Criminal Law
** Outline from 2L LAST Year **
I.) Introduction
A.) Nature of Criminal Law
1.) State brings case
a.) society as a “whole” is affected/concerned
Ex. State v. Smith, People v. Jones, etc.
2.) Punishment (“blameworthiness”)
a.) Retributive (“backward thinking”)
1.) a criminal should get the punishment he deserves
b.) Utilitarian (“forward thinking”)
1.) deterrence
2.) punishment should be of social utility
3.) rehabilitation
c.) Doctrine of Proportionality
1.) punishment should fit the crime
d.) Types
1.) fines
2.) imprisonment
3.) death
e.) Policy
1.) basic societal values: right v. wrong
2.) significance of harm
3.) what result is society seeking
3.) Principles of Legality
a.) Crime must be in effect at the time of the ∆’s action
b.) Why?
1.) No ex post facto laws (Keeler)
a.) may not make a law w/ a retroactive effect
2.) Due Process requirements
a.) notice; fair warning
3.) Separation of power doctrine
a.) legislature defines what a crime is
b.) courts interpret
B.) Burden of Proof and Burden of Production
1.) Prosecutor must prove every element of the crime beyond a R doubt
a.) Direct v. Circumstantial Evidence
1.) Direct (no inferences required)
a.) statements to someone else – confession or
conversation
b.) usually there isn’t much direct evidence in a case
2.) Circumstantial (requires inferences)
a.) things you could observe or infer from
someone’s actions
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b.) asking the jury to “find” or “infer” the element
3.) Inference v. Presumption
a.) Inference: Constitutional
1.) conclusion finder may draw
b.) Presumption: Unconstitutional
1.) Violates Due Process (unfair)
2.) conclusion finder must draw
2.) Burden of Proof
a.) Burden of proving on any particular issue
b.) That party must bring sufficient evidence to show elements
c.) This is the ultimate burden that п usually has at the end
3.) Burden of Production
a.) Can apply to п or ∆ at the beginning of trial
b.) Must provide evidence on the elements so a R juror “could”
take your side
c.) Burden of bringing forward some evidence on each element of
the crime
d.) If п doesn’t show burden of production, then ∆ should move for
judgment of acquittal
C.) How are Statutes Drafted?
1.) AR + MR + Causation (if it’s a result crime) + Circumstances or
Result +Social Harm = Crime
a.) each element is a building block
b.) crime = to the social harm that the legislature is trying to
prohibit and/or punish
D.) How to Attack to Criminal Law Problem:
1.) Identify the criminal statute and the building blocks (elements) w/I the
statute.
2.) Is the statute a MPC or CL statute?
3.) Is the statute ambiguous? Constitutional?
4.) What is the social harm the legislature is trying to cure? Policy or
rationale?
5.) Are there facts to support each element?
6.) Should the case against the ∆ be dismissed?
E.) Statutory Construction & Interpretation
1.) Look for…
a.) intent or interests of the legislature
b.) elements of the statute
c.) “plain meaning” (e.g. Webster’s Dictionary)
d.) legislative history
e.) cases that interpret the term in its opinion
f.) definition section of the code
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g.) policy of law
2.) Rule of Lenity
Common Law
1.) Rule of Lenity: when ambiguity in a
statute that can’t properly be decided
as to what definition is correct, the
definition most favorable to the ∆ must
be used
Model Penal Code § 1.02(3)
1.) Rule of Lenity: when ambiguity in a
statute that can’t properly be decided
as to what definition is correct, it must
be interpreted to further the general
purposes of the particular provision…
Note: MPC does not call this the Rule of
Lenity; it is just the comparable section of
the code
II.) Actus Reus (AR)1st building block [Physical ActSocial Harm]
A.) Physical/External Part of Crime
1.) Voluntary Act
a.) CL v. MPC: § 2.01(1)-(2) [virtually the same]
b.) No voluntary act = No crime
c.) Was there a “choice?”
Common Law
1.) “voluntary act”anything voluntary
Model Penal Code § 2.01(1)-(2)
1.) “voluntary act”anything voluntary
Ex. willed movement; choice
2.) “involuntary act”not voluntary…
a.) reflex or convulsion
b.) a bodily movement during
unconsciousness or sleep
c.) conduct during hypnosis
d.) bodily movement that otherwise
is ≠ a product of determination or
effort of the actor, either conscious
or habitual
2.) “involuntary”not voluntary; the
statute will list what it considers to be
involuntary
a.) you can have a “learned” response
that is involuntary (in some states)
 ex: the Veteran case
2.) Involuntary v. Coercive
a.) Involuntary: no choice of action available to the ∆
b.) Coercive: no good choice of action available to the ∆
Ex. Robber hold gun to ∆’s head and tells him to take the
shot from the teller. ∆ was coerced into shooting the teller,
but his action was voluntary. ∆ could have chosen to die.
B.) Omissions (failure to act)
Generally, no liability for an omission
Liability is Imposed IF… (LAFD)
a.) ∆ had a “legal duty” to act;
b.) ∆ was able to act; and
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c.) ∆ did not act; and
d.) failure to act caused harm
3.) CL v. MPC
Common Law
1.) “omission”failure to act ≠ liability,
unless there was a “duty” imposed
Model Penal Code § 2.01(3)
1.) “omission”failure to act ≠ liability,
unless
a.) omission is expressly made
sufficient by the law defining the
offense; or
b.) duty imposed by law
2.) Other5 Main Duties
a.) special relationship
Ex. parent/child; husband/wife…
b.) if you created the risk of harm
c.) by statute (i.e. pay taxes)
d.) contractual duty
Ex. lifeguard, police officer, doctor
e.) voluntarily assuming care for another
Note: Moral Obligation is not punishable by law
4.) Social Harm (“essence” of crime)
a.) Result Crime: the result itself is harmful
1.) social harm is the result of the crime
2.) punishing for the harm “resulting” from his acts or
Omissions (ex: murder)
b.) Conduct Crime: established to deter potentially bad things
from happening
1.) to “avoid” the harm that can result from such conduct if
it is not deterred or terminated
Example: DUI – getting arrested before an accident
or injury to others
c.) Attendant Circumstances: a “condition” that must be present,
in conjunction w/ the prohibited conduct or result, in order to
constitute the crime (part of actus reus of an offense)
1.) makes the crime more dangerous
Example: it is an offense to drive an automobile in
an intoxicated condition
a.) intoxicated condition – attendant circum.
b.) the actus reus does not occur until the actor
drives her car (the conduct) while intoxicated
c.) this is not a conduct element because the offense
doesn’t prohibit a person from becoming
intoxicated
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Example: burglarizing a house at night
a.) at night – attendant circumstance
b.) makes more dangerous because people will
usually be in the home at this time
Example: having sexual intercourse with a female
and without her consent
a.) w/ a female and w/o consent – attendant circum.
b.) it’s not rape if is not w/ a female and if there is
consent
5.) Policy
a.) Practicality-if everyone is punished for omissions, then jails
will be filled
b.) Merely a Thought-shouldn’t punish someone just for a bad
thought; not all people act based on their thoughts
c.) American Values-people want the most freedom w/ the least
amount of restriction
III.) Mens Rea (MR)2nd building block
A.) Broad v. Elemental Approach
1.) Broadrefers only to “evil intent” or “bad mind”
2.) Elementalrefers to the MR as required by the elements of the crime
a.) we use the “elemental” definition
b.) must meet what the statute requires
3.) Is there an additional MR requirement?
