
Burdens of proof and defenses: Prosecution bears the burden of proof; “Case in chief” defense: raising doubt
about whether the prosecutor has proved an element of the crime; Affirmative defense: arguing that the conduct
was justified or excused, so the defendant should not incur criminal liability
Punishment Theories
Consequentialist/utilitarian (forward looking):
 Deterrence (To forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens
substantial harm to individual or public interests; to give fair warning of the nature of the conduct declared
to constitute an offense; to prevent the commission of offenses; to give warning of the nature of the
sentences that may be imposed on conviction of an offense)
o Specific deterrence – punishing an individual so they don’t do that again
o General deterrence – looking at sending a message to society re: negative behavior (To safeguard
conduct that is without fault from condemnation as criminal; NOT deter conduct that is NOT
criminal)
 Incapacitation (To subject to public control persons whose conduct indicates that they are disposed to
commit crimes)
 Rehabilitation (To promote the correction and rehabilitation of offenders; to differentiate among offenders
with a view to a just individualization in their treatment)
Nonconsequentialist/retributivism (backwards looking):
 Retribution (i.e. eye for an eye) (To differentiate on reasonable grounds between serious and minor
offenses; to safeguard offenders against excessive, disproportionate or arbitrary punishment; to differentiate
among offenders with a view to a just individualization in their treatment)
Statutory Interpretation
Void for Vagueness: comes up in discussions of over-criminalization; too broad or vague statutes that gives law
enforcement too wide of a net
Elements of a Crime:
1. Actus Reus (bad act)
a. Voluntary Act
b. Cause
c. Social Harm
Failure to act – liability for omissions
 Sources of legal duties to act
o Special relationship
o Contract
o Statutory duty
o Creation of the risk
o Voluntary assumption of care
Good Samaritan Statutes
 Criminal laws set a minimum standard, not there to impose moral duties
2. Mens Rea (intent): Need to have some kind of conscious thought of intent to be held criminally liable for a
crime
a. Intent
Purpose
1. Purposely: “Conscious object” – intending for the resulting damage to happen
ii.
Knowledge
1. Knowingly: Have to know what you’re doing; practically certain that the resulting damage will
happen
iii.
Reckless (default culpability requirement in absence of mens rea language)
1. Recklessly: Knowing that it could happen and ignoring the risk
iv.
Negligent
1. Negligently: Lack of awareness you should have had when doing the act
b. General Intent: only required mental state is intent to do the actus reus
i.
c.
Specific Intent: requires intent to do something beyond the actus reus
i. Some state of mind beyond the intent to commit the actus reus of the crime
ii. Defendant must have actual knowledge of a circumstance found in the definition of the crime
iii. The crime requires a mental state other than recklessness or negligence
d. Strict Liability: doesn’t matter if there was mistake of fact or law since there’s no mens rea to negate. If
you’re guilty, you’re guilty.
e. Mistakes of Law: ignorance of the law is no defense
i. Three exceptions
1. Official interpretation of the law
 D reasonably relies
 Reliance is on an official interpretation
 Interpretation is wrong
 Interpretation comes from someone with authority
2. Mistake negates mens rea
 Knowledge of the law must be an element of the crime
3. Due process violation
 Lambert rule
f. Mistakes of Fact
“Deadly Weapon” rule: What is a “deadly weapon”? Possibly: anything designed, made, or adapted for
the purpose of inflicting death or serious bodily injury, anything likely to produce death or grievous
bodily injury; MPC definition: “any firearm or other weapon, device, instrument, material, or substance,
whether animate or inanimate, which in the manner it is used or is intended to be used is known to be
capable of producing death or serious bodily injury”
Mens Rea of Knowledge (MPC 2.02(2)(b)): “A person acts knowingly w/ respect to a material element of
an offense when: (i) If the element involves the nature of his conduct or the attendant circumstances, he is
aware that his conduct is of that nature or that such circumstances exist; and (ii) If the element involves a
result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.”
Strict Liability
Circumstances/factors re: whether a crime is strict liability:
o No mens rea specific in statute
o Aimed at promoting public health, safety, and welfare
o Statute punishes for an omission
o Statute addresses risk of injury instead of actual injury
o Light penalties and little stigma
o D is in a position to prevent harm, reasonable to expect them to do so
o Newly created crimes
Strict liability under the MPC
o § 2.02(1): except as provided in § 2.05, each material element must have a mens rea
o § 2.05(1): culpability requirements don’t necessarily apply to “violations” or offenses the legislature
intended to impose absolute liability for
o § 2.05(2): if a statute imposes strict liability, it’s only a violation (i.e. only fines and forfeiture); and
strict liability statutes can be converted to negligence statutes
“Moral Wrong” and “Legal Wrong” Doctrines
 Moral wrong doctrine: even if a defendant makes a good faith and reasonable mistake, if D’s
conduct would be immoral under the facts as D believed them to be, they will be held liable
 Legal wrong doctrine: if D’s conduct would be illegal under the facts as D believed them to be,
they will be held liable for the charged offense

MPC equivalent (§2.02(2)): if D’s conduct would violate another law under the facts as D
believed them to be, they will be held liable for the charged offense but punished as they
committed the lesser offense
3. Causation: Don’t confuse criminal causation with torts; only an element of “result” crimes
Two-prong causation test:1. But-for or actual cause or cause in fact (If no, then D is not the
cause of the result; If yes, move on to proximate cause); 2. Proximate cause (Basic meaning: it is
fair and just to hold D criminally liable for their voluntary act; If D’s act is the direct cause of the
social harm, it is fair and just to hold them criminally liable)
o Substantial Factor Test (special rule for Actual/“But For” Test) - D’s voluntary act is an actual
cause if it was a substantial factor leading to the social harm
o Modified But-For Test - D’s voluntary act is an actual cause if, but for D’s act, the social harm
would not have occurred when and as it did
o Intervening Cause Analysis - Step 1: Was D’s voluntary act the direct cause, or were there any
intervening causes? (Intervening cause: an act which occurs after D’s voluntary act and before the
social harm, which contributes causally to the social harm); Step 2: Was the intervening cause
dependent (or responsive) or independent (or coincidental)?; Step 3: Was D’s voluntary act the
proximate cause of the social harm? (Dependent IC: D’s act is proximate cause unless the IC was
extremely unusual or bizarre, Independent IC: D’s act is not proximate cause unless IC was
foreseeable)
Proximate Cause Considerations
o



De minimis contribution: if D’s act contributed minimally to the social harm, it’s unfair to hold D criminally
liable
Intended consequences doctrine: if D got what they intended, it’s fair and just to hold them criminally liable
Omissions: An omission will rarely serve as a superseding intervening cause
Concurrence: Actus reus and mens rea must “concur”; Temporal concurrence: D must have requisite
mens rea at the same time as their voluntary act; Motivational concurrence: D’s mens rea must be the motivating
force behind his actus reus
4.
