Criminal Law - Gardner
Spring 2009
1) PRINCIPLES OF CRIMINAL LAW
a) Punishment - purpose is to cause the offender to suffer because of an offense
1. Tort Law - Compensating the victim
2. Criminal Law - Punishment by society
a. Inflicts punitive consequences, to make the person suffer
b. Not to compensate the victim
3. Utilitarianism: if punishment reduces the level of crime, it is justified
a. Deterrence - depends on people being rational
1. General Deterrence: Deterring others from committing the crime
a. Don’t diminish the seriousness of the defense
2. Specific Deterrence: Preventing the criminal from committing the crime again (70% recidivism rate) - frighten
them into acting right
3. High certainty is good, high severity doesn’t help
b. Incapacitation - Remove criminals from society and prevent recidivism
1. Assumption: That if let out, they will commit the crime again.
a. Some offenders must repeatedly commit crime
b. Offenders taken out of society must not be immediately and completely replaced by different offenders
c. Form of incapacitation must not increase the criminal activity of those incapacitated enough to offset
the crimes prevented
2. Social studies -- Factors indicating recidivism (30% accurately)
a. Early criminal history
b. Drug use
c. Unemployment
3. This is not about rehabilitation or deterrence -- just keeping the bad guys in jail
4. How parole board makes decision to parole -- is the person a danger?
c. Rehabilitation - changing the character of the offender
1. Nebraska has indeterminate sentencing
2. Doesn’t generally work -- offender gets a benefit for being locked up
3. Can’t predict or coerce change
d. Denunciation - Just like retribution, but publicly
1. Expresses an important statement about the offense
a. Avoid blood feuds of the past
b. Offers closure by punishing people
c. Must be publicly performed
d. Punishment is to crime as marriage is to sex
e. You need an institution to productively channel an urge
2. “Sex is better if you don’t have it.”
4. Retributivism (not a utilitarian punishment) - not vengeance, but a just desert.
a. Balance social equilibrium / assume burdens of legal order
1. Not everyone enjoys the legal order? Racism, et cetera.
b. Can be achieved by secret punishment
5. Proportionality of Punishment
a. “Excessive bail shall not be imposed, nor cruel and unusual punishment inflicted. Eighth Amendment
b. In order to determine proportionality
1. Gravity of the offense
a. Looks at the harm caused in the abstract
b. Not the purpose of the court to decide how serious a crime is; that is the purpose of the legislature.
2. Sentences imposed in the same jurisdiction for the offense
a. Disproportionately severe
b. Compare Crime X to other crimes
1. More severe crimes, more severe penalties
2. Less severe crimes, less severe penalties
3. Sentences imposed in other jurisdictions for the offense
6. Nulla Poena Sine Lege: The Legality Principle
a. “No punishment without law”
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b.
7.
8.
People have to know what they are doing is wrong
1. If we punish them, we are perverting the law
2. Ex Post Facto - Only applies to punitive matters
c. Common law crimes
1. Vague -- dependant on public perception
2. Not allowed in most states anymore
3. Shaw v. Director of Prosecutions, House of Lords App.Cas. 220 (1962) pp 252
a. Running a “ladies directory”
b. Didn’t know it was illegal, became illegal through common law
Vagueness and Overbreadth
a. Void for vagueness: neither courts nor legislature can enact retroactive laws
b. Vague laws still have to be interpreted by a court - creates the retroactivity problem
c. Due Process Clauses of the 5th and 14th Amendments - can’t be forced to speculate as to the meaning of laws
d. Fair Warning - fiction in a sense, since people don’t know the law anyway
e. Papachristou v. City of Jacksonville, 405 U.S. 156 (1972) pp 260: Ordinance prohibiting “loafers,” etc was too vague
and used as a means of racial harassment - police arrested mixed race couple, cop told B to get out of the car then
arrested him for loitering
f. Supreme Court will strike statutes that are vague and have effect on freedom
1. California statute requiring ”credible and reliable” identification
g. Nebraska - guy in window eating breakfast naked
1. ”Indecent, immodest, or filthy act” is too vague and he was in own house
h. Modern Penal Code loitering provision (Section 250.6)
Statutory Interpretation
a. Keeler v. Superior Court, 470 P.2d 617 (CA 1970) pp 263
1. Man beat almost ex-wife and fetus died; argues it wasn’t a human being
2. Definition of murder: “Unlawful killing of a human being with malice aforethought.”
3. Statutory interpretation
a. Born alive standard doesn’t cover here because baby not born yet
b. Abortion was illegal at this time, no feticide statute in California at the time
c. How do you define human being
1. Breathing
2. Brain activity
3. Medical technology changes
d. Legislature went back and added unborn afterward
1. Did court get it wrong?
2. Did Legislature fix what the court pointed out was wrong?
e. Construe statutes narrowly in favor of defendants in criminal cases
4. Constitutional question
a. Separation of powers
1. Judicial construction not acceptable way to make law
b. Due Process & Notice
1. Even if we way it does include, it can only be prospective
5. Dissent: He is on notice! How can he think this was acceptable?
a. Viability important - wouldn’t have discussed it because the technology wasn’t available at the time.
1. Quickening occurs at end of 1st trimester
2. Killing after quickening = great misprision (misdemeanor)
3. Penalty is death
4. Same punishment for both crimes; how can we say it’s not murder
b. What if baby had been born alive and then dies from injuries? No more notice than Keeler had, but it
would be murder. Chavez case.
1. Chavez: if child is in the process of being born, it’s murder
c. Chavez case gives enough notice that it’s unclear and might be murder because law is unsettled.
6. Bouie v. City of Columbia, 378 U.S. 347 (1964) pp 267 - no notice as to trespassing (staying after being asked
to leave) (segregated lunchcounter)
a. Perhaps Bouie was praiseworthy while Keeler was immoral
b. Statute in Bouie was overbroad -- interferes in normal activities
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c. Statute in Bouie was vague - did not provide notice
Discussion of a “crime against nature” (identified specifically in TN Rose v. Locke)
1. Copulation with an animal, forced oral sex, et cetera
2. Man in TN engaged in forced cunnilingus
3. Even though particular crime isn’t specified and the statute is vague
c. Johnson v. Florida, 602 So.2d 1288 (1992) pp 274
1. Distribution of a controlled substance to a minor during 30-90 seconds at the time of delivery before the
umbilical cord is cut
2. Court refused to uphold conviction because she wasn’t on notice and it was contrary to public policy (she
wouldn’t get treatment and more abortions)
d. Lawrence Case
1. Homosexual sodomy
2. Two constitutional grounds – Majority relies on substantive due process
“Life, liberty, and property” in the due process clause
3. Extension of the word liberty – “private actions between consenting adults involving sexual intimacies are
protected”
4. Can read: statutes justified upon protecting public morality is invalid
a. Right to Privacy
1. Consensual conduct done in the privacy of the home
2. Limited (conspiracy to commit robbery)
b. Equal Protection
b) Actus Reus - Requirements of the Act – Means “Criminal Act”
1. Voluntary act
a. Doesn’t qualify
1. Conduct that is not of your own volition (pushing)
2. A reflexive or convulsive act (epileptic seizure)
3. An act performed while unconscious (sleepwalking)
b. An act or an omission when one has a duty to at
1. Duty to rescue - generally not duty to rescue
a. By statute
b. By contract
c. Relationship between the parties
d. Voluntarily assuming a duty of care and failing to perform it
e. Where your conduct created the peril
2. Wrongful Deed
a. Voluntary Act - Modern Penal Code § 2.01
1. Must be a voluntary act or the omission to perform an act of which he is physically capable
2. Not a voluntary act (enumerated “not voluntary” acts)
a. A reflex or convulsion
b. A bodily movement during unconsciousness or sleep
c. Conduct during hypnosis or resulting from hypnotic suggestion
d. A bodily movement that otherwise is not a product of the effort or determination of the actor, either
conscious or habitual
1. Not remembering something does not get you off the hook, it’s still an action even if you
can’t remember it
e. No positive definition of a voluntary act
b. Every statute has to have an act / omission component
c. Martin v. Alabama, 17 So.2d 427 (1944) pp 304
1. He appeared in a public place drunk
2. Cops had taken there (arrested in his home, took him to a public street)
3. Hypothetical: Is there a difference between “appearing in public” in these cases:
a. Arresting (“You’re under arrest, come with me” and man follows)
1. Under duress, but still an action - mens rea defense
2. Yes, I acted, but I was coerced
b. Arresting (“You’re under arrest” *carries him out*)
1. No acted at all - actus reus defense
b.
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d.
e.
f.
g.
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Hypothetical: Shooting a moose is a crime
1. Man shoots a moose when trying to hit a deer. He still shot the moose and it doesn’t matter whether it was an
accident, it was an act.
2. Man shoots a deer accidentally when a swarm of bees attacks him and he pulls the trigger. Not an act, but a
bodily movement.
3. Man shoots a deer because someone pushes his trigger finger. Outside agent, no act
Accidents - mind directs body - if there’s no mens rea, there’s no guilt
Unconscious - no act
1. California v. Wu, 286 Cal.Rptr. 868 (1991)
a. Woman’s son dead - she claims she didn’t kill him because she was not conscious, therefore no act
1. Not acceptable to have a child by herself (out of wedlock)
2. Can spend eternity with her son that way in heaven
b. Motive suggest premeditation - like Huey Newton, CA Black Panther, shot cop after being shot in the
stomach, says not conscious. Does longstanding antipathy towards cops matter?
c. Court say instruction on unconsciousness was warranted - different from “don’t remember”
1. Dissociative reaction is like being unconscious and not aware - if she was in a fugue state,
jury has to find not guilty because no act
2. The King v. Cogden (unreported case in the Supreme Court of Victoria, Australia (1950)) pp 313
a. Timeline
1. First, mother had a dream, ended up brushing at her daughter, thinking there were spiders all
over her daughter, protecting her daughter.
2. Went to doctor, had problem with daughter but didn’t know it
3. Instead of going to a movie, the mother and her daughter had a conversation about the Korean
War.
4. She then hacked up her daughter with an axe in her sleep.
b. Psychologist said mother was sexually frustrated (perhaps she really did want to kill the daughter
subconsciously?)
c. Mens Rea defense was not available (she intended an act).
1. Her mind WAS directing her body, but in a dream she was going after Korean soldiers,
different from being acted on by another
d. Not culpable because she was not conscious - no act
1. If she’s guilty, she’s punished for subconscious - unless you act on thoughts, you’re not guilty
e. Odd continuum between being awake and being asleep
f. Texas case -- guy was accused of strangling his wife; he told everyone he wished his wife dead.
Argument: go behind the conscious; if they are evil then hold people guilty
g. Hypothetical: Thinks daughter is a spider; awake but crazy
1. Different case; actus reus exists, but mens rea defense of insanity
Relation Back - liable for consequences that follow
1. Examples
a. Get drunk and commit crimes, basically convicted of getting drunk and putting self in that position
b. Liability for taking risk
c. Theoretical problem: Actus reus is supposed to go along with mens rea at the same time
1. If negligent to get in the ca in the first place, the acus reus and mens rea occurred before the
harm, and the harm occurs while unconscious
2. So, you can be arrested anytime drunk driving, before harm occurs, because it is reckless to
drive at all, not just the manner of driving
2. New York v. Decina , 138 N.E.2d 799 (1956) pp 317
a. Man had a history of epilepsy, driving along the street and had an attack while driving 50 or 60 mph.
He hit six girls, killed four of them
b. Charged with “criminal negligence (mens rea) in the operation (actus reus) of a vehicle resulting in
death.” §1053-a
c. Operating a negligently car -- he didn’t do that because he was unconscious
d. Majority argues that it’s negligent to operate a car whether he crashes or not. He knew he had a
propensity for seizures - it would have been different if he hadn’t known, then there would be no
liability. However, he was on notice.
e. Statute doesn’t say it’s illegal for an epileptic to operate a car, so the minority would let him off
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h.
c)
Addition to drugs
1. Act or status: Unconstitutional to punish a status, nonsensical to punish status when punishment is supposed to
respond to an act
a. Choice or illness? Heroin versus getting a cold if sleep-deprived
1. A crime to take a child into public with smallpox, but not to have smallpox
2. Robinson v. California, 370 U.S. 660 (1962) pp 320
a. Charged with being addicted to drugs
b. Defendant argues that statute is unconstitutional because it punishes a class, a violation of the Eighth
and Fourteenth Amendments
c. Ninety days in jail a stake
d. Court says punishment to use or possess heroin is acceptable, but you may not punish someone as an
addict
3. Powell v. Texas, 392 U.S. 514 (1968) pp 324
a. Rejected interpretation that “inherent aspects” of addition could not be punished either
b. Defendant argued alcoholics have a compulsion to drink; impossible not to act
c. Alcoholic convicted of public drunkenness - enough of an act found to distinguish from Robinson
d. Use, sale, appearing, robbery to buy drugs all punishable, not status
3. Duty to Act / Omission
a. Family relationship
b. Contract
c. Statute
d. Creation of peril
e. Assumption of care
Mens Rea - criminal intent - Lord Bracton, pioneer of requiring a guilty mind for punishment
1. Four Common Law Mental States
a. Specific Intent Crime (qualify for additional defenses) (cannot infer intent - prosecution must prove the intent)
1. Solicitation
2. Conspiracy
3. Attempt
4. Premeditated murder (First degree murder)
5. Voluntary manslaughter
6. Larceny
7. Embezzlement
8. False Pretenses
9. Robbery
10. Burglary (breaking and entering with intent to commit a felony therein)
11. Forgery
12. Assault (intent to commit a battery)
b. Malice - murder and arson
1. Second degree murder (“murder” by itself)
c. General Intent (rape and battery)
d. Strict liability - no intent crimes
1. Crime is in the administrative, regulatory, or morality area
2. Punishable by a fine
2. ”Guilty mind” or ”wickedness” (normative analysis)
a. Specific mens rea - wanted to commit that specific crime
b. General mens rea - general blameworthiness - duress
3. State of mine for each offense (empirical state of mind)
a. Intent or knowledge
b. Offense analysis Psychological status - - each offense has its own state of mine that must be present for that to be
punished - more refined, common law
4. Element Analysis - Modern Penal Code
a. Each crime may have more than one “culpability factor” for a given element
1. Conduct elements (look for “purposely”)
2. Result elements (look for “negligently”)
3. Circumstance elements
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5.
