EXAM NOTES:
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Can Bring Anything You Want
Issue Spotter for Sure
Either 2 Shorter Ones or one longer one and a policy question
Spot the issue, argue both sides, conclusory statements without analysis will not earn
you many points
Be thorough – discuss all possible charges
o Some might be stronger than others
o Discuss Affirmative Defenses if Applicable
Don’t study the entire MPC; but the parts we did cover you are responsible for
Please watch and follow the time suggestions
Mention Case Names!!
How to deal with case-law across jurisdictions if conflicting
Discuss the discrepancy
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Crimilization
 Factors
o Harm
o Moral values of society
 Standard
o In re Winship
 I: DPC of the Constitution requires the prosecutor to persuade the factfinder
“beyond a reasonable doubt of every fact necessary to constitute the crime
charged.”
 R: “It is far worse to convict an innocent man than to let a guilty man go free.”
The standard for reasonable doubt requires a jurors mind to be in a “subjective
state of near certitude.”
 Purposes of Punishment
o Utilitarianism: 3 prongs
 Deterrence:
 Specific Deterrence: Deter the individual from committing another
crime so that the penalty outweighs the benefits of the crime in the
defendants head
o People v. Du
 I: Whether a defendant is a good candidate for
probation depends on a number of factors, including
whether the act was committed under great provocation,
whether the carrying out of the crime suggested
criminal sophistication, and whether there were other
unusual circumstances involved
 R: Seven objectives of sentencing which must be
evaluated:
 Protection of society
 Punishing the defendant for committing a crime
 Encouraging the defendant to lead a law-abiding
life
 Deterring others
 Isolating the defendant so she can’t commit
other crimes
 Securing restitution for the victim
 Seeking uniformity in sentencing
o United States v. Jackson
 I:
 R: J. Posner, concurring, argued there was no additional
general deterrent value by sentencing a convict to life
instead of fifteen or thirty years. Those not deterred by
such a lengthy sentence for armed robbery are unlikely
to be deterred by life in prison.
 General Deterrence: Deter the population as a whole from committing
the crime
o Queen v. Dudley & Stephens: Cannibalism on the high seas
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I: Begs the question of whether what the defendants did
really
 Incapacitation: Convict is physically unable to commit crime because they’re
locked up
 Rehabilitation: Remedy the reasons why the convict committed the crime
o Retributivism
 Defendant is punished simply because he deserves it
 Negative retribution states it is morally wrong to punish an innocent
person even if society would benefit
 Positive retribution argues that not only must an innocent person never
be punished, but affirmatively, that one who is guilty of an offense
must be punished
o Denunciation (Expressive Theory)
 Punishment is justified as a means of expressing society’s condemnation of
the crime
 Utilitarian components
 Educates defendant that the conduct was improper
 Channels anger away from person vengeance
 Maintain social cohesion
 Retributive components
 Stigmatizes defendant
o Restorative justice doctrine
 Sees crime done as against the people
 Victims become actively involved in resolving conflict
 Does not primarily feature incarceration
 Often only available in non-violent cases in which both victim and offender
consent
Two elements of a crime
o Actus reus (act)
 Defined
 The comprehensive notion of act, harm and its connecting link,
causation, with actus expressing the voluntary physical movement in
the sense of conduct and reus expressing the fact that this conduct
results in a certain proscribed harm, i.e. that it “causes” an injury to the
legal interest protected in that crime
 MPC Sec. 2.01: Requirement of Voluntary Act (p. 993)
 (1): “A person is not guilty of an offense unless his liability is based on
conduct which includes a voluntary act or the omission to perform an
act of which he is physically capable”
 Involuntary acts include things such as reflexes, convulsions, conduct
during unconsciousness, sleep, or due to hypnosis, or any act which is
not a product of the effort or determination of the defendant
 Must be voluntary
 Martin v. State: You drunk? Step over to this public highway…
o I: No crime where the defendant did not voluntarily engage in
the crime
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o R: Defendant was drunk in his home, taken by the police onto a
public highway and arrested for public drunkenness. Court
implied voluntaryness which the court then applied.
