Criminal Law Outline
Criminal Law Outline: Prof. Baradaran: 2012
Overview
A. Criminal v. Civil
1. Distinguishing Factor – a “crime” is limited to conduct that “if duly shown to have taken
place, will incur a formal and solemn pronouncement of moral condemnation of the
community.”
B. Criminal Process
1. Discretion At every step of the criminal process people are making decisions about
whether and how to proceed (pre-trial, trial, after trial)
a. Pre-trial
i. Legislatures define a crime
ii. Murder v. Homicide.
iii. Witness decides whether to report a crime
iv. Witness could be consensual
v. Police officer decides whether to make an arrest
vi. Prosecutor decides who to charge
vii. D can decide to plead guilty
1. Over 90% of Ds choose to plea bargain and not go to trial
b. Trial
i. Jury decides whether guilty or not guilty
ii. Judge decides punishment
c. Post trials
i. Sentencing-where there is most discretion especially when D plead guilty
C. Sources of Criminal Law
1. Statutes –
a. Primary source of criminal law
b. Modern rule
i. Can’t prosecute for a crime unless there is a statute
c. State
i. Penal Code contains the legislatively drafted definitions of crimes,
defenses to crimes, and other relevant doctrines of criminal law.
ii. MPC- established as a model for better penal code legislation. Many
states have adopted it and it serves as a useful device for thinking about
and critiquing common law and existing non-MPC statutory law.
2. Common Law –
a. Continuing relevance
i. Statutory interpretation – When a statute needs clarification in some
manner, one source of guidance is the common law, particularly if the
statute is itself a codification of the common law.
3. Constitutions
a. State legislatures and courts cannot deprive a D of constitutional rights
b. 6th Amendment “in all criminal prosecutions, the accused shall enjoy the right to
a speedy and public trial, by an impartial jury.”
c. Most constitutions deal with criminal procedure.
i. 8th and 14th amendment
D. Crime v. Tort
a. 3 guiding principles
i. crime is always public and the gov’t is always involved.
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Gov’t brings the case. But not every gov’t case is a criminal
case. It is sufficient, but not necessary
ii. Imprisonment.
1. You cannot be imprisoned for losing a civil cases. You can be
confined for a civil mental deal. It is sufficient, but not necessary
iii. Condemnation.
1. Expresses a community manifestation. It is about what society
has deemed to be immoral. Society says that crimes are immoral.
However, some torts are immoral like dumping pollutions that
kill people. It is a reliable indicator. None of the above
mentioned things are sufficient, but they are reliable indicators
that there was a crime.
E. The Presumption of Innocence
a. Apply presumption of innocence while at trial instead of before the trial.
b. MPC § 1.12(1)
i. No person may be convicted of an offense unless each element of such
offense is proved beyond a reasonable doubt. In the absence of such
proof, the innocence of the D is assumed.
c. In Re Winship
i. Beyond a reasonable doubt- Jury must have an abiding conviction of
every element necessary for the crime to be established.
ii. Due Process Clause requires that the prosecutor must prove “beyond a
reasonable doubt” every fact necessary to constitute the crime charged
iii. Reasoning – better to let ten guilty men go free than to punish one
innocent man.
d. Factual guilt v. legal guilt
i. Need to prove legal guilt by using admissible evidence
ii. Lower standard than proving actual guilt
F. Jury Instructions – Reasonable Doubt
a. Owens v. State
i. Courts and juries are likely to misapply the standard.
ii. It is not a tiebreaker, nor does it mean more likely than not. Not
quantifiable. Subjective state of near certitude.
1.
Punishment Theories
A. Two Theories of Proportional Punishment
1. Retributivist: deserve: ex post
a. Should be punished because they broke a law.
i. tied to the idea of democracy
b. Punish because of wrong doing, not a future benefit. Brings proportionality back
to society.
c. Justifying principle (positive): the guilty should be punished because they
deserve it
d. Limiting principle (negative): the innocent should not be punished, because they
do not deserve it.
2. Utilitarian: prevent: ex ante
a. Utilitarianism
i. We should pass laws that maximize pleasure and minimize pain
ii. We punish (pain) to maximize happiness (pleasure) and prevent greater
pain (crime) in the future.
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A. Looks to the future, punishment is not inflicted for punishment
for past crime, but in order to prevent future crime.
3. Forms of punishment
a. Deterrence: general deterrence (general population)
b. specific deterrence (one individual or one type of criminal D)
i. Incapacitation
A. incarceration of D prevents her from committing additional
crimes in the general community for the duration of her
sentence. (Minority Report)
ii. Rehabilitation/ Reform
A. Advocate of this form believe that the criminal law can prevent
future crime by reforming an individual, by providing her with
employment skills, psychological aid, etc., so that she will not
want or need to commit offenses in the future.
i. Lost favor in 1970s b/c – ineffective, release too quickly,
ignored social and economic causes of crime, officials
too much discretion, justified holding criminals too long
even for minor crimes.
B. Legality – No crime w/out law, no punishment w/out law
1. Criminal statutes should be crafted so that they do not "delegate" basic policy matters to
policemen, judges, and juries for resolution on an ad hoc and subjective basis
(legislatures, not courts make law)
2. Criminal statutes should be understandable to reasonable law abiding citizens
(vagueness) (also important for police and judges to apply the law)
3. Judicial interpretation of ambiguous statutes should be biased in favor of the accused
(lenity doctrine) (tie goes to the D)
Elements of a Crime: Actus Reus and Mens Rea
A. Actus Reus
1. Overview
a. Common law
i. Requires a voluntary bodily movement by the actor.
b. MPC § 2.01(1)
i. Voluntary act or omission
2. Voluntary Act
a. willed muscular contraction or bodily movement by the actor
b. One voluntary act, combined with other involuntary acts, may lead to culpability
c. Involuntary act MPC § 2.01(2)(a)-(d)
i. Reflex or convulsion
ii. A bodily movement during unconsciousness or sleep
iii. Conduct during hypnosis
iv. A bodily movement that otherwise is not a product of the effort or
determination of the actor, either conscious or habitual
3. Examples of Voluntary act
a. State v. Utter: father argues military conditioned response to stabbing his son;
was the father’s act voluntary or a learned physical reaction carried on without
consciousness or in an automatistic state?
i. Conditioned response is a valid defense
ii. Evidence not sufficient to support this D’s claim in this case
iii. He has had these kind of problems before - he should have taken
precautions to prevent these kinds of problems
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b. Martin v. State
i. 3 parts to statute
A. Being drunk
B. Being in a public place
C. Manifesting drunken behavior (boisterous, or indecent conduct)
ii. He is drunk, he is manifesting the behavior, but he was not voluntarily in
a public place (taken there against his will by police)
iii. Voluntary act ≠ mens rea
4. Omission
a. Generally not punished
b. Where you do have a duty to act:
i. Statute imposes duty
ii. One stands in certain status relationship to another/ status (wife as
opposed to adulteress)
iii. One assumes a contractual duty to care for another
iv. Voluntarily assumed care of another and so secluded the helpless person
as to prevent others from rendering aid
v. person creates a risk of harm to another (Hit-and-run)
c. Examples
d. People v Beardsley (No Liability)
i. No legal duty to help adulteress, only a moral one.
ii. A duty neglected must be a legal duty, and not a mere moral obligation
5. Actus Reas and Punishment
a. Utilitarian
i. A person who acts voluntarily cannot be deterred and therefore needs
punished
b. Retribution
i. A person does not deserve to be punished unless they choose to put their
thoughts into action.
