CRIMINAL LAW
PROFESSOR HOFFHEIMER
SPRING 2002
I. BASIC CULPABILITY DOCTRINES
Part I: The Traditional Concepts
A. Sources of Law – Always ask yourself what the source of legal authority is.
 Common Law
o Historical sense – the English origins of a law
o Development of law in American jurisdictions
 Model Penal Code
o Developed by thinkers who felt that there was enough of a
consensus to hammer out a standard
o Never intended to be adopted verbatim; it’s more of a
suggestion
o No state has ever adopted the MPC from beginning to end
o It is not the Common Law
o Many states have adopted portions of the MPC into their law;
MS has not
 MS Law
B. Purpose of Criminal Law
 The thing that is distinctive about criminal law is that it is designed to
punish the offender.
 Four rationalizations for punishing the offender:
1. Incapacitation – theory for neutralizing people who might
do harm but are not necessarily morally blameworthy (e.g. the
lady who was put in Parchman because she had TB and refused
to get help).
2. Retribution – getting even with those who have caused harm
touches an emotional need to fire back at someone.
 The problem:
o The “got you last” effect
o Sometimes retribution is not available (e.g.
when someone commits suicide)
o Sometimes retribution would create another
wrong (e.g. torturing someone for what they
did wrong)
3. Deterrence – discouraging a certain type of behavior
 Specific Deterrence – deterring a particular
individual from doing something wrong (e.g. we
don’t want Bob robbing the Kroger gas station
again)

General Deterrence – deterring the general public
from doing something wrong by punishing one
person
 The Problem:
o We don’t know how effective it is.
o What we do know is that, to some degree,
the effect of deterrence seems to be greater
based on how great the punishment is.
However, juries are more reluctant to
enforce more severe punishments.
4. Rehabilitation – trying to deter someone from committing
crimes by attempting to give their soul a makeover.
 The Problem:
o We’re not sure that it works.
o Some adults might feel that they’re not
being treated with dignity.
C. Some Criminal Law-Related Terms
 Habeas Corpus – civil procedure to test the legality of someone’s
confinement. In the United States, it prevents Congress from
suspending an inquiry into someone’s confinement.
 Bill of Attainder – special legislative act providing capital
punishment without a trial for a person guilty of a high offense such as
treason or a felony; prohibited by the Constitution.
 Treason – attempting to overthrow the government of the state to
which one owes allegiance, either by making war or materially
supporting its enemies
 Bill of Rights – defines the situations in which a politically organized
society will permit free, spontaneous, and individual activity, and
guaranteeing that government power will not be used in certain ways
 Corpus Delecti – “the body of the crime,” does not mean that there
must be a dead body in evidence. It refers to:
o The material or substance upon which a crime was committed
(e.g. a body, house, etc.)
o The substantive fact of crime; evidence of act and agency.
D. The Stages of Criminal Procedure
1. There’s a crime that someone claims has been committed
2. Leads to an arrest
3. Initial appearance
o Opportunity to form a charge
o See if bail is a possibility
4. Preliminary hearing
o Judge must determine if there is a probable cause over which
the grand jury might bind the accused
5. Grand Jury
o Must decide if there will be an indictment (i.e. a formal charge)
6. Arraignment
o D is brought into the court and read the indictment
o D enters a plea (e.g. guilty, not guilty)
7. Trial
o Jury must swear to return a true verdict
o Right to a jury trial may be waived, and then there is a bench
trial
o The critical point in the case is when the judge gives
instructions to the jury
o After instructions, jury finds a verdict
o After verdict, sentencing
 If you’re the D, it would be preferable to have some
distance of time between the verdict and the sentencing.
That way, they’ll have a distance between hearing the
victims testify about how angry they are and deciding
what to do with the perpetrator of the crime.
 If you choose to appeal, remember that you file your
appeal in the county trial court.
E. The Common Law Approach to Criminal Law
 Criminal Law in MS: MS follows the Common Law approach.
 Elements - When you have several different elements of a crime:
o They must all be proven with evidence in order to convict
someone of the crime.
 Under US law, due process requires the element to be
proven beyond a reasonable doubt.
o Furthermore, the jury must be properly instructed on each
element
o How it works:
 E.g. in Faulkner, three of the elements of the crime
were setting fire, setting fire maliciously, and doing so
to a ship.
 If someone sets fire to a dock, or does it accidentally,
then they are not guilty of that crime.
 Mens Rea (intent): There must be a “culpable state of mind.”
o Words that have been used (sometimes confusingly) to
describe mens rea: maliciously, willfully, feloniously
o U.S. v. Yermian: There must be mens rea with every criminal
conviction unless it's a jurisdictional question.
 E.g. you may have to “knowingly” and “willfully”
make false statements, but you do not have to
“knowingly” and “willfully” do so within the
jurisdiction of the federal government in order to be
convicted of the jurisdictional element of the crime.
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Actus reus: An accused must have committed a criminal act to be
convicted; the law does not punish thoughts that are not acted out.
o The act normally consists of a prohibited physical act, but it
may consist of an omission where there is a duty to act.
Mens rea established traditionally with one of three states of mind:
o General intent: the volitional doing of the prohibited act
 E.g. recklessness (involving actual awareness of a risk
and the culpable taking of that risk).
o Specific intent: requires some intent to do something more
than merely the proscribed act; the intent to accomplish the
precise criminal act with which one is later charged
 E.g. robbery, assault, burglary, forgery, etc.
 General Rule for Specific Intent: An honest and
reasonable mistake of fact is a defense because there is
a mental element that attaches to all of the elements of
defense.
 Majority Exception: Statutory rape
o Criminal Negligence: involves a gross breach of a duty to care
Voluntary Intoxication:
o The Rule: Voluntary intoxication is a defense to crimes of
specific intent but not to crimes of general intent.
 The Problem with this Exception: No one has been
able to really explain why this distinction makes sense,
or even how we are to tell the difference between
specific and general intent.
 The Solution: Many modern codes, and the Model
Penal Code, have abandoned the general/specific
distinction, and instead set forth the precise mental state
required for each element of each crime.
o Voluntary Intoxication in MS (from McDaniel v. State): It is
not available as a defense if:
1. The defendant was able to tell the difference between
right and wrong, or
2. The defendant voluntarily prevents himself from
distinguishing from right and wrong by getting drunk
In other words, in MS, voluntary intoxication is almost
never going to be a defense to crime.
F. Mistake of Law
 Generally no defense: as a general rule, “mistake of law is no
defense.” More precisely, this means that the fact that the defendant
mistakenly believes that no statute makes his conduct a crime does not
furnish a defense.
o Example: Defendant, who is retarded, does not realize that
unconsented-to intercourse is a crime. Defendant has
unconsented-to intercourse with the victim. Defendant’s
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ignorance that unconsented-to intercourse is a crime will not be
a defense; so long as defendant intended the act of intercourse
while knowing that the victim did not consent, he is guilty.
o No “reasonable mistake” exception: So long as the crime is
not itself defined in a way that makes defendant’s guilty
knowledge a prerequisite, there is usually no “reasonable
mistake” exception to the “mistake of law is no defense” rule.
It is important to remember that the oft-stated rule, “Ignorance of the
law is no excuse,” really only means “Ignorance that a statute makes
one’s conduct a crime is no excuse.” A mistake of law as to some
collateral fact may negative the required mental state, just as a mistake
of fact may do so.
o Example: D reasonably believes that he has been divorced
from W, his first wife, but in fact the “divorce” is an invalid
foreign decree, which is not recognized under local law. D then
marries V. D’s “mistake of law” about the enforceability of the
prior divorce will negative the intent needed for bigamy.
 However, if he’s married to five women, but isn’t
aware that his state has an anti-bigamy law; he has no
defense of ignorance.
Innocent or Passive Conduct: A person will probably not be
convicted of a crime when it is entirely innocent or passive (i.e. they
haven’t done something that, like other criminal acts, should put them
on notice, Lambert).
Unclear Statutes: How the court construes criminal statutes that are
ambiguous:
o “Rule of Lenity” – principle that ambiguous criminal statutes
should be construed in favor of the defendant to require some
type of mens rea.
 Under this rule, there is a requirement of mens rea
unless the crime at issue is a strict liability crime.
o The Problem – When the legislature doesn’t specify what the
required mental element for the crime is, the result is
courtroom battles over what mental element is required.
Extraordinary cases of mistake of law dealing with mental
element:
o Long: Ignorance of the law is allowed when a man’s lawyer
tells him that his divorce is valid in another state and the man
unknowingly commits bigamy.
o Erhlichman: Someone who has been “authorized” by the
president to do something illegal is not excused for thinking
that the president had the authority to request such a thing.
Part II: Distinguishing between Malum Prohibitum and Mal in Se Crimes
A. Malum prohibitum vs. mal in se
 Malum prohibitum – a crime that may not be morally wrong, and is
not dangerous in itself, but violates a public welfare regulation
o Most of these came about in the last century and a half since
most of our new areas of legislative activity took place after the
Civil War.
o No culpable mental state is required for these types of crimes.
 Mal in se – a crime that is considered morally wrong, has traditionally
been considered morally wrong, and is dangerous in itself
o A culpable mental state is required for these types of crimes.
 Who would you rather defend? A client who is guilty of a crime
that is mal in se because in that case, the state would be required to
prove more in order for your client to be convicted.