6.
7.
8.
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b. Can have different mens rea for each element
New York v. Shaugnessy, 319 N.Y.S.2d 626 (1971) pp 325
a. Driver drove onto a “no trespassing” property
b. Kids in car convicted of trespassing
c. Defendant was a passenger in the vehicle that trespassed - no act
1. She was acted upon
d. Omission - she failed to get out of the car
1. Had she known,
e. Maybe she’s a coconspirator or an accessory, but she’s only secondarily liable
1. He is the principle actor
f. No duty to jump out of the car or take action
g. Driver entered, not the passenger - if it was an accident, there would be an affirmative mens rea defense, but no actus
reus defense for the driver
h. Hypothetical:
1. Driving with cruise control that malfunctions
a. Speeding is strictly liable
b. There was an act, but mens rea is irrelevant
c. For strict liability crime, the only defense available is actus reus.
d. Cruise control is “not essential,” brakes are.
Illinois v. Ackerman, 274 N.E.2d 125 (1971) pp 327
a. Kid gets a package with LSD in dorm mailbox - sting operation
b. MPC §2.01(4) - statute here is version of MPC - “knowingly”
c. KNOWLEDGE - required by statute - mens rea
1. BUT unless you know of the thing possessed, no guilt
d. Thing possessed: Package or nature of the contraband?
1. Case law says if he knows he has pills but doesn’t know their nature, he’s guilty, but there’s no mens rea.
2. Common law & MPC - Strict liability and the only question is possession - but of what? Are they pills or pills
that are LSD? Goes to actus reus if it’s strict liability.
e. Still says he didn’t know the nature, it is a defense unless they can prove he did.
f. Possession is a passive act
Omissions
a. Duty to Act required for liability - higher standard than in tort law
1. No duty in general even if it won’t hurt you to act
2. No duty if complicit
Jones v. United States, 308 F.2d 307 (1962) pp 329
a. Kid died from failure to feed and provide medical care - Gas Company reported condition of kids. Kids removed three
days later
1. Caretaker charged
2. Mother not charged because
b. Appellate Court said that you have to find a duty to find liability
c. Legal Duty created by
1. Statute
2. Status (mother)
3. Contract (babysitter)
4. Voluntary care that excludes others
d. Court: Possibly kids being hidden and babysitter’s contractual duty but it has to go to the jury on the instruction
e. Nebraska - anyone with notice has duty to report child abuse
f. Vermont - no danger to self, duty to help
Causation - MPC §2.03
a. Causation exists under the MPC
1. Requirements for causation:
a. Cause in Fact - It is an antecedent but for which the result in question would not have occurred and
b. Proximate cause - The relationship between the conduct and result satisfies any additional causal
requirements imposed by the Code or by the law defining the offense
2. When purposely or knowingly causing a particular result is an element of an offense, the element is not
established if the actual result is not within the purpose or the contemplation of the actor unless:
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a. Only a different person/property was injured or it was more/less severe
b. It is not too remote or accidental to have a just bearing on the case
3. When recklessness or negligence is involved
a. Only a different person/property was injured or it was more/less severe
b. It is not too remote or accidental to have a just bearing on the case
b. Causation in Fact (but for causation)
1. A & B both shoot C - bullet hits same time and same place - both killed C
a. If A hadn’t shot could have died from B, not really “but for”
b. Both are sufficient cause, so can be attributed to both of them
c. Code seems to require Cause in Fact but it isn’t really required for these situations
2. Eggshell victims
a. Can find liability when fright is cause of death
b. Causes versus conditions - fine distinctions change results
c. Omaha woman died when she had a heart attack after hearing house had been shot at that day - but for
causation obvious, but proximate cause a problem
1. If she were there when it happened, maybe liability, look at the scope of the risk.
2. If the bullet kills, he’s guilty of murder because it’s reckless, but fright causing death is less
foreseeable
3. Kind of injury or harm causes death
4. Does death by bullet v death by heart attack really matter?
5. He just lucked out that he didn’t hit her -- why not guilty?
6. Jury question
c. Stephenson v. Indiana, 179 N.E. 633 (1932) pp 337
1. Man kidnapped woman, assaulted her, attempted rape, et cetera
2. She later attempted suicide; she refused to go to the hospital and she died
a. On the way home, victim wanted to go to a hospital, but defendant refused
3. Cause of death: weakened condition, wounds, or all combined
4. Charged with second degree murder - his defense is that it was suicide
5. Normally, intervening action breaks causation.
a. Not here, because she was under the defendant’s control
6. Convicted, “contributed “mediately or immediately to the death of “ another
7. Discussion:
a. Arizona case where parents, as a punishment, forced daughter to shoot her dog. She, instead, shot
herself
1. Would they be guilty of murder under the Stephenson jury instruction?
b. Story: Open confessional in a church in Tennessee; girl was forced to do confess a sexual relationship.
Girl killed herself.
c. Difference: Refusal to take to the hospital was so depraved - omission causing death
10. Intent and Recklessness
a. Specific and General Intent
1. General Intent - intent to do the prohibited act but not accomplish the wrongful result
2. Specific Intent - intent to achieve the wrongful result
3. Regina v. Pembliton, 12 Cox C.C. 607 (Ireland 1874) pp 354
a. Defendant threw a stone unlawfully (at people) - had an unintended effect (broke window)
b. Statute has mens rea factor - done “unlawfully and maliciously”
1. Unlawfully is pretty meaningless in statutes - it is redundant
2. A legal defense, perhaps, maybe done lawfully
3. Actus reus: “commit any damage….”
c. Lord Coleridge: maliciously is the same as willfully, requiring intent
1. Trying to hit someone, not break a window
2. No reason to know there was a window to break - not knowingly
3. He had general “wickedness,” but no specific intent - can’t willfully break a window when
intent related to something else, he didn’t know the window was there
4. Even if recklessness was the standard, it wasn’t the risk he was taking
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d. Blackburn: The jury could have found he was aware that the natural and probable consequence of his
throwing a stone was that it might break the glass window; you intend the natural and probably
consequence of his actions. (defendant wasn’t aware of the risk he was taking)
e. Lush: Malicious intent
1. Actual intent - really meant that action to occur
2. Constructive intent (negligence standard)
4. Regina v. Faulkner, 13 Cox C.C. 550 (Ireland 1877) pp 356
a. Defendant was stealing rum and lit a match to see, setting the rum on fire and destroying the boat.
Charged with “feloniously, unlawfully, and maliciously setting a ship on fire.”
1. Felonious and unlawfully are redundant
2. State argued that mens rea intent transferred to arson, he was stealing rum, which is a
common law felony
3. Defense argued and won that it didn’t (no intent for the arson)
b. Court requires intent to convict of arson
1. Direct intent - that was the purpose, not just that you knew, you desired it to happen
2. Oblique intent - knowing it could happen / foreseeable
3. Rejects the evil mind of theft can go to arson
4. Court requires mens rea for EACH OFFENSE (has its own elements)
a. Now an offense analysis
c. MPC §2.02(4) - read the “maliciously” all the way through the code
d. A ship is an occupied structure
b. Continuum of Mens Rea
1. Regina v. Cunningham, 41 Crim. App. 155 (Ireland 1957) pp 359
a. Man stole shilling gas meter, had let loose the gas line and poisons mother-in-law. Charged with
“maliciously” causing gas to escape and theft.
b. Defendant says he didn’t act with any of the culpability factors (purpose, knowing, Reckless,
Negligent)
c. Judge looked at “evil intent” and whether mens rea can transfer
d. Negligence is NOT ENOUGH; recklessness is the minimum for criminal liability
e. Malicious has to be either reckless, knowing, or with purpose
1. Jury instruction was wrong, “malicious” is not “wickedness”
f. Decided without a statute for guidance
g. This case rejected any definition of mens rea that did not require some subjective awareness of the risk
2. Recklessness: All states except Nebraska require actually foreseeing the risk
a. Nebraska it is objective
b. Debates as to whether some risk or specific risk
11. Negligence a. Theory
1. Holmes: Actual wickedness concept unnecessary; use reasonable/objective standard of foreseeable
2. Hall: Must look at internal subjective states, did this person know
b. Santillianes v. New Mexico, 849 P.2d 358 (1993) pp 370
1. Held a knife to the throat of a child, charged with child abuse
2. Jury instruction patterned after MPC § 2.02(2)(d)
3. Criminal negligence is different than civil negligence
a. Criminal negligence usually needs more than “ordinary negligence”
b. Criminal negligence is comparable to ”gross (deviation from the standard of care in a similar situation)
negligence” in civil law
1. Substantial risk is more than reasonable risk
2. Still no requirement to show risk was foreseen
4. Negligence is a controversial basis for criminal liability. How do you deter?
a. Make people more careful, a higher standard of care
c. Retributivitists don’t see that negligent people really deserve blame if they’re unaware of risks
d. United States v. Garrett, 984 F.2d 1402 (1993) pp 374
1. Woman at the airport attempted to board with a gun in her purse
2. She claimed she did not know
3. One statute is silent on mens rea and the other is willful
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Court finds “should have known” the gun was there to be a sufficient standard
a. Sounds like civil negligence
5. Court rejects strict liability
12. Interpreting Mens Rea Words in Criminal Statutes
a. Examine word’s meaning and word’s meaning in the context of the statute
b. Cotterill v. Penn, 1 K.B. 53 (Eng. 1936) pp 380
1. Shot a pigeon but didn’t know it was a homing pigeon
2. Defendant charged with “whoever unlawfully and willfully (mens rea) kills (actus reus / conduct or result) a
homing pigeon (circumstance)
3. Need not have a willfulness as to all three elements
a. He willfully killed.
b. Not there for the third (homing pigeon)
c. He thought it was a wood pigeon
1. He wants them to say that the statute necessitates the mens rea for a house pigeon, not the
wood pigeon as he thought it was.
d. A reasonable person would not have even known that it was a homing pigeon
e. Should the criminal law punish him for an innocent mistake?
f. How far down the statute does the mens rea run
1. You can’t deter accidents, he doesn’t deserve to be punished
a. You may deter people from shooting any bird, the dilemma is it doesn’t fit into a theory
of punishment.
4. Willful shooting was enough - believe it’s acting in accord with common law
5. Conflict as to whether the mens rea reads all the way down the statute or just with the verb
a. Under MPC, not a crime – (willfully = knowingly) no “knowingly” on the “homing” part
c. Some courts extend mens rea requirement down the statute so innocents are not punished
d. United States v. X-Citement Video, 513 U.S. 64 (1994) pp 382
1. Statute: “knowingly (mens rea) transporting (actus reus) material depicting a minor in sexual explicit activity
(circumstances)”
2. Defendant claimed he didn’t know it was a minor
3. Rehnquist: not guilty because “knowingly” applies to all elements, including “minor.”
4. Scalia: doesn’t apply to all elements, but unconstitutional anyway because it’s a strict liability crime
13. Modern Penal Code Requirements of culpability
a. Common law intent numbers in the hundred
d) Interpreting in the Modern Penal Code
1. MPC §2.02(1) - A person is not guilty unless they act purposely, knowingly, recklessly, or negligently, as the law may
require, with respect to each material element of the offense (unless strictly liable §2.05)
2. “Culpability factors” - first three are “malicious,” - §2.02
a. Purposefully - consciously engages in the conduct with that intention
1. Direct or specific intent in common law
2. Aware of the circumstances or believes / hopes they exist
3. X wants to kill Y and does - puts bomb on a plane and Y is only one there
a. Desired the result
4. Specific intent under the common law
b. Knowingly - oblique intent in common law, don’t know but practically certain and wants the results
1. X wants to kill Y and does, but also kills Z - puts bomb on plane and killed both Y and Z
a. Desired Y’s death - purposefully killed
b. Knowingly killed Z, but knew it practically certain to cause such a result
2. Requires subjective awareness
3. Defined as “willingly” in MPC §2.02(8)
4. Specific intent under the common law
c. Recklessly - consciously (subjective) awareness disregards a substantial and unjustified risk (objectively) - § 2.02(2)(d)
1. X puts a bomb on a plane and doesn’t know whether it’s a bomb or not
a. Recklessly kills because consciously disregards the risk
b. Difference between knowingly and recklessly is a degree of knowledge
d. Negligently - objective standard - should have known of a substantial and unjustified risk
1. X puts a bomb on a plane and should have known it was a bomb but didn’t check (say he had a duty)
4.
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a. Negligently caused the death
2. Objective standard -- requires no awareness, but should have had awareness
3. MPC §2.02(3) - Lacking a culpability factor, at least purposefully, knowingly, or recklessly are implied, you would read
into the statute these three factors, the system puts it in. (possibility that it may not apply in a SL MPC §2.05)
4. MPC §2.02(4) - Culpability factors are read all the way down -- applies to all material elements
a. “Material Elements of an offense” - §1.13(10)
1. Must be connected with
a. The harm or evil, incident to conduct, sought to be prevented or
b. The existence of a justification or excuse for such conduct
2. Does not relate to
a. The statute of limitations, jurisdiction, venue, or to any other matter similarly
3. Conduct elements, circumstance elements, results
b. Attendant Circumstances §1.13(9) “an element of an offense, conduct or such a result of conduct as
1. Is included in the description of the forbidden conduct in the definition of the offense
2. Establishes the required kind of culpability
3. Negates an excuse or justification for such conduct
4. Negates a defense under the statute of limitations
5. Establishes jurisdiction or venue
5. Conflict between §2.02(3) and §2.02(4)
a. “Any person who, while driving (conduct) a red car (circumstance), negligently (culpability factor) causes the death
(result) of another is guilty of vehicular homicide.”
b. Does “negligently,” under §2.02(4) apply to a negligent red car?