B. Mens Rea: mental component of a criminal act
1. Overview
a. Individuals have to have bad thoughts to be punished for a bad act.
b. Common law
i. Malice
A. Regina v. Cunningham: although he had moral blameworthiness
(trying to steal gas line), he lacked elemental mens rea, because
he wasn’t malicious
c. MPC
i. People v. Conley
A. Intent can be inferred from the surrounding circumstances, the
offender's words, the weapon used, and the force of the blow.
ii. Purposeful, knowingly, recklessly, negligently
2. Intent
a. Transferred Intent (MPC § 2.03 (2)(a))
i. In transferred intent cases, you can only “transfer” the D’s intent from
intended victim to actual victim
ii. Conley: HS bottle; state didn’t have to prove that he intended
consequences, just one of the harms in the statute
b. Specific Intent v. General Intent
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i.
c.
d.
e.
f.
g.
General intent: A mens rea requirement that applies to all of the actus
reus elements : Example: “intentional application of force upon another”
(battery)
ii. Specific Intent: An additional mens rea requirement, which applies to
something above and beyond the actus reus elements; Example:
possession of marijuana with intent to sell
Model Penal Code Intent (§ 2.02(2)(1)(d): general requirements of culpability)
i. Minimum requirements of culpability: A person has to act purposely,
knowingly, recklessly or negligently, as the law requires, with respect to
each material element of the offense
ii. MPC types of intent
A. Purposely: a conscious goal
B. Knowingly: practical certainty
i. MPC § 2.02(7)
1. Knowledge satisfied by high degree of
knowledge. Nations
C. Recklessly: conscious disregard and gross deviation (usu.
subjective)
D. Negligently: should be aware of risk of substantial and
unjustifiable risk, but failed to perceive it (objective- reasonable)
MPC § 2.02(3) if the law doesn't say what mens rea is required then it is
assumed to be purposefully, knowingly, or recklessly
MPC § 2.02(4) - if a law prescribes one type of culpability it applies to all the
actus reus elements of the offense, unless a contrary purpose in the statute
MPC § 2.02(5) - Proof of a greater mens rea is proof of a lessor mens rea
MPC § 2.02(7) - knowledge can be satisfied by a high degree of probability that
they should have known
C. Strict Liability: crimes where no mens rea is required
1. can be SL if ONE essential element does not require mens rea (i.e. intentionally having
sex, but not knowing that the person is underage)
2. Generally only applied to violations
a. MPC refuses SL crimes, only permits SL violations (MPC § 2.05)
b. Staples: guy with semi-automatic weapon with statute that sounded SL, but
court construed it not to be for policy reasons
3. Strict Liability is imposed where the legislature did not intend a mens rea requirement
a. Garnett: handicapped guy-statutory rape
D. Mistake of Fact: sometimes a mistake of fact negates the requisite mens rea
1. General Rule: Awareness of mens rea elements and circumstances are usually required,
so ignorance of a fact is usually a failure of proof
2. Exception 1: When the statute expressly provides that awareness of fact is not required
(i.e. strict liability)
3. Exception 2: When D mistakenly thinks he is committing a lesser offense (different with
MPC, and common law)
4. People v. Navarro p.194
a. One cannot intend to steal property which he believes to be his own.
b. If no specific intent or other special mental element is required for guilt of the
offense charged, a mistake of fact will not be recognized as an excuse unless it
was based upon reasonable grounds
c. An honest mistake (good faith, not reasonable or prudent) of fact or law is a
defense when it negates a required mental element of the crime
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5. MPC § 2.04(1) - Not guilty if his mistake negates the mens rea required to establish that
element
6. MPC § 2.04(2) - If a D mistakenly believes he committed a less serious crime, only held
liable for the less serious crime
7. Common Law
a. What type of crime is the D charged with? (strict liability, specific intent, general
intent)
b. Which element is D mistaken?
i. Strict liability - ignore mistake
ii. Specific intent element negated – if mens rea negated AQUITT
iii. General intent
A. Is the mistake reasonable?
i. No - ignore mistake
ii. Yes - Did D think he was committing less serious crime?
1. No – acquitted
2. Yes - ignore mistake
E. Mistake of Law
1. General rule: Ignorance of the law does not provide an excuse
2. Exception 1: If the awareness of law is a mens rea element (Cheek, Taxes)
3. Exception 2: Reliance on an official statement (Marrero, gun carrying)
4. Basically like the MPC 2.02(9), 2.04(1), 2.04(3)(b) - difference: requires a reasonable
reliance
F. Causation
1. Actual Cause (Cause in fact) (causation is not the same as mens rea)
a. But for
i. But for a Ds voluntary act the result would not have occurred (Common
law and MPC 2.03(1)(a))
ii. In determining actual cause - whether the D is an actual cause not the
actual cause
iii. Concept of actual cause is broad, it is only a gatekeeper- there may be
other requirements (proximate cause)
b. Acceleration - actual cause can be satisfied if D accelerated the death of someone
who was going to die anyway (Oxendine p.215)
c. Substantial factor - 2 D's acting independently and not in concert with one
another, commit two separate acts, each of which alone is sufficient to bring
about the prohibited result. Both can be considered substantial factors and both
would be held liable. Similar in meaning to:
d. Concurrent Causes - two acts that independently wouldn't cause a prohibited
result by itself but together do cause a prohibited result. Some courts will include
Substantial factor with concurrent cause.
2. Proximate Cause (legal Cause)
a. Somewhat of a policy decision - is it fair to hold a D responsible for a harm they
are the but for cause of (was the harm intended or foreseeable)? The factors are
often Ad Hoc
i. De minimis harms - if the intervening cause is exceptionally small
compared to the other causes the D will not be held liable.
ii. Intended consequences - Find the intentional wrongdoer and ignore the
intervening causes, focus on the intentional wrongdoer (someone leaves
poison out, someone else gives the poison to a child)
iii. Omissions - Does not limit proximate cause, not held liable
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iv. Foreseeability - predictability. Courts will ask if it is in response
(foreseeable) to the D's act or just coincidence (not foreseeable).
