Theories of Punishment
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ii.
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Types of Punishment
Fine
Probation
Imprisonment
Death Penalty
Social Stigma
Purposes of Punishment
RETRIBUTION
o a. Individuals are responsible moral agents capable of making
choices between wrong and right (wrong = violate societal
norms)
 i. Vengeance
 ii. Pay back debt to society
 iii. Send a message about societal norms
 b. Looks backwards. Based on belief that humans have
free will to make wrong and right choices.
o c. Criticisms
 i. No evidence that retribution serves society
 ii. Does not really make victim whole, never bring back
someone who’s dead
o d. Regina v. Dudley & Stephens (Q.B., 1884, P 73) – Two
men (D &S) killed and ate a fellow sailor when they had been
out to sea for 21 days. In evaluating the purposes of
punishment, the court cited retribution as the reason to
punish these men. “It is therefore our duty to declare… this
case was willful murder.” Deterrence had been rejected
because of the uniqueness of the circumstances, figuring that
neither these defendants nor many others would ever be in
this position again. Rehabilitation and incapacitation were
rejected because it was thought that this situation would not
arise again and there was almost no possibility that they
would offend again. Ultimately the court wanted to send a
message that it was not ok to eat your fellow sailors no
matter the circumstances, but the message was softened
when the death sentence was commuted to 6 months in
prison.
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2. DETERRENCE
o a. Utilitarian theory in which punishment is used to deter
future crimes. Based upon a rational actor who weighs the
benefits and risks of committing an act, based upon
Bentham’s Principles of Penal Law, en economic based
perspective.
 i. General Deterrence: punishment is meant to be an
example for others considering crime, deterrence for
society
 ii. Specific Deterrence: dissuade individual offender
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from committing crime again.
b. Criticisms of Deterrence:
i. Crimes are not based on rational thought, often
crimes of passion.
ii. Making an example of one person for the good of
society is not really fair.
iii. Most people refrain from committing crimes based
upon internal morals, no empirical data that deterrence
works.
o c. Looks forward: discourage future crimes. Based on belief
that humans will act in their own interest.
o d. United States V Bergman (NY, 1976, Handout) – a Rabbi
was convicted of Medicaid fraud. He had embezzled a lot of
money from the government, but was only sentenced to 4
months in prison. In an unusual move, the trial court issued
an opinion explaining why they had only given 4 months in
prison, in which they evaluated the purposes of punishment.
 i. Rehabilitation: imprisonment should never be given
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when only the goal of rehabilitation is being served.
ii. Incapacitation: given defendant’s age and stature, it
is unlikely that he will commit any future offenses and
therefore it would not be justifiable to imprison him to
meet incapacitation goals.
iii. Specific deterrence: again, it is unlikely that this
individual will be committing these crimes again.
iv. General Deterrence: this goal is met because whitecollar crimes such as fraud are the crimes where the
actors are the most rational and can weigh the risks
and benefits of imprisonment.
 v. Retribution: served in order to send message to
society that these crimes were serious and would not go
unpunished.
3. REHABILITATION
o a. Humanitarian effort to cure the criminal.
o b. Criticisms:
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i. For “our” benefit and not the criminals
ii. Assumes people are capable of changing
iii. In practice rehabilitation is last priority in prisons
and jails.
4. INCAPACITATION
o a. Deny or reduce the opportunity to commit future offenses
or cause future harm to society.
o b. Criticisms:
 i. Assumes we have enough resources to build enough
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prisons.
 ii. Ineffective in reducing recidivism: often exposes
offenders to more crime.
 iii. Assumes offenders are not committing crimes in jails
 iv. In practice: more than 50% of people are
incarcerated for drug offenses.
b. Theories of Crime: What to punish?
o i. Criminal laws are intended to reflect societies morals.
 1. Criticisms: morals change faster than court can keep
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up, how does court know what are majority morals
most morals are based upon a Judeo-Christian outlook,
overcriminalization occurs.
2. Overcriminalization of moral conduct–
 a. Discriminatory enforcement
 b. Engender disrespect of laws
 c. Diverted resources (are we using them in right
way?)
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 d. Stigmatize criminals
3. Lawrence v. Texas (US, 2003, p 121)- overturned
1986 ruling in bowers v. Hardwick that made sodomy in
the home a crime. Bowers had been based upon the
presence of laws that were not enforced and JudeoChristian morals. In the 2003 case, the court’s analysis
stated that the morals had already changed by 1986
and the court had gotten it wrong and private.
Homosexual acts between consenting adults were not a
crime. (Interracial couple – may have been reason why
this was prosecuted when the law had gone unenforced
for years).
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c. Legality
o i. Nulla poena sine lege: no punishment without law
o ii. Rationale:
 1. Give notice of what is a crime/ punishable.
 2. Control discretion of authority figures (police)
 3. Prevent retroactivity and vagueness in crimes
(restricts punishment of something that wasn’t a crime
when it was committed and requires laws to be
reasonably clear)
 4. Prevent courts from making new laws – leave that to
legislature
o iii. Commonwealth v. Mochan (PA, 1955, P 134) - Man was
indicted for a misdemeanor of making lewd and lascivious
calls to a woman. This crime was not specified in any statute
or precedential case. The court justified the conviction by
citing Commonwealth v. Miller that stated, “Whatever openly
outrages decency and is injurious to public morals is a
misdemeanor at common law.” Because the call could be
heard by an operator/ 4th party and was heard by members
of the victim’s household it was deemed injurious to the
public morals. The dissent cited that it was not the court’s
place to fabricate this crime and that if the legislature wanted
these acts to be criminalized; they should and could write a
statute.
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d. Criminal Justice System
o i. General View:
 1. Primary mechanism for enforcing conduct standards
upon society
 2. Decent
realized: many agencies and districts and
methods
 3. US system
 a. High volume of cases (Judges: 21 states elect
