you conspired to commit murder and they commit murder, you have the MR.
-Defense: for abandonment to work, you must actually stop the crime from happening or report to law
enforcement
-Actually providing aid to the commission of the crime is not required. Agreeing w/someone to
commit the crime also counts as complicity.
-Pinkerton does not apply
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Criminal law outline Slobogin
Common law
-Elements
 Actus reas: aiding or abetting
o “Facilitation” only requires knowledge of the aiding and abetting (e.g. bong seller)—a
lesser offense of complicity
 MR when aiding: purpose or knowledge
 MR for result: purpose
o If D didn’t intend the result, he is not an accomplice.
-Must also stop crime from being committed to use abandonment defense
-See Pinkerton for some states
Romero-Garcia- D facilitated a drug transaction by setting up a meeting between a buyer and seller. The
dealer did not affix the illegal drug tax stamps to the product as required by law.
 The same mens rea for the offense applied to D b/c it is a MPC jx. The court held the MR was
strict liability b/c no mens rea was listed in statute
o Therefore, prosecution had to prove that D knowingly participated and then it was strict
liability for the drug tax stamps.
Trapps- D knowingly allowed drug dealers to use his basement for drug dealing.
 Conviction for aiding and abetting upheld. D intended for his actions to facilitate the crime.
(actions do not have to be effective to qualify as aiding – we just care that you tried to aid)
Conspiracy
-Multiple people working together to commit a crime
 Goals: increase the punishment for crimes committed by groups and allows the state to threaten
fringe actors with severe punishment in order to get them to turn
-Can add on conspiracy to an attempt charge or to a complete crime charge
-Two conduct elements: criminal agreement and overt act in furtherance of the agreement
 The overt act may be completed by any of the conspirators. Practically, the only conduct the
prosecutor has to prove is the agreement between the parties (requires purpose)
CONSPIRACY
ACTUS REUS
MENS REA
COMMON LAW
Bilateral criminal
agreement + overt act
MPC (page 520)
Unilateral criminal
agreement +
Knowledge + overt act,
unless 1° or 2° felony
Purpose, meeting of
minds, intent of helping
it succeed (+ maybe
Pinkerton)
Purpose of promoting
or facilitating
26
FEDERAL LAW
Criminal agreement +
overt act, unless drugs
DRUG CONSPIRACY
STATUTE: does not
require overt act, just
agreement.
Purpose + Pinkerton
Criminal law outline Slobogin
Model penal code
-Recognizes renunciation defense: you must actually prevent the other conspirators from committing the
crime to use the defense.
 Harsh b/c groups of criminals are very dangerous.
-Elements
 AR: Agreement is unilateral and there is an overt act (the latter is not needed in first and second
degree felonies)
 MR: purpose to agree and to engage in conspiracy
-Note: if one person needs to think he is in an agreement, he is still guilty of conspiracy.
Common law
-Elements
 AR: Actual agreement and overt act
 MR: Purpose (to agree and that the objective of the conspiracy be achieved)
 Bilateral
-One person actually in the agreement is solicitation, not conspiracy
-Conspiracy can be charged before attempt, during mere preparation, b/c we want to very much
discourage multiple people from committing crimes.
-Renunciation is a defense but must thwart the crime!
Pinkerton strict liability: Federal rule that says if you are in a conspiracy, you are liable for any act that
another accomplice commits in furtherance of that conspiracy (see Billa)
 Other brother is liable for tax evasion (in furtherance of operating tax distillery) even if it wasn’t
in D purpose (strict liability) because tax evasion “in furtherance of illegal distillery conspiracy”
 You need a conspiracy, but Pinkerton is more about complicity
 Applies to attempt or actual crime.
 A state may or may apply Pinkerton b/c it is a federal rule
 NEVER applies in MPC! Maybe in a common law jurisdiction.
Colon- D was a regular purchaser from a drug supplier.
 Court held that he was not a conspirator to the drug supply business b/c repeated transactions
do not necessarily imply conspiracy. You need something more like:
o Mutual trust
o Assisting the seller in establishing a delivery system
o Profiting or selling
 Rationale: practical reason for keeping the conspiracy separate from just a sale b/c then all drug
buyer would be conspirators.
Partida- Police officer tailed a drug car to ensure its security, but undercover car wasn’t full of drugs
 Even if the principle isn’t actually committing a crime, D can still be guilty of conspiracy b/c
MPC cares about mens rea.
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Criminal law outline Slobogin
Order of conduct:







Thoughts
Mere preparation
Solicitation (MPC)
o Don’t need communication
Conspiracy (MPC) + solicitation (CL)
o Conspiracy (MPC) = don’t need agreement
o Solicitation (CL) = need communication
Conspiracy (CL)
o Need agreement
Attempt
Completed crime
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Criminal law outline Slobogin
Homicide
Model penal code
-Capital murder: murder + aggravating circumstance
-Murder: Killing w/purpose or knowledge or extreme recklessness (no felony murder)
-Manslaughter: plain recklessness or EMED
-Negligent homicide: MPC equivalent of involuntary manslaughter
 Note: no voluntary manslaughter.