A. Independent - So unrelated to D's causal actions that D is not
liable (superseding)
B. Dependent - Don't relieve a D of responsibility. Was it closely
related to D's conduct to make it fair? Arson example (three
deaths, held liable for them)
i. Medical Malpractice is seen to be a foreseeable risk
(negligent care by doctor)
1. Gross Medical Malpractice is not
v. Apparent safety - once a victim is safe of the D the D is no longer liable
for V's welfare
A. People v. Rideout p.220 - Drunk driver, once safe reenters
highway and is hit by oncoming traffic
B. State v. Preslar p.224 - D kicks V out of the house, freezes to
death rather than bother her father
vi. Intervention by a "free, deliberate, and informed human agent" - D is
more likely to be relieved of criminal responsibility
A. Preslar - V chose to sleep in cold rather than to enter her father's
home, her decision was free, deliberate, and with full knowledge
of the fact
b. MPC 2.03(2) & (3) - The actual result is the same injury that was designed or
contemplated or is not too remote
3. Concurrence of the Elements
a. Actus reus and mens rea need to concur in time
i. State v. Rose p.232 - Hit and run, body gets trapped underneath the car
ii. Trying to get at actus reus and mens rea at the same time (did he know
the body, or was the body, alive at the time it was dragged down the
street?)
Homicide
A. Homicide - Killing another human being. This is a neutral term
B. Murder
1. Common Law
a. Murder (Malice aforethought) how to establish malice
i. Intent to kill (express malice)
ii. Intent to cause grievous bodily harm (implied malice)
iii. Depraved heart - extreme indifference to the value of human life
2. Penn. Model (Majority rule in most states)(traditional American model)
a. Murder (Malice aforethought)
b. 1st degree (death penalty)
i. Killing in specified manner (killings conducted by poison or lying in
wait)
ii. Willful, deliberate, premeditated
A. State v. Guthrie p.253 - dishwasher stabs other dishwasher in the
neck (obsession with his nose)
B. To premeditate is to think of a matter before it is executed
C. Premeditation can occur very quickly - the achievement of a
mental state contemplated in a statute such as ours can
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immediately precede the act of killing, that the killing be
intentional
D. Morrin note 3 p.257 premeditation and deliberation
i. Long enough to afford a reasonable man time to subject
the nature of his response to a "second look." (Quantity
of time)
ii. Measure and evaluate the major facets of a choice or
problem (Quality of thought)
iii. Characterize a thought process undisturbed by hot
blood. (Hot/Cool mind)
E. Midgett p.258 Drunken father beats son, son dies. Father not
guilty of 1st degree murder (no premeditation or deliberation)
F. Forrest p.261 Son kills terminally ill father (Shoots him 4 times).
Guilty of 1st degree murder (he had premeditation)
i. Premeditation-Deliberation Factors PISTOL BN
1. Provocation by the deceased
2. Statements and conduct before and after killing
3. Threats and declarations
4. Ill-will or difficulty between the parties
5. Lethal blows after deceased is helpless
6. Brutal manner
7. Nature and number of wound
c. 2nd degree (Imprisonment)
i. Intent not premeditated (not cold blooded)
ii. Intent to inflict grievous bodily injury
iii. Reckless depraved heart (callous disregard for other people's lives)
A. Abandoned and malignant heart
B. Knoller p.296 - killer dog
i. Thomas Test
1. Objective: High probability of death, Subjective:
wanton disregard for life
ii. Phillips Test
1. Endangers life with a conscious disregard for
life
iv. Provocation - Defense (to take down to voluntary manslaughter)
A. Girouard p.264 (Stabs wife 19 times)
i. Adequate provocation
ii. Common law - Words aren't enough to provoke someone
iii. Must be calculated to inflame the passion of a
reasonable man and tend to cause him to act for the
moment from passion rather than reason
1. One objective reasonable man standard (yes
gender, handicaps, not reasonable alcoholic, or
glue-sniffer)
iv. Five common law examples 1)discovering spouse in bed
with another 2)Mutual Combat 3)Assault and Battery
4)Injury to a relative 5)resistance to illegal arrest
v. Heat of passion
vi. Sudden - no reasonable opportunity to cool off
vii. Causal links between provocation, the passion, and the
fatal act
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3. MPC 210.3 (Utah)
a. Murder
i. Purposely or knowingly
ii. Recklessly with extreme indifference
iii. Felony Murder
A. Recklessness and indifference may or may not be inferred
C. Manslaughter
1. Common law - Manslaughter (without malice aforethought)
a. Voluntary - kill someone in the heat of passion
b. Involuntary - acted negligent
c. Misdemeanor - Intention to commit a misdemeanor (traffic violation death,
selling liquor to a minor)
i. Inherently dangerous - only going to allow manslaughter to result if the
misdemeanor is inherently dangerous in the abstract or based on the facts
of the case (like felony murder, but based on a misdemeanor)
ii. Inherently wrong - as opposed to misdemeanor that is just against the law
(malum prohibitum)
A. Some courts will find it for lawful behavior that is inherently
wrong
2. Penn Model Manslaughter
a. Voluntary - person is provoked (provocation defense)
b. Involuntary (criminal negligence) (misdemeanor manslaughter)
i. Hernandez p.304 - drunk driver with drinking slogans on car
A. Should have known about the risk but failed to perceive it
ii. Williams p.308 - Native American parents fail to get medical attention
for baby
A. Common law - must be gross negligence, must be aware of a
substantial risk of harm
B. WA - at the time civil negligence is enough (gross negligence
now), must be aware of risk of harm, reasonable man standard
3. MPC 210.3 (Utah) Manslaughter
a. Reckless - consciously taking a substantial risk
b. EED/RED (Extreme or Reasonable Emotional Disturbance)
i. The influence of extreme mental or emotional disturbance for which
there is a reasonable explanation or excuse.
ii. Reasonableness - from the viewpoint of a person in the actor's situation
under the circumstances as he believes them to be.
A. Potentially words can be enough.
B. No suddenness requirement, no cooling off
C. No set categories
iii. Casassa p.285 - (Stalker kills love interest)
A. Whether in the totality of circumstances the finder of fact could
understand how a person might have his reason overcome. Not
to be applied solely form the viewpoint of the D.