judges, 29 states judges are appointed, 3766
criminal case dispositions per judge.)
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b. Chronic shortages of personnel and resources
c. Uncontrolled discretion (Police – often
individual officer is picking which crimes to arrest;
Prosecutors: great pwr in whether to pursue or
drop charges, often elected)
Elements of a Crime: Actus Reus
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i. All crimes require that the defendant committed a voluntary act. The scope
of involuntary acts is narrow b/c other defense will be available at other
times.
ii. Act vs. Thoughts: an actual act is required, bad thoughts are not a crime.
 1. Everyone has bad thoughts.
 2. Problem of proof
iii. Positive Acts
 1. Voluntariness: brain is engaged.
o a. MPC 201.1: a person is not guilty of an offense unless his
liability is based on conduct, which includes a voluntary act or
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the omission to perform an act of which he is physically
capable.
2. Defenses:
o a. Automaton: brain is not engaged. Ex: People v. Newton –
defendant was “blacked out” when he shot officer.
o b. Movement by another. Ex: Grand Canyon hypo; Martin v.
State – defendant was taken from home involuntarily.
3. Rationale: if the act isn’t voluntary then there is no purpose for
punishment because there was nothing that was done wrong, there was
no choice to commit crime.
o a. MPC 201.2 The following are not voluntary acts within the
meaning of this Section: (can be defenses, but doesn’t mean
that jury will believe them) (exclusionary definition =
everything else is voluntary)
 i. A reflex or convulsion (Newton: (D) shot police officer
while unconscious, reflexive action)
 ii. A bodily movement during unconsciousness or sleep
(Cogden: woman killed her daughter while sleeping –
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prior history of sleepwalking, no apparent motive)
iii. A conduct during hypnosis or resulting from hypnotic
suggestion (most jurisdictions don’t allow hypnosis b/c
it makes it too easy to commit a premeditated act
“under” hypnosis)
iv. A bodily movement that otherwise is not a product of
the effort or determination of the actor, either,
conscious or habitual. (Martin: (d) physically carried out
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of home while drunk and placed in a public place)
(hypo: grand canyon example)
4. Special applications:
o a. Habit: considered voluntary act because it’s determined
effort of actor
o b. Possession: (D) must know that he possessed the item
5. Extending actus Reus
o a. Epilepsy: when the (D) knows he has this condition and
voluntarily commits and act that leads to a punishable crime,
he is still culpable (Decina: man knew that he had epilepsy
and was subject to seizures, he chose to drive his Buick on
highway and killed 4 people when he had a seizure while
driving, court stated that his prior knowledge and knowledge
of what could happen made him criminally negligent and
culpable because actus reus began when he voluntarily chose
to drive) (not a risk society is willing to tolerate) (stretched
AR timeline to INCLUDE a voluntary act)
iv. Omissions
 1. General rule: no duty to respond to help needed unless specific duty
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o a. Based upon Anglo-American law
 i. American ideals of freedom and privacy.
 ii. Fear of diverting attention from true perpetrator
 iii. Good Samaritans may face harm
2. Examples:
o a. Kitty Genovese Case: woman was stabbed on her front
steps. Attacker left twice and came back twice in order to
finish the killing. Spectator’s failure to assist was not a crime.
o b. New Bedford Rape Case: 1983, several different men in
the middle of a bar raped a woman. No one came to her
assistance until she left the bar. None of the “watchers” were
indicted because there was no requirement to help. (Later CN
passed a law that made it a misdemeanor to fail to report a
crime).
3. Criticisms: no moral difference between failing to help and committing
crime when there is no peril to self when helping.
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4. Duty to Act – certain relationships or statutes make it someone’s duty
to act. (People v. Beardsley, 1907: law recognizes that under some
circumstances the omission of a duty owed by one individual to another,
where such omission results in the death of the one to whom duty is
owing, will make the other chargeable with manslaughter… This rule of
law is always based upon the proposition that the duty neglected must be
a legal duty and not a mere moral obligation. It must be a duty imposed
by law or contract, and the omission to perform the duty must be the
immediate and direct cause of death. When legal duty applies:
o a. Statute imposes a duty to care for another (not always
criminal)
o b. One stands in certain status of relationship to another (pg
193 footnote: husband-wife; parent-child; master to
apprentice; ships master to crew; innkeeper to inebriated
customers) (Pope v State: woman did not have status
because the mother was still present and we cannot usurp
parental rights)
o c. One has assumed contractual duty to care for another
(lifeguard, coach, teacher)
o d. One has voluntarily assumed the care of another and so
secluded the helpless person as to prevent others from
rendering aid. (Commonwealth v. Pestinikas: agreed to feed
elderly man that had not other way of getting food)
o e. Put someone in peril (Jones v. State, 1942: man created a
duty to care when he raped a girl and she jumped into a river
to kill herself.)
o f. Duty when you can help without putting yourself in
danger.
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5. Active v. Passive Euthanasia:
o a. When a physician stops medical treatment it can be seen
as an omission of a duty to care for a patient under his
treatment. Without a duty to continue care the omission is
not considered culpable conduct. Barber v. Superior Court,
1983, p208: a physician has not duty to continue treatment
once it has been proven ineffective, this is different from
administering a fatal drug to end life.
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6. Misprison of Felony
o a. Common law – one who fails to report a crime could be
guilty of “misprison of a felon.”
o b. Pope v. State (MD, 1979, P 194): could not be convicted
under common law misprison because the law is too broad
and been too long out of use. If the legislature wants a
misprison crime, they need to write a statute.
o c. Current misprison = concealment of felon.
Elements of Crime: MENS REA
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i. The kind of awareness or intention that must accompany the prohibited
act, under the terms of the statue defining the offense.
ii. Common Law Language:
 1. Malicious: default level of reckless despite language of wickedness.
o a. Regina v. Cunningham (QB 1957, 214): A man was
