Long Outline
Act Requirements
141-143, 147-156
1. Voluntary Act:
a. Can be minimal: settling alarm, words
b. Possession: knowingly/willingly took; or aware for sufficient period
to terminate
c. INVOLUNTARY acts don’t count
i. Common Law: Sleepwalking, hypnosis, brainwashing, seizures
(unless aware you’ll have one)
ii. MPC: convulsion/Reflex, in sleep/unconsciousness,
hypnosis/hypnotic suggestion, bodily movement not product
of effort
2. Omission: Only if you have a DUTY
a. Legal Duty (7 ways) (not moral)
1. Statutory
2. Special Relationship
3. Contractual Duty (lifeguard, made contract)
4. Voluntarily Assumption of Care
5. Landowner Status
6. Duty to Control third parties (children/employees)
7. Creation of Peril by Defendant
3. Mens Rea: intent
4. Results
Cases
1. Jones v. United States: (mom asked friend to care for kids; younger died from
malnutrition, manslaughter
a. No contract theory: contract was broken between mother and D
b. Voluntary Assumption of Care: not enough evidence/jury instruction
Theft
479-561
Larceny
2. Elements
1. Trespassory (wrongful)
2. Taking and
3. Carrying Away (asportation)
a. CL: donut v. pie (moving all of it)
b. MPC: only need control
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4. Of Personal Property (goods/chattels)
5. Of another
a. CL: excludes partnerships/spouces (not modern
view anymore)
b. MPC: includes (community property): of another
includes what other ppl also have interest in
6. With intent to Deprive Permanently
a. Intend to do the act: general AND intend to
deprive permanently: specific
b. Not larceny until intend to deprive
PERMANENTLY
4. Property issues
1. What is property?
a. Common law: what is movable
i. Majority: including things adhering to real property (trees,
gravestones, etc): electricity
ii. Minority: includes labor/services
b. MPC: anything of value: tangible/intangible, contract rights, interests
in claim/wealth, electricity
3. Lund: Used $5000 of computer time (wrongfully), took print outs
a. Holding: use of computer time (services/labor) ≠ property so no
larceny: print outs weren’t worth < $100
i. Basically had taking but not asportation
4. Oxford v. Moss: the intent: take answers and put back tests, trying to rob the
confidentiality perminantly
a. Holding: couldn’t steal the information (not property)
b. MPC: would’ve been larceny
5. of Another
1. Henry v. State: staying with woman, put down trunk/bike as deposit but kept
using
a. Holding: crime about possession (not owner): when he took stuff he
took her possession
2. Taking and Carrying Away: asportation: Carrying Away
2. State v. Carswell: moved air conditioner 4 inches toward door
a. Holding: met elements:
i. Intent (trespassory): intended to deprive permenantly (was
trying to steal)
ii. taking: held it for a few seconds
iii. carrying away: moved it (donut v. pie): moved the whole thing
3. Common law: every part moves (Common Law) (pie/donut)
4. MPC: gets rid of carrying away: just “unlawfully taking/exercising control”
1. Taking
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1. Taking: possession or control (severance from possession/control of
posessor) only need to do it for a second: about the possessor, even if you
own it
Generally: intent is continuous, at any time you intend to deprive permenantly,
you’re guilty
 Accidentally derprive permanently≠no larceny
o Unless expose it to so much risk (throwing it around)
o If think it’s youre and take it, no larceny, no intent there
For Lost/delivered goods
2. Common law: intent to deprive permanently at time you find it/delivered (or
some discovery)
3. MPC: intent can be later, ultimate act
Lost or Mislaid Property
5. Brooks: found $500, kept it, didn’t try to find owner (by amount could’ve)
a. Holding: guilty of larceny
6. Common Law: must have intent to deprive permanently at the time of
taking this is good stuff
a. Taking is not continuous,
i. Reasonable clue of ownership at time of finding: gotta
know it’s someone elses +
ii. intent to deprive permanently at time of taking
7. MPC this is good stuff
a. Focus on ultimate intent: take it, then decide to keep=larceny
b. Need knowledge/clue to ownership within reasonable time
c. Failure to take reasonably steps to return
8. Examples:
a. Find something, intend to return it, then decide to keep:
i. MPC: guilty
ii. CL: innocent
b. Find something intend to steal it and then return it
i. MPC: not guilty
ii. CL: guilty
Mistaken Delivery
1. CL: Intent to deprive at time AND knew the mistake at time of taking
(split time of discovery) this is good stuff
2. Rogers: took extra change, ended up spending it, knew it was extra, had
intent to keep when took it
a. Common Law: knew of mistake when taking + intent to deprive
permanently at the time
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i. Split: Delivery: knowledge of mistake when taking+intent to
deprive then
ii. Split: discovery: intent to deprive when discover
b. MPC: as above MPC: focus on ultimate act this is good stuff
i. Control property delivered by mistake
ii. Ultimate: Purpsose or desire to deprive owner
iii. Failed to take reasonable measures
1. Discovery: knowledge of mistake upon discovery +
ultimate intent to deprive
3. Examples
a. 1. Gets too much change, immediate discovery, goes home and plans
to return the next day but then keeps it
i. CL: not guilty, no intent to deprive permanently when taking
ii. MPC: guilty: ultimately decided to keep it
b. 2. Gets too much change, discovers once home, keeps $
i. CL: not guilty, no knowledge when he took it
1. Split: upon discovery
ii. MPC: guilty, ultimate act, upon discovery of mistake
6. permanently:
1. For properties useful life
2. Exposing property to risk so return is impossible
3. Unacceptable condition on return (ransom)
Larceny by Trick
1. Robington: took car for test drive, hid it in jersey, never intended to pay, tried
to argue he was not guilty bc not trespessory (they gave him title)
a. Holding: Bull shit! Obtaining possession by deception/fraud/force
with intent to convert it permanently=larceny
i. Owner intended to part with car but not title
 Rule: Larceny by trick: the possession of personal property of another by
deception, artifice, fraud or force, with the intent on the part of the person
obtaining it to convert it to his own use and permanently to deprive the
owner of his property
o Exception: if the owner intends to part with the title to the property as
well as possession, whatever other crime may have been committed,
it will not be theft
2. Examples
a. A asks B to see luggale, A says will give it back but doesn’t
i. Guilty: there was transferred possession but not title
b. A, posing as ET, asks B for luggage to take home, takes off mask and
keeps
i. Not guilty: transfer of title
c. A says in a hurry, will buy you round trip ticket for yours, doesn’t
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i. Not larceny by trick: transferred title
Larceny by trick: person only transferring possession of it. False Pretense: person
transferring title to it as well
Receipt of stolen property
1. Elements
1. The property was received, concealed, or withheld
by the accused
2. Such property was obtained by theft (larceny,
embezzlement, false pretense)
3. Accused knew the property was so obtained
2. Kunkin: reporter got information from former attorney general office
employee: guy said he stole it, but maybe not legal definition (quit job so
probably wont return)
a. Holding: since reporter didn’t know he quit job (thus deprive
permanently) didn’t meet element 3
i. (but probably could have argued deprived the secrecy
permanently)
Intending to Pay
1. Mason v. State: guys broke into bar, knew the owner (but had been told no),
brought keg just outside, drank, offered to pay back the next day, refused
a. Holding: no proof that did not intend to pay (deprive permanently)
and money was good substitute
2. CL: essentially Mason: taking fungible goods with reasonable substitute from
merchants (probably not for ppl not merchants?)