B. Objective - must be a "reasonable explanation or excuse
C. Subjective - view the internal situation in which the D found
himself and the external circumstances as he perceived them at
the time. Is it peculiar to D?
c. Negligent Homicide
i. Negligence - accidentally taking a substantial risk
D. Felony Murder
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1. Common Law FelonyMurder - intention to commit a felony and kill someone it is
murder
a. Basically strict liability for a death, while committing a felony.
b. Even accidental death, mens rea is irrelevant
c. Man mugs someone, person has a heart attack, man is guilty of felony murder
d. To encourage felons to be careful so they don't cause negligent deaths
i. Not to deter underlying felony, but to deter negligent or accidental
killings
2. Penn Model Felony Murder
a. Felony murder (specified) 1st degree
i. Fuller p.316 stealing tires, runs a red light hits other car kills other driver
A. Because it was burglary they get first degree murder. No
limitations
ii. Traditionally - Arson, Robbery, burglary, rape
b. Unspecified felony – 2nd degree
i. Howard p.327 - stolen car, high speed chase runs a red light and hits a
car killing other driver
A. Felony - evading police, not specified
B. Limits rule to felonies that are inherently dangerous in the
abstract (not the particular facts of the case, whether the felony
by its very nature cannot be committed without creating a
substantial risk that someone will be killed)
c. MPC§210.2(1)(b)
i. Criminal homicide constitutes murder when
A. It is committed purposely or knowingly; or
B. It is committed recklessly under circumstances manifesting
extreme indifference to the value of human life
ii. Such recklessness and indifference are presumed if the actor is engaged
or is an accomplice in the commission of, or an attempt to commit, or
flight after committing or attempting to commit robbery, rape, or deviate
sexual intercourse by force or threat of force, arson, burglary,
kidnapping, or felonious escape (rebuttable presumption)
3. Felony Murder rule Limitations
a. Specified/unspecified
b. Inherently dangerous/wrong
i. In the abstract
ii. Facts of the case
c. Independent Felony Limitation (Merger)
i. Smith p.334
A. Felony Murder ruled limited when it is based upon a felony
which is an integral part of the homicide and which the evidence
show to be an offense included in fact w/in the offense charged
B. Felony murder may be applied if there is an independent
felonious purpose
C. Bars rule where the purpose of the conduct was the very assault
which resulted in death
d. Proximate cause
i. Sophophone p.338
A. Felony murder of a Felon was not charged against co-felon
because felon was shot by police officer in line of duty
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B. Agency Approach - felony murder rule does not apply if the
person who directly causes the death is a non-felon (majority)
C. Proximate Causation Approach - A felon may be held
responsible for a killing committed by a non-felon if the felon set
in motion the acts which resulted in the victim's death (minority)
Rape
A. Common Law Rape
1. Sexual intercourse with a woman by (1) force or threat of force (2) against her will and (3)
without her consent
a. Utmost resistance required (physical)
b. Husband could never be guilty of rape
c. Any child under 10
2. Alston p.404 - Former boyfriend, little resistance, court finds no violence no rape
a. This law is no longer favored
b. Rusk v. State p.411 - met at a bar, gave a ride home, he took her keys, lightly choking
1. Was there force or threat of force?
c. State v. Rusk p.416
1. Reverses using case below dissent
1. If the acts and threats of the D were reasonably calculated to create in the
mind of the victim a real apprehension, due to fear, of imminent bodily
harm, then such acts and threats are the equivalent of force
2. Submission is not the equivalent of consent
3. The real test is whether the assault was committed without the consent
and against the will of the prosecuting witness
B. Reformed Rape Statutes
1. Sexual Intercourse with another person without victim's consent
a. Verbal resistance enough`
b. Include person who is unconscious, drugged or otherwise unaware
c. Includes oral or anal sex
d. Abolishes Marital immunity (MPC preserves marital immunity - §213.1(1))
e. Gender neutral
C. Fradulent Rape
1. Fraud in Factum
a. Misleads someone into thinking they are not having sex when they actually are
b. Minkowski p.466
i.
The D was a physician who "treated" several victims for menstrual cramps.
Treatment consisted of D first inserting a metal instrument, then substituting an
instrument that "felt different" - the victims not realizing that the second
instrument was his penis
2. Fraud in inducement
a. They know they are having sex but confused as to who they are having sex with or why
they are having sex
b. Boro p.464
i.
"Dr. Stevens" says blood work came back, she caught a disease from public
toilets. She could either have an expensive painful procedure or have sex with an
anonymous donor who has been injected with the serum. She believed she had
sexual intercourse to save her life.
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Accomplice Liability
1. This is a theory of liability
a. Where an individual is derivatively liable for the acts of someone else (charging them as
if they did the act themselves)
Common law - one who intentionally assists (aids, counsels, instructs, or encourages) another to commit a
crime
1. Ward p.848
a. Principal in the 1st Degree
i.
Actually commits a crime or causes it to be committed
b. Principal in the 2nd Degree
i.
Someone who assists in the crime and is actually at the scene of the crime
ii.
Hoselton p.851 - broke into the barge and stole tools
1. Accomplice liability is not a crime in itself - Principal in the 2nd degree must share
the same criminal intent as the principal in the 1st degree. So accomplice is held
culpable for the underlying crime.
c. Accomplice/Accessory
i.
Before - Mastermind/Planner
ii.
After - Protector, assists the criminal in avoiding arrest or trial after the crime has been
committed (hide the stolen goods, or the criminal)
3. Modern Common Law
a. Principal
i.
1st Degree
b. Accomplice
i.
Principal 2nd Degree
ii.
Accomplice/Accessory before
c. Less Serious Crime
i.
Accomplice After
1. Harboring a fugitive, obstruction of justice
MPC Accomplice
1. Intentionally assist principal in committing crime
a. Actus Reus
i.
Physical conduct (providing an instrument, driving getaway car)
ii.
Psychological assistance (inciting)
iii.
Omission, failure to prevent (legal duty to prevent, parent, police officer)
b. Mens Rea (does not require presence at the crime)
i.
Intend to assist the principal and
ii.
Intend that the crime occurs
Linscott p.863 - burglary and shooting of a drug dealer
1. Needs to have the mens rea to assist in the primary crime, then is the secondary crime foreseeable
a. Note 1
i.
Did the primary party commit the target offense?
ii.
If yes, was the secondary party an accomplice in the commission of the target offense?
iii.
If yes, did the primary party commit another crime or crimes beyond the target offense?
iv.
If yes, were the latter crimes foreseeable?
State v. V.T. p.868 - Boys stole guns and a camcorder, left a videotape of themselves in the camcorder
1. Passive behavior, such as mere presence - even continuous presence - absent evidence that the D
affirmatively did something to instigate, incite, embolden, or help others in committing a crime is
not enough to qualify as "encouragement" as that term is commonly used
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Wilcox p.872 - saxophone player in England, guy buys tickets, enjoys the show, and writes about it
1. Presence and payment to go there was encouragement
US v. Lopez p.884
1. D can be convicted of aiding and abetting even if the principal is not identified or convicted;
however, an aider and abettor may not be held liable absent proof that a criminal offense was
committed by a principal. Have to prove that the principal committed a crime.