 State v. Utter: WWII Father, Drunk & Conditioned Response Defense
o I: Putting oneself voluntarily into a state of lesser control over
ones actions (i.e. getting drunk or high) represents sufficient
voluntariness for a crime
o R: There is a mental element of the actus reus, that of volition,
and should this “willful” nature of the crime be lacking, there is
insufficient evidence of a crime
Failure to perform a legal duty can also be a crime
 Must be a legal duty to act and not just a moral duty
 People v. Beardsley: Mistress loves morphine
o I: A moral duty is not sufficient to create a legal duty to assist
another; there must be a legally recognized status relationship
between the two in order for there to be a legal duty to assist
o R: If we were trying to find criminal liability here, our best bet
is the 5th requirement in the Jones case, below
 Jones v. United States
o Four requirements
 Statute which imposes a legal duty
 Status relationship between the parties (i.e. husband and
wife)
 Contractual duty to care for another
 Voluntary care and seclusion (i.e. putting a person in
danger)
 Creation of risk of harm to another
 Debate over good samaritan laws
o Pro
 We should help our fellow man – visa-vie Kitty
Genovese
 Debunk liberty issue – help required could be as simple
as calling the police
o Con
 Difficult to prosecute
 Liberty issue – we don’t like to tell people what to do
o Kitty Genovese case
Omissions
 Barber v. Superior Court: Removal of life support
o I: A physician has no duty to continue treatment once it has
proved to be ineffective. Instead, only proportionate treatment
is required – that which at least has a reasonable chance of
providing benefits to the patient, benefits which outweigh the
burdens attendant to the treatment.
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o R: Life support measures are “heroic” acts, not affirmative
acts, and removal of them is not a crime but simply an
omission of further treatment
o Mens rea (guilty state of mind)
 Defined
 United States v. Cordoba-Hincapie
o I: Mens rea refers to a “guilty mind; a guilty or wrongful
purpose; a criminal intent.” In fact, “an act does not make [the
doer of it] guilty, unless the mind be guilty.”
 Generally, it can be satisfied by any morally blameworthy state of
mind
 State must prove this at time of the act
 MPC Sec. 2.02: General Requirements of Culpability
o “Except as provided in Section 2.05, a person is not guilty of
an offense unless he acted purposefully, knowingly, recklessly,
or negligently, as the law may require, with respect to each
material elements of the offense.”
o Multiple levels
 Purposeful behavior (hopes, believes the result will
occur or is virtually certain it will occur), or aware of
harm (knowingly, practically certain harm will result)
(note - technically two levels but are often lumped
together, especially in our cases)
 People v. Conley
o I: State has burden of proving that
defendant either had a “conscious
objective” to achieve the harm defined,
or that the defendant was “consciously
aware” that the harm defined was
“practically certain to be caused by his
conduct.” Also, intent can be inferred
from the surrounding circumstances.
 Sandstrom v. Montana: TAKE-AWAY
UNCONSTITUTIONAL
o I: “The law presumes that a person
intends the ordinary consequences of his
voluntary acts.”
