Criminal Law
1. Introduction: The Purposes of Criminal Law
a) Based on punishment vs. torts (compensation)
b) Model Penal Code (MPC): Major goal of crim law  forbid/ prevent crime; conduct
which threatens substantial harm to individual and public interests . . . is
unjustified and inexcusable.
c) Objectives: retribution, deterrence (general and specific), restraint, and
rehabilitation
i) Regina v. Dudley and Stephens (shipwreck/ cannibalism): Defense of necessity
does not justify homicide unless killing was in self defense (no "duty to live")
ii) US v. Bergman (rabbi defrauding Medicare): D's personal life, reputation, and
impact on others are considerations in sentencin g. [equity/ social justice
concerns; general deterrent on people of "like status"]
2. Voluntary Act: The Act Requirement
a) MPC: Just punishment requires a voluntary act or omission where a duty exists.
i) Martin v. State: (drunk in public/ no "thrown in public"): Criminal liability only
when unlawful conduct committed voluntarily
ii) Fulcher v. State: defense of automatism defense distinct from insanity (test
valid; D didn't meet test)
(1) Somatism as defense lack of volitional act
(2) Distinguish from known conditions where D fails to take medicine/
appropriate measures duty of care; volitional act is the failure, not the
disease
iii) People v. Gory (pot in the lock box): Lack of knowledge of existence means no
volitional act; prosecutor has to demonstrate actual knowledge
b) Basic Tenet of Crim Law: Every crime generally requires a union of the actus reus
and the mens rea. Does not mean proof of willful intent required in every defense.
i) Robinson v. California (heroin addict/ addiction not use): State statute
imprisons solely based on addition (status) not act unconstitutional
(1) Douglas and Clark concurrence: don't punish desire or sickness
(2) Clark and White dissents: use is voluntary/ additional is habitual conduct;
not status
ii) Powell v. Texas (alcoholic is drunk in public): Not same as Robinson; conduct
associated with addition is still conduct; not same as status. Punishing conduct
is legal
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iii) Lambert v. California (convict failed to register LA presence): "Mere presence"
offense with no act; cannot punish solely for passive conduct; D mu st have
knowledge duty existed (or should have known) with knowledge of
consequences
3. Omissions and Failure to Act
a) Duty can be created by:
i) Statute
ii) Contract
iii) Voluntarily assumed care and secluded helpless person/ prevent others from
rendering aid
iv) When one creates the situation, duty exists if harm befalls from created
situation
b) Jones v. US (starved baby): To be convicted of crime for failure to act, must prove
D was under a legal duty to act.
c) State v. Williquette: Failed to protect against child abuse; non -abusing parent with
knowledge has duty/ special relationship.
i) Special status regardless of voluntary act renders culpability
4. Mens Rea: Levels of Criminal Intention
a) Mens Rea: Culpability
Common Law
i) Corruptly
ii) Feloniously
iii) Fraudulently
iv) Intentionally
v) Maliciously
vi) Willfully
(a) Regina v. Faulkner (rum theft/ burns ship): A defendant’s general intent
to engage in some criminal conduct does not necessarily establish that
the defendant had the requisite intent of a given charge.
b) Mens Rea: Culpability ("Levels of Scienter")
Model Penal Code- Four standard mens rea terms
i. Purposely (aka intentionally; conscious desire) -highest level
ii. Knowingly
iii. Recklessly
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iv. Negligently- lowest level of scienter
(a)
State v. Jackowski: The trial judge must give a proper instruction on
the appropriate mens rea. ("Practically certain" is not enough for
purposefully)
(b)
State v. Ducker (mom purposely left babies in car): The prosecution
has the burden of establishing the mens rea for each of the crime’s
elements.
(i) Under MPC, a culpability term can attach to the nature of the
conduct, the circumstances in existence at the time of the conduct, or
the result of the conduct
(c)
Flores-Figueroa v. United States (knowingly used fake ID of real
person): The Court found that the level of mens rea must ap ply to both
clauses.
5. Mens Rea: Strict Liability Offenses
a) United States v. Balint (1922- chemist): No mens rea requirement where the statute
was silent on whether knowledge was required. Support of public policy/ public
safety regulations.
b) Morissette v. United States (1952- ammo dump)): The mere omission of a mens rea
requirement does not mean that the statute should be construed as a strict liability
offense. Larceny requires mens rea.
c) Staples v. United States (1994-weapons semi-auto to full auto): The common law
favored mens rea so courts will often look for evidence that a legislature intended
to enact a strict liability offense . Strict liability should not be inferred.
d) People v. Hoskay (2003-sex in public): The legislature can establish a strict
liability offense based on its statutory language.
e) State v. Jadowski (2004-minor lied about age): The offense of statutory rape is
generally a strict liability crime based on the public policy goal of protecting
children from sexual abuse.
i) Other strict liability offenses: speeding/ traffic offenses, illegal booze sales
ii) Intent is irrelevant; but must have actus reus. Involuntary/ no voluntary act can
serve as a defense
6. Mens Rea: Implications of Intoxication
a) People v. Atkins (2001, arson): Evidence of voluntary intoxication is inadmissible
as a defense for general intent crimes, but admissible as a defense for specific
intent crimes.
b) Tennessee v. Hatcher (2010, murder): Even when a defense like intoxication is
theoretically available, there must still be sufficient evidence before a judge allows
it to go to a jury.