6. Examples
a. Faulkner case
1. MPC §220.1(1) Arson - “purpose of destroying”
a. Faulkner lacked mens rea, didn’t want to destroy,
2. Perhaps guilty under MPC §220.3 Criminal Mischief
a. Requires only negligent conduct
b. Depends on whether a reasonable person would see the risk
b. MPC §242.7 Implements for Escape (from problems p. 426)
1. “Introduces” is conduct
2. Apply purpose, knowledge, or recklessness to each material elements
3. “Provide means of escape” is probably a material element under §1.13(10), he didn’t act recklessly in regard to
this element, he thought they were just cigarettes
4. Don’t know it’s a prisoner - then not guilty
Impact of Mistake
1. Mistake of Fact - has to do with culpability, not with the elements of the crime
Mental state of the crime
Specific Intent (common law)
Malice (murder) and General Intent (battery)
Strict Liability
a.
b.
c.
d.
Application of the Defense
Any mistake, reasonable or unreasonable (negates intention)
Reasonable mistakes only (negates intention)
Never
Ignorantia facti excusat - ignorance of the facts is an excuse
1. Must be reasonable (made with due care)
Goes to the intent -- so it’s never a defense to a strict liability crime
MPC §2.04 - ignorance or mistake is a defense if
1. it negates the purpose, knowledge, belief, recklessness, or negligence
a. Most states reject -- mistake must be reasonable
Examples - Courts got McDonald and Stern wrong
1. Missouri v. McDonald, 7 Mo.App. 510 (1879) pp 397
a. Conductor wrongfully expelled someone he thought hadn’t paid for a ticket but had
b. If fare had not been paid, he had a right to kick off (he would be justified if it wasn’t paid)
c. Passenger claimed a battery
d. Mistakes of fact will exculpate, needs to be an honest mistake (some courts need reasonable mistake)
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e. Honest mistake doesn’t undo any elements of the crime but it negates the criminality of the intent
1. Mistake goes to justification
2. Not a mistake of the elements of the crime, goes to a defense
3. NOT justification, but an excuse
f. No crime committed
2. Stern v. Georgia, 53 Ga. 229 (1874) pp 398
a. Minor allowed to play billiards - due to a mistake in age (thought wasn’t a minor)
b. Defendant not guilty because no “union of act and intent”
c. Honest belief after due diligence is an excuse
d. Failure to prove an element of the crime (the requisite mens rea) - no case
e. “Failure of proof defense” - government can’t prove he did it because you can’t prove an element with
the mens rea
f. Reasonable mistake is only acceptable if negligence is an adequate mens rea - but if legislature says
knowingly, it requires knowingly.
3. Ryan v. New York, 626 N.E.2d 51 (1993) pp 402
a. “Knowingly…possess…six hundred twenty-five milligrams of a hallucinogen”
b. Legislature didn’t intent strict liability to apply to weight
c. Psilocybin was measured on a “pure” basis rather than a “cut” basis, harder to know how much
e. Rules for exculpation 1. Must be a reasonable mistake to a justification defense
a. Comes out of law for self-defense
b. Becomes a negligence standard, since standard is “reasonable” (effectively strikes intent)
1. Someone unreasonably believes not a minor, no longer “intentional,” really
2. Need not be reasonable if it goes to element of the crime (must look at culpability factor)
a. “failure of proof”
3. Willful blindness is not an excuse
Mistake of Law - ignorantia legis neminem excusat - Ignorance is not an excuse §2.02(9)
a. MPC §2.04 - Ignorance is not an excuses unless:
1. Negates an element of the offense: purpose, knowledge, belief, recklessness, nor negligence
2. The law is not known to the actor and has not been published or otherwise reasonably made available prior to
the alleged conduct §2.04(3)(a)
3. The actor reasonably relies on an official statement of the law contained in §2.04(3)(b)
a. A statute or other enactment
b. A judicial decision, opinion, or judgment
1. NOT your private attorney
c. An administrative order or grant of permission
d. An official interpretation of the public officer or body charged by law with responsibility
1. Not county attorney, probably attorney general
4. The law requires you to have knowledge of the offense
b. Examples - No one really knows the law, but you’re required to (legal fiction)
1. United States v. Moncini, 882 F.2d 401 (1989) pp 408
a. Moncini was a citizen of Italy, where it wasn’t a crime to privately send child pornography
b. Ignorance of the law isn’t an excuse
2. In the Matter of Etiene Barronnet and Edmond Allain, 1 E.L. 7 B.L (Eng. Rep. 1852) pp 411
a. Defendants were seconds in a duel; honorable in France, illegal in England
b. Still had to follow laws-held to know the law as everyone else
1. People would always state ignorance as a defense if we recognized it
c. §2.02(9) - Culpability as the illegality of a conduct not an element unless stated in the code
d. §2.04(3) - conduct OK if the law isn’t available or reliance on a court decision
c. Cultural defenses usually relevant more toward sentencing than determining guilt
1. “if it is not a crime there, that does not amount to a defense here”
d. Reliance on a court - only the highest court
1. Iowa v. Striggles, 210 N.W. 137 (1926) pp 417
a. Lower court holding ruled that a mint/gum vending machine wasn’t a gambling device
b. Lost because didn’t know conduct cam within the statute
2. Argue that statute is so vague that no one can understand it - if the courts disagree
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3. Reasonable reliance under the MPC - §2.04(3)(b)(ii)
Reliance on counsel - probably not good
1. Staley v. Nebraska, 131 N.W. 1028 (1911) pp 420
a. Defendant convicted of bigamy (cool dude!)
b. Thought first marriage was void because he married his cousin- NE district attorney told him he would
prosecute him for incest as there was no marriage- three other lawyers tell him there is no marriage
1. The marriage is invalid in NE, valid in IA and would be valid in NE-principle of law
2. Illegal in NE at the time, legal in Iowa
c. Marries spouse #2, now charge him with bigamy
d. He says that he relied on the attorney’s1. This is no defense at common law, they give opinions not law
2. Policy- people would just find lawyers that told them what they wanted to hear and would
have a defense
e. Conviction affirmed
2. Strict liability to marital status (whether dead or divorced, et cetera)
3. Different than moncini (offense), a mistake of an element in Staley, the code will give excuse to mistake of
element, not mistake or ignorance of an offense
4. To use MPC you have to use the 2.02 analysis- no 2.05 because you have jail time
a. 2.02(3) and read into the statute purposefully, knowingly, or recklessly
1. It may be construed that he was acting recklessly
2. If he has no reason to doubt the attorneys he is not reckless as to the marital status
b. 2.04(1)(a)
1. The ignorance or mistake negatives the purpose, knowledge, belief, recklessness, or
negligence required to establish a material element of the offense
c. He doesn’t have the culpability factor to establish the crime, unless he thinks he is married to number
one
f. Reliance on an official - Generally not good
1. Maine v. Huff, 36 A. 1000 (1897) pp 423
a. Fishing for smelts with a drag seine in violation of special laws
b. Advised by the fish commissioners and a lawyer that it was legal
c. Did so in good faith
d. Intent was inferred by doing
g. Claim of Right - a belief one has a “right” to property
1. Negates mens rea
Strict Liability Offenses - §2.05
1. When culpability factor does not appear, use §2.02 unless a strict liability crime
a. Insert purposely, knowingly, recklessly
2. An offense constitutes a violation when - §1.04(5)
a. Fine or forfeiture is the penalty
b. Not imprisonment
3. Common Law has no guiding principles
4. People who are insane have a defense to ALL crimes
a. Includes involuntary intoxication
5. Examples
a. Massachusetts v. Mixer, 93 N.E. 249 (1910) pp 469
1. Illegal transport of liquor into the city -- Defendant didn’t know or have reason to know there was liquor in the
cargo
2. Statute used explicitly had removed the mens rea requirement of “willful” (prior versions had “willful”
3. Legislature intended strict liability, defendant convicted
a. This was a “regulatory” offense.
b. Harder to regulate trucks than trains
c. It is arguable that this will improve law enforcement tremendously, you sacrifice this guy to the
utilitarian idea of making things better for everyone else
4. Not fair according to retributivists because he didn’t have intent
a. Truck driver has no way to check every time - basically has to give up his job
b. Doesn’t deter him unless employees in jail hurts boss
e.
f)
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5.
6.
6.
Court left as strict liability crime
Public Policy Arguments for strict liability
a. Public benefit for strict liability doesn’t work -- murder still requires mens rea
b. A lot of times the legislature didn’t think about it
b. Ohio v. Williams, 115 N.E.2d 36 (1952) pp 442
1. Defendant truck driver had undersized fish, stopped by fish and parks people
2. Court reversed conviction and found legislative intent only with negligence
a. Legislature could not have intended this effect
3. “Should have been known” read into statute - negligence standard
a. Means of knowledge wasn’t at hand
c. Morissette v. United States, 342 U.S. 246 (1952) pp 446
1. “Whoever steals or knowingly
a. converts or takes (admits he took it)
b. Property (He makes a mistake to this element, thought it was abandoned)
c. Of the United States (is this jurisdictional?)
1. Ten years in jail
2. He wants the culpability to run to all elements of the case (model penal code is not around)
3. Court decided Congress didn’t intend to dispense with intent requirement
4. Mens rea applies to conversion and circumstance of the crime (this was a mala in se (wrong on its face) crimemens rea required)
a. If he didn’t think it was abandoned, it would have been a crime
b. Just like applying culpability to each material element under MPC 2.02(4)
1. “Value to US government” was not a material element if it is only about federal jurisdiction -apply MPC 1.13(10)
c. Couldn’t be strict liability because it entails blameworthiness and stigma
5. Conviction reversed
d. Regina v. Prince, 13 Cox C.C. 138 (Eng. L. 1874) pp 450
1. Whoever shall unlawfully
a. Take (what if she hides in his wagon?)
b. Any unmarried girl (what if he thought she was married to him or was a boy?)
c. Being under the age of sixteen years
d. Out of the possession
e. Against the will of her mother or father, or any other person having the lawful care or charge of her
2. Is ignorance of age a defense? Defendant reasonably believed girl was over sixteen
a. Defense he didn’t have knowledge as to age element, made a mistake to an element of the crime.
b. The court believed that he made an honest and reasonable mistake; courts exculpate reasonable
mistakes of facts, they don’t here though
3. Court: all but one judge find strict liability as to age (they wrote it into the statute on the age element)
4. Age is strict liability but can make mistakes about other elements - last two are more important than the rest
because they go to reason for statute protecting parent’s property rights
a. Out of possession against the parent’s will is the important part protect the parent’s rights
5. Court says it’s immoral to make mistake of age but not of parents’ property
6. MPC: Assume §2.05 (strict liability) doesn’t apply - no mens rea on face of statute, so apply recklessness
minimum to all material elements
a. Age is material if that is who the statute protects
b. Reasonable mistake - not even negligent, so not reckless - not guilty
c. If statute says negligence and it was unreasonable mistake, he would be guilty
Statutory interpretation - general rules
a. Mala prohibitum statutes - wrong because it’s prohibited
1. Strict liability is allowed
2. Regulatory offenses- fine only
3. No intent required
4. Recent in vintage
b. Mala in se - wrong on its face
1. Action itself is wrong -- “true” crimes -- assault, theft, murder
2. If jail time is possible, it is most likely not strict liability
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3.
4.
7.
Must show distinct legislative intent to be strictly liable
Examples:
a. Statutory rape is a strict liability crime
1. Sexual intercourse
2. Woman
3. Under 16
a. Reasonable mistake allowed now in several states, Hernandez
b. Under prince he won’t be able to claim mistake
c. Never death penalty
Public Welfare Crimes
a. Forbidden acts - no intent ingredient
b. Petty crimes - no direct danger - just create potential for it
2) RULES OF CRIMINAL LAW
a) Homicide - killing of a person
1. Murder - Requires malice aforethought
a. Malice Aforethought is the intention to kill, actual or implied, under circumstances which do not constitute excuse or
justification or mitigate the degree of the offense to manslaughter
1. Codeword for
a. Intentional murder
b. Depraved heart
c. Intent to commit grievous bodily harm
d. Felony murder
2. Merely means no provocation
3. Implied - A legal construction, constructive malice, an inference, a legal fiction
4. Not used as much now
b. Degrees of murder - started in Pennsylvania
1. First Degree Murder - capital punishment possible
a. Premeditation intent-to-kill
1. Motive
2. Planning Activities
3. Nature of homicide
b. Felony murder if the felony is rape, robbery, burglary, or arson (depends)
c. Murder by poison, torture, or lying in wait
2. Second Degree Murder - no capital punishment possible
a. Intent to kill or do serious bodily harm without premeditation
b. Depraved heart (gross negligence murder)
c. Felony murder (other than the felonies above)
c. Year and a day rule - can’t be prosecuted unless victim dies within a year and a day of the act inflicting the injury (not
in MPC)
d. Intent-to-kill Murder 1. Michigan v. Haack, 240 N.W.2d 703 (1976) pp 514
a. Says he thought gun cylinder rotated the other way, shot the victim
b. Did he kill with intent? He claims it was an accident
c. Jury could reasonably infer he intended to kill
1. Natural tendency of the defendant’s behavior is death
2. Isn’t this a negligence standard? No, state of mind is inferred from the objective
circumstances.