o R: Quote violates due process since it
removes the presumption of innocence
and relieves the government of its
burden of proof, forcing the defendant to
disprove a presumption against him
 State v. Nations
o I: Statute required defendant
“knowingly” encouraged child “less than
seventeen years old” to engage in
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conduct tending to injure the child’s
welfare
Reckless behavior (conscious disregard of substantial
and unjustifiable risk)
Negligent behavior (without knowledge result will
occur but which they should have known)
 Standard – reasonable person in that situation
 Regina v. Cunningham: Removing pipe
o I: Negligence is grounds for fulfillment
of the mens rea requirement
o R: Jury should have been told that even
if he didn’t intend to hurt his mother-inlaw he should have foresaw that
removing the piece of the gas pipe
would probably harm someone by
causing a gas leak
Recklessness vs. negligence
 While negligence introduces only an objective
reason of fault (should have known),
recklessness introduces an additional level of
fault, the subjective one, in that the
defendant was aware of the risk they were
creating
Transferred intent
 Law will automatically transfer intent to kill if a third party, instead of
the targeted party, is killed
Criminal Process
 Jury selection
o Peremptory strikes
o Strikes for cause
o Number
 Williams v. Florida (Lexis outline)
 I: Jury composed of as few as six persons is constitutional
 Opening arguments of prosecution
 (Optional) Opening arguments of defense
 Prosecution presents evidence
 (Optional) Defense move for directed verdict
 Defense presentation of evidence
 Closing arguments of defense
 Closing arguments of prosecution (order may vary)
 Jury instructions
 Jury deliberation
 Decision (or hung jury)
o Most jurisdictions a unanimous jury is required
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o But constitutionally, only a super majority is required (lowest that has been upheld is
9-3)
 Regarding a mistrial, the prosecution decides whether or not to re-bring charges again
 If jury comes back with not guilty, the defendant goes home
 If he’s found guilty, sentencing then follows
o PO may be involved in sentencing, giving recommendations to the judge
 Incentive to tell all to PO: Remorse shown may be considered by judge
 Incentive to not tell all to PO: May lead to admission of things, ruin appeals
o Mandatory minimum sentence may come into play
 These reduce the elasticity away from the judicial system
 Decision can be appealed based on legal errors made at trial
 Serve sentence
o Parol may be given to convicts, if so granted by parol board
Substantive Crimes
 Rape
o Elements
 Sexual intercourse and/or penetration
 Force or threat of force
 Without consent (defendant either must have known; a should have known
standard is not sufficient)
 Against the will of the victim
o MPC Sect. 213
 Grades offenses of rape based on issues such as presence or absence of injury,
prior relationship, parties knowing each other, etc
o Rape Shield Laws
 Prevent introduction about victims sexual history
 Exceptions based on Defendants 6th Amendment right to confront the
witnesses against him
o Force, and Resistance, Required: The Cases
 State v. Alston: Abusive relationship
 I: Absent evidence the defendant used force or threats to overcome
the will of the victim to resist the sexual intercourse alleged to have
been rape, a general fear was not sufficient to show that the
defendant used the force required to support a conviction of rape
 Rusk v. State/ State v. Rusk: State statute requires show of resistance
 I: Light choking, absent more, were not sufficient cause of
reasonable fear which overcame defendant’s ability to resist. In
the absence of more, there was insufficient evidence to convict of
rape
 Commonwealth v. Berkowitz
 I: Lack of forced compulsion may be grounds for dismissal of rape
case
 R: Government must prove the requisite mens rea of the offender
o Coker v. Georgia (Lexis outline)
 I: Capital punishment is grossly disproportional punishment for the crime of
rape of an adult woman
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Larceny: (See Chart)
o Defined
 Lee v. State
 I: The trespassery taking and carrying away of personal property of
another with intent to steal the same
o Brooks v. State: Look at these here bundle of bills, partner
 I: If person finds lost property and appropriates it for his own use, believing
the owner can be found, this is considered larceny
 R: Court noted there is not a set amount of diligence necessary to find the
owner of the property; rather it is determined by the circumstances and the
necessity simply to deal honestly with the property in his attempts to find the
owner
o People v. Davis: Of course I bought this shirt. Give me a refund, now.