indicted for maliciously poisoning his next-door neighbor
when he tore off the gas meter and gas leaked into her
house. Court defined malice as 1) an actual intention to do
the particular kind of harm that in fact was done or 2)
recklessness as to whether such harm should occur or not. It
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is not limited to nor does it require an ill will towards the
injured party.
o b. Regina v. Faulkner (QB, 1877, P 216): a sailor went to
steal rum below deck on a ship. He lit a match to light his way
and caused a fire on the ship. He was convicted under the
“Malicious Injuries to Property Act,” but the court reversed,
stating that it must be proven that he could foresee the risk
and chose to act despite it (recklessness).
2. Negligence: Fails to perceive a substantial and unjustifiable risk that a
particular result will occur
o a. (State v. Hazelwood: spilled 11 million gallons of oil in
ecologically sensitive area, Capt. was drunk, issue: what does
negligence mean? Ordinary negligence or super negligence
b/c of damage.)… standard is only met when risk is of such a
nature and degree that the failure to perceive it constitutes a
gross deviation from the standard of care that a reasonable
person would observe in the situation. Ordinary negligence
b/c the court was not worried about over deterring.
o B. Santillanes: uncle cut throat of nephew; criminal
negligence applied b/c of moral condemnation/ stigma
attached to criminalization.
iii.
Model Penal Code §2.02
 1. PURPOSELY (specific intent; common language “with intent to”): a
defendant acts purposefully with respect to a material element of an
offense when:
o a. (Goal or aim) 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
 i. why is this highest level of culpability: purposes of
punishment work best on person who really wants to
commit crime.
o b. If the element involves the attendant circumstances, he is
aware of the existence of such circumstances or he believes
or hopes that they exist.
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2. KNOWINGLY: a defendant acts knowingly with respect to a material
element of an offense when: (virtually certain/ practically certain it will
happen – knowingly will usually be enough to meet requirement of
crime.)
o a. If the element involves the nature of his conduct of the
attendant circumstances, he is aware that his conduct is of
that nature or that such circumstances exist; and
o b. 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.
3. RECKLESSLY: (usually the minimum for culpability: default level of
MR) (aka general intent): defendant consciously disregards (subjective) 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.
o a. Conscious disregard of risk (subj) – substantial risk –
unjustifiable risk.
o b. No Ostrich defense: if you strongly suspect illegal activity,
but intentionally avoid knowledge in order to avoid culpability,
deemed recklessly.
 i. Ex: US v Jewell: hidden compartment in car with
drugs.
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4. NEGLIGENTLY: defendant 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… that that failure to perceive
it…involves a gross deviation from the standard of care that a reasonable
person would observe in the actor’s situation.
o a. Should be aware b/c some reasonable person would have
been. (obj)
o b. Dip down to negligence when crimes cause a lot of
damage.
iv. Mistake of Fact.
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1. Material Element: something you need to know to make the conduct
illegal.
2. Non-material element: a fact you don’t need to know, often
jurisdictional (motivates prosecution), rationale: you already knew you
were doing something illegal so you took the risk of it being worse.
o a. Ex: Prince: did not need to know that girl was under 16, it
was enough to know that she wasn’t married and that he
didn’t have dad’s permission before he took her.
o b. Ex: Feola: didn’t need to know that they were assaulting
Federal officers because 1. Statute only used knowingly in
regards to assault, 2. Intent not clear, and 3. Maximize
protection to officers. The ∆s already knew what they were
doing was wrong.
 i. Dissent: if we impose federal time, the ∆s should
have to know that they were federal officers.
3. How to determine what you need to know.
o a. Language of Statute.
o b. Legislative Intent
o c. Policy.
v. STRICT LIABILITY: no mens rea required.
 1. Don’t need to know that which makes your conduct a crime.
 2. INDICIA
o a. Public welfare, not like common law crimes.
 i. US v. Balint: unauthorized drugs sold (congress
purpose= strict liability)
o b. Highly regulated areas.
o c. Small Penalties.
 i. Ex: US v. Dotterweich: mislabeled drugs, recv’d 60
days, small penalty makes strict liability ok.
 ii. Ex: Morisette v. US: needed to know it was
government property b/c purposes of punishment
wouldn’t apply if it wasn’t someone else’s property.
 iii. Ex: Staples v. US: needed to know that firearm was
automatic b/c punishment was too harsh for SL.
o d. High Volume.
 i. State v. Baker: strict liability for speeding even when
cruise control malfunctioned b/c stretch AR to make
putting it on voluntary act. (still need a voluntary act in
SL though)
o e. Vicarious Liability: not generally accepted when there is no
act.
 i. Purpose of punishment don’t apply if there is strict
liability b/c even if employer took all care and employee
still violated law, nothing more employer could do.
 ii. Ex: State v. Guminga: bar owner who’s waitress
served alcohol to underage girl.
 3. Traci Lords Case: court found a way to balance strict liability and
striking down a child pornography statute due to first amendment
violations. The court shifted the burden of evidence onto the ∆ to prove
that their mistake of fact was in good faith and reasonable. Punishment
seemed harsh.
vi. Mistake of Law
 1. General Rule: MOL is not ∆. (prevent everyone from using it)
o a. Rationale: safety, prosecutorial discretion, jury,
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sentencing.
o b. Problems: cultural ∆, law complicated, purposes of
punishment?
o c. Misread/ misinterpret is not ∆: Marrero (gun statute, p.o.)
2. Exceptions:
o a. Negates a material Element
 i. Clues: “knowingly… unauthorized manner”
ii. Ex: Liparota: food stamp violation (how could he
know what was unauthorized.
 iii. Ex: Regina v. Smith: if he destroyed own property
there was no crime.
o b. Estoppel Theory (MPC 2.04 (3) (b))
 Official misstatement of the law.
 Judicial decision
 Administrative order
 Official interpretation
o c. No Notice of Regulation of an offense of affirmative duty.
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i. Lambert: anomaly, courts now give notice of
registration at sentencing.
ii. Mere disagreement with law is insufficient:
iii. Mistake need not be reasonable:
 Cheek: allowed to present honest belief, despite
reasonable or not b/c it’s π’s responsibility to