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7. Mens Rea: Mistake of Fact: Winner
a) Hopson v. Texas (2009- burglary): The defendant’s requested mistake of fact
defense instruction was unnecessary because the actual instructions covered the
implications of this defense.
b) Iowa v. Freeman (1990-drug sale; sold baby aspirin unknowingly) : Mistake of fact
is a defense to a crime requiring intent (scienter element) only when the mistake
precludes the existence of the mental state necessary to commit the crime .
c) North Carolina v. Breathette (2010): Mistake of fact defenses are inapplicable to
strict liability offenses such as st atutory rape.
8. Mens Rea: Mistake of Law: Loser
Ignorance of Law- No Excuse (Common Law)
a) United States v. Scarmazzo (2008- marijuana/ medical necessity): A mistaken
belief regarding what the law allows is a mistake of law as opposed to a mistake of
fact and is not a defense to a criminal charge: ignorance of the law is no defense. [D
relied on bad advice from personal attorney  no defense]
Mistake of Law- Exceptions (MPC allows for based on judicial or statutory errors)
b) Hawaii v. DeCastro: Although typicall y a mistake of law defense does not exist,
there are some exceptions, including when a public official charged by law with the
responsibility of interpreting or enforcing the law offers an official interpretation.
[Instant case: dispatcher was not such an official]
c) Kipp v. Delaware: Principles of fundamental fairness mandate that the conviction
be reversed where the judge and prosecutor gave the defendant the reasonable
belief that the law was different than it was.
9. Causation: Actual Cause and the "But F or" Test
a) Stephenson v. State (1932-kidnap and rape/ victim poisoned self): When a causal
relationship between defendant’s actions and the victim’s death, the state can
satisfy causation even if the victim took steps that led to the death.
b) People v. Acosta (1991-car chase/ helo crash): There was actual causation because
Acosta’s actions were a “substantial factor” in the deaths and there was legal cause
because “[t]he result was not highly extraordinary.”
c) MPC: If knowing is element, not established if not within purpose unless only
different person or property injured , actual result is same kind/ type contemplated.
d) Oxedine v. State (1987- boy beaten by dad and girlfriend) The evidence established
that Oxendine caused a non -lethal blow to the boy. For him to be convicted of
manslaughter, the blow must have hastened the death. The expert testimony failed
to establish that Oxendine hastened the death. Thus, he cannot be convicted of
manslaughter. Thus, that conviction was reversed, but there was suffic ient
evidence to convict him of assault.
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e) MPC vs. Common Law: To remote or accidental vs. Not normal/ natural
consequences
10. Causation: Legal Cause
a) Commonwealth v. Root (1961-drag racing): The tort liability concept of proximate
cause is unsuitable for prosecuting homicides and instead a more direct causal
connection is required for conviction.
b) People v. McGee (1947-shot in stomach/ delayed medical care): A negligent delay
is not necessarily an intervening force that cuts off criminal liability.
c) State v. Smith (2007-TBI from D's punch caused victim to not take diabetes meds) :
A decedent’s pre-existing condition is not necessarily an intervening force that cuts
off criminal liability. [Eggshell rule/ take victim as you find them.]
i) Dependent Intervening Cause: in response to D's conduct - does not break chain
of causation
ii) Independent Intervening Cause: Simply a coincidence (lightning strike) - does
break chain of causation
11. Complicity: Principals and Accessories NOTE: THERE IS NO CRIME OF
COMPLICITY
a) Merger of Principals & Accessories
b) Standefer v. United States (1980): At common law, there were distinctions between
the four categories of parties to a crime, and the modern approach merges all of
these categories with the exception of accessory after the fact.
c) Baker v. Alaska (1996): When the indictment alleges the defendant is a principal,
then the defendant is on notice regarding liability as an accessory and that
conviction based on accompli ce liability is feasible.
a) New Hampshire v. Sinbandith (1999): When indictment charges a defendant with
acting in concert, then the defendant can be charged and convicted either as a
principal or as an accessory
12. Complicity: The Act of Aiding and Encouraging
a) Lane v. Texas (1999): Mere presence does not establish actus reus. Failure to
report is not accomplice actus reus (MPC differs: timely warning to law
enforcement)
b) New Hampshire v. Merritt (1999): Courts must assess a defendant’s actus reus to
assess whether the prosecution has met its burden.
13. Complicity: Intent to Promote or Facilitate a Crime
a) Mens rea for accomplice liability has 2 separate components:
i) The intent to assist the principal in committing the intended crime.
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ii) The intent that the principal actually commit the crime.
b) Hawaii v. Soares(1991): Accessorial culpability is not strict liability as a
defendant’s intent must be considered. (Must act with intent to facilitate or
promote).