 I: Permanent deprivation of property requirement is not to be taken literally
but liberally construed. With this in mind, the six elements of larceny are:
 Taking possession
 of personal property
 owned or possessed by another
 by means of trespass and
 with intent to steal the property, and
 carrying the property away
 R: If intent is to sell property back to owner or to claim a reward for finding
the property or to return stolen property for a refund, it is still larceny, since
effectively you’re denying someone of their property (i.e. money). The
defendant’s argument focuses on the wrong issue of consent and views that
issue in artificial isolation from the intent to steal – which is still present
Theft and other related property crimes
o Larceny by trick
 Involves use of deceit
 False pretenses
o Robbery
 Defined
 Larceny plus assault
 Exception
 Does not include pick-pocketing
o Extortion
 Defined
 Larceny plus a threat of future harm
o Burglary
 Defined
 Breaking and entering with intent to commit a felony
Homicide
o MPC Sec. 210
 Murder, manslaughter, negligent homicide
o Check out the Chart when you’re looking at homicide
 Always start by figuring out whether its intentional or unintentional
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o Levels of Homicide
 Involuntary Manslaughter
 Unintentional killing of a human being without malice, either in a
grossly negligent way, or a reckless way
o Negligence subtype is referred to as “involuntary manslaughter
of the gross negligence variety”
o Reckless subtype referred to as “murder of the depraved-heart
variety”
 A lesser included for second degree murder under an extreme
recklessness theory
 State v. Hernandez: I loves drinkin’ – look at my bumper stickers
o I: Evidence may be rightfully denied admission if it does not
bear on any point of the charge and if it consists of character
testimony the defendant did not first introduce
o R: Dissenting judge, analogizing to the MPC, argued at least
three of the bumper stickers were relevant since they bore on
defendant’s perceptions
 State v. Williams: You have to provide medical care for a baby?
o I: Homicide charged under a negligence standard, either simple
or gross, invokes an objective standard of “ordinary caution”
for whether a given defendant’s action or inaction proximately
caused the death of the victim
o R: Court applied state statute which required only
ordinary/simply negligence be proven
 Berry v. Superior Court
o I: Facts bear out a depraved-heart murder – see below for rule
 People v. Nieto Benitez
o I: Reckless or depraved-heart murder occurs when “a person
does an act, the natural consequences of which are dangerous
to life, which act was deliberately performed by a person who
knows that his conduct endangers the life of another and who
acts with conscious disregard for life.”
 Voluntary Manslaughter
 Intentional killing of a human being without malice but with adequate
provocation and/or in the heat of passion with no cooling off period
 A lesser included offense of second degree murder under an intent to
kill and/or seriously injure theory
 Mistaken belief that someone must kill in self defense
 Girouard v. State: Husband/wife military fight
o I: Words alone, absent conduct indicating a present intention
and ability to cause serious bodily harm, are not adequate
provocation. Provocation must be calculated to inflame the
passion of a reasonable man.
o R: Requirements to carry the burden on rule of provocation are:
 Must be adequate provocation
 The killing must have been in the heat of passion
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It must have been a sudden heat of passion --- that is,
the killing must have followed the provocation before
there had been a reasonable opportunity for the passion
to cool
 There must have been a casual connection between
the provocation, the passion, and the final act
Second Degree Murder
 Defined as an intentional killing with malice but without premeditation
and deliberation, or an unintentional killing with evidence of a
depraved heart or extreme recklessness
 Intentional
o As opposed to first degree intentional murder, lacks
premeditation and deliberation
 Note there can be premeditation without deliberation,
but there can’t be deliberation without premeditation
o Midgett v. State: Beating your child can kill them
 I: First-degree murder cannot be found without
premeditation and deliberation, no matter how heinous
the crime may otherwise be. Lacking these requisites,
the charge rightfully becomes second degree murder
 Unintentional
o Result of unjustified risk-taking, for instance
 Depraved-heart murder
 Extreme recklessness (law implies malice here)
o Berry v. Superior Court: Dog case
 I:
 R: Malice must be present at some point – even after
the act.
First Degree Murder
 Defined
o Unlawful killing of a human being with malice, premeditation
and deliberation (State v. Forrest)
o Premeditated murder
 State v. Schrader: Fifty-one stab wounds at the gun
shop is never self defense
 I: There is no pre-set amount of time which
premeditation or deliberation must exist in order
for first-degree murder requirements to be met.
The intent can be formed in an instant before the
killing, or at any time previously.
 R: Court rejects defendants attempt to redefine
the meaning of premeditation or deliberation,
noting the current rule has been in effect for
some time, was upheld before, and in any case
is as a correct statement of the law as any other
 King v. Commonwealth
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I: “No time is too short for a wicked man to
frame in his mind a scheme for murder, and to
contrive the means of accomplishing it.”