3. MPC: intent to pay D: D took property exposed for sale, intending to
purchase/pay promptly, and reasonably believe the owner, if present, would
have consented.
Embezzlement
Elements
1. Fraudulent
a. majority: Intent to deprive
i. so even just borrowing can be embezzlement
b. minority: need permanently
i. But no substitution allowed: so if you take money, must
return same bills—accounts you’re fucked
c. if you think it’s your property, not fraudulent
2. Appropriation
a. Misuse of it: not in manner authorized
b. Misappropriation even without use is embezzlement
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c. Convert for own use the property of another
3. Of property
4. Of another
5. By one who became entrusted by possession
a. Not just access to it: then would be larceny
b. Special legal relationship
People v. Talbot: Prez took money out, allocated to personal use, said not
embezzlement because he did it openly/intended to return
 Not good defense, concealment not necessary
 Holding: guilty
o Intent to restore not good: but might mitigate the offense:
embezzlement about the immediate breach of the trust
o Fraudulent: beach of duty, trust, confidence. Officer knowingly and
intentionally use for their own purposes
Substitution not allowed (Mason Beer)
Fills gap in larceny, because if entrusted it you can’t be trespassory in taking it
Larceny by trick (trick someone into giving you possession and then take it off)
Embezzlement (you’ve been entrusted with it (not falsely) then you missuse it)
False Pretenses
Exam: close call between false pretenses/larceny by trick/embezzlment (can’t tell if
title being transferred or just possession (by fraud)(entrustment)): do both—reject
one
Common Law Elements
1. Misrepresentation by defendant
a. No duty to disclose: affirmative act (not ommission)
i. But if asked and you lie=misrepresentation
ii.
b. Something actually must be misrepresented (say it’s gold, thinking it’s
not, actually is gold: NO misrepresentation
2. Of a past or present fact
a. MPC/Minority: Present intention counts as present fact
i. Worry about criminalizing future fact: past/present facts only
bc otherwise may criminalize ppl that don’t fulfill contract
3. With the intent to deprive the victim
4. Where the victim relies on the misrepresentation
a. ET example would be false pretense
b. Can be unreasonable reliance
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5. In transferring title to some property
Minority/MPC: present intention counts as fact
 CL: worried about prosecution: vague possibilities when add mental
intention: not just objective
Past or present fact
 May include:
o Present Intention
o Opinion of an expert to a non-expert
o Concealment (duty to correct may arise)
Worry about criminalizing contract breach, under MPC would happen if you had no
intention
Chaplin: said would by liquor stamps with money and pay back. Took money with
no intention to buy stamps or pay back
 Holding: not guilty: didn’t lie about past/present fact (had the wine business)
 Dissent/MPC: Present intention counts as present fact
Larceny (take possession) v. larceny by trick (given possession, not title, by fraud) v.
Embezzlement (entrusted with it) v. False Pretense (Given title bc of your
misrepresentation)
Larceny by trick (given possession, but not title)
Beer Case: bought 29 six packs, 29 cases loaded into car
1. Convicted of false pretense: bc misrepresented what he bought
2. Apppeal: Larceny: bc took what he was not sold (title of cases wasn’t
transferred)
Lumping: THEFT
MPC+jurisdiction lump larceny, embezzlement, false pretense together
 Theft by… any of them
 Each juror just needs to find D has all elements of one of them
o But worry about uncertainty: if can’t fit in one, isn’t there doubt?
Aggravated Property Crimes
563-599
Robbery
1. Trespessory
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2.
3.
4.
5.
6.
Taking and
Carry away
Property
Of another
With intent to deprive property of another
a. Claim of right defense: If you think it’s yours don’t satisfy (so go to
bank with gun and ask for exactly your money ($354,000) even
though wont be from your account, your intent was not to take that of
another
b. If it’s your actual property, it’s not property of another
i. If it’s a debt, then it’s not your property
ii. Someone owed you money, it’s still there property
7. Permanently
a. (reasonable time, not necessarily forever)
8. Taking by force or apprehension of immediate force
a. More than mere touching, not snatching a purse
b. Can be directed at third person
9. Taking must be from the person or in immediate control of the person
Claim of right D:
 MPC/Majority: if think you’re taking your thing, not robbery (or larceny)
o What about mistake: mistake is okay (specific intent crime so honest
mistake is fine)
 Minority: no claim of right defense
 Debt: not good, because it’s not your property
o Basically no substitution
State v. Mejia: (NJ has no claim of right defense) D demanded money from victim
that was owed, victim ran away, shot him, took the money (Presumably)=robbery
 Money also wasn’t definitely his (could be different bills) so was property of
another
Extortion
Elements
1. Use of threat
2. In an attempt to obtain (some courts: actually obtaining)
3. Property or action from another person
Claim of right
 Majority: no claim of right defense (but read wrongful into it)
 Minority: (property or action from someone else) was owed in fact to D or
D’s conduct was reasonable: have defense
 All: No claim if right if threaten physical harm
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No claim of right excuse: but maybe covers too much?