2. Washington v. Bingham, 699 P.2d 262 (1985) pp 517
a. Took a handicapped woman into a field, raped and strangled her
b. Charged with first degree murder, must prove premeditation
c. Took three to five minutes to strangle her
d. The time during manual strangulation is not sufficient to be considered premeditation
e. First degree murder instruction
f. You can’t give a jury instruction unless there’s evidence of that crime
g. Reversed, sent back down for entry of second degree murder
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h. Court may just not like the death penalty
People v. Waters, 324 N.W.2d 564 (Mich. App. 1982) pp 523
a. Defendant convicted of 1st degree murder - intent to murder
b. Shot couple in drive-in movie; first shot hit driver, second shot hit female passenger; held gun with
both hands, 2-4 seconds passed between shots
c. Court said possession of a deadly weapon before killing is a fact from which premeditation can be
inferred - also have to have other circumstances to show it was no a spur-of-the-moment killing
d. Court reaffirmed conviction
e. Evidence of premeditation: 2nd shot killed her, two seconds long enough for premeditation
f. Compare to Bingham; court here appears to be racist in descriptions of a gun named “Marv” for the
defendant to “style” for the evening.
g. Court doesn’t suggest this was a hate crime, so race information is irrelevant if that motive has not be
alleged
4. People v. Lucero, 750 P.2d 1342 (1988) pp 529
a. Neighbor kills two little girls walking by looking at his goose. He ties up one, strangles one, beats to
death the other, puts body in the dumpster, then leaves for ten minutes and then sets the house on fire.
b. Charged with 1st degree murder - court affirmed
c. Used ANDERSON BALANCING TEST (at least some evidence in all three categories)
1. Planning activity
a. Reasonable infer he lured them into house because they wouldn’t go normally
b. Tied one up while killed other - evidence of intent to incapacitate her
c. Left evidence EVERYWHERE - not consistent with premeditation
2. Motive a. Killed second because witness to the first killing
3. Preconceived design by method of killing a. Killed by strangulation of one of them (opposite of Bingham case)
d. Turns out Lucero was a Viet Nam veteran -- Post Traumatic Stress Syndrome
1. Geese cackling and sound of helicopter overhead
5. California v. Anderson, 447 P.2d 942 (CA 1968) pp 531
a. Vicious murder of girl -- cut her open
b. Court lessened to second degree murder
c. Random, violent, indiscriminate attack rather than a preconceived design
6. Commonwealth v. Carroll, 193 A.2d 911 (PA 1963)
a. Argument with wife, went and shot her later after she went to bed
b. Guilty of first degree murder
c. Compare to Anderson - equally culpable
7. Premeditation and Deliberation a. Premeditation - a planning to kill over time
1. Time is not enough
2. Opportunity
3. Motive
4. Cannot be inferred from intent
5. Poison -- presumed premeditation because you have to go get the poison
b. Deliberation - quality to the premeditation
1. Doesn’t this make it worse -- or show a conscience?
8. MPC § 210.2 - Murder:
a. Purposely or knowingly or committed recklessly
1. No malice aforethought or premeditation in MPC § 210.2
b. Is committed recklessly under circumstance manifesting extreme indifference to life
1. Assumed if escaping a felony
c. Death penalty looks to aggravating circumstances in § 210.6(3) - heinous, depraved
9. Deadly weapon doctrine - if you use a weapon, can presume intent (permissible inference)
Depraved Heart - grossly or wantonly negligent / recklessness (conscious disregard)
1. Second-degree murder by statue
2. No reason to kill, not trying to kill
3. “Depraved indifference to human life” or “a wicked, depraved, and malignant heart”
3.
e.
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4.
f.
Banks v. State, 211 S.W. 217 (TX 1919) pp 534
a. Defendant shot gun into train and killed brakeman - 1st degree murder, death penalty
b. Judgment was affirmed because court thought it was worse just because it was random
1. “Man who can coolly shoot…” is possibly worse
5. Fletcher’s Factors in assessing risk-taking pp 537
a. Likelihood of causing death under the circumstances
b. Gravity of the risk
c. Utility of the risk - self defense would be high utility
d. Actor’s awareness of the risk
6. Applying Fletcher to Banks a. Small likelihood
b. High gravity
c. No utility - it was for entertainment
d. Subjective awareness not addressed, but recklessness describes it - courts often ignore this but it’s
crucial determination for this kind of murder because there is no subjective awareness -- it is just
negligence
1. Many courts screw up negligence and recklessness
7. Pears v. Alaska, 672 P.2d 903 (1983) pp 537
a. Drunk driver convicted of 2nd degree murder
b. Court said recklessness enough for murder - has to be extreme indifference
8. Examples
a. Russian Roulette
b. Throwing a lighted kerosene lamp
c. Vehicular homicide
1. Doesn’t rise to level of culpability necessary to support murder or manslaughter conviction
2. Nebraska - can be manslaughter or motor vehicle homicide
3. Most of the time drunk drivers are oblivious and not as informed as defendant in Banks
9. Pennsylvania v. Malone, 47 A.2d 445 (PA 1946) pp 542
a. Gun with one bullet in it; defendant shot other kid
1. Not clear if he spun cylinder
b. Guilty of 2nd degree murder
c. Court upheld because motive is not necessary when there is intent, recklessness, or wanton disregard
d. Very likely, high gravity, no utility, but only should have been aware - objective negligence standard
applied
e. MPC §210.2 - recklessness standard - §2.02(1)(c)
1. Subjective awareness
2. Gravity, utility, awareness, likelihood
f. Confuse intent at a negligence level just like Director of Public Prosecutions v. Smith
10. Northington v. Alabama, 413 So.2d 1169 (AL 1981) pp 543
a. Defendant sentenced to life for murder of daughter by withholding food and medical attention
b. Recklessness requires universal malice
c. This was specific malice so conviction overturned.
Intent to Cause Grievous Bodily Harm 1. Murder even if no intent of death because there is intent to cause serious bodily harm
2. Intent to cause bodily harm is transferred to intent to cause death
a. Constructively assume mens rea for the death
3. Many jurisdictions have abandoned this category because Depraved Heart Murder will cover it; just have to
show recklessness
4. Nebraska doesn’t have this category in common law or statute
5. Pennsylvania v. Dorazio, 74 A.2d 125 (PA 1950) pp 546
a. 2nd degree murder conviction
b. Fists can be deadly weapons if repeated and brutal
c. Judgment affirmed
d. Man was a former boxer
6. Director of Public Prosecutions v. Smith, 1961 A.C. 290 (1961 House of Lords) pp 548
a. First degree capital murder conviction
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b. Cop grabbed car and defendant took off, dragging and killing cop (hit and killed by a cop coming the
other way)
c. Jury instruction had negligence standard in it - reasonable person standard
d. Problem with reasonably foreseeability test - not intent, but negligence
e. This case was overruled in 1967 by Parliament
1. Now have to intend or actually foresee (recklessness standard)
Felony Murder - no intent to kill (generally first degree)
1. State v. McKeiver, 213 A.2d 320 (NJ 1965) pp 551
a. Woman died of fright when defendant was trying to rob a bar
b. Convicted of first degree murder
c. No intent to kill anyone - shot into the air to scare people
d. Depraved heart murder might have been better
e. What if he didn’t bring a gun and someone dies of fright? Same result?
f. Has he assumed the risk of someone having a heart attack?
g. Faulkner Case - stealing rum and set ship on fire case
1. Court held no constructive mens rea so couldn’t be convicted of arson
2. Felony murder is the opposite - takes the intent for the felony and transfers it
2. Sound basis? Not a high level of death with commission of felonies
a. Deterrence probably doesn’t make sense with this doctrine
b. Goes against retributivism theory - not state of mind to kill - really just strict liability
c. Why strict liability for most serious crime that can bring on death penalty
d. Utility underlies - easy for prosecutors - just have to prove underlying felony
e. End up able to punish negligence and accidents
f. Holmes - if the thief doesn’t know person is there and shoots them, that’s felony murder, but if it’s the
owner, it’s just accident because it’s legal for him to be there
1. Might as well hang 1 out of 1000 thieves instead of connecting it to an unrelated accident
3. People v. Aaron, 299 N.W.2d 304 (MI 1980) pp 553
a. Defendant convicted of first degree murder in conjunction with robbery
b. Court says no felony murder in Michigan, so jury instruction was wrong.
c. Lord Dacres - case where hunters vowed to kill anyone interfering with their hunting and all members
of the group shared mens rea when one was killed. Was not about their intent to commit a felony
because of their intent to kill.
d. Historically, all felonies were punishable by death
e. Intent is transferred from intent to commit felony
f. Michigan statute - same as Pennsylvania - many states have adopted
1. “Murder perpetrated along with…arson, criminal sexual assault, robbery, breaking and
entering a dwelling, larceny, extortion, kidnapping”  first degree murder
2. Why use word “murder” instead of “killing?” Murder implies intent and “murder” must be
shown separately to go with this statute.
3. Definition of malice: Intention to kill, do bodily harm, or wanton and willful disregard of
likelihood that behavior could cause death; malice cannot be found from intent to commit
underlying felony
g. Conviction reversed
h. Michigan only has felony murder if you commit one of the murders along with a felony and then
murder is first degree; there is no strict liability felony murder; felony is viewed as aggravating
circumstance but not a means of bootstrapping as in Nebraska or other states
i. Problem - legislature thought they were creating felony murder but they didn’t - they created
aggravating circumstances - that’s what defines first degree murder.
j. California has rejected this argument and upheld felony murder there
4. “Dangerous” felonies - three approaches
a. Inherently dangerous limitation - any felony supports second degree murder
1. Burglary
2. Arson
3. Robbery
4. Kidnapping
b. Because death resulted it was inherently dangerous
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6.
7.
8.
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c. Assessment in the abstract of the felony’s relative dangerousness is prerequisite to determining it
felony murder (see Patterson).
People v. Patterson, 778 P.2d 549 (CA 1989) pp 562
a. Defendant convicted of second degree felony murder for supplying cocaine to decedent
b. Holdings
1. Inherent dangerousness of distributing cocaine should be the focus
2. Inherently dangerous because there is a high probability it will result in death
c. Dissent - not inherently dangerous
d. People v. Phillips, 414 P.2d 353 (CA 1966) pp 569 - chiropractor charged with theft by deception and
second-degree murder.
1. Unless felony is inherently dangerous, can’t be used for felony murder
2. Could be used for depraved heart murder
Duration of the felony - Res Gestae Doctrine
a. Some jurisdictions require death to occur during commission of felony
1. Time and place (temporal) and relation (causation)
b. Occurs most often during escape
c. Must courts will not find felony murder if felonious intent occurs after killing
Merger Doctrine - felonious assault is not independent of the homicide
a. The felony merges with the homicide, and cannot serve as a basis for felony murder conviction
b. People v. Sears, 465 P.2d 847 (CA 1970) pp 574
1. Defendant concealed a tire iron, entered dwelling where he didn’t reside (lived in the garage),
and killed his stepdaughter and attempted to kill his wife and her mother
2. Charged with first-degree felony murder
3. Court” Can’t use felony murder because felony merges with homicide
4. Burglary - entry with intent to commit any felony (not just theft)
5. Assault was the felony used for the felony murder, but assault is the method of killing
6. Felony has to be separate from the homicide
c. People v. Wilson, 462 P.2d 22 (CA 1969) pp 577
1. Entry was only felonious because of intent to assault
2. Felony merges with assault, so no felony murder
3. California later reinstated the rule; felony does not merge if the assaultive conduct involves
independent felonious purpose
d. People v. Miller, 297 N.E.2d 85 (NY 1973) pp 580
1. Merger doctrine was not applied because burglary makes the people inside vulnerable to
murder - likelihood that assault will become murder is greater in a dwelling so felony murder
can be used -- this is the majority rule
e. Theory
1. If assault / aggregated assault were the basis for felony murder, all killings would become
felony murder
2. Majority of jurisdictions apply merger doctrine to felonious assaults, so these crimes do not
generate felony murder
3. Minority: Reject merger doctrine for assaults
a. State v. Thompson, 558 P.2d 202 (WA 1977): shooting victim was second degree
assault; when victim died, felony murder
b. Commonwealth v. Cifizzari, 492 N.E.2d 357 (PA 1986): victim died of rape-related
injuries
1. Intent to cause grievous bodily harm or depraved hard it second degree
2. Felony murder would be first degree
f. Hypothetical: Burn down a building and someone is killed, but defendant had no idea someone would
be killed
1. Common law: guilt is automatic
2. MPC: Defendant can rebut the presumption of recklessness
Defenses to felony murder
a. If he has a defense to the underlying felony, he has a defense to felony murder
b. The felony they are committing must be independent of the murder
c. Deaths must be foreseeable
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d. Deaths causes while feeing from a felony is felony murder
1. Ends after temporary safety
e. Defendant is not liable to the death of a co-felon as a result of resistance of a victim or the police
9. Causation Limitations a. Approaches 1. Agency (majority of states who have considered the issue)
a. Felon not responsible for acts of others - except if killer is acting as felon’s agent
(accomplice)
b. No relationship between victim and killer, so a killing by the victim isn’t felony murder
2. Proximate cause
a. Felon liable for any death proximately resulting from felony - set in motion the chain of
events (Pennsylvania Rule)
b. State v. Canola, 374 A.2d 20 (NJ 1977) pp 581 (majority of states use this)
1. Defendant and three others were in process of robbing store when victim of robber shot and
killed a felon - can the co-felon be held liable for felony murder?
2. Historical majority was that it could not be felony murder due to “agency theory”
a. Can’t create an agency when it’s not there
3. Court: Cannot extend past felon and co-felons to acts of third parties, so not guilty
c. Justifiable v. Excusable 1. If the victim of a crime is justified in shooting a felon because it is self-defense it is a lawful
act - so how can co-felon be held liable for a lawful act?
