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1. Match the following theories of criminal punishment with their respective attributes:
A. Utilitarianism
1. punish this criminal to deter other criminals.
2. punish this criminal to deter this criminal from
future crimes.
B. Retributivism
3. respect the criminal’s free will choice to commit
crime by punishing him.
4. forward looking - focus on preventing crime.
5. backward looking - focus on the crime itself.
6. punish criminal because he deserves it.
7. punish criminal to express society’s disapproval of
his conduct
1. A: 1, 2, 4; B. 3, 5, 6, 7.
2. What is the difference between the principle of legality and the rule of lenity? What
are the policy reasons behind each?
2. The principle of legality is that there is no crime or punishment without a pre-existing law
that prohibits that crime. Thus, the conduct must be deemed a crime before the act is committed.
The policy behind the principle of legality is that “fair warning” should be provided to a criminal
so that he does not inadvertently commit a crime that he has no reason to believe is illegal. There
is no deterrence value in having unwritten crimes because people do not know what actions to
avoid. Also, it is not morally culpable to do an act that a person reasonably believes is not illegal.
Lastly, it would be unconstitutional under the ex post facto clause to do so. The rule of lenity is a
corollary to the principle of legality - it follows naturally from it. The rule of lenity requires that
all ambiguities in statutory language be resolved in the defendant’s favor. The policy reasons are
the same as the rule of legality. Also, the rule of lenity encourages the legislature to write more
clear statutes.
3. Jim is a hypnotist who hypnotizes Annette at a party. While Annette is hypnotized,
Jim entertains the crowd by suggesting that she punch her husband, Bill in the nose.
Annette does punch Bill in the nose, but she claims that she does not remember
anything during the time she was hypnotized. If Bill were to press charges against
Annette for battery, what possible “defenses” could Annette raise?
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3. Annette would attempt to negate the actus reus requirement of the crime, and perhaps the
mens rea as well. In either case, these would be “failure of proof” defenses as opposed to “true”
defenses. To defeat the actus reus, Annette would claim that since she was hypnotized, her act
was not voluntary. That is to say that it was not a product of her free will. She could claim
“automatism” or “unconsciousness”, meaning that she was not conscious of her actions and
they were “reflexive” in nature. Also, the acts could be equated to those of a sleepwalker.
However, one can make a policy argument that so little is known about hypnosis that a line can
not be drawn between what actions are “voluntary” and which are not when a person is
hypnotized.
4. Robin suffers from a legitimate, documented mental disease called “multiple
personality disorder” or MPD. Her alternate personality, “Jennifer,” is a wild partier
who drinks excessively. One evening, while “Jennifer” was in control of her body, she
was arrested for drunk-driving. What “defenses” would Robin raise in regards to the
DUI charge? Assume that both Robin and “Jennifer” are rational personalities, the only
difference being that “Jennifer” is much less inhibited than Robin.
4. Robin would attempt (as did Annette in Question 3, above) to defeat the actus reus
requirement of the crime. Robin would not claim insanity as a defense to the mens rea because
both she and “Jennifer” are both able to form the intent to drive drunk, and both should know it
is illegal. To defeat the actus reus element, Robin would claim that her actions were involuntary
because they were performed by her alternate personality, and that she had no control over her
body while “Jennifer” had control. However, a policy argument can be made that since it is
difficult to prove, MPD should not be a defense because the courts can not punish one
personality separately from another in the same mind and should not have to do so. (See
Dressler, pg. 75-76).
5. Harry is a boisterous drunk who likes to drink beer at home each night while he
listens to loud music. A neighbor calls the police on Harry, and they come to tell him to
quiet down. When they get to his door, they arrest him and take him out into the front
yard and begin to argue with him about the noise level. Harry, obviously intoxicated,
shouts loud obscenities at the police officers, who subsequently charge him with public
drunkenness, which is defined by statute as “appearance while intoxicated in a public
place and acting in a boisterous manner.” What is Harry’s defense to the public
drunkenness charge?
5. Harry will argue that although his intoxication was voluntary, that the proper voluntary act
required to be proven by the statute was the appearance in public. Since he was taken from his
home by the police officers, his appearance in public was involuntary. Had he not been arrested
by the police officers and removed from his home, his conduct would not have satisfied the public
drunkenness statute. (See Dressler, pg. 79).
6. Jane is married to Michael. Michael is a drug dealer. One night, Jane comes home and
finds Michael on the floor, doubled over in pain as a result of being beaten by the buyer
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in a drug deal gone sour. Michael is bleeding internally and is in a lot of pain and can
not reach the telephone to call for help. Michael asks Jane to call 911, but she refuses,
saying that it “serves him right” for getting involved with drugs, and that she is going
to “let him suffer for a while” before she calls for help, so that he is sure to “learn his
lesson.” After 15 minutes, she calls for 911, but when the paramedics arrive, it is too late
to save Michael, who dies. May Jane be charged with murder for waiting 15 minutes to
call for help?
6. The general rule is that there is no liability for an omission in the absence of a legal duty to
act. A moral duty to act is insufficient to create criminal liability. However, there are several
exceptions, including express statutory duty, contractual obligation, and the common-law duties
arising from creation of the risk, voluntary assistance, and “special relationship.” Married
couples, like Jane and Michael are part of a common-law “special relationship” between spouses.
Thus, Jane had a legal duty to summon assistance for her husband, Michael. A factual issue
exists whether the delay of 15 minutes caused Michael’s death, or whether he would have died
anyway as a result of his wounds. Also, Jane must have had the requisite mens rea, which for
murder is “intent to kill.” It is likely that Jane’s spiteful comment that she was delaying to teach
Michael a lesson would be viewed as extreme recklessness and extreme indifference to human life
(depraved heart murder).
7. Divide the following crimes into their respective elements: the actus reus, and the
mens rea. For each crime, classify the actus reus as a “conduct” or “result” crime (social
harm element) and identify the “attendant circumstances” elements.
A. murder - “the killing of a human being by another human being with malice
aforethought.”
B. DUI - “intentionally driving under the influence of alcohol.”
C. burglary - “the breaking and entering of the dwelling house of another at nighttime
with the intent to commit a felony within.”
7. The actus reus in the following answers are bolded, the mens rea is underlined:
A. murder - “the killing of a human being by another human being with malice
aforethought.”
1. result crime - it is the result that is prohibited.
2. Attendant circumstances are not expressly defined but could include the fact that the
murder weapon was loaded.
B. DUI - “intentionally driving under the influence of alcohol.”
1. conduct crime - no harmful result is required, the conduct itself is prohibited.
2. Attendant circumstances are part of the crime definition - driving must occur while
the driver is “under the influence of alcohol”.
C. burglary - “the breaking and entering of the dwelling house of another at nighttime
with the intent to commit a felony within.”
1. conduct crime - no harmful result is required.
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2. Attendant circumstances are part of the crime definition - house must be a “dwelling
house”, conduct must occur at “nighttime.”
8. An anarchist throws a bomb into the King’s carriage. The King and his valet are
riding inside and are killed by the concussion of the explosion. The coachman sitting
atop the carriage is killed by being thrown from the carriage and landing on his head.
The people lining the street to watch the King go by are killed by flying fragments.
When questioned, the anarchist states that he intended to King, and knew that the valet
would also die because he was so close. He also stated that he figured the coachman
would be hurt, but he wouldn’t let that stop him from killing the King. Lastly, he stated
that he had no idea that the explosion might kill the people lining the street and was
sorry that they died because he did not intend to kill any of them. What was the
anarchist’s mental state with regard to 1) the King, 2) the valet, 3) the coachman, and 4)
the bystanders.
8. The Model Penal Code § 2.02 defines 4 mental states: purposely, knowingly, recklessly and
negligently. A person acts purposely if it is his “conscious object” to engage in conduct or cause
a particular result. The anarchist stated that he “intended” to kill the King. Thus, the anarchist
acted purposely with respect to killing the King. A person acts knowingly if he is “aware or
practically certain” that a particular result will occur. The anarchist “knew that the valet would
also die because he was so close.” Thus, the anarchist acted knowingly with respect to killing the
valet. A person acts recklessly if he “consciously disregards a substantial and unjustifiable risk.”
Whether the risk is “substantial and unjustifiable” is measured by the “law-abiding citizen”
standard. A law abiding citizen would regard the risk of blowing up a person as substantial and
unjustifiable. Since the anarchist “figured the coachman would be hurt, but he wouldn’t let that
stop him from killing the King,” he consciously disregarded a substantial and unjustifiable risk,
thus acting recklessly with respect to killing the coachman. A person acts negligently if he
“should be aware of a substantial and unjustifiable risk.” Whether the risk is “substantial and
unjustifiable” is measured by the “reasonable person standard.” A reasonable person would
likely have known that an explosion inside the carriage would cause lethal fragments to be
thrown into the crowd. Even though the anarchist never intended to kill an innocent bystander,
he is held up to the reasonable person standard and thus acted negligently with regard to killing
the bystanders.