 MPC does not have degrees, only murder or manslaughter.
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Criminal law outline Slobogin
Common law
-First degree murder: premeditated killing. Also includes felony murder
-Second degree murder: “malice aforethought”; lukewarm killing; extreme recklessness. Usually involves
fights when D is the aggressor
 “depravity” / depraved heart
-Voluntary manslaughter: heat of passion killing; Usually involves fights when the ‘victim’ is the
aggressor
-Involuntary manslaughter: Homicide w/ recklessness (no malice or depravity)
-Negligent homicide: criminal negligence (failure to act)
Actus reas
-Causation: D’s conduct must have been the but-for and proximate cause of death.
 Prox cause: D’s act made it foreseeable that the death of the victim would occur or the death was
a natural and probable consequence of D’s conduct
 Court allows convictions when D stresses someone out so much they have a heart attack b/c D’s
conduct carried the risk of death (was inherently dangerous)
 Provocative Act- if P instigates a gun battle and a cop or third party shoots back and actually
hits victim, P can be guilty of the victim’s death.
 For every crime with a result element, Causation must be either:
o Foreseeable/scope of the risk -- in the eye of the beholder and fact-specific
o Natural and probable
o Voluntary intervening event
o MPC Culpability standard goes farther than the Common law foreseeable standard
 Alternative language: “proximate causation exists unless the chain of causation is broken by an
unforeseeable intervening act.”
-MPC approach: Culpability; ask if the result (death) was similar to the actual result D should’ve been
aware of? Should D have been aware that death in general was a possible result of his conduct? (the
manner of death doesn’t matter as much); MPC focuses on culpability NOT consequence
 If death was too remote, D is not guilty
 Can establish causation by DF even with TRANSFERRED INTENT or LESSER INJURY
THAN INTENDED
-There is an element of fairness to the causation analysis:
-[Omission Liability] Criminal liability for a failure to act must be based on a duty. Generally, no duty to
aid others under the American Bystander Rule, but a duty may arise when:
 Imposed by statute
 D put the victim in peril
 Imposed by contract
 Status - Relationship
 Voluntary assumption of care
 Rationale: potential for endless liability if we hold everyone who could’ve acted liable. Also, we
don’t want to hold the wrong person liable.
-Eggshell skull rule applies to homicide.
Kuntz- DUTY. D’s boyfriend beating her, so she stabbed him in self defense and did not call for help as
he bled out. Kuntz potential created a duty by being (1) co-habitant, or (2) creating peril by stabbing him.
 Court held there is no duty to render aid when a person justifiably fends off an attack until
the person has secured safety first. (Safety for oneself and other persons). We want D to be able
to leave the zone of risk. But duty can be revived once safe.
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Criminal law outline Slobogin
o

Once this duty is imposed, failure to act may still not amount to criminal negligence.
Must be a gross deviation from the ordinary standard of care. Don’t know if Kuntz was
acquitted—just need to know she will not be guilty of criminal negligence.
Tiered responsibility of expectations: (1) Duty, then (2) physically capable, then (3) NOT
dangerous to the individual
Carlson- INTERVENING CAUSE. D negligent ran a stop sign and caused a car accident. One victim had
prior medical problems, and the accident worsened them, requiring intubation. Victim requested to be
taken off intubation and died.
 Intervening conduct of a third party (hospital taking her off life support) will relieve D of
culpability for their negligence only if the intervening response was not foreseeable, and D
must take the victim as she finds her.
o A jury could’ve found that the victim’s decision to take herself off the ventilator was
reasonable/foreseeable given her condition
 Eggshell skull rule applies despite its origin in Torts, so D’s conviction upheld
Robertson- Police officer chased after D after trying to arrest him and fell through a gap in the bridge D
had run onto/leapt across.
 If D knew or should’ve known that the officer’s actions were a reasonably foreseeable response
to the police officer’s actions, he is responsible for those actions
o Negligence of the officer doesn’t matter: only if his actions were foreseeable.
 Statute said “wantonly,” which was defined as recklessness would be (D was aware of and
consciously disregarded a risk that RPP would not have disregarded) (higher standard for the
prosecution than foreseeability…conviction finally found on foreseeability grounds)
Attempt and complicity for homicide
Attempt
-Generally a specific intent crime requiring a MR of purpose and direct but ineffectual conduct towards
killing.
 This means that attempted recklessness/negligent homicide doesn’t make sense
Complicity
-Intentionally aids, hires, conspires w/another to commit a crime
-State must prove knowledge of the crime + intent to further commission of the crime
Decker- D solicited a hit man (cop) to kill his sister, even making the down payment. Guilty of attempted
murder.