14. Complicity: Specific Intent
a) New York v. Kaplan (1990): There is no need for the prosecution to establish
“specific intent” to convict a defendant of being an accomplice based on the
elements of the underlying offense.
b) Pennsylvania v. Potts(1987): Circumstantial evidence is sufficient to sustain a
conviction even where the defendant claimed he did not possess the requisite intent
for a charged offense.
i) Criminal liability attaches by own conduct, or by conduct of one for which
legally accountable, or both
(1) A person is legally accountable for the conduct of another if he is an
accomplice in the commission of the offense
(2) Accomplice theory: no agreement required: only that accomplice aided the
principal "by the least degree of concert or collusion between accomplice
and principle."
15. Complicity: Vicarious Liability for Individuals
a) United States v. Park (1975-Food, Drug, and Cosmetic Act/ rodent infestation) : A
senior official within an organization or a corporation may be prosecuted for that
entity’s criminal misconduct based, not on the official’s position, b ut based on the
official’s own acts or omissions.
16. Complicity: Vicarious Liability for Corporations
a) South Dakota v. Hy Vee Food Stores, Inc. : A corporate defendant could be held
vicariously liable and fined for misconduct without violating its due process rights.
SD Public safety/ strict liability offense: no mens rea requirement for underage
sales
b) Iowa v. Casey’s General Stores, Inc. : A corporate defendant could not be held
vicariously liable and fined for misconduct without violating its due process rights.
IA Has a scienter requirement for underage sales
17. Attempt: Mens Rea
a)
State v. Maestas: The jury could find that there was “substantial evidence” of
attempt based on defendant’s intent to murder the officer.
b)
People v. Gibson: A conviction for an attempt offense requires two general
elements: a specific intent and an ineffective overt act done seeking to consummate
the attempted offense.
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18. Attempt: Actus Reus
a)
Commonwealth v. Peaslee: The defendant’s conduct was mere preparation and
insufficient to convict him for attempt. (MPC: substantial steps (strongly
corroborative of actual criminal purpose) vs. Common Law: dangerous proximity/
last step/ last "proximate" actBEWARE THE TORTS ANSWER IN A CRIM
LAW QUESTION)
b)
People v. Rizzo: Although the defendants intended to commit an attempted
robbery, they could not be convicted because there was no act “tending” to the
commission of robbery. (intent but no actus reus= no attempt)
c) United States v. Jackson: The defendant’s conduct established the necessary
substantial steps to sustain a conviction. (MPC: not "last step;" more inclusive
standard)
d) At common law, courts developed a number of tests to establish actus reus. There
must be evidence that the defendant has moved beyond mere preparation and
actually attempted a substantive offense. The Model Penal Code is more flexible
than the common law majority approach in applying a substantial step test.
See § 5.01(2).
19. Attempt: Abandonment
a) State v. Workman: Many jurisdictions do not view abandonment as a defense to the
crime of attempt. (Common law/ majority approach)
i) MPC: abandonment is an affirmative defense; but motivation matters (volunta ry
renunciation before substantial step is taken)
20. Attempt: Impossibility (defense for attempt crimes only/ under Common Law)
i) Factual impossibility: loser
ii) Legal impossibility: winner
iii) MPC: eliminate impossibility as a defense in all forms: court has discreti on: so
inherently unlikely, conduct nor actor present a public danger.
b) State v. Guffey: Shooting a deer decoy out of hunting season was covered by the
defense of legal impossibility.
c) State v. Curtis: Shooting a deer decoy out of hunting season was not co vered by the
defense of legal impossibility.
d) People v. Dlugash: The jury could find there was an attempted murder and rejected
a defense of legal impossibility as actually a defense of factual impossibility.
21. Conspiracy: Unilateral and Bilateral Approa ches
At common law: bi-lateral approach/ actual agreement required
MPC: unilateral approach - focus on act of single individual who is or believes he/she
is agreeing to commit a criminal act (only one person agreeing required)
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Inchoate offenses: not fully developed or formed/ incomplete crimes criminal steps
toward other crimes:
3 types: attempt, conspiracy, and solicitation
Can’t be convicted of “conspiracy” or “complicity”  There must be an underlying
criminal act
a) State v. Huff: In the unilateral conspiracy model, the defendant’s subjective
behavior is what is considered to assess intention.
b) State v. Mendoza: The Wharton rule occurs when an agreement by two persons to
commit a particular crime cannot be prosecuted as a conspiracy because the crime’ s
nature necessarily requires the participation of the two persons. (example: buying
and selling; where the sale of some commodity is the substantive crime, the sale
agreement itself cannot be the conspiracy)
22. Conspiracy: Mens Rea
A crime of conspiracy requires 2 separate intents: 1) the specific intent to agree to
commit the specific criminal offense and 2) the specific intent to commit the criminal
offense itself.
a) Palmer v. Colorado: A substantive offense that is a general intent crime cannot
serve the basis as a conspiracy because that requires specific intent as well as the
specific intent to agree to commit the crime.
b) United States v. Hassoun: Mere presence is insufficient to support a conspiracy
charge. (Conspiracy may be inferred from acts, i.e., financial support for terrorism)
c) United States v. Blankenship: Conspiracy requires agreement and merely selling or
buying in the marketplace does not establish a conspiracy.