a.) Yes, think of general and specific intent
b.) No, then MR specified relates solely to the acts that constitute
the criminal offense
B.) CL v. MPC
Common Law (IKRN)
1.) Intentionally and/or Knowingly
“conscious objective” (Conley)
2.) Knowingly
a.) “practically certain”
b.) “actual knowledge” (Nations)
1.) each state is different
3.) Reckless (subjective)(same as MPC)
“aware of substantial and unjustifiable
risk, but proceeds anyway”
Model Penal Code § 2.02 (PKRN)
1.) Purposefully
“conscious objective”
2.) Knowingly
a.) “practically certain”
b.) “aware” or “high probability”
1.) willful blindness = actually know
3.) Reckless (subjective)(same as CL)
“aware of substantial and unjustifiable
risk, but proceeds anyway”
(“consciously disregards”)
4.) Negligence (objective)(like CL)
“not aware of substantial and
unjustifiable risk, but should have been
4.) Negligence (objective)(like MPC)
“not aware of substantial and
unjustifiable risk, but should have been
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aware” (gross & culpable)
*Usually, crim negligence standard is used
*Legislature may choose civil negligence
standard (due care required - by the
duty a R person has to another)
5.) Other
a.) “transferred intent”can transfer
from “V” to “V” but not crime to
crime
b.) “general intent”MR relates solely
to the acts that constitute the
criminal offense
c.) “specific intent”MR beyond
actions required by the statute
1.) “with intent to…” (future act)
2.) special motive
3.) awareness of circumstances
d.) CL ≠ have willful blindness
Note: all “attempt” crimes are specific
Intent
aware” (gross & culpable)
(“should have known, but didn’t”)
5.) Other
a.) MPC does not use general/specific
intent or transferred intent
b.) “willful blindness” = actually know
See § 2.02(7)
1.) If ∆ determined to have been
“willfully blind,” then ∆ will be
punished as if he “actually knew”
(whether he did or not)
C.) Strict Liability (SL)
1.) usually there is no MR requirement (Garnett)
2.) there is less stigma, punishment, etc…
a.) Exception: statutory rape
3.) Malum in se – bad in itself; dangerous crime (e.g. murder)
a.) generally not subject to SL
4.) Malum prohibitum – bad because prohibited by society; regulatory
infraction
Common Law
1.) Strict Liability
a.) lesser penalty
b.) fines only
Exception: statutory rape
c.) less stigma
2.) Otherdisfavored, but not as must as
the MPC disfavors it
3.) What if no MR requirement?
a.) Prosecutor should argue…
1.) Keeler argument (if legislature
wanted MR req. they would have
put one in the statute)
2.) it is a “health” or “safety” or
“policy” issue (typically SL)
3.) it is a “low level” grade crime
Model Penal Code § 2.05
1.) Strict Liability
a.) lesser penalty
b.) fines only
Exception: statutory rape
c.) less stigma
2.) Otherstrongly disfavors
a.) calls “violations” ≠ “crimes”
Note: SL is Constitutional (permitted)
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(not harsh; small penalty…)
4.) R and appropriate
b.) Defense should argue…
1.) there is a general policy against
SL
2.) it has a social stigma attached
3.) it is not about “health”/“safety”
4.) constitutionality
Note: Always make sure to argue the policy on both sides
D.) Mistake of Fact “defense” to liability (not an affirmative defense)
1.) ∆ brings a mistake of fact defense
2.) Mistake of fact negates the mens rea element
3.) CL v. MPC
Common Law
1.) General Intent “objective standard”
a.) Good Faith and
b.) Reasonable
Model Penal Code § 2.04
1.) Mistake of Fact“negatives” the MR
element (i.e. “crime ≠ proven”)
a.) mistake is a “defense” when it
“negates” the mental state
requirement
2.) Note
a.) You can assert an unR mistake, but
the more unR it is, the < likely the
jury is going to believe it.
*R person standard of “gf” and “R”
2.) Specific Intent “subjective standard”
is allowed
a.) Good Faith and
b.) Unreasonable (allowed)
*Subjective thoughts count (Regina)
E.) Mistake of Law “defense”
1.) If ∆ did not have notice (due process), then ∆ can use mistake of law as
defense
2.) A ∆’s personal interpretation of the law is not a defense.
3.) CL v. MPC
Common Law
Model Penal Code § 2.04(3)
1.) Mistake of Law “ignorance of the law 1.) Mistake of LawR reliance on a
is no excuse” no matter how R the
misstatement of the law in a…
mistake of law is
a.) statute/enactment;
b.) judicial decision, opinion, or
judgment;
c.) administrative order or grant of
permission; or
d.) official interpretation of a public
officer or body charged by law w/
responsibility for the interpretation,
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administration, or enforcement of the
law defining the offense
2.) When ≠ have constructive statute
in place or ∆ ≠ have actual knowledge
of the law
3.) When the law is later determined to be
erroneous
4.) Why have MofL defense? (Policy)
a.) don’t want to punish people who
really didn’t know (+)
b.) encourages ignorance (-)
Note: The only way you have a “Mistake of Law” defense is if you have not made a
mistake.
IV.) Causation3rd building block
A.) Analysis
1.) Result Crimes Only
a.) need both actual and proximate cause
2.) Actual Cause “But-For” (“Cause-in-Fact”)
a.) “universe of people to blame”
1.) antecedent actions “but-for” which the result would not
have occurred
b.) Theories
1.) Direct
2.) Acting in Concert
a.) even if both didn’t take all the actions – working
together is enough
3.) Substantial Factors or Concurrent Mortal
a.) concurrent significant actual causes
4.) Concurrent Non-Mortal Wounds
a.) both are actual causes
5.) Acceleration (Oxendine)
3.) Proximate Cause (“intervening cause”)
a.) Chain of causation between the ∆’s actions and resulting harm
1.) for ∆ to be liable, you need an unbroken chain
2.) “narrows the universe”
a.) concerned w/ POLICY and JUSTICE
3.) types:
a.) act of God
b.) act of an independent third party
c.) act or omission of the “V” that assists in
bringing the outcome
b) Was there an intervening Event? What kind?
1.) Coincidence
a.) breaks chain unless foreseeable
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b.) ∆ puts person in “wrong place wrong time”
2.) Response
a.) does not break chain unless it was abnormal,
unforeseeable
b.) “reaction to condition created by the ∆”
c.) Example:
1.) medical care is always responsive
d.) Exception: “mercy killing”
1.) not clear what they would be otherwise
2.) could argue either way
3.) courts for policy reason say NOT
responsive
3.) Foreseeability
a.) the manner in which it happened, rather than the
result
c.) What won’t break the chain?
1.) Omissions
2.) Intended consequences occur in the intended manner
d.) Misc.
1.) Apparent Safety Doctrine  once you reach apparent
safety the causal chain is broken.
Actual Cause
Proximate
Cause
(∆ voluntary act) X---------------------------------------------------------X (resulting harm)
[
intervening action occurs
]
4.) CL v. MPC
Common Law
1.) Actual Cause “but-for”
Theories:
a.) Direct
1.) direct cause is proximate too
b.) Acting in Concert
Model Penal Code § 2.03
1.) Actual Cause “but-for” which the
result in Q would not have occurred
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c.) Substantial Factors
d.) Concurrent Non-Mortal
e.) Acceleration
2.) Proximate Cause “intervening cause”
Intervening Cause?
a.) “Coincidence”breaks chain unless
foreseeable
b.) “Response”does not break chain
unless abnormal, unforeseeable
3.) OtherDoes it break the chain?
a.) Omissions
1.) not a proximate cause
b.) Intended Consequences in the
Intended Way
1.) always a proximate cause
c.) Apparent Safety Doctrine
d.) Free, Deliberate, Informed
Intervention (usually “V”)
1.) not a proximate cause
e.) Eggshell п (English Rule v.