Criminal Homicide: the unlawful killing of a human by another human; Two types: 1) Murder: killing w/ “malice
aforethought” and 2) Manslaughter: killing w/o “malice aforethought”; Four types of malice aforethought: 1. Intent
to kill, 2. Intent to seriously injure, 3. “Depraved heart” murder, 4. Felony murder
Degrees of Murder: Second-degree murder = default; First-degree murder = aggravation - 1. Premeditation and
deliberation, 2. Committing using specified means, 3. Committed during the commission of another specified crime;
Voluntary manslaughter = mitigation
Additional Factors for Premeditation and Deliberation: 1) Planning actively (Ex. Bringing a murder weapon to
the scene); 2) Motive; 3) Manner of killing (Ex. Wounds deliberately placed at vital areas of the body)
Voluntary Manslaughter: Often called a defense, but does NOT relieve D of criminal liability (“Defense” simply
reduces a murder charge to a lesser charge of manslaughter); Most common types of voluntary manslaughter: 1)
Heat of passion or provocation defense, 2) Imperfect self-defense, 3) Diminished capacity defense
Voluntary Manslaughter under the Common Law
 Modern Common Law Model: Adequacy of provocation is a question of fact – to be determined by the jury;
Reasonableness standard – no more categorical rules; Berry: new paradigm of “cumulative passion”; More
cases go to the jury under this approach
 MPC: Abolishes the terms “heat of passion” and “provocation” entirely; Focuses entirely on defendant’s state
of mind, not victim’s conduct; D doesn’t have to kill the person who causes the mental or emotional disturbance
to argue the defense; Includes mental disturbance, not just emotional; Directs the jury to examine the
reasonableness of the disturbance subjectively – from the defendant’s perspective
Involuntary Manslaughter
Criminal negligence: Either recklessness or gross negligence (depending on jurisdiction)
Res Gestae Requirement: “Res gestae”: things transacted or things done; 2 parts to res gestae requirement: 1.
Temporal and geographic proximity between felony and death, 2. Causal link btwn felonious act(s) and death
Merger Doctrine: Felony murder can’t be based on a felony that’s an integral part of the underlying
crime
“Independent Felonious Purpose” Test: Another method to determine whether a felony merges with the
killing or whether it can be the predicate crime for felony murder; Two Steps: 1. Does the felony involve
assaultive behavior? 2. If so, is there a purpose for committing the felony independent of the assaultive
purpose? (If yes, the felony does not merge)
Common law theft offenses (Theft, Burglary, Robbery)



Larceny
o 1. Trespassory taking
o 2. And carrying away
o 3. Of personal property from the possession of another
o 4. With intent to permanently deprive the owner
o Larceny by trick: obtaining possession/taking property through deceit
Embezzlement
o 1. Intentional conversion of
o 2. The property of another
o 3. By someone already in lawful possession
o Key distinction: initial possession is lawful; not obtained by deceit
False Pretenses
o 1. False statement of fact that
o 2. Causes the victim
o 3. To pass title to the defendant
o 4. The defendant knows the statement is false
o 5. The defendant intends to defraud the victim
Burglary
 Common Law Elements:
o 1. Breaking
o 2. Entering
o 3. Of a dwelling house
o 4. At nighttime
o 5. With the intent to commit a felony therein
 Burglary is complete upon entering, as long as defendant has intent to commit felony within; they
don’t have to actually complete the felony
“Breaking”
o D who enters through a closed, unlocked door meets “breaking” element
VS.
o D who enters through an open door or window does not meet “breaking” element
Aggravating factors for robbery:
o 1. Taking from the victim’s person or immediate presence;
o 2. Accomplished by use of force or fear
 “Taking” includes gaining possession and asportation or carrying away of loot
Affirmative Defenses
(Burden of Proof, Justification, Self-Defense, Defense of Others, Defense of Property)
Justification
 Defendant’s conduct meets elements of a crime, but is not wrongful
 Examples
o Self-defense/defense of others
o Defense of habitation/property
o Necessity
Excuse
 Defendant’s conduct was wrongful and criminal, but does not merit punishment
 Examples
o Duress
o Intoxication
o Insanity
o Consent
o Entrapment
Self-Defense
 Basic elements
o D has an honest and reasonable belief
o That they are threatened with imminent unlawful force
o The force was necessary to repel the threat
o The force was proportionate to the threatened force
 Self-defense is not available to the initial aggressor unless the other party responds to non-deadly
force with deadly force
 Duty to retreat at common law
Self-Defense under the MPC
 §3.04(1): use of force is justifiable “when the actor believes that such force is immediately
necessary for the purpose of protecting himself against the use of unlawful force by such other
person on the present occasion.”
 No reasonableness requirement
 Cannot use deadly force unless you believe it’s necessary to protect against death, serious bodily
injury, kidnapping, or forcible rape
 Duty to retreat before using deadly force unless at home or work; no duty to retreat for nondeadly force
 Cannot use deadly force if you provoked the use of force with the purpose of causing death or
serious bodily injury
 Limited by §3.09(2) – if D is reckless or negligent in assessing the threat, they can be found
guilty of a crime w/ mens rea of recklessness or negligence
Imperfect Self-Defense
 If D honestly believes that force is necessary on the occasion, but belief is unreasonable
 OR, if someone attacks w/ nondeadly force and D wrongfully escalates the conflict by using
deadly force
Defense of Property

No deadly force permitted in defense of property


You can use non-deadly force to protect property in 2 situations:
1. To prevent your property from being taken away; or,
2. To get your property back if you’re in “hot pursuit”
Defense of public peace: justification for the use of force, including deadly force to:
o Prevent crime
 Majority rule: deadly force can only be used to prevent a “forcible and atrocious” felony
 Minority rule: deadly force can be used to prevent any crime
o Apprehend a felon; deadly force can be used if:
 The felony is forcible and atrocious
 Felony has actually occurred and
 It was reasonable for D to believe a felony had just occurred
Necessity


Common Law elements
o 1. Harm avoided is greater than harm caused by D’s action
o 2. Clear and imminent danger
o 3. Causation – D’s action would abate the harm
o 4. No effective legal alternative available
o 5. Legislature hasn’t barred the defense
o 6. D was not at fault in creating the dangerous situation
MPC
o No imminence requirement
o No explicit limitation on homicide
o Conduct that actor believes to be necessary to avoid a harm or evil sought to be avoided by such
conduct is greater that
 a) the harm or evil sought to be avoided by such conduct is greater than that sought to be
prevented by the law defining the offense charged; AND
 b) neither the Code nor other law defining the offense provides exceptions or defenses
dealing w/ the specific situation involved; AND
 c) a legislative purpose to exclude the justification claimed does not otherwise plainly
appear
Elements of necessity: 1. Balance of harms, 2. Clear and imminent danger, 3. D’s action will directly
abate the danger, 4. No legal alternative will abate the danger, 5. The legislature has not precluded the
defense by a “clear and deliberate” choice” regarding the values at issue
Elements of necessity: 1. D violated the law to prevent a significant evil, 2. No adequate alternative, 3. D
didn’t create a danger greater than the one avoided, 4. D had a good faith belief in necessity, 5. D’s belief
was objectively reasonable, 6. D didn’t substantially contribute to the emergency
Excuse: Duress, Intoxication
Duress under the MPC (§ 2.09)
 Elements
o D committed a crime bc they were coerced
o By use of or threat of unlawful force against their person or the person of another
o That a person of reasonable firmness in their situation would be unable to resist
 Restrictions
o No defense if D placed themselves in the situation recklessly
o If D put themselves in the situation negligently:
 No defense to crime w/ mens rea of negligence
 Still a defense to crime w/ mens rea of purpose, knowledge, or recklessness
Intoxication


Voluntary intoxication is only a defense when it negates specific intent (prima facie defense)
Involuntary intoxication can be a prima facie or affirmative defense:
o Prima facie defense: negates intent
 Some jurisdictions restrict to specific intent; others apply to general intent
o Affirmative defense:
 Some jurisdictions restrict to cases where intoxication causes temp. insanity
 Others create a general defense
Four categories where defense applies
o 1. Intoxication is caused by someone else
o 2. Intoxication is caused by an innocent mistake
o 3. D unknowingly suffers from a condition that makes them abnormally susceptible to a
legal intoxicant
o 4. Unexpected intoxication arises from a legally prescribed drug
Insanity
M’Naghten Rules: A person is not guilty by reason of insanity if, at the time of the act, they were
laboring under such a defect of reason, from disease of the mind” such that:
A. They do not know the nature and quality of their acts OR
B. They do not know what they were doing was wrong
Inchoate Offenses: Attempt, Accomplice Liability, Conspiracy


Attempt under the MPC
o § 5.01(1)(c): Requires a “substantial step” toward commission of the target offense
 Common law: focus on what remains to be done
 MPC: focuses on what D has already done
o MPC § 5.01(2): substantial step must be “strongly corroborative of the actor’s criminal purpose”
o LaTraverse’s actions were a substantial step under the MPC
o MCP § 5.01(4): Abandonment is a defense if D manifested a “complete and voluntary renunciation of his
criminal purpose”
 Renunciation is not voluntary if it’s only bc you were going to be caught or accomplishing the crime
became more difficult
 Renunciation is not complete if you’re only postponing the crime
Liability for Murder
o A intends to kill V1
o B intends to cause great bodily injury to V2
o C acts w/ gross recklessness and extreme indifference to V3’s life
o V’s 1, 2 and 3 all die
 Result: A, B and C all convicted of murder
 Liability for Attempted Murder
o Same facts as above
o BUT none of the victims die
o A is guilty of attempted murder
 Specific intent to commit murder (i.e. intent to kill)
o B and C are not guilty of attempted murder
 No intent to commit murder
Mens Rea of Attempt
 Attempt is a specific intent crime:
o D must intend to commit the acts that constitute the actus reus AND
o D must have specific intent to commit the target offense

Result crime v. conduct crime:
o Result crime: D must intend the prohibited result
 Ex: murder
o Conduct crime: D must intend to engage in the prohibited conduct
 Ex: speeding
Accomplice Liability

Why do (or did) categories matter?