23. Conspiracy- Actus Reus
At Common Law: Conspiracy Elements:
1) An agreement
2) Between two or more persons to commit a criminal offense
3) Specific intent to achieve the conspiracy’s goal or objective (the commission of
the criminal offense)
4) An overt act in furtherance of the agreement
MPC approach-Conspiracy:
(a) agrees with such other person or persons that they or one or more of them will
engage in conduct which constitutes such crime or an attempt or solicitation to commit
such crime; or
(b) agrees to aid such other person or persons in the planning or commission of such
crime or of an attempt or solicitation to commit such crime.
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(2) Scope of Conspiratorial Relationship. If a person guilty of conspiracy, as defined
by Subsection (1) of this Section, knows that a person with whom he conspires to
commit a crime has conspired with another person or persons to commit the same
crime, he is guilty of conspiring with such other person or persons, whether or not he
knows their identity, to commit such crime.
(3) Conspiracy With Multiple Criminal Objectives. If a person conspires to commit a
number of crimes, he is guilty of only one conspiracy so long as such multiple crimes
are the object of the same agreement or continuous conspiratorial relationship.
State v. Rosado: The actus reus is typically the agreement and generally proven by
circumstantial evidence.
24. Conspiracy: Overt Act
a) Kansas v. Crockett: Planning or mere presence does not constitute an overt act to
establish a conspiracy.
b) People v. Mamaril: The prosecution need not prove that the defendant personally
did any particular overt act, but need only show that a conspirator committed an
overt act.
25. Conspiracy: Renunciation or Withdrawal
At Common Law: no renunciation or withdrawl
MPC: complete and voluntary renunciation of criminal purpose
a) Gurwell v. Texas: Renunciation after the criminal offense is completed is
insufficient.
b) New Jersey v. Hughes: Defendant had not renounced the conspiracy simply by
telling the police about it and indicating that he had not joined it. (You can’t
renounce a conspiracy you claim not to be a part of, you can only renounce if you
state your are a co-conspirator)
26. Conspiracy: Merger
At common law: conspiracy seen as greater threat than completed offense: separate
crimes, did not merge
Some jurisdictions today: merge multiple inchoate offenses aimed at same target
offense
MPC: Conspiracy and attempts do not merge (group planning is separate from an
attempt to complete the offense)
a) State v. Hardison: A conspiracy does not merge with a conviction for the completed
offense that was an object of the conspiracy because the actus reus of the choate
offense is different from the actus reus of the inchoate conspiracy offense, namely
the conspiratorial agreement.
27. Conspiracy: Culpability of Co -Conspirators
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a) Pinkerton v. United States: Co-conspirators are held culpable for the criminal acts
of their co-conspirators undertaken in furtherance and within the reasonably
foreseeable scope of the conspiracy.
b) Everritt v. Georgia: A defendant can be held criminally liable for the criminal acts
of co-conspirators where the act is done in furtherance of the conspiracy and is
reasonably foreseeable as a consequence entering into the conspiracy.
c) Snowden v. United States: It is foreseeable that bringing guns to a conspiracy to
commit robbery might lead to a fatality in furtherance of the conspiracy,
particularly in furtherance of a co -conspirator ensuring his escape.
i) Co-conspirators: Drivers, Scouts, Coyotes  illegal smugglers; all can be
indicted as co-conspirators even if they’ve never met if connected to greater
conspiracy (hub and spokes or chain liability)
28. Homicide: Intentional Killings - Murder
a) Common Law Murder Elements
i) The unlawful killing
ii) of another human being
iii) through a criminal act or omission
iv) with malice aforethought
b) Common Law Murder Mens Rea
i) Intent to cause death.
ii) Intent to commit serious bodily injury.
iii) Reckless or extreme indifference to human life (depraved heart murder).
iv) Intent to commit a dangerous felony (felony murder).
v) Intent to oppose a peace officer performing official duties.
c) Model Penal Code Murder
i) Malice aforethought is no longer a consideration. Instead, the prosecution must
establish that the defendant must have acted purposefully or knowingly in
killing another human being.
ii) The killing of another human being in an extremely reckless manner is an other
way for the prosecution to establish murder that is similar to the common law
approach in the depraved heart murder rule. This recklessness is presumed if
the defendant kills someone in the commission of or flight from another serious
felony (felony murder): arson, burglary, kidnapping, rape, or robbery.
d) Murder
i) State v. Ramirez: Premeditation requires actual reflection.
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ii) State v. Davis: The mental deliberation by the defendant essential to sustain a
conviction of first degree murder need only be a momentary deliberation
e) Common Law Voluntary Manslaughter Elements:
i) The unlawful killing
ii) of another human being
iii) through a criminal act or omission
iv) in the heat of passion or pursuant to an extreme emotional disturbance
(1) The heat of passion element requires 3 factors:
(a) Heat of passion.
(b) Adequate provocation.
(c) Insufficient time to cool off.
f) Model Penal Code Manslaughter (no “voluntary” or “involuntary” )
i) The reckless killing of another human being.
ii) A killing that would otherwise be murder, but is committed under the influence
of extreme mental or emotional disturbance for which there is reasonable
explanation or excuse. The Model Penal Code uses a reasonable person standard
to determine the validity of the alleged explanation or excuse (from perspective
of actor as he believes situation to be) .
iii) Massachusetts v. Hinds: Because defendant was not entitled to use any self defense, he was not entitled to a voluntary manslaughter instruction based on
the excessive use of self -defense.
iv) Suprenant v. State: Anger alone does not support an instruction on sudden heat.
