Crim Law Spring 2009 Outline
I.
Method of Crim Intent Law
a. How crim law is validated through process
b. Characteristics
i. Series of command, both positive and negative
1. You must do this; prohibited from doing this ex. You must file tax
returns; You must not murder.
ii. Understood as valid expressions of community’s expectations-punishes
disobedience
1. People must know what it is they are violating
2. Violators of crim law exposed to society’s beliefs (shows societal norms)
iii. Punishment and enforcement
c. Sources of Crim Law
i. Public Law
1. Limited by Const
a. 8th amend: Cruel and Unusual Punishment
ii. Statutes
1. Legislators play imp role in determining what laws are/what actions are
prohibited
2. Statutes are the primary source of crim law
iii. MPC
1. Each state has own penal code, but 34 have adopted MPC in parts
2. Written in 1952, completed in 1062
3. A substantive restatement of crim law
iv. Common Law
1. Old codes drawn from English common law 1600s
2. Judges play more imp role in interpreting statutory language
3. Fed gov’t has crim code Title 18: Congress can only write crim laws
based on interstate commerce
v. US Constitution
1. Most important source of federal law for both CL and MPC jurisdictions
II.
Theories of Punishment
a. Principle
i. Gov’t needs good reason to take someone out of society
ii. It is unacceptable to use force against another human being w/o a good legal
reason
iii. Sate should not invade indv freedoms w/o a good legal reason
b. Moral Reasoning
i. Consequentialism
1. Actions are morally right if they result in desirable consequences
2. Utilitarianism: primary theory of punishment
a. Look forward at predictable effects of punishment on offender
or society
ii. Non-consequentialism
1. Actions are morally right or wrong in themselves regardless of the
consequences
2. Retributivism: primary form of punishment
a. Look backwards at the harm caused by crime and attempt to
calibrate the punishment to crime
c. Types of Punishment
i. General Deterrence
1. Punishment to deter others from committing the same or similar
offenses
2. Ex. Suite: Gun laws – focuses on deterrent
3. Ex. Lorton Central Prison – incarceration is not the best way b/c
prisoners depend on the security of the jail
4. Case study disputes each traditional punishment way
ii. Specific Deterrence
1. Punishment to deter the individual Δ from committing the same crime
in the future
iii. Rehabilitation
1. Reforming the Δ through vocation training, counseling, drug rehab, etc
iv. Incapacitation
1. Incarceration to keep the Δ away from other members of society
v. Retribution
1. Giving the Δ what he deserves
III.
IV.
Standard of Proof
a. Π bears the burden to prove it beyond a reasonable doubt
i. It would cause a reasonable person to bend or pause
ii. Δ presumed innocent
iii. Not mere possible doubt
b. Defenses
i. Case in chief/prima facie case: create a reasonable doubt, poke holes in the Πs
case
ii. Admitting basic crime, but arguing for acquittal based on extenuating
circumstances (Justification)
iii. Affirmative defense: admit guilt but claims that should be acquitted or excused
Criminal Process
a. Judges charges jury, Δ presumed innocent, Π must prove case beyond reasonable doubt
b. Π gives opening statement, followed by Δ
c. Π gives case-in-cheek – witnesses and any evidence to prove elements of prima facie
crime
d. After prosecution rests, Δ has right to move for directed verdict (not always granted)
i. If not granted, Δ gives their case (not required)