B. Criminal Intent and Silent Statutes – Balint and Morissette approaches:
 Balint: Man convicted of selling a substance that had just been
prohibited because he didn’t fill out the appropriate tax form before
selling it. Court determined that it would frustrate legislative purposes
to require mens rea for the crime. After Balint, prosecutors had the
idea that unless there was a specific mens rea requirement, courts were
going to rule in their favor.
 Morissette: Case where the man recycled the bomb casings for money,
violating a federal law against knowingly stealing and converting U.S.
property. The Court says some type of mens rea is required.
o Court uses Morissette to clarify: Court says that Balint only
applies to public welfare cases (i.e. offenses adopted for the
public good).
 E.g. dumping trash in the ocean, selling bad milk,
selling cocaine derivatives without filling out the proper
forms.
o Essentially, the Court is drawing a clear line between malum
prohibitum (like Balint) and mal in se (Common Law offenses
like stealing, rape, or murder).
 Typical Situation: All of the elements of a crime are present, but
defendant says he didn’t do it with criminal intent.
o Note: When we talk about a mens rea, there’s some level of
mens rea for all of the elements. When we talk about crimes
that are strict liability we’re talking about crimes that are based
on one element. Usually in these cases that one element is the
thing being challenged.
 Determining what type of offense the legislature intended:
o Typically, some level of mens rea is required. The exception is
statutory crimes where a requirement of mens rea would
frustrate the legislative purpose of the statute.
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o Therefore, it’s up to the court to determine legislative intent
(by attempting to discern whether it’s a malum prohibitum or
mal in se crime).
What a legislature can do to clear these kinds of issues up: State
specifically, “There IS/IS NOT a mens rea requirement,” when
drafting the legislation.
What all of this adds up to: Since a case may rest upon the
distinction of whether the crime is malum prohibitum or mal in se the
main task will be determining legislative intent.
C. Hoffheimer’s Guidelines in Determining Legislative Intent
1. History of the Statute – How old is this crime? The older the crime,
the more likely it is a mal in se crime. The younger the crime, the
more likely it is a malum prohibitum crime.
2. Tradition – Is it an offense that is traditionally considered immoral?
If so, then probably mal in se.
3. Objective – What’s the objective of the criminal law at issue? Is it
attempting to punish an individual for wrongdoing or is it attempting
to prevent risks or dangers to the public for the good of some larger
policy objective? If the latter, probably malum prohibitum.
4. Amount of Regulation – Is it an area of extensive regulation with a
variety of various criminal regulations (e.g. tax law, environmental
law, drug enforcement)? If so, probably malum prohibitum.
5. Potential Hazard – Does the activity pose a risk of great harm to
many people? If so, probably malum prohibitum.
6. Severity – the more severe the punishment in the statute the more
likely the crime is mal in se.
 Note: None of these guidelines are absolutely reliable, and a lot of
them overlap. They’re just guidelines to legislative purpose.
Part III: The Conduct Requirement
A. Unconsciousness
o Rule: Where not self-induced, unconsciousness (a “fugue state”) is
a complete defense to a crime (from Newton). A bodily movement
is not “conduct” unless it is voluntary, i.e. directed by the will.
Otherwise, there’s no liability for the crime.
 Remember: Defendant’s claim that an act was not
voluntary because he was unconscious does not have to be
specially pleaded, and the defendant does not have to prove
he was unconscious. He must only prove that there is a
reasonable doubt on the matter.
o Model Penal Code: The MPC effectively recognizes the defense.
Defendant is not liable if he does not commit a “voluntary act,”
and a “voluntary act” is defined so as to exclude a “reflex or
convulsion” or movement during “unconsciousness.” See outline
of MPC §2.01(1) and (2) infra.
o Jury Instructions: The jury must be instructed on the requirement
that the act be voluntary when there is the possibility that the act
was done automatically.
o Recognized Instances: Automatism may be caused by physical
trauma, sleepwalking, epileptic seizures, and has even been
recognized in cases of hypnosis (though there has been much
debate over how much hypnosis deprives some of the free will to
do something).
B. Omissions
o General Rule: In most situations, there is no criminal liability for
an omission to act (as opposed to an affirmative act).
o Existence of legal duty: There are some “special situations”
where courts deem defendant to have a special legal duty to act:
 Statute: Defendant’s omission may be punished under a
statute that speaks in terms of positive acts (e.g. “You must
drive the speed limit”).
 Contract: Similarly, a legal duty may arise out of a
contract (e.g. the Pestinikas case where the couple
contracted with the older gentleman to take care of him, but
they actually ended up starving him to death).
 Special relationship: Where defendant and victim have a
special relationship — most notably a close blood
relationship – defendant will be criminally liable for a
failure to act. Other relationships that fall into this
category: employer/employee, common carrier.
 Voluntary assistance: Finally, defendant may come under
a duty to render assistance if he undertakes to give
assistance. This is especially true where defendant leaves
victim worse off than he was before, or effectively
dissuades other rescuers who believe that defendant is
taking care of the problem.
 Creating the risk of harm: Defendant may come under a
duty to assist a person whom he has injured.
Part IV: The Model Penal Code
A. Culpability: The MPC requires culpability to accompany all material
elements.
B. MPC § 1.13. General Definitions
1. Statute: includes the Constitution and a local law or ordinance of a
political subdivision of the State
2. Act or Action: bodily movement whether voluntary or involuntary
3. Voluntary: meaning specified in §2.01
4. Omission: failure to act
5. Conduct: an action or omission and its accompanying state of mind,
or, where relevant, a series of acts and omissions
6. Actor: includes, where relevant, a person guilty of an omission
7. Acted: includes, where relevant, “omitted to act”
8. Person, he, and actor: include any natural person and, where
relevant, a corporation or an unincorporated association
9. Element of offense:
i. Such conduct or
ii. Such attendant circumstances or
iii. Such a result of conduct as
a. Is included in the description of the forbidden conduct
in the definition of the offense; or
b. Establishes the required kind of culpability; or
c. Negatives a defense under the statute of limitations; or
d. Establishes jurisdiction over or venue
10. Material Element of an offense: Basically, anything the prosecution
has to prove about the crime is a material element:
i. The harm or evil, incident to conduct, sought to be prevented
by the law defining the offense, or
ii. The existence of a justification or excuse for such conduct.
C. MPC § 2.01. Requirement of Voluntary Act; Omission as Basis of
Liability; Possession as an Act
1. A person is not guilty of an offense unless his liability is based on
conduct which includes a voluntary act or the omission to perform an
act of which he is physically capable.
2. The following are not voluntary acts within the meaning of this
Section:
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.
3. Liability for the commission of an offense may not be based on an
omission unless:
a. The omission is expressly made sufficient by the law defining
the offense; or
b. A duty to perform the omitted act is otherwise imposed by law
4. Possession is an act, within the meaning of this Section, if the
possessor knowingly procured or received the thing possessed or was
aware of his control of it for a sufficient period to have been able to
terminate his possession.
D. § 2.02 General Requirements of Culpability
1. Minimum Requirements for Culpability: a person isn’t guilty of an
offense unless he acted purposely, knowingly, recklessly or
negligently, as the law may require, with respect to each material
element.
o Note: Strict liability only applies to non-criminal “violations,”
which are punished merely by financial penalties. There is no
criminal strict liability (I assume that statutory rape is an
exception to that assertion).
o Note: This subsection provides that one must have the required
degree of culpability with respect to each material element of
the offense.
2. Kinds of Culpability Defined: these replace traditional terms like
“willfully” and “maliciously”
a. Purposely. A person acts purposely with respect to a material
element of an offense when:
i. If the element involves the nature of his conduct or a result
thereof, it is his conscious object to engage in conduct of
that nature or to cause such a result; and
ii. If the element involves the attendant circumstances, he is
aware of the existence of such circumstances, or he
believes or hopes that they exist.
b. Knowingly. A person acts knowingly with respect to a material
element of an offense when:
i. If the element involves the nature of his conduct or the
attendant circumstances, he is aware that his conduct is of
that nature or that such circumstances exist; and
ii. If the element involves a result of his conduct, he is aware
that it is practically certain that his conduct will cause
such a result
 Note: The first two are easiest because they mean
what they sound like.
c. Recklessly. A person acts recklessly with respect to a material
element of an offense when he consciously disregards a
substantial and unjustifiable risk that the material element
exists or will result from his conduct. The risk must be of such
a nature and degree that, considering the nature and purpose of
the actor’s conduct and the circumstances known to him, its
disregard involves a gross deviation from the standard of
conduct that a law-abiding person would observe in the
actor’s situation.
 Note: This element involves two standards:
 Objective: Substantial and unjustifiable and gross
deviation from the standard of law abiding persons.
 Subjective: Actual awareness, conscious disregard
d. Negligently. A person acts negligently with respect to a
material element of an offense when he should be aware of a
substantial and unjustifiable risk that the material element
exists or will result from his conduct. The risk must be of such
a nature and degree that the actor’s failure to perceive it
involves a gross deviation from the standard of care that a
reasonable person would observe in the actor’s situation.
 Note: Negligently is radically different than recklessly
because it is entirely objective. Negligence involves the
failure to perceive a risk of which one ought to have
been aware. Recklessness involves a conscious
creation of a risk.