29. Homicide-Unintentional Killings
a) Imperfect Defense- Only available for murder to reduce the charge to voluntary
manslaughter (balances injustice of conviction and injustice of acquittal - sincere
but unreasonable belief that self-defense is necessary)
i) State v. Ordway: The imperfect right to self -defense is unavailable based on a
defendant’s psychotic delusions.
b) Unpremeditated Murder (Common Law: Second degree murder/ “depraved heart”;
MPC extreme indifference toward value of human life)
i) State v. Burley: Second degree or unpremeditated murder typically is based on a
death caused by extreme indifference to the specific circumstances. (Shot exwife in head fooling with loaded weapon)
c) Felony Murder
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At Common Law: homicide in process of committing another felonious act
(majority approach today)
MPC: criminal murder: recklessness presumed . . . robbery, rape, deviate sexual
intercourse by force, arson, burglary, kidnapping, or felonious escape.
i) State v. Blair: The felony murder doctrine does not require an independent mens
rea requirement. MPC jurisdiction: intentionally, knowingly, or recklessly or
with “criminal negligence.” Fact he didn’t intend to kill is irrelevant.
ii) People v. Portillo: Flight following a felony is considered a continuation of the
offense such that the felony continues until the perpetrator has reached safety.
30. Homicide: Involuntary Manslaughter
a) Common law elements:
i) The unlawful killing
ii) of another human being
iii) through an act that was either inherently dangerous to others or done with
reckless disregard for human life
iv) where defendant knew or should have known the conduct was a threat to others’
lives
b) Model Penal Code § 210.3 (Manslaughter)
(1) Criminal homicide constitutes manslaughter when:
(a) it is committed recklessly; or
(b) a homicide which would otherwise be murder is committed under the
influence of extreme mental or emotional disturbance for which there is reasonable
explanation or excuse. The reasonableness of such explanati on or excuse shall be
determined from the viewpoint of a person in the actor’s situation under the
circumstances as he believes them to be.
(2) Manslaughter is a felony of the second degree.
c) Model Penal Code § 210.4 (Negligent Homicide)
(1) Criminal homicide constitutes negligent homicide when it is committed
negligently.
(2) Negligent homicide is a felony of the third degree.
i) Noakes v. Virginia: The foreseeability of the bad consequences establish a basis
for the element of recklessness.
ii) State v. Brooks: (MPC) Recklessness has a conscious disregard of the risk
involved, while criminal negligence is when the defendant should have been
aware of the risk.
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iii) State v. Powell: (Rotwieller) A statutory violation can establish the necessary
negligence for involuntary manslaughter if the violation is willful, wanton, or
intentional where statute is designed to protect human life or limb.
iv) People v. McCoy: The violation of the speed limit alone is not dispositive of
culpability, but is a factor in the totality of circumstances in assessing gross
negligence.
31. Excuses: Insanity
a) M’Naghten Approach
i) Daniel M’Naghten’s Case: This rule emphasizes cognition or knowledge as
opposed to the Model Penal Code, which broadened the knowledge to include a
defendant’s capacity to appreciate the criminality of conduct as well as a
volitional element as to the defendant’s capacity to conform to the law.
ii) Pursuant to this test, defendant is presumed sane. To prove insanity, defendant
must show:
(1) At the time of the commission of the crime;
(2) Defendant was “labouring under such a defect of reason, from disease of the
mind;” and
(3) Consequently, the defendant did not know
(4) The nature and quality of the act he was doing; o r
(5) If the defendant did know it, that the defendant did not know t he act was
wrong.
b) Irresistible Impulse Tests
i) Clark v. Arizona: A state’s prohibition of the introduction of diminished
capacity by the defendant does not violate the due process clause.
c) Alternative Tests
i) United States v. Freeman: The Model Penal Code app roach views the mind as a
single entity in which mental disease could impair its functioning.
32. Rape
a) Common Law elements
i)
Sexual intercourse
ii) unlawful in nature
iii) without the woman’s consent
iv) by fear, force, or fraud
v) At common law, only a man could commit the crime of rape and only against a
woman other than his wife.