o Charging: at common law, state had to specify whether D was a principal or accessory; if
categorized wrong, indictment was thrown out
o Timing: accessory couldn’t be tried before P1 and couldn’t be convicted unless P1 was found
guilty
o Jurisdiction:
 Principals had to be tried in the state where the crime occurred
 Accessories had to be tried in the state where they provided assistance
 Principal:
o Principal in the first degree (P1): the person who actually commits the crime
o Principal in the second degree (P2): accomplice who intentionally assists P1 and is present at the
commission of the crime.
 Accessory
o Accessory before the fact (ABTF): accomplice who intentionally assists P1 during commission,
but is not present
o Accessory after the face (AATF): accomplice who knows P1 has committed a crime and
intentionally assists P1 in avoiding arrest, prosecution, or conviction
Accomplice liability: Mens Rea
 The state must prove two separate intents/mental states for accomplice liability:
o 1. Intent to do the actus reus (acts of assistance) AND
o 2. Intent that the crime be committed (or at least the mens rea necessary for the commission of the
offense)
 Accomplice liability is derivative in nature:
o General rule: Accomplice can only be convicted of a crime P1 committed
o Exception: P2 or ABTF can be convicted of a more serious homicide if their mental states were
different
 What if P1 is acquitted?
o General rule: if P1 is acquitted, all accomplices must be acquitted
o Exception: if P1 is acquitted bc of an excuse, P1’s accomplices can still be convicted
Conspiracy
 Early common law:
o You could be guilty of conspiracy to commit an immoral (but not illegal act)
o Actus reus: agreement to commit a crime
 Actus reus of modern conspiracy:
o 1. Agreement to commit a crime and
o 2. Overt act in furtherance of the conspiracy
 Conspirators do not need to know every detail of the agreement
 “Overt act” can be any act (even a trivial one) performed by any co-conspirator in
furtherance of the conspiracy
Burden of Proof
Curley v. United States – mail fraud case, appeal on basis of burden, app. ct. affirmed guilty verdict by jury bc left
for jury to decide
Punishment
Regina v. Dudley and Stephens – three guys get stranded in the ocean, 2 eat the other. Main issue: was the killing
murder? A person cannot kill an innocent person even if it’s the only way to save their own life. Sentenced to death
but pardoned.
People v. Suitte – business owner found in possession of gun, first time offender. Pled guilty, 1 yr mandatory
sentence. Trial judge sentenced him 30 days in jail + probation. App. Ct. affirmed. Gen. Deterrence “making an
example.”
Statutory Interpretation
Dauray – arrested w/ 13 ind. photos cut out of a magazine; In fed. court bc of interstate commerce laws (photos
crossed over state lines) – jurisdictional hook; Defense: individual photos don’t “contain” visual depictions, they are
visual depictions; First stop of stat. interp.: plain meaning; Plain meaning not clear: Consider “its placement and
purpose in the statutory scheme”, Consider judicial precedent on the subject, Consider “canons of construction”:
Noscitur a sociis: resolve doubt using relationship with other associated terms; Ejusdem generis: if general words
follow a specific list, limit the general words to things similar to the specified items; Consider all parts of a statute
when construing any one part; Construe statutes consistent with subsequent statutory amendments; Interpret statutes
to avoid absurd results; Legislative history (not really a canon of construction); The rule of lenity: resolve
ambiguities in favor of the defendant
Void for Vagueness
Papachristou: Ten defendants arrested for vagrancy under municipal statute in Jacksonville, FL - Unfettered
discretion leads to racially biased arrests; Ordinance unconstitutionally vague bc: Fails to give fair notice of what
conduct is prohibited and encourages arbitrary arrests and convictions; Principle of legality – a person is considered
breaking the law only if the statute was effective at the time that the crime was committed. Jacksonville ordinance
unconstitutional, judgment reversed.
Kolender v. Lawson – detained/arrested for loitering 15 times, prosecuted twice and convicted once; SCOTUS
concluded statute unconstitutionally vague
Actus Reus and Mens Rea
Wisconsin v. Mitchell: incited a group of young black men and boys to beat up a white boy passing by; convicted of
aggravated battery; under WI hate crime law, the max. penalty increased from 2 to 7 yrs bc victim was selected on
basis of a protected class
Martin v. State: convicted of being drunk on a public highway after police arrested him at home and he used loud
and profane language in their car; didn’t appear in public in his own volition; must be a voluntary act that causes
social harm; didn’t have the intent to be in public while drunk, was taken there by the police then charged with the
situation he was forced into; not every single element of the conduct to be voluntary, as long as the majority is
State v. Decina: history of epilepsy; crashed his car during a seizure, killing four children; bc he was aware of his
condition, he is criminally liable for the actions that happened while he was having a seizure after getting behind the
wheel of his car (prosecution); didn’t choose to have a seizure and was unconscious when he crashed his car, so he
can’t be liable for crimes he committed while he wasn’t conscious (defense); Court of appeals of NY holds that D
acted voluntarily in driving when he knew he had a history of epilepsy
Beardsley: Having an affair w/ Blanche Burns, spent drunken night with her at his home; Burns obtained and took
several morphine pills; D asked someone to take Burns downstairs to his neighbors and she died during the night;
Issue: Did Beardsley owe Burns a duty of care that could serve as the basis for criminal liability?; special
relationships: Husband to wife, Parent to child, Master to servant; incapacity waives liability for duty of care
Howard: lived with her 5 year old daughter and bf, Watts; bf reg. beat/abused the daughter, in the course of a beating
the child was killed; D is charged involuntary manslaughter for failing to protect her child; creation of risk (Howard
willingly resided w/ Watts and she was responsible for her daughter)
Pestinikas: they contracted w/ Kly to care for him in their home; instead they abandoned him and failed to prove
basic care, causing his death; can they be prosecuted because he died under their care? Did they have a duty to care
for him? PA law: liability can only be based on omission if: The omission is expressly sufficient by law OR a duty to
perform the omission is imposed by law; They entered into an oral contract and imposed upon themselves the duty
to care for him
Status Crimes
Robinson: Convicted under a CA statute making it a crime to use or be addicted to narcotics; S.C. majority –
punishing someone for their status or condition is cruel and unusual punishment in violate of the 8 th and 14th
amendments; Addiction is a status and cannot be punished by statutory law
Jones: D and other plaintiffs sue the city of LA aver an ordinance criminalizing sitting, lying, or sleeping in public;
homeless people being punished for being homeless; 9th Cir. – enforcement of the ordinance violates Robinson and
the 8th and 14th Amendments: State can’t criminalize a pure status and State can’t criminalize an act that is the
“unavoidable consequence” of a status
Regina v. Cunningham: D ripped gas meter off the wall and didn’t turn off the gas, causing his prospective MIL to
partially asphyxiate; Malice requires: 1. An intention to do the particular kind of harm OR 2. Recklessness as to
whether such harm should occur; no special relationship; creation of risk – he created the risk of the gas leak by not
shutting the gas off and ripping the meter off the wall; nature of the risk and what a “law abiding person”
(reasonable person?) would do; Because jury wasn’t properly instructed on the word “maliciously” court is unable to
determine what a reasonable jury would decide. Appeal allowed and conviction dismissed.