 Note: Recklessly and negligently have a different
definition in criminal law than they do in other fields of
law.
o Illustration of the four types of culpability: A terrorist throws a
bomb into the ambassador’s limousine, killing the ambassador, the
ambassador’s butler, the driver, and a bystander in the street. The
terrorist’s purpose was to kill the ambassador. He knew the bomb
would also kill the butler (who was riding in the limo) but sincerely
regretted this happening. He told a friend beforehand that he was
aware that the bomb might possibly kill the driver, but he hoped the
driver would survive. He never thought about the possibility that any
bystanders might get injured or killed, but this possibility was
sufficiently likely that he ought to have foreseen it.
o The terrorist purposely killed the ambassador, knowingly
killed the butler, recklessly killed the driver, and negligently
killed the bystander.
o A Common Mistake: it appears that each of these crimes is of a
different degree and carries a different penalty. That’s not necessarily
the case. In fact, the MPC homicide provision punishes all killings as
murder except that of the bystander.
3. Culpability Requirement Applies to All Material Elements. If the
law defines the culpability requirement for an offense and doesn’t
distinguish between the required culpability for each individual
element, then that culpability applies to all of the elements unless a
contrary purpose plainly appears.
4. Substitutes for Negligence, Recklessness, and Knowledge. There’s
a hierarchy to the levels of culpability (P, K, R, and N) and if you can
establish one of the elements that has another one under it, then both of
those elements will be assumed. E.g. if you acted purposefully, then
you also acted knowingly, recklessly, and negligently.
5. Requirement for Willfulness Satisfied by Acting Knowingly. When
knowledge of a particular fact is an element of an offense, such
knowledge is established if a person is aware of the high probability of
its existence, unless he actually believes that it does not exist.
6. Culpability as to Illegality of Conduct. Knowledge that the conduct
is illegal is not necessary unless the definition of the offense or the
Code so provides.
E. §2.04. Ignorance or Mistake
1. Ignorance or mistake as to a matter of fact or law is a defense if:
a. It negates the P, K, R, or N required to establish a material
element of the offense, or
b. The law provides that the state of mind established by such
ignorance or mistake constitutes a defense
2. Mistake isn’t an available defense if the defendant would have
been guilty of another offense had the situation been as he
supposed. In that case, he can only be convicted of the offense for
which he is guilty.
F. §2.08. Intoxication
1. Intoxication isn’t a defense unless it negates an element of the
offense
2. Voluntary intoxication doesn’t negate recklessness
3. Intoxication will be a defense if
a. It isn’t self-induced or
b. The actor is excessively drunk but he didn’t think that
drinking that much would get him that drunk.
G. MPC in Case Law: These cases demonstrate how hard facts can confound
the MPC.
 Jewell
o Rule: An accused may be convicted of an offense that requires
knowledge if the accused remained deliberately ignorant of the
criminal aspect of the transaction involved.
o Demonstrates a problem with MPC: It doesn’t cover “willful
blindness.”
o Even though the MPC doesn’t specifically provide a rule for a
situation where someone remains deliberately ignorant, the
court of appeals chooses a broad interpretation of “knowingly”
in §2.02 (7).
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Coats
o Rule: If the only thing you have to prove is criminal
negligence, there’s no defense of intoxication.
o Potential defense: Automatism. It should probably be given to
the jury if there’s proper evidence of it. However, there is a
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valid concern with the public policy implications of allowing
someone such a defense. Anyone could claim they were acting
automatically when they were irresponsibly drunk.
Marrero
o Rule: A misinterpretation of a statute is not a valid defense to a
crime that does not require an intent to violate the statute.
o The man tried to say that he made a good faith mistake of law.
Court says that since intent is not required for this violation,
mistake of law is no defense.
o The narrow defense of mistake of law is intended to encourage
adherence to the law. D’s proposed defense would encourage
mistakes about the law.
II. DISCRETION AND THE RULE OF LAW
Part I: Constitutional Limits on Criminalizing Conduct
A. Due Process Requirement: The constitutional requirement of due process
mandates that a criminal statute specify precisely what conduct is punishable. A
criminal statute may be unconstitutionally vague if it fails to define the offense
clearly enough to either (i) discourage arbitrary and discriminatory application or
(ii) put ordinary people on notice as to what conduct is prohibited.
 Need for rules: The notion of a government of laws requires that
citizens know in advance what conduct is legal. The Constitution
prohibits laws that would impose retroactively a change in the
definition of a crime or a punishment.
 Need for discretion: Society can implement its criminal laws only
through officials responsible to exercise discretion. The institutions
created to permit discretion can lead to abusive action. The conflict
between rules and discretion requires examination of criminal
procedure.
B. Vagueness: A statute violates due process when:
 It doesn’t provide fair notice for persons of ordinary intelligence.
 It encourages arbitrary and erratic law enforcement
Note: The more specific a statute, the more fair notice has been given.
C. An Exception to First Amendment Protection: “Fighting Words”
 “Fighting Words”: Words that have the substantial tendency to provoke
violent retaliation or other wrongful conduct in the average person
 Statute problem: There’s a problem when a statute prohibits “abusive
and obscene language.” This could be overbroad and not just cover
“fighting words” but criminalize behavior that’s constitutionally protected.
o The test for overbreadth: A statute is probably overbroad if, like
the court held in State v. Anonymous, defendant could be convicted
of a crime based on a verbal assault without the jury’s finding that
defendant uttered “fighting words” – essentially, when the state is
allowed to use criminal law to regulate non-criminal behavior.
D. Mens Rea Requirement: The majority of courts hold that a mens rea
requirement in the statute will relieve the statute of being objected to on the
grounds that it punishes without warning of an offense of which the accused was
unaware (Screws).
Part II: Sentencing Discretion
A. Problem with sentences: they are often clearly defined but overbroad in terms
of speech.
 E.g. the case of the mom who put her kids on a dangerous veggie diet and
refused to properly nourish them (Pointer). Part of her sentence was that
she was prohibited from having children during the probationary period.
B. Challenging a sentence based on unreasonableness and overbreadth (from
Pointer):
 D argued that her sentence was unreasonable (a general challenge to a
sentence):
o Three part reasonableness test for a sentence (from Pointer): A
condition of probation will not be held invalid unless it…
1. Has no relationship to the crime of which the offender was
convicted
2. Relates to conduct which is not in itself criminal
3. Requires or forbids conduct which is not reasonably related to
future criminality.
Holding: The court held that her sentence was reasonable.
 D argued that the sentence was overbroad (a claim that is limited to
fundamental rights, and one that is a strict sort of scrutiny):
o Test for overbreadth of a sentence: Look at whether the sentence is:
1. Entirely necessary (not just “related”) to serve the dual purposes of
2. Rehabilitation and
3. Public Safety
Note: These requirements leave us asking ourselves if there is some
less restrictive requirement. The theoretically less restrictive
requirements leave us asking ourselves if they are actually realistically
applicable (especially in the Pointer case).
Holding: The court proposed an alternative and held that the sentence
was overbroad.
C. Challenging a sentence based on disparate sentences (from Ely):
 D argued that the court abused its discretion when it gave D twice the
sentence that it gave his co-criminals for the same crime.
o Determining whether a disparate judgment was inappropriate:
There has been an abuse of discretion if:
1. The court used improper information in making the judgment (e.g.
if a court used information from unrelated past crimes, it would be
improper unless it was used to establish behavior patterns).
2. No discretion used at all (e.g. the judge always sentences the
maximum amount regardless of the crime).
Note: “The short answer is that there’s nothing you can do when a
judge exercises his discretion but just happens to be more punitive.” –
Hoffheimer
D. Challenging a sentence based on abuse of discretion standard of review
(from Oxborrow):
 D argued that the appellate court should have applied an abuse of
discretion standard of review to his sentence and reduced it.
o Determining whether an exceptional sentence should be reversed:
A court may not reverse an exceptional sentence unless:
1. The sentencing judge’s reasons are not supported by the record or
do not justify the sentence, or
2. The sentence is clearly excessive or clearly too lenient.
E. Challenging a sentence based on the admission of the victim’s input (from
Stringham and Booth):
 Stringham: D argued that victim’s father had no right to come in and
make a statement about the propriety of D’s plea bargain during the first
hearing of the case.
 Holding: The first hearing was a sentencing proceeding, even though it
was not limited to the arraignment and pronouncement of sentence.
 Booth: Supreme Court held that a victim impact statement could not be
used at the sentencing phase of a capital murder trial because it would
only inflame the jury. That decision was limited to capital cases.
 Distinguishing Stringham and Booth:
1. Stringham wasn’t a capital murder case.
2. The statement of the dad wasn’t made to a fact finder at the
sentencing phase of a capital trial; it was made to the court as part
of a procedural hearing of a second degree murder and kidnapping
trial.
Part III: Capital Punishment
A. Exclusion of “Scrupled” Jurors: In Witherspoon, the Supreme Court held
that you could not exclude someone from the jury simply because they had
scruples about the death penalty (unconstitutional to only have “death qualified”
juries).
 Valid exclusions of jury members:

1. “For cause” exclusions: you can excuse a potential jury member
“for cause” if they indicate that they absolutely will not follow the
directions of the court.
2. Preemptory challenges: challenges that are afforded counsel for
any reason at all (other than improper reasons). E.g. you could
eliminate someone with a preemptory challenge because they were
uncertain how they felt about the death penalty.
Advantage of “death qualified” juries for a prosecutor:
1. Easier to get convictions
2. Easier to get longer sentences
B. Discriminatory Enforcement: In McClesky, the Supreme Court held that just
because black men are statistically more likely to be punished by the death
penalty doesn’t mean there’s discrimination going on, unless it can be proven that
black men are being punished by the death penalty because they are black men.
C. Furman v. Georgia – The Supreme Court held GA’s death penalty statute to
be unconstitutional because it allowed imposition of the death penalty in a
capricious and arbitrary manner.