2. D cannot be held as an accomplice if the principal did not commit a crime
3. A 3rd party has the right to assist an actor in a justified act
4. In contrast, a sane getaway driver could be convicted of aiding and abetting an insane person's bank
robbery. Excuses are always personal to the actor
McCoy p.887
1. Joint participants of a crime are tied to a single and common actus reus, the individual mentes reae
are permitted to float free and are not tied to each other in any way. If their mentes reae are
different, their independent levels of guilt will necessarily be different as well
2. Must be based on each individual mens rea. An accomplice may be more culpable
In Re Meagan R p.890 - Burglary - Breaking and entering with intent to commit a felony therein (in this
case statutory rape)
1. Where the legislature has dealt with crimes which necessarily involve the joint action of two or
more persons, and where no punishment at all is provided for the conduct, or misconduct, of one of
the participants, the party whose participation is not denounced by the statute cannot be charged
with criminal conduct on either a conspiracy or aiding and abetting theory
2. A victim cannot be held an accomplice for the same crime
Formella p.891 - stealing the test answers
1. For a person not to be an accomplice he must (1) terminate his complicity (2) prior to the
commission of the offense (3) and wholly deprive that complicity of its effectiveness
2. Must show overt disapproval of the crime to give principals time to reconsider his actions
3. Does not need to actually prevent the crime from occurring
Inchoate Offenses
Inchoate - just begun, not fully developed, rudimentary
Attempt
1. Different levels of attempt
a. Conceives
b. Evaluates
c. Decides
d. Prepares
e. Commences
f. Completes
2. Complete - actor performs all the acts he sets out to do but fails to accomplish ultimate goal
a. Plan to shoot a politician, shoots at her but misses
3. Incomplete - an actor performs some of the acts necessary to complete his goal but either quits or
is prevented from performing them all
a. Plan to shoot politician, apprehended by secret service before taking a shot
4. Delicate balance - prevent crime v. protect innocent conduct
5. Punishment - common law punished as a misdemeanor, currently punished at 1/2 to 1/3 of the
underlying crime
6. Actus Reus
a. Last act - not guilty of attempt unless D performs all the acts that D believes is necessary
to complete the crime. Rejected by almost all jurisdictions
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b. Physical proximity - not guilty until has the opportunity to complete the crime
c. Dangerous proximity - more serious the crime, more likely you are to complete the crime,
closer you are in proximity to completing the crime
d. Indispensable element - is there any element that the D has no control over, what
indispensable element has yet to be completed
e. Probable desistance - has the actor reached a point in the ordinary course of events that
the actor is unlikely to stop
f. Res ipsa loquiter/Equivocality test - does the actor's conduct unambiguously manifest his
criminal intent, has the things the actor has done already speak for themselves
i.
Almost always another way to explain the actors conduct
g. Substantial step test - substantial step towards the commission of the crime and have the
materials necessary for the commission of the crime near the crime scene
7. Mens Rea
8. MPC
a. MPC § 5.05(1) - Generally punishes attempt the same as the crime attempted, except
where the attempt of a first degree felony (usually capital crime) is punishable as a 2nd
degree felony
b. MPC § 5.01(1)(b) - when causing a particular result is an element of the crime, does or
omits to do anything with the purpose of causing or with the belief that it will cause such
result without further conduct on his part
Common Law
1. Factual impossibility is not a defense
2. Legal impossibility is a defense - where you think you're committing a crime, but it isn't actually a
crime under the law
3. Gentry p.738
a. Specific attempt to kill is a necessary element of the crime of attempted murder
b. Intent to do bodily harm, or knowledge that the consequences of the D's act may result in
death or great bodily harm, is not enough
4. Bruce p.743 - robbery, threatens to kill, shoots the victim in the stomach
a. Because conviction for felony murder requires no specific intent to kill, it follows that
because a criminal attempt is a specific intent crime, attempted felony murder is not a crime
b. Attempt does not apply to crime where there is not a specific intent to commit a crime
5. Mandujano p.748
a. Accused has passed beyond preparation, although he has been interrupted before has taken
the last of his intended steps
b. He has done all that is within his power to do, but has been prevented by intervention from
the outside
c. There must be some appreciable fragment of the crime committed, it must be in such progress
that it will be consummated unless interrupted by circumstances independent of the will of
the attempter, and the act must not be equivocal in nature
6. Peaslee p.750 - goes to burn a warehouse, attempted arson
a. Mere collection and preparation of materials in a room for the purpose of setting the fire to
them, unaccompanied by any present intent to set the fire, would be too remote
b. If the preparation comes very near to the accomplishment of the act, the intent to complete it
renders the crime so probable that the act will be a misdemeanor
7. Rizzo p.753 - wants to rob a payroll, can't find the guy with the payroll
a. Coming very near to the accomplishment of the crime
b. The victim could not be found, the D's were still looking for him; therefore no attempt to rob
him could be made, at least until he came in sight
8. Miller p.755 - goes to shoot a guy in a field, but doesn't actually take a shot
a. The quality of equivocality must be absent before there can be attempt
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b. So long as the equivocal quality remains, no one can say with certainty what the intent of the
victim is
9. Reeves p.758 - twelve year old girls want to poison a teacher
a. When an actor possesses materials to be used in the commission of the crime, at or near the
scene of the crime, and where the possession of those materials can serve no lawful purpose
of the actor under the circumstances, the jury is entitled to find that the actor has taken a
"substantial step" toward the commission of the crime if such action is strongly corroborative
of the actor's overall criminal purpose
Defenses for attempt
1. Impossibility - the act could never result in the commission of the crime
a. Factual - when D's intended end constitutes a crime but he fails to consummate it because of
the factual circumstances unknown to her or beyond her control
b. Legal i.
True/Pure - (picking an empty pocket) D engages in conduct that he believes is
criminal, but is not actually prohibited by law
1. Usually a defense
ii.
Hybrid - D's goal was illegal, but commission of the offense was impossible due to
factual mistake by her regarding the legal status of some factor relevant to her conduct
1. Offers to bribe a "juror" who is not a juror
2. No longer a defense
iii.
People v. Thousand p.772
iv.
MPC rejects all impossibility defenses - most jurisdictions follow this
2. Abandonment
a. Usually recognized
b. McCloskey p.786 attempted prison escape
i.
Voluntary - absent external factors you abandon the attempt
ii.
Complete - you've given up the idea completely (you don't plan on completing the
crime at another time)
iii.
Prevent commission of the target crime - stop any accomplices from completing the
crime (best effort)
Assault
1. Attempt to commit a battery
2. Conduct that intentionally causes someone to have reasonable fear of bodily harm
3. Sometimes in crim law Assault is interchangeable for Battery
Solicitation - less than attempt
1. Mann p.792
a. Asking, enticing, inducing, or counselling of another to commit a crime
b. Solicitor is morally more culpable than a conspirator; he keeps hismself from being at risk,
hiding behind the actor
2. Cotton p.793
a. MPC says that conduct designed to effect communication of the culpable message is
sufficient to constitute criminal solicitation
b. In NM the offense of solicitation requires some form of actual communication from the D to
either an intermediary or the person intended to be solicited, indicating the subject matter of
the solicitation (Majority rule)
i.
The act is nonetheless criminal, although it may be that the solicitor must be prosecuted
for an attempt to solicit on such facts
c. AR - communication that another can't mistake
d. MR - specific intent to commit crime and knowledge (more of a subjective belief) that crime
can be accomplished
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Conspiracy
1. Common Law
a. Plurality - must be more than one person
b. No overt act necessary
i.