9. Under the Model Penal Code, if a statute is silent as to the particular mental state
required for any particular element, what mental states would satisfy the requirement?
9. When the definition of a criminal offense is silent regarding the matter of culpability as to any
material element of the offense, §2.02 provides that the element is satisfied if the person acted
purposely, knowingly or recklessly (but not merely negligently).
10. If a statute defines the crime of false imprisonment as “knowingly restraining
another person unlawfully,” how would the Model Penal Code treat the mens rea for
each of the material elements of the crime?
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10. MPC §2.02(4) provides that if a single mens rea element is given in the definition of a crime,
without distinguishing among the material elements of the crime, then that mens rea applies to
each material element of the crime. Thus, to be guilty of false imprisonment under this statute,
the person must have knowingly restrained the person, and also have known that the restraint
was unlawful. See Ratzlaf and Dressler, pg. 123.
11. Jim is pulled over for suspicion of driving drunk. He consents to a search of his car.
Under the back seat, the police officer finds a bag of cocaine. When questioned, Jim
claims that the car belongs to a friend who loaned it to him to go bar-hopping for the
night. Jim states that he had no idea that there was cocaine under the back seat. What
issues are raised if Jim is charged with “knowing possession of a controlled substance.”
11. First, we will deal with the actus reus portion of this conduct crime. “Possession” requires
that the actor have been aware of his control of the object for a sufficient period to have been able
to terminate his possession. If Jim were reasonably never aware of his control of the object, then
he could not have had a chance to terminate his possession, thus negating the actus reus of
“possession.” As to the mens rea, a person acts knowingly in a conduct crime if he is “aware or
is practically certain” of the existence of a certain fact. If Jim honestly and actually did not know
what, if anything, was under the back seat, then he could not have been “aware” of his conduct.
However, if Jim had reason to suspect that there was a controlled substance under the back seat,
then he would not be excused merely by avoiding actual knowledge of what was there. Jim may
not use “willful blindness” to negate the mens rea of knowingly.
12. Which of the following is not a factor that the court would consider in determining
whether a crime is a strict liability crime:
A. The penalty is small.
B. Legislative policy would be undermined if a mens rea were required.
C. The standard imposed by the statute is “reasonable” and would be properly
expected of a person.
D. The stigma associated with violation of the statute is large.
E. The statutory crime is malum prohibitum, not malum in se (not derived from the
common law crimes.
12. D. The stigma must be small not large.
13. What is Lady Wooten’s Proposal? What are the arguments in favor of it? What are
the arguments against it?
13. Lady Wooten proposed that the mens rea be done away with in the definition of all crimes,
thus making all crimes strict liability offenses. Mens rea would only be relevant at the time of
sentencing. She argued that the mens rea element was solely retributive in nature, going to the
moral culpability of the actor. Thus, in a utilitarian system relying on deterrence, failing to
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prosecute any crime stands in the way of efficient deterrence. The punishment aspect of
sentencing was the more rational place to take into account the person’s moral culpability.
Leniency would be given to those who were not morally culpable. However, this would result in
the police being overburdened by having to enforce the law in unnecessary situations, and
provide intolerable intrusion into the citizen’s life. Any casual bump in public would have to be
prosecuted as a battery, only to let the defendant off without punishment after a burdensome
trial. Thus, the transaction costs in maintaining such a system would be prohibitive.
14. Consider the following short hypo’s. In each, who is a proximate cause of V’s death?
A. D1 takes aim at V. But before D1 shoots, D2 shoots V, killing V instantly. D1’s bullet
strikes V’s dead body.
B. Both D1 and D2 shoot V simultaneously in the stomach. Either shot would have
killed V in 1 hour, but the combination causes V to die in 5 minutes.
C. Both D1 and D2 simultaneously shoot V in the head. Either shot would have been
sufficient to kill him instantly.
D. D1 shoots V in the stomach (which would have killed V in 1 hour). A second later, V
is struck in the head by a bullet shot by D2, which kills V instantly.
E. D seriously (but not lethally) wounds V. At the hospital, V receives negligent medical
care, and then dies.
F. D seriously (but not lethally) wounds V. At the hospital, V is stabbed by a knife
wielding maniac.
14. Use the following flowchart:
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"But for D's
conduct would the
social harm have
occurred
when it did (as it
did)?"
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YES
D is not
actual
cause
D is
actual NO
cause
Was there
another force
that operated
to produce the
harm after D's
act?
NO
D is
direct
cause
D is
liable
D is not
liable
D is not
direct
cause
YES
Was the
intervening
cause
coincidental?
NO
Responsive
(dependent)
cause
Was the
intervening
cause "highly
abnormal or
bizarre?"
Coincidental
(independent)
cause
Was the
YES
intervening
cause
"foreseeable?"
D is
proximate
cause
YES
D is
liable
NO
D is not
proximate
cause
D is not
liable
D is NO
proximate
D is
cause
liable
A. D2 is an actual cause of V’s death, but D1 is not an actual cause of V’s death because V’s
death would have occurred when it did anyway. No intervening cause for D2, so D2 is a direct
cause, and therefore a proximate cause. B. Both D1 and D2 are actual causes because V would
not have died when he did but for both shots. (Accelerating a result) No intervening cause, so
both D1 and D2 are direct causes, and therefore proximate causes. C. Both D1 and D2 are actual
causes because V would not have died as he did (from 2 shots to the head) but for both shots.
(Concurrent sufficient causes) No intervening cause, so both D1 and D2 are direct causes, and
therefore proximate causes. D. D1 is not an actual cause of V’s death because D2’s shot would
have killed him instantly regardless of D1’s shot. (Obstructed cause) No intervening cause for
D2, so D2 is a direct cause, and therefore a proximate cause. E. D is an actual cause and still a
proximate cause because negligent medical care is not “highly abnormal or bizarre.” (Responsive
(dependent) intervening cause) F. D is and actual cause but not a proximate cause because a
knife wielding maniac is not foreseeable. (Coincidental (independent) intervening cause)
15. Consider the following further hypo’s. In each, who is a proximate cause of V’s
death?
A. D punches V in the nose, requiring stitches. V is struck by lightning and killed on the
way to the hospital.
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B. Mother wishing to poison baby leaves poisoned “medicine” bottle with nursemaid
who puts in on the shelf, thinking the “medicine” unnecessary. Later, another child
finds it and feeds it to the baby.
C. Husband beats wife who runs to parents house. Wife spends the night on the porch
because of embarrassment and freezes to death.
D. Two drag racers, D and V, race to the end of the street. At the end of the drag race, V,
of his own volition, decides to keep going and eventually crashes.
E. D drunk drives a car in which P is a passenger. Because he is drunk, D crashes,
killing P. P failed to wear his seatbelt.
15. There are special factors which may justify reaching a result other than that arrived at by the
traditional, mechanical method. A. D is an actual cause, but not a proximate cause due to his de
minimis contribution to the death. B. Mother is proximate cause of the intended poisoning of the
baby under the intended consequences doctrine which allows many intervening causes if the
intended result of the wrongdoer actually happens in an unforeseeable way. C. Husband is not
proximate cause under the apparent safety doctrine because the husband’s force came to rest
with victim in position of apparent safety. D. D is not proximate cause under voluntary human
intervention doctrine which states that a willful act by another human which intervenes and
causes the harm supersedes the original wrongful act. (also applicable to husband/wife hypo in
part “C”) E. D is proximate cause because omissions rarely serve as a superseding intervening
cause.
16. Jim shoots Annette in the stomach, intending to kill her. A split second after pulling
the trigger, Jim immediately regrets shooting Annette. Jim rushes Annette to the
hospital where he constantly cares for her. All the time, Jim apologizes, and Annette
finally forgives him. A few weeks later, Annette dies of complications arising from the
surgery to remove the bullet. May Jim be successfully prosecuted for murder even
though he did not have the intent to kill her anymore when she died?
16. Yes. The actus reus and the mens rea must temporally concur. Here the actus reus was
shooting her, and the mens rea was intent to kill. They occurred at the same time. The social
harm, Annette’s death, occurred several weeks after the shooting, but it is not the social harm
that must concur with the mens rea, it is the actus reus.