prove beyond doubt that ∆ did know.
HOMICIDE
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Definition: the killing of another human being by another human being.
 Elements:
o AR: Killing
o MR: depends on level of homicide
LEVELS OF HOMICIDE
 MURDER 1 – Premeditation
o Carroll standard: instant purpose. (no time too short,
premeditation is met by purpose to kill)
o Anderson/ Guthrie Standard: purposeful + preconceived
design.
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o
MURDER 2
o
o
o
 Planning
 Motive
 Manner
Felony murder: BARKRM
- Malice
Intent to kill
Intent to cause great bodily harm
Gross recklessness
 Recklessness?
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 Realize and disregard risk? (Must have known)
Gross?
 Social utility v. magnitude of risk.
Ex: Malone: boys playing Russian roulette: Knew risk,
took it anyways, no social benefit and great magnitude
of harm.
Ex: Fleming: drove drunk, very fast and recklessly.
Drove so bad for so long, must have known risk and
disregarded. No social utility v. great harm.
o Felony Murder
Voluntary Manslaughter: HOP
o Actual HOP
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Legally Adequate Provocation
o Categorical – extreme assault/ witnessing adultery.
 Adultery
 See not just hear about adultery.
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Ex: Dennis v. State: embrace not enough,
must be sex.
 Must be married.
 State v. Turner: not legally married, HOP
not ∆.
 Traditionally mere words are not enough.
 Ex: Girouard: wife insulting husband was not
enough provocation to mitigate murder, cannot
allow domestic disputes to end in death.
o Reasonable person in ∆’s situation
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Obj – Camplin (Physical characteristics – age, gender,
size)
 Camplin: 15 year old boy who killed his abuser
was allowed standard of “person having self
control to be expected of an ordinary person of
the age and sex of the accused.”
Subj – Cassassa (emotional characteristics)
 Ex: Cassassa: adopted MPC standard but
Cassassa still guilty b/c his emotional stress was
so unique that could not be reasonable.
 MPC: from perspective of reasonable person in ∆’s
situation as he believes it to be.
 No act of provocation required.
 No consideration of cooling time.
 Must be reasonable explanation for ED though.
o Inadequate Cooling time
 Traditional: no provocation instruction if long time btn
provocation and killing.
Ex: State v. Bordeaux: man killed at party by son
of rape victim, killing occurred long after
revelation and beating.
 Ex: State v. Gounagias: sodomy + bragging, then
2 weeks later victim of assault killed. Court said 2
wks = adequate cooling time.
Modern Approach: (some jdxs) jury determines if there
is sufficient cooling time.
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Rekindling
Long Smoldering
 Ex: People v. Berry: man waited for 20
hours in victim’s apartment = long
smoldering
Involuntary Manslaughter – Gross negligence or mere recklessness.
o Negligence or recklessness? (should have or must have
known)
o Gross Negligence?
 Ex: Welansky: club owner should have known of huge
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risk of fire and blocking exits was not a social benefit.
 Ex: Hall: skiing in that manner was substantial and
unjustifiable risk therefore IM.
 Ex: Williams: Native American couple held criminally
liable for death of their baby. (dangers of purely
objective standard)
o DANGEROUS INSTRUMENTALITY
o Misdemeanor Murder/ Unlawful Act Doctrine
 Proximate cause
Malum in se vs. malum prohibitum ( wrong v.
regulatory)
 Dangerousness
FELONY MURDER RULE:
 General rule: death that occurs during the commission of a felony is
automatically murder.
o EX: Regina v. Serne: felony murder is any act known to be
dangerous to life and likely in itself to cause death, done for
the purpose of committing a felony which causes death.
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o Ex: People v. Stamp: Take victims as you get them. Man died
of HR, foreseeable harm would occur.
Limitations:
o Inherently Dangerous.
 Abstract Approach: “is there a way to commit this crime
without death resulting?”
 Ex: PPL v. Phillips: chiropractor (felony)
defrauded family, it was not inherently dangerous
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crime, so daughter’s death from eye cancer was
not murder.
 CA use Abstract approach.
As Committed Approach: “was this crime committed
dangerously?”
 Ex: PPL v. Stewart: felony – child neglect (crack
binge, didn’t feed child), used as committed and
since it resulted in death, it was inherently
dangerous.
 Ex: Hines v. State: felony = felon possessing gun,
killed fellow hunter, was murder b/c used as
committed approach.
o Merger Doctrine: some felonies will merge and felony murder
will not apply
 Independent? Separate purpose from killing (not step
towards killing)
 Would π have to prove malice required for M2
anyways?
 Ex: PPL v. Burton: felony = robbery, intent was to
steal, separate act from murder, FM applies.
 Ex: Ireland: no FM, felony = assault with a deadly
weapon, just a step towards killing, π should be
able to prove MR anyways.
o Furtherance of Felony
 During felony (begins with planning, continues through
escape)
 Ex: kill someone during escape = FM, gillis.
 Whose Acts?
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Agency Theory: felon/ accomplice hand.
 Ex: ST. v. Canola: applied agency and did
not hold ∆ liable for victim shooting and
killing co-felon.
 Lmt doctrine b/c don’t want to encourage
vigilantism
Proximate Cause: 3rd party commits killing.
 Shield cases. (Taylor v. State)
Provocative Act Doctrine: atmosphere of malice.
 Police shoot outs
Who died?
 Felon
 Justifiable v. no one deserves to die.
 Innocent victim
Death Penalty for Felony Murder not by your hand?
 Tison: sons who helped father escape from
prison, father killed victims of carjacking.
 1) major participation (objective)
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2) reckless indifference (subjective)
 boys did not get DP b/c they did not realize
risk and consciously disregard it.
CAUSATION
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Common Law Approach:
 ACTUAL CAUSE - But For Approach:
 Proximate cause (legal cause) [sufficiently related]
o Foreseeability of harm
 Just foresee that harm would occur, don’t need to see
specific manner (Kibbe)
 Exclude extraordinary results.
 Ex: PPL v. Acosta – some form of harm was
foreseeable so it did not matter that helicopter
crashes had not occurred before.
Ex: PPL v. Warner-Lambert – although there was
a dangerous chemical atmosphere, there was no
evidence of act to start explosion, so court did not
impose liability b/c couldn’t know if it was
extraordinary event.
∆ takes victim as he finds him.
 Extends to jehovah’s witness cases where victim
refuses treatment (religion part of person).
∆ need not foresee who victim is