 So read “wrongful” into it
Rule: person who maliciously threatens to accuse another of a crime or offense, or
with an injury to his person or property, with intent to extort money or other
pecuniary advantage, or with intent to compel the person so threatened to do an act
against his will, shall be imprisoned in the state prison not more than 2 years or
fined not more than $500
Classic Threats
1. An unlawful injury
2. Accuse of a crime
3. Threat to reveal something that would disgrace
4. Threat to publish defamatory matter or injure reputation or slight
personal character
5. Threat to injure victim’s family/relatives
6. Threat to injure anyone
State v. Harrington: wife hired lawyer who hired girl to look pretty and get proof of
infideleity: then sent letter saying I’ll disclose to IRS if don’t give us what we
want/embarrass you
 Got extortion
United States v. Jackson: Cosby claimed not the father but said would give money to
go to college, Jackson wrote Globe to get money for the story, contacted Cosby’s
attorney to get money or publish
 extortion
Political Extortion:
1. Elements
a. obtaining (or attempt to obtain)
b. money/property/action
c. under color of office
 Public official says you owe government money and took it for himself
 Prosecutors changed “under color of office” to “in use of office”
o Because bribery doesn’t have much of a sentence
o But here: maybe need quid pro quo arrangement
o Political extortion: only punishes government official, bribery
punishes both
Pg 592 definition: “obtaining money by a public official when money obtained was
not lawfully due and owing to him or to his office
 Campaign contributions can give some cover
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McCormick v. US: D working to pass bill to benefit foreign doctors, said “haven’t
heard anything from you” and got cash
 Holding: there needs to be explicit quid pro quo
o Dissent: don’t need explicit part
Mens Rea
171-184, 195-206, 220-230
MPC
1. Intent crimes
a. Purposeful: intentional/consciously engage in conduct that involve
intended result: purposefully want elements of crime to occur (could
do it without actually knowing)
b. Knowingly: he is aware that his conduct is of that nature or that such
circumstances exist. He is practically certain/high probability that his
conduct will cause such result
2. Reckless crimes: conscious disregard of risk that element exists or will
result from conduct
a. Gross deviation from standard conduct
b. Know about risk, know it is unreasonable
i. Look at risk/factor that are relevant to how substantial it was
and justificiation
ii. Jury: look for conscious disregard of risk
c. Drunk: is per se reckless knowledge, so can’t put in evidence of being
drunk
3. Negligently crimes: must be substantial unreasonable risk: should have
known of risk that elements will result
a. Gross deviation from reasonable person in situation
MPC: saying if intent not to hurt someone, knowing you’ll hurt them=intent
State v. Perry: guy walking around naked, ppl saw him through window
 Rule: need specific intent: to expose self (not just general intent to be naked)
o No such intent
Gordon v. State: kid voted relying on parents information: had honest belief
 If had some doubt, should do due diligence: must not be reckless/careless
 Was a reasonable mistake (to a reckless crime): trusted mother, not stranger
Picaso Example: saw painting, looked like print, burned it: innocent
 Larceny standard=specific intent, so unreasonable mistake okay
State divides crimes into: general and specific intent
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
General intent
o Reckless, negligent, purposefully whatever can be general intent
o Reasonableness test
 Specific intent
o Additional mental element: need intent
o Larceny:
 General: you must intentionally take and carry away
 Specific: and deprive permanently property of another
 Need this specific intent
 If you have honest mistake, don’t have specific intent
(can be unreasonably
Specific intent crimes: theft
 Honest mistake (that would make a crime) is defense
 Need criminal mens rea
General intent crimes: can be negligent/reckless and commit it
 Ppl who think they’re doing nothing wrong under facts can still be criminal
o Usually only if acting unreasonably (at least)
MPC doesn’t like this
 Intent crimes together (purposeful/knowing)
 Then reckless criems
 And negligent crimes
Defense in MPC: if crime requires 1 level, doing it under level less is D
 Reckless crimes: if acting negligently it’s a D
 Negligent Crimes: reasonable mistake
 Knowing Crimes: if acting recklessly it’s D
Log example: Reckless level crime
 Look at log, sincerely believe it’s a log, but reasonable person would know it’s
a person
o Chop it up
o Not guilty of reckless crime
o But are of negligent murder
Ignorance: of law not an excuse, of fact can be
Defenses
Under Common Law
Mistake of Fact
 Specific intent crime: then honest mistake of fact is good D
o Like chopping up person: if you need the specific intent to kill
someone, being mistaken about the facts is good, even if unreasonable
o Can introduce evidence of intoxication to show didn’t have specific
intent
 Often have a lesser back up crime if didn’t have specific intent
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
General intent crime: mistake must be honest and reasonable
o Then mistake about facts need to be honest/reasonable
o Can’t submit intoxication—because just need the intent to be doing
Mistake of law: not a defense: even if reasonable (there are exceptions)
People v. Wendt: D had no willful intent to wrongfully not file income tax. Thought
he didn’t have to pay
 Mistake of law not an excuse: given facts he knew, law was he had to pay
Exceptions to mistake of law:
1. Law not published
2. Mistake arises from reasonable reliance on statute that was later
determined invalid
3. Mistake based on reasonable reliance on a court decision
4. Mistake arises from reasonable reliance on a public official who is in
position to interpret the relevant law
a. Narrowing mandate: not any public official
b. Possibility: US v. Barker: police/law enforcement needs immediate
help, tells you to do something, it’s illegal, might be good D
5. NJ: relying on a lawyer
Willfull: thus = willed to do it, doesn’t matter if knew it was illegal
1. Exceptions:
a. Tax law: special intent requiring knowledge it’s illegal
b. Conspiracy statutes: some states: must know what you conspire to do
is illegal: bc such an early stage: could find out it was illegal and not do
it
US v. Williams: man went into building, denied loan, handed over note, got money,
left
 Argued he drank too much, couldn’t have evil state of mind
 Still found intent: wrote the note ahead of time (this was specific intent
crime)
o So could put in the evidence, but still had intent, if was way to drunk,
might be innocent
Defenses in MPC
 Hierarchy
o Purposeful intent crime: if only acting
knowingly/recklessly/negligently then not guilty
o Knowingly intent crime: if acting recklessly or negligently your’re find