17. Jim intends to shoot Annette when she gets home from work. For target practice, Jim
goes out into the woods and sets up some trash to use as targets. Target shooting is not
illegal in the woods by Jim’s house. When Annette comes home, she steps into the
woods looking for him and is immediately struck by a ricocheting bullet. Jim never
knew that Annette was home until after he heard her cry out in pain. Jim is happy that
he killed Annette. May Jim be successfully prosecuted for murder?
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17. No. The actus reus (shooting the gun) and the mens rea (intent to kill) must motivationally
concur. Here they occurred at the same time, but the actus reus was not motivated by the mens
rea. That is to say that Jim was not shooting the gun in order to kill Annette. He was shooting
the gun in order to practice for killing Annette. The ricochet that killed Annette was not the
result of the intent to kill.
18. Gary shoots Joyce in the arm while robbing her. Before Joyce can get to the hospital,
she bleeds to death. At trial, Gary testifies that although he did shoot Joyce, he did not
intend to kill her - only to scare her into compliance by shooting her in the arm. How
might the prosecution overcome his testimony to get a murder conviction?
18. Murder is defined as “the killing of a human being by another human being with malice
aforethought.” Here the actus reus, the killing, is undisputed. Gary seeks to negate the mens rea
of malice aforethought. A person is guilty of malice if they act with the “intent to kill,” the intent
to inflict “grievous bodily injury,” with “extreme recklessness and extreme disregard for human
life,” or if the killing occurs during the attempted commission of certain felonies (in some states).
Even if Gary denies that he had the specific intent to kill, intent to kill can be implied from 1) the
probable consequences of his action was death, or 2) his use of a deadly weapon implies an intent
to kill. An even stronger argument can be made that he intended to inflict grievous bodily harm
on her by shooting her in the arm, and so he had the required malice. Also, firing a gun at a
person can be used as evidence of an extreme recklessness, with and extreme disregard for human
life, which implies the requisite malice. Lastly, if the jurisdiction follows the common-law felony
murder rule, malice could be implied from the commission of the armed robbery.
19. In question 18, what degree of murder may Gary be convicted of?
19. First degree murder requires “premeditation” (thinking about beforehand; quantity of
thinking) and “deliberation” (measuring and evaluating the facets of a problem; quality of
thinking). Also, in some jurisdictions, first degree murder might be associated with certain
“enumerated felonies,” normally particularly violent or egregious felonies. This is referred to as
the “degree fixing” felony murder rule (as distinguished from the common-law felony murder
rule described above). There is no clear evidence that Gary premeditated the murder, although
one could argue that he premeditated and deliberated concerning the choice to shoot Joyce in the
arm to get her to comply. However, if this is a “degree fixing” felony murder rule state, Gary is
likely to have the murder conviction fixed to first degree because armed robbery is usually on the
list of “enumerated felonies.” If it is not a “degree-fixing” felony murder rule state, Gary would
probably be convicted of second degree murder, which is all murders which are not first degree
murders.
20. Jennifer is the daughter of Bill, who is terminally ill with untreatable cancer. Bill has
been sent home by the hospital for what are anticipated to be the last few weeks of his
life. For his intense pain, the doctor has prescribed morphine, and has given Jennifer a
full prescription to administer to Bill according to a schedule. Bill eventually reaches the
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point where he can no longer communicate with Jennifer, and is in severe pain.
Although he never indicated to Jennifer any intention to commit suicide, Jennifer can no
longer stand to see her father in pain and after some initial hesitation, administers an
overdose of morphine to him. In her own words, Jennifer calls it a “mercy killing.” May
Jennifer be prosecuted for murder? If so, what degree?
20. Jennifer may be prosecuted for first degree murder. The actus reus is undisputed - Jennifer
admits to unlawfully killing her father. The mens rea of malice aforethought is satisfied by her
express intent to kill. Her decision to kill was likely premeditated and deliberated because her
hesitation indicates that she probably thought about and weighed the consequences to herself and
her father. That her motive was merciful is irrelevant. The plain definition of first degree murder
encompasses a mercy killing. Unless the state has a statute exempting this particular scenario,
Jennifer may be prosecuted for first degree murder.
21. Arthur gets in an argument with his “friend” Tom, over who is a better football
team - the ‘49ers or the Cowboys. Since both have been drinking considerably, the
argument escalates rapidly, but no blows are thrown. The argument ends when Arthur
picks up a heavy ashtray and crashes it into Tom’s skull. Tom dies a few days later of
his brain injuries. Given that the prosecution can prove malice by the intent to inflict
grievous bodily injury, what degree of murder is Arthur likely to be prosecuted for?
21. There appears to be no evidence of premeditation or deliberation. Many courts require that
“some appreciable time” pass in order to premeditate. Although no particular amount of time is
required, it must be long enough for the defendant to turn the matter over in his mind and to
give the matter at least a second thought. This murder occurred in the confusion and heated
emotion of an argument between friends. It is unlikely that Arthur could have taken the time,
especially in the middle of a drunken argument, to reflect meaningfully on the decision to strike
Tom with the ashtray. Thus, second degree murder is the likely charge.
22. John and Wilma were married, but then separated 2 years ago due to Wilma’s
confessed adultery. John desires to patch things up with Wilma, but she does not want
to reconcile. Over several weeks John visited Wilma, attempting to convince her to
move back in with him, but she refused. Finally, during one visit, Wilma said to John,
“I’m never going back to you because you are a sexual zero. I’m going to stay with my
new lover who knows how to please me.” Extremely angered by her statement, John
beats her to death. At John’s murder trial, what might he argue to avoid a murder
conviction?
22. John will likely argue that the killing should be mitigated to manslaughter under the common
law defense of adequate provocation. In order for this defense to apply, 1) the actor must have
acted in “the heat of passion”, 2) the passion must have been the result of “adequate
provocation”, 3) the actor must not have cooled off, and 4) a reasonable person must not have
had the opportunity to cool off. “Passion” includes any “violent, intense, high-wrought or
enthusiastic emotion.” This term is sufficient to encompass jealousy or rage, the two emotions
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that John likely felt at the time. Also, John did not have a reasonable time to cool off. Thus, the
only question is whether Wilma’s statement and conduct constituted “adequate provocation.” In
most jurisdictions, it is a question of fact for the jury whether the provocation was sufficient to
arouse enough passion, subject to the common law rule that “words alone do not constitute
adequate provocation.” Wilma has both directly insulted John, and has informed him of ongoing
adultery. It is likely that if John did not catch her in the act (as was the old common law
requirement), he would not be adequately provoked given that he has known for 2 years about her
adultery. Also, there does not seem to be a long enough history of verbal abuse to constitute
adequate provocation.
23. On Frank’s 21st birthday, a bunch of his friends got together to buy him alcohol.
After finishing a bottle of Jack Daniels, Frank jumped into his car to drive to his
girlfriend’s house. Some friends warned him that he might kill someone, but he said,
“not if I get there fast enough.” At first, Frank felt fine, but as time went by, he quickly
became more affected by the alcohol. While on the highway, he came across dense fog,
so he slowed his speed from 100 mph to 70 mph. After a few miles, he crashed into an
oncoming car, killing the other driver. His blood alcohol level was measured at .24%.
Frank claims that he never intended to kill or seriously injure anyone, he was just trying
to get to his girlfriend’s house quickly. What might Frank argue to mitigate a charge of
murder to that of manslaughter?
23. Frank will likely argue that because of his drunkenness, he did not harbor the specific intent
of malice required for a murder conviction. However, malice can be implied by a jury finding of
“extreme recklessness” and “extreme disregard for human life.” “Recklessness” is the conscious
disregard of a substantial and unjustifiable risk. Since Frank was not drunk when he got into the
car, he made the conscious decision to drive. He was aware of the risk of death to other people
because he was warned by his friends. However, he consciously disregarded the risk to others,
thinking he could out-race his drunkenness. Thus, the question turns on whether his recklessness
was “extreme” (which would result in a finding of malice and a murder conviction) or merely
“gross” (which would result in a finding of lack of malice and an involuntary manslaughter
conviction). Although there is no bright line between the two, when a person consciously
disregards a known substantial risk, rather than consciously disregarding a risk that he should
know is substantial (but doesn’t actually know), he has acted with a “depraved heart.” Here,
Frank actually knew the risk and consciously disregarded it. See Dressler pg. 478.
24. Bob is 17 years old. While sitting at home, bored on a Sunday afternoon with his
friend John, Bob pulls out his father’s .45 caliber semi-automatic pistol. He removes the
magazine clip from the magazine receiver in the handle, but does not check the
chamber to see if there is a bullet that has already been fed into the chamber (see
diagram below). Thinking that the gun is unloaded, Bob points it at John and pulls the
trigger. John is killed by the bullet that was already fed into the chamber. Bob claims
that he never had any intention to kill John, and he thought that the gun was unloaded.