D. Constitutionality of Capital Punishment:
 In Gregg, the Supreme Court affirmed the imposition of the death penalty
under circumstances where the jury’s discretion is limited by legislative
guidelines that provide procedural restrictions.
o E.g. the GA statute in Gregg would only allow the death penalty
for a limited number of crimes. Then, the jury must find that one
of 10 aggravating circumstances exists before imposing the death
penalty.
 Woodson – Supreme Court held that a mandatory death penalty imposition
for certain crimes is unconstitutional. In light of Gregg, that means that
the death penalty has to be discretionary and guided by legislation at the
same time.
 Coker – demonstrated, in a rape case, that the only crime that gives a clear
constitutional directive for the death penalty is murder.
 Gilmore – Supreme Court held that there’s no constitutional need to
review the death penalty if defendant doesn’t appeal it.
E. How state courts responded to this flurry of capital punishment holdings:
1. Legislatures rewrote statutes to redefine what killings subjected people to
the death penalty.
2. Bifurcated trials – trial of issues separately. E.g. guilt and punishment.
3. Aggravating factors – juries were being advised to find aggravating factors
before imposing the death penalty
4. Creation of opportunities for appellate review where the court will
consider the arbitrariness of the judgment.



Idea behind these changes: the system now provides much more control
over discretion. Addresses fears like juries sentencing black men just
because they are black, and it will insure that not everyone who commits a
crime can get the death penalty for it.
Problem: We’re not sure if all of these safeguards really remove
discretion from the process or provide a meaningful guide for using
discretion.
Note: Arave (infra) is representative of the kinds of problems the Supreme
Court has made for itself with its capital punishment rulings.
F. Arave: Aftermath of the Supreme Court’s Capital Punishment Holdings:
 The problem in Arave: Is “utter disregard” for human life (defined as
“cold blooded and pitiless”) a meaningful enough guide for a sentencing
judge that it effectively guides the use of discretion? Supreme Court says
yes.
 The standard: A capital sentencing scheme must “suitably direct and
limit” the sentencer’s discretion “so as to minimize the risk of wholly
arbitrary and capricious action.”
 Guiding examples the Court used:
o Good – “relishes...derives pleasure from [killing]”; it’s more direct
o Bad – “outrageously, wantonly vile”; what murder doesn’t fit this
description? It’s too easy to apply.
III. CRIMINAL HOMICIDE
Part I: Murder & Manslaughter at Common Law
Note: You’re going to have to know each set of laws well enough that you can
analyze a fact pattern under each set on an exam.
Note: Don’t forget about the applicability of the voluntary intoxication defense
to crimes under MS law, MPC, and Common Law.
A. Common Law Murder: Blackstone defined murder as any killing of a
reasonable creature with “malice aforethought.” The term eventually acquired
meaning through case law. Now murder is simply known to be a killing with:
1. Malice and
2. No provocation
B. Malice has a very fixed, technical meaning: It includes:
1. Intent to kill (even if it’s a “mercy killing”)
2. Intent to inflict a serious bodily injury
3. Extreme recklessness
 E.g. if you throw a brick off the top of a skyscraper in New York
doing rush hour.
 Also characterized by the words “depraved heart”
4. Felony murder – certain killings during the commission of certain felonies
are murder because the killer is said to have malice.
Note: In England, malice has evolved to the point that it only corresponds
with the first two types.
C. Two forms of malice from Blackstone:
1. Express malice (falls under the first two categories)
2. Implied malice (falls under the last two categories)
D. Common Law Manslaughter: At Common Law, a killing could be criminal
and not murder in two ways:
1. Involuntary manslaughter: A killing without malice that occurs as the
result of an unlawful act. An unlawful act is:
 Some sort or crime (i.e. misdemeanor)
 More importantly, an unlawful act because of the presence of some
kind of criminal negligence.
o There’s no simple answer to the question of what the difference
between criminal negligence that amounts to murder and
criminal negligence that only amounts to manslaughter.
 Note: Most states have abolished misdemeanor manslaughter, but MS
has not. Most states that have it require that the misdemeanor be
inherently dangerous.
2. Voluntary Manslaughter: There are some killings in which there would
be malice present because there’s intent to kill, but the Common Law says
that the presence of provocation mitigates the maliciousness.
E. Provocation has a very, fixed technical meaning with three requirements:
1. Actual provocation: the accused must be provoked. Even if a reasonable
person would have been provoked under the circumstances, it must appear
that the particular accused is in fact subjectively provoked.
2. Legally adequate: Four recognized forms:
a. Assault
b. Assault to a close family member
c. Adultery (actually catching the victim engaged in the act of
intercourse)
d. Imperfect self-defense (if it’s perfect then we’re not talking about
criminal liability at all)
i.
They were unreasonable in their belief that they had to use selfdefense
ii.
They responded with an excessive amount of force
3. No reasonable “cooling off” period: If a period of time elapses between
the provoking incident and the killing sufficient to allow the passions of a
reasonable person to cool off, then the fact that the accused does not in
fact cool off is no excuse.
F. Felony Murder Rule: causing the death of someone during the commission of
a felony (a crime punishable by more than a year in prison) constituted malice
under the Common Law.
 Application:
o Usually, a jurisdiction which incorporates the word “malice”
according to the old Common Law definition will adopt some form
of the Felony Murder Doctrine.
o The Felony Murder Rule is still followed in most American
jurisdictions.
o It is a Common Law creation that got snuck in under the auspices
of a need to find malice.
 MPC: does not recognize the Felony Murder Rule.
o MPC requires one of three mental states (purposefully, knowingly, or
recklessly).
o But MPC says that you can take into account the evidence surrounding
the crime and that can be allowed to provide a presumption of one of
the three mental states.
o Therefore, although it’s not the same as the Felony Murder Rule, it
does look, sound, and work similar to the Felony Murder Rule.
 Note: The FMR is only needed in cases where there was some felony
taking place and there was no intent to kill or inflict serious injury (such
cases are very rare).
o The tension among authorities:
o Courts are sometimes reluctant to hold a criminal liable for the
highest form of murder when all the criminal truly intended to do
was commit a felony.
o At the other end of the spectrum is the case where a criminal
intended to commit a felony and it resulted in murder, but the
circumstances surrounding the felony were so revolting (e.g. rape)
that applying the felony murder rule seems quite just.
 Limitations Imposed by Courts (summarized in the MPC):
1. “The felonious act must be dangerous to life:” Courts are split on this
one but it’s one that is commonly addressed in such cases.
2. The killing must be a natural consequence of the felony.
3. Essentially the same as two.
4. The felony must be malum in se
5. The act must be a common law felony (similar to four)
6. Strictly construing the time period in which the felony is in the process
of commission.
7. Merger doctrine: requires that the felony be independent of the
homicide or, said another way, so integral that the felony could be
included in the act of murder.
 The Gist: There are just some crimes that are not going to be able
to be separated; most crimes are not independent.
 Policy Reason: This prevents a situation where almost every
killing could be deemed a murder.

 MS: Rejects merger for burglary and child abuse.
Case Law Interpretations:
 Patterson (CA): Requires that the felony be “inherently dangerous” in
order for the FMR to apply
 Canola (NJ): FMR does not impose liability on one criminal when his
co-felon is killed by the victim of the felony.
o Victim killing: FMR applies when the victim attempts to defend
himself and ends up shooting another victim.
 Hoang (KS): A felon can be guilty of felony murder when his cofelons die during the commission of the felony but not due to the
actions of any third parties.
 Dowden (TX): When the criminal uses the victim as a shield and the
victim is killed by someone else as a result, there is no need for the
FMR when there’s an established intent to kill (e.g. walking into a
police station with a loaded gun).
Part II: Murder & Manslaughter in MS
A. Murder in MS: In order for there to be a killing done unlawfully there must
be:
1. A killing done by deliberate design
2. Or by an act eminently dangerous evincing a depraved heart regardless of
human life, or
3. Any felony murder without design other than [the list in next sentence] is
murder.
4. Killings committed during the commission of rape, burglary, kidnapping,
arson, robbery, sexual battery, unnatural intercourse with any child under
the age of 12, felonious abuse or battery of a child are capital murder.
 Note: “Deliberate design” probably means not much more than an
intent to kill, maybe not much more than an intent to commit serious
injury. E.g. evidence of a shooting is sufficient evidence of “deliberate
design” in MS.
 E.g. Tate (MS): Some guys in MS were hanging out in an apartment
one afternoon playing with a gun.
 Late in the afternoon, the guys start roughhousing and one guy puts
the gun to his friend’s head and pulls the trigger.
 After doing so, the shooter falls to the floor in tears, upset that the
gun went off and killed his friend.
 MS Supreme Court held that he could not be convicted of murder
since there was not enough evidence to show the act was
“eminently dangerous evincing a depraved heart.”
B. Manslaughter Liability by Felony in MS (Felony Manslaughter Rule): A
killing that is done:
1. Without malice
2. As a result of culpable negligence (reckless and wanton and of such
character as to show utter disregard for the safety of others)
3. While the person is engaged in a felony.
4. Other than rape, burglary, kidnapping, arson, robbery, sexual battery,
unnatural intercourse with any child under the age of 12, felonious abuse
or battery of a child (those are capital murder).
 Note: There’s a MS goof-up here. Note that under our law, you can either
prosecute someone under the FMR under murder or manslaughter.