o Recklessly Crime: if only acting negligently, then not guilty
o Negligent Crime: if acting reasonably, not guilty
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
Voluntary intoxication: can be defense to purposeful/knowing crimes
o Because need intent which being drunk might not give you
o But not good fro reckless/negligent crimes: makes sense
 Because being drunk you are reckless per se
US v. Villages: Blood vials infected with Hep B found near Hudson, washed up
 MPC: 2 definitions of knowing (required for whatever crime this was)
o Substantial/Practical certainty: most ofted (knowing someone
would be hurt in the future, know elements would be met or
practically certain)
o High probability: highly probable that you knew elements existed,
less than substantial certainty
 Aware of high probability element would happen: not here
Diminished capacity: psychiatric evidence that D could not possibly have or formed
the mens rea (no mens rea in the first place, unlike insanity)
Strict Liability and Public Welfare Offenses; Vicarious and Corporate Liability
231-237, 242-247
Commonlaw
Commonwealth v. Kocwara: charged with minors being in the beer, selling them
alcohol (dismissed), allowing them to be sold beer while not actually present and
with no knowledge, encouragement, or authorization
 Strict liability crime: no defenses (even reasonable mistake of fact)
Usually about public welfare, just get a fine, to use criminal system
Basically don’t need mens rea+no mistake allowed
 Bigamy
 Statutory rape: consent is nullified, no reasonable mistake allowed (changed,
see below)
MPC:
2. SL Violations (no prison sentence or stigma or criminal conviction)
a. Not crimes
3. Statutory crimes that are clearly meant to impose liability on Corporations
4. Offenses consisting of omissions to perfrom specific duties imposed on the
corporation
Can have vicarious liability to a person
Corproarte liability to company
And accessory liability: agree/encourage
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Homicide
257-345, sup 15-25 (replacing ppl v. Robertson), 355-386
Homicide: any killing
Murder (1st or 2nd degree): includes malice aforethought (mens rea) and proximate
cause of death
Intent=purposeful/knowing
1. Intent to kill: desiring to kill subjectively or knowing your actions will likely
result in death
2. Intent to commit serious bodily injury: intedning to injure someone but
accidentally killed them
3. Extreme recklessness (reckless disregard to human life;
abandon/malignant heart)—consciously aware of substantial unjustified risk
a. Usually doestn require substantial risk of death (just SBI) but talk
about it
4. Intent to commit certain felonies (listed is first degree, unlisted is second)
1st Degree Murder
1. Intent to kill
2. With premeditation: planning
a. Majority: carrol: no time required, can be at time of calling,
instantaneous, simultaneous, right before
b. distinguish: Anderson: appreciable time between intent and actual
killing; higher threshold
i. Evidence Test: Planning activity leads to actual killing
1. Look for: prior relaltionship to infer killing
2. Manner of killing
3. Subsequent conduct (clean up, etc)
a. Anderson: says doesn’t matter, that’s state of
mind after the crime
3. And deliberation: cool, calculated, planning
must be premeditation/deliberation to kill, not SBI, extreme recklessness
Commonwealth v. Carrol: husband and wife in fight, had gun on bed (her idea), she
hurt kids, talked shit, he shot her in the back of the head, tried to hide body
 Defense: no premeditation/deliberation: just picked up gun and did it
 Holding: premeditation was picking up gun and shooting=1st degree murder
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People v. Anderson: D lived with victim, victim’s brother came home, D liked to
brother and mother, mother got suspicious, found body with cuts all over
 Holding: 1st degree murder: premeditation/deliberation and (sexual, later)
 Appeal: jury couldn’t find planning+motive: it was a frenzied killing
o Also specific intent crime: can add drinking
Diminished Capacity
 Generally a psychiatric defense, can also be intoxication (involuntary
intoxication always a D)
 Never had premeditation because your mind couldn’t do it: better than
insanity, bc you never committed a crim
MPC: no degrees of murder
 Intent to kill or
 Extreme recklessness (disregard for human life): intent to commit serious
bodily injury is covered by this as well (up to jury)
o Intent to commit serious bodily injury is not separate catagory
Voluntary Manslaughter
Elements (cannot apply to felony murder)
1. Sudden provocation
2. Cause reasonable person to lose their cool (words are up for debate)
3. And did so for the defendant
4. No time to regain cool (in the heat of passion they had…)
a. Intent to kill
b. Intend to commit serious bodily injury
c. Extreme recklessness
d. NOT IN FELONY MUDER
5. Causes intent to… (kill, commit serious bodily injury, extreme recklessness)
MPC:
1. extreme mental/emotional disturbance
2. for which there is a reasonable explanation or excuse (but reasonable is
only based on subjective understanding
o just look if person actually lost control
(look at subjective: in actors situation under circumstances as he believes them
to be) jury can understand person to loose cool
 Doesn’t have to be sudden
 Jury enabling
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State v. Thornton: guy showed up at wife’s house, saw them kissing, let air out of his
tires, got gun and camera, back to house, hear fucking, burst in, tried to take pic, told
guy I’ll shoot you in the ass, did it
 Got 1st degree murder
o Premeditation and deliberation?
 Took air out
 Got gun
 But then why camera?
o Voluntary manslaughter: only formed intent to commit kill (SBI but if
shoot someone KNOW they could die)
MPC
1. Manslaughter A: voluntary manslaughter: extreme mental/emotional
disturbance then form intent
a. No psychiatrist testify about capacity to premeditate
2. Manslaughter b: accidental killing
Second Degree Murder
1. Need malic aforethought
a. Intent to kill
b. Intend to commit serious bodily injury
c. Extreme recklessness
d. Commission of dangerous felony
i. Split here: between if fact or in abstract
2. No Need for premeditation and deliberation
Malone: D and victim were friends, playing Russian roulette, shot victim in side
three times thinking bullet wasn’t gonna be there, never intended to kill
 Second degree murder: malice aforethought: was extreme recklessness
o Consciously aware of substantial/unjustified risk
 Split from negligence: consciousness
MPC: this would just be murder, no distinction, no intending SBI, but probably
would be reckless
People v. Knoller: two defendants taking care of fighting dogs, had previously
attacked people
 Murder: dropped by judge
 Appeal: extreme recklessness=extreme indifference to human life, abandon
and malignant heart
o Requires Consciousness: disregard to risk of human life
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
On a continuoum: was it extreme indifference to human life or
just normal recklessness/negligence?