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b) Model Penal Code 213.1 Rape
(1) Rape. A male who has sexual intercourse with a female not his wife is guilty of
rape if:
(a) he compels her to submit by force or by threat of imminent death, serious
bodily injury, extreme pain or kidnapping, to be inflicted on anyone; or
(b) he has substantially impaired her power to appraise or control her conduct by
administering or employing without her knowledge drugs, intoxicants or other
means for the purpose of preventing resistance; or
(c) the female is unconscious; or
(d) the female is less than 10 years old.
i) Rape is a felony of the second degree unless (i) in the course thereof the actor
inflicts serious bodily injury upon anyone, or (ii) the victim was not a voluntary
social companion of the actor upon the occasion of the crime and had not
previously permitted him sexual liberties, in which cases the offense is a felony
of the first degree.
ii) Rape: Forcible Rape
(1) People v. Iniquez: Establishment of the element of fear or force can be done
based on the circumstances and does not require screaming or a struggle by
the victim.
iii) Rape: Consent
(1) State v. Koperski: Consent is a valid defense to the charge of rape even
when the statute is silent.
iv)
Mistake of Fact and General Intent
(1) People v. Mayberry: A court’s failure to give an instruction regarding
mistake of fact as to defendant’s belief that the victim consented may
constitute reversible error.
v) Rape by Deception
(1) Suliveres v. Commonwealth: Victim who was deceived into having sex with
man who was not her boyfriend consented to the sex.
vi) Rape of Drugged or Intoxicated Victim
vii)
Statutory Rape
(1) In re G.T.: Statutory rape laws should protect all under the age equally.
viii)
Evidence Rules for Rape Prosecutions
(1) State v. Kinney: Expert testimony on general issues of trauma that rape
survivors experience is generally admissible, but courts must be careful not
to let expert testimony invade the fact -finder’s role.
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33. Battery
a) Common law elements:
1) The unlawful application of force or contact
2) to the person of another
3) resulting in either bodily injury or an offensive touching.
i) Battery is a general intent offense, which means that a defendant has an
awareness of all of the factors constituting the crime.
b) Model Penal Code § 211.1 (Assault)
(1) Simple Assault. A person is guilty of assault if he:
(a) attempts to cause or purposely, knowingly or recklessly causes bodily injury to
another; or
(b) negligently causes bodily injury to another with a deadly weapon; or
(c) attempts by physical menace to put another in fear of imminent serious bodily
injury.
i) Simple assault is a misdemeanor unless committed in a fight or scuffle entered
into by mutual consent, in which case it is a petty misdemeanor.
(2) Aggravated Assault. A person is guilty of aggravated assault if he:
(a) attempts to cause serious bodily injury to another, or causes such injury
purposely, knowingly or recklessly under circumstances manifesting extreme
indifference to the value of human life; or
(b) attempts to cause or purposely or knowingly causes bodily injury to another
with a deadly weapon.
ii) Aggravated assault under paragraph (a) is a felony of the second degree;
aggravated assault under paragraph (b) is a felony of the third degree.
c) Offensive Touching (No MPC)
Adams v. Commonwealth: The court expands the notice of offensive touching
through its interpretation of the common law.
d) Bodily Injury (MPC requirement)
State v. Gordon: It is the role of the jury to determine whether bodily injury exists
within the context of proper jury instructions.
e) Exposure to Life-Threatening Disease
State v. Richardson: Although battery is a general intent crime, here the specific
statute required specific intent.
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34. Assault
a) Common Law:
i) At common law, one could establish an assault by two means:
(1) An attempted battery.
(2) The placing of the victim in apprehension of an imminent battery.
b) Common Law Assault elements:
1) The placing of another person
2) in apprehension
3) of either a bodily injury or an offensive touching.
i) Assault, unlike battery, is a specific intent offense.
c) Model Penal Code § 211.1 (Assault) [See above: there is no MPC “battery”]
d) Assault: Attempted Battery Assault
i) People v. Yslas: The determination is whether a reasonable person would have
been in fear that he was going to be a victim of battery.
ii) Commonwealth v. Henson: Instead of relying on the defendant’s actual ability,
the court relied on his apparent ability.
e) Assault: Frightening Assault
i) Carter v. Commonwealth: An apparent present ability to inflict imminent bodily
harm can sustain an assault conviction.
f) Assault: Reckless Endangerment: Reckless endangerment statutes have been
enacted in many jurisdictions to criminalize a defendant’s reckless beh avior that
causes serious injury short of a fatality.
g) Assault: Stalking
i) State v. Simone: The crime of stalking only applies when there is a credible
threat of harm to the victim.
35. Theft: Definition of Property
a)
United States v. Farraj: The taking and transferring of electronic documents
across state lines by the internet fell within the actions criminalized by the statute.
b)
United States v. Aleynikov: Computer data and code was deemed intangible
information that was outside the scope of the statutory defi nition of stolen goods.
c)
United States v. Mafnas: Defendant did not have possession of the money,
but merely had temporary custody of the bags so there is no embezzlement.
Theft: Embezzlement
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Batin v. State: A defendant must have been entrusted with la wful possession of the
property before it was converted to be guilty of embezzlement.
Theft: Larceny by Trick
State v. Thompson: When the victim retains title of the property, larceny by
trick is the appropriate offense as opposed to theft by false prete nses.
Common Law Elements of Larceny
1) the intentional taking and carrying away
2) personal property
3) in the possession or presence of another
4) without consent
5) with intent to permanently deprive another of their property
Common Law Elements of Embezzlement
1. The fraudulent
2. Conversion or misappropriation of
3. The property of another
4. By one who is already in lawful possession of this property
Model Penal Code § 223.2
Theft by Unlawful Taking or Disposition
(1) Movable Property. A person is guilty of theft if he unlawfully takes, or
exercises unlawful control over, movable property of another with purpose to
deprive him thereof.