Yermian: Lied about a conviction and past employment on a Dept of Defense form, said he didn’t know the form
would go to the federal government; 18 U.S.C. § 1001: “Whoever, in any matter within the jurisdiction of any
department or agency of the U.S. knowingly and willfully…makes any false, fictitious or fraudulent statements or
representations…shall be fined.”: Knowingly: must be aware of what you’re doing and that it will cause harm,
Willfully: common law term, doing something illegal willingly; Placement of jurisdictional language in front of
“knowingly and willfully” – that it didn’t apply to jurisdictional element of statute
Holloway: Convicted of carjacking, he had a gun and planned to use it if the victims gave him a “hard time”; is
“conditional intent” enough to cause intent? Defendant says he never actually formed intent to kill people, intent
should have to be unconditional; Congress intended to criminalize carjacking as a whole, not just the killing of
people in the midst of a carjacking; statute includes mens rea language “with the intent to cause death or serious
bodily harm”; Supreme Court majority: “conditional intent” meets the mens rea requirement; affirmed
Fugate: D strikes a man in the head while robbing him, then shoots and kills him he claims the shooting was
accidental; Issue: Could the jury conclude that the killing was done “purposely” under the evidence?; Appellate
court: intent can be presumed “where the natural and probable consequences of a wrongful act is to produce death,
and such intent may be deduced from all the surrounding circumstances”
Jewell (Knowledge): paid $100 to drive a car from MX to LA; he didn’t look into a “void” in the trunk, and it turned
out to contain 110 lbs of MJ; Issue: is “willful blindness” sufficient to prove knowledge?; 9th Circuit: actual
positive knowledge is not req. if ignorance was solely and entirely a result of a conscious effort to disregard the
nature of what was in the vehicle w/ a conscious purpose to avoid learning the truth
Scott (Transferred intent): D shoots at his mother’s bf and his friend; he misses the boyfriend but injures his friend
and kills a bystander; Issue: Does the doctrine of transferred intent allow a defendant to be prosecuted for both
attempted murder of intended victim and murder of unintended victim?; CA S.C. says yes
General/Specific Intent
Atkins: Told a friend he hated Figgs and was going to burn down his house; soon after, he and his brother started a
fire at a ranch near the house after a day of drinking; Charged w/: arson, requiring proof that D willfully set fire to
forest land; Issue: is evidence of voluntary intoxication admissible on the issue of whether Atkins formed the
required mental state for arson?; CA Penal Code §22: voluntary intoxication is not a defense unless defendant is
charged w/ a specific intent crime and the evidence negates the requisite mental state; Holding: arson requires only
general criminal intent
Morrissette: Salvaged spent bomb casings and sold them for $84; Charged w/ violation of 18 U.S.C. § 641: whoever
“embezzles, steals, purloins, or knowingly converts gov property” is guilty of a crime; Trail court instructs that jury
that D is guilty as long as he intended to take the property and app. ct. affirmed; Issue: was the Court of Appeals
correct that § 641 has no mental state element, i.e. is it a strict liability crime?; Supreme Court reverses – D must
have intended to steal the casings to be guilty; Strict liability is not appropriate for crimes other than public
welfare offenses, even if the statute does not mention an essential mental state.
Strict Liability
Elonis: Began posting “hypothetical” violent content on FB; wife obtains a restraining order, and he is charged w/
making threats against numerous people, including law enforcement; attorney requests a jury instruction that the
prosecution had to prove he intended to communicate a “true threat”; instead, the court instructed the jury that a
statement is a “true threat” if a reasonable person would foresee that the recipients would perceive it as a serious
expression of an intention to harm or kill; convicted; Supreme Court reverses - Majority: the trial court’s instruction
is essentially negligence, and the Court won’t read negligence into a statute where it is not explicit; “The jury was
instructed that the Gov need prove only that a reasonable person would regard Elonis’s communications as threat,
and that was error. Federal criminal liability generally does not turn solely on the results of an act w/ considering the
defendant’s mental state.”
Commonwealth v. Barone: charged w/ “homicide by vehicle” after she pulled out from a stop sign w/o seeing a
motorcyclist and he hit her and died; “Any person who unintentionally causes the death of another while engaged in
the violation of any law…applying to the operation or use of a vehicle or to the regulation of traffic is guilty of
homicide by vehicle, a misdemeanor of the first degree, when the violation is the cause of death.” Penn. Motor
Vehicle Code §3732; Could not have est. a violation of the provision. Affirmed lower court’s det. That evidence was
not sufficient to go to jury. Defendant discharged.
Mistakes of Fact and Law
Navarro: Charged w/ stealing 4 wooden beams; claimed he thought they were abandoned and/or he had permission
to take them; asked for jury instruction that he was not guilty if he had a good faith belief that the property was
abandoned or he had permission to take it; Court instructed the jury that Navarro was not guilty if he had a good
faith and reasonable belief; Issue: should Navarro be required to prove a good faith and reasonable belief? Basic
rule: General intent: mistake of fact must be in good faith and reasonable to negate mens rea, Specific intent:
mistake of fact need only be in good faith to negate mens rea; Note – in either circumstance, the good faith mistake
must negate mens rea to provide a defense; Holding: larceny is a specific intent crime, so Navarro’s mistake of fact
was a valid defense.
Marrero: Federal corrections officer, was convicted of criminal possession of a weapon; thought he was exempt
from a permit requirement bc he was a “peace officer”; Issue: Does N.Y.’s mistake statute permit Marrero to claim
reliance on an official statement of the law as a defense?; NY Penal Code: a peace officer includes “an official
guard of any state prison or of any penal correctional institution”; Majority: Marrero must show that the statute
relied upon actually permitted the conduct and was later found to be erroneous
Clegg: Spoke w/ U.S. military and other gov. officials and based on those conversations, believed the U.S. wanted
him to help smuggle weapons to Afghan rebels (so he did); charged w/ exporting firearms in violation of fed. law
and claims he relied on official interpretations of the law; 9th Circuit heavily cites Tallmadge, where the court held
that a buyer of firearms had the right to rely on representations of legality from a federally licensed firearms dealer;
conviction reversed
Cheek: Pilot who paid his taxes until he started going to seminars from a group who believed income tax is
unconstitutional; indicted on tax crimes and claims sincerely believed he didn’t owe taxes and the tax system was
unconstitutional; trial court instructs the jury that “an honest but unreasonable belief is not a defense and does not
negate willfulness”; Supreme Court: willfulness in criminal tax law means “the voluntary, intentional violation of a
known legal duty”; Specific intent crime, so mistake only requires a good faith belief
Bryan: Used “straw purchasers” to buy guns and sold them on street corners; convicted of “willfully” dealing in
firearms w/o federal license; requested instruction that he could only be convicted if he knew about the licensing
requirement; instead, court told the jury that “willfully” means he intended to do “something that the law forbids”;
Majority: “willful” requirement only requires knowledge that conduct is generally unlawful
Lambert: Charged w/ being a convicted person who failed to register in violation of LA Municipal Code; Defense:
she didn’t know about the registration requirement; Supreme Court: registration provision violates due process by
not providing notice
Causation
Rementer: Started beating his gf, Mary Berry, who tried to drive away in her cab; followed and continued beating
Berry; she ran away and sought help from Michielli, a passing driver; Michielli locked the doors and drove away,
ran her over w/o realizing it which resulted in her death; Issue: was there sufficient evidence to show that Rementer
caused Berry’s death; D conviction affirmed.