What would John argue to reduce his murder charge to manslaughter?
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Bullet left in chamber
Magazine
receiver
(Empty)
Cut-away view of a .45 cal. semi-auto with magazine removed.
24. Bob will argue that he did not have the specific intent to kill and that his actions do not
support a finding of implied malice. Specifically, Bob will argue that firing a loaded gun in the
direction of another person would be “extreme recklessness” because it would be the conscious
disregard of a known risk. However, firing an gun that the actor believes is unloaded is not
“extreme recklessness” because the person could not “consciously” disregard a risk that he did
not know existed, even if he should have known of its existence. This would only be gross
negligence sufficient to support a conviction of involuntary manslaughter. Case law exists to
support this distinction (see Dressler pg. 499). However, one might argue that firing a gun,
whether loaded or unloaded, in the direction of another person is “extreme recklessness” and
“extreme disregard for human life” since it is well known, and Bob probably did know, that most
shootings in the home occur in exactly this manner. Then, this might be considered conscious
disregard of a risk.
25. While drinking in a bar in P.B., Pete, who is black, is racially insulted by another bar
patron, Hobo, who is white. Pete invites Hobo outside to “talk it over.” The talking ends
when Pete pushes Hobo, causing Hobo to fall to the ground and strike his head on a fire
hydrant. Hobo dies two days later from the head injuries. What charge would be
properly brought against Pete?
25. Involuntary manslaughter under the misdemeanor manslaughter doctrine. Misdemeanor
manslaughter is an accidental homicide that occurs during the commission of a misdemeanor
(not a felony). It is analogous to the felony murder rule. However, some jurisdictions limit its
applicability to misdemeanors that are “inherently dangerous,” requiring that the risk of death
be foreseeable and proximately caused by the misdemeanor. Also, some courts require that the
misdemeanor be one that is mala in se, rather than malum prohibitum. Here, the misdemeanor
was battery. Battery is “inherently dangerous.” It was also the proximate cause of the death. Of
course, battery is also a mala in se crime. So the only question is whether the risk of death was
foreseeable. It may be found to be foreseeable by the jury given the fact that many deaths occur
from bar fights, but it might be a stretch to say that a single shove of a drunk would foreseeably
cause the drunk’s death.
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26. Dan storms into the local Bank of America brandishing a pistol. He shouts, “this is a
hold up!”, and he demands that everyone lie down on the floor. One of the bank
patrons, Betty, is old and has heart disease. Right after Dan leaves with the money, she
has a heart attack and dies from the shock of the robbery. After he is caught, Dan claims
that he never meant to hurt anyone. His story is corroborated by the fact that the pistol
was unloaded. May Dan be convicted for murder? If so, what degree of murder?
26. Yes. Most states apply a felony murder rule in which the requisite malice required for a
murder conviction is implied by the commission of the felony itself. The rationale is that the felon
will be deterred from committing his felony in a dangerous manner, and that a felon who kills
accidentally is more culpable than a felon who does not kill. The basic requirement is that the
death is causally related to the commission of the felony. However, most states also limit the
applicability of the felony murder rule to “inherently dangerous” felonies - that is felonies which
involve a “high probability of death” in the abstract without regard to the particular facts of the
case. Here the underlying felony is robbery. It is immaterial that the pistol was unloaded, the
robbery still occurred, and in the abstract, robbery is a felony that has a “high probability of
death.” It also does not matter that Betty was old and had heart disease. The robbery was still a
“but for” cause of the heart attack. Thus, Dan may have implied malice from the commission of
the robbery. As to the degree of the murder, most states have a degree-fixing felony murder
statute that states that if a person is guilty of murder, the murder is elevated to first degree if it
occurred during the commission of an “enumerated felony,” which probably includes robbery.
Note that even though the underlying felony of robbery includes assault with a deadly weapon,
the assault does not merge with the homicide because the “independent felonious purpose” of the
robbery was to take money, and the homicide was independent of that purpose. (See Dressler pg.
485).
27. In the preceding question (26), what if instead of dying of a heart attack, Betty were
accidentally shot by Gary, the armed guard in charge of protecting the bank. Would
Dan still be liable for murder?
27. In most states which follow an agency theory of the felony murder rule, the answer is no. In
these states, the felon can not be held accountable for the actions of another party who is not
acting in cooperation with him in furtherance of the purpose of the felony. Since Gary is not
acting in furtherance of the robbery, his actions can not be imputed to Dan. An exception would
be if Dan used Betty as a human shield. However, a few states follow the proximate cause theory
of the felony murder rule, in which the felon is liable for any homicide that is proximately caused
by the commission of the felony, regardless of whether the shooter was in cooperation with the
felon. In these states, it would be easy to find that Dan’s robbery was the “but for” cause of the
shooting, and even that the shooting was a foreseeable response to his robbery. Thus in a
proximate cause state, Dan would be liable for murder.
28. Annette has a natural gas powered fireplace. Because the gas line is partially
plugged with ash from previous fires, the gas only comes out in certain areas. Rather
than have the gas line cleaned, Annette continues to use it as it is, although it takes
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longer to start it. One night, when her friend Jim is over, they decide to build a fire, and
Annette turns on the gas. The fire does not light in a reasonable amount of time, but
Annette continues to wave the match around in front of the gas burners because she can
hear gas coming out somewhere. The gas continues to build up in the fireplace, and
then suddenly explodes when ignited by the match, burning Jim so severely that he dies
a few days later. May Annette be prosecuted for some form of homicide?
28. First, we will assume that Annette’s negligence does not rise to the level of “extreme
recklessness” and “extreme disregard for human life” needed for depraved heart murder. So the
question is whether it rises to the level of gross negligence commonly called “criminal
negligence” needed to support an involuntary manslaughter conviction. “Criminal negligence”
is commonly defined as a “gross deviation from the standard of care that reasonable people would
exercise in the same situation.” Ordinary negligence is insufficient. A reasonable person would
have cleaned the gas line, or turned off the gas and waited for it to clear before re-attempting to
start the fire. Since the reasonable person would have realized that the risk of serious injury was
so high, it may be proper to find that Annette exhibited “criminal negligence” in this situation.
29. Janet is a prostitute. She is approached by a man who says he will pay her $500 to
smuggle a gun into the courthouse and give it to him once she is inside. She hesitates,
but the man says that if he does not comply, he will shoot her. As Janet enters the
courthouse, she sees several armed Marshals on either side of an entry door. Behind
her, the man is following closely. Janet tries to remain inconspicuous, but she is
apprehended by the Marshals when a metal detector goes off as she walks through the
door. At her trial, Janet claims the defense of duress. What are her chances of success?
29. Duress has five requirements, 1) the defendant must be under the threat of death or grievous
bodily harm to herself or a close relative, 2) the defendant must reasonably believe that the threat
is genuine, 3) the threat must be “present, imminent, and impending” at the time of the criminal
act, 4) there must be no reasonable escape, and 5) the defendant must not be at fault for exposing
herself to the threat. In this case, Janet is under the threat of death. We can assume that it is
reasonable to believe that the threat was genuine because someone who would have a person
smuggle a gun into a courthouse is also probably prepared to make good on a death threat. Also,
even though Janet is a prostitute, there are no facts which indicate that she is at fault for
exposing herself to this threat. The central issues here are whether the threat was imminent
enough at the time she committed the crime, and whether there was any reasonable means of
escape. Although the man was following closely behind, and probably had a weapon, it is
unlikely that he would use it in the presence of so many armed Marshals. If he were to shoot
Janet at that time, he would likely get shot himself. Also, the presence of so many armed
Marshals indicates that there was a reasonable means of escape. Janet could have turned herself
in to the Marshals instead of proceeding with the crime. Thus, Janet’s chances of success are
shaky.
30. John, a gasoline station employee, stole $50 out of the cashbox one night in order to
buy some new CD’s. When a co-employee, Paco, found out about the theft, he
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threatened to tell the gas station owner if John didn’t steal $100 for Paco. Since John is
the sole support for two children, and being fired for stealing, not to mention possible
criminal prosecution, would prevent him from getting another job, John feels coerced
into stealing the $100 for Paco. However, John is caught while attempting to steal the
money, and is charged with theft. May John properly raise the defense of duress to
excuse the second theft?