Involuntary Manslaughter
Common Law
1. Reckless or
a. Conscious of unreasonable risk (doesn’t need to be extreme
“conscious disregard of human life”)
b. High degree of likelihood of substantial harm
2. Gross criminal Negligence
a. More than unreasonable risk in torts
b. Must be substantial likelihood of substantial harm
3. No contributory negligence defense
4. No intent to kill element
Commonwealth v. Feinberg: guy selling sterno, new type came out, more dangerous,
knew ppl were drinking it, ppl died
 Rule: death in consequence of unlawful act (or doing lawful act in unlawful
way)
o When lawful act done in unlawful way: requires rash or reckless
manner
 Such departure from the behavior of ordinary prudent man to
evidence disregard for human life or indifference to
consequences (and direct causal relationship)
 Ruling: don’t need to monitor customers, but knew they were drinking it,
so reckless/negligent to sell it
 Holding: involuntary manslaughter
MPC Splits
1. Manslaughter: recklessness: reckless, aware of substantial unjustified risk,
not quite depraved heart
2. Negligent Homicide: criminal negligence: no need for consciousness
Felony murder
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When considering felony murder: also consider extreme recklessness for murder:
but then rebuttable: but would then only get second degree
 Also talk about extreme recklessness v. reckless/gross negligence (to get
manslaughter)
1. Someone dies in the course of an attempted felony
a. 1st degree murder
i. robbery
ii. burglary
iii. rape
iv. kidnapping
b. 2nd degree murder: inherently dangerous felony
i. Minority: Abstract: crime cannot be committed without being
inherently dangerous (risk of death)
ii. Majority: Applied: in fact it was inherently dangerous
2. Felony ends: not until stuff “in furtherance of the felony” is over
People v. Howard: D driving, pulled away from cops, chase, 80mph hit car, killed
driver:
3. Application: Abstract application: the felony could have been committed
without being inherently dangerous, so not (in the abstract), no felony
murder
4. Dissent/concurrence: clear as matter of logic that key element was disregard
for human life—fails in scope of inherently dangerous—should have this rule
a. Inherently dangerous is too vague
5. Dissent: should use applied
MPC: Death in furtherance of any felony is a rebuttable presumption of extreme
recklessness/indifference to human life
If have third party killing, look at agency, then extreme recklessness (second
degree) then recklessness (involuntary manslaughter)
Merger Doctrine
Merger Doctrine: if murder and the felony coincide (the murder is also the felony),
then no felony murder
 DOES NOT APPLY: when underlying felony is committed with design that is
separate or independent of intent to cause the injury that resulted in death,
or a listed crime
 Assault (attempted battery) and battery: excluded from felony murder in
almost every state
o Because can’t commit murder without assault and battery
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
o Then every murder would be felony murder (At least second degree)
 Wouldn’t have to prove extreme recklessness
 Wouldn’t have voluntary manslaughter
Some states add: assaultive in nature crimes
People v. Chen: D in gang, shot up car and woman died in car, claimed didn’t try to
kill, only trying to scare
 Crime=shooting at occupied vehicle: applied in law/fact=inherently
dangerous
 Merger rule: if felony and the murder coincide, the felony can’t be the basis
of felony murder
o Listed felonies can’t be merged
Agency Rule
State v. Sophophone: in course of burglary (listed felony), D was arrested, in cop car,
accessory tries to shoot cop, cop returns fire and kills him
 Sophophone charged with felony murder
 Proximate Cause rule: if D’s action lead to death of someone in the course of
the felony
o Doesn’t matter who did killing, or who’s dead
 Agency Approach: (only applies to felony murder TRAP) felony murder only
applies to group of felons
o Someone outside group killing doesn’t count
o Majority: does not matter who dies
o Minority: cannot be a felon
Hypo: ppl come into bank spraying bullets, security guard shoots someone
 Agency rule: not felony murder
o But would get extreme recklessness (use proximate cause rule): 2nd
degree
 Or then involuntary manslaughter
 Proximate cause rule: felony murder
Capital Punishment
McClesky: convicted of murder+armed robbery (killed white cop_: given death
penalty
 Appeal: no death bc racist: 14th amendment and 8th amendment
(cruel/unusual punishment)
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



Study: chances of getting death is disproportionate for white victims and
black Ds
14th: must prove the rasism was intentional act
o statistics not accepted bc about jury assessing character
th
8 : can’t prove it was racism, plus open floodgates
o discretion supposed to help D’s (prosecution choice), so shouldn’t get
rid of it
dissent: BS!: should view this as even risk being not accepted, relying on race
for discretion is BS!