American Rule)
2.) Proximate Cause MR culpability
5.) Concurrence of the Elements
a.) must prove all the elements were together at the same time
V.) Homicide
A.) General Info
1.) Homicides are not all = to murder
a.) differences between each distinguishes the level of culpability
2.) CL uses degrees; MPC does not use degrees
3.) What is the grading of crimes supposed to do?
a.) punish person according to crime
b.) separates the worst from those who aren’t as bad
B.) CL v. MPC (See Table)
Common Law
1.) 1st Degree Murder
a.) Intentional Murder w/ Premeditation
and Deliberation
1.) “P&D” can be in the “twinkling
of an eye” (MAJORITY)
2.) “P&D” is a “thought in your
mind” (MINORITY)
b.) Felony-Murderany killing that
takes place during the commission of
a felony (traditional rule)
Model Penal Code
1.) Murder
a.) Purposefully or Knowingly Causing
Death
1.) “conscious objective” or
2.) “practically certain”
b.) Extreme Recklessness
1.) reckless killing showing
a.) extreme indifference to the
value of human life
b.) w/ conduct having a high
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1.) must show causal connection
probability of causing death
between the felony and death, but
c.) demonstrating a base antinot proximate cause analysis
social motive
2.) Limits
d.) where the risk disregarded
a.) inherently dangerous felony
was extreme and unjustifiable
1.) look to the elements “in
c.) Felony-Murder(§ 210.2(1)(b))
the abstract” (not at certain
1.) MPC adopts the list approach
facts); dangerous?
a.) engaged in or accomplice in
2.) ask whether you can violate
the commission of, or an
the statute w/o endangering
attempt to commit, or flight
life
after committing/attempting
b.) base felony ≠ the act that
to commit…
causes death (“independent
1.) robbery
felony” or “merger rule”)
2.) rape or deviate sexual
1.) can not have felony-murder
intercourse by force or
when the underlying felony
threat of force
is assault (“merger”)
3.) arson
2.) the underlying felony can’t
4.) burglary
be the striking of the blow
5.) kidnapping
that killed
6.) felonious escape
c.) killing must be in
perpetration or furtherance
of the felony
1.) temporal and proximity
connection; and
2.) proximate causal connect.
d.) does not apply when the “V”
is a co-felon (“agency rule”)
e.) does not apply when “V” is
killed by someone who is not
an agent of the ∆
f.) lists (e.g. MPC)
*Jurisdictions usually have a least 1 limit
and very few have more than 1 limitation
2.) 2nd Degree Murder
2.) Manslaughter
a.) Intentional Murder W/O “P&D”
a.) Reckless Killing
and/or W/O “HOP” and “SAP”
b.) Intentional Killing during EMED
(Default Murder)
for which there is a R Explanation
1.) HOP “heat of passion”
or Excuse
2.) SAP “sudden & adeq. prov.”
1.) R of the disturbance must be
b.) Depraved Heart Murder
determined from a R person in
1.) unintentional killing showing an
the actor’s situation under the
indifference to human life w/
circumstances as he believes
conduct that contains a high
them to be (subj. & objective)
probability of death for which the
a.) However, internal
actor has an appreciation and the
idiosyncratic moral values
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conduct provides no social utility
c.) Intent to Cause Great Bodily Harm
w/ Death Resulting
1.) intent it only to harm, not cause
death, but death results
won’t work (Cassasa)
Exception: unusual moral beliefs
2.) “cooling off” time is allowed
a.) provocation can add up
Note: Look to manslaughter when someone
does something when they are “flying off
the handle”
3.) Negligent Homicide
a.) Gross or Culpable Negligent
Killing
1.) criminal liability standard
2.) not civil standard of ordinary
negligence
3.) Voluntary Manslaughter
a.) “HOP” and “SAP”
1.) words alone are not enough
2.) “objective standard” but it can
take into account certain factors
such as sex, age, physical
handicap
3.) will not consider factors like
temper, etc.
4.) no “cooling off” time is allowed,
otherwise 2nd degree murder
4.) Involuntary Manslaughter
a.) 1st DegreeReckless
1.) unintentional killing showing a
conscious disregard for a
substantial and unjustifiable risk
nd
b.) 2 DegreeGross or Culpable
Negligence (Criminal Negligence)
1.) unintentional killing when the
actor was not aware, but should
have been aware, of his taking an
extreme and unjustifiable risk
a.) more than ordinary civil
negligence
Note: Procedural Matters
Note: Procedural Matters
1.) Lack of Premeditation and Deliberation: 1.) EMED doctrine may mitigate the
killing of another human being w/o
extreme recklessness (murder) to
P&D defaults down to 2nd degree
manslaughter if test for EMED is met.
murder instead of 1st degree
2.) Intentional Killing Not In “HP” and
“SAP”:
a killing committed w/o Heat of
Passion & Sudden Adequate Provocation
circumstances defaults up to 2nd degree
murder instead of manslaughter
3.) There was time to “Cool Off”:
a killing that happened after there was
time to cool off will be removed from
manslaughter and bumped up to 2nd, or
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even, 1st degree murder
C.) Forrest Factors [CL1st degree murder over 2nd degree murder](mercy
killing – is really when to consider these factors)
Factors determining whether ∆ premeditated & deliberated before killing:
1.) want of provocation on part of the “V”
2.) conduct and statements of ∆ before/after the killing
3.) threats/declarations of ∆ before/during course of the occurrence giving
rise to the death of the “V”
4.) ill-will or previous difficulty between the parties
5.) dealing of lethal blows after the “V” has been felled and rendered
helpless
6.) evidence the killing was done in a brutal manner
D.) Mitigating and Aggravating Factors [MPC § 210.6]
1.) Regarding the MR requirement
a.) can bump it up or down depending these factors
E.) Reasonable Person
1.) Q for the jury
2.) Common Law: age, sex, and other characteristics that affect the
“gravity” of the provocation can be considered
a.) idiosyncratic moral value and temper do not count
1.) this does have some effect on MPC inquiry as well
F.) Purpose of Felony-Murder Rule
1.) deterrence (act w/ care when committing a felony)
2.) transferred intent (intend felony and murder results)
a.) shouldn’t be able to transfer intent from 1 crime to another
3.) strict liability (malum prohibitum)
a.) there is no MR requirement
4.) sanctity of human life
a.) consistent; peace of mind for “V” family
5.) clarity
6.) easy for the prosecution
a.) prosecutor only has to prove there was a felony + death
G.) Felony-Murder Rule v. Misdemeanor-Manslaughter Rule
1.) felony + death = felony murder (1st degree in CL; murder in MPC)
2.) misdemeanor + death = misdemeanor manslaughter
a.) has same limitations as felony-murder (e.g. lists, co-felon…)
H.) Punishment (FYI only)
1.) CL v. MPC
Common Law
Model Penal Code
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1.) 1st Degree Murder: punishable by death 1.) All murder considered a 1st degree
or life imprisonment
offense punishable by death or 1st
nd
2.) 2 Degree Murder: no death penalty
degree prison sentences
VI.) Rape
A.) Reasons to Study
1.) brings together all the elements of a crime
2.) CL statutes exist and modern laws
B.) CL v. MPC (See Table)
Common Law
1.) Rape-the carnal knowledge (i.e. vaginal
intercourse) of a woman, forcibly and
against her will and w/o her consent
a.) Elements:
1.) Vaginal Intercourse
2.) Force or Threat of Force
a.) Was there resistance? 2003
b.) Factual nexus?