30. No. Although John had reason to believe that Paco’s threat was genuine, as well as imminent
at the time he tried to steal the money, there are several reasons why John is out of luck. First, the
threat was not of death or grievous bodily injury, it was only of financial and reputational ruin,
neither of which is sufficient for the defense of duress. Even though he was concerned for his
family, they would not suffer grievous bodily harm if he were to refuse. Also, there was always
the escape from the threat of being turned in by turning himself in. Lastly, John was clearly at
fault in placing himself in the situation that he could be blackmailed by committing the first
theft.
31. True or False: Duress is a defense to murder.
31. Both. Although duress is not a defense to murder in most cases, there is one exception.
Duress may be a defense to the underlying felony in a state that follows the felony murder rule,
thus becoming a defense to the felony murder charge. See Hunter.
32. What is the conceptual difference between the defense of duress and the defense of
necessity.
32. Although there are some minor differences, such as the fact that duress is only applicable in
situations where the threat is from another human being, rather than a force of nature, duress is
not a sub-species of necessity. Necessity is a justification, meaning that there was no actual
social harm because the lesser of two evils was chosen - society was benefited by minimizing a
loss. Therefore, no prosecution of any individual should ensue. Duress, on the other hand, is an
excuse. With duress, the social harm did occur, but we are excusing the defendant anyway. The
coercing party still may be held accountable for the social harm. Furthermore, in necessity, the
defense is only available is the harm avoided was less than the harm committed. In contrast, in
duress, the threats overwhelm the defendant so that he makes the wrong choice, i.e. commits an
equal or greater harm than could have been avoided. (See Dressler pg. 278).
33. Bob is driving home in a rainstorm. Over the radio, he hears a tornado warning in
his area. Suddenly, he sees the tornado coming in his direction. Fortunately, there is a
parking garage nearby, and Bob heads for it. However, when he gets to the entrance,
Bob sees that it is being blocked by an employee who seems to be waving him away.
Thinking that “it’s either him or me,” Bob steps on the gas and plows through the
entrance, killing the employee as he tries to jump out of the way at the last second. At
his murder trial, Bob raises the defense of necessity. What are his chances of success?
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33. To successfully raise a necessity defense, the actor must 1) be faced with a clear and
imminent danger (in some states from natural forces and not human beings), 2) expect as a
reasonable person, that his action will be successful in abating the danger, 3) have no effective
legal alternative, 4) the harm caused by the crime must be less than the harm of the imminent
danger, and 5) the actor must not be at fault in exposing himself to the danger. First, we will
assume that Bob was correct in his assessment of the imminent danger of death from the tornado,
and that shelter in the parking garage would save his life. Also, there was no evidence that he
was at fault for exposing himself to the tornado. Thus, the issues here are whether he had an
effective legal alternative (other than killing the employee), and whether the harm caused by the
killing was less than the harm of the imminent danger. Although no legal alternatives were
discussed, it is common sense that he could have at least tried to reason with the employee. If
there was not time to do so, he probably could have at least gone more slowly to give the
employee time to get out of the way. Also, the killing of the employee was not a lesser harm than
his own death. For this reason, necessity is generally unavailable in a murder case. Thus, his
necessity defense is likely to be unsuccessful.
34. Why is the necessity defense never available in a case of indirect civil disobedience?
34. Indirect civil disobedience involves the violation of a law that is not the object of the protest.
Typically, the harm to be avoided is not imminent, the protest does not directly abate the danger,
the protesters have legal alternatives, such as the ballot box, and the legislature has already
decided the issue against them. A retributivist argument can be made that those people who
break laws out of “political necessity” should be punished as martyrs in order to give respect to
their free will and their cause. If they are committed to their cause, the punishment should be
acceptable to them.
35. Barbara is a heroin addict. To support her habit, she becomes a prostitute. After
being arrested and charged with prostitution, she asserts the defense of medical
necessity. She presents evidence to show that a person with her level of addiction who
quits heroin is likely to die from the severe stress of withdrawal unless they receive
adequate medical attention. Since she has no extra money, she can not afford the proper
medical care of a drug rehabilitation center. She can only make enough to support her
habit, thus she is stuck in a perpetual cycle of prostitution. What are her chances of
success?
35. Let us assume that the evidence is true and that the danger is imminent. It is also true that
continuing to use heroin will abate that danger, and that the crime of prostitution is a lesser
harm than possible death from withdrawal. However, Barbara probably has legal alternatives
available. For example, she could turn herself in and seek assistance from the state. Perhaps she
could also find another job. Clearly, she is at fault for exposing herself to this perpetual cycle.
Also, the legislature has such a strong interest in preventing prostitution and drug use that to
allow it them go on, as long as the two crimes are perpetually reinforcing each other, is contrary
to a strong public interest. Thus, the legislature appears to have decided the issue against
Barbara. Thus, as a policy matter, her defense is likely to fail.
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36. Gilbert and Sullivan have a history of not getting along. As Gilbert is walking home
across a railroad trestle, he is met by Sullivan walking in the other direction. After an
exchange of insults, Sullivan punches Gilbert in the face. Gilbert reacts by pushing
Sullivan over the edge of the trestle, where he falls to his death 50 feet below. May
Gilbert properly claim self-defense?
36. A person who is not an aggressor is justified in using force upon another if he actually
(subjective) and reasonably (objective) believes that such force is necessary to protect himself
from imminent use of unlawful force by another person. This general rule is subject to three basic
restrictions: 1) the force should only be used to the extent that it is “necessary”, 2) and to the
extent that it is “proportional” to the harm threatened. Here, Gilbert is not an aggressor because
he only insulted Sullivan. Since Sullivan punched him, he probably actually and reasonably
believed that some amount of force was necessary to protect himself. However, the amount of
force he used in response, i.e. pushing Sullivan off the trestle, was not proportional to the harm
he was threatened with, which was probably some more punches. Gilbert could probably have
defended himself by his own fists, or in some other way. Additionally, there are some
jurisdictions that would require Gilbert to “retreat” if there was any available escape to
“complete safety.” Gilbert may have been able to simply run away.
37. Assume the same facts as in Question 36 above, except that Gilbert responded to
Sullivan’s punch by pushing him down on the tracks, where he broke through a rotten
piece of wood and fell to his death. Would his claim of self-defense be proper?
37. Probably yes. This time, Gilbert has used force that was proportional to the threat, but
Sullivan has died anyway. However, Sullivan’s death was probably unforeseeable. Thus, since
Gilbert’s response was not likely to cause death or serious bodily injury, his self-defense claim
will probably prevail.
38. Martin the mugger threatens Vincent the vigilante on the subway with a knife and
demands his money. Vincent pulls out a gun, but in his excitement, drops it on the
ground. Martin sees the gun and has second thoughts about robbing Vincent. To get
away from Vincent, who is reaching to pick up the gun, Martin runs to the next car.
Vincent chases after Martin with the gun, and as Vincent steps into the next car, Martin
stabs him. Vincent dies. May Martin claim self-defense?
38. The general rule is that self-defense is not available to an aggressor. However, an aggressor
may regain his right of self-defense if he takes sufficient action to purge himself of his aggressor
status. In most jurisdictions, a “non-deadly” aggressor, one who does not use deadly force, may
regain his right of self-defense immediately if his opponent uses deadly force. However, a
“deadly” aggressor, may only regain his right of self-defense if he retreats and successfully
communicates the fact that he is no longer a threat to his opponent. Here, Martin was a deadly
aggressor. He did retreat. Thus, the issue here is whether Vincent knew that he was no longer a
threat. By running away, Martin implied that he was no longer a threat, but he did not say
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anything. Also, one could argue that Vincent could have thought that Martin was only running
away as a temporary tactic to avoid being shot, and that Martin was still an imminent threat if
Vincent were to turn his back.
39. Bill is standing on his front porch, enjoying the sunset. Stanley, Bill’s neighbor,
approaches Bill and they begin to argue about who should pay to repair the broken
fence separating their yards. Stanley pulls out a Buck knife and waves it at Bill
menacingly. Bill responds by pulling out his own knife and stabbing Stanley, who later
dies. Assuming that Bill lives in a “retreat” jurisdiction, may Bill properly claim
self-defense?
39. In a retreat jurisdiction, the defender is not entitled to claim self defense if he was aware that
an escape to complete safety was available. Here, Bill was on his porch and could have easily
gone inside his house to escape to complete safety. However, in retreat jurisdictions, there is the
so-called “castle” exception, whereby a defender does not have the duty to retreat if he is attacked
in his dwelling place or within its immediate surrounding land. Here, since Bill was on his front
porch, the “castle” exception to the general rule of retreat applies. The requirements for
self-defense appear to be met as well.
40. How is expert testimony on battered woman’s syndrome treated in a murder case
where the battered wife kills her husband while he is sleeping?