(2) Immovable Property. A person is guilty of theft if he unlawfully transfers
immovable property of another or any interest therein with purpose to benefit
himself or another not entitled thereto.
MPC: Theft by Deception
A person is guilty of theft if he purposely obtains property of another by
deception. A person deceives if he purposely:
creates or reinforces a false impression, including false impressions as to law,
value, intention or other state of mind; but deception as to a person's intention
to perform a promise shall not be inferred from the fact alone that he did not
subsequently perform the promise; or
prevents another from acquiring information which would affect his judgment
of a transaction; or
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fails to correct a false impression which the deceiver previously created or
reinforced, or which the deceiver knows to be influencing another to whom he
stands in a fiduciary or confidential relationship; or
fails to disclose a known lien, adverse claim or other legal impediment to the
enjoyment of property which he transfers or encumbers in consideration for the
property obtained, whether such impediment is or is not valid, or is or is not a
matter of official record.
Common Law Larceny by Trick Elements
1) the taking of the property of another
2) by knowingly making false representations as to material facts or making
false promises
3) with intent to defraud
Common Law False Pretenses Elements
1) the taking title and
possession of the property of another
2) by knowingly making false representations as to material facts
3) with intent to defraud
Larceny by Trick: This charge is often contrasted with fal se pretenses.
Theft by False Pretenses
People v. Traster: In a theft by false pretenses charge, the defendant must
acquire title to the money.
Robbery
United States v. Lake: The defendant’s subjective fear was sufficient to meet
the element.
Burglary
In the Matter of T.J.E.: The statute required the defendant to remain with
intent to commit a felony.
Receiving Stolen Property
State v. McCoy: Defendant must have either actual or constructive
possession of the stolen property.
Common Law Elements of Robbery
1)
the intentional taking and carrying away
2)
personal property
3)
in the possession or presence of another
4)
without consent
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5)
with intent to permanently deprive another of their property
6)
the taking of the property from the person or in the victim’s presence
7)
by means of force or by putting the victim in fear of violence
MPC Robbery:
(1) Robbery Defined. A person is guilty of robbery if, in the course of
committing a theft, he:
(a) inflicts serious bodily injur y upon another; or
(b) threatens another with or purposely puts him in fear of immediate
serious bodily injury; or
(c) commits or threatens immediately to commit any felony of the first or
second degree.
An act shall be deemed “in the course of committin g a theft” if it occurs in an
attempt to commit theft or in flight after the attempt or commission.
(2) Grading. Robbery is a felony of the second degree, except that it is a felony
of the first degree if in the course of committing the theft the actor at tempts to
kill anyone, or purposely inflicts or attempts to inflict serious bodily injury.
Common Law Elements of Burglary
1) breaking and
2) entering
3) the dwelling of another
4) at night
5) with the intent to commit a felony inside
MPC Burglary:
(1) Burglary Defined. A person is guilty of burglary if he enters a building or
occupied structure, or separately secured or occupied portion thereof, with
purpose to commit a crime therein, unless the premises are at the time open to
the public or the actor is licensed or privileged to enter. It is an affirmative
defense to prosecution for burglary that the building or structure was
abandoned.
(2) Grading. Burglary is a felony of the second degree if it is perpetrated in the
dwelling of another at night, or if, in the course of committing the offense, the
actor:
(a) purposely, knowingly or recklessly inflicts or attempts to inflict bodily
injury on anyone; or
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(b) is armed with explosives or a deadly weapon.
Otherwise, burglary is a felony of the third de gree. An act shall be deemed “in
the course of committing” an offense if it occurs in an attempt to commit the
offense or in flight after the attempt or commission.
(3) Multiple Convictions. A person may not be convicted both for burglary and
for the offense which it was his purpose to commit after the burglarious entry or
for an attempt to commit that offense, unless the additional offense constitutes a
felony of the first or second degree.
36. Self-Defense
Common Law Elements of Self Defense
the defendant’s reasonable belief
that the conduct of another poses a threat of death or great bodily harm
that such harm is imminent
the use of (deadly) force is necessary to protect the defendant
Model Penal Code § 3.04
Use of Force in Self -Protection
(1) Use of Force Justifiable for Protection of the Person. Subject to the
provisions of this Section and of Section 3.09, the use of force upon or toward
another person is justifiable when the actor believes that such force is
immediately necessary for the purpose of prot ecting himself against the use of
unlawful force by such other person on the present occasion.
(2) Limitations on Justifying Necessity for Use of Force.
(a) The use of force is not justifiable under this Section:
(i) to resist an arrest that the actor knows is being made by a peace
officer, although the arrest is unlawful; or
(ii) to resist force used by the occupier or possessor of property or by
another person on his behalf, where the actor knows that the person using the
force is doing so under a cl aim of right to protect the property, except that this
limitation shall not apply if:
(A) the actor is a public officer acting in the performance of
his duties or a person lawfully assisting him therein or a person making or
assisting in a lawful arrest; or
(B) the actor has been unlawfully dispossessed of the property
and is making a re-entry or recaption justified by Section 3.06; or
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(C) the actor believes that such force is necessary to protect
himself against death or serious bodily injury.