Most statutes now require an overt act
c. An inchoate offense
d. A liability theory
e. Frequently prosecuted, very controversial. A mental crime, prove mens rea by circumstantial
evidence
f. Carter p.797
i.
Actus Reus - An agreement between two people or more to commit an unlawful act or
a lawful act through unlawful means
ii.
Mens Rea
1. Intent to combine with others
2. Intent to accomplish the illegal objective (specific intent)
iii.
Crime is complete when the agreement is formed, a D may be convicted for both the
conspiracy and the substantive crime (doesn't merge, two separate counts)
1. Modern Conspiracy statutes do require an overt act to be committed, but can still
be prosecuted for both the conspiracy and the substantive crime (doesn't merge)
g. Why punish conspiracy
i.
Attempt too narrow, prevents police from preventing crime
ii.
Groups of criminals are more dangerous than single individuals
1. People will make more extreme decisions when they are in a group
2. Actus Reus
a. MPC
i.
1.07 - when the same conduct of a D may establish the commission of more than one
offense, the D may be prosecuted for each such offense. He may not, however, be
convicted of more than one offense if
1. b - one offense consists only of a conspiracy or other form of preparation to
commit the other (merges)
a. No merge if they have a broader conspiracy than the underlying crime,
they can then be prosecuted for conspiracy (they get caught after robbing
one bank, but planned on robbing several)
ii.
5.03 Criminal Conspiracy
1. 5.03(1) b. Pinkerton p. 801 - brothers conspire to violate tax code, one brother is in jail while acts are
done
i.
Pinkerton Doctrine - each D could be found guilty of the substantive offenses, if it was
found at the time of those offenses were committed D's were parties to an unlawful
conspiracy and the substantive offenses charged were in fact committed in furtherance
of it
1. Parties in conspiracy responsible for acts
a. In furtherance of agreement
b. In scope of the agreement
c. Reasonably foreseeable consequence of the agreement (very expansive,
controversial element)
i.
Exceptions are the opposite of these
2. This doctrine rejected by MPC but most jurisdictions still use it
3. Mens Rea
a. Swain p.807 15yr-old gets shot in drive by shooting
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i.
4.
5.
6.
7.
8.
9.
10.
Conspiracy is a specific intent crime requiring an intent to agree or conspire, and a
further intent to commit the target crime, the object of the conspiracy
MPC § 5.03(1) - if with the purpose of promoting or facilitating its commission he
a. Agrees that they or one or more of them will engage in conduct that constitutes such crime or
an attempt or solicitation to commit such crime; or
b. Agrees to aid in planning or commission of such crime, attempt, or solicitation
i.
Not an agreement like in common law
ii.
5.03(5) Overt act required, except for felony of 1st or 2nd degree
Azim p.817 - stops car to beat and rob a man, simple assault, robbery, and conspiracy
a. Circumstances relevant to proving conspiracy are
i.
Association with alleged conspirators
ii.
Knowledge of the commission of the crime
iii.
Presence at the scene of the crime,
iv.
Sometimes participation in the object of the conspiracy
b. Once conspiracy is established and upheld, a member of the conspiracy is also guilty of the
criminal acts of his co-conspirators
Cook p.819 rape
a. Accomplice liability is met
b. Difference between conspiracy and accomplice liability
i.
Predetermined agreement
1. No agreement here - chance situation (gave her their ID, she tripped not forced to
the ground, spontaneity of action) so no conspiracy
c. Accomplice situations are usually conspiracies and conspirators are usually accomplices
i.
One can be an accomplice aiding in the the commission of a substantive offense w/out
necessarily conspiring to commit it
ii.
Accomplice - aiding, assistance. Not necessary to establish an agreement or consensus
iii.
Conspirator – agreement to work in concert for the criminal or corrupt or unlawful
purpose
0. Unlawful agreement preexists commission of the substantive offense
Unilateral (majority) v. Bilateral Conspiracy
a. Foster p.824 - wants to rob old man, potential conspirator actually wants to bring in the
police
i.
Unilateral - only one conspirator needs to actually agree to commit the offense
ii.
Bilateral - actual agreement of at least two participants
iii.
In this case Illinois law requires actual agreement between two people
1. Rule of lenity, the statute is ambiguous so it is interpreted to the D's favor
Kilgore p.830 - wheel conspiracy, two conspiracies
a. Wheel conspiracy - someone in the middle(hub), deals individually with different persons
(spokes) who did not know each other
b. Chain conspiracy - (classic example drug conspiracies) successive communication or
cooperation. Parties should know by the large, ongoing nature of the conspiracy that other
members did exist
c. If there is one conspiracy anything one conspirator says can by used against them by another
conspirator
Braverman p.836
a. Whether the object of a single agreement is to commit one or may crimes, it is in either case
that agreement with constitutes the conspiracy which the statute punishes. The one agreement
cannot be taken to be several agreements and hence several conspiracies because it envisages
the violation of several statutes rather than one
i.
If there is one agreement you cannot charge with several conspiracies
Iannelli p.839
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a. Wharton's Rule - an exception to the general principle that a conspiracy and the substantive
offense that is its immediate end are discrete crimes for which separate sanctions may be
imposed
i.
When to the idea of an offense plurality of agents is logically necessary, conspiracy,
(which assumes the voluntary accession of a person to a crime of such a character that
it is aggravated by a plurality of agents) cannot be maintained
1. Exception - where the conspiracy involves more persons than are required for the
commission of the substantive offense
ii.
May be applied to drug sale, gambling
11. Gebardi p.843 Common law limitation
a. Mann Act - transporting women across state lines for sexual purposes
b. When one of the parties can't commit conspiracy (because they are in a protected class) the
other party can't be convicted of conspiracy
c. The woman was supposed to be protected under the act, so she can't be a conspirator (like the
statutory rape case, no accomplice liability)
12. Abandonment/Renunciation - some states and the MPC allow this as a defense, complete defense
(minority)
a. Complete withdrawal, not caused by fear of discovery or inability to complete the object of
the agreement
b. An affirmative act showing the person is leaving the conspiracy, an effort to show
disapproval
c. Sometimes stopping the crime or notifying an authority
13. Withdrawal - after an agreement, still going to charge for the conspiracy, but if you do withdraw
you aren't liable for any additional acts that may happen after you withdraw (majority)
a. Agreement to rob a bank, withdraw before the robbery happens you are liable for the
conspiracy, but not robbing the bank (and related offenses, assault, even death)
Theft
1. Larceny Basic theft crime
a. Trepassory (without owners consent)
i.
Topolewski p.922 - stole 3 barrels of meat from a meat factory
1. If one procures his property to be taken by another intending to commit larceny,
or delivers his property to such other, the latter proposing to commit such crime,
the element of trespass is wanting and the crime not fully consummated
2. If the owner of the property aids in the commission of the offense as intended by
the wrongdoer, by performing or rendering some act in the transaction essential
to the offense
3. There needs to be a lack of consent of the owner
4. No trespassory taking here, it was basically taken with the permission of the
owner
b. taking (thief has control over the item)
i.