 Act of the down payment and repeated confirmation went beyond mere preparation and indicated
his purpose. B/c his MR was so clear, the court only required a slight act in furtherance of the
crime (if MR unclear, that’s where overt act would need to be more clear)
o Slight act = greater than mere preparation but less than “dangerously close.” Closer to the
MPC approach of “substantial step” (only in California)
 D was also clearly guilty of solicitation (CL jx): only requires that a person invite another to
commit or join in on a crime with the intent that the crime be committed. (Lower than complicity
b/c there was not an actual agreement – this is different from MPC.)
o Complete just by D asking the cop to kill the victim – sufficient to convict Decker
o However, court does not go as far as to say that the agreement to kill plus down payment
is ALWAYS sufficient to support a charge of attempted murder. Depends on the facts.
o SOLICITATION: Unilateral agreement vs mutual agreement
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Criminal law outline Slobogin

No conspiracy without an actual agreement because of the officer was an
undercover agent – need mutual agreement under Common law.
Thacker- Drunk men shoot at tent they know is occupied and barely miss the mother/baby inside.
 Crime of murder requires specific intent, which D did not have b/c he was being reckless.
 MPC created a new crime, “reckless endangerment” for situations where a defendant recklessly
creates a substantial risk of death but no death actually results MPC 211.2.
CONSPIRACY
Clark- D was part of pro-Black militant group that conspired to shoot a police officer and carried it out.
Conviction affirmed for complicity and conspiracy
 To prove complicity, the state must prove that D had knowledge of the crime and intended his
actions to further the commission
 To prove conspiracy, state must show an agreement between the parties (CL)
 Note: If Clark had just known another was going to kill the cop, there would be no actus reas for
complicity (no duty). Court decided (in addition to conspiracy) they aided/abetted one another.
 A person is liable for conspiracy if that person conspires with another person or people to commit
a criminal offense, provided that one or more members of the conspiracy commits an overt act in
furtherance of the conspiracy.
Murder
MPC murder
-Purposeful, knowingly, or extremely reckless killing
First degree murder (CL)
-Doctrine of transferred intent applies. If D tries to kill one person but kills another instead, he is guilty of
murder for that death and of attempted murder
-Specific intent (to kill)  virtual certainty death will result from the action. Substantial risk is not
enough
Elements:
-Unlawful killing and deliberate premeditation and malice aforethought
 Premeditation requires cool reflection
-No particular period of time required for it to be a “cool reflection”
Coleman- D was in a fight outside a bar and went back to his car and got his gun and shot the victim.
(Maybe also shot him again as he lay on the ground)
 Common Law
 Conviction upheld b/c there was evidence that Coleman reflected on his intent to kill; walk from
fight scene to car to get a gun is sufficient ‘cooling period’ of a split-second = premeditation
Texiera- Fight outside bar, and D kicked victim in the head multiple times
 Common Law
 Although there wasn’t a break in the action, D was convicted of murder in first degree
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Criminal law outline Slobogin

Slobo interpretation: You can argue that he was intentionally killing the guy. Or you can say that
even if he didn’t intentionally kill him, his actions were equivalent to intentionally killing him in
terms of culpability, so a first degree murder charge is appropriate. This conduct seems very
blameworthy, similar to the guy pushing the kid off the bridge
Second degree murder (CL)
-“Malice aforethought”
 Intent to kill that is not premeditated
 Intent to cause serious bodily injury
 Extreme recklessness (depraved heart, abandoned and malignant heart, depraved indifference to
human life)
-Analogous to “malice” tacked to General intent
Elements:
-Intent to kill w/o premeditation or intent to cause serious bodily harm or depraved heart
Porter- Bar fight where D punched the victim too many times and he died.
 State proved malice aforethought. Malice can be inferred when:
o Killing resulted from an intentional act
o The natural consequences are dangerous to human life
o The act was deliberately performed with knowledge of the danger to, and conscious
disregard for, human life
o NOTE: different from first degree b/c there was not intent to take a life. (no willfulness in
second degree murder)
 Malice here was repeated hard punching
 Common law
Robinson- D hit victim in the head w/golf club after D chased them around yelling at them.
 DF argues that 2nd degree murder pretty much the same as manslaughter; the two are
distinguished discriminatorily (wanted manslaughter)
 Depraved heart murder- reckless murder represents extreme indifference to human life
 Classic ex of depraved heart murder is playing Russian roulette w/ a friend.
 Common law
Wollin- English case in which a man threw his three y. o. son to the ground
 Court upheld conviction: “virtual certainty” death would occur
Key terms
Premeditation: determination to kill, distinctly formed prior to killing (no time requirement); cool
reflection and not heat of passion. Can occur in a split-second
 variant of specific intent. At common law, specific intent is used in property crimes and general
intent usually used for violent crimes, but SI sometimes used to distinguish ordinary violence
from more culpable violence.