Govan: 1980: Keeble fires a shot at D during an argument; D eventually comes back, they argue again, and D shoots
Keeble in the neck; Keeble paralyzed from the neck down; D charged w/ aggravated assault; Keeble and D marry;
charges dismissed without prejudice (but can be refiled); 5 years later Keeble contracts pneumonia and dies; Issue:
Did D’s shot cause Keeble’s death under criminal law? - Actual/but-for cause: yes – Keeble wouldn’t have died of
pneumonia if she had not been shot; Proximate cause: intervening cause of pneumonia was responsive to D’s act;
D’s act was a proximate cause of her death; D argues Keeble lost the will to live - Essentially a voluntary human
intervention argument: (In some jurisdictions), if a voluntary and deliberate human intervention comes between D’s
voluntary act and the social harm, D will be relieved of criminal liability
Henderson v. Kibbe: D robbed Stafford, who was drunk; D took his $$, forced him to remove his pants and boots,
left him on an unlit rural road in the cold; 20-30 mins later, he was hit by a truck driver who was driving negligently
or recklessly; D convicted of grand larceny, robbery, and second degree murder; Issue: Did trial court’s failure to
give a jury instruction on causation constitute constitutional error?; Court says no - Jury was aware it had to decide
causation; Jury’s finding of recklessness necessarily meant they found proximate causation; This is the minority
thought among courts, most focus on whether the intervening cause is foreseeable, not the social harm overall being
foreseeable in resulting in a negative result like here
Concurrence
Thabo Meli v. Reginam: D, intending to kill victim, strikes them over the head w/ a piece of iron; thinking victim
dead, D throws them off a cliff; victim wasn’t dead, but died from exposure after being thrown off the cliff; English
Privy Council: should D murder conviction be affirmed? Privy Council rolls both acts as one continuous act
Degrees of Murder
State v. Brown: D severely abused his son; after a beathing, son fell down the stairs and died; D was convicted of 1 st
degree murder; Issue: Did evidence support a conviction for 1st degree murder? Holding: Insufficient evidence of
premeditation and deliberation; conviction reduced to 2 nd degree murder
State v. Bingham: Leslie Cook found dead, w/ evidence that she had been raped and strangled; D was convicted of
1st degree murder; Prosecutor theory: D could have premeditated during the time it took to strangle Cook; Issue: is
the evidence sufficient to support conviction for 1st degree murder?; Holding: No – having time to deliberate is not
enough - Court questions whether someone could engage in deliberation while raping someone
Manslaughter
Gilbert v. State: Emily suffered from osteoporosis and Alzheimer’s; she was in pain and had expressed that she
wanted to die; w/o talking to her about it, D (husband) shot her in the back of the head; he had considered poison but
thought it wouldn’t work or would just make her sick; D is convicted of 1 st degree murder; Issue: is there sufficient
evidence of premeditation and deliberation?; Holding: Yes – D clearly premeditated and deliberated the killing
People v. Ambro: D and his wife had numerous arguments, she told him she didn’t love him and was going to leave
him, that she was having an affair w/ another man; he stabbed her in the heart w/ a knife, killing her; D charged w/
murder and requested a jury instruction on voluntary manslaughter, court refused and he was convicted of murder;
Issue: Did the trial court err in refusing to instruct the jury on voluntary manslaughter based on provocation?; In
early common law jurisdictions, D must be responding to a specific category of legally adequate provocation:
Aggravated assault or battery, Observation of a serious crime against a relative, Illegal arrest, Mutual combat,
Husband catching his wife in the act of adultery; Mere words rule: words alone, no matter how provocative, are not
legally adequate provocation
People v. Berry: D’s wife left for Israel 3 days after getting married, came home and said she was leaving him, D
choked her to unconsciousness and left town, returned and waited overnight in their apt for her to return, when she
came home he strangled her to death with a telephone cord; D charged w/ murder and asks for voluntary
manslaughter instruction; court refuses and D is convicted of murder; Issue: Was there sufficient evidence of
provocation to let the jury decide whether murder should be reduced to manslaughter?; Holding: D entitled to jury
instruction re: provocation; Modern Common Law Approach Elements for Provocation: 1. D was actually
provoked; 2. The reasonable person in D’s shoes and would have been provoked; 3. D didn’t have sufficient time to
“cool off”; AND The reasonable person in D’s shoes wouldn’t have cooled off.
Commonwealth v. Carr: Shot at 2 women he saw having sex in the mountains; convicted in a bench trial after judge
refused to hear evidence about his rejection by women; Issue: Does the observation by a heterosexual man of two
women engaging in sex constitute legally adequate provocation?; Holding: No – not legally adequate provocation;
Modern common law (used here) – objective, MPC – subjective
State v. Dumlao: D thought wife was cheating w/ her brothers, shot at one and killed her mom instead; charged w/
murder and asked for instruction re: extreme emotional disturbance; judge denied the requested instruction and D
was convicted of murder; Issue: Should the trial court have instructed the jury on EED? Holding: Yes – MPC
standard considers D’s personal characteristics, so if there is any evidence to raise the defense the jury must be
instructed
Depraved Heart Murder
Commonwealth v. Malone: “Russian Poker” case, pulled the trigger 3 times, it went off the 3 rd time and killed V; D
charged w/ murder and testified that he though the gun wouldn’t go off; Issue: Should D murder conviction be
overturned? Holding: affirmed, D was acted recklessly
People v. Knoller: Aggressive dogs in SF that killed the neighbor; D convicted of 2nd degree murder; Issues on
appeal: Did the court of appeal err in reversing the trial court? Did the trial court abuse its discretion in granting the
new trial motion? S.C. holdings: Ct. of app. erred – awareness of risk of serious bodily injury is not enough for
murder; Trial court erred – Awareness of high probability of death is not required; acting w/ “conscious disregard for
human life” is enough
Involuntary Manslaughter
Commonwealth v. Welansky: Cocoanut Grove, a Boston nightclub fire, hundreds died; D charged w/ numerous
counts of manslaughter; req’d mens rea in MA: “wanton or reckless conduct”; Gross negligence: More than reg.