ii. If Δ does put on case, Π can rebuttal
e. Closing arguments by both parties
f. Jury Verdict
i. Standard of Review
1. Δ may move for a directed verdict of acquittal, in which the judge
directs the jury to acquit for lack of evidence
a. If Δ is convicted, may appeal the conviction to higher ct for
review of sufficiency of evidence
b. Trial/appellate judge do not apply reasonable doubt, instead
use the Standard of Review
c. On motion for directed verdict, trial judge asks whether the
prosecution has introduced sufficient evidence such that a
rational jury COULD decide that the prosecution has proved its
case beyond a reasonable doubt
d. When evidence is ambiguous, appellate ct reviewing a
conviction will give the prosecution, not the Δ, the benefit of
the doubt
2. If prosecution hasn’t met burden, judge can give granted verdict though
eyes of what the jury would have found
3. Appellate court standard of review: if rational jury can prove that Π has
proved it beyond a reasonable doubt
4. If judge can’t say that prosecution has met the burden: becomes a
question for the jury
ii. Role of the Jury
1. People v. Williams: rape case where judge excused a jury member
because he wanted to exercise his right to nullify the verdict
2. Slippery slope argument.
3. Jury has right to determine the law and the facts in all crim cases
4. 6th Amendment guarantees that in all crim prosecutions, the accused
shall enjoy the right to a speedy and public trial by an impartial jury
5. Judge gives jury instructions, but jury is not obligated to follow the law
a. Judge cannot punish or overturn jury’s not guilty verdict
6. Jury Nullification in History
a. Definition
i. Act of returning a verdict contrary to law
b. Trial of Edward Bushnell – Eng.1670
i. Power to decide both facts and law
ii. Common law case of nullification
iii. Judge directed jury to find him guilty, jurors refused and
found him not guilty. Judge was going to fine jury to
punish them
iv. Bushnell refused to pay the fine
v. Ct of common pleas: jury cannot be punished for any of
its verdicts
c. Zenger’s publication (American)
i. Zenger published a weekly newspaper
ii. Prosecuted for libel – argued defense of facts
1. Truth not a defense for libel, no freedom of
press
iii. Judge told jury they must find him guilty, 10 min of
deliberation, jury finds him not guilty
d. Race Based Nullification (Butler)
i. Solutions
1. Liberal Critique
a. Crim justice system is racist
b. Community organizing initiatives are
imp
2. Radical
a. Have black jurors nullify non-violent
criminals (like drug possession crimes)
to offset the trend
b. Black jurors presume in non violent
cases that verdict should be nullified
regardless of the evidence to get rid of
social injustices
3. Voting power doesn’t work
ii. Rebuttal (Leipold)
1. Realizes there is a problem, but telling AfAm to
ignore the law would be an injustice
2. Why it won’t work
a. Most potential AFAm juries will be
rejected for jurors, prosecutions would
take them out
i. It is unlawful for counsel to use
race to disqualify jury – have to
find a race neutral argument
b. In order to make an informed and
correct decision, jurors need more info
but usually don’t get that during trial
i. Δs contribution, previous
record, potential sentences
ii. Δ doesn’t have to testify, so to
nullify the jury,
3. Slippery slope argument: if juries start learning
of power to nullify, what if (ex) jurors start
considering rape victims: woman was asking for
it by wearing a short skirt and acquits the Δ.
There are unintended consequences for
nullification
V.
Limits on power to punish
a. Constitutional restraints
i. Amend 8. Cruel and Unusual punishment
ii. Equal Protection clause
iii. Federalism and the Supremacy Clause
1. States have power to regulate own people, but b/c of supremacy clause,
federal system limits state powers
iv. Commerce Clause
b. The Void-for-vagueness doctrine
i. What is it?
1. Legal fiction when applied to individual or accused
2. It is a const check on actors in crim justice system
3. Fetters discretion on law enforcement officials
ii. Due Process clause
1. What kind of conduct in crim statute is prohibited
2. Limits unfettered police discretion; jury’s discretion to convict indv that
jury may not like
3. Vague statutes are said to deny DP, so unconst
iii. Papchristous v. City of Jacksonville
1. Courts concerned with the unfettered discretion of police officers
against poor and minorities
2. Police can stop anyone on mere suspicion that mischief is afoot
3. Probable cause: police need probable cause to arrest or search and
seize
4. Terry standard: reasonable suspicion falls below prob cause; in order for
police to stop and question someone, police officers need some
reasonable suspicion, articulated suspicion NOT just a hunch.