 State v. Forrest: Mercy killing in hospital
 I: Several factors to consider in determining
whether a killing was premeditated
o Whether there was provocation
o The conduct or statements of the
defendant before or after the killing
o Threats and declarations of the
defendant before and after the
occurrence giving rise to the death
o Bad blood between the victim and the
defendant
o The dealing of lethal blows after the
victim had already been rendered
harmless
o Whether the killing was brutal
 R: Court noted in the case that malice is an
essential element of first degree murder, but
doesn’t address it at all (and indeed it seems to
be absent – it was seemingly a mercy killing)
Felony Murder
o Defined
 Death resulting during the commission or attempted
commission of an enumerated felony
o Intent to kill is not necessary
o Policy debate
 Roth: A Doctrine at Constitutional Crossroads
 Four rationalizations for FM
o Deterrence
o Transferred intent
o Retribution
o General culpability
 Crump: Defense of FM Doctrine
 Punishing according to result is OK – its done
with attempts which were interrupted or
otherwise frustrated
 FM reveals our value in human life
 FM results in deterrence
 FM promotes efficient use of judicial resources
o People v. Fuller: Burglar’s car accident kills innocent
 I: Applied felony murder rule, upholding it
 R: Court was clearly bothered by the application of the
rule, as the felons should no intent to otherwise use
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violence, but felt compelled by precedent as well as the
clear meaning of the statute
o State v. Sophophone: Police officer kills accomplice
 I: Agency rule states the felony murder rule does not
apply if the person who directly causes the death is a
non-felon (i.e. not one of the persons involved in the
commission of the crime)
 R: Court points out that crime statutes are to be strictly
construed
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Death Penalty
 MPC Sec. 210.2
 (a) seems to be very similar to first degree murder, often called
premeditated murder at common law
 (b)(1) seems to be second degree, unintentional murder
 (b)(2) seems to be similar to felony murder
 MPC 210.3
 (1)(a) and (1)(b)
o seems to be voluntary manslaughter
 (2) seems to be involuntary manslaughter
 The Death Penalty Debate
 Pro
o Retribution
o Deterrence
 Specific
 General
o Closure for victim’s family
o Moral/value judgment on life of defendant
o Incapacitation
 Con
o Immoral to kill anyone – all human life is sacred
o Execution more expensive than life without parole
o Methods of execution flawed – often result in cruel and
unusual punishment
o No real deterrent effect - more punitive than anything
o Doesn’t really bring closure
o Applied unfairly, perhaps arbitrarily and capriciously
 Furman v. Georgia
 I: Death penalty as applied was held unconstitutional since “juries had
unfettered discretion in determining who would be executed” and
because this created a risk that “the death penalty was being imposed
arbitrarily, capriciously, or in a discriminatory manner.”
 Gregg v. Georgia
 I: Established/approved bifurcated trial, whereby guilt is established in
the first phase and the sentence in the second. In the second phase, the
jury must take into account mitigating or aggravating factors. Though
the factors themselves are decided upon a reasonable doubt standard,
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the jury may still not imposed the death penalty if they so choose.
However, in order to find for the death penalty, there has to be at least
one aggravating circumstance.
 R: Court takes into account contemporary societal values as being
important but not dispositive regarding the death penalty, and in any
case find sufficient evidence of a pro-death penalty value with the
passage of a new death penalty statute by 35 states after the Furman
decision. Insofar as the 8th and 14th Amendments, the death penalty
itself is not violative of them.
Kansas v. Marsh
 I: If a jury finds an equal number of aggravating and mitigating
factors, they can still find for death; all the jury must do, holistically, is
to find that the mitigating circumstances do not outweigh the
aggravating circumstances
Ring v. Arizona
 I: Juries, not judges must make the decision, whether there are
aggravating factors and whether they outweigh mitigating factors
Atkins v. Virginia
 I: Mentally retarded are ineligible for capital punishment – it is cruel
and unusual punishment
Roper v. Simmons
 I: Juveniles cannot be executed for their crimes committed as juveniles
Woodson v. North Carolina
 I: Supreme Court overturned a state law which required the death
penalty be executed for 1st degree murder cases
McCleskey v. Kemp
 I: First, with regard to the EPC claim, defendant must prove
intentional discrimination against himself in order for his equal
protection clause regarding the death penalty to carry. With regard to
the 8th Amendment claim, there is a constitutionally acceptable risk of
error which was not surpassed in this case.