Willful: intentional; manifested clear intent to kill
Deliberation: process of determining course of action; weighing pros and cons (no min. time
requirement)
Malice Aforethought: can be described as the general knowledge that you are engaging in wrongdoing,
even if you don’t intend the specific result.
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Criminal law outline Slobogin


(1) express malice (intentional killings – can be premeditated or not)
(2) implied malice:
o (a) Intent to Inflict Serious Injury: homicides in which D intended to cause victim serious
injury (shooting in torso, inflicting injuries expected to be fatal)
o (b) Depraved Heart: homicides in which the circumstances of the killing reveal that D
acted w/ a depraved heart or depraved indifference.
Malice may be implied when
 killing resulted from a wrongful intentional act
 natural consequences of the act are dangerous to human life
 the act was deliberately performed w/ knowledge of the danger to, and w/ conscious disregard
for, human life.
-Rationales for differences between murder and manslaughter:
-Action against society v. an individual
-High probability of death v. low probability
-No explanation v. some rationale for the action
Felony Murder (FM)
*Check statutes for felonies to which FM attaches or will have to argue the felony is dangerous (in
specific instance or in abstract)
-NO MR NEEDED FOR THE DEATH, just for the underlying felony – a strict liability offense with
respect to homicide; no causation analysis besides but-for. Will be first degree murder
 Includes murder committed during an attempted felony
-Merger doctrine: When the nature of the felony is so close to the resulting homicide that the felony
“merges” with the homicide. I.e. the felony must be distinct from what actually caused the death.
 E.g. cannot turn aggravated assault (robbery) into felony murder b/c all murders involve assault
 Child abuse is an exception: you can turn the death of a child from abuse into felony murder
 Assault normally merged with the homicide so that felony murder does not apply
 DOESN’T APPLY TO MPC
Policy reasoning
-You are more blameworthy when a death occurs during commission of a felony, even when it is an
accident b/c you chose to engage in a felony and put others in risk
-Clearly, D is willing to run sizable risks of killing people in order to commit the felony
-Extra deterrence to be “careful” when committing felonies
-Incapacitation: prevent D from doing something like this again
MPC does not include a felony murder rule, but will create a presumption of EXTREME
RECKLESSNESS with regard to human life/disregard for human life when a death occurs during a
felony, attempted or completed.
 This extreme recklessness, in application, is close to purpose
 To escape FM, D will have to argue that there was no substantial risk of death a RP would
recognize (trying to overcome recklessness standard)
Jury permitted to INFER dangerousness but not PRESUME it.
Billa- YES FELONY MURDER. D and two friends burned his truck to get insurance, and one of the
conspirators/accomplices caught on fire and died
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Criminal law outline Slobogin


Court upheld conviction. The act of killing must be committed by D or an accomplice acting
in furtherance of the felony
o The result of the killing does not actually need to further the felony
o Extends to a death of an accomplice at the scene, but not if D is absent from the scene.
o When a felony victim or police officer kills an accomplice during the commission of the
felony (“in furtherance of the conspiracy”), the other accomplices may be held liable
under the FM rule.
Compare to Ferlin where there was a conspiracy to commit arson and one of the arsonists
committing the act died. NO FELONY MURDER BECAUSE THE DF WAS NOT THERE.
Too attenuated.
Ex parte Mitchell- YES FELONY MURDER B/C “DANGEROUS” FELONY. D was charged
w/felony murder after a drug transaction went awry and a third party (involved or not) shot his friend
 Statute required the felony to be “clearly dangerous to human life.” Prosecution argued that the
sale of drugs was clearly dangerous to human life, DF argued it wasn’t.
 The court held that this drug transaction was clearly dangerous to human life. (However, such a
conclusion is made on a case by case basis)
o Ask: did the behavior raise the risk that death would result? What factors may the court
use to determine dangerousness? Abstract approach (minority) or Fact-specific (majority)
Death penalty
-A prosecutor must charge capital murder + D is convicted + a jury sentences (will consider aggravating
and mitigating circumstances)
-Purposes of punishment:
 Retributive: if you commit a murder this bad, you deserve to die.
 Deterrence: Obviously maximum deterrence b/c worst punishment
o Same w/individual incapacitation
 Delegitimize the system if applied inconsistently
 In opposition to rehabilitation
Manslaughter (provocation)
-Voluntary manslaughter (CL)
 PROVOCATION IS OBJECTIVE
 Intentional killing + Provocation/heat of
passion OR extreme emotional or mental
distress.
 Some say it’s pretty much the same as 2nd
degree murder; they are distinguished
discriminatorily.
-Involuntary manslaughter (CL)
 Reckless or negligent homicide that aren’t
to the level of depraved heart.