Death penalty eligible crimes: 1st degree murder, terrorism, espionage
 cannot be under 18 at time of crime
 must be mentally competent at time of trial and execution
Kansas v. Marsh: man killed woman in house, lit it, killed baby
 Kansas D.P. statute: when jury finds aggravating and mitigating evidence in
balance, death penalty (by unanimous vote)
o Constitution: rationally narrow class of D’s
 Jury must render reasoned, indi’d sentanceing based on recort,
characteristics, etc
 Statute allows D’s to mitigate based on other factors
 State still must show crime+aggrevating factors
 constitutional
Edmund v. Fl: no execution fo person who did not intend to kill or intend lethal force
Tison v. Arizona: (sons helped dad) felony murder and reckless indifference to
human life+major participant (don’t need extreme=DP eligable
Rape (don’t need MPC)
405-426
Statutory Rape
Old Elements:
1. sexual intercourse
2. with a woman (old rule, now gender neutral)
3. not spouse (now can rape spouse)
4. under age of 18
a. varies by state (16)
b. can’t consent if under age
c. no reasonable mistake D (strict liability) except in cali
People v. Hernandez: V was 17.5, he had reason to believe she was 18, consensual
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

trial court: strict liability crime: he’s fucked
Appeal: allowed evidence of reasonable mistake
o Defensible where criminal intent is lacking
Garnett v. State: 20 year old retard (functioning at 12) fucked 13 year old (thought
she was 16, age of consent)
 Holding: strict liability crime: no mistake allowed: fucked
Reasoning
 Protect young ppl
o Drop sentence for peers
 But drawing line is arbitrary
 Strict liability: bc worry about purposefully not finding out
Majority: gender-neutral strict liability
 States reducing sentences for peer sex or decriminilizing
Forcible Rape
Elements: traditional
1. Sexual intercourse
2. With a female
a. (now gender neutral)
3. Not the wife of perpetrator
a. Husband has continuous consent, now gone
4. By force or immediate threat of force
a. Need this and also lack of consent in traditional
5. Against the will
a. Traditional: need upmost resistence
b. Rusk: reasonable resistence
c. Majority: no resistance needed
6. And without immediate consent of the woman
Traditional
1. Needed corroboration: that’s gone but still useful, but do need beyond a
reasonable doubt
2. Timely notice
Added Procedure
1. Cross examination of victim’s prior sexual experience with judge’s
permission
a. Judge listens to testimony: sees if relevant to be submitted
b. Most likely admissible if prior history between D and victim
i. More credible consenting relationship, harder to convict
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c. Limits the right to cross examine
2. Introduction of prior rapes (even if axquitted)
a. Bc so relevant
b. Most other crimes can’t introduce history of violent crimes
State v. Rusk: 2 stories, went upstairs, girl helped him with clothes, fucked
 Need force/threat of force
 And against the will and without consent of the other
o Either by resistance
o Or no resistance because fear of injury (this is issue)
 Appeal: no resistance, no fear that would overcome requirement
 Hazel: if show apprehension due to fear of bodily harm: then acts or threats
are the force and so fear can satisfy non consent and force
o But must be reasonable
 Jury found reasonable fear: so jury verdict upheld: rape
o Force: by choking
Commonwealth v. Berkowitz: girl went to guys room, pulled D out, he was over her,
door locked (but from inside), she said no the whole time (disagreement over if she
helped with clothes and returned kisses)
 No need for resistance: if force can establish lack of consent and induce
victim to submit without resistance: relative standard
o No was consent element, but not force
o There was no force/threat against her
 Holding: this was indecent assault (not rape): no force requirement, just
indecent contact
o Class: For rape: need forcible compulsion or threat of forcible
compulsion
 Otherwise just indecent assault
Modern:
 Don’t need utmost resistence
o Victim can cooperate to avoid physical bodily injury
o Usually still see force or threat of force: Otherwise hard to prove nonconsent (because of witnesses)
 Alternatives to force:
o Threatening from govern
o Unconsciousness
o Sufficiently drunk: can’t consent
Elements of modern
1. Sexual contact
2. By force or threat of immediate force
a. Or alternatives
b. Majority: no resistence requirement (but useful for evidence in
ambiguity)
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3. Without consent
Attempt and Solicitation
Chapter 12: Attempt: pp. 659-682;and pp. 689-701. This includes 3 cases to
read: Jackson, Staples, and Dlugash. Do not read the solicitation section
Attempt
Elements
1. Attempt to do an act or cause a result which constitutes a crime
2. An act in furtherance of that attempt that goes beyond mere
preparation
a. This is not trusting jury, already have beyond a reasonable doubt
MPC+modern trend: Substantial step strongly corroborative of criminal intent
Traditional: not guilty of attempt unless you committed last proximate act or
something close to it (basically about to do crime, or something close to it in some
Jur.)
US v. Jackson: plan to rob bank, got guns, too late, got another member, (one
member caught), went back, observed driving around bank, saw cops and drove
away
 Requires substantial act and acting with kind of culpability otherwise
required for commission of crime charged with attempting
 Going to bank and getting guns were substantial steps (corroborated by
conversations, going there with guns, scoping): Guilty
People v. Staples: drilled holes in floor of office space above bank, landlord sees, tells
cops, but he had already bailed on plan
 Mere preperations: rejected, drilling was in furtherance
 Change of mind: no longer have criminal intent-voluntarily changed mind
o But knew landlord was seeing his stuff, so motivated by about to get
caught.
o Once attempt found, no exculpatory abandonment
Renunciation
1. MPC + Some jurisdictions: voluntarily change mind is defense:
a. cannot be motivated by sense you’ll be caught (increased fear of
getting caught) or just postponing
b. Since catch ppl earlier, can abandon, but weird you’re guilty at one
time, then not the next
2. Traditional approach: abandonment is not a defense, once you have the
crime, can’t take it back
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a. But traditional was last proximate act: so if abandon before that
you’re good
Attempted murder: need to attempt actual killing, to murder you can just be
reckless
 For an attempt you need purpose (specific intent crimes) can’t attempt
something accidentally
People v. Dlugash: guy shot other three times, 5 minutes later D shot him in face five
time, convicted of murder, reversed (no evidence he was alive when shot), conviced
to attempted murder
 Mistake of law and mistake of fact not good D for attempt
 Jury found murder, so didn’t believe D thought was dead when shooting him
o Within every murder is an attempted murder (but merge)
Legal impossibility defense to attempt: attempting to do what is legal (shooting a
dead body) can’t be attempt (so mistaken what doing is a crime)
 Traditional/minority approach: it’s an accuse
 MPC: No D
 Explanation: person did everything they intended to do, but no act was
actually criminal, then no crime: not Illegal to do something that was actually
legal
o Ex: chop wood log thinking it’s a person, shooting bust in a window
(actually attempting to shoot the bust), hunting for deer during off
season but it’s a decoy, smuggling what’s legal
Factual impossibility defense to attempt: what D wanted to do was a crime but
circumstances unknown to D made it impossible to achieve (something missing
making it impossible), D guilty
 Not an excuse
o Ex. shooting with an unloaded gun, pickpocketing an empty pocket,
shooting through wall thinking person was there (actually attempting
to shoot the person)
MPC: guilty of attempt if the result would be criminal if the circumstances
were as the defendant believed them
 MPC ex: taking an umbrella thinking it’s someone else’s but it’s yours, have
attempted larceny (don’t have property of another element)
 Minority: legal impossibility is still good defense
 Inherent impossibility exception (judges discretion): like using magical
chant, or voddoo
Pure legal impossibility (always a defense): mistake that you think what you are
doing is crime is not, can’t have attempt
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

Think singing is in the rain is a crime, do exactly what you think is crime, no
attempt
Explanation: you think facts are exactly as they are, wrong about law
MPC/Majority: abandon legal+factual impossibility defenses
 With facts could argue either impossibility
Attempt and completion
o Majority: can be guilty of both
o MPC: can only be guilty of attempt or completion (but same punishment) or
conspiracy
Solicitation: asking someone to commit a crime
 MPC: any crime can make you guilty of solicitation
 Some States: only limited crimes can have solicitation
 Could also be considered attempt, but usually not considered beyond
preperations, so have solicitation
Don’t think we did any solicitation
Accomplice Liability
Chapter 13: Accomplice Liability: pp. 703-706; pp. 709-725. This includes 3 cases
to read in the chapter: Wilcox, Gladstone and Huber.