Mafnas p.918 - drove armored car, took bags of money
1. Only had custody
c. and carrying away (having possession of an item, even the slightest carrying)
d. of personal property of another person
i.
Custody - person has physical control over an item, limited time and purpose
ii.
Possession - actual or constructive control over property with the intent to possess it
and the right to exclude others from possessing it
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1. Constructive Possession - law deems a person to be in possession of something
that may not be in the persons immediate control, legal fiction where the law
deems a person to possess something because they have a serious legal interest in
it
a. Ex. Car rental, borrowing a car
iii.
Owner - title holder
e. with intent to permanently deprive owner of it
i.
Today it is to deprive an owner for a substantial period of time, or with no time period
at all
ii.
Larceny by Trick
1. Appropriation of property, the possession of which was fraudulently acquired (no
title, just possession)
2. Rex v. Pear p.925 - supposed to rent the horse, (gave false address) but instead
sells the horse
a. Supposed to not have consent in order to be larceny, so the court comes up
with Larceny by trick
b. The parting with the property had not changed the nature of the possession
c. Possession obtained by fraud, still culpable of larceny
d. If he had just decided after legitimately rented the to steal the horse it is
then mere breach of trust
iii.
Brooks p.927 man loses money, laborer finds it and secretly takes it
1. Larceny may be committed of property that is casually lost as well as of that
which is not
a. Unless the property was shown to be abandoned by the owner
2. Baker - when a person finds goods that have actually been lost, and takes
possession with intent to appropriate them to his own use, really believing at the
time, or having good ground to believe, that the owner can be found, it is larceny
3. Mens rea - intent to steal property must have existed at the time he took it into his
possession
4. Have to take reasonable efforts to find the owner
iv.
Mens rea
1. Brown p.933 - D took a boys bike for tormenting him, but took the wrong bike
a. Intent must be to deprive the owner of the property permanently
b. If he is temporarily depriving the owner of the property it is not felonious,
but his acts do constitute a trespass
2. Embezzelment
a. Invented because Larceny didn't cut it
b. Entrustment (give property for the purpose of something), conversion (take property for own
use) fraud
i.
Specific intent to fraudulently convert property to own use when you are entrusted with
it
ii.
Does not have to be a permanent deprivation of property
c. Rex v. Bazeley p.941
i.
Not larceny because to be larceny the property must be taken from the possession of
the owner
1. Possession - must have both the right to, and occupation of, the property
2. Also not larceny because he did not have felonious intent when the received the
money
3. Theft by False Pretenses
a. Ingram p.945
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i.
Obtains possession through false representation and with intent to steal obtains
possession and title to property
ii.
The injured party must have been induced to part with his property in reliance on false
representation
b. Whight p.946 Safeway ATM card case
i.
Three parts
1. D made false pretense or representation
2. Representation made with intent to defraud owner of his property
3. The owner was in fact defrauded in that he parted with his property in
reliance upon the representation
ii.
Representation may be in the form of conduct - express or implied
iii.
No reliance when
1. Complainant knew the representation was false, or did not believe it to be true
2. Even if he did believe it, he did not rely on it, but investigated it for himself or
sought and relied on other advice
a. So long as the victim does not rely solely upon his own investigation,
sufficient reliance is shown if the victim relied in part upon the D's
representations
3. Although some false representations are proved, the complainant parted w/ his
money or property for some other reasons or in reliance on other representations
not shown to be false
Defenses
prosecutor has burden to proof for elements of crime, and defense has burden for defenses; defenses are
anything that supports an acquittal
1. Three Types of Defenses
a. Failure of proof: negates an element of the crime
i. Any element of the crime disproven
ii. i.e. mistake of fact, seizure
iii. Involuntary Act
iv. No Mens rea (specific intent crimes)
v. i.e. Intoxication/insanity
b. Justifications
i. It is proved but, under the circumstances I did nothing wrong
ii. i.e. self-defense, defense of others, necessity
c. Excuses
i. It is proved and, I did something wrong, but under the circumstances I
should not be punished because I’m not responsible for my conduct
ii. i.e. duress
2. Self- Defense
a. Questions to consider
i.
ii.
iii.
iv.
v.
vi.
vii.
who is the aggressor?
did the aggressor use deadly force?
usu. non-deadly force cannot be countered by deadly aggression
was there a retreat?
right to stand ground jurisdiction or retreat to the wall?
castle exception?
was the threat imminent? (common law) or
20
b.
c.
d.
e.
viii. was the response immediately necessary? (MPC)
ix. reasonable person under the circumstances (Goetz factors)
x. Defense of others – reasonable mistake? No reasonable mistake allowed?
Common Law Self-Defense
i. Peterson p.501- stealing windshield wipers off a car
1. D must have believed that he was in imminent threat of death or serious
bodily injury (proportionate)
2. His response was necessary and (begins when necessity begins and ends
when necessity ends)
3. His belief is reasonable
4. The right to use deadly force in self-defense is not ordinarily available to
one who provokes a conflict or is the aggressor in it
a. Only in the event that he tries to withdraw is he restored to his
right to self defense
b. Aggression - an affirmative unlawful act reasonably calculated
to produce an affray foreboding injurious or fatal consequences
5. If you can retreat safely you have a duty to do so (common law)
a. Castle exception - if you're at your home you have no duty to
retreat
i. Can only be invoked only by one who is not an
aggressor
ii. Home and curtilage - home and the fence around your
house
6. Now slim majority says you may stand your ground and use deadly
force whenever it seems reasonably necessary to save himself
MPC 3.04
i. Immediately necessary (common law imminent threat) for the purpose of
protecting himself against unlawful force by such other person on the present
occasion
1. Deadly force not justifiable if
a. The actor provoked the use of force against himself in the same
encounter
b. Can avoid necessity of such force with complete safety by
retreating or by surrendering possession of a thing to a person
asserting claim of right or by complying with a demand that he
abstain from any action he has not duty to take
i. Not obliged to retreat from dwelling or place of work,
unless he is the initial aggressor
Wanrow p.525 - child molester is shot
i. Self-defense is evaluated in light of all the facts and circumstances known to the
D, including those known substantially before the killing
ii. D's actions are to be judged against her own subjective impressions
Treyvon Martin –
i. Florida has a robust stand your ground doctrine (statute)
1. Florida law doesn’t allow Police to arrest people who use Stand your
ground defense
2. Initial aggressor “self-defense not available to person who initially
provokes use of force against himself.”