C. Voluntary Manslaughter in MS: A killing that is done with:
1. Without malice
2. In the heat of passion
3. With a cruel, unusual, or dangerous instrument
 Note: A heat of passion killing that was done in MS without a cruel,
unusual, or dangerous weapon would not be manslaughter.
 Penalty: Person will be fined no less than $500 or imprisoned no more
than one year in the county jail or both; or be placed in the state
penitentiary no less than two years, but no more than 20 years.
D. Involuntary Manslaughter in MS: A killing:
1. Done without malice
2. With culpable negligence (reckless and wanton and of such character as to
show utter disregard for the safety of others)
E. Capital Murder in MS: Capital murder is:
a. Murder (see statutory definition of murder; it’s not just a killing) of a
peace officer or fireman
b. Murder by a defendant who’s under sentence of life imprisonment.
c. Murder by a bomb or explosive device
d. Murder by someone who has been offered or received anything of
value for committing the murder and all parties to the murder
e. Killing (not murdering) someone while doing one of the things in the
list
f. Murder on educational property (broadly defined)
g. Murder of a elected official, with the knowledge that the victim was a
public official
F. Aggravated DUI (Vehicular Homicide): If a person is:
1. Operating a vehicle
2. While under the influence of intoxicating liquor or any other substance
that impairs a person’s ability to operate a motor vehicle
3. In a negligent manner
4. Causes mayhem, injuries, or death
Then they will be subject to no less than five years in prison and no more
than 25 years in prison.
Note: The mens rea requirement is only civil negligence (a remarkably easy
test to satisfy) as opposed to culpable negligence. Civil negligence works in a
similar fashion as strict liability. With culpable negligence, they have to have
utter disregard for human.
Part III: MPC
A. MPC Murder: Unlawful killing done
1. Purposefully
2. Knowingly or
3. Recklessly under certain circumstances manifesting an extreme disregard
for human life.
 No Intent Needed: MPC does not require an intent to kill.
 FMR: The MPC does not have the Felony Murder Rule, because it
effectively makes the person automatically guilty. MPC lets the jury
hear certain evidence which, under the felonies listed, allows an
inference of such negligence.
o The list is mostly the same as MS, though it doesn’t include
felonious child abuse.
B. MPC Manslaughter/ Negligent Homicide:
 Involuntary: A killing that is done:
 Recklessly
 Voluntary:
 Killing which would have been murder
 But defendant was under the influence of extreme mental or
emotional disturbance which would have given a reasonable
explanation.
 Negligent: Negligent homicide is a killing done negligently. Always
argue one of the top two and this.
Part IV: Mens Rea for Homicide
A. Jury instructions and mens rea: There’s a trick to it that’s quite important:
 Juries are asked to draw reasonable inferences; that D intended the
reasonable consequences of their act.
 But they can't be instructed that they must make certain inferences (e.g.
from the shooting itself you must make the inference of intent to kill).
 Still, we have to be really careful not to give the jury instructions which
reduce the required intent to kill.
 Instead, you could instruct the jury that they may draw reasonable
inferences that D intended by shooting to kill.
B. Modern Approach to Manslaughter (from Berry): The CA Supreme Court
held that, even if it happens over an extended period of time, “the heat of passion
must be the kind of passion that would be provoked in the mind of a reasonable
person.”
 In regards to the “cooling off” period, the court seems to acknowledge that
conduct can have a cumulative effect.
 Note: Illinois is one of the few states that make an exception to this widely
accepted rule.
C. MS and the Modern Approach to Manslaughter (from Roland): MS seems
to follow the modern approach. MS Supreme Court held that it was error to hold
that it was murder when evidence included ongoing adultery and words –
something the Common Law approach would have rejected immediately.
D. Transferred Intent: If a defendant has malicious intent with respect to the
person he tries to kill but defendant actually ends up accidentally killing another
party instead, the intent to kill is transferred to the accidental victim.
 Transferred intent also applies in manslaughter cases.
Part V: Degrees of Murder
A. Degrees of Murder:
 Common Law and MPC – neither have degrees of murder
 MS – Didn’t used to have any kind of degree of murder; now there’s at
least capital murder (see capital murder supra)
 Historical Source – PA legislature (and others who followed) decided to
come up with a form of murder that would be the worst and most
deserving of punishment. PA’s statute said that the key to murder was
“premeditation and deliberation.”
o Note: Just because two states have a first degree provision does
not mean they have the same requirements for first degree murder.
B. Difference in first degree murder statutes and Common Law: Many of the
statutes call for murder plus something else but don’t define what murder is,
making every other murder second degree murder. At Common Law, you must
first clearly establish that you have murder.
 The problem: What if you technically have murder, but it’s with poison
and without malice?
 Determining the meaning of “premeditation and deliberation”: Two
approaches:
o Less burdensome for prosecution: E.g. in PA, there must be a
fully formed purpose and such a fully formed purpose which PA
interprets can be evidenced by what looks like spontaneous, spur
of the moment actions. Defendants would rather use the statute to
distinguish between certain types of killings, but PA erodes the
distinction through its interpretation and makes it closer to good
old fashioned intent to kill.
o More burdensome for prosecution: E.g. in NY, “deliberation”
requires a definite purpose in causing death and some reflection on
that purpose. “Premeditation” requires some appreciable time to
think about the murder.
C. The Policy Consideration with First Degree Murder: Courts are motivated
by a felt need to give the first degree murder requirement some substance.
Otherwise, juries will always be able to convict of first degree murder, and a first
degree murder conviction will largely be based on how much the jury hates the
defendant.
 E.g. in Washington State, the court deals with this problem in the Bingham
and subsequent Ollens cases.
o In Bingham, where the guy strangled a woman for 3-5 minutes, they
held that a finding of premeditation couldn’t rest solely upon evidence
that an act takes an appreciable amount of time. Reasoning: otherwise,
any killing that takes more than a moment could result in a finding of
premeditation.
o In Ollens, the court distinguished from Bingham, saying that manual
strangulation is one continuous act. In this case, the court reasoned
that each stab wound was an independent act.
D. Intent to End Suffering (from Gilbert): A mercy killing is not a defense to a
premeditated murder. Since the elements of premeditation and deliberation are
present, it’s first degree murder, even though it might seem unfair to make such a
killing fall into the category of the worst kind of murder.
Part VI: Determining When Life Begins & Ends/Causation
A. Issue: For any kind of homicide someone must cause the death of another
human being. That requirement can present two problems:
1. What does it mean to cause a death?
2. What is another human being?
B. “Human Beings, Persons, and Reasonable Creatures”: A baby falls into
this category according to Common Law tradition, but a fetus does not.
C. Born Alive Rule: A baby who, as a result of violence perpetrated against the
mother’s womb, is born prematurely and then dies is a “human being, person, and
reasonable creature” by virtue of their birth.
 Exception: This rule will usually not apply unless there is a statute that
criminalizes the killing of a fetus.
 Some courts will not convict of murder or manslaughter in the case of
a mother who illegally terminates her pregnancy (e.g. by shooting
herself in the stomach) if they are unsure that the legislature intended
to extend liability to the intentional killing of a fetus.
D. MS Killing of an Unborn Child §97-3-37:
1. It is manslaughter if someone willfully kills an unborn, quick child under
circumstances that would be murder if the mother had died (go back to the
murder statute to look at what murder is).
2. Holds a person liable who intentionally injures the woman who had the
miscarriage.
 Issue: Since the defendant must intentionally injury a woman who is
pregnant, is defendant still liable if he didn’t know that the person he
was injuring was pregnant?
 Sitton v. Day – MS Court of Appeals says it’s not necessary for the
defendant to know that the woman he is injuring is pregnant before the
court can hold him liable for the death of the child.
E. Failure to Continue Life Support Systems: Whether or not a doctor is
criminally liable for failing to continue life support systems depends on whether
his decision is viewed by the court as an act or an omission.
 Duty to Act: Doctors have a duty to act (to provide life support systems)
unless there is a court-appointed person who declines treatment. If there
is no court-appointed person, the doctor is allowed to consider the
patient’s best interest, factoring in the desires of the family members.
 Omission: If prosecuted for pulling the plug (because patient not totally
brain dead) even though family requested, court may interpret it as merely
an omission (i.e. just a failure to give treatment).
F. Medical Assistance an Intervening Cause: If someone is mortally injured by
a criminal and upon arriving at the hospital, the doctor’s negligence results in the
death of the victim, whether or not the criminal is still held to be liable for the
death depends on what type of negligence the doctor acted with.
 Ordinary negligence: The doctor’s decision will not held to be an
intervening cause (e.g. blameless, yet premature harvesting of organs).
 Gross negligence or intentional malpractice: In this case, the doctor’s
negligence will break the causal chain.
G. Criminal Law Causation Analysis:
 You have your but for analysis (discussed infra)
 Then look at proximate cause (if there was a natural continuous sequence)
 Year and a day rule (discussed infra)
 Transferred intent (discussed supra)
H. Understanding Inconsistencies in Causation Verdicts: The Sleaze Test:
Some inconsistencies are repeated by juries. The reason, it seems that the sleazier
the thing being done, the greater the likelihood a jury is going to find causation.
 Juries are influenced by factors like the blameworthy mental state.

As a result, sometimes only tort-type standards (a reasonably close causal
connection between the conduct and the injury) will be enough to establish
causation.
I. “Year and a Day” Rule: For a murder at Common Law, the victim had to die
within a year and a day after the defendant inflicted the injury.
 Manslaughter: This only applied to murder, not manslaughter.