40. It varies among jurisdictions. In most jurisdictions, evidence of past beatings and expert
testimony on the “learned helplessness” of battered woman’s syndrome is admissible to
demonstrate that the wife had an actual and honest belief that she was in imminent danger, even
though the husband was sleeping. However, many of these jurisdictions do not allow the same
evidence to be further used to demonstrate that the wife’s belief was objectively reasonable as
well. In these latter jurisdictions, the test of reasonableness is an “objective” standard because
they does not take into account the mental and physical characteristics of the battered woman in
deciding the reasonableness of her actions. In a few jurisdictions, the evidence is also allowed as
to the reasonableness of her belief of imminent harm. These jurisdictions use a
“subjectivized-objective” standard because they view the reasonableness of the wife’s actions
from the standpoint of the “reasonable battered wife.”
41. Mary is an old woman. While walking to the grocery store one evening at dusk, she
encounters five young African-American men who are dressed in what she believes are
“gang colors.” The five men are walking towards her, and appear to be drunk. As they
walk by, one stumbles and bumps into her. She pulls out a gun and starts shooting at
them. Two of the men are killed, and the others run away. At her murder trial, Mary
claims that she thought she was being mugged and that it was reasonable for her to
believe so because of the race, clothing, drunken appearance and age of the men as well
as her own age and physical size. How would the prosecution rebut her claim? What if
the prosecution is successful in this argument?
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41. The prosecution would argue that Mary’s belief must be reasonable as measured by an
“normative” standard, and not just a “popular” standard. That is to say that it is not enough for
Mary to claim that most people believe that groups of young African American men are
dangerous, there must be some logical reason behind Mary’s belief, apart from race. Racism is
never a justification for a crime because defendants are held to a standard that assumes no racial
bias - a “normal” standard. The prosecution might also argue that it would be too subjective to
take into consideration her age, size and sex. If the prosecution is successful, she may be
convicted for murder if they can show adequate malice. However, it is likely that she would only
be convicted of manslaughter because in her “imperfect self defense” she lacked the mens rea for
murder. However, Mary has additional facts in her favor: 1) the men were drunk, and 2) she was
actually physically bumped. It may have been reasonable even on a completely normal and
objective standard to for her to believe that she was under physical attack. It is true that Mary
probably had an actual belief that she was in imminent danger of physical harm. It is also likely,
that were things as she believed, her use of force was proportional given her age and size in
contrast to the age, number and size of the five men.
42. Richard is a security patrol agent working on the night shift for a local business.
Richard is licensed to carry a gun. One night, during his routing patrol of the business
premises, he comes across a person dressed in dark clothing with a ski-mask on,
stealing computer equipment out of the back entry. Richard startles the thief, who
throws the computer in his hands at Richard, and tackles him. Richard pulls his gun
and shoots while they are wrestling on the ground, wounding the thief. The wounded
thief jumps up and begins to run away. Richard fires two more shots at him, hitting the
thief in the back and killing him. Was Richard justified in his use of force?
42. Even if Richard was initially justified, under the theory of self-defense, for shooting at the
thief while they were wrestling (issue of proportionality), the threat was abated when the thief
got up to run away. Thus, the issue is whether Richard was justified in using deadly force to
attempt to apprehend a thief. In general, a private citizen is only justified in the use of deadly
force to arrest a suspect if a forcible felony has in fact been committed by the suspect, the deadly
force is necessary, and a warning has been given. Here, the suspect appeared to be unarmed.
Although he did break and enter, it is unclear whether that is a “forcible felony.” In the
alternative, the ”forcible felony” may be defined as the battery on Richard. Assuming that it is,
Richard failed to give any warning that the fleeing felon should stop before Richard shot. Also,
some states require that a private citizen who has “stepped into the shoes” of a police officer
follow the additional requirements of Tennessee v. Garner. This requires that the citizen also
have probable cause to believe that the suspect poses a significant threat of death or serious bodily
injury to the citizen or to others. Probable cause may be lacking here since the suspect appeared
to be unarmed. It is unlikely that a wrestling match alone would constitute probable cause of a
significant threat of serious bodily injury.
43. One night while Brian is watching television, he hears his car alarm go off. He grabs
a baseball bat and runs outside to find Tommy attempting to steal his car. Tommy sees
Brian running towards him with the baseball bat, and as Brian jerks the door open,
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Tommy kicks at him and tries to drive away. Brian swings the bat and hits Tommy in
the head, injuring him severely. Is Brian legally justified in hitting Tommy with the
baseball bat?
43. The general rule is that deadly force, that is force that is likely to cause death or serious bodily
injury, is never justified solely in the defense of property. Non-deadly force is only justifiable if it
is reasonably necessary to prevent an imminent and unlawful dispossession of property, and
then only after requesting the thief desist, if possible. Here, the use of the baseball bat is likely to
be considered “deadly force.” Thus, Brian is not justified in using the baseball bat if his sole
reason is defense of property. Brian may try to argue self-defense, but this would likely fail
because his response was disproportionate to the kick. Also, there was an alternative of lesser
force available - he could have let Tommy drive away.
44. One night while John is watching television, he hears someone pounding on his
door. Looking through the peephole, he sees that it is his ex-wife, Donna. Since they
have just finished a bitter divorce, in which Donna was awarded no alimony, she is
enraged and drunk. She demands that he let her in. He refuses. Unfortunately, she still
has a key to the door, and she uses it. In his haste to keep her from coming in, John
kicks at her, striking her in the stomach and causing internal injuries. At trial for
battery, what defense is John likely to raise? What are his chances of success?
44. John is likely to claim defense of habitation. In general, deadly force is justified in defense of
habitation if the defendant reasonably believes that the victim intends to unlawfully and
imminently enter his dwelling, and deadly force is necessary to prevent the intrusion. Some
jurisdictions take a narrower approach requiring that the defendant also reasonably believe that
the victim intended to commit a felony inside or to cause injury to one of the inhabitants. Some
jurisdictions limit the defense further requiring that the defendant reasonably believe that the
felony be a “forcible felony” or that the victim intended to kill or seriously injure an occupant.
Thus, John’s success depends heavily on the jurisdiction. However, assuming that it was
reasonable for John to believe that his ex-wife intended to injure him once inside, that injury
would have to be “serious” in order to qualify in the jurisdictions that apply the most narrow
version of the defense. This would probably require that she was armed. There is no evidence that
she was armed. The “forcible felony” could be considered assault with a deadly weapon or even
murder if she had a gun, but again, no evidence of a deadly weapon. As to necessity, John is on
shaky ground because it is likely that he could have prevented her entry (assuming she was
unarmed) with less than deadly force, unless she was armed with a gun. Thus, John will
probably be unsuccessful.
45. Tammy is a lawyer who was fired by one of the senior partners in her law firm.
Emotionally devastated and extremely angry, Tammy decides that she will seek
revenge on her ex-boss. She buys a bottle of whiskey and sits down at her kitchen table
to think it over. As she gets progressively more drunk, she becomes more convinced
that what she should do is shoot her boss in the leg to give him a limp for the rest of his
life. She grabs a gun and drives down to the office. However, since she is so drunk by
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the time she gets to the office, she is unable to adequately aim the gun, and instead
shoots her ex-boss in the chest, killing him. At her trial for murder, Tammy raises the
defense of intoxication. What are her chances of success?
45. Murder is a specific intent crime. It requires the specific intent of malice, which can be
proven by the intent to inflict grievous bodily injury. The general rule is that evidence of
voluntary intoxication, although inadmissible to negate the mens rea of a general intent crime, is
admissible with respect to a specific intent crime. However, the presence of intoxication does not
automatically defeat a specific intent mens rea, it only serves to cast doubt on whether the
defendant actually formed the specific intent required. In this case, we are told that Tammy
actually formed the intent to do grievous bodily injury to her ex-boss. Even if her judgment was
clouded and her aim was shaky, the intent was still present. Furthermore, there is substantial
evidence that she premeditated and deliberated concerning shooting her boss. Even though she
was drunk at the time, it is may be that her deliberations were meaningful, which is to say that
she understood the consequences of her actions. Thus, she may be convicted for first degree
murder. Even if she is found not to have premeditated, she would be convicted of second-degree
murder. Furthermore, even if the court were to say that she never formed the specific intent to
kill, by voluntarily intoxicating herself and going to shoot her ex-boss she has certainly showed
“extreme recklessness and extreme disregard for human life” and would be guilty of depraved
heart murder.