1.) force or threat of force
must occur w/I a R time
of the act (Alston)
3.) Against the Will
4.) Without Consent
a.) if consent happens w/ force
present, then it is ≠ consent
2.) Problems:
a.) Questioning “resistance” puts the
“V” on trial
3.) Note:
a.) once consent is withdrawn, cont. sex
w/ force = rape (M.T.S.)
b.) Rape Shield Laws
1.) conscious effort at law reform
2.) puts the “V” past sexual history
out of bounds
3.) Types
a.) MI Approach: You can only
introduce prior sexual
conduct if it is highly relevant
and material to defense
1.) past sexual conduct w/ the
∆
2.) someone who could
explain
b.) TX, CA, Federal Approach:
Gives the judge discretion
Model Penal Code § 213.1
1.) Rape-a male who has sexual intercourse
w/ a female not his wife by compelling
her to submit by force or threat of
imminent death, serious bodily injury,
extreme pain or kidnapping to be
inflicted
a.) marital immunity
Note: This does not protect a man from
getting raped in prison
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when allowing evidence of
prior sexual conduct, but all
evidence must be relevant
c.) Rape requires “corroboration” – “V”
testimony alone is not enough
VII.) Assault
A.) CL v. MPC
Common Law
1.) Assault-attempted battery; an unlawful
attempt, coupled w/ a present ability to
commit a violent injury or the person of
another (early CL)
a.) simple assault = misdemeanor;
∆ intentionally places “V” in
imminent apprehension of battery;
or attempted battery
b.) criminal assault requires a greater
degree of proximity to completion
of the offense; within the reach of
the apparent “V”
Note: “attempted” battery; keeps assault &
battery separate crimes
Model Penal Code § 211.1
1.) Assault-guilty of if…
a.) attempts to cause or purposely,
knowingly or recklessly causes
bodily injury to another; or
b.) negligently causes bodily injury to
another w/ a deadly weapon; or
c.) attempts by physical menace to put
another in fear of imminent serious
bodily injury
Note: includes “attempted” and
“completed” offenses (consolidates CL)
VIII.) Defenses
A.) Background
1.) Types
a.) Justification “no wrong” (affirmative defense)
1.) good outweighs the bad; there is a reason
Examples:
a.) self-defense
b.) defense of others
c.) defense of property
b.) Excuse “no blame” (affirmative defense)
1.) “yes, it was a bad act, but…”
c.) Failure of Proof “mistake of fact” (≠ affirmative defense);
when prosecution does ≠ meet its burden
d.) Public Policy e.g. SOL (affirmative defense)
2.) Burden of Proof
a.) Types
1.) Burden of Production (a.k.a. burden of going forward)
a.) must bring “some” evidence to the fact finder on
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the point of the law (R jury “could” believe)
b.) sometimes in the middle of the trial; if not met,
then the case is thrown out (acquitted)
c.) п has the burden of going forward on every
element of the crime that is charged
2.) Burden of Persuasion
a.) “ultimate burden” – win or lose the case
b.) at the end of the trial
c.) п always has to prove beyond a R doubt
b.) Affirmative Defense
1.) ∆ required to bring at least the burden of going forward
2.) Constitutional to put burden of persuasion on ∆
(Patterson)
a.) however, most states don’t
B.) Self-Defense [Note: this is a justification defense]
1.) General Rule: One who is not the aggressor can be justified in using
force (or deadly force) if he R believes he is threatened w/ immediate
physical harm (or great bodily harm) and force is necessary to protect
himself (Majority Rule: American Rule)
a.) An aggressor cannot use self-defense
1.) This is not just a matter of who started it
a.) Who 1st started to use force?
b.) Proportionality (can’t escalate)
1.) Who 1st started to use deadly force?
2.) Exception:
a.) Even if person was the aggressor at 1st, he can
become the non-aggressor if…
1.) he renounces the use of force and
2.) communicates his renunciation to the
other person
b.) Minority Rule: (English Rule) If a person has a safe avenue of
retreat, he is required to do so (opposite from American Rule)
2.) Requirements:
a.) Necessity (self-defense is a form of justification defense)
1.) If not necessary, then no defense
2.) Defense begins and ends w/ necessity
b.) Proportionality
1.) Can only respond w/ the amount of force needed to
protect oneself
2.) Important to look at all the facts to determine this
Ex. 200lb. man attacking a 100lb. woman
16
Criminal Law
c.) Reasonable Appearances
1.) a R person must believe the force was necessary to
alleviate the conflict
Common Law
Model Penal Code § 3.04
1.) Self-Defense: “objective” standard
1.) Self-Defense: “subjective” standard
(R person belief)
i.e. “he” believed…
2.) Note: the jury is still going to evaluate
your actions
a.) if it is a stupid subjective belief, the
jury might ≠ buy it
3.) Other Important Considerations:
a.) Deadly Force
1.) General Rule:
a.) Threat, “actual” or “apparent,” of the use of
unlawful and immediate deadly force against
the person
1.) actual—what it really was
2.) apparent—what they felt it was
b.) The defender must have believed that he was in
imminent peril of death or serious bodily harm
and that response was necessary to save oneself
c.) The beliefs may be subjective – however, the
“imminence” is objective in nature – as well as
the degree of force use (subjective & objective)
b.) Castle Doctrine
1.) General Rule: One who through no fault of his own is
attacked in his home is under no duty to retreat
2.) Some courts have extended this to curtilage (outside of
the home, not actually the “dwelling”)
3.) Can’t try to stop someone from escaping by using
deadly force
c.) Battered Women’s Syndrome (≠ a defense in itself)
1.) Issue is one of “imminence”
2.) Not a specific defense – just a species of self-defense
3.) Phases
a.) Tension-Buildingbuilding up of tension
b.) Violentextreme blow up (w/ abuse)
c.) Quiet or Loveabuser promises to make
changes
4.) Confrontational v. Non-Confrontational Killing
a.) Confrontational-like HP & SAP and EMED
b.) Non-Confrontational-e.g. while they were
sleeping
Common Law
Model Penal Code
17
Criminal Law
1.) Battered Women’s Syndrome
“imminence” is based on an objective
standard
a.) woman will not have a defense if
there wasn’t imminence
1.) Battered Women’s Syndrome
“imminence” is based on subjective
standard
a.) woman might still have a defense
even if it appears to a R person that
it was not imminent
2.) Note:
a.) Majority-self-defense requires
imminence
b.) Minority-self-defense can be
“stretched”
C.) Defense of Others (in some situations, have the right to protect third persons)
1.) Minority Rule: Alter Ego Rule
a.) Can only use if the third person would have had the right to
self-defense – and to the extent they could have used
2.) Majority Rule: (MPC § 3.05)
a.) An actor is justified in using force against another to protect a
third person when…
1.) a R person in the actor’s position would believe his
intervention to be necessary for the protection of the
third person (objective); and
2.) In the circumstances as that R person would believe
them to be, the third person would be justified in using
such force to protect himself
3.) Competing Policies:
a.) Encourage people in society to help each other (Genovese)
b.) Want to make sure you know what is going on before you jump
in to help (e.g. undercover police office)
Common Law
1.) Defense of Others: MINORITY RULE
“Alter Ego Rule”
a.) can only use force to the extent the
third person actually has the right to
defend himself
1.) i.e. you stand in the shoes of the
person you defend
2.) you have to be > than R, you
must be right
2.) Policy: protects law enforcement (+)
Model Penal Code § 3.05
1.) Defense of Others: MAJORITY RULE
a.) a R person in the actor’s situation
would believe it necessary for the
protection of the third person; and
b.) in the circumstances as a R person
would believe them to be, the third
person would be justified in using
force to protect himself
1.) you do not have to be right, you
just have to be R
2.) Policy: encourages people to assist (+)
D.) Defense of Property/Habitation (“A man’s home is his castle.”)