 Controversy: Many jurisdictions have had to reconsider this rule.
o Some jurisdictions have rejected the rule in light of circumstances
involving life support systems.
o What really creates a problem is when the rule has been codified in
a statute.
o Reasoning for the rule: it is a causation limitation.
o Can lead to strange results: E.g. a criminal asking for an injunction
to keep the family from pulling the plug on the victim.
o MS has never addressed this, so we don’t know the status of the
rule in our state.
J. But-for causation of a suicide: A defendant will be held liable for the suicide
death of another when the suicide victim was rendered mentally irresponsible as
the result of the injury inflicted by defendant.
o Limitation: Defendant may only be held liable for the result of the
victim’s reaction to the wound (e.g. if the victim’s father hears about it
and kills himself, the defendant will not be held liable).
K. Manslaughter Liability for Reckless and Wanton Conduct: If defendant is
engaged in a joint scheme (e.g. a game of Russian Roulette) and members of the
same party interact in such a way that it encourages the other(s) to behave in a
way that would result in homicide, those who survive will be held liable for
manslaughter.
 The mens rea will be provided by the fact that their conduct was reckless
and wanton.
IV. RAPE
A. Common Law Rape Requirements:
1. Carnal Knowledge
o Male/female genital contact
o Some penetration by male
 Problems: carnal knowledge is pretty exclusive when you consider
that there are other ways to achieve invasiveness (e.g. sodomy is
not included)
2. Force
o Actually forcing the act of intercourse or
o Preventing resistance by threat of physical injury or serious bodily
harm.
 Resistance not a separate requirement. Resistance is not an
element but an evidentiary requirement that is needed to show
force and lack of consent
 Marital exception: still codified in some American statutes
3. Against the will of the victim
B. MS Rape Statute: Sexual intercourse under three circumstances:
1. Statutory Rape: where victim is 14-15 years old and
o Victim is three years younger than defendant or
o Defendant is 17 years or older or
o Victim is not the spouse
2. Statutory Rape: where victim is 0-13 years old and
o Victim was 24 months younger than defendant or
o Victim was not the spouse
 Note: Regarding statutory rape:
o Consent and lack of chastity are not a defense
o No need to prove penetration where the body part that was
penetrated was injured by the act of penetration
o The statute is drafted in gender neutral language so that a boy is
also capable of being raped.
o Strict Liability Crime: It is not a defense that defendant believed in
good faith that the victim was at least 16.
3. Forcible Rape: 97-3-65
o Forcible sexual intercourse, or
o Intercourse induced through intoxication or drug use
o So as to prevent effectual resistance
 Resistance: We don’t know if we require resistance, but our statute
seems to indicate it.
 Note: If there is a statutory or forcible rape, the crime will usually fall
under sexual battery as well.
C. MS Sexual Battery Statute: A person is guilty of sexual battery if they
engage in:
1. Sexual penetration (broadly defined as any penetration of the genitals,
anal openings, or oral contact)
a. Without the consent of
b. A mentally defective person (e.g. someone who’s mentally
retarded), a mentally incapacitated person (e.g. someone
who’s drunk), or a physically helpless person (someone
who’s unconscious or unable to communicate their
unwillingness for some reason); or
c. A child who satisfies the two statutory rape requirements
(above).
o Effect of last element: If the rape is a result of sodomy
(making it not fall under statutory rape) then it still falls
under sexual battery.
2. Sexual penetration with a victim who’s under the age of 18 by
someone who’s in a position of trust.
D. Hoffheimer’s Warnings:
 Captions: When reading statutes, don’t rely on the captions. Editors get
those wrong sometimes (e.g. “Statutory rape enhanced penalty for
forcible sexual intercourse”).
 Model Jury Instructions: You must know the law well enough to
recognize when the model jury instructions are wrong. In that case, you
say, “Your Honor, I move that we not use the model jury instructions here
because there’s new law and this decision will be reversed otherwise
because these instructions are based on old law.”
E. Standard of review for a jury verdict: If there was any evidence by which a
reasonable jury could have found the evidence of rape satisfying and they
received proper instructions, you must argue that the jury was wrong as a matter
of law.
F. Arguing No Resistance Requirement in MS: Under the old statute, there are
decisions which indicate that resistance is required. However, it seems plausible
under the new statute that prosecutors can argue that MS should go down the CA
path of no resistance requirement.
V. BURGLARY, THEFT, AND LARCENY
A. Larceny:
1. Taking and carrying away
 Pretty easily satisfied
2. The personal property of another
 Not real property, and not your own stuff
3. With the intent to steal
 Requires:
a. Intention to permanently deprive the owner of the property
(e.g. joyriding wouldn’t fall under this requirement)
b. Intention to convert the property for the thief’s own use as
opposed to destroying the property.
4. Under circumstances which make it trespassery (conversion).
 Not the tort of trespassing on land
 “Trespassery” is a technical term at Common Law which means a
tort of a certain kind of behavior which gives rise to a cause of
action under a personal property tort.
B. Robbery:
1. Larceny (see requirements supra)
2. From a person (this doesn’t mean by a person)
3. By violence or intimidation
 Shoplifting: not robbery
 Pick-pocketing: not robbery, but closer
 Purse snatching: robbery
C. Burglary:
1. Breaking
2. And entering
3. The dwelling place of another
4. At night
5. With the intent of committing a felony
D. Evolution of the requirements: What happens is that, over the centuries,
legislatures fill in the gaps that these requirements leave. For example, one
statute might include words like “breaking and entering of a car, or boat, or
storage shed, etc.”
 We don’t need to know how these Common Law elements are
modified by the MPC or MS statutes, though we might see a statute
on the final exam.
 If he does give such a statute on the final exam, he recommends that
we be really uncreative and first just try to find the elements at a
base level, and then get creative in finding evidence in the facts that
will satisfy the particular elements of the statute.
VI. ATTEMPT
Part I: Preparatory Conduct
A. Purpose in Punishing Attempts: The purpose for punishing attempts is
deterrence. Although a criminal may not have completed the crime, we want to
discourage criminals from even trying.
 Another reason: Without statutes that criminalize attempts, police have
no right to stop legal activity that is leading up to criminal behavior.
B. Federal Statutes and Attempt: Congress doesn’t usually criminalize criminal
attempts (not verbatim at least). When Congress wants to criminalize an attempt,
they add it to the crime. So there are a lot of federal crimes that are satisfied by
an attempt to complete some goal. For example, the US Code will say “If a
person should commit the crime of rape or attempt…” but MS’s statute will have
a separate statute for rape and attempted rape.
C. MS Attempt Statutes: In general, MS attempt statutes usually include:
1. Design and endeavor (specific intent to commit an offense)
2. Overt act which must be a direct, frustrated act
3. An act that fails or is prevented (must be proved beyond a reasonable
doubt)
 Note: In Ishee, it appears that MS has moved the line even further
back for what is required for attempt. In the case where a man’s
sexual offer to a child in Wal-Mart was held to be sexual battery
(30 years in Parchman), the MS Supreme Court indicated that
preparatory conduct would be sufficient qualify for the required
overt act.
D. Two elements of Attempt:
1. Mens rea: the specific intent to attempt to commit the crime
2. Actus reus: usually some act beyond mere preparation.
 Note: None of the cases we looked at indicate where to draw the
line between mere preparation and actually attempting to commit
the crime.
E. Hoffheimer Warning: Beware of fact situations that involve mixed attempt
liability/accomplice liability/conspiracy questions. The case may be able to be
tried under several laws.
F. Areas Where the Legal Authorities are Divided:
 Level of mens rea required
o E.g. in MS, specific intent to commit the particular act is
required. That’s not true in every jurisdiction.
 Level of actus reus required
o The time line problem: Jurisdictions are split on just how
far a criminal has to move along the time line ending at
completion of the crime before the attempt is considered
criminal.
 E.g. MPC requires a “substantial step” and although
several jurisdictions may have adopted that
language, many of them may have interpreted it a
different way.
 Note: The older a case, the closer on the time line
it’s going to require the act to be to the completion
of the crime. And many of these cases are
overruled by newer, stricter legislation.
 Whether or not the defense of abandonment is available.
G. MPC Attempt: A person is guilty of an attempt if, having the required mens
rea, he:
a. Purposely engages in conduct that would constitute a crime if the
circumstances were as he believes them to be.
b. When causing a particular result is an element of the crime, he does
something with purpose of or the belief that such conduct will cause
the result.
c. Purposely does something which, under the circumstances as he
believes them to be, constitutes a substantial step in a course of
conduct that would end in the crime being committed.
H. MPC Substantial Step Conduct: Behavior which is strongly corroborative
(indicative) of a criminal purpose to commit the crime. MPC examples:
a. Lying in wait, searching for or following the contemplated victim
b. Enticing or seeking to entice the contemplated victim of the crime to
go to the place contemplated for its commission.
c. Scouting out the place contemplated for the commission of the crime.
d. Unlawful entry of a place where it’s contemplated the crime will be
committed.
e. Possession of materials to be used in the crime, which are specifically
for such unlawful purpose or which can serve no lawful purpose for
the defendant under the circumstances.
f. Pulling together the materials needed to commit the crime close to the
place contemplated for its commission.
g. Soliciting an innocent agent to engage in conduct constituting an
element of the crime.
I. Defense of Abandonment/Renunciation: MPC (subsection 4(f)) recognizes
the defense of abandonment only if such abandonment is complete and voluntary.