∆ need not foresee greater harm – c/l ∆ will be
responsible for greater harm.
o Intervening Act
 Superseding or Dependent
 Foreseeability
 Control and Policy (who do we want to punish/ what
result do we want)
 Acosta – blame driver not helicopter pilots
 Deterrence

1. Acts of Nature
a. Routine
i. Kibbe – leaving man in freezing cold was
foreseeable harm would occur.
b. Extraordinary
2. Acts by another person
a. Victim
i. Conditions (don’t break chain, DETERRENCE)
ii. Acts (choice v. rendered irresponsible)
1. Ex: Stephenson (biting, KKK dude)
2. Kern – attempts to elude captor don’t
break chain.
3. Assisted suicide: (Campbell/
Kevorkian) chain breaks, but may be
guilty of lesser crime in some JDXS.
b. Medical Care
i. Neglect (somewhat expected in US medical
system so neg doesn’t break causation
chain.)
1. Shabazz
ii. Intentional Maltreatment – (MD intentionally
gives poor care – may break chain)
iii. Disease – only rare disease breaks the chain
(bush- scarlet fever from MD)
c. Additional Perpetrator
i. Related – jointly involved in same scheme.
ii. Unrelated d. Complementary Human Action
i. Drag racing – McFadden
ii. Russian roulette – Atencio (deter from
playing games)
iii. Mutual encouragement
3. Transferred Intent –
a. MPC – intent is what we punish, not who was
killed
b. Common law – may allow for higher punishment if
the victim was “special” person.
MPC APPROACH
 A) cause in fact
o But for
o Does not address concurrent causes.
 B) Proximate Cause
o Different victim: transferred intent applies
o Lesser level of harm: ∆ only responsible for harm that
resulted, not intended.
o Greater/ Different harm: allows case by case analysis of ∆’s
deserving larger punishment.
o Strict liability: still requires causation.
ATTEMPT
11/26/2008 12:30:00 PM
Elements:
 Inchoate crimes – incomplete crimes
 ∆ must have purpose/ specific intent to commit crime.
 Substantial step toward completion of the crime.
Punishment:
 Traditionally: misdemeanor
 Majority approach: attempt carries less punishment than completed
crime.
o CA – ½ of max term for completed crime.
o Less harm = less demand for retribution.