46. Give the four types of involuntary intoxication, and an example of each.
46. 1. coerced intoxication - Ex: a group of boys drive another boy out into the desert and
threaten to abandon him there if he does not drink a bottle of alcohol. 2. intoxication by innocent
mistake - Ex: at a party, a friend offers you a “breath freshener” which you eat, and only later
find out that it was actually cocaine. 3. unexpected intoxication from a prescribed medication Ex: unexpected dizziness after taking a prescription antihistamine. (Note that the person
probably must not have taken more than the prescribed dosage, and also must have had no reason
to know that he would react adversely.) 4. “pathological intoxication” - Ex: a person drinks a
single beer which triggers a violent biological reaction of an unknown predisposed condition.
(Note person must have had no reason to know of the adverse biological predisposition).
47. True or False: Involuntary intoxication is a defense to a strict liability crime.
47. False. To the extent that involuntary intoxication is a defense because it negates the required
mens rea of a crime, it is not a defense to a strict-liability crime where there is no mens rea to
negate. See Dressler pg. 305, fn. 79.
48. True or False: The defense of fixed insanity caused by long-term alcohol or drug
abuse is only available is the defendant was not actually voluntarily intoxicated at the
time of the offense.
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48. False. Although the defense is usually asserted when the defendant was sober at the time of
the offense, the insanity defense applies even if the actor was intoxicated at the time of the crime.
A possible rationale is that the actor was no less insane at simply because he was voluntarily
intoxicated at the time.
49. Jeremy, a drug dealer, has run out of clean clothes. A “friend” of Jeremy’s sells him a
bag of crack cocaine. Jeremy buys the bag, thinking that it is a bag of laundry detergent.
Although the price of the laundry detergent seemed high, Jeremy really needed to wash
his clothes. Jeremy is arrested and charged with “knowingly receiving a controlled
substance.” May Jeremy properly claim that he should be acquitted because he believed
the bag contained laundry detergent instead of crack cocaine?
49. Yes. The general rule regarding a mistake of fact in a specific intent crime is that a defendant
is not guilty of an offense if his mistake of fact negates the specific-intent portion of the crime. It
does not matter whether the defendant’s mistake was reasonable or unreasonable. The simple fact
that he was mistaken means that he did not actually have the required specific intent. However,
the act must have been either legally or morally right (depending on the jurisdiction) if the facts
were as the defendant believed them to be. Here the crime is a specific intent crime because the
defendant must have known that what he was receiving was a controlled substance in order to be
guilty. Jeremy claims that he actually believed that the substance was laundry detergent. The act
of buying laundry detergent is neither illegal nor immoral. Thus, regardless of whether his
mistake was reasonable, Jeremy is entitled to claim the defense of mistake of fact, even though the
jury may not believe him given that Jeremy was a drug dealer and that the price was high.
50. Jason is 18 years old. He meets a girl, Wilma, who is 13 years old, but she tells him
that she is 16. They drive together to a “lookout point” where Jason fondles her with her
consent. Before they can get much farther, they are caught by a police officer. Jason is
charged with “touching the body of a child under the age of 14, with the intent to
gratify a sexual desire.” Jason claims that he mistakenly believed that she was 16. May
Jason properly claim the defense of mistake of fact?
50. Although he is charged with a specific intent crime, Jason’s mistake does not negate the
particular mens rea of “intent to gratify a sexual desire.” In fact, that was his conscious purpose.
Jason’s mistake involves the actus reus portion of the crime, “touching the body of a child under
the age of 14.” Thus, Jason’s mistake does not defeat the specific intent of this specific intent
crime. In this case, a court would probably apply the rules of mistake applicable to general intent
crimes. The general rule with regard to general intent crimes is that the mistake must have been
reasonable, and that the act must have been either legally or morally right (depending on the
jurisdiction) if the facts were as the defendant believed them to be. Depending on Wilma’s
physical appearance and maturity, Jason may have been reasonable in his belief that she was 16,
especially given the fact that she told him so. However, there may be a local statute in Jason’s
area which forbids any adult to have any sexual relations with a minor, so it may be both legally
and morally wrong.
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51. Assume the same facts as in question 50, except that Jason and Wilma went as far as
to have vaginal sexual intercourse. Also, assume in Jason’s state that there is a statutory
rape statute which makes it a crime for any person to have “vaginal sexual intercourse
with a child under the age of 14” if the person is more than four years older than the
child. What difference would this make?
51. As the law of statutory rape has been defined in the question, it does not contain an express
mens rea element. Thus, it appears to be a strict liability crime. The rule for mistake of fact of a
strict liability crime is straightforward - no defense.
52. Frank lives in Nevada where he has a hunting license. However, he does not have a
California hunting license. He has heard of a joint agreement between Nevada and
California, but does not know if it is still in effect. Upon arriving in California to go
hunting, Frank asks a local Fish and Wildlife Patrol Officer at the hunting grounds
whether his Nevada hunting license is also good in California. The Officer replies, “It
certainly is.” Frank shoots a deer, but is stopped by another patrol officer on his way
out of the mountains with the deer. Frank is charged with poaching, which in California
is defined as “unlawfully taking wild game from the wild.” It turns out that Nevada
hunting licenses are not good in California, but they were several years ago under a
statute that was repealed last season. May Frank properly assert the defense that he
reasonably relied on the first patrol officer and thus should be acquitted? May he
properly assert that he reasonably relied on the presence of the former statute?
52. In general, ignorance of the law is not a defense to any crime. Persons are conclusively
presumed to know what the law is. However, an exception exists if a person reasonably relies on
an official interpretation of the law by a public officer in charge of its enforcement, if the
interpretation comes in an official way. An informal interpretation of the law will not suffice.
Here, the patrol officer is the public officer in charge of the enforcement of the law. However, the
interpretation of the law given by the officer was informal. Had Frank asked for a written
opinion from the Fish and Wildlife service itself, rather than one of the officers at the scene, he
could have reasonably relied on it. Another exception exists if the person reasonably relied on a
statute that was later declared to be invalid. Here, the statute was repealed (not declared invalid),
and furthermore it did not happen after Frank went hunting. Thus, Frank is out of luck.
53. Jack wants to run for city council. A local statute makes it illegal for any person to
make or accept a campaign contribution in excess of $20.00. Jack has hired an attorney
to advise him about his campaign. When a supporter donates a used car to Jack’s
campaign, Jack asks his attorney whether that breaks the campaign contribution law.
Jack’s attorney advises him that since the statute refers to a dollar amount, it only
pertains to cash contributions, and not contributions of personal property. Jack accepts
the donation and uses it for his campaign team as a “business car.” Jack is later charged
with the violation of the campaign contribution law. The prosecution’s argument, with
which the judge agrees, is that the law applies to the value of personal property as well.
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Jack asserts the defense of reasonable interpretation of the statute, claiming that any
reasonable person could be confused as to its construction. He also asserts that it did
not provide fair notice (under the Lambert principle) of its applicability to personal
property. He also claims that he reasonably relied on his attorney’s advice. What are
Jack’s chances of success?
53. A person is not excused for committing a crime if he relies upon his own interpretation of the
law, even if a reasonable person would have misunderstood the law. The “fair notice” exception
is inapplicable here because the person must have been unaware of the statute. Additionally, the
fair notice doctrine (or Lambert principle) only narrowly applies to cases where the statute
punished an omission, based on the status of the defendant rather than his actions, and it was
malum prohibitum. Although the statute in question is malum prohibitum, Jack was actually
aware of it, and it regulated actions, not omissions based on status. Lastly, even Jack’s attorney
misunderstood the law. But Jack’s attorney is not a person in charge of providing official
interpretation of laws. Thus, Jack’s reliance on his attorney’s advice is not relevant in this strict
liability crime.
54. Janet had a history of drug use. In her state, possession of less than one ounce of
marijuana is a misdemeanor, and possession of more than one ounce is a felony. She
once was convicted of felony possession of marijuana, but released on probation
without serving time. Years later, she was charged violation of a statute which made it a
crime for “a convicted felon to knowingly possess a handgun.” At her trial, she asserted
that she did not know that she was a felon, because she actually believed that her prior
conviction was for a misdemeanor because she was just given probation, and she didn’t
actually understand the legal distinction between the two. Will her defense be
successful?
54. No. She is charged with a specific intent crime. The general rule on mistake of law with
regard to specific intent crimes is that the person must have been actually mistaken about the
law. It does not matter whether such belief was reasonable or unreasonable, because an actual
mistake can defeat the specific intent of a specific intent crime. However, the mistake has to be
relevant to the specific intent in order to negate it. Here, the specific intent is “knowingly
possessing” a handgun. Thus, the specific intent required is that the person knew that they
possessed a handgun. The crime does not require any particular mental state with regard to the
attendant circumstance of being a convicted felon. Thus, her mistake of an attendant
circumstance can not defeat the mens rea for this crime.