negligence, not quite recklessness (very unjustifiable risk); Trial court def: D realized grave danger to others and
acted anyway OR wanton or reckless conduct can be imputed if the ordinary man would have realized the danger
under the circumstances; MA Supreme Judicial Court affirms D conviction for involuntary manslaughter
State v. Williams: baby son developed an abscessed tooth, noticed he was sick but didn’t realize how serious;
infection led to gangrene, pneumonia, eventually death; charged w/ & convicted of manslaughter for failing to get
him medical care; Common law: gross negligence req’d for manslaughter; WA Statute: only simple or ordinary
negligence required
Felony Murder
People v. James: D cooking meth and started fire, 3 of her children were killed; convicted of 2 nd degree murder
based on implied malice and felony murder; Issue: is manufacturing meth an “inherently dangerous felony?”; Court
holds that manufacturing meth is an inherently dangerous felony, affirms conviction based on felony murder
Hines v. State: Hunting and shot his friend accidentally; convicted of 2 nd degree murder felony murder based on the
felon of possession of a firearm by a convicted felon; Issue: is possession of a firearm by a felon an inherently
dangerous felony?; GA courts: an inherently dangerous felony is “dangerous per se” or “by its circumstances creates
a foreseeable risk of death”
People v. Bodely: D fled a supermarket after stealing $75 from a cash register; Victim tried to stop D from leaving,
D car hit him and knocked him to the ground, killing him; D was convicted of 1 st degree murder based on the
underlying felony of burglary; Issue: Does a killing that occurs during the perpetrator’s flight from a burglary occur
“in the perpetration” of the burglary?; Temporary Safety Rule: a robbery is not complete until the robber reaches a
place of temporary safety; Appellate Court: The burglary and flight were part of one continuous transaction;
conviction affirmed
People v. Stamp: D’s robbed V’s business, V had heart attack and died 15-20 mins after; Drs testified that but for the
robbery, V wouldn’t have had a fatal heart attack at the time he did; D’s convicted of robbery and 1st degree murder;
Issue: Should the felony murder rule have applied in this case given the unforeseeability of V’s death?; Holding:
Convictions affirmed – felony murder is not limited to foreseeable deaths, Ds strictly liable for all killings
committed during commission of the felony
King v. Commonwealth: D and Bailey crashed a plane carrying marijuana as part of drug smuggling operation,
Bailey flying at the time; Bailey killed and D convicted of 2 nd degree felony murder; Issue: is mere nexus between
death and the predicate felony sufficient for felony murder? Holding: a mere nexus is not sufficient - Death must be
caused by an act of the felon or one of the co-felons in furtherance of the felony
Rose v. State: D brought a gun to a BBQ, various ppl handled it, he emptied the magazine and checked that hammer
was empty; gf was on the phone, D pointed the gun at her, the gun went off and killed her; charged w/ 2 nd degree
murder, over his objection that the merger doctrine should apply the judge instructed the jury that they could find
malice in 4 ways, including felony murder based on assault w/ a deadly weapon; The underlying felony “merges” if
it is assaultive in nature, and felony murder can’t apply; The jury should determine whether the felony merges, i.e.
whether it is assaultive; Assaultive = “any felony that involves a threat of immediate violent injury”; Nevada
Supreme Court uses fact-based approach (as opposed to in-the-abstract); NV Sup. Ct. reverses – the jury should find
whether the underlying felony was assaultive (and therefore, whether the felony merges)
State v. Canola: D + 3 others robbed a store; one other started shooting and the owner returned fire; owner and one
robber killed; D convicted of 2 counts of murder based on underlying felony of robbery; Issue: Can a defendant be
held liable for felony murder when a 3rd party shoots and kills the defendant’s co-felon?; Majority rule: felony
murder doesn’t apply to killings by third parties
Theft, burglary, robbery
Commonwealth v. Mills: D (retired Boston police officer) ran a fraudulent scheme billing for private investigation
services and underreported income for continuing disability payments; D convicted of numerous charges, including
larceny against the city of Boston; Issue: Did D’s fraudulent statements to the city of Boston violate MA’s
consolidated theft statute? Holding: Affirmed; indictment does not require theory of larceny – conviction can be
supported by proof of larceny, embezzlement, or false pretenses
U.S. v. Eichman: D’s climbed to the roof of an Armed Forces Recruiting Station and set a flag on fire; D’s were
charged w/ multiple crimes and moved to dismiss burglary charge; Issue: What constitutes “entry” into a building w/
intent to commit a crime therein under NY law? Holding: Reversed and remanded – no entry - Entry is met by
intrusion of body part or object held by defendant into the external boundaries of a structure, The concept of
curtilage expands the scope of “dwelling house” under common law, BUT defendant must still penetrate the four
walls of a structure to be guilty of burglary
State v. Thibeault: David Gardner gave D permission to enter his apartment anytime; D entered and took valuables
with him; Gardner testified that while he gave D permission to enter, he did not give him permission to take
property; D is charged w/ burglary; trial court instructs jury to decide whether he knew he was not licensed or
privileged to enter with intent to commit the crime of theft; Issue: Is the “breaking element satisfied if D had
permission to enter the apartment? Holding: Conviction reversed; consent to enter is a complete defense
Crocker v. State: D went to McKenzie’s house; the two went out drinking and when they came back home,
McKenzie left his wallet out; D took $500 from McKenzie’s wallet and left; McKenzie only noticed an hour later;
Issue: Do these facts constitute robbery? Holding: NO – no evidence of force or fear - D can’t be convicted of
larceny as a lesser-included offense bc the state didn’t charge it and the court didn’t instruct jury on it
Miller v. Superior Court: Swim trunks in public restroom and stolen money; D charged w/ robbery and filed a
motion to dismiss; the motion was denied and D filed a writ of prohibition; Issue: Is there sufficient evidence based
on these facts to support a charge of robbery? Majority: CA case law supports robbery charge where force was used
and victim was present only during the asportation, not the initial taking
Defenses
People v. Goetz: D shot 4 young black men on the subway; D fled, later surrendered and charged w/ attempted
murder, first-degree assault, reckless endangerment, possession of a weapon; he argued self-defense; D moved to
dismiss and trial court granted his motion, saying the prosecution erroneously told the jury the standard for selfdefense was a reasonable person test; Appellate Div. agreed, stating that the test was what was reasonable to D, state
appealed; Issue: was the case properly dismissed on the grounds that D actions were reasonable to him? Holding:
NO – NY law imposes a reasonable belief standard; jury should take into account: Any relevant knowledge the
defendant had about the victim, Physical attributes of all persons involved, Prior experiences of the defendant that
might be relevant
State v. Simon: D afraid of his neighbor, Wong, bc he assumed Wong knew martial arts; Wong was walking into his
own residence and D fired shots at victim, neighbors and police; D charged w/ aggravated assault and argued selfdefense; Trial court instructed the jury that a person is justified in using force against an aggressor “to the extent that
it appears reasonable to him;” the jury acquitted D and the state appealed; Issue: Did the trial court correctly instruct
the jury on self-defense? Holding: NO – belief in necessity of force must be reasonable to a reasonable person, not
just the defendant
Defense of Property
State v. Stewart: V severely and repeatedly abused his wife (D) and her daughters, threatened to kill wife on mult.
occasions; D discovered a loaded gun and hid it under the mattress; D had thoughts of suicide and heard voices
telling her to “kill or be killed” that night she shot v to death in his sleep; D charged w/ murder; at trial, defense
expert testified that D suffered from “battered woman syndrome” (D expert suggested v was going to escalate
violence and D realized she was in a lethal situation); Issue: did the trial court err in instructing the jury on selfdefense when there was “no imminent threat” to the D contemporaneous w/ the killing? Holding: yes – danger must
be imminent - “To permit capital punishment to be imposed upon the subjective conclusion of the individual that
prior acts and conduct of the deceased justified the killing would amount to a leap into the abyss of anarchy.”