Minority approach/ MPC: attempt punishable the same as completed
crime, except death/ life in prison.
o Punish intent, don’t let criminals get lucky.
POLICY:
 Police intervention: way JDX defines attempt alters when police can
intervene.
 Not punishable for bad thoughts: law requires criminal intent and criminal
act.
 Chance for abandonment: if punishment too early, then disincentive for

abandonment.
Certainty that ∆ intended to commit crime: problems of proof arise.
MENS REA
 MAJORITY: Specific intent to commit crime – Purposely
 MPC: purpose or belief that conduct will cause…. Knowingly, more flexible
standard.
o EX: Smallwood – could not prove it was purpose to infect with
HIV and kill, so no attempted murder.



MINORITY: same mens rea as the crime attempted.
Attendant knowledge – if ∆ doesn’t need to know a material element for
the completed crime, he does not need to know it for the attempt
(statutory rape)
RECKLESS ENDANGERMENT: some jdxs created lesser crime to charge ∆
who lacks purposeful with attempt, misdemeanors.
ACTUS REUS

Approaches:
o First step approach:
 not efficient
 mere preparation
 exception – first poisoning in prolonged poisoning.
o Last step approach (eagleton test) - ∆ must complete the last
step.
 c/l approach
 no abandonment approach
 may put victim in too much danger
o Dangerous proximity – holmes “dangerously close to success”
 Considers
 how many steps ∆ has taken
 how much more action needed
 why the harm never occurred
 amount of harm likely to occur
 seriousness of prospective harm
 appropriateness of law enforcement interference.
 Ex: Rizzo – no opportunity to commit crime, no
attempt.
o Unequivocality test – act must leave no doubt to ∆’s
intention.
 RIL – the act speaks for itself, is so clear we can
assume intent.
 Ex: buying matches could be innocent or could be
first step towards arson, but we can’t tell.
 Ex: Miller – man told ppl he would kill someone,
was walking toward that person with gun, but not
attemot until he indicates intention.
 Ex: Mcquirter: black man following white woman
in 1953 in AL could only mean one thing.
o MPC 5.01 (1)(2): substantial step strongly corroborative of
intent.
 Combines dangerous proximity and unequivocality.
 Federal standard.

Ex: Jackson – return to site, guns, masks, no LP –
all evidence of substantial step
DEFENSES TO ATTEMPT
 ABANDONMENT (renunciation)
o c/l didn’t recognize attempt b/c it to last step approach.
o MPC- affirmative defense if:
 Voluntary: didn’t quit b/c afraid of getting caught, ∆ in
circumstances.
 Complete: not looking for better opportunity, victim or
time.


CAV: Complete renunciation, Abandonment before the
crime, Voluntarily abandon.
Ex: Johnson – no ∆ b/c clerk only had $50.
Ex: mcNeal – victim convinced ∆, so no defense.


IMPOSSIBILITY
o FACTUAL IMPOSSIBILITY – “except for the fact that….this
would have been a crime”
 Not a defense.
 EX: pick-pocketing but the pocket is empty; shooting
but gun malfunctions;
 “had the circumstances been as the ∆ believed them to
be, would there be a crime?”
o LEGAL IMPOSSIBILITY – “….can’t be a crime b/c ____ is not
illegal.”
 A defense.
 True legal impossibility - ∆ attempts to commit crime,
but there is no law making that conduct illegal (ex:
scalping.)

Hybrid: A situation can often be described both as
factual and legal impossibility.
 Label determined by seriousness of the crime.
 EX: Jaffee – rec’vd goods that weren’t stolen –
could have been fact/ legal, but b/c harmless =
legal.
 Ex: DLugash – shot a dead body – both legal/
factual, but shooting ppl is dangerous.
o MPC
legal



APPROACH: attempt to remove confusion of factual/
impossibility.
Generally does not recognize impossibility as a ∆.
Exception – when crime is so unlikely to result in crime
or no public danger the ct can mitigate.
MERGER
o If the attempt succeeds, the attempt merges with the
substantive crime. No doubling up.
o
ACCOMPLICE LIABILITY
11/26/2008 12:30:00 PM
AIDER AND ABETTOR
 Not a separate crime.

Common Law
 Principal in 1st degree – person who committed crime.
 Princiapl in the 2nd degree – present but not actor.
 Accessory before the fact – help plan.
 Accessory after the fact – only know about crime after it’s committed.
Modern Law
 Does away with distinctions except accomplice after the fact.
ELEMENTS
 AR
o Help





Encouragement is sufficient.
Principal doesn’t need to know of accomplice.
Doesn’t need to actually help in success of crime (Tally)
Presence is enough if there is previous agreement.
(hicks – not enough b/c no agreement)
MR
o Purpose for crime to succeed.
 Purposely not knowingly (Galdstone)
 Don’t need to know what principal doesn’t need to know
(ex: age in statutory rape)
 Negligence crimes = need same MR (ex: drag racing)
 If it’s a different crime than that accomplice is helping
with – needs to be reasonably foreseeable or natural
and probably result.
o Evidence for purpose





Nexus
Stake in venture
PRINCIPAL
o Does not need to be convicted, but there needs to be a crime.
OTHERS
o Cannot be victim.
o Cannot be protected class (child labor laws, underage girl).
o Cannot be someone used as instrumentality.
DEFENSES
 Abandonment
o Common law – majority did not recognize abandonment.
Voluntary and complete, w/ substantial efforts to prevent
crime if it was recognized.
o MPC – ∆ terminates before the crime and prevents it or warns
authorities/ other measures to prevent crime.
CONSPIRACY
 Agreement between 2 or more people to commit a crime.
 Separate crime.
 Elements
o AR: AGREEMENT (dif from A/A b/c need to know/ meet
someone in conspiracy).
 Need not be expressed, can be shown through conduct.
 Tacit/ implied
 Shown by concerted action.