 It is not voluntary if it is motivated by circumstances where the actor is just
afraid of getting caught or where it’s simply too hard to go through with the
crime.
 It is not complete if it’s motivated by a decision to postpone the crime until a
better time or if the actor just decides to transfer the effort to another victim.
 General Rule: The general rule is that there is no defense of
abandonment.
Part II: Attempt: Intent and Impossibility
Intent
A. The Majority/Minority Rule on Mens Rea for Attempt:
 Majority: The majority (MPC, MS, federal statutes) has a higher
mens rea requirement for attempt (intent to kill) than for murder
(specific intent – depraved heart, etc.). If you don’t have the intent
then you can’t be found guilty of attempted murder.
 Minority: The minority requires that for attempt liability there
must be acts which go beyond mere preparation coupled with the
mens rea required for attempt.
Impossibility
A. Drug Deals: If the defendant is under the impression that they are in
possession of a drug and they attempt to sell it, they cannot be held liable for
possession of a prohibited substance with an intent to distribute if it’s not actually
a drug. However, if it was the legislature’s intent to hold a defendant liable for
possession even when he ignorantly thought he was in possession, then he will be
held liable.
B. MPC Approach to Defense of Impossibility: MPC does away with the
defense of impossibility in general. Under MPC, when someone engages in
conduct that would have made the conduct a crime if the circumstances were as
the party believed them to be, there is no possibility of defense.
 MPC is subjective: The fact that a reasonable person would not
have thought that the attempt would cause the result doesn’t
matter. It’s subjective punishment.
 Concerns with MPC subjective approach to impossibility: The
more we rely on a subjective test, the more we will worry that we
are punishing thought and watering down the offense by allowing
loonies like the voodoo witch doctors to be convicted in these
cases.
 MPC Voodoo: MPC says that even if defendant thought that their
behavior would bring about the criminal result, it is a valid
attempt.
 MS Voodoo: We don’t have an appellate court ruling on it. In the
one case we do have, the guys who tried to kill a judge with
voodoo magic didn’t try to argue impossibility.
C. Confusing Common Law Distinctions in Impossibility:
 Factual Impossibility: conduct where the objective is prohibited by the
criminal law but a circumstance unknown to the actor prevents him from
bringing it about. It is no defense at Common Law.
o E.g. a thief who picks an empty pocket.
 Legal impossibility: situation where the intended acts would not amount
to a crime even if completed. It is a defense at Common Law.
 Problem: The distinction doesn’t really hold up. Going one way or the
other means 20 more or less years in the state pen. Jurisdictions that have
used this have just ended up manipulating it to whatever result they were
trying to get.
 Still Around: Impossibility definitely hasn’t disappeared. You need to
know the Common Law definitions because it could go either way under
either definition.
 MS: MS has not dealt with impossibility as of now.
D. True Legal Impossibility: When a person is doing something that they think
is wrong, but it’s actually perfectly legal.
 E.g. Fishing without a license when it is perfectly legal, but you think it’s
not.
Part III: The Elements of Conspiracy
A. The General Federal Conspiracy Statute (18 U.S.C.A. § 371) Conspiracy to
commit offense or to defraud the United States happens when:
 Two or more persons
 Conspire
o To commit a federal crime or to defraud the United States
 And one or more of the persons does any overt act to cause the goal to be
accomplished
 Note: There is no mens required for this crime.
B. No merger in federal law: Someone can be guilty of a crime and conspiracy
to do the crime as long as they actually do both of them.
C. The Pinkerton Doctrine: Co-conspirators are guilty of the acts or crimes
committed by co-conspirators in furtherance of the conspiracy.
 E.g. if the other guy commits some bribery or robbery to further the crime
in which both parties have conspired, then they are guilty for the same
crime as well.
 Policy: It makes it easier for the government to get the little man (e.g.
getaway driver) to rat on his co-conspirators.
D. MPC Conspiracy: If a person engages in conduct:
 With the purpose of aiding another to commit a crime
 He is guilty of an attempt to commit the crime, even if the crime isn’t
committed or attempted by the other person.
E. Differences in federal statute and MPC:
 No need for a bilateral agreement under MPC
 MPC has merger (if two people conspire to commit a crime and they
actually go through with it, they will only be guilty of the crime; they will
not be held criminally liable for the conspiracy to commit the crime as
well)
o Exception: MPC merges under simple conspiracy (which entails
most scenarios we see). However, it does not merge when two
criminals are conspiring to do something like go into the business
of robbing (as opposed to just robbing one bank).
 MPC does not adopt the Pinkerton doctrine.
 MPC does not require an overt act.
F. MS §97-1-1 Conspiracy Statute:

Conspiracy happens:
 When two or more people
 Conspire
 To commit a crime or
 To do anything unlawful
G. MS v. Federal Statute:
 No merger (Hoffheimer guesses) in MS
 No Pinkerton doctrine (Hoffheimer guesses) in MS
 No overt act required by MS
H. Co-conspirators and statutory questions: If two people plan a crime, and the
statute creates a protected class for one of the people (e.g. doesn’t allow women to
be convicted) then the one in the protected class isn’t guilty of conspiracy.
Furthermore, the other party who’s not in the protected class cannot then be
convicted of conspiracy because, at that point, he no longer has nor is a coconspirator.
I. Why conspiracy theories are so popular and so hard to defend:
1. Pinkerton Doctrine: Co-conspirators are guilty of all the acts of the
conspirators that are in furtherance of the conspiracy.
2. Procedural Advantage of Joinder: When a prosecutor is allowed to join
all defendants together instead of having them tried one by one, there are a
couple of advantages:
 It’s more economical
 Although guilt by association isn’t the law, juries can’t resist common
sense inferences.
3. Special Rules of Evidence: Most notably, there is an exception in these
cases to the rule against hearsay. Out-of-court statements of one
conspirator may be used against the other, so long as the statements are
made in furtherance of the objectives of the ongoing conspiracy.
4. Convictions: It’s simply easier to get convictions in conspiracy cases.
J. Subsidiary Plot: A co-conspirator’s out-of-court statement relating to a
continuing, subsidiary plot will not be allowed in court. Only out-of-court
statements relating to the conspirators’ plan to further the conspiracy will be
admitted.
K. Chain Conspiracy: When a series of transactions is involved, each transaction
may be treated as a link in an overall chain. So long as the parties to each link
transaction have a general interest in the success of the overall series of
transactions, the scheme will be treated as a single large conspiracy.
 Exception: This general rule does not apply if the various transactions are
truly separate.
L. Independent Spokes: If one person (the hub of the wheel) enters into a
number of different transactions with various other persons (the spokes) who are
unconcerned with the other transactions entered into by the hub, the various
transactions are deemed to be different conspiracies. The fact that each has one
common co-conspirator is irrelevant if the various spokes share no common
objective.
M. Unknown Conspirators: It is not necessary that the parties to a conspiracy
know the identity of each member, or even that they be aware of the number of
persons involved. A co-conspirator is deemed to have conspired with all those he
must have known were involved in the transaction, whether he had specific
information about them or not.
Part IV: Accomplice Liability
A. MS §97-1-3 Accessories Before the Fact: Every person who is an accessory
to any felony before the felony happens will be considered a principle and treated
as one. They are liable for the substantive offense.
B. MS §97-1-5 Accessories After the Fact: Every person convicted of:
 Concealing, relieving, or receiving
 A felon
 Or aides a felon
 With the intent to enable
C. Perry Mason isn’t guilty: On the old Perry Mason shows, his partner would
often warn him that if Mason didn’t bring up the incriminating evidence, he
would be guilty of murder just like the defendant. That’s not right. Mason would
actually be guilty of being an accessory after the fact, and he’d get five years for it
in Mississippi.
D. Common Law definition of accomplice: MS doesn’t define what
accomplices are. Instead, we rely on the Common Law definitions:
 Principle in the first degree: the party actually doing the act (e.g. the
trigger puller)
 Principle in the second degree: the party who aids and abets or stands by
and encourages the criminal activity
E. MPC definition of accomplice: promoting or facilitating an offense or
soliciting someone else to commit the offense.
 Mens rea required: Defendant must have the purpose of promoting or
facilitating the offense or use an innocent agent.
F. Conviction of Principle: The principal need not be convicted for an accessory
to be convicted. The accessory may be convicted even if the actual perpetrator is
acquitted. However, the crime at issue must have been actually committed.
G. Inaction as Aiding in Committing a Crime:
 General Rule: Mere presence is not enough, willful participation is
required in the way of conduct
 Distinction: There is presence that is innocent, and then there is a
presence that is deeply suspicious because someone’s proximity under the
course of the circumstances makes it menacing.
H. Inaction Despite Legal Duty to Act: A person who fails to act despite having
a legal duty to do so can be held criminally liable.
 Note: Although it was in the accessory section of the casebook, this isn’t
an aiding and abetting issue. This presents a case of someone who is
prosecuted because their inaction causes the injury.
I. Intent to Aid Formed After Crime Commenced:
 The commission of a burglary does not end, for the purpose of aiding and
abetting, upon the burglar’s entry into the dwelling. Rather, it continues
until his departure from the dwelling.
 Therefore, a person may be found liable for aiding and abetting if he
formed the intent to commit, encourage, or facilitate the commission of a
burglary at any time before the perpetrator finally departed from the
dwelling.
J. Principle’s Justification Defense Inapplicable to Accomplice: Even if the
principle has a justification defense (e.g. the public authority justification defense
which immunizes public officials from criminal liability for acts within the scope
of their authority), if the principle’s act was clearly illegal, defendant can be
convicted for aiding and abetting the offenses.