2. If the victim is excused from shooting a bystander, it is still technically unlawful, and in some
cases, can be used to apply felony murder (Hickman)
d. Hypotheticals
1. Killer = felon; deceased = felony victim
a. Felony Murder
2. Killer = felony victim or cop; deceased = co-felon
a. Not felony murder
1. Agency doctrine (not acting as an agent)
2. Justifiable so not unlawful
3. Killer - felony victim or cop; deceased = third party or another cop
a. Not felony murder
1. Agency doctrine
2. Excusable - not guilty because they are a bad shot defending themselves
4. Killer = felon; deceased = co-felon
a. Not felony murder because relationship between the to
b. Felony murder because deceased not the person the statute was designed to protect
e. Vicarious liability
1. People v. Antick, 539 P.2d 43 (CA 1975)
a. Bose, driving car, had left a burglary. Antick was no longer at the scene.
b. Antick charged with murder of his Bose who was killed by a cop
c. Options are felony murder or vicarious liability
d. Court: Since accomplice couldn’t be charged with murder for his own death, neither can
defendant
e. It would be different if another person had died due to accomplice starting gunfight
2.
MPC - Modern Penal Code
1. Murder - §210.2
a. Does not divide murder into degrees
1. Period during which the felony is in the process must be narrowly construed
2. Underlying felony must be independent of the homicide
b. Intent: Purposefully or knowingly or at least reckless
1. “Manifesting extreme indifference to the value of human life.” “Depraved heart” and “felony
murder”
a. Recklessness is rebuttable presumption (§ 1.12(5)) of recklessness under §
2.210.2(1)(b) if engaged / attempting /.fleeing a
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1. Robbery
2. Rape
3. Deviate sexual intercourse by force or threat of force
4. Arson
5. Burglary
6. Kidnapping
7. Felonious escape
2. Limitations to the felony murder doctrine
a. Unlike common law, CANNOT be accidental
b. Felonious act must be dangerous to life
c. Must be a natural and probable consequence of the felonious act
d. Death must be proximately caused
e. Felony must be malum in se
f. Act must be a common law felony
2. Negligent homicide - § 210.4
a. Different from common law because it is not manslaughter
3. Rules a. No unlawful act homicide
b. No limitation of year-and-a-day
Manslaughter - no malice aforethought
a. Voluntary Manslaughter - killing is provoked - must have PASSION
1. Views on Voluntary Manslaughter
a. Old common law: manslaughter due to partial justification (lawful because victim is unlawful)
b. Modern view: manslaughter due to excuse (still unlawful)
c. Common law formulation now
1. Adequate provocation - words are enough in some jurisdictions
2. Defendant was provoked and acted in the heat of passion (subjective)
3. Reasonable person would be provoked (objective)
4. Not too much time between provocation and killing (cooling off period)
d. Stephens, A digest of the Criminal Law (1877), pp 595
1. An assault and battery
2. Quarrel and strike first blow
3. Unlawful imprisonment
4. Sight of adultery
5. Sodomy on one’s son
6. NOT provocation
a. Words, gestures, injuries to property, breaches of contract, but they can go to degree
2. Tripp v. Maryland, 374 A.2d 384 (1977)
a. Defendant was found guilty of four charges of first degree murder and one assault with intent to
murder
b. Used provocation because his girlfriend went back to her husband
c. This case represents the traditional view of provocation
d. Elements
1. Adequate provocation
2. Kill in heat of passion
3. Sudden heat of passion
4. Causal connection between provocation, passion, and fatal act
e. Court reversed his conviction - he was in a violent rage at the time
f. Court found that elements were not met
g. Shows common law view that an unlawful act is required on the victim’s part
3. People v. Berry, 556 P.2d 777 (CA 1976) pp 603
a. Wife went overseas, she comes back having met a guy who was boning her
b. Wife bones the husband, then torments the husband (defendant)
c. Defendant killed his wife and was charged with first degree murder
1. He went to bus depot and came back, “I think I’m here to kill you.”
2. She screamed -- really annoying, but not provocation
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4.
5.
6.
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d. Said he was provoked by her refusal to have sex with him and that she wanted to die
1. “Suicide wish” important only to extent it explains defendant’s behavior (induced behavior)
2. Should this evidence have gotten in?
e. People v. Valentine, 69 P.2d 1 (CA 1946): victim’s behavior over time was allowed to be a defense
f. No unlawful act here - she wasn’t being boned when he finds out
g. Court reversed his murder conviction - he was in a violent rage at the time
h. Still common law
Elements of Voluntary Manslaughter
a. Adequate provocation (in the heat of passion): actually and reasonably provoked
1. Arouse sudden & intense passion in the mind of an average person
a. Lose self-control
b. Narrow traditional view in common law - had to be married for adultery, et cetera
c. Common law - words alone can’t constitute provocation
1. Words are a provocation in California and in many states
d. Factors affecting passion
1. Race, age, sex, handicaps relevant
2. Emotional disturbance / mental abnormalities
3. Cultural factors (idiosyncratic moral values) not relative - more relevant to
sentencing
2. The defendant himself must have been provoked
b. No time to cool off
1. A reasonable person would not have cooled off between the provocation and the killing
2. The defendant himself must not have cooled off.
3. Cumulative effect not allowed - not sudden
Director of Public Prosecutions v. Camplin, 2 All E.R. 168 (England 1978) pp 610
a. Defendant was sexually assaulted and killed his abuser
b. Jury found him guilty of murder: it was retaliation, not self-defense
c. Appellate court and final court both said that standard to be sued is manslaughter considering
reasonable person of same age and in same circumstances -- very subjective test
Manslaughter - §210.3 - second degree felony
a. Recklessly kills disregard (not depraved heart, which requires subjective knowledge) OR
b. Kills under circumstances that would ordinarily constitute murder but are the result of reasonable
extreme emotional disturbances
1. Includes provocation but much broader
a. Combination of factors allowed
b. Defense to killing bystanders or unfounded belief
c. Words alone are enough
d. Cooling off not required
2. Defendant must usually prove by preponderance of the evidences
c. Broader than common law
1. Words ARE enough
2. Does not include idiosyncratic morals as an excuse
3. Physical characteristics usually do matter
a. Age, sex, handicaps, race
b. Jury considers when so instructed
d. Berry case changes:
1. Reasonable provocation
2. Δ in fact provoked
3. Reasonable person would not have cooled off
4. Δ did not cool off
Involuntary Manslaughter 1. Unlawful Act / Misdemeanor Manslaughter
a. When it occurs as a result of or during a malum in se misdemeanor or felony that is not sufficient for
felony murder (Unenumerated felony or committing a misdemeanor)
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b. Analogous to felony murder - strict liability for death (no connection between reason act is unlawful
and the death)
c. United States v. Walker, 380 A.2d 1388 (DC 1977) pp 632
1. Illegally carrying a revolver without a license - a misdemeanor
a. Not inherently dangerous to not have a license (wouldn’t have changed anything)
2. Mens rea from misdemeanor transferred to killing
d. Punishing accidents is not a deterrent and it punishes the blameless
e. MPC rejects this doctrine because it dispenses with mens rea - some jurisdiction have followed that
approach
f. Causation limitations - unattractive doctrine -- rejected in most jurisdictions
Criminal Negligence Type
a. When it occurs through gross or criminal negligence (either by actor or omission)
1. Defendant’s negligent act must be the cause in fact of victim’s death
2. Victim must be foreseeably endangered by the negligent act
3. Victim must be harmed in a foreseeable way and
4. Type and gravity of the harm must be foreseeable
5. Modern approach uses an awareness of the risk (recklessness), as in §7.12(a)
b. Criminal negligence is a somewhat stricter standard than tortious negligence, requiring a higher degree
of unreasonability 1. Generally judged objectively (a few states use a subjective standards, thus treating the act
more like recklessness than negligence)
2. MPC - negligent homicide punished less severely than manslaughter or murder
c. Rules
1. Gross negligence (unlawful aspect of behavior) when doing an ordinarily lawful act
2. Common law courts did sometimes recognize negligence - the cases are more gross
negligence than ordinary negligence
3. Acts that would be depraved heart murder if there were recklessness are often criminal
negligence manslaughter because mens rea is only negligence
d. Fitzgerald v. State, 20 So. 966 (AL 1896) pp 617
1. Defendant handed gun to friend and it went off and killed him
2. Charged with second-degree manslaughter
3. Conviction reversed
4. Jury wasn’t instructed on acquittal - if defendant was doing a lawful act negligently
5. Other two theories - intent or unintentionally and criminal only if gross negligence
e. State v. Barnett, 63 S.E.2d 57 (SC 1951) pp 620
1. Convicted of involuntary manslaughter
2. More than ordinary negligence required if instrument is not inherently dangerous
3. Simple negligence required when instrument is inherently dangerous (firearms, et cetera)
4. Conviction upheld
f. Commonwealth v. Welansky, 55 N.E.2d 902 (MA 1944) pp 623
1. Wanton or reckless conduct defined - objective and subjective together
2. Look to normal person under same circumstances to see if wanton recklessness
3. Really describing negligence, but they don’t say go
4. Also go back to recklessness - not clear what they mean
g. State v. Williams, 484 P.2d 1167 (WA 1971) pp 625
1. Baby died when defendant didn’t know it was sick and didn’t take to the doctor - parents
charged with manslaughter
a. Prosecutor trying to send a message (is this effective?)
2. Could be no negligence if there was no duty until it was too late
3. Class issues - are these defendants less expected to know?
4. Unusual decision - Use of regular civil negligence - conviction upheld
h. People v. Strong, 338 N.E.2d 602 (NY 1975) pp 629 - MPC case
1. Defendant attempting to do a “mind over matter” ceremony and stabbed decedent
2. Trial court didn’t give negligent homicide instruction and defendant was convicted on
reckless mens rea - appellate court held that they should have
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3.
4.
5.
Court didn’t believe defendant thought he would cause harm and jury should have gotten that
instruction
Dissent: Jury should not have had instruction because it’s not believable that he didn’t know it
would hurt anyone
Why not depraved heart murder used? It requires extreme indifference to value of life recklessness
b) Inchoate Crimes 1. Not a deterrent - have three functions
a. Legal basis for intervention
b. Actor is disposed toward the crime
c. Avoidance of exculpation because of a fortuity - justice basis
2. Attempt = specific intent + a substantial step beyond mere preparation
a. Background: Inherent attempt crimes
1. Burglary - entry with intent to commit a felony
2. Larceny - taking with intent to permanently deprive owner of chattel
3. Assault - attempt to batter
b. Merges into the greater crime
c. Punishment
1. Historical common law - misdemeanor even when crime was a felony
2. Today - lesser felony - now a felony in common law and in MPC
3. Can’t be convicted of attempt and crime itself
4. Legal impossibility is a valid defense
d. Actus Reus - Distinguishing between innocent preparation and culpable attempt
1. Physical proximity doctrine - overact act required for an attempt must be proximate to the complete crime or
directly tending toward the completion of the crime, or must amount to the commencement of the
consummation
2. Dangerous Proximity Doctrine - (Holmes) - the greater the gravity and probability of the offense, and the
nearer the act to the crime, the stronger the case for calling the act an attempt
3. Indispensable Element Test - A variation of the proximity tests which emphasizes any indispensable aspect of
the criminal endeavor over which the actor has not yet acquired control
4. Probable Desistance Test - The conduct constitute an attempt if, in the ordinary and natural course of events,
without interruption from an outside source, it will result in the crime intended.
5. Abnormal Step Approach - An attempt is a step toward crime which goes beyond the point where the normal
citizen would think better of his conduct and desist
6. Res ipsa loquitur (unequivocality test) - An attempt is committed when an actor’s conduct manifests an intent
to commit a crime
7. Last Proximate Act Doctrine - requires actor do all she intents to do to accomplish the crime
a. Very demanding because can’t be guilty of attempted murder until aim gun and pull trigger
b. Regina v. Eagleton, 169 Eng. Rep. 766 (England 1855) pp 727
1. Collected tickets for 3-1/2 lb loaves when they were intentionally underweight
2. Never got cash from the government for the tickets
3. Charged with intent to
8. Substantial Step - used in the modern penal code - not mere preparation
a. United States v. Jackson, 560 F.2d 112 (NJ 1977) pp 728
1. Bank robbery planned but police intercede
2. Last proximate Act is sufficient but not necessary
3. MPC analysis - substantial step test affirmed for actus reus
4. Mens rea is clear in this case
b. Modern Penal Code - Substantial step in a course of conduct - § 5.01(2)
c. McQuirter v. State, 63 So.2d 388 (AL 1953) pp 737
1. Man charged with attempt to commit an assault with intent to rape
a. An attempt to attempt? Logically sound?
2. White woman said black man was going to rape her
3. Court upheld conviction even though racist jury instruction, “jury may consider…defendant
was a Negro man.”
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4.
3.