18
Criminal Law
1.) General Rule: cannot defend property w/ deadly force
2.) Home – no clear majority rule on R appearance (know all 3)
a.) Broad: (Eatman) ∆ may use all force necessary to repel an
imminent, unlawful invasion (CL view)
b.) Middle: deadly force can be used to prevent uninvited entry
into a home if there exists “R factual grounds” to believe that
w/o force, the felony would be committed or injury (R belief
that deadly force is necessary)
1.) “V” intends to commit an imminent, unlawful entry
2.) Intruder intends to injure or commit a felony
3.) Deadly force is necessary to repel the invasion
c.) Narrow: can use deadly force only if V presents a threat of
violence to ∆’s personal safety (family members too)
1.) “V” intends to commit an imminent, unlawful entry
2.) Intruder intends to commit a forcible felony (i.e.
“physical to you”) or to kill or seriously injure
3.) Deadly force is necessary to repel the invasion
Broad Rule (CL)
1.) ∆ may use all force
necessary to repel an
imminent, unlawful
invasion
Middle-of-the-Road
1.) can use deadly force to
prevent uninvited entry
into a home if there
exists “R factual ground”
to believe that w/o force,
the felony would be
committed or injury
Narrow Rule
1.) can use deadly force
only if V presents a
threat of violence to ∆’s
personal safety (family
members too)
Model Penal Code § 3.06(d)
1.) The use of deadly force is not justifiable under this section unless the actor believes
that: (i) the person against whom the force is used is attempted to dispossess him of
his dwelling otherwise than under a claim of right to its possession; or (ii) the person
against whom the force is used is attempted to commit or consummate arson, burglary
robbery or other felonious theft or property destruction and either: (1) has employed
or threatened deadly force against or in the presence to of actor; or (2) the use of
force other than deadly force to prevent the commission or consummation of the
crime would expose the actor or another in his presence to substantial danger of
serious bodily harm.
E.) Necessity (§ 3.06)(this is an excuse defense)
1.) CL v. MPC
Common Law
Model Penal Code § 3.02
1.) Necessity:
1.) Necessity: balancing “choice of evils”
a.) ∆ is faced w/ clear and imminent
a.) Harm sought to be avoided by the
danger, not debatable or speculative
conduct is > than that sought to be
1.) threat of future harm ≠ enough
prevented by law defining the
b.) ∆ can R expect that his action will
offense charged
19
Criminal Law
be effective as the direct cause of
abating the danger
c.) There is no legal alternative which
will be effective in abating danger
d.) The legislature has not acted to
preclude the defense by clear and
deliberate choice regarding the
values at issue
Note: NOT a defense for homicide
b.) Neither the MPC nor other law
defining the offense provides
exceptions or defenses dealing w/
the specific situation involved
c.) A legislative purpose to exclude the
justification claimed does not
otherwise plainly appears
Note: CAN be a defense for homicide
1.) goal: saving lives
2.) Competing Policies – Dudley & Stephens
a.) Who decides?
b.) How to decide?
c.) Highest standard possible?
d.) Keeler argument? (leave it to the legislature)
e.) Slippery Slope (weakens the legal system)
3.) Necessity v. Duress
a.) Necessity: comes from external, natural forces
b.) Duress: comes from human forces
4.) Civil Disobedience (Schoon)
a.) Direct: protesting the law that you broke
b.) Indirect: violating a law or interfering w/ a gov’t policy that is
not itself the object of protest
c.) Necessity is NOT a defense in cases involving civil
disobedience – however, it is commonly used as a defense to
“air” views in court
F.) Duress (excuse defense; affirmative defense)
1.) CL v. MPC
Common Law
1.) Duress:
a.) immediate threat of death or serious
bodily injury; and
1.) present, immediate, impending
b.) a well-grounded fear (that threat will
be carried out) and
c.) no R opportunity to escape the
threatened harm
Note: An Accomplice is just as liable as the
Principle.
Model Penal Code § 2.09
1.) Duress: coerced into action by…
a.) use of, or threat to use, of unlawful
force against his person; and
b.) a person of R firmness in his
position would have been unable to
resist (affirmative defense)
1.) partially objective & subjective
Note: defense ≠ available if ∆ recklessly
put himself in a situation where it’s likely
that he would be subjected to duress
20
Criminal Law
*NOT a defense to homicide!
*CAN be a defense to homicide!
2.) Policy
a.) higher duty of self-sacrifice over taking an innocent life
b.) history indicates that duress should not be a defense to
homicide (like in CL)
G.) Intoxication (excuse defense)
1.) This defense is strongly disfavored.
a.) Policy
1.) if intoxication was always a defense, then everyone
would have a defense
2.) don’t want people to be careless and unappreciative of
risks (voluntary)
2.) This defense is all about MR.
a.) Intoxication is a defense when the person is so wasted that they
really did not have the requisite MR. (e.g. “you can’t put 2 and
2 together”)
b.) Note: Just because alcohol or drugs were involved, does not
mean that intoxication is a defense
1.) not enough just to have had 1 drink; you must be
“wrecked”
3.) Voluntary v. Involuntary
a.) Voluntary: self-induced intoxication; by our own choice
1.) includes drugs and alcohol (maybe prescriptions too)
b.) Involuntary: not self-induced or if it was self-induced, it was
not intentionally
4.) Intoxication is a Mistake of Fact defense.
a.) It is a Failure of Proof
b.) Defense to a “specific intent” crime (CL)
5.) CL v. MPC
Common Law
1.) Intoxication: Mistake of Fact “defense”
a.) Failure of Proof
b.) Defense in a specific intent crime
c.) If the person did not harbor the
requisite MR provided for in the
definition of the offense, then this
can be a defense.
d.) Not a defense in a general intent
crime
e.) Does not recognize “temporary
insanity” as a defense
Note: Intoxication resulting from
Model Penal Code § 2.08
1.) Intoxication: Mistake of Fact “defense”
a.) Failure of Proof
b.) Defense if it negates the MR
requirement.
c.) When “reckless” establishes an
element of the offense, if the actor,
due to self-induced intoxication, is
unaware of a risk of which he would
have been aware had he been sober,
such awareness is immaterial
Note: Intoxication does not in itself
21
Criminal Law
alcoholism or drug addition is considered
Constitute mental disease w/I the meaning
voluntary.
of § 4.01.
H.) Insanity
1.) Background
a.) < 1% of ∆’s in criminal law cases assert this defense
b.) This defense is rarely used and is often unsuccessful.
c.) Most ∆’s do not want to be found insane because there is a
chance that ∆ will never be released.
2.) Competency v. Insanity
a.) Time
1.) Competency: deals w/ your mental state right now
2.) Insanity: deals w/ your mental state at the time of the
crime
b.) Standard
1.) Competency: whether you are mentally competent to
understand the proceedings against you and to assist in
your own defense (i.e. competent to stand trial)
a.) low standard
2.) Insanity: proper relationship between mental disease
and criminal responsibility
3.) Burden of Proof
a.) Burden of Production (“burden of going forward”)
1.) ∆ has the BP in almost every state (constitutional)
b.) Burden of Persuasion
1.) ∆ can have PB
a.) some states make ∆ have BP by a preponderance
of the evidence
b.) other states say prosecutor has the BP
4.) Problems With Punishing Insane
a.) Utilitarian
1.) Deterrence – may be pointless or counterproductive
2.) Rehabilitation – it is not furthered
b.) Retributive
1.) Blame – it’s like blaming a sick person for sneezing;
how can there be punishment if the person is not
blameworthy?
5.) Law v. Psychiatry
a.) Can they mix?