Inchoate Crimes
 Defined
o Crimes of attempt
 Why punish attempts?
o Prevention
o Police have more incentive to stop something before it happens
o Mens rea already present
o Some acts already taken towards the completion of the crime
 MPC Sec. 5.01 (pg. 1017)
o Punishes attempts the same as the actual crime, but most states punish them less
o (11) Defined
 “A person is guilty of an attempt to commit a crime if, acting with the kind of
culpability otherwise required for commission of the crime, he . . .
purposefully does or omits to do anything which, under the circumstances as
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he believes them to be, is an act or omission constituting a substantial step in a
course of conduct planned to culminate in his commission of that crime.”
o (2) Factors which constitute a “substantial step” (paraphrased)
 Lying in wait
 Enticing or seeking to entice the contemplated victim of the crime to the place
contemplated for its commission
 Casing the area
 Unlawful entry to a place where the defendant plans to commit the crime
 Possession of materials for the defendants plans to use for the crime, if those
materials have no other legal use
 Possession of the materials the defendant plans to use for the crime, where
those materials might have normal use but not under the circumstances in
which the defendant was apprehended by police
 Soliciting the innocent to engage in the crime
Note criminal attempt involves two intents
o Intent to commit acts that constitute the attempt (mens rea)
o The intent to commit the underlying crime (actus reus)
Two types of attempts
o Complete attempts
o Incomplete attempts
 Actor does some of the preparation for, and along the way towards, the
completed times, but either stops, or is prevented from completing the act
 They don’t actually do an act at all – they either change their minds or are
interrupted
People v. Gentry
o I: Government must prove specific intent to kill; that is to say, they must prove the
same mental state they must prove for the completed crime. Thus, in order to be
charged with attempted murder, you have to have the specific attempt to kill them.
Phrased another way, you have to have intend to do the attempt first of all, and
second of all, you must intend the completed act which was not completed.
o R: Note that, on the other hand, specific intent to kill isn’t necessary for the charge of
actual murder.
Actus Reus Part of Attempt
o Must be an act that constitutes a substantial step towards the completion of the crime
o Commonwealth v. Peaslee: Set this place abla-wait, no!
 I: Preparation is not sufficient for an attempt charge to carry
 R: “A mere collection and preparation of materials in a room for purpose of
setting fire to them, unaccompanied by any present intent to set the fire, would
be too remote.”
o People v. Rizzo: Pending robbery
 I: In order for an attempt to be a crime “there must be dangerous proximity to
success”
 R: Prof. Davis suggests in cases like these we turn to the MPC and look to the
corroborating factors. Note as well the court relies on fortuity for its holding
– its as if because the robbery never happened, there is questionable attempt.
As the court said “but the opportunity fortunately never came.”