K. Making a Crime Possible Does Not Constitute Conspiracy: Criminal guilt
is based on personal fault; it must be personal and individual.
 E.g. just because a defendant hands his keys to a person he knows is
drunk, doesn’t make him liable for the death of a third party that results
when the drunk has an accident.
L. Complicity to a Negligent Act: A person may be guilty of a crime like
negligent homicide by complicity. Defendant does not have to know that the
injury will result from his conduct because the principle doesn’t have to know
that. If defendant aids and abets the principle in the conduct, they are guilty of the
negligent crime by complicity.
M. Knowledge Provides Evidence:




Attempt in most jurisdictions is a specific intent crime or a MPC crime
that requires purpose in promoting the common plan.
Conspiracy in most jurisdictions requires knowledge and intent to aid the
primary criminal in the purpose of promoting the common plan
Evidence Problem: When a guy goes to Wal-Mart and buys a knife and
tells the employee, “I’m going to kill Bob with this knife,” the fact that the
employee knows is not going to bring a conviction of complicity or
conspiracy.
General Rule: Specific intent is required to convict of complicity or
conspiracy, but knowledge is evidence enough with which a conviction
can be supported as long as the jury receives an instruction that they must
find specific intent.
o Knowledge is evidence of specific intent. Knowledge creates
evidence with which a jury can find the defendant criminally liable
for complicity or conspiracy.
o Exception: In cases of misdemeanors, knowledge alone is not
enough to infer specific intent (for policy reasons). However, just
a reminder, knowledge alone is enough to infer specific intent with
a serious crime.
N. Factors which help infer specific intent from knowledge:
1. When the seller of legal goods for illegal use has a stake in the venture.
2. When no legitimate use for the goods or services exists.
3. When the volume of business with the buyer is grossly disproportionate to
any legitimate demand
4. Sales for illegal use are a high amount of seller’s business.
VII. INSANITY
A. Three Situations: Comes up at least three times in a criminal prosecution:
1. Someone claims that they are so insane that they can’t be prosecuted at all.
o Standard: Must show:
1. They are unable to understand the nature/consequences of the
proceedings, or
2. They are unable to assist in their defense
o Note: Guy who thinks he is Fidel Castro can still pass
this test.
2. Death penalty cases: The Supreme Court has held that a person who
doesn’t realize that they are being punished for a crime can’t be sentenced
of the death penalty. They must understand they are being punished for
the crime.
3. Not guilty by reason of insanity:
o M’Naughten Test (Test in MS) “Right/Wrong Test”:
1. As a result as a disease of the mind
2. At the time of the act
3. D didn’t know the nature and quality of his acts or
4. Did not know they were wrong
 MS has this test but MS requires that the prosecution prove
beyond a reasonable doubt the absence of this defense.
Prosecution is required to prove 3 and 4.
 Cognitive prong: Three and four are considered the same
prong even though there’s an “or” in there.
B. Federal Insanity Statute: Insanity defense only available when:
1. Behavior results from a severe mental disease or defect and
2. As a result defendant is unable to appreciate the nature and quality or
wrongfulness of his act.
 Stricter: That’s just the way it is – period. No volitional prong (e.g.
ALI’s irresistible impulse).
 Clear and convincing: Defendant must also prove the existence of
insanity by clear and convincing evidence under the federal statute.
C. What’s right and wrong? The court in the Serravo case went with a societal
standard for what is right and wrong. The test: Is the defendant able to appreciate
the wrongfulness of the conduct through knowing it was in violation of the
societal standard of what is wrong?
D. Common issue: Whether or not deific decree provides a special defense.
E. Diminished Capacity: Cases where defendant doesn’t have the elements of
the crime because there is something about his mental processes that doesn’t
provide the necessary mental state, rendering him unable to have the right mental
state.
VIII: JUSTIFICATIONS AND EXCUSES
A. Meanings: Defenses mean a lot of things:
 Procedural: might require notice of an alibi if defendant is going to
defend by saying that he wasn’t there, and there will be some burden of
introducing a particular kind of evidence.
o E.g. you can’t get an insanity defense just by asking for it; there
has to be some credible evidence of insanity
 Burden of Proof: prosecutor has to prove the element beyond a
reasonable doubt, but defendant may have a greater burden of proving
with clear and convincing evidence.
B. All defenses one of two categories:
 Justification: situation where the state decides that the conduct is good
for some reason; it generally involves a choice of evils.


o E.g. robbery victim kills a robber; necessary use of force in
preventing a felony advances a positive social good
Excuse: the defense is classified as “not bad” because it’s not advancing
some social goal but it’s not bad enough that we want to punish the
individual wrongdoer.
o E.g. robbery victim tries to shoot robber but hits innocent third
party
o Note: it could still leave defendant open to tort liability in civil suit
Either way: It means defendant is not guilty.
C. Survey of types of defenses:
 Infancy: persons below a certain age can’t commit crimes
 Insanity: very controversial; discussed supra
 Duress: discussed infra
 Protective force:
o Citizen:
 Self
 Others
 Property
o Law enforcement:
 stop crimes
 arrest
 confine, kill
 Entrapment:
o Traditional view: When law enforcement officers lure someone
into committing a crime, it’s appropriate because that person was
bound to do it anyway.
o Minority: When people are talked in to committing crimes maybe
it’s not fair to hold them to it since we are all subject to temptation
(has had some force in MS courts).
D. MPC: Necessity
1. If the actor believes it is necessary (subjectively) to avoid harm and
commits a crime, it is justifiable if:
 The harm sought to be avoided was greater than the harm sought to be
prevented by the law defining the offense charged (it’s not what
defendant thinks about the relative harm, but an objective standard
which reflects the value judgment of the jury)
 There can’t be an exception or exclusion in the law eliminating the
defense
2. If they were aware of the risk and now it’s necessary to make that choice
then the defense is not available for the crime for which the level of
culpability is recklessness or negligence.
C. MS Necessity: Knight is the only case where a necessity defense has been
raised in the MS Supreme Court.



Holding: Where the purposes of the statute are satisfied, defendant is
entitled to a defense if he feared for his safety.
Narrow: The opinion was written narrowly so we don’t know if it’s
limited to the facts
Facts: Man runs over kid on big wheeler; runs from scene of angry crowd,
but leaves behind everything necessary to help cops identify him and to
help kid get to hospital – i.e. he complies with a statute.
D. Self-defense: Hoffheimer summary of what they all basically require:
1. Threat of serious bodily injury
2. To a person
3. Imminent kind of force
4. Kind that would cause a reasonable person to react with apprehension
E. MS (CL) Self-defense Requirements: Defense will be available if:
 The person was not the aggressor (must be innocent). Not available
when:
o Started the fight
o Used more defense than entitled to (must be proportionate)
 There’s a reasonable belief (at least more than the person’s belief) that it
is:
o Necessary
o To protect self
o From imminent use
o Of unlawful force
 Note: Deadly force only allowed if there is a reasonable belief that there’s
a threat of death or great bodily harm.
 Retreat: In MS (and majority), no retreat requirement for deadly force.
Minority: there’s a duty to retreat and if you don’t you lose the defense of
self-defense.
F. MPC Requirements for Self-defense:
 Belief
 Immediately necessary
 Protect Self
 From unlawful force
 On the present occasion
 Deadly force only if threat of death, serious bodily harm,
kidnapping, forcible sexual intercourse
 Retreat requirement before using deadly force: If you can do so
with complete safety.
o Does not apply to dwelling; applies to workplace except
where co-worker is aggressor
o Limitation: If a fight can be ended by surrendering the
object (e.g. knife) then there’s an obligation to do so.

Recklessness or negligence in acquiring belief eliminates the
defense for crimes where mens rea is recklessness or negligence.
Although no “imperfect self defense” this gives the same result.
G. Consequence of not meeting the self-defense standard:
 No defense to the crime
 “Imperfect self defense:” situation where a person actually believes it is
necessary to protect himself, but he is wrong and the belief was
unreasonable in comparison with the jurisdiction’s requirement for
reasonableness.
o No defense
o It mitigates criminal liability down to manslaughter
o Only available as a defense for homicide
o Only works under CL – not MPC
H. MPC Duress:
1. It’s a defense when the actor commits a crime because he’s coerced to do
it by the threat or use of force against him or another person which a
person of reasonable firmness in his situation wouldn’t have resisted.
2. The defense is unavailable if actor recklessly puts himself in the situation
where it’s probable he’ll be subjected to duress. Also unavailable if actor
was negligent in placing himself in the situation, whenever negligence is
enough to establish culpability for the offense.
 MS: MS hasn’t actually formulated a standard for duress though it
recognized the Fifth Circuit’s use of Common Law principles.
 Murder: It is not clear whether duress would provide a defense in the
case of murder. Courts are split.
I. Continuing Threat to Family Members: D may raise the defense of duress
upon a showing that he acted under a continuing and well-grounded threat of
serious bodily injury to his family. There may, however, be a requirement to alert
authorities once the crime is committed.
J. Unlawful Arrest: No right to use self defense when resisting an unlawful
arrest (CL and MPC rule). There is a duty to participate with your own arrest.
K. Deadly force (Garner): State is limited in the same way as a private action.
One is not entitled to use deadly force even if the arrest otherwise won’t be made
unless the officer has reason to believe that the felon poses a threat of serious
physical harm to defendant officer or others.