55. True or False: Mistake of law is not a defense to a strict liability crime.
55. False. Certain mistakes of law are defenses to a strict liability crime. They include the
previously mentioned reasonable reliance exceptions. However, mistake of law is not a defense to
a strict liability crime to the extent that it attempts to negate the mens rea of the crime, because a
strict liability crime has no mens rea. For example, if Darla remarries after what she believes is a
legal divorce, she may not claim mistake of law if it turns out that her prior divorce was invalid
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because bigamy is a strict liability offense and has no mens rea. However, if the state passed a
statute abolishing the crime of bigamy, and Darla remarried in reasonable reliance on the statute,
she may claim the mistake of law defense even though the crime is one of strict liability.
56. What are the utilitarian arguments and the retributivist arguments for allowing the
defense of insanity?
56. a. Utilitarian rationale
1). no specific deterrence of insane person because they can not see cause and effect relationship
between their actions and the punishment.
2). insanity results in civil commitment, separating ∆ from society, so there is no need to
stigmatize them to achieve the separation.
3). rehabilitation of insane ∆ is not possible in a prison.
b. Retributivist rationale
1). insane person lacks “free will” capacity to make correct choices.
2). without “free will” there can be no moral blame.
57. Carol drove drunk and had an accident where she killed the driver of another car.
Carol sustained head injuries that made her unable to reason clearly, or to speak clearly.
In fact, she was unable to answer anything but yes or no questions. When asked if she
remembered how she was injured, she replied “no.” Her doctors say that with therapy,
she may be able to regain meaningful communication functions in about six months,
and the ability to reason properly in about 12 months. However, the doctors predict that
she will never remember how or why the accident happened. May Carol be prosecuted
for the homicide? If not now, when?
57. Not until she is competent to stand trial. A person may not be tried or sentenced if, during
the criminal proceedings, she lacks the capacity to consult with her attorney “with a reasonable
degree of rational understanding” or lacks a “rational as well as factual understanding of the
proceedings” against her. A finding of incompetency results in the commitment to a mental
facility for a reasonable period of time necessary to determine whether there is a substantial
probability that she will attain capacity to stand trial in the near future. Here, Carol is unable to
consult with her attorney properly because of her inability to reason properly. In six months, she
may be able to reason, but her inability to answer anything other than a yes or no question also
probably prohibits her from communicating meaningfully with her attorney. After 12 months,
she will regain her ability to reason, but will still be unable to remember how the homicide
happened. The issue is whether this will prevent her prosecution. Even though she actually does
not remember the accident, that does not mean that she can not have a “rational as well as
factual understanding of the proceedings.” She can be shown the concrete evidence to convince
her that she actually did commit the crime. And even if she never actually believes that she did
commit the crime, her understanding of the proceedings will not be impaired. Thus, she will
stand trial in a year.
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58. Assume these facts are true: John Hinkley was obsessed over many years with a
famous actress, and was convinced that he could impress her that his love was true if he
were to kill President Reagan. Hinkley shot President Reagan. Several psychiatrists
analyzed Hinkley and made the following findings (assume that the jury believes each
of these findings): At the time of the shooting, 1. Hinkley was aware that shooting
people is against the law; 2. Hinkley was aware that most people think that shooting
people is morally wrong; 3. Hinkley nevertheless believed that killing the president was
a proper way to get the attention of a movie actress; and 4. in any event, Hinkley felt
compelled to kill the president because of his love for the actress. How would this case
be treated in a 1. M’Naghten jurisdiction, 2. Irresistible impulse jurisdiction, 3. ALI
(Model Penal Code) jurisdiction, and 4. a federal jurisdiction?
58. 1. Under the M’Naghten test, a person is not guilty by reason of insanity (NGBI) if, at the
time of the act, due to defect of reason from disease of mind the actor did not “know” the “nature
and quality” of the act, or did not “know” that what he was doing was “wrong.” Hinkley clearly
knew the nature and quality of his action. He knew that he was shooting the President. As to
whether he knew it was wrong, some jurisdictions define “wrong” as “moral wrong,” and others
as a “legal wrong.” In those that follow the legal wrong standard, Hinkley would be sane because
he knew has action was illegal. In those that follow the moral wrong version, the moral wrong
can be further alternatively defined by either a subjective or an objective standard. A subjective
standard is only concerned with whether the defendant thought his conduct was immoral, an
objective standard asks whether the defendant knew that society would think his conduct to be
immoral. Hinkley personally believed that killing the President was “a proper way to get the
attention of a movie actress.” So it is likely that he personally thought that it was not immoral.
Thus, in a subjective moral wrong jurisdiction, Hinkley would be insane because he did not
know his actions were wrong. However, Hinkley knew that society thinks shooting people is
wrong. Thus, in an objective moral wrong jurisdiction, Hinkley would not be insane because he
did know his actions were wrong.
2. Most jurisdictions that apply the M’Naghten test also apply the irresistible impulse test.
According to this test, a person is legally insane if at the time of the act he “acted from an
irresistible and uncontrollable impulse” that caused him to lose the power to choose between
right and wrong. Hinkley felt “compelled” to shoot the president because of his love for the
actress. Assuming that this “compulsion” would be sufficiently “irresistible and
uncontrollable,” (which seems to mean total incapacity to resist) there still remains the question
of whether it was an “impulse,” since the word “impulse” connotes a certain spontaneity.
Hinkley was obsessed for years. His decision to kill the President did not come impulsively.
Thus, narrowly applied, Hinkley fails the irresistible impulse test because his act was neither
“irresistible” nor an “impulse.”
3. In an ALI (Model Penal Code) jurisdiction, the test is a reformulation of the M’Naghten test
that takes into account degrees of insanity (“substantial capacity to”), affective knowledge
(“appreciate the wrongfullness of his conduct”), and volitional incapacity (“or to conform his
conduct to the requirements of the law”). Hinkley knew his conduct was illegal, and he knew
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that society thought it was wrong. However, since he personally thought it was proper he may
have lacked “substantial capacity to appreciate the wrongfulness of his conduct,” but not if the
test were purely an objective societal “wrongfulness” standard. As to the volitional prong,
there is also doubt as to whether his compulsion prevented him from conforming his conduct to
the law. (Note that the jury in the real case applied this test to acquit him).
4. Under the Federal Test, a person is insane if he proves by “clear and convincing evidence”
that as a result of a “severe” mental disease or defect he was unable to appreciate the nature and
quality of his conduct or the wrongfulness of his conduct. Hinkley did not appear to have a
“severe” mental disease. However, assuming that he did, he could appreciate the nature and
quality of his conduct, as was stated before with reference to the M’Naghten test. The
wrongfulness prong would be similar to that of the ALI test. However the lack of the words
“substantial capacity” tend to make the test more strict, requiring that the person be almost
totally without the capacity to appreciate the wrongfulness. It is likely that Hinkley was not so
incapacitated given that he could still understand that society knew his actions to be wrong.
59. Suppose that Hinkley were tried in a California Court before 1980 and were charged
with assault with intent to commit murder. Even if he failed the M’Naghten test, and
therefore was legally sane, what other defense may have been available to him? How
would it be different than the defense of insanity?
59. The defense of diminished capacity may have been available. There are two variants of
diminished capacity: 1) the mens rea version, and 2) the “partial responsibility version. The
mens rea version is similar to all other failure of proof defenses in that it seeks to disprove that
the defendant had the required mens rea for the crime. Under this variant, the defendant is
allowed to introduce evidence of a mental illness or condition, not amounting to insanity, to
demonstrate that he lacked the required mens rea for the crime and thus should be acquitted.
Some states limit this only to specific intent crimes, or even only murder, so that there is a lesser
included offense to fall back on should the defense be successful. Under the partial responsibility
variant, which is limited to murder, the defendant may have his conviction reduced to
manslaughter if the court uses such a strained definition of malice that they conclude that he
could not have formed the requisite intent and thus should be convicted of the lesser crime.
However, this is really a “back-door” way to allow moral culpability to be assigned according to
the level of mental capacity. In either variant, Hinkley could introduce evidence that although he
was not legally insane under the M’Naghten test, that he had a mental condition that prevented
him from being able to have the requisite specific intent for the attempted murder. This differs
from insanity in two ways. First, it is a failure of proof defense, not a true defense, thus the
burden of proof is on the prosecution to prove the mens rea in spite of the evidence of diminished
capacity, whereas it is on the defense to prove insanity. Second, because it is a failure of proof
defense, the successful defendant is acquitted for diminished capacity which may result in the
defendant’s freedom, whereas the successful insanity defendant is found not guilty by reason of
insanity which results in commitment.
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