1.) Insanity: this is a “legal” term, not a medical term
6.) Tests (See Table)
1.) M’Naghten Test (prosecutor wants this)
22
Criminal Law
a.) actor does not know – no knowledge
b.) entirely cognitive test
2.) Irresistible Impulse Test (Control Test)
a.) actor cannot control at all (no will)
b.) could not control his “hand”
Example: Tourette’s Syndrome
3.) Durham Test (Product Test)(∆ attorney wants this)
a.) if crime was a result of a mental defect, then insanity
can be a defense
b.) this is the broadest test – it is vague and almost overly
broad
c.) it does not require total loss of control
Example: Schizophrenia
4.) MPC § 4.01 Standard (American Law Institute)
a.) appreciate the nature and substantial capacity (graded)
b.) not as narrow as M’Naughten; not as broad as Durham
5.) Federal Standard (this is the most common test applied)
a.) drops the substantial capacity awareness requirement of
the MPC
M’Naghten
Test
1.) At time of
committing
of the act;
and
2.) Defect of
reason…
disease of
the mind;
and
3.) Either:
a.) did not
know the
quality of
the act;
or did
not know
what he
did was
wrong
Note: This is an
entirely (no
Irresistible
Durham Test
MPC § 4.01
(Product Test)
Impulse Test
(Control Test)
1.) At time of
1.) Q: Was the
1.) At time of
committing
criminal
committing
of the act;
conduct the
the crime;
“product” of
and
and
2.) Delusion…
a mental
2.) Conduct is
disease of
disease?
a result of
mind; and
2.) This became
mental
3.) Subverts the
a “battle
disease or
will to
between
defect; and
make the ∆
experts”
3.) Must lack
powerless
3.) Broadest
substantial
to resist
test; does
capacity to
a.) no Q of
not require
appreciate
degree—
total loss of
the wrongyou have
control
fullness of
no will
his conduct
or conform
his conduct
to the req.
Note: This is a
of law
Volitional Test
Note: this is a
Note: This rule
23
Note: This is
Federal
Standard
1.) At time of
committing
the crime;
and
2.) Result of
severe
mental
disease or
defect; and
3.) Unable to
appreciate
the nature
and quality
or the
wrongfulness of his
acts
Note: this is
widely “A”
Note: This is a
totally…
Criminal Law
knowledge)
Cognitive Test
supplement to
M’Naghten
did not last
both Cognitive Cognitive
long. (-)
and Volitional
Standard
Insanity Defense Tests
(Note: left of * can be defense; right of * can’t be defense)
Cognitive Impairment…
1.) M’Naughten “Head Test”
Actor did not know of his
conduct or that it was wrongful
/--*-----------------------------------/
No Capacity
Total Capacity
Control Impairment…
2.) Irresistible Impulse “Hand Test”
Actor could not control his own
conduct
/-*----------------------------------------/
No Control
Total Control
3.) Durham “Product” Test
Crime was the product of mental disease or defect
/---------------------------------------------------*(?)--------------/
Defect’s Fault
Actor’s Fault
4.) M.P.C. Test
Lacks substantial capacity to either appreciate the nature
of his conduct or to conform his behavior to the requirements of the law
/--------------------------------------------*------------------------/
No Capacity to Appreciate and Control
Total Capacity to Appreciate and Control
5.) Federal Test
Result of severe mental disease or defect
unable to appreciate the nature of his acts
/-----*-----------------------------------------------/
No Capacity
Total Capacity
________________________________________________________________________
IX. Attempt – when ∆ crosses the line from preparation to perpetration of an offense
A.) Background
1.) Inchoate Crime: incomplete or imperfect crime (conduct)
a.) Examples: Attempt, Conspiracy, Solicitation
2.) Complete v. Incomplete (both are still crimes)
a.) complete attempt: actor does every act planned, but is
unsuccessful in producing the intended result
24
Criminal Law
b.) incomplete attempt: actor does some of the acts she sets out to
do, but then desists or is prevented from continuing by an
extraneous factor
3.) Purpose of Punishment (Policy)
a.) Deterrence? Rehabilitation? Retribution?
1.) Is there really any social harm?
a.) we want to punish action because it’s easy to see
b) provide a basis for law-enforcement officers to intervene before
an individual can commit a completed defense (utilitarian)
B.) General Rules
1.) Rule of Merger: ∆ can’t be convicted of both a completed offense and
an attempt to commit that offense.
2.) Mere preparation is not enough to constitute attempt.
3.) Punishment for an attempt crime can’t be > than that of a completed
crime (only < or = punishment allowed)
4.) All attempt crimes require a “specific intent” to commit that particular
offense. (i.e. every attempt crime = specific intent crime)(CL)
C.) CL v. MPC (is easiest to prove)
Common Law
Model Penal Code § 5.01
1.) Attempt: Proximity Tests (AR)
1.) Attempt: guilty when acting w/ the kind
a.) physical proximity doctrine-overt
of culpability otherwise required for
act required for attempt must be
commission of the crime, if he…
proximate to the complete crime, or
a.) purposely engages in conduct that
directly tending toward completion
would constitute the crime if the
of the crime, or must amount to the
attendant circumstances were as he
commencement of consummation
believes them to be; or
1.) proximate to completion
b.) when causing a particular result is an
2.) “beginning of the end”
element of the crime, does/omits to
b.) dangerous proximity doctrinedo anything w/ purpose of causing or
(Holmes) the greater the gravity and
w/ belief that it will cause such result
probability of the offense, and the
w/o further conduct on his part; or
nearer the act to the crime, strong
c.) purposely does/omits to do anything,
is the case for calling act attempt
under the circum. as he believes it, is
1.) gravity & proximity influence
an act/omission constituting a
the probability of completion
substantial step in course of conduct
c.) indispensable element test-variation
planned to culminate commission
of proximity tests which emphasize
1.) substantial step must be strongly
any indispensable aspect of the
corroborative
criminal endeavor over which the
Examples: § 5.01(2)
actor has not yet acquired control
a.) lying in wait, searching for or
1.) e.g. must have everything you
following the contemplated
need to complete the crime or
V of the crime;
it is not proximate enough
b.) enticing or seeking to entice
25
Criminal Law
2.) e.g. if you are missing one thing
the proximity is not close
enough
d.) probable desistence test and
abnormal step approach-constitutes
attempt if w/o interruption from an
outside source, the crime would
result as intended; goes beyond the
point where a normal person would
think better of his conduct and
desist
e.) unequivocal test (res ipsa loquitir)
actor’s conduct manifests an intent
to commit a crime; specific crim.
purpose is evident from conduct,
w/o considering any statements she
may have made before, during, or
after the incident regarding her MR
the contemplated V of the
crime to go to a place where
commission is contemplated;
c.) reconnoitering the place
contemplated;
d.) unlawful entry of structure,
vehicle or enclosure where
contemplated crime will be
committed;
e.) possession of materials to be
used in the crime, that are
specially designed for unlawful use or which serve no
lawful use to the actor in the
circumstances;
f.) possession, collection or
fabrication of materials to be
used, at or near the place to be
committed, where possession,
collection or fabrication serve
no lawful purpose of the actor
g.) soliciting an innocent agent to
engage in conduct constituting
an element of the crime
2.) Summary:
a.) AR “substantial step” that is
strongly corroborative
1.) it is easier to meet this standard
than CL standard
b.) MRkind of culpability otherwise
required for the commission of the
crime…purposely…causing…..as
he believes the circumstances to be
1.) This is a “subjective” standard,
however, this is not beneficial to
the ∆ - it actually makes it easier
to punish him!
c.) Proximity = “substantial step” that
is “strongly corroborative” (AR)
2.) Note: Dual Intent (MR)(Gentry)
a.) MR(1) ∆ must intentionally
commit the acts that constitute the
AR of the attempt; (2) ∆ must
perform these acts w/ the specific
intention of committing the target
crime
b.) All attempt crimes are specific
intent crimes.