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Complicity
 Defined
o Aiding, assisting, counseling, encouraging or inciting a criminal offense
o Mens rea of accomplice liability may be seen as the “intent to promote or facilitate
the commission of the crime”
 Riley v. State:
 I: Proof of accomplice liability requires proof of the accomplice’s
intent to promote or facilitate another person’s conduct that constitutes
the actus reus of the offense. With regard to the result of that conduct,
the government must prove that the accomplice had whatever culpable
mental state is required for the underlying crime. (Court utilizes the
MPC)
 R: Overturned decision required, in some cases, a more culpable
mental state for the accomplice, which aids the policy rationale of truly
making sure the accomplice is guilty. On the other hand, it is
counterintuitive to require something in the accomplice which is not
required in the principal himself
o Actus reus of the accomplice may be thought of as the party’s actual assistance
 State v. Vaillencourt
 I: Knowledge and mere presence are not enough to constitute the actus
reus of an accomplice; you have to do something to be an accomplice
– solicit, aid, agree to aid, attempt to aid
 Terms
o Principal in the first degree is the one who commits the crime
o Principal in the second degree is an accomplice
o An accessory before the fact gives assistance before the crime without being present
at its commission
o An accessory after the fact gives assistance with knowledge of the principal’s guilty
 MPC Sec. 2.06
 Culpability and punishment is the same for the actual perpetrator and the aider and abettor;
only an accessory after the fact is treated differently
 Both the act and the intent to aid or abet a criminal purpose is necessary
 State v. Hoselton: Barge case
o I: In order for one to be charged with aiding and abetting, the aider/abettor must
“demonstrate that he or she shared the criminal intent of the principal in the first
degree [i.e. those who committed the crime and weren’t just aiders/abettors]”
 Foster
o Case involving girlfriend
Defenses
 Five categories of defenses
o Failure of proof defenses
o Offense modifications
 “While the act has apparently satisfied all elements of the offense charged, he
has not in fact caused the harm or evil sought to be prevented by the statute
defining the offense.”
o Justifications
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“ Harm is outweighed by the need to avoid an even greater harm or to further
a greater societal interest”
o Excuses
 “The defendant is exculpated because her condition at the time of the offense .
. . suggests that she has not acted through a meaningful exercise of free will
and therefore is not an appropriate subject for criminal liability.”
o Nonexculpatory public policy defenses
 “Furthers important societal interests,” i.e. statute of limitations, diplomatic
immunity
Imperfect defense is finding a defendant guilty of a lesser included crime, for failing to prove
some, but not all, of the prongs of self defense
Self Defense
o Defined
 A person may defend himself or others against death or imminent bodily harm
 MPC outlines death, serious bodily injury, forcible rape, or kidnapping
as qualifying crimes
o Touchstone is necessity – you can only take a life if you need to; analysis is thus
very fact specific, and therefore one is never permitted to use deadly force to
repel a non-deadly attack
o MPC Sec. 3.04
 A person is justified in using force upon another person if he believes that
such force is immediately necessary to protect himself against the exercise of
unlawful force by the other on the present occasion
o Standard is what is reasonable under the circumstances as they appear to the
defendant at the time
 Subjectively, person must believe their life was in danger
 State v. Wanrow: Invite the alleged pedophile on over here
o I: “Justification of self-defense is to be evaluated in the light of
all facts and circumstances known to the Defendant, including
those known substantially before the killings.”
o R: Court worries, by only using “he,” statute comes
dangerously close to sex discrimination
 Objectively, belief must be reasonable, as informed by a couple of factors
 Harm must be imminent
 Harm must be necessary
 People v. Goetz: Subway pop-a-cap
o I: Analysis for self defense includes an objective standard, i.e.
questioning the defendant’s belief that deadly force was
necessary was actually reasonable. In addition, a defendant is
entitled to consider the physical movements of the other party,
the physical traits of the other party.
o R: Court analogizes to the MPC, wherein it finds the phrase
“reasonably believes,” which illustrate the existence of the
objective standard.
 Person is excused even if it is a mistaken belief, so long as that belief is
reasonable under the circumstances
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Jury must view circumstances from the standpoint of the accused to
determine whether his actions were reasonable
o Duty to retreat doctrine
 Calls for someone to retreat if it is safe to do so
 Jurisdictionally sensitive – not applicable in the majority of jurisdictions
 However, the non-aggressor need not retreat if he is attacked in his own
dwelling place or within its curtilage
 MPC Exception – when retreat is required
o If defendant was initial aggressor, and wishes to regain his
right of self protection
o Attacked by a co-worker in their place of work
o United States v. Peterson: Murder over windshield wipers
 I: Aggressors cannot normally claim self defense: “It has long been accepted
that one cannot support a claim of self-defense by a self-generated necessity to
kill.” The main exception would be if the aggressor makes clearly known
they are retreating, and with regard to whatever happens after that moment,
they can claim self defense.