Elements
1. Give aid or encouragement
2. With the intent crime occur (facilitate the crime)
a. Majority: purposeful intent
b. Minority: knowing intent for serious crime and critical aid
3. Just as responsible as the principle: accomplice also convicted of the crime
(not accomplice to it): convicted of the crime and the natural and probably
consequences of it
 Attempting to aid
o MPC: attempting to aid, even if fails, still guilty
o CL: attempting to aid: if fails, guilty only if principle knows
 intent: purpose required by majority/MPC
 Accomplice wanted the crime to come about, not just
knowledge
 Need purpose/intent or substantial certainty
o Traditional: liable for natural and foreseeable results
o MPC: guilty only for what you intended to aid and encourage
o Majority: need purposeful aid: purpose crime will occur, otherwise
no liability
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
o Minority: if critical aid/serious crime, can be guilty without purpose:
but required “knowing”: communication can be enough
 Ex. Sale of guns: sells gun knowing that it is gonna be used for a
crime is not an accomplice unless his purpose was to aid that
crime
Modern: Accessory before the fact/principle in second degree treated the
same
Some crimes take 2 people, participating in prostitution is not accomplice
Accessories: aiding or encouraging
1. Principle in the first degree: primary actor, does the criminal act: has the
mens rea
a. can be multiple; (one pointing gun, one takes the stuff)
b. must be present/constructively present
i. constructively present: instrument left/guided caused criminal
result: poison, robot
2. Principle in the second degree: aids or encourages the commission of the
crime
a. Present or constructively present at crime:
i. Constructively: aids at time of crime from a distance: lookout
on a video monitor
b. Basically close enough to offer help in doing the crime (a lookout)
3. Accessory before the fact: not present, aiding or encouraging before crime
occurs
a. Doesn’t have to be causal/provides materials not used
4. Accessory after the fact: aid after the crime is completely over (fleeing the
scene immidietly after crime is still part of crime)
a. Guilty of obstruction of justice probably
i. Elemetns
1. Know the person is guilty
2. Person is guilty
3. Hinder their apprehension
5. Majority: principle in the second degree and accessory before the fact
treated the same
a. Equally as guilty as principle
6. Innocent doop: NOT ACCESSORY doorman asked to carry luggage, doesn’t
count
7. Causation: if aid/encouragement is not causal (would’ve done it anyway),
still guilty
a. Example: encourage a robbery, someone dies, can be accessory to
murder
8. Traditional: couldn’t convict accessory before the fact before the principle,
9. Modern: doesn’t matter (because accessories would kill principle), even if
principle is acquitted
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a. However: accomplice cannot be convicted unless principal committed
the criminal act (could be attempt)
Wilcox v. Jeffrey: guy saw consort played by illegal musician and wrote about it
 Encouraging illegal act is aiding: paid for ticket, sought benefit, not
accidental, knew was unlawful: guilty
o Not causal: no “but for”
o No need for substantial
State v. Gladstone: police informant asked D for weed, no but there’s another guy
(who might have some), drew him a map, cop bought weed from other guy
 Rule
o There is no aiding and abetting unless one associate himself with the
venture”
 that he participate in it as in something that D wishes to bring
about,
 that he seeks by his actions to make it succeed
 No association/understanding
o Gave aid, but lacked intent (indifferent if it happened)
 Court: no purposeful aid: it wasn’t his purpose to have crime occur
Commonwealth v. Huber: gave principle his rifle, principle told him he was going to
use it in robbery, offered to join, said no, robbery happened
o Defense: withdrawal, by saying no (lawyer dropped the ball on original
intent)
o Rule:
 must withdraw all aid and encouragement OR
 give timely notice to the police
o didn’t take back gun, so did not withdraw, fucked
Withdraw
1. Traditional:
a. take back all aid and encouragement OR
i. hypo: gave gun said rob, then called and said STOP! Still guilty
bc didn’t take back aid
ii. hypo 2: gives gun + adivice on how to rob the bank, then takes
back gun and encouragement: FUCKED: can’t take back
information
iii. hyp 3: gives gun+encouragement, take it back and watches
crime: not guilty, unless lookout
b. give timely notice to the police (so they can stop it)
2. MPC/minority:
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a. Substantial effort counts (I think either try to thwart or try to get aid
and encouragement back)
i. (take back aid and encouragement but hard to take back info,
can still call the cops)
Accessory to attempt: take back gun/encouragement before completed crime but
after mere preperations: accessory to attempt
o doesn’t reverse time like renunciation
o in last proximate cause jurisdiction: much easier to withdraw accessory to
attempt
o in MPC (strongly corroborative of criminal intent action): call the cops to
thwart the crime, but still liable for the attempt that’s already happened
Conspiracy
Chapter 14: Conspiracy: pp. 737-741; 743-747; 759-764; 771-775. This includes 2
cases to read in this chapter: Pinkerton; Sisselman.