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Norman - Battered Women’s Syndrome - woman abused (made to act like a dog,
prostitute herself) for a long time by husband and kills him in his sleep
i. Look at two standards with reference to reasonableness:
1. subjective: she believed it was necessary to save herself from death or
great bodily harm
2. objective: whether belief was reasonable (person of ordinary firmness)
ii. MPC: force is “immediately necessary” and common law is “imminent threat”
iii. With the battered spouse there can be, under certain circumstances, killing of a
passive victim does not preclude the defense of self defense
g. Norman – NC Supreme Court
i. Overturns on imminence
1. Immediate danger - such as cannot be guarded against by calling for the
assistance of others or the protection of the law
a. Imminence requirement ensures that deadly force will be used
only where it is necessary as a last resort in the exercise of the
inherent right of self-preservation
b. She was not faced with an instantaneous choice between killing
her husband or being killed or seriously injured
2. Dissent – for the battered wife, if there is no escape, if there is no
window of relief or momentary sense of safety, then the next attack,
which could be the fatal one, is imminent
a. not whether the threat is in fact imminent but whether D’s
belief, given the circumstances, was reasonable
h. Defense of Others: generally, same as individual’s right
i. Majority – reasonable mistake
ii. Minority – only allowed the defense if you are correct in your belief
iii. Kurr – pregnant woman protecting unborn (MI)
1. Allows deadly force to be used in the defense of others
a. Traditionally defense applied to special relationships (family)
i. Now no distinction between strangers and relatives
b. Defense available solely in an assault against the mother
2. Legislature wants to protect fetuses, so defense is applicable
i. Defense of Property/Home
i. May not use deadly force to prevent theft, but in some circumstances you may
use non-deadly force to prevent imminent, unlawful theft
1. Once theft has occurred you no longer have right of deadly force
ii. Home – may use deadly force to defend home
1. If it is necessary to prevent imminent unlawful entry
iii. Ceballos – some tools stolen from garage, sets up trap gun, people come back
and get shot
1. Deadly mechanical device not allowed (savage and inhuman)
2. If he was present, and holding the gun, he might have been justified
3. Necessity/Duress
a. Under common law not a defense to homicide
b. Nelson – stuck truck, stole heavy equipment to get the truck out (Necessity)
i. Three elements
1. Must have been done to prevent a significant evil
2. There must have been no adequate (legal) alternative
3. The harm caused must not have been disproportionate to the harm
avoided
ii. In this case he had a lot of alternatives – police, people stopped to help
f.
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c. Contento-Pachon – forced to traffic drugs to U.S. under threat of harm to family
i. Elements of duress
1. Immediate threat of death or serious injury
2. A well-grounded (reasonableness) fear that the threat will be carried out
a. Objective and subjective
3. No reasonable opportunity to escape the threatened harm
ii. Based on human force
iii. Negates the existence of mens rea
iv. Necessity – physical forces of nature (traditionally), usually for the general
welfare
1. choice between lesser of two evils
d. Unger – prison escape because of sexual assault/death threat
i. 5 relevant (but not necessary) factors for necessity (Lovercamp)
1. prisoner is faced with a specific threat of death, forcible sexual attack, or
substantial bodily injury in the immediate future;
2. no time to complain or a history of futile complaints;
3. no time or opportunity to resort to the courts;
4. no evidence of violence against prison personnel or other innocent
people in the escape; and
5. prisoner reports to the authorities once he has reached a position of
safety
ii. Necessity – lesser of two evils
1. Prevent significant evil
2. No legal alternative
3. Harm caused not disproportionate to harm avoided
iii. Duress (compulsion) – unable to exercise a free choice at all
4. Intoxication – sometimes used as an excuse or as a claim of insanity
a. When is voluntary intoxication a defense?
i. Specific Intent – unable to form specific intent
ii. Voluntary act (rare)—negates the actus reus
iii. Insanity (rare)
1. Temporary (under the influence- no defense) v.
2. fixed (have gone permanently crazy from doing so many drugs—
sometimes defense)
iv. Involuntary intoxication
1. 4 types
a. coerced ingestion
b. accidental (someone slips you something)
c. prescribed medication (not an excuse)
d. Pathological (substance causes psychotic episode, w/out
knowing they would have the rare reaction)
2. Complete defense (general intent and specific intent)
v. When there is a homicide that occurs, some states will lower the level of
homicide
b. U.S. v. Veech: drunk guy gets in an accident while driving and is arrested by Park
Rangers. He threatens to kill them, etc.
i. Intoxication may preclude formation of mens rea, negating essential element
of some specific intent crimes
ii. Voluntary – only the mens rea of a specific-intent crime that may be negated,
and not applicability to general intent crimes
c. Model Penal Code §2.08 Intoxication
23
i. Definitions.
1. “self-induced intoxication” means intoxication caused by substances
which the actor knowingly introduces into his body, the tendency of
which to cause intoxication he knows or ought to know
2. “pathological intoxication” means intoxication grossly excessive in
degrees, given the amount of the intoxicant, to which the actor does not
know he is susceptible
3. Defense #1:
a. Intoxication of the actor is not a defense unless it negatives an
element of the defense
b. § 2.08(2) when recklessness establishes an element of the
offense, if the actor due to self-intoxication, is unaware of
the risk of which he would have been aware had he been
sober, such unawareness is immaterial
4. Defense #2: even if all the elements are proved, involuntary intoxication
is still a defense if it renders the D temporarily insane
5. Defense #3: § 2.01. Requirement of Voluntary Act: Intoxication is a
defense when it negates the voluntary act requirement
5. Insanity – Utah does not allow this affirmative defense
a. The M’Naghten Rule –
i. D is presumed sane unless he clearly proves that, at the time of the offense, he
1. Did not know the nature and quality of the act (cognitive incapacity)
2. Did not to know the act was wrong
ii. criticism - M’Naghten Rule is too narrow, what about people who know what
they are doing is wrong but can’t control actions?
b. Irresistible Impulse Test (Control Test) (Not Popular)– Lorena Bobbitt
i. Even if D knows act is wrong D acts as a result of volitional or irresistible
impulse
1. Would you do the act if a police officer was watching?
ii. Insane if
1. he is unable to control his behavior or
2. he has lost the power to choose.
iii. Criticism - excludes instances where after excessive brooding and melancholy
by one who is unable to resist sustained psychic compulsion
c. Durham or “Product” Test - an accused is not criminally responsible if his unlawful act
was the product of mental disease or mental defect.”
i. This test was ultimately abandoned, as expert witnesses essentially usurped the
jury function. Battle of the Experts
d. Model Penal Code Test § 4.01McNaughten Rule + Irresistible Impulse Test
i. Relieves the D of responsibility under two circumstances:
1. As a result of mental disease or defect, the D lacked substantial
capacity to appreciate the criminality [wrongfulness] of his conduct
and
2. As a result of mental disease or defect, the D lacked substantial
capacity to conform his conduct to the requirements of law
ii. This test acknowledges that both volitional and cognitive impairments must be
considered by the jury
iii. This test employs vocabulary such that its use at trial will permit a reasonable
understanding among the judges, lawyers, medical experts, and the jury.
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