 Also, “the law of self-defense is the law of necessity; the right to selfdefense arises only when the necessity begins, and equally ends with
the necessity.”
 In order to justifiably kill another in self-defense, there must have been
a threat, actual or apparent, of the use of deadly force against the
defendant. The threat must have been unlawful and immediate, the
defendant must have believed that he was in imminent danger of death
or imminent bodily harm, and that his response was necessary.
 R: Seemed dispositive, at least implicitly, in this case, that first, the decedent
was withdrawing/retreating, and that the decedent and others were only trying
to steal windshield wipers, and deadly force is never justified in the sole
defense of property.
Battered Women Syndrome
o State v. Norman (I)
 I: The imminencey requirement of the objective prong under BWS is flexible
– and therefore so is the standard for self defense
 R: After finding the subject prong satisfied, with regard to the objective prong
the court said you can’t ask someone with BWS to wait until serious bodily
harm to them is imminent before they are permitted to defend themselves,
since people with BWS feel powerless, and feel as if the person abusing them
is immune from the law and/or social sanction. The women with BWS have
an inability to withdrawal, and therefore the standard for them is more flexible
o State v. Norman (II)
 I: The imminence requirement cannot be discarded, since doing so would
open up self defense to different syndromes
 R: Note that most states concur with this holding – if the threat of force is not
imminent there is no self defense. Note also from my point of view the court
went farther here than it had to in order to decide the case.
Defense of others
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o Defined
 Old common law rule
 Under the “alter-ego” theory, the right to defend another is no greater
than the right of the third person to defend himself
 Current rule
 Reasonable belief theory
o MPC 3.05(1)
 He uses no more force to protect the third-party than he
would be entitled to use in self-protection, based on the
circumstances as he believes them to be;
 Under the circumstances as he believes them to be, the
third party would be justified in using such force in self
defense; and
 He believes that intervention is necessary for the third
party’s protection
o People v. Kurr: You punch my fetus and I’ll kill you!
 I: The defense of others does extend, and extends solely, to the protection of a
fetus, viable or not, from an assault against the mother
 R: Court bases large part of holding on analogizing from state law which
made it a crime for individuals who harm or kill fetuses under various
circumstances
 Defense of Property
o General rule is no use of deadly force to prevent property crimes
o MPC Sec. 3.06 (pg. 1006)
o People v. Ceballos: This here spring gun ought to give those kids what’s coming to
them
 I: Deadly force is not permitted as to property crimes; there must be a
reasonable fear of great bodily harm
 R: Relatedly, see the MPC Sec. 3.06(5)(a), which bans the use of spring guns
in the defense of property
 Defense by force when someone is in his/her home
o Deadly force seems to be required even though imminent threat of serious bodily
injury or death if a person is in their home
 Insanity Defense
o Defined
 Your state of mind at the time of commission of the crime
o Corollary
 Competency to stand trial has to do with your ability to understand the
proceedings in court and assist your defense attorney
o Burden of proof is on the defendant, by a preponderance of the evidence; any higher
evidential standard is a violation of due process
o Charges
 Guilty but mentally ill means you’re criminally responsible but you’re also
mentally ill
o Standard for being found insane are flexible, but the MPC provides some guidance
Police Use of Force
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Tennessee v. Garner
o I: Court held that a law enforcement agent may use deadly force to prevent the escape
of a felon as long as it is necessary to prevent that escape AND if there’s probable
cause to believe that there is a threat of death or serious bodily injury to the officer or
others
o R: Court notes the killing of a suspect effectively circumvents the judicial process and
therefore establishes the rule above.
Policy
 Racial disparity
o Causes
 Socio-economic (education/income)
 Disparity in law enforcement
 Racism
 Discretionary decisions that are made all the way through the criminal process
o Fact: while 13% of drug users are black, over 80% of those incarcerated for drug
possession are black
 State of limitations
o Pro
 Would like the state to be able to move on after a certain amount of time
o Con
 Does a victim’s right to justice ever wane?
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