-Manslaughter- EMED (MPC)
 EMED IS MORE SUBJECTIVE (in
person’s situation)
 MPC aspired to replace the traditional CL
provocation doctrine
 Not only must a rsbl person have been
provoked but the defendant must have
also have been honestly provoked
-Negligent homicide
 MPC
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Criminal law outline Slobogin
Voluntary manslaughter (CL) and manslaughter- EMED (MPC)
Voluntary manslaughter (CL): Intentional killing in the heat of passion w/adequate provocation; no
actual malice and without sufficient time to cool off
 Adequate provocation- never words alone.
o D was provoked and was not cooled off and a reasonable person would be provoked and
would not be cooled off.
o Reasonableness refers to the state of mind, not the actions (it is never reasonable to kill)
 Ask: was the provoking event sufficient to trigger the heat of passion? And did enough time
elapse between the provoking event and the homicide so that a reasonable person would’ve
cooled off?
 Conventional definition of "heat of passion" or provocation doctrine
o Requirement #1/subjective: DF in fact acted in an emotional state of mind characterized
by anger range hatred furious resentment or terror
o Requirement #2/objective: this state of mind was prompted by some insult provocation or
injury which would naturally and instantly produce in the minds of ordinarily
constitutted men the highest degree of exasperation
 Prosecution’s counters to provocation: (1) The event was not legally sufficient to constitute
provocation. (2) Enough time passed b/w the event and action that the DF should have cooled off.
 Provocation must come from the victim
o Provocation is NOT a complete defense
 THIS IS WHAT THE DF WILL ARGUE IN THE CASE OF IMPERFECT SELF
DEFENSE: D used excessive (deadly) force in self defense
o More about fear, while provocation is more about anger
Acevedo- Heat of passion killing in which D and his friends were attacked by another group at a party
and D stabbed the victim.
 Common law
 Jury’s options were (1) acquit on imperfect self defense, (2) voluntary manslaughter with
excessive force in self-defense; (3) involuntary manslaughter. Decided on #2
 Court noted that provocation must come from the victim (it did) and that a reasonable person
would’ve been provoked and would not have cooled off (therefore Acevedo’s charge reduced).
Manslaughter (MPC)
 EMED: Homicide that would otherwise be murder is committed under extreme mental and
emotional distress for which there is a reasonable explanation under the circumstances as the
defendant believes them to be; more widely adopted than CL provocation.
o More subjective than CL provocation doctrine: determined by RPP in actor’s situation
under the circumstances as he believes them to be
 Can consider D’s past experiences (e.g. bullying)
o D is not eligible if he brought about his own EMED.
o Domestic violence survivors more negatively impacted by the EMED defense because
traditionally, homicide from FEAR is seen outside “heat of passion” for manslaughter
 MPC does not require provocation to come from the victim, but actor cannot bring about his
own emotional disturbance!
 Also: Recklessness that does not rise to extreme recklessness
 Consider different arguments about what “situation” means (situation surrounding crime vs. past
experiences)
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Criminal law outline Slobogin
Shumway- Friends played video games at a sleepover, and the victim got mad and threatened D with a
knife. D stabbed victim 39 times but claimed it was self-defense. Best defense for D was manslaughter
due to EMED
 Court found manslaughter due to EMED because a reasonable person in victim’s situation may
have experienced extreme distress (EMED)
o D can use his past of being bullied to situate the crime b/c this is MPC jx. This is a
benefit of the subjective approach
Casassa- Girl told boyfriend she didn’t want a relationship anymore. He stabs her and drowns her.
 Probably not adequate provocation b/c people end relationships all the time.
 MPC’s more subjective standard makes it easier for men to get less time for killing female
partners because they can argue the situation constituted EMED. Here, that is unlikely because
(1) defendant WENT to her house (2) WITH A KNIFE. Downside of the subjective approach.
Involuntary manslaughter (CL)
Involuntary manslaughter (CL): RECKLESS HOMICIDE or NEGLIGENT HOMICIDE that does
not rise to the level of depraved heart murder
 D was aware of a substantial and unjustified risk and consciously disregarded it
 Also: vehicular homicide
Duncan- D was being chased by another car and going 40 mph over the speed limit. While trying to get
away, he ran a red light and hit another car, killing the driver
 MR for underlying driving crime = Recklessness: D must be aware of and consciously disregards
a risk that RPP would not ignore.
o Based on the chase, D might not have been aware of the risk and therefore could not have
the mens rea for the underlying crime. Prosecution could not prove reckless manslaughter
and the charge would almost certainly be reduced to negligent homicide.
Negligent homicide (MPC)
Negligent homicide (MPC): Failing to perceive a substantial and unjustifiable risk. Gross deviation from
the conduct of a reasonable person
 MPC version of involuntary manslaughter
Cabrera- D, teenager w/provincial license (new driver), drove with four friends, took a sharp curve on a
steep hill at 30 mph over the speed limit and all but 1 of the passengers died. DF survived to see ct.
 MR = gross deviation from the standard of care RPP would observe.