1.) Otherwise, Intoxication and
Mistake of Fact could always
be a defense.
2.) i.e. there can’t be an attempted
felony-murder (there is no
intent to kill) or an attempted
unintentional homicide (person
can’t intentionally commit an
unintentional crime)
Note: If the police intervene too early, the ∆ will be acquitted. If the police intervene too
late, the ∆ might have completed the substantive offense.
D.) Impossibility – defense for an attempt crime (i.e. a specific intent crime)
26
Criminal Law
1.) Background
a.) This is different from a mistake of fact.
b.) Legal Impossibility v. Factual Impossibility
1.) Legalalways a defense to attempt crime
2.) Factualnever a defense to attempt crime
2.) CL v. MPC
Common Law
Model Penal Code § 5.01(a)
1.) Factual Impossibility: If the intended
1.) Impossibility: A person is guilty of an
substantive crime is impossible to
attempt to commit a crime if, acting w/
accomplish because of some physical
the kind of culpability otherwise
(circumstantial) impossibility unknown
required for the commission of the
to the accused, the element of criminal
crime, if he…purposely engages in
attempt are present.
conduct that would constitute the crime
a.) ∆ intends a criminal act but can’t
if the attendant circumstances were as
accomplish it because of fact(s)
he believed them to be…
unknown to him at the time of the
a.) This is subjective – this means the ∆
act
can’t argue impossibility at all – if
2.) Legal Impossibility: If the intended act
the circumstances were as he
is not criminal, there can be no criminal
believed them to be, ∆ would be
liability for an attempt to commit the act
guilty of attempt (Thomas – dead
a.) ∆ did all the things he intended to do,
woman)
but those acts did not constitute a
crime
3.) When can it be used as a “defense”?
2.) Note: MPC is much tougher in this area
a.) factual impossibility  NEVER
than the CL – if the ∆ subjectively
1.) prosecutor will argue this so that
thought he was committing a crime, he
∆ has no defense
is guilty – even if what he attempted is
2.) ∆ attempts to steal from an
not a crime after all
empty pocket
a.) Summary: If the ∆ thinks it is a crime
b.) legal impossibility  ALWAYS
then he can be punished
1.) receiving “stolen” goods that
are not really “stolen” (Jaffe)
2.) ∆ will argue it was this so he has
a defense
c.) Remember, argue why it could be
either, but choose the one you think
it actually is.
3.) Inherent Impossibility (Voodoo Doctor)
a.) Where ∆ uses a means that a “R” person would view as being
extremely inadequate to fulfill the requisite criminal act
1.) This may be used as a valid defense to attempt.
E.) Abandonment – defense for an attempt crime (i.e. a specific intent crime)
27
Criminal Law
1.) Definition
a.) When the ∆ voluntarily and completely renounces his criminal
purpose.
1.) What is voluntary?
a.) repentance
b.) genuine change of heart
2.) What is not voluntary? (MPC)
a.) if the actor is motivated by “unexpected
resistance” (i.e. when it becomes harder for ∆)
b.) the absence of an instrumentality essential to the
completion of the crime
c.) other circumstance that increases the likelihood
of arrest or unsuccessful consummation of the
offense (e.g. about to be caught)
3.) What is complete?
a.) absolute desertion w/ no intent to finish later
4.) What is not complete?
a.) if ∆ merely “postpones” his criminal endeavor
until a better opportunity presents itself (MPC)
2.) CL v. MPC
Common Law
1.) Abandonment: Some argue that at CL
abandonment was ≠ a defense for
attempt; however, when it is recognized
today, it requires ∆ to completely and
voluntarily renounce his criminal
purpose
2.) Note: Abandonment is no defense to
attempt once the attempt is complete
Model Penal Code § 5.01(4)
1.) Renunciation of Criminal Purpose: It is
an affirmative defense to an attempt
crime if ∆ abandons his effort to
commit the crime or otherwise
prevented its commission, under
circumstances manifesting a complete
and voluntary renunciation of his
criminal purpose
a.) However, this defense does not
apply to other accomplice who did
not join the abandonment or
prevention
b.) Renunciation is not voluntary or
complete when…(see list above)
2.) Note: A voluntary and complete
abandonment can operate as an
affirmative defense of renunciation.
X. Conspiracy (inchoate crime)(this is a separate crime)
A.) Background
1.) Inchoate Crime: incomplete or imperfect crime (conduct)
a.) Examples: Attempt, Conspiracy, Solicitation
28
Criminal Law
2.) Definition: Conspiracy an unlawful agreement, express or implied,
between 2 or more persons (this differs between CL & MPC) to
commit a criminal act or accomplish a legal act by unlawful means
a.) The agreement is the “essence” of the offense.
3.) The crime is “complete” upon the formation of the agreement.
a.) Agreeing to commit the “same” crime
1.) some states require an “overt act” in furtherance
(modern trend)
B.) Policy
1.) Some argue “group conduct” is more dangerous
2.) “Gap-filler”
a.) Conspiracy can punish when “attempt” can’t be found
3.) Advantage for prosecution (+)
a.) conspiracy is “vague”
1.) frame indictment and then all prosecutor has to show is
evidence of an agreement – express or implied
b.) conspiracy requires < substantive evidence than the underlying
crime does (i.e. much easier to prove conspiracy)
c.) procedural advantages
1.) joinder and severance
a.) under joinder, all conspirators can be tried
together
1.) the conspirators will usually end up
hanging each other
2.) hearsay
a.) an out-of-court statement offered in court to
prove the truth of what it asserts
1.) there are approximately 25 hearsay
exceptions to the hearsay rule
a.) can use all evidence of every
co-conspirator against any other
conspirator
4.) Guilt based on agreement
a.) focuses the court on the agreement and not on the conduct
(substantive offense)
1.) Easy for the prosecution because all the jury has to
consider is: “Did the ∆’s agree?”
C.) Dangers in Prosecuting Conspiracy
1.) End up punishing people for what they say; or
2.) Punishing for person’s associations
a.) Do we want to punish a person who donates money to a group
who ends up being involved in a conspiracy?
D.) CL v. MPC
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Criminal Law
Common Law
Model Penal Code § 5.03(1)
1.) Conspiracy: an unlawful agreement
1.) Conspiracy: ∆ is guilty of conspiracy
between 2 or > persons w/ the specific
w/ another person or persons to commit
intent to commit an unlawful act or a
a crime if with the purpose of
lawful act by unlawful means
promoting or facilitating its commission
a.) AR the “agreement” between 2
he…
or more people
a.) agrees w/ such other person(s) that
1.) Traditional Rule: “overt act” ≠
they or one or > of them will engage
required – the agreement was
in conduct that constitutes such
enough to constitute the crime
crime or an attempt or solicitation to
2.) Modern Rule: “overt act” is
commit such crime; or
required by most states’ statutes;
b.) agrees to aid such other person(s) in
however, the overt can be
planning or commission of such
something small in furtherance
crime of an attempt or solicitation to
b.) MR “specific intent” (dual intent)
commit such crime
1.) intent to combine w/ others
(i.e. intent to agree) and
2.) intent to accomplish the illegal
objective
a.) knowledge ≠ intent (Lauria)
3.) Mistake of law and intoxication
will work as defenses
4.) Can’t have intent to do an
unintentional crime
5.) Impossibility is ≠ a defense
2.) Note:
2.) Withdrawal? § 5.03(6)
a.) The overt act should never hold up
a.) Renunciation of Criminal Purpose:
a conspiracy conviction
It is an affirmative defense that the
b.) An overt act of one partner may be
actor, after conspiring to commit a
the act of all w/o any new agreecrime, thwarted the success of the
ment specifically directed to the act.