Circular argument -- if the mens rea is inferred from the actus reus, and the actus reus looks
suspicious from the mens rea, there is no basis for a conviction
e. Grading of Criminal Attempt - MPC § 5.05
1. Grading -- attempt and solicitation are the same grade as offense itself; attempt or solicitation of a capital crime
(1st degree felony) is 2nd degree felony
2. Mitigation - no public danger - don’t prosecute
3. Multiple convictions - can’t be convicted of more than one offense for conduct designed to commit or to
culminate in the commission of the same crime
f. State v. Otto, 629 P.2d 646 (ID 1981) pp 739
1. Charged with attempted murder - defendant hired undercover hit man and paid a portion of the fee
2. Court found it was not more than solicitation, NOT attempt
3. Never was a real intent to kill by the undercover cop
4. Defendant gets off because even though he had culpability, cop wasn’t a hit man
5. Nebraska case, similar facts, convicted of attempted murder
Inchoate Crimes
a. MPC §5.01 Criminal Intent 1. Purposely engages in conduct which would constitute the crime if the attendant circumstance where as he
believes them to be
2. When a result is an element of the crime, does or omits to do anything with the purpose of causing or with the
belief (knowledge) that it will cause such result without further conduct on his part
3. Purposely does or omits to do anything which, under the circumstances as he believes them to be, is an act or
omission constituting a substantial step in a course of conduct planned to culminate in the commission of the
crime
a. Must strongly corroborate criminal purpose
b. Shifts emphasis from what remains to what has already been done
c. Doesn’t matter if actor would probably have desisted prior to completion
d. Less of a hurdle for prosecution than res ipsa loquitur approach requiring actor’s conduct itself to
manifest criminal purpose
e. Examples (not an exhaustive list)
1. Lying in wait, searching for, or following the contemplated victim of the crime
2. Enticing or seeking to entice the contemplated victim of the crime to go to the place
contemplated for its commission
3. Reconnoitering the place contemplated for the commission of the crime
4. Unlawful entry of a structure, vehicle, or enclosure in which it is contemplated that the crime
will be committed
5. Possession of materials to be employed in the commission of the crime, that are specially
designed for such unlawful use or that can serve no lawful purpose of the actor under the
circumstances
6. Possession, collection, or fabrication of materials to be employed in the commission of the
crime, at or near the place contemplated for its commission, if such possession, collection, or
fabrication serve no lawful purpose of the actor under the circumstances
7. Soliciting an innocent agent to engage in conduct constituting an element of the crime
4. Circumstance - whatever the circumstances of the underlying crime (attempted statutory rape has strict liability
with regards to age, et cetera).
b. Solicitation - specific intent crime
1. Solicitation merges with conspiracy
2. Enticing, advising, encouraging, or ordering another to commit a felony or misdemeanor against the public
welfare (many states have expanded this) with specific intent that the one solicited commit the crime
a. Renunciation is not a defense generally
b. Nor is factual impossibility
3. Common law misdemeanor regardless of grade of offense solicited
a. No common law solicitation in Nebraska
4. MPC § 5.02 Solicitation
a. Requires actor to promote / facilitate, not enough that words might lead to crime, PURPOSE required
1. No communication required -- action counts
2. Affirmative defense that actor voluntarily renunciates criminal purpose
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b. Solicitation to commit attempt is possible
c. Solicitor-solicited don’t have to be accomplice-perpetrator
d. Applies to solicitation of all crimes, not just felonies and misdemeanors
e. Attempted solicitation is solicitation under MPC, not attempted solicitation as in common law
Conspiracy - MPC § 5.03 - specific intent crime
1. An agreement between at least two people; an intent to agree, and the intent to achieve the agreement’s
UNLAWFUL objective
2. Each conspirator is liable for all the crimes of coconspirators if those crimes were committed in furtherance of
the conspiracy and those crimes were foreseeable
3. NOT merged into the completed crime (unlike attempt) under common law, but does in MPC § 1.07(1)
4. MPC 5.03 requires an overt act -- common law did not
5. If you quit and notify all others, you’re not guilty of the crime, but still the conspiracy
a. Some states allow one to get off if they take affirmative stops to stop the conspiracy
6. Neither factual nor legal impossibility is not a defense
7. Philosophy
a. Harder to catch if organized
b. Special danger in group activity
8. Procedure
a. Acquittal of one conspirator releases a single remaining conspirator
b. Evidence: Exception to hearsay rule in conspiracy - can use one person to convict the rest
c. Venue: Can prosecute all conspirators in any state where an overt act occurred
d. Overt act starts Statute of Limitations running
e. Prosecutors can put all in same trial
9. Objective of conspiracy must be a crime
10. The Actus Reus
a. The Agreement - need not be formal, cab be inferred from circumstantial evidence
1. Weniger v. United States, 47 F.2d 692 (1931) pp 787
a. Sheriff didn’t enforce liquor law during prohibition
b. Court found no conspiracy
b. Parties to the Agreement
1. MPC - unilateral approach - can be convicted whether or not all the others can be
a. Phonies can be used
b. Minorities of courts still use bilateral
2. Minnesota v. St. Christopher, 232 N.W.2d 798 (1975) pp 792
a. Guy was trying to kill his mom by hiring cousin -- called cousin to say coast was clear
b. Cousin was never going to go through with it, so no liability
c. OK to convict defendant - uses MPC analysis (unilateral)
3. Gebardi v. United States, 287 U.S. 112 (1932) pp 797
a. Court found woman being trafficked couldn’t be convicted of conspiracy and since she
was only other person, man couldn’t be convicted because he was the only one
4. Wharton’s Rule - Statutory interpretation
a. Exception to the general principle that a conspiracy and the substantive offence are
discrete crimes with separate sanctions
b. If law says, “Conspiracy to” or “combination of persons…” it can’t be used to convict
someone of conspiracy to commit because it IS a conspiracy already. You can’t punish
the conspiracy twice
c. Third Party exception: Can convict of conspiracy if more than requisite number of
people are involved
d. Offenses: Incest, adultery, bigamy, dueling
e. Parties to agreement are only committers of substantive offence - must wait until
attempt state to arrest
f. MPC - still recognizes Wharton’s rule, but can’t be convicted of conspiracy and
substantive offense, so usually the same result
5. California v. Lauria, 251 Cal.App.2d 471 (1967)
a. Message service that call girls use
b. Defendant knows what she is doing - charged with conspiracy to commit prostitution
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c. Actus reus is there because there is agreement
d. Court: Mere knowledge is not enough - purpose (direct intent) is required
e. Would not be guilty under MPC 5.03
6. Two lines of common law cases
a. Knowledge is enough
b. Direct intent is required (MPC - Purpose) (may be inferred)
1. State in the venture - charge higher rates to those particular customers
2. No legitimate use for the goods/service exist - activity is illegal by nature
3. Volume of business is higher for illegal clients than for legitimate clients
4. Mens rea burden is high to ensure innocent people aren’t convicted and to
reduce number of people who can be charged - having too wide a group would
hinder businesses and require business owners to extensively interview their
clients
5. Less likely to infer intent from misdemeanor than a felony
7. United States v. Blankenship, 970 F.2d 283 (1992) pp 810
a. Methamphetamine lab - moved location frequently, defendant agreed to let them have it
at his trailer for a while
b. Charged $1,000 a week for rent -- this was a lot of money -- difference between costs
and profits
c. Lawrence didn’t willingly join by renting out his trailer
8. Corrupt Motive Doctrine - MPC and majority of courts reject
a. New York v. Powell, 62 N.Y. 88 (1875) pp 814: Must purposefully act to subvert the
law - if you don’t know it’s illegal, then it’s not conspiracy
b. But if no knowledge of illegality, what’s the point of punishment?
9. United States v. Feola, 420 U.S. 671 (1974) pp 815
a. Conspiracy to assault a federal officer
b. Defendant was trying to sell fake heroin to federal drug officer
c. Shot and killed him but didn’t know he was a federal officer
d. Court: Intent to assault is required knowledge but federal officer is not
1. Federal officer statute just confers jurisdiction so defendant not required to
know that for conviction
2. If no knowledge required for offense, none required for conspiracy
3. Federal officer part is strict liability - mens rea doesn’t have to transfer to that
argument
e. Dissent: Knowledge is required - can’t be guilty of either because no mens rea
f. MPC Applied: no mens rea on face, so apply purposefully, knowingly, recklessly to all
material elements
1. If federal officer is only procedural, don’t have to know
2. Same result -- but if protecting cops is the point, it is material
10. Result and conduct elements: Purpose under MPC 5.03
a. Circumstance - open to interpretation
11. Impossibility is not a defense in any form in courts or MPC
11. Mens Rea
a. Specific Intent Requirement
1. Thacker v. Commonwealth, 114 S.E. 504 (VA 1922) pp 746
a. Drunk men go by tent, ask to be let in, woman says no
b. Walking away, one of the men shoots into the tent; intent was to shoot out the light, not
to kill anyone
c. Example of common law approach: Attempt is intent to commit; direct ineffectual act
done toward commission
d. Specific intent required -- would be depraved heart murder if had killed someone
because subjective awareness
e. MPC § 211.2 would be guilty of statutory reckless endangerment
2. MPC - Purpose or knowledge - purpose of causing or believing it would be caused
3. Common law specific intent - it is not enough to have oblique intent (knowledge) but must
have direct intent (purpose)
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4.
Pepple v. Krovarz, 697 P.2d 378 (CO 1985) pp 748
a. Knowing attempt to attain result is sufficient mental state
b. Specific intent is not required (as in Frysig, requiring purpose)
c. Rare case where court must differentiate between purpose and knowledge; he knows but
reason done is to go back to mental institution; no real intent for the money
d. Under MPC, he’d have to know circumstance -- that it was valuable
b. Renunceation
1. Common law - Cannot abandon plan to avoid guilt once attempt has been made
a. People v. Staples, 85 Cal. Rptr. 589 (CA 1970) (majority view) pp 756
1. Mathematician who drills holes in vault of bank
2. Has actus reus for attempt and has mens rea, then changes mind
3. Landlord took the tools
4. No renunciation defense under common law
5. Guilty of attempt
b. Only can withdraw from liability for the other conspirator’s subsequent crimes
2. MPC § 5.01(4) - Renunciation - subjective approach
a. Total renunciation is a defense
b. Can’t do just because worried about getting caught; can’t transfer to cohorts
c. Reason for the defense is incentive to stop
d. Most federal courts apply this even though not adopted by Congress; many states apply
3. Statutory: Renounce and prevent the commission of the crime
12. Single or Multiple Conspiracies - Scope of Conspiracy
a. MPC § 5.03(2) Scope
1. “Whether or not know identity of others…same crime” language seems to say it’s all one big
conspiracy, but that’s not correct interpretation
2. Correct interpretation: There are seven separate crimes of the same nature, not the exact same
crime. There were seven unique crimes, committed by different people, not one big crime.
b. Kotteakos v. United States, 328 U.S. 750 (1946) pp 826
1. Wheel conspiracy to defraud the government
2. Multiple people had independent relationships with Brown
3. Court said that conspiracies didn’t collapse into one big conspiracy -- no rim, just a hub and
spokes
c. Anderson v. Superior Court, 177 P.2d 315 (1947) pp 829
1. Abortion doctor - referrals from defendant and others
2. Referrers knew that others were making referrals?
3. Court collapsed into one conspiracy
d. Kotteakos and Anderson are clearly not consistent
e. Chain conspiracies - middlemen, distributors, purchasers, smugglers
1. Can split into two side-by-side chains in the distributors don’t know about other distributors
2. United States v. Bruno, 105 F.2d 921 (1939) pp 831 - suppliers are interested in success of all
people down the chain, but distributors aren’t interested in others not in their chain.
f. Wheel Conspiracies - Central Figure, others interact through spokes
1. Knowledge is NOT enough to connect the spokes of the wheel by a rim 2. Must have a STAKE IN THE VENTURES of all others
3. Koteakos: Rim connecting them if Brown had told defendants he’d help them if they found 3
others to send him business
4. There is a difference between several pairs doing the same thing and others knowing all and
being part of a single conspiracy
g. Why Defendants don’t want to be in one big conspiracy and would rather have them split up
1. Can be convicted of ALL the underlying crimes committed by all the others - can be
convicted of the crime itself if others have completed it
2. Venue lies anywhere one of the conspirators is
3. Overt act from any one co-conspirator applies to all defendants
4. Hearsay evidence rule is excepted - so if another co-conspirator testifies against the central
figure, it also damages the defendant
h. Rules
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1.
d.
Agreement plus some overt act in furtherance of the conspiracy (Majority Rule)
a. Any overt act will do (second meeting about the conspiracy)
2. Agreement is enough (Minority Rule)
13. Renunciation and Withdrawal
a. Renunciation
1. Common law traditionally allowed no defense, as with attempt
2. MPC § 5.03(6) - Renunciation is a defense if the crime is thwarted
3. Many jurisdictions follow the MPC
4. Some courts don’t require thwarting - too strict (i.e. NE)
b. Withdrawal
1. Common law recognized it as long as cohorts were informed prior to crime
2. Absent a withdrawal, all co-conspirators are held responsible under Pinkerton Doctrine for
ALL crimes committed in furtherance of the conspiracy
3. MPC § 5.03(7) allows withdrawal if defendant informs others or the police
4. Withdrawal triggers statute of limitations
14. Grading of Punishment
a. MPC - Conspiracy treated the same as substantive offense - 13 states
1. Unless it’s first degree felony, then downgraded to a second degree felony
b. Many courts downgrade conspiracy one notch - 16 states
c. MPC § 5.05(2) allows for reduction of sentence by discretion
15. RICO - Racketeer Influenced and Corrupt Organizations - pp 836
a. Part of the Organized Crime Control Act of 1970
Complicity - Chapter 8 pp 851
1. Accomplice Liability
a. Liable for the crime itself and all other foreseeable crimes
1. Must be actively in on the crime, not just present
b. Requirements: Aid, abet, or encourage with the intent the crime be committed
c. Old Common Law Categories
1. Accessory - aids before or after the fact
a. Before: Procure, counsel, command another to commit a crime
b. After: Receive, relieve, comfort, or assist felon afterward
1. Not an accomplice, but “obstruction of justice”
c. Can be both
2. Principal - aids and is present during the commission of the crime
a. Commit actual crime (Principal in the first degree) or
b. Act at the scene to assist (Principal in the second degree)
1. Getaway car, lookout -- actually or constructively present
c. Cannot be principal and accessory before / after
d. Current treatment
1. Most jurisdictions treat Principal in the first degree, principal in the second degree, and
accessory before the fact as the same - principals
2. Accomplice and accessory are words used to describe principals in the second degree and
accessories before the fact a lot, but the legal responsibility is usually the same as a principal
in the first degree
3. General rule: Aiding and abetting punished the same as a principal
4. Accomplice liability sets in easily -- just have to encourage, facilitate, or aid and have the
requisite intent
e. Limitations
1. Can’t be an accomplice if you are the person the statute was meant to protect
a. The accused - rape in NY courtyard
b. Casino murder with friend standing outside
c. Not accomplices - they didn’t encourage or act -- omissions are almost never culpable
f. MPC § 242.3 - Aiding and Abetting
1. Third degree felony if offense is first or second degree; otherwise misdemeanor
2. All actors are equal except those acting after the fact
g. Actus Reus
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1.