(b) The use of deadly force is not justifiable under this Section unless the actor
believes that such force is necessary to protect himself against death, serious
bodily injury, kidnapping or sexual intercourse compelled by force or threat;
nor is it justifiable if:
(i) the actor, with the purpose of causing death or serious bodily injury,
provoked the use of force against himself in the same encounter; or
(ii) the actor knows that he can avoid the necessity of using such force with
complete safety by retreating or by surrendering possession of a thing to a
person asserting a claim of right thereto or by complying with a demand that he
abstain from any action that he has no duty to take, except that:
(1) the actor is not obliged to retreat from his dwelling or place of work,
unless he was the initial aggressor or is assailed in his place of work by another
person whose place of work the actor knows it to be; and
(2) a public officer justified in using force in the performance of his duties
or a person justified in using force in his assistance or a person justified in
using force in making an arrest or preventing an escape is not obliged to desist
from efforts to perform such duty, effect such arrest or prevent such escape
because of resistance or threatened resistance by or on behalf of the person
against whom such action is directed.
(c) Except as required by paragraphs (a) and (b) of this Subsection, a person
employing protective force may estimate the necessity thereof under the
circumstances as he believes them to be when the force is used, without
retreating, surrendering possession, doing any other act that he has no legal
duty to do or abstaining from any lawful action.
Duty to Retreat
Brown v. United States: The duty to retreat is determin ed on a case
by case basis.
Reasonable Belief & Imperfect Self -Defense
State v. Marr: Imperfect self-defense is a partial defense that does
not allow a complete, total defense but instead reduces the charge from murder
to manslaughter.
Battered Defendants
Bechtel v. State: Expert testimony may be warranted to explain the
defendant’s experiences as a battered woman that affected her state of mind at
the time of the killing.
37. Defense of property:
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At common law, one could use deadly force to protect o ne’s property against
any type of felony. However, that approach has evolved. An individual only
may use reasonable force in defending one’s property from theft, destruction, or
trespass. Such force must be non -lethal.
In order to have a valid claim of this defense, a defendant must have a
reasonable belief that the property is in immediate danger of some harm and
that the defendant used force no greater than is necessary. Moreover, if a
demand to stop any damage to the property would resolve the iss ue, then the
defendant must first make such a demand.
Although at common law a defendant could use deadly force to protect property
from harm, that rule fell into disfavor.
Generally, an individual may not now use deadly force to defend property.
Consequently, spring guns or mechanical devices that cause death or serious
bodily harm typically are per se illegal. However, deadly force may be used
where the threat to property also involves a threat of death or serious bodily
harm.
38. Common Law Necessity Elements
1) the defendant acted to avoid a significant risk of injury or harm
2) the harm is imminent
3) there was no sufficient lawful way for the defendant to have avoided the
injury
4) the injury avoided was greater than the injury caused by breakin g the law
Necessity cannot be used in defense of homicide.
Necessity applies when a defendant must choose between 2 evils. Typically,
these choices are between committing a crime or suffering some imminent
serious bodily injury or death. Often this choice is necessitated by some
external force. When applicable necessity establishes what is typically illegal
is not viewed as establishing criminal culpability based on the specific facts and
negates a crime’s actus reus. Ultimately, society concludes in necessity that the
defendant has made the right choice in difficult circumstances by selecting the
lesser of two evils even if the choice would normally break the law.
39. Duress: Duress exists as a defense when a person faces a threat of death or seriou s
bodily injury and chooses to commit a crime instead of suffering the physical harm.
Duress excuses a defendant’s crime because the pressures on a defendant mentally
prevent the existence of mens rea. Unlike necessity, the defendant has made the wrong
choice, but the choice is excused because the defendant did not form the requisite
intent based on the circumstances.
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Common law Duress:
a threat of death or serious bodily injury
the harm is imminent
the threatened harm is greater than the harm caused by breaking the law
the defendant did not put herself in the situation
Duress cannot be used in defense of homicide.
MPC Duress:
(1) It is an affirmative defense that the actor engaged in the conduct charged to
constitute an offense because he was coerced to do so by the use of, or a threat
to use, unlawful force against his person or the person of another, that a person
of reasonable firmness in his situation would have been unable to resist.
(2) The defense provided by this Section is unavailable if the actor recklessly
placed himself in a situation in which it was probable that he would be
subjected to duress. The defense is also unavailable if he was negligent in
placing himself in such a situation, whenever negligence suffices to establish
culpability for the offense charged.
(3) It is not a defense that a woman acted on the command of her husband,
unless she acted under such coercion as would establish a defense under this
Section. [The presumption that a woman acting in the presence of her husband
is coerced is abolished.]
(4) When the conduct of the actor would otherwise be justifiable under Section
3.02, this Section does not preclude such defense.
Defenses: Defense of Dwelling
State v. Anderson: The defense applies to guests and employees as well a s
residents.
Defenses: Necessity
State v. Crawford: Necessity is a defense in which outside events arguably
pressure a defendant to break the law.
Excuses: Duress
United States v. Contento-Pachon: Duress is an excuse in which another
individual arguably pressures a defendant to break the law.
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