State v. Wanrow: Group of friends lure child molester to one of their houses and D shot/killed him after he walked
up behind her, charged/convicted of 2nd deg. murder; Issue: Did the trial court err in its instructions to the jury on
self-defense? Holding: Yes – several errors: Instruction told the jury to consider only those acts and circumstances
occurring “at or immediately before the killing” (law allows the jury to take all circumstances into account),
Instruction didn’t make clear that the test was subjective, Instructions denied D equal protection by using male
pronouns throughout the instruction (Jury should take into account women’s relative ability in being able to defend
themselves)
Defense of Others
People v. Young: D intervened when he saw 2 mid-aged white men (who were off duty police officers) pulling on an
18 yr old boy, stepped in and pulled the men off the boy, injuring the men in the process; Issue: Can a D be
convicted of assault when they mistakenly believe they are defending someone who is actually being subjected to
lawful force? Majority: The “act at your own peril” rule applies – you can only use force to defend someone else if
that person would have the right to use self-defense
Defense of Habitation
People v. Brown: D shot his contractor in the leg after a disagreement while v was on front porch, convicted of
assault w/ a deadly weapon; D asked for jury instruction on CA Penal Code §198.5, the “Home Protection Bill of
Rights”; Issue: Should the jury have been instructed that there was a rebuttable presumption that the use of deadly
force was reasonable under the Home Protection Bill of Rights? Holding: no – there was no entry; Four elements to
the defense: 1. Unlawful and forcible entry; 2. By the person not a member of the family or household; 3. The
residential occupant uses deadly force against the v w/in the residence; and 4. The residential occupant has
knowledge of the unlawful and forcible entry; CA law, the test for the scope of a residence is the “reasonable
expectation test” (No reasonable expectation of protection from intrusion on a front porch)
Defense of Property
People v. Ceballos: D set trap gun in his garage after some tools stolen; 2 boys tried to break in while unarmed, and
one was shot in the face by the trap gun; D was convicted of assault w/ a deadly weapon; Issue: Was the D justified
in using deadly force to protect his property even though he wasn’t present? Holding: Citizen can only use force to
prevent a “forcible and atrocious” felony; in this case, it wasn’t forcible and atrocious bc the victims were unarmed
People v. Quesada: house was burglarized, neighbor’s cousin’s husband (victim) stole his stereo; planned to catch
victim and after as V drove away D shot at the car trying to stop him, killed V, D charged /w murder; argued he
could use deadly force for felony apprehension; Issue: Did the trial court err in refusing to instruct the jury that as a
matter of law homicide is justifiable when committed to apprehend someone who has committed first-degree
burglary? Holding: No error, conviction upheld (Can only use deadly force when crime is “forceful and atrocious”)
Necessity
U.S. v. Schoon: D entered the IRS offices in Tucson to protest American involvement in El Salvador’s civil war; D
splashed fake blood around, chanted, and otherwise prevented business; D arrested and convicted of obstructing IRS
activities and failing to obey a federal police officer; Issue: Should trial judge (as factfinder) have considered the
necessity defense in the case of indirect civil disobedience? To invoke necessity defense, D must show: 1. They were
faced w/ a choice of evils and chose the lesser evil, 2. They acted to prevent imminent harm, 3. They reasonably
anticipated their acts would abate the harm, 4. They had no legal alternatives to violating the law; Court finds no
imminence; actions would not abate the evil; there were other legal alternatives
Commonwealth v. Hutchins: D had severe symptoms from scleroderma, treatment didn’t help; began taking mj,
which helped his symptoms; tried to get a rx but couldn’t and charged w/ drug crimes; filed motion to dismiss on
grounds of necessity; motion denied and D appealed; Issue: Should trial court have permitted a defense of necessity
under these circumstances? Majority: the balance of harms doesn’t come out in D’s favor
In re Eichorn: cited for camping after sleeping at a county civic center; D’s counsel requested an instruction on
necessity and offered to prove that he was involuntarily homeless; D was convicted and appealed; Two issues:
Constitutional issue – challenging the ordinance for criminalizing homelessness, Necessity – Should the trial judge
have given a jury instruction on necessity? Holding: D was entitled to an instruction on necessity; sufficient
evidence on each element
Involuntary Intoxication
Montana v. Egelhoff: D made new friends while foraging for mushrooms and drank heavily with them; officer
found 3 ppl in a car in a ditch; 2 shot in the head, D in the backseat yelling; blood alc. level was .36 an hour later;
had gunpowder residue on his hands; charged w/ deliberate homicide (mens rea of purpose or knowledge); permitted
to offer evidence that he was physically incapable, but the jury was instructed not to consider evidence of
intoxication to disprove mens rea; convicted and MT Sup. Co. reverses on due process grounds; the State appeals to
the US Sup Ct.; Issue: Does the due process clause guarantee the D a right to present voluntary intoxication
evidence on the question of mens rea? Plurality: No due process right to present evidence of voluntary intoxication
- The defense is not a fundamental principle of justice, many ppl commit crimes while intoxicated; the rule is a
general and specific deterrent
Involuntary
Commonwealth v. Smith:arrested for DUI; testified she wore a pain patch, didn’t know it would
heighten effects of alcohol, didn’t read the label, but dr didn’t’ warn her about effects; argues she
was involuntarily intoxicated and should have been able to use involuntary intoxication as a
defense; Issue: is 1) involuntary intoxication a defense in PA, and if so, 2) can D assert it?
Holding: D was voluntarily intoxicated; no defense
Insanity
U.S. v. Freeman: convicted of selling narcotics to undercover officers, argued he lacked sufficient capacity to be
responsible for his actions, long-time user of narcotics and an alcoholic; he suffered from episodes of toxic
psychosis, expert witness testified D did not know right from wrong “as far as the social implication of the nature of
meaning of what this meant to him at that moment”, Trial court refused to accept his defense based on the
M’Naghten rules; Issue: Should Second Circuit continue to follow the M’Naghten rules? Alternative tests:
Irresistible impulse test; Durham product test (act was product of mental disease of defect); Second Circuit adopts
MPC § 4.01:A person is not responsible for criminal conduct if at the time of such conduct as a result of mental
disease or defect, he lacks substantial capacity either to: Appreciate the wrongfulness of his conduct OR To conform
his conduct to the requirements of the law; Mere recidivism or narcotics addiction does not justify acquittal; The
result of NGRI verdict is commitment to a mental hospital; Know v. appreciate: Know: when someone knows that
conduct is wrongful, but not understanding why it’s wrongful; Appreciate: being able to understand the
underpinnings/the “why” of why the conduct is wrongful; Holding: Reversed and remanded for new trial in light of
new rules
Clark v. Arizona: D was schizo, killed a police officer thinking he was an alien; experts agreed he had paranoid
schizo, but disagreed as to whether he could appreciate the wrongfulness of his conduct; Clark wanted to offer
evidence for 2 purposes: 1. Affirmative insanity defense, 2. To create reasonable doubt re: mens rea; Trial judge
ruled that under State v. Mott, D couldn’t use evidence of a mental disorder short of insanity to negate mens rea;
Clark was convicted; Two issues: 1. Does AZ definition of insanity violate due process? 2. Does AZ rule barring
evidence of insanity on the issue of mens real violate due process? Holding: Neither restriction violates due process
Consent – People v. Samuels: BDSM films, D was sadomasochistic, told police the man in the film volunteered bc
he was a masochist, testified he didn’t strike the man but applied makeup while filming was paused, experts
disagreed if that was plausible; Issue: Did the trial court err in instructing the jury that consent is not a defense to
aggravated assault? Holding: No – conviction affirmed: Consent is only a defense in the context of contact sports, A
“normal person in full possession of his mental faculties” doesn’t consent to the use of force against them, Even if
the victim did consent, the law wouldn’t recognize it as valid
People v. Jamieson: county jail guards drug smuggling ring w/ juvie inmate leading the sting; Trial judge dismissed
charges based on entrapment; Issue: Was the conviction properly dismissed based on the ground of entrapment?