 Court decided that it usually takes some additional act to transform speeding (and no seatbelts,
violating passenger limit) into the gross negligence required for negligent homicide.
o E.g. failing to stop at a red light, intoxication, consciously accelerating in the presence of
an obvious risk, drag racing.
o None of these was not present in D’s case, he was not morally blameworthy.
o Defense successfully reduced charge to 3RD DEGREE ASSAULT: physical injury to
another with dangerous instrument.
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Criminal law outline Slobogin
Defenses
Types of defenses:
 Justification: holds D blameless; it was necessary to protect yourself; we encourage these acts.
o D’s situation made him blameless
o Self defense; defense of third parties; duress
 Excuse: the act is not justified, but can still lead to acquittal b/c D is still blameless
o D’s character made him blameless
o Infancy; insanity
 Non-exculpatory: D is blameworthy but still gets a complete defense b/c of an overriding policy
o Statute of limitations; diplomatic immunity
Self defense in general
-Self defense is a sub category of necessity, and this is a more popular version b/c it is easier to justify
given the culpability of the victim
General COMMON LAW Elements
-Force is necessary to prevent
-immediate
 Flexible concept (battered spouse cases can argue this point)
-unlawful force by “victim” against defendant;
-and the force is proportionate
 Can make it imperfect self defense if disproportionate
Mens rea options (from best for D to worst)
Do not have to link MR to the actual crime DF committed
1. SUBJECTIVE: Most jx reject “honest belief necessity exists” language and instead will call this
idea imperfect self defense. (Goetz trial court)
o HOMICIDE WILL BECOME MANSLAUGHTER INSTEAD OF MURDER
o Similar to provocation but an element of fear rather than anger (provocation)
2. INDIVIDUAL OBJECTIVE: MAJORITY POSITION; Reasonable + honest belief that
necessity existed (Biggs 9th Circuit position)
o SUBJECTIVE OBJECTIVE—RPP in actor’s situation (Quasi-MPC, Gartland,
Goetz Appellate Court)
3. OBJECTIVE: Reasonable belief
 Don’t introduce personal circumstances (RPP in the abstract)
 STRICT OBJECTIVE: Haynes (7th Circuit/Easterbrook) just care if there are alternatives, not
that you had a reasonable belief
MPC approach
-Look at the crime being charged and find the MR for that crime.
-D has to show he did not have the MR with respect to necessity
-Ex If the MR of DF’s criminal act is purpose or knowledge, all D has to show is that he honestly
believed he was being threatened by deadly force
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Criminal law outline Slobogin


If the MR is recklessness, D would have to show he was not aware there was a substantial
possibility that he wasn’t actually being threatened by deadly force
If the MR is negligence, D would have to show that he honestly and reasonably believed, as the
objective reasonable person would, that he was being threatened by deadly force (aka that his
belief wasn’t negligent)
Biggs- D stabbed a fellow prisoner in recreation cage b/c victim had been trying to get a knife from other
inmates and had threatened D on the way to the cage
 Common law (federal): middle test for D
 Court held that you should NOT consider whether there actually were alternatives, but rather
if D reasonably believed the force he used was necessary
Haynes- Haynes was being bullied by victim in prison and poured hot oil all over the victim
 Court held that there was an alternative (going to the guards or the warden), so Haynes was not
self defense eligible.
o Common law: Toughest test for D.
o Doesn’t matter if these alternatives were probably not going to work in reality; that they
existed is enough to disprove reasonableness of self-defense act.
Bailey- Men escaped from prison after they’d been beaten up and claimed there were no alternatives b/c
the guards had actually helped beat them up
 Court held that there were actually alternatives (telling the warden, turning yourself in after
escape), so no claim of self defense.
 Common law: Toughest test for D.
Perez- D was a convicted felon and saw people scoping out his house (actually cops). He left his house
w/a gun. Strict Liability offense
 Still guilty of violating parole b/c there was a lack of force
 Also could argue there wasn’t an immediate threat and that there were alternatives (going to
police)
Mayes- D didn’t hear police announce themselves, and they broke in and Mayes shot one.
 Force was lawful, so no self defense claim
Goetz- D shot four teens on the subway b/c he feared they were violent and about to rob him after they
demanded five dollars. The MPC’s SITUATIONAL ANALYSIS COMES IN HERE AND THAT IS
WHY GOETZ GETS SUCH A REDUCED CHARGE (reasonable belief in actor’s situation)
 Court said that the correct standard was whether D reasonably believes another person is about to
use deadly force or attempting to commit a felony
o Consider looking at a reasonable person in D’s situation/circumstances (e.g. can consider
prior experiences, as in that he had been mugged before)
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Criminal law outline Slobogin
Various tests for self-defense (prosecution friendyD friendly)
Strict liability (7th circuit Haynes – needs lack of reasonable alternatives)
Reasonable belief (9th circuit Biggs)
Reasonable belief in actor’s situation (Goetz majority)
MPC: D believed that use of deadly force is necessary to protect himself against death,
serious bodily injury, kidnapping, forcible sexual intercourse (if D belief is wrong or
recklessly/negligently formed… can only be convicted of homicide charge requiring that
criminal intent type)
5. What D believes (Goetz trial court)
a. Imperfect self-defense
b. No jurisdiction does this
1.