All co-conspirator’s need not know everyone or agree at
the same time.
WHO HAS TO AGREE?
 Gebardi rule: not victim.
 Wharton’s rule: if the crime takes 2 by definition,
it can’t be conspiracy.
 Bilateral vs. unilateral – if an undercover is
conspirator B ≠ conspiracy, U = conspiracy (MPC
– hung up on MR).
o MR: Intend to agree & purpose for the crime to succeed.
 Purpose can be proven through:
 Stake in venture
 No legitimate use
 Price variations
 Grossly disproportionate volume
o OVERT ACT:
 Any act (doesn’t need to be illegal)


 Committed by any co-conspirator
 Only need one
Co-Conspirator Liability
o Hold people responsible for other’s crimes.
o PINKERTON LIABILITY: co-conspirator is automatically guilty
of criminal acts of other co-conspirator in furtherance of
conspiracy.
Scope of conspiracy:
o Kotteakos – Wheel conspiracy – multiple conspiracies
connected by middle man.
Spokes can be connected like in Anderson – common
goal for conspiracy to continue.
o Chain – all links of chain (drug distribution)
 Competitors at bottom can be seen as different
conspiracies or as combined b/c they all need up chain
to succeed.


DEFENSES
11/26/2008 12:30:00 PM
JUSTIFICATION DEFENSES: reason to commit the crime was a good
reason.
 Triggering condition that requires ∆ to act.
 Necessity element that gives the ∆ no choice but to act;
 Proportionality that place limits on how ∆ may respond.
o
Self Defense - ∆ justified in using force to protect himself
from the threat of immediate and unlawful force.
 Elements:
 Fear:
o Honest fear – subjective
o Reasonable – objective
 Common Law: RP for person in ∆’s
situation.
 Physical attributes
 ∆’s prior experience.
 Relevant knowledge about the
attacker.
 MPC: ∆ believed – subjective



 Imperfect self ∆ = honest but unreasonable.
Danger of death or SBH
o Common Law: strict standard – had to be Death/
SBH
o MPC- “or threat of serious felonies, like
kidnapping, rape and robbery.”
Imminent
o Common Law: Here and now
o Modern: RP believed it would be imminent
o MPC: Inevitable
 No pre-emptive strikes.
No excessive force
o Deadly force can be responded to with deadly
force/ non-deadly force
 Non-deadly force can only be met with nondeadly force.


Duty
o
o
o




Can’t use deadly force in response to property
threat. (Ceballos)
to Retreat
Arises when Use of deadly force by reactor (∆).
(Abbott)
 may stand ground if using non-lethal force.
CL – strict duty to retreat when you could do so
safely.
Modern - ∆ knows he can retreat safely.
 Exception – castle – never have a duty to
retreat from home.
 Initial Aggressor Rule – can’t create own necessity.
o Peterson – windshield wiper case.
o ∆ argue just an instigator.
Imperfect Self Defense – mitigate to voluntary
manslaughter.
Battered Women’s Syndrome:
 Expert testimony goes to reasonable standard and
imminent standard.
o Problems: perpetuates stereotypes, allows women
to continue to be victims.
Defense of others –
 Stand in shoes –if victim could use force, rescuer can
use same force to save the victim.
o CL – had to be right
o Modern – reasonable belief.
Defense of Property
 CL – could use deadly force to prevent any felony (b/c


all were punishable by death).
MPC – deadly force only when dispossessed of dwelling;
intruder committing felony and has used deadly force;
an attempt to use non-deadly force would put ∆ at
substantial risk of SBH/ death.
MAKE MY DAY – some JDXS permit any force to respond
to any intruder who ∆ reasonably believes will commit
crime.
o
NECESSITY –
this action normally is illegal, but here it is
right choice.
 CHOICE OF EVILS – usually choice between physical harm
and committing crime
 Ex: Unger – attacked in prison v. escape.
 Economic necessity is insufficient.
 NO APPARENT ALTERNATIVE
 Need to know alternative.
 LESSER EVIL





Honest belief
Reasonable belief
o MPC 3.02 – Believes is subjective, but objective
evaluation of harm levels.
 No necessity for murder.
IMMINENCE
 CL: Here and now
 Modern: Reasonable belief
 MPC: Inevitable
DID NOT BRING IT UPON SELF
 Aggressor v. instigator
 Mpc – may allow ∆ of necessity to mitigate if brought
upon self.
 Jury decides.
NO CONTRARY LEGISLATION
 Civil disobedience cases – not necessity b/c legislature
already weighed the protest and made it illegal.
(SCHOON)
o Harm not imminent.
o ∆s have legal alternatives.
o Society already weighed and decided case.


Special cases – PRISON ESCAPE
o Add – SURRENDER immediately upon reaching a
place of safety.
Narrow subscription to avoid prison
craziness.
 Necessity w/ homicide:
o CL – no necessity ∆
 too hard to measure life.
o MPC – maximize lives saved.
 Torture? Israel case – no pre-emptive
approval of torture.
EXCUSE DEFENSES: ∆ didn’t do the right thing, but the ∆ is not morally
blameworthy because ∆ is not fully capable of controlling his behavior.

No duress defense for economic or property threat.

DURESS:
o common law approach:
 Threat of imminent harm.
 Here and now.
 Toscano: vague future threat probably wouldn’t have
passed CL test.
 Death or SBH
To the ∆, close friend or relative.
Such an fear that ordinary man would yield.
∆ did not bring it upon himself
 Gangs  crime can’t be murder
o MPC Approach:
 Threat of unlawful force
 Sliding scale: greater harm needs greater threat.
o Toscano – minor crime, so vague threat was







enough to allow duress ∆.
Against ∆ or any person
RP in ∆’s situation would yield
 Imminency is a factor.
 Fleming: backfired on ∆ b/c he was army, higher
standard of RP.
∆ did not put self recklessly in the situation.
Available for any crime


Murder – would need a really large threat level to
excuse, most likely only mitigate.
INSANITY:
o Purposes of punishment don’t fit:
 Deter – can’t deter if they don’t control themselves; general
populace not deterred b/c people don’t id with insane ∆.
 Retribution – based on choice to do wrong act, but insane
don’t have choice.
 Rehab/ incapacitation – better served in hospital facility.
o History:
 Ecclesiastical: needed to confess, so insane couldn’t confess.
 Humanitarian reasons – reflects on us if we are punishing
insane.
o Competency: DUSKY STANDARD – well enough to stand trial:
 Consult with a lawyer.
 Rational understanding of proceedings.
 Minimal understanding – deem complete amnesia ok to
stand trial.