Presence is NOT ENOUGH to generate accomplice liability - encouragement is
a. Make money off of the even
2. The Queen v. Coney, 8 Q.B.D. 634 (1882) pp 853
a. Three men walked by a prize fight and stayed to watch
b. The men did nothing to encourage other than watching
c. Court: Not guilty of aiding and abetting because it didn’t further the assault
3. Wilcox v. Jeffery, 1 All E.R. 464 (1951) pp 857
a. Reporter for magazine attended concert of Coleman Hawkins which was unlawful
b. He bought a ticket and made a profit off the article about it
c. Court: Guilty because he encouraged - causal link was that performers are influenced by
the whole crowd
4. State ex rel Attorney General v. Tally, 15 So. 722 (AL 1894) pp 859
a. Judge Tally telegraphs the telegraph office, telling operator to intercept a telegram that
would have warned the murder victim. Assailants didn’t know of his actions
1. Murder was easier and certain because victim had no warning
b. Court: But for causation is not necessary, but give confidence or embolden the assailant
but actual knowledge of assistance is not necessary. Conviction upheld
c. Principals are the actual killers
h. MPC § 2.06(3)(a)(ii) - Accomplice
1. Purpose
i. Mens Rea
1. Washington v. Gladstone, 474 P.2d 274 (1970) pp 862
a. Defendant guilty of aiding and abetting the sail of marijuana - agent asked where he
could get some pot and defendant named someone and drew a map
1. No evidence of agreement between the two
b. Court: Have to show act in connection with principal - no communication so not enough
-- no purpose -- conviction reversed
c. But for defendant, no sale would have occurred
d. Different from Lauria - nature of transaction is illegal
e. Agreement might make defendant an accomplice - maybe financial benefit
f. Need to make sure culpable people are being convicted
2. New Jersey v. Ellrich, 89 A.2d 685 (1952) pp 864
a. Doctor does abortion referrals (illegally)
b. Guilt inferred from using payphone and using address as reference - prearranged code
c. Conviction was upheld because of sufficient evidence of a concerted action
d. Is Ellrich differentiable from Gladstone?
1. Seems to lower mens rea to knowingly
2. There is a relationship demonstrated by the prearranged code (Court calls this
purposefully)
3. Act PURPOSEFULLY  aid and abet - majority position
a. Selling a gun was a lawful activity, knowing isn’t enough, must be purposefully
b. MPC § 2.06(3)(a) - purpose required
c. United States v. Peoni, 100 F.2d 401 (1938) pp 863
1. If you know purpose, you’re helping
2. You must wish to bring about it by your participation
3. Must have a stake in the venture
4. United States v. Giovanetti, 919 F.2d 1223 (1990) pp 866
a. Illegal gambling
b. Trial judge gave “ostrich” instruction - infer knowledge from suspicion and indifference
to the truth
1. Such behavior is knowledge - negligence standard
c. Court: Purpose of that instruction is not to allow conviction for negligence - it is to
allow conviction for purposefully burying head in the sand
1. Deliberate avoidance of knowledge is sufficient for conviction
2. Defendant didn’t act to avoid the truth, though!
3. Is this case saying purpose or knowledge?
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5.
j.
k.
l.
m.
n.
o.
New Hampshire v. Etzweiler, 480 A.2d 870 (1984) pp 870
a. Defendant loaned keys to drunk driver and let him take the car
b. Drunk driver killed two people and defendant was charged with negligent homicide as
an accomplice
c. Driver charged with negligent homicide (Bailey with Negligent Homicide, Defendant as
accomplice)
d. Mens rea for accomplice liability is PURPOSE relating to the act
e. Mens rea for bringing about a result is the same as for the offence -- unaware and
negligent
f. Court: As a matter of law, cannot be an accomplice to negligent homicide -- he couldn’t
intentionally aid in crime principal didn’t know he was committing -- minority view
g. Dissent: Apply purpose to the conduct and the crime’s mens rea to the result -- if you do
this, defendant would be guilty because he purposely gate keys and acted negligently in
doing so
1. § 2.06(4): Accomplice acts with the culpability required for the offense
h. Possibility of Etzweiler being liable as a principal -- specific acts aren’t specified; he
negligently brought about the death, result is the important element of the statute
i. Statute similar to MPC 2.06(4) - just have to act with mens rea of bring about the result
j. Apply MPC - conduct is purposeful - gave keys, negligence applies to result - should
have known someone could get hurt
6. MPC § 2.06(3): Deliberate ambiguity as to whether the purpose requirements extend to
circumstance elements -- must have purpose as to conduct, but circumstances are up to courts
(like conspiracy)
a. Element Analysis for Complicity
1. Conduct - purposefully
2. Result - underlying crime
3. Circumstances -- unknown -- deliberate ambiguity
7. MPC § 2.06(4): Result element - apply mens rea of underlying offense
Natural and Probable Results
1. Accomplice liability extends to natural and probable consequence
2. If you authorize or pure you’re liable or you don’t but it is probable or natural result, there is
liability
3. Problem is that accomplice could have less culpability than principal
Primary and Secondary Liability
1. Missouri v. Hayes, 16 S.W. 514 (1891) pp 879
a. Principal acted to entrap the defendant accomplice with no real intent
1. Principal acting for the police
b. Principal didn’t have correct mens rea
c. No common motive or design
d. Unless there is a principal, there is no accomplice
Liability of secondary party in relation to primary party
1. Accomplices and principals need not be guilty of same crime - accomplice could have higher
crime if mens rea is higher in homicide case
2. Outside of homicide, same offense is limit for accomplice liability
The Conspiracy - Complicity Doctrine
1. Responsible for crimes of your associate if the crime
a. Fall within the scope of the conspiracy OR
b. It is foreseeable consequence of the unlawful agreement
Pinkerton v. United States, 328 U.S. 640 (1946) pp 884
1. Rule in Federal Courts
2. ALL crimes committed in furtherance of the conspiracy are attributable to ALL conspirators
3. Dissent: One did not aid or abet the other so should not be liable
4. The one in jail could have renounced the conspiracy to stop the crimes of his brother from
being attributed to him
Only some jurisdictions have accepted Pinkerton
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1.
2.
4.
NY - rejected, but recognized that parties to conspiracy could be held accountable for overt
acts of the others. Overt act is not the crime, the conspiracy is
2. MPC rejects it, too -- code does not make conspiracy a basis of complicity in substantive
offenses committed in furtherance of the conspiracy
a. Looks instead to behavior soliciting, aiding, abetting
3. Limit to Pinkerton - sentencing guidelines - must be a crime in furtherance of joint crimninal
activity
a. Can’t be held liable for a murder if the conspiracy was a drug ring
MPC and Complicity - Attempt
a. § 5.01(3) - Can be convicted of attempt if you intended to aid/abet but the act wasn’t completed, so
principal didn’t commit the crime yet
Impossibility
a. Common Law -- useless distinction
1. Legal impossibility - no attempt possible - a complete defense
a. Shoot dead deer out of season (not much different from factual)
b. Think that it is illegal to drink under the age of 21, legal age is 18, you drink at 19 thinking it’s illegal
c. Thinks a prescription is required and the requirement is repealed
2. Factual impossibility - never a defense
a. Pickpocket an empty pocket
b. Shooting an empty bed, thinking there is a victim but there is no one there
c. Raping a dead woman
b. MPC § 5.01(1) - almost never an impossibility defense
1. Looks to mental state and if crime would exist if actor had been correct, regardless of impossibilities
2. “crime could have been committed had the attendant circumstances been as such person believed them to be”
c. People v. Jaffe, 78 N.E. 169 (NY 1906) pp 759
1. Defendant received cloth thinking it was stolen but it wasn’t - wouldn’t have been a crime if completed
2. Knowledge wasn’t there because impossibility to know stolen when they’re not stolen
3. Court: Can’t attempt to commit a crime that isn’t a crime
d. People v. Dlugash, 363 N.E.2d 1155 (NY 1977) pp 762
1. Man shot who he thought was alive
2. Man may or may not have been alive when he shot him.
3. Court: Attempted murder because actor believe victim to be alive at the time he shot at him
4. Rejects common law factual v. legal distinction
e. U.S. v. Oviedo, 525 F.2d 881 (1976) pp 767
1. Attempting distribution of heroin -- wasn’t really heroin, but was
a. Field test indicated it as heroin
b. It was hidden in a television
c. Jury said he thought it was
2. Court reversed conviction - can’t be guilty of attempt
a. Doesn’t apply MPC or fact/legal distinction
b. Uses objective element to say intent not enough because it bootstrap mens rea to actus reus
c. Ignores that jury said he know -- Oviedo believed, so should be guilty?
f. Government stings 1. Put heroin into circulation to catch defendant selling back to government
2. Oviedo stands for the fact that the government has to use real heroin
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3) DEFENSES
1. Classifying Defenses: Robinson pp 928
a. Categories: Failure of proof
1. Not really a defense, but the state hasn’t met its burden
2. If it calls into an essential element of the crime, the state must prove
a. Fulcher v. Wyoming, 633 P.2d 142 (1981) pp 1128
1. Automatism defense or Insanity defense?
2. Physical injury to the brain causing a defense
3. Offense modification
4. Proving Elements
a. Idaho v. Segovia, 457 P.2d 905 (1969) pp 942
1. Is the exception part of the crime? What must prosecution prove?
a. “Killing a human being with malice aforethought except while insane” or
b. “Killing a human being with malice aforethought” except while insane?
2. “Anyone possessing narcotics except with a prescription is guilty of possession”
a. Must they prove the exception? Yes.
b. However, meaningless in Idaho since you can’t have a prescription
b. Mullaney v. Wilbur, 421 U.S. 684 (1975) pp 946
1. Man had allegedly been sexually assaulted and murdered alleged attacker
2. The state bears the burden proof of each element of the crime
a. There is a production and
b. Persuasion burden
3. “Beyond a reasonable doubt the absence of the heat of passion on sudden provocation when
the issue is properly presented in a homicide case”
4. State must prove “malice aforethought,” which they didn’t -- no provocation must be proven
b. Justifications - Not morally wrong or unlawful -defendant committed the crime, but there was a justification
1. Right to Self defense
a. Rational
1. Better that the defender than the perpetrator die if one has to die
2. Some people argue it’s an excuse or it’s a mistake -- not right, but done anyway
a. Putative self defense
b. People routinely will do it anyway
c. No benefit to punishment
b. Requirements
1. The person threatened must actually and reasonably believe
a. The danger of unlawful harm is imminent
b. The use of force is necessary to avert the danger
1. Anytime that victim reasonably believes that force is to be used on them
c. That person threatened is not the aggressor
d. Imperfect Self-Defense
1. Not a reasonable belief -- but a subjective belief
2. If deadly force
a. Threatened force will cause death or great bodily harm
b. The force threatened is a forcible felony
c. Modern Penal Code § 3.04 must be read with 3.09
1. Use of Force Justifiable for Protection of the Person: believes force is justifiable
2. Belief must be non-negligent and not reckless behavior - § 3.09
a. Negligent homicide or manslaughter
3. Has a negligent or reckless belief is not acceptable
d. Third Party Self-Defense
1. Majority view: same as self-defence
2. Minority: Mistake doesn’t excuse -- alter-ego principle
e. Deadly force
1. Majority: If the victim reasonably believes that deadly force is about to be used on them
a. Some jurisdictions are subjective
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2.
c.
Minority: Retreat to the wall if it is safe to do so
a. No duty to retreat to your own home
b. No duty to retreat from rape or robbery
c. No duty no retreat for police officers
f. Original aggressor - doesn’t get back the defense of self defense
1. Except: if the original victim dramatically escalates the force involves (reasonableness)
g. You may act against an excused individual, but not a justified individual
h. Duty to retreat if can be done in absolute safety - in some jurisdictions
1. Never in own dwelling
i. Washington v. Wanrow, 559 P.2d 548 (1977) pp 1035
1. Psycho child-molester gave girl a venereal disease, tried to molest another child
2. Mother shot the guy -- was startled
3. Charged with second-degree murder and assault
a. Lacked a reasonable belief that he was armed or was going to hurt her
4. Brought in prior history
j. North Carolina v. Norman, 378 S.E.2d 8 (1989) pp 1043
1. Husband threatened her, beat her, actually tried to kill her (told paramedics not to help her)
2. The two have been married for eighteen years, she tried to escape and he beat her worse
3. When he’s sober, he’s not such a bad guy
4. Woman killed him while he was asleep, charged with first-degree murder
5. Denied giving the instruction to the jury - traditional instruction of self-defense
6. This may be excused -- but can’t be justified because then she could hire a hit man
7. Perhaps a “reasonable battered woman” standard
2. Defense of a dwelling
a. Deadly force may never be used solely to defend your property
b. Spring guns is a vicarious killing
3. Law enforcement defenses
a. May use that amount of non-deadly force he/she believe necessary for a lawful arrest / prevent escape
b. Deadly force may only be used against a dangerous felony or reasonably necessary felony arrest
1. Private person: dangerous felonies in their presence only
4. Resisting unlawful arrest - reasonable, non-deadly force
a. Only resist a lawful arrest if you don’t know the other person is a police officer
Excuses - Defendant committed the crime - general mens rea defenses
1. You are responsible for soliciting, et cetera, an excused person from committing a crime
2. Infancy a. Under 7 - no criminal liability
b. Under 14 - rebuttable no criminal liability
3. Intoxication a. Involuntary - not criminal responsible if they lack the capacity to conform conduct to the requirements
of law
b. Voluntary intoxication - specific intent crimes only
c. Colorado v. Low, 732 P.2d 622 (1987) pp 1164
1. Defendant consumed a whole bunch of HOLD cough drops, became delusional, and stabbed a
friend (thinks friend is the devil)
2. Medical experts agreed he did not know the difference between right and wrong at the time
3. Didn’t follow statutory procedure for pleading insanity
d. Michigan v. Kelley
1. Guy charged with armed robbery - REALLY drunk
2. Common law view - voluntary intoxication can disprove specific intent crims
a. Intent to deprive owner of property (specific intent crime)
3. Inadmissible for general intent crimes
a. Forced larceny (general intent crime)
4. Insanity - (can use as a defense to all crimes, including strict liability)
a. Problems with control of
1. Cognitive  this is the only thing they should be exculpated for
2. Affective
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5.