Elements
CL
1. an agreement between at least two people
a. MPC: agreeing (1 person, weird)
b. Can be implicit
c. Hearsay rule: by coconspirator, person accusing you doesn’t have to
make statement in court, can be hearsay
i. Can just quote the coconspirator in court, they don’t have to
say it in court
2. Purpose to enter that agreement
3. Overt act in furtherance of the agreement (majority)
a. Federal: sometimes
b. minority: not a requirement
c. majority: need overt act,
i. but can be very subtle: setting an alarm,
ii. by anyone in conspiracy,
iii. can be mere preparation
4. Purpose to promote the unlawful act that is the object of the conspiracy
5. BONUS minority: (evil motive): knowledge the object is unlawful
a. So would have mistake of law excuse
Wharton Rule: some crimes take 2 ppl to complete, no conspiracy because
redundant: but if add third then you can have conspiracy
MPC
1. Agreeing
2. Object of agreement is an actual crime
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3. No conspiracy in addition to object crime
4. No Wharton rule:
a. bc then have to wait for crime to happen
b. only punish the conspiracy or the crime, so no point
Prosecution
o Majority: can be prosecuted separately from actual crime
o Can be guilty of conspiracy (usually the beginning of it) and attempt
and then completion
o Minority: conspiracy may have same punishment as actual crime
o MPC: cannot be guilty of conspiracy and attempt and completion: just one
Unlawful not criminal act: criminalizes unlawful civil action
Pinkerton v. US: D charged with conspiracy but didn’t know specific crimes being
committed, D was in jail, had previously agreed to this type of crime (satisfied
conspiracy requirement) but no proof he knew about the crimes, never withdrew
o Rule: as long as partnership continuous, partners act for each other
o Overt act by one is act by all without agreement for that act.
Motive/intent proved by acts/declarations of some conspiritors in
furtherance of common objective
o Application: criminal intent established by forming conspiracy,
offenses committed in furtherance of it, so overt act by one was
attributed to all, without spicifc agreement
o Conclusion: you are liable for all acts by coconspirators in furtherance of
criminal agreement
Majority: Pinkerton doctrine: in addition to conspiracy, automatically liable for all
crimes associated with it
o Responsible for all foreseeable crimes committed by anyone in the
conspiracy
o From book: in furtherance of conspiracy or foreseeable
o Until: affirmatively notify all in conspiracy that you quit
o Minority: can act inconsistently with membership likely to inform all
co-conspirators
MPC: coconspirator automatically liable only for the crime of the conspiracy.
o Only punished for crime of coconspirator if prosecution can prove that he
acted as an accomplice for that specific crime
This is because organized crime is dangerous, criminalize anticipatory action
o Could tie drug ring together, retailers, even someone with regular order
o But conspiracy could be between 1 and a bunch of individuals, then only
liable for part you’re in
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People v. Sissleman: made a deal with cop to kill gf’s other bf (MPC, agreeing, only
one person, cop would never do it)
o Sissleman: renounced: trial court: doesn’t count because renouncement
didn’t thwart the conspiracy: wasn’t the sold motivating factor
o Holding: to say this, saying can’t renounce because coconspirator lacked
criminal intent
o D’s efforts: deemed successful if they would have prevented the crime in the
event Patterson had intended to carry it out
Renounce: can renounce conspiracy: if you prevent the crime, then not guilty
o Majority: if you successfully thward the conspiracy (stop the crime), you
wipe out crime of conspiracy
o Minority: give it a college try
Trap: if actually have a crime, can’t erase conspiracy: if can’t prevent the crime, can’t
back out
Withdraw: can withdraw
o Standard is notify
o Minority: affirmative action inconsistent that would make others aware
o Like notify cops (I think would be good in any jurisdiction)
o Or do something totally inconsistent (conspiracy to fix prices, don’t
fix your price
o At withdraw: no longer member of conspiracy: not guilty of subsequent
crimes (under pinkerton) and SoL begins
Trap: rules to withdraw from accessory liability is different, (withdraw support and
aid or tell cops): so must get out of both or stuck
o Example: make conspiracy (probably give encouragement)
o Make a deal and give guns to rob banks
o 1st robbery made: guilty of all the stuff
o then back out, tell everyone I’m out!
 You’ve withdrawn from conspiracy
 But didn’t get gun back
nd
o 2 robbery: accessory before the fact: you’re guilty bc didn’t get aid
back
Analyze accessory liability as well as conspiracy
Insanity
Chapter 16: Insanity: pp. 905-906. M'Naghten case
M’naughten: insanity is a defense to a crime
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o traditionally: only defense when D doesn’t know right from wrong or quality
of the act (that it is wrong) as a result of insanity
(majority post Reagan assassination attempt) M’Naughten Rule
1. at time of the crime
2. defendant cannot distinguish between right from wrong
3. or the right and wrong of the quality of the act (killing someone thinking
it’s fruit)
4. as a result of mental disease
5. then have insanity defense
a. D has to prove more likely than not
MPC: was majority, now not
Elements
1. substantial incapacity to know right from wrong
a. cognitive
b. not an absolute
2. or substantial incapacity to control actions
a. volitional
3. resulting from mental disease
4. then have insanity defense
a. prosecution must prove
difference is the gradations
Lobotomy Case: psychiatrist said bc had lability, didn’t have ability to premeditate
o about the mens rea element
o so basically arguing not guilty bc don’t have the mens rea
Jurisdictional Split
o some: allow diminished capacity psychiatric evaluation: show don’t have
mens rea
o some: don’t allow this until insanity pleading: so already guilty (say had
mens rea)
o some: no insanity defense: prosecution must prove mens rea (but probably
not diminished capacity defense)
o some: guilty but mentally ill: insure you’ll get treated
so three ways to get out of crime
1. insanity defense: straight up
a. if acquitted by insanity: you already guilty, showed you had mens rea
(but maybe not know it was wrong)
2. mens rea—diminished capacity: don’t have ability to have mens rea
a. but then could get manslaughter: negligent killing or something
3. involuntary act: can argue it’s a reflex
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Competent to stand trial: mentally able to assist in your defense: less inclusive
than insanity
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