Will allow forced medication to make competent for trial
and for death.
o Insanity Defense: mental state at the time of the crime.
 What is disease or defect?
 History of mental illness
 Clear/ verifiable symptoms
 # of people that would qualify
o PMS
o Get around commonality by label psychosis

instead of syndrome – like YATES: Post partum
psychosis.
 stigma?
 Sincere/ fake?
 Self infliction/ brought upon self
o Compulsive gambling.
M’naghten Standard (CL)
 Presume people sane.





@ time of the offense.
Defect or disease of the mind o What is disease should be answered first.
∆ did not know nature or quality of acts; OR
o ex: think chopping wood, but really chopping up
body.
that acts were wrong.
o Truly think that killing wasn’t wrong.
o Wrong: Legal or moral?
 Knowing legally wrong will usually exclude
insanity ∆.
 Knowing morally wrong, but not knowing
law will usually exclude insanity ∆.
 Legal wrong comes from moral wrong.
MODERN ADDITIONS
o Irresistible Impulse – Police at Elbow
 Most JDXS don’t allow b/c line between
couldn’t and didn’t resist is too difficult to
establish.


Truly insane will meet the M’N standard
anyways, so this prong is unnecessary.
o Deific Decree – voice of god.
 Exception applies to MPC too.
 Crenshaw: not voice from god (made up
religion) – so not meet exception.
 Cameron: did meet deific decree b/c
“heard” voice directly from god.
MPC Standard





Presume sane
@ time of the offense
Disease/ defect of mind
Lacks substantial capacity to appreciate
criminality; or
to conform to requirements of the law.
o Substantial capacity: not black or white, allows
flexibility.

o
Ex: schizophrenia – lucid and insane
moments.
DIMINISHED CAPACITY:
o If ∆ allowed in jdx/ ct – then ∆ gets to present expert testimony to
address MR of offense.
o Reasons against DC:
 Battle of the experts.
 Confuses/ misleads jury
 Diagnosis unpredictable.
o Reasons for DC:
 Similar to voluntary intoxication.
 Civil commitment
 Judge has discretion to exclude bunk experts.
o 3 APPROACHES TO DC:
 Brawner (Partial): SI  GI, mitigate to lesser committed
crime.
 Wilcox: NO DC AT ALL
 13 states, CA included.


o Twinkie ∆.
MPC: Always use DC.
 Even if it is a general intent crime  no crime if no
intent.
INTOXICATION
o INVOLUNTARY INTOXICATION: full defense.
 Force
 Deceit
Pathological (disproportional affect of drug/ alcohol due to
pathology of individual).
o VOLUNTARY INTOXICATION: partial defense if at all.
 Only speaks to MR when allowed.
 SI  GI (purpose)
 No ∆ for reckless or negligence.
o Liquid courage:
 Never is a ∆ b/c ∆ formed MR before they got drunk.

o SPECIFIC INTENT VS. GENERAL INTENT:
 Specific: requires some level of thinking, premeditation, etc.
 General – not much thinking.
 CTs will arbitrarily label one or the other.
 Elements to interpret statute for the crime:
 MR level of crime
 Historically (factor not determinative)
o How much “brain juice?”
 Policy considerations

Is there a lesser crime that they can still be guilty of?
Entrapment





Federal standard: If the ∆ is predisposed to commit the crime and agents
only afforded him the opportunity to commit it, no entrapment.
o Subjective standard.
o To prove presidposition π can use any evidence (hearsay,
rumors, trash).
o Exception: motion to dismiss for outrageous government
conduct can be a question for judge.
CA standard: entrapment if it is likely that the government’s conduct
would have induced a law-abiding person to commit the crime.
o Objective test – RP in the situation.
o Presumption of resistance.
o CA standard GOES TO JURY.
MPC Standard: CA standard, but it goes to the judge.
Ex: Russell – federal case, followed precedent, did not allow entrapment
∆ b/c he was predisposed to crime (already making meth w/out officer’s
involvement.
Ex: Barraza: CA case, applied CA standard and conviction reversed for
prejudicial error.
o Entrapment will work under federal standard only for those
who have never really done anything wrong – must be
another reason they would suddenly begin to commit crime.
o Not used for murder – must be some predisposition if you will
go that far.

Rape
11/26/2008 12:30:00 PM
Rape: sex without consent with the use or threat of force.
 Question of perspective.
 Consent: if there is a mistake it needs to be HONEST and REASONABLE.
11/26/2008 12:30:00 PM

Favor
-

Against
-
money spent on incarceration.
Retribution
American Cultural
Automatic appeal
Incapacitation - Still danger to
society;
Tool for prosecution
Deterrence – in prison, ex: punchy.
-
litigation cost a lot
eye for eye doesn’t work
moral authority – killing is wrong.
No empirical deterrence.
Fatalization
Innocence
Discrimination
Opportunity to rehab.
-
Society prefers death penalty
-
When do we bluff? Force innocent
to admit guilt to avoid DP
Lengthy appeals cost state more
money
-