2.
3.
4.
Imperfect Self Defense
 Perfect self defense requires that the killing was both subjectively necessary and reasonably
necessity
 Imperfect self defense only requires subjective necessity
 Imperfect self defense does not excuse the crime, but it will serve to reduce the conviction (ex:
murder to manslaughter)
State v. Marr
 Victim broke into defendant’s home with intent to rob him
 Victims killed defendant’s cousin
 Defendant tracked victim down and killed him a few days later
 Imperfect self-defense was allowed
Self defense in the home
Retreat doctrine: B/c D usually has to show there were no reasonable alternatives, D must usually show
he could not retreat
 Being diminished by Stand Your Ground laws
Castle doctrine: No duty to retreat in your home
 Exception: when attacker is a cohabitant
 Most states have expanded the definition of self defense to give battered women a break. They
will usually receive an instruction on manslaughter/are more likely to be acquitted or granted
clemency
 Force need not be proportionate
Gartland- Case of domestic violence in which victim threatened D, and D retreated to her personal room.
When the victim entered, she shot him.
 Court first held her separate bedroom is not a separate dwelling, but if she could not retreat
safely, she had no duty to retreat
 Jury should consider past history of abuse: “subjective honesty + objective reasonableness”
o Would a reasonable woman who had been subjected to years of abuse reasonably
perceived on this occasion that the use of deadly force was necessary?
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Criminal law outline Slobogin
Stand Your Ground Laws
Castle doctrine outside the home
Mobley- D shot two men outside a Chili’s after a previous altercation inside. One man punched D’s friend
and the other guy was quickly approaching and allegedly D thought he was reaching for a gun.
 State has a stand your ground law: D has no obligation to retreat before using deadly force,
reasonably believing that use of such force is necessary to prevent bodily harm.
o Reasonableness: circumstances as they appeared to D when he acted or as RPP (can make
arguments for both sides if the statute doesn’t specify
Duress/necessity
Difference: Duress requires a threat by a third person, and necessity requires a threat caused by the
situation (think of the boat case in the middle of the sea)
Elements
-Illegal act must be necessary to prevent
-A greater
-Unlawful harm
-And situation must not be created by D
 MPC requires it cannot have been created by D’s recklessness
 Under CL, not a defense to homicide. Under MPC, can be a defense to homicide if a person in the
actor’s situation would’ve felt coerced.
 The more imminent the harm, the better for D.
-Generally, a D who engages in criminal conduct will lose a duress defense b/c he is somewhat
responsible for the situation
Williams- D got into debt and drug dealer said he had to run drugs for him. D was made to break into a
house to show ex-felons where the stash of drugs were, but he didn’t actually know where they were, so
he led them to his pastor’s house.
 Duress is unavailable b/c he caused his own situation by getting into debt with the drug dealer
and didn’t have to 1) get involved in criminal activity to pay off the debt and 2) get the pastor
involved.
 Note: Pinkerton would not apply b/c D was not a willing accomplice.
Coercion by Unlawful force
 Harm you’re causing is not as great as harm preventing
o Robbing bank lesser harm than death (gun to head)
o Robbing bank greater harm than being slandered (wouldn’t get defense)
o Williams: death or robbery – robbery is lesser (Prosecution: maybe a weak threat; could
have killed pastor)
 That’s why common law does not allow duress defense to homicide ever (homicide always equal
or greater harm). MPC does not have that limitation.
o If threaten will kill 20 people unless you kill 1, under MPC could argue, but not under
common law
o MPC at least has possibility of argument for homicide.
o If mean to do armed robbery and death results, prosecution could argue no duress defense
because homicide resulted (could play around with it)
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Criminal law outline Slobogin
Necessity
 Choice of evils claims
 Threatened harm that flows from natural sources
Entrapment
 Excuse crime due to government misconduct
Public Authority
 Excuse crime due to government misconduct
Insanity
 Mental illness renders them non-responsible for their criminal behavior
State v. Arriola
 D diagnosed with paranoid schizophrenia – hospitalized three times; lived in parents; basement.