6.
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3. Emotional
4. Volitional
b. Daniel M’Naughten’s Case, 8 Eng. Rep. 718 (England 1843) pp 1084
1. ”At the time of the committing of the crime, the defendant was laboring under such a defect
of reason, from a disease of the mind, as not to know the nature and quality of the act he
was doing; or, if he did know it, that he did not know he was doing was wrong.”
a. Must be cognitive - argued too narrow
c. Irresistible Impulse - Mental disease causing the defendant lacked the capacity for self-control and
free choice
1. A misnomer, because they ALWAYS resist part of the time
d. Durham Rule (NH) - defendant’s conduct was a product of mental illness
e. MPC - substantial capacity test
1. As a result of mental disease Defendant lacked the ability to substantial mental capacity to
appreciate the criminality of his conduct or to conform his conduct to the requirements of law
f. Patterson v. New York, 432 U.S. 197 (1977) pp 954
1. Charged with second-degree murder
2. Affirmative defense of “extreme emotional disturbance for which there was a reasonable
explanation or excuse”
3. Defense has burden of proving, beyond a reasonable doubt, that they were disturbed
4. Strong dissent saying that this disregards precedent
5. Compare with Mullaney - burden on Prosecution; here burden on defendant
a. No matter what, Robinson dictates you have to have an act!
b. Black letter law: The legislature gets to write the law and define it however they want to
within certain bounds (see page 958)
c. State may eliminate defense of extreme emotional disturbance because it would be a
pain in the ass to have if they have to prove it every time
g. McMillan v. Pennsylvania, 477 U.S. 79 (1986) pp 965
1. Minimum penalties associated with visibly possessing a firearm during the commission of a
felony.
2. Only treated it as part of sentencing condition
3. Only had to be proven by preponderance of the evidence and not beyond a reasonable doubt.
4. Dissent: just semantics that visible possession of a firearm should not be considered an
element of the crime.
h. Pennsylvania v. Tempest, 437 A.2d 952 (1981) pp 1090
1. Mother drowns her child because he got on her nerves
2. He was going into the first grade and she didn’t want to talk to other people
3. Guilty -- not insane
4. “Mental illness alone cannot absolve appellant from criminal responsibility”
i. United States v. Pollard, 171 F.Supp, 474 (1959) pp 1093
1. Police officer lost his family in a violent crime (drunken neighbor)
2. He felt powerless, started manifesting depression, talking about suicide
3. Started robbing banks unsuccessfully
4. “Latent desire to be captured” - subconscious need for punished for not defending his family
5. Impulse is resistible!
Diminished Capacity - as a result of defect or disease didn’t have the requisite state of mind
a. May be acquitted of one crime but committed of another
1. Charged with first degree but mental abnormality preventing premeditation
a. Not insanity
b. United States v. Brawner, 471 F.2d 969 (1972) pp 1133
1.
c. Morse, Undiminished Capacity in Diminished Capacity pp 1135
1. Partial Responsibility - defendant has the full mens rea, but partially excuses the action
Duress - rob that store or I kill you (both a justification and a excuse (most of the time an excuse))
a. Must be an immediate threat (broadly interpreted) of death or bodily harm by a human agent on you or
a loved one unless you commit a crime
b. Under common law, not available for homicide (changed in most states)
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3.
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c. Goes against the general blameworthiness mens rea
d. Regina v. Hudson and Taylor, 2 WLR 1047 (England 1971) pp 994
1. Accused of perjury and claimed defense of duress (“get her and cut her up”)
2. Duress must be an immediate threat, but broadly interpreted
3. “Because their execution could not be effected in the court room, if they could be carried out
in the streets of Salford the same night.”
7. Necessity a. At common law, necessity was not a defense to homicide
1. Breaking into a store when you are about to die.
2. Save 6 million people by killing 5 people
b. MPC § 3.02
1. Conduct which the actor believes to be necessary to avoid a harm or evil to himself or to
another is justifiable, provided that:
a. The harm or evil sought to be avoided by such conduct is greater than that sought to be
prevented by the law defining the offense charged and
b. Neither the Code nor other law defining the offense provides exceptions or defenses
dealing with specific situation involved and
c. A legislative purpose to exclude the justification claimed does not otherwise plainly
appear
c. Can’t do it to save your own life
1. Regina v. Dudley and Stephens, 14 Q.B.D. 273 (England 1884) pp 1004
a. Men aboard a boat, really hungry, no food, ate a boy
b. Ship came four days later
c. Was there necessity? No. Death, which was commuted to six months
d. Perka v. The Queen, 13 D.L.R.(4th) 1 (Canada 1984) pp 1008
1. Natural forces (bad weather) force dope dealers ashore
2. They get caught with a butt-load of dope on the shore, claim a necessity defense
3. Majority: It’s an excuse
4. Minority: It may sometimes be a justification
e. Discussion: Prisoner about to be ass-raped in prison -- do they get a defense?
1. If it’s a defense at all, think of the policy ramifications
2. If it is justified, if it is justified, then anyone aiding and abetting get off
a. Also justified in defending himself against the guard
b. Guard interfering in the lawful actions of the prisoner (unlawful arrest)
3. If it is excused, then the accomplice is still guilty
a. Not excused from any incidental crimes related to the escape
d. Non-exculpatory public policy defenses
1. Statute of Limitations
2. Entrapment - very narrow
a. Originated where the intent originated with law enforcement
b. Predisposition on the part of the defendant negates the entrapment
c. Almost never available
General Intent: An intention to do the prohibited act, not necessarily obtain the wrongful result
Consent of victim - Do not indulge this defense
a. Consent of an adult to travel is a defense to kidnapping
b. Consent to intercourse is a defense to rape
c. Consent to medical surgery is a defense to battery
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4) COMMON LAW CRIMES
a) Common Law Felonies
1. Murder
2. Manslaughter
3.
b) Common Law Misdemeanors - less than one year and / or a fine
1. Assault
2. Battery
c) Infamous crime
1. Involves fraud or dishonesty
d) Descriptions
1. Battery: a completed assault
2. Criminal Battery - a general intent crime, a simple misdemeanor
a. Requirements
1. Unlawful
a. Consent can be a defense
2. Application of force
3. To the person of another
4. Resulting in a
a. Bodily injury
b. Offensive touching
b. Aggravated battery (varies from state to state)
1. A deadly weapon
2. Serious bodily harm
3. Particular kind of victim -- child, policeman, etc
c. Requires no intent
1. Recklessness
2. Criminal negligence
3. Subject to transferred intent
3. Criminal Assault - specific intent crime (attempted battery) - general intent crime (threat)
a. Intent
1. Attempted battery (specific intent crime)
2. Intentional and physical (not merely verbal) creation of fear of imminent bodily harm in the mind of the victim
a. Threat (general intent crime)
b. Generally a misdemeanor (a minority of states view only attempted battery as criminal assault)
c. Aggregated Assault
1. Assault with a deadly weapon
2. Intent to commit a violent crime against the victim
3. Generally considered a felony
d. Assault with a dangerous weapon
1. Must actually possess a dangerous weapon (an unloaded gun doesn’t work except as a club)
4. Homicide - The victim must be human!
a. Common law did not have degrees of murder
b. Murder - must have intent - Second degree murder
1. Intent to kill
2. Intent to do serious bodily harm
3. Depraved heart murder (example: Russian Roulette)
4. Felony murder
c. Manslaughter
1. Voluntary manslaughter - provoked fight
a. No cooling off period
b. Killing form passion
2. Involuntary manslaughter
a. Killings from criminal negligence (driving, falling asleep, killing people)
b. Misdemeanor Manslaughter -
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5.
6.
7.
8.
Spring 2009
1. Killing someone while committing a misdemeanor or
2. Unenumerated felony
Burglary - Specific intent crime - does not merge
a. Elements of Common Law Burglary
1. A breaking
a. Actual - some force
b. Constructive - by threats or fraud
1. Woman gives a servant a key to clean, lets her friends in
c. Not a breaking for someone to come in through a wide-open door or window
1. Push open an interior door, it’s breaking
2. Must be a sub-portion of the building
2. Requires an entering
a. Any part of the defendant’s body enters the house
b. An inanimate object must be inserted to accomplish the felony, not just gain entry
3. Must be a dwelling house of another - not a commercial building
4. Must be at night - when the sun went down
5. With the intent to commit a felony inside at the time of the breaking and entering
a. Walking into the house for fun, then decide to steal, not a burglary
b. Most modern statutes have
1. Breaking, entering or remaining inside
2. Any kind of structure
3. Any time of day
4. Any kind of crime inside
c. Does not merge with the felony
Embezzlement
a. Always had lawful possession
b. Don’t have to take the money for yourself or even benefit
c. Get possession, not title
False Pretenses
a. Defendant persuades owner of property to convey title by a false pretense
b. The false pretense (false representation) must be to a present or past fact (not future promise)
Larceny
a. Wrongful taking and asportation of the personal property without the consent of the owner with the intent to deprive the
person permanently at the time of the taking
b. Taking the property when you believe it’s yours isn’t larceny
c. You only get possession, not title
d. Statutory
1. Theft by continuing trespass
a. Didn’t know it was yours when you took it, but you keep it anyway later
2. Theft by trick a. Promise to do something in the future
b. Changing price tags
e. No common law crime of “theft!”
1. Brings in all three common law offenses - larceny, false pretenses, and embezzlement
f. Mis-delivered property - Realizes the mistake at the time of delivery decides to steal the property
g. Abandoned property -- can’t constitute larceny because it doesn’t deprive anyone of it
h. Lost property -- Can be subject to larceny when
1. The one who finds the property has reason to believe he can learn the owner’s identity (or he already knows it);
AND
2. When the finder takes possession of the lost property he must, at that moment, have the intent to steal. The
intent cannot come later.
i. Custody v. Possession
1. Custody is the physical control subordinate to the right of others
a. Dropping off of costumes and keeping one, that’s larceny
1. Master has retained constructive possession
2. Possession is the right to control and the right to exclude others
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9.
10.
11.
12.
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Spring 2009
a. If you have the right to possess and keep them, it’s embezzlement
b. If you quit and take the work tools with you, that’s larceny (lost the right of possession)
Robbery - larceny plus assault
a. Take from the person or his presence
1. Tie up farmer and then take something somewhere else
b. Any small amount of violence due
1. Pick pocketing is larceny, yanking a necklace is robbery
c. “Your money or your life” immediately is robbery; future harm is extortion
Extortion - “Either you give me $4000 or I will….”
a. To be extortion, you don’t have to take anything from the person or his presence
b. The threats are of future harm
Arson
a. The malicious burning of the dwelling house of another
1. Not explosions, smoke damage, or water damage
2. You can’t commit arson on your own house, but a landlord commits arson if he torches the rental property
b. A material wasting of the fiber of the building by fire; Damage required: not just scorching, but charring
c. Statutory Arson
1. Includes explosions, smoke damage, water damage
2. To any kind of structure, even your own house
Forgery - the making of a false writing with an intent to defraud
a. Can be done by altering a document
Uttering
a. A forged security under the pretense that it’s legitimate
Bribery
a. The receiving or giving
b. Of consideration
c. With the intent of influencing official conduct (jurors, voters, policemen, or politicians)
Perjury
a. Under oath
b. Makes a statement which is false as to some material aspect
1. Capable of affecting the proceedings but needn’t affect the outcome actually
c. Which one does not believe is true
1. Need not know of the falsit, just believe the statement is false
Malicious Mischief
a. Common law misdemeanor
b. Malicious destruction or damaging of another’s property
c. Destroying requires only diminution in value or utility
d. Malicious requires only that the wrongdoer intend or contemplate the damage
e. Mens rea is constructive -- based on the fact that they committed the damage
Mayhem - Malicious dismemberment disabling, a body part or maiming a person
a. Some states require intent to maim or disfigure
Kidnapping a. Requirements
1. Moving a victim (asportation)
2. Confining him/her against will
b. Aggravating circumstances
1. Use of force
2. Demanding a ransom
False Imprisonment - Common law misdemeanor
a. Requirements
1. Intentional and unlawful
2. Confinement of a person
3. Without his consent
Rape - specific intent crime
a. Requirements
1. Unlawful intercourse
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Criminal Law - Gardner
e)
Spring 2009
a. Under common law, the slightest penetration competed the crime of rape
b. Penetration not required
2. With one other than one’s wife (retained in the modern penal code, but many have abandoned)
3. Without consent
a. Fraud nature of the act - not sexual intercourse, but gin rummy?
b. Fraud in the inducement - claimed they were really married -- consent is valid
c. Under the age of consent, can’t consent, therefore statutory rape
1. Mistake as to the girl’s age, even if reasonable, is no defense
d. Can’t consent if intoxicated or mentally retarded
21. Statutory Rape - strict liability crime
Two additional defenses to specific intent crimes
1. Voluntary intoxication
2. Mistake of fact - no matter how silly
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