Court adopts objective approach, holds that defendants were not entrapped; Entrapment: defense that D would
not have committed a crime unless caused to do so by the state; Two tests for entrapment: Subjective
approach: Focuses on defendant’s predisposition, Objective approach: Focuses on whether state actions
were appropriate
Inchoate Offenses
People v. Rizzo: planned to rob payroll guy but couldn’t find him; convicted of attempted robbery in the first degree;
Issue: Were D acts sufficient to satisfy the actus reus requirement for attempted burglary? NY defines attempt as an
act, done w/ intent to commit a crime, “and tending but failing to effect its commission”; Holding: Ds were not
guilty of attempt to commit burglary bc they didn’t come dangerously near to taking the money
People v. Staples: rented an office intending to rob the bank below, brought tools into the office and began drilling
into the floor then abandoned the idea, arrested after the landlord saw his tools and convicted of attempted burglary;
Issue: was there sufficient evidence that D’s acts went beyond mere preparation to constitute attempt to burglarize?
Court applies unequivocality test: did D’s acts unequivocally manifest his criminal intent, and did they amount to
the “commencement of the consummation”? Holding: yes – conviction affirmed
State v. LaTraverse: D drove back and forth in front of undercover officer’s house w/ can of gas, rags, matches,
baseball bat, and threatening note; charged w/ attempted intimidation of a grand jury witness and moved for
acquittal; the trial judge denied the motion and D appealed; Two issues: 1. What acts are sufficient to constitute
attempt? 2. Should the court recognize the defense of abandonment? Intent to commit a crime alone is not sufficient
to constitute attempt; Mere preparation is not sufficient to constitute attempt; MPC’s approach to attempt
People v. Harris: D threatened to kill his gf w/ a gun, when she drove away she saw him holding it up and then
something hit the rear window, glass fell out of the frame, bullet later recovered and D charged w/ attempted
murder; D objected to instructions giving the jury the definition of murder; the judge overruled and conviction
remained; Issue: Did the trial court err in instructing the jury on the definition of murder in a case involving charges
for attempted murder? Holding: yes – the instructions allowed the jury to return a verdict of guilty upon evidence of
intent to cause great bodily harm: D must have intent to commit the target offense, Instructing the jury on the mens
rea for murder could mislead or confuse the jury
State v. Hinkhouse: Unprotected sex while infected w/ HIV; charged w/ 10 counts of attempted murder and 10
counts of attempted assault and convicted; Issue – Was the evidence sufficient to prove that D had the mental state
necessary for attempted murder?; Holding – yes
United States v. Thomas: Ds had sex w/ a dead woman they thought was unconscious; found not guilty of rape and
assault, but guilty of attempted rape and conspiracy to commit rape; Military Board of Review set aside the
convictions for attempted rape and conspiracy to commit rape; Issue: Was the Board of Review correct in using the
defense of impossibility to set aside the convictions for attempt and conspiracy? Court identifies two types of
impossibility: 1) Factual impossibility: not a defense and 2) Legal impossibility: defense; are really four types: 1)
Pure legal impossibility, 2) Hybrid legal impossibility, 3) Factual impossibility and 4) Inherent factual impossibility
Accomplice Liability
Pace v. State: picked up a hitchhiker; another passenger in his car robbed him at knifepoint; said nothing, but kept
driving; found guilty of being an accessory before the fact of robber; Issue: What evidence beyond mere presence at
the scene is necessary to sustain a conviction for ABTF? Holding: Negative acquiescence is not enough; some
affirmative conduct required
State v. Foster: D and friend found and the guy who robbed and raped his gf; left friend w/ a knife and friend ended
up fatally stabbing him; D found guilty by jury of kidnapping in second degree, assault in third degree and being
accessory to criminally negligent homicide; Issue: Can someone be convicted of being an accessory to a crime w/ a
mens rea of negligence? Prosecutor had to prove dual intent: Intent to aid the principal AND intent to commit the
offense w/ which D is charged; D argues you can’t intend to negligently kill someone; Court affirms conviction
(“Intent” language really means D must have the mental state required for the commission of the crime while
intentionally aiding another)
Wilson v. People: D helped V concoct drugstore robbery then called the police and reported the burglary; convicted
of aiding and abetting burglary and larceny; Issue: Did the court err in giving the jury Instruction No. 10 and
denying D’s motions to dismiss? Holding: Yes – a “feigned accomplice” is not criminally liable
Roy v. United States: Miller worked w/ the ATF to catch D selling firearms w/o a license but was then robbed by the
person they were trying to catch (not D); D was charged w/ armed robbery; the judge instructed the jury on the
natural and probable consequences doctrine and he was convicted; Issues: Was there sufficient evidence to convict
D? Did the trial court err in instructing the jury on the natural and probable consequences doctrine? Two theories of
liability: “Theory A”: D knew Steve was going to rob Miller and agreed to help (NO); “Theory B”: The armed
robbery was the natural and probably consequence of D’s complicity in sale of a firearm; Court rejects Theory B:
Natural and probable consequence must be something that “may be expected to occur if nothing unusual has
intervened”; Act done “in furtherance of the common purpose” isn’t enough; “Possible” does not equal “probable”
Conspiracy
State v. Pacheco: D bragged to Thomas Dillon about his involvement in organized crime; when Dillon found out he
was a dep. Sheriff, he called the FBI; Dillon paid D for “protection” during a fake drug deal, then said the buyer
shortchanged him $40,000; D offered to kill the buyer for $10,000; They planned for D to call the buyer’s motel
room, get him to come downstairs, then shoot him; D went to the lobby w/ a loaded gun, but didn’t call the room; D
was arrested and convicted of multiple counts, including conspiracy to commit 1 st degree murder; Issue: Does WA
conspiracy statute require an actual agreement between two or more co-conspirators? Holding: Yes – actual
agreement required; Majority looks at statutory language and policy, determines bilateral approach is appropriate
Two approaches to agreement:
Common law: bilateral approach - Requires actual agreement b/w 2 or more parties
MPC: unilateral approach - Actual agreement not required as long as D believes they are conspiring with another
People v. Swain: 15-yr old boy was killed in a drive-by shooting; Swain was acquitted of murder but convicted of
conspiracy to commit second degree murder; Ds appealed, arguing that it was error to instruct the jury on implied
malice second degree murder in connection w/ the conspiracy degree charge; Issue: Does conspiracy to commit
murder in the second degree require proof of intent to kill? Holding: Yes – conspiracy to murder can’t be based on
implied malice; Conspiracy is a specific intent crime; D must: 1. Intend to enter into the agreement AND 2. Intend to
commit the target offense
People v. Lauria: Det. Stella Weeks pretended to be a sex worker and signed up for service w/ D’s telephone
answering service; D and 3 sex workers were indicted for conspiracy to commit prostitution; D admitted he knew
some of his customers were sex workers, and he had used one of their services; Issue: When a defendant is a
supplier of goods and services, when can the fact-finder infer intent to commit conspiracy from D’s knowledge?
U.S. v. Falcone: sellers of sugar and yeast not guilty of conspiracy to distribute moonshine w/ distillers who bought
their products; Direct Sales Co. v. U.S.: Pharmaceutical seller guilty of conspiracy to distribute narcotics w/ doctor
supplying narcotics to addicts. General rule: to be convicted of conspiracy, supplier of goods must know of the
illegal use and intend to further that use; Jury can infer intent from knowledge when: 1. Seller has acquired a stake
in the venture, 2. No legitimate use for the goods/services, 3. Volume of business is grossly disproportionate to any
legitimate demand
The Pinkerton Rule: U.S. v. Mothersill: Ds, members of a drug conspiracy, plotted to rob a drug dealer and killed
him; Bailey and McCalister found out about it; Ds concerned Bailey would turn on them and planned to kill her w/ a
pipe bomb; while the bomb was being delivered, the driver of the car was pulled over and the bomb killed a state
trooper; Issue: Were Ds properly convicted of crimes they did not specifically agree to commit under the Pinkerton
doctrine? Holding – yes, affirmed