Engaged in very strange behavior like preaching on corners and posting signs for businesses
that did not exist. Parents decided to evict to try to get psychiatric help. When police came to
serve eviction warrant, he came to door and shot them many times with two different guns; one
died. Two doctors testified that D could not appreciate wrongfulness of his actions; another said
he told her voices told him to shoot people
 Rule: A defendant can prove the insanity defense by either showing he was unable to the
nature of his actions OR unable to understand the wrongfulness of his actions as a result
of mental defect at the time of the criminal act. (Burden of proof on defendant)
 Plain meaning of “or” in statute is obvious
 Wrongfulness = moral understanding of actions
 Nature = cognitive understanding of actions
 Irresistible impulse test developed (not guilty if could not control irresistible impulse to commit
crime), but over time faded away
 Sometimes Ds raise mental defect as a way to assert they were incapable of forming the mens
rea associated with the crime (jurors often skeptical of these claims)
Sentencing
Indeterminate sentencing
-Judge will determine a range and when to release a prisoner is a parole board decision
-Sentence is offender-specific
 Look at high/low risk
 Ability to be rehabilitated
-MPC approach
-Good for rehabilitation, individual deterrence, incapacitation
Thompson- D pled guilty to assaulting and child and judge sentenced him to 10 years probation after state
pled no contest and then appealed the sentence. Court upheld the sentence (abuse of discretion std).
 Although the judge mentioned his height in handing down her decision, other considerations
(opinions of experts, nature of crime) also indicated that probation was appropriate
Determinate sentencing
-Specific offense for a specific crime
-Focus is on the offense itself and prior crimes – not offender
-Most states provide a range, but it is very narrow
 Judges can go above or below the range, but that decision must be written and is appealable
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-Includes
 Truth in sentencing- states must ensure people serve at least 85% of their sentence to get federal
grants
o Limits effectiveness of the parole board
 Three strikes law- mandatory minimum of 25 years for your third felony
-Consequence: mass incarceration? – research shows that black people do worse under determinate
sentencing
Vandergriff- Presumptive sentence was 3 years, but he was sentenced to 6 (9 but 3 were suspended).
Court affirmed.
 A judge can impose consecutive sentences exceeding the most serious offense maximum if it is
necessary to protect the public
o This does not violate Apprendi b/c dangerousness to society is not an element of a crime
(it is forward looking, not a historical fact)
 Neal-Mutschler- State rule, same as Vandergriff (usually sentences are concurrent, but can be
consecutive if necessary to protect the public’s safety)
Comparison between the systems:
 Without strict rules, factors that should not influence sentencing (racial bias) could influence.
 On the other hand, it is impossible to figure out a mathematical way to do sentencing b/c all cases
are different
Federal system
-The federal system instituted determinate sentencing and created the guideline system. It has a guideline
maximum and minimum.
 There will be a range based on offense and criminal history
-ISSUE: The judge could previously choose the maximum and then add years based on an aggravating
factor (e.g. use of a gun) even if the jury didn’t find the fact that a gun was used
 Apprendi- ONLY APLIES TO MANDATORY SENTENCING GUIDELINES. If a judge
sentences above the statutory or guideline MAXIMUM, the judge can only do so when a jury has
found the relevant facts beyond a reasonable doubt.
o Exception: if the fact is a prior crime
o Rectifying 6th Amendment violation
o Not an issue in indeterminate sentencing unless you go above the max
o E.g. quantity of drug must be found by the jury
Current trend: Moving more toward the theory that risk assessments are important.
 Actuarial risk assessments- looking at risk factors, algorithms, studies to figure out if a person is
at a high risk of reoffending.
o Considers personal history, offense, social networks, substance abuse, personality, family
background
 Clinical assessments- evaluating someone by sitting and talking
Kinds of plea bargain:
 Facts: party agrees to the facts
 Sentence: discretionary (D can appeal) or binding (cannot appeal)
 Charge: P agrees to reduce the charges
Booker (federal)- If sentencing guidelines are mandatory, Apprendi applies. See above.
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Criminal law outline Slobogin



Made sentencing guidelines discretionary so long as the sentence was reasonable; the judge may
enhance the sentence above the guidelines without violating the 6th amendment
o Undermines Apprendi b/c it allows the judge to enhance a sentence based on facts a jury
didn’t find
Appellate court can look at the case and see if the judge’s decision was “reasonable” or not but
must do so under the ‘abuse of discretion’ standard
Judge must still provide reason for going above or below the guidelines; judges tend to go
BELOW not ABOVE the discretionary guidelines
Blakely rests on the principle that if additional facts are necessary to support the judge’s sentence for a
defendant, those additional facts must be either proved to a jury or admitted by the defendant.
Gall- FEDERAL SENTENCING GUIDELINES ARE NOT MANDATORY—they are an initial
benchmark, other factors should be considered. Judges should not presume guideline ranges are
reasonable; if a sentence falls within the range it may be, but is not definitely, reasonable. If it falls
outside the range, it is not unreasonable. Take it as it comes. Here, judge gave ex-drug dealer probation
b/c he got out and became an upstanding citizen before being found out.
 Will be reviewed under abuse of discretion std. so appellate court cannot impute its own
conclusions onto the lower court; must give deference
o Judge just needs to provide a written statement about choosing the sentence
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