conspiracy, under circumstances
c.) Anything in furtherance of the
manifesting a complete and
conspiracy makes all conspirators
voluntary renunciation of his
liable. (Pinkerton)
criminal purpose
1.) as long as you remain partners
1.) the person must do (or try to do)
(i.e. don’t withdraw), then you
something to stop conspiracy in
are liable for the actions of all
some way
other partner(s).
a.) e.g. call the authorities, try to
2.) the “little fish” is in as much
dissuade the other members
trouble as the “big fish”
d.) Withdrawal – not recognized as a
valid defense to conspiracy because
the conspiracy was complete as soon
as the parties agreed to complete the
crime
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Criminal Law
1.) However, withdrawal may be
a defense to crimes committed in
furtherance of the conspiracy
3.) Does it merge?
a.) Conspiracy is separate and distinct
from the substantive crime that is its
object
1.) They don’t merge (i.e. ∆ can be
convicted of both)
4.) Procedural Matters:
a.) Acquittal of one = Acquittal of both
(when only 2 conspirators)
1.) Why? There was no agreement
b.) Bilateral Conspiracy – you must
have 2 or > people agreeing
1.) e.g. no unilateral agreement is
allowed – ∆ can’t make an
agreement w/ an undercover cop
3.) Does it merge? § 1.07(1)
a.) Conspiracy is not separate and
distinct from the substantive crime
that is its object
1.) They do merge (i.e. ∆ can’t be
convicted of both – only one)
4.) Procedural Matters:
a.) Acquittal of one ≠ necessarily mean
acquittal of both (only 1 conspirator
is required – as long as 1 agreed)
b.) Unilateral Conspiracy – you only
need 1 person thinking that he is
agreeing w/ another (“he agrees”)
1.) e.g. showing that the person was
willing to get into the “group”
conduct is enough
E.) How do you show there was an “agreement?”
1.) It can be “inferred” by showing relationship, conduct, or circumstances
of the parties, and the overt acts on the part of the co-conspirators
2.) Requirements:
a.) Knowledge
b.) Participation
c.) Association (w/ the conspiracy)
d.) Presence
3.) Note: When uncertain as to whether a person is part of a conspiracy,
ask whether there is potential accomplice liability instead.
F.) How do you determine the “intent” of a person who has “knowledge?”
1.) Rule: The intent of a supplier who knows of the criminal use to which
his goods will be used can be established by…
a.) direct evidence that he intends to participate; or
b.) through an inference that he intends to participate based on…
1.) his special interest in the activity; or
a.) Includes:
1.) stake in the venture – ∆ wants it to
succeed
a.) e.g. charging a prostitute
excessively high rates for a room
at your hotel because you make $
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Criminal Law
money out of the arrangement
(gaining profit)
2.) no legitimate use for the goods or
services exists
a.) e.g. crooked cards: what is the use
– except to cheat?
3.) the aggravated nature of the crime itself
– dangerous
a.) e.g. kidnapping service
c.) Knowledge + Aggravated Crime = Purpose
XI. Accomplice Liability (this is just an alternative theory of liability in proving the
substantive crime; not a substantive crime)
A.) General Info
1.) Accomplice is just as liable as the principle in degree of guilt and
punishment.
2.) Derivative liability – “your liability as an accomplice is derived from
the liability of the principle’s guilt”
B.) Knowledge & Presence
1.) Knowledge and mere presence is ≠ enough to be an accomplice.
a.) The person must take an active part – even if it’s minimal
2.) Presence is equated to aiding and abetting when it designedly
encourages the perpetrator, facilitates the unlawful deed as when the
accused acts as a lookout – or when it stimulates others to render
assistance to the criminal act
3.) If there is evidence that the parties created the agreement beforehand
and X was supposed to help and then ended up ≠ having to help while
he was present, then X might be guilty based on his presence – there
must be sufficient proof though
C.) CL v. MPC
Common Law
Model Penal Code § 2.06
1.) Accomplice:
1.) Accomplice: A person is an accomplice
a.) AR “aid or abet” – participate or
of another person in the commission of
help in some manner or encourage
an offense if…w/ the purpose of
or fail to perform a legal duty
promoting or facilitating the
1.) this requires conduct/action
commission of the offense, he…
2.) aider – one who assists,
a.) solicits such person to commit it…
supports, or supplements the
b.) aids or agrees or attempts to aid
efforts of another
such other person in planning or
3.) abettor – one who initiates,
committing it..
advises, or encourages the
1.) Note: attempting to aid is enough
commission of a crime
even though the aid is ineffective
b.) MR “specific intent” (dual intent)
c.) having a legal duty to prevent the
1.) intent to aid the primary party
commission of the offense, fails to
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Criminal Law
make proper effort to do so…
and
2.) intent that such assistance result
in the commission of the offense
charged – wants the crime to
succeed
c.) Natural & Probably Consequences
(unintended results)
1.) an accessory is liable for any
criminal act which in the
ordinary course of things was
natural and probable
consequence of the crime that
he advised or commanded,
although such consequence may
not have been intended by him
a.) only when the intend the ∆
had was not what happened
b.) this doctrine usually makes
the prosecutor’s job easier
2.) Categories:
a.) Principle in the 1st degree – person
who commits the crime by their own
hand, by the hand of an innocent
agent (dupe), or even w/ an
inanimate object (e.g. landmine or
spring gun)
b.) Principle in the 2nd degree – person
who “aids and abets” – helps the
P1 and is present; requisite MR
1.) modern trend is the that P2 can
be tried before P1
c.) Accessory before the fact –
person who “aids and abets” or
“counsels/helps”, but is not present;
requisite MR
d.) Accessory after the fact (DOES
NOT EXIST ANY LONGER) –
state statutes call this “obstruction of
justice”… “misprision of felony”…
“hindering law enforcement” – help
the getaway after the fact
1.) these people are no longer
considered accessories
d.) Unanticipated Results: when causing
a particular result in an element of an
offense, an accomplice in the
conduct causing such result is an
accomplice in the commission of that
offense if he acts w/ the kind of
culpability, if any, w/ respect to that
result that is sufficient for the
commission of the offense.
D.) What can be considered “helping?”
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Criminal Law
1.) actually committing the offense; or
2.) doing some act which forms part thereof; or
3.) assisting in the actual commission of the offense or any act which
forms part thereof; or
4.) directly or indirectly counsels or procures any person to commit the
offense or to do any act forming party thereof
5.) Summary: You don’t need a whole lot to show accomplice liability.
E.) Accomplice Testimony
1.) Testimony of an accomplice alone is insufficient for conviction – there
must be something more – need corroboration
a.) Corroboration is insufficient if it merely shows the commission
of the offense or the circumstances thereof
b.) Competent evidence may be used at trial
F.) Causation
1.) In accomplice liability, the usual causation link is not required.
a.) No “but-for” cause required – the assistance given need not
contribute to the criminal result in the sense that “but-for” the
result would not have ensued
1.) it is quite sufficient if it facilitated a result that would
have transpired w/o it
2.) it is quite enough if the aid merely rendered it easier for
the P1 to accomplish the end intended by him and the
aider and abettor – though in all human probability the
end would have been attained w/o it
2.) Accomplice need not be the “cause” – he need only deprive the “V” of
some chances, even if ultimately is did not matter (CL)
3.) Under the MPC, it is enough that ∆ “attempts to aid” – even though
the aid rendered is ineffective
4.) Note: Even if there is an intervening event, the does not matter when
the intervening even was R foreseeable, and therefore did not break the
chain. (Bailey)
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