iv. Kolender v. Laweson
1. Challenge to penal statute that says need credible and reliable ID-vague
2. Police need to have reasonable suspicion under Terry to stop someone
3. Must have notice of statute/penal code to know what would constitute
actions that violate the statute
v. City of Chicago v. Morales
1. Overbroad statute: officers have right to remove anyone, if they
disobey, get fined and have jail time
2. People need to give up liberty for the safety of others
3. Distinguished from Papchristous: reason for statute is directed at gangs
and resulted from a different democratic process – communities were
affected
a. The Act Requirement
i. Result from 5 doctrines
1. Thought crimes
a. Notion that person should not be convicted solely b/c of their
thoughts but rather done something that created harm
2. Situational offenses
a. Cannot have been compelled by the gov’t
3. Voluntary vs. Involuntary acts
a. Act must have been voluntary – involves some type of choice
4. Omission
a. No criminal liability for failure to act, unless person who failed to act
had a legal duty to do so
5. Status crimes are unconstitutional
a. Being who you are vs. doing something cannot be punished
4. Only doctrine in the Const
c. Basic element to any crime (serve as expression for what society thinks is just)
i. Actus reus
1. Prohibited act that results in some kind of social harm
2. Principle that crim law only reaches voluntary acts, or omissions to act
when there is a legal duty to do so
3. Society needs someone to be culpable for their acts
4. People should be punished for bad choices, not simply from acts that
cause harm –
5. MPC §2.01- actus reus requirement
a. Set s out list of involuntary acts
6. Possession is an act
7. Liability for commission of an offense may not be based on an omission
unless…
a. Omission is expressly sufficient by law defining offense
b. A duty to perform the omitted act is otherwise imposed by law
8. General rule; indv have no duty to act. Crim liability can’t be based on
omissions – must be based on social harm
9. Contractual duties, statutory duties
ii. Thought-Act Continuum
1. Guilty state of mind is required – can’t be just mere fantasy
2. Cant punish thought crimes
3. 1st amend: freedom of speech, can’t be touched for thoughts or beliefs
you have – no proof of thoughts
4. Dalton: wrote pedophiliac journals; must have actus reus to complete
social crime and be punished for it
5. Wisconsin v. Mitchell: ct applies sentencing enhancement to people
who intentionally select victim b/c of race, religion, etc. – incited others
to complete social harm of his thoughts
6. Martin v. state : Martin drunk at home police force him into public to
arrest him for drunkenson – If a 3rd party forces/threats of force to
make Δ do some prohibited action, Cts won’t punish them
7. State v Decina: at must be voluntary – volitional: movement of body b/c
of thought – actor could have chosen NOT to do the act (driving with
seizure)
iii. Causation
1. Chain that links Δs acts with the social harm
iv. Concurrence b/w the prohibited act and the prohibited mental state
1. Requires that actus reus and mens rea be concurrent
2. Acts and omissions/Legal Duty to Act
a. Establishing Duty to Act
i. Beardsley: legal duty to act (only if there is a special
relationship) – generally no duty to act
ii. Howard: Involuntary manslaughter when a direct result
doing of an unlawful act is reckless or grossly negligent
manner, or doing of lawful act in reckless of grossly neg
manner causes the death of another person; even
though law requires an act, an omission can satisfy that
act requirement
1. Culpability of continuing failure to act
a. Parent-Child relationship
b. Must be reckless or grossly neg- society
would impose this on a reasonable
mother (ex) – mother may not have to
risk own life for a child
iii. Pestinikas
1. Liability to Act/omission
a. Where express language of law defining
offense provides for crim liability for
omissions
b. Where law otherwise imposes duty to
act
c. Contractual obligation
i. Failure to act according to K can
be criminal if other factors
satisfied
2. Good Samaritan Laws : aid for civil liability
3. Status Crimes
a. 8th and 14th Amendment
b. People only punished for conduct not what kind of person they
are
v. Mens rea
1. Definition
a. A guilty mind
b. A prohibited mental state
c. Mental state on its own cannot be punished- must have action
d. Broad – morally culpable state of mind; Δ guilty if he has a bad
state of mind; state of mind not tied to intent; no distinction b/c
intentional and negligent acts
e. Narrower- Δ won’t be guilty of an offense w/ prosecutor if not
able to prove mens rea stated in definition of defense
2. Regina v. Cunningham
a. Unlawfully and maliciously administer – taking of gas meter
b. Malicious is NOT wicked morally; legally it means that it is either
the actual intention to do the harm, or recklessness as to
whether or not harm caused by act would occur
3. Common law approach
a. Elements
i. Felonious intent
ii. Crim intent
iii. Malice aforethought
iv. Guilty knowledge
v. Fraudulent intent
vi. Willfulness
vii. Recklessness
viii. Scienter
b. Traditional common law
i. Mens rea definitions were really imprecise – as we
move further down the line and progress in history, goal
was to provide precise definitions of the different mens
rea terms. Appellate ct in Cunningham takes middle of
the road approach and reflects temporary common law
approach
ii. Must have actual intent to cause the harm and
recklessness (2 types of intent)
iii. Whoever shall purposely, knowing, or recklessly
administer X act
4. MPC approach
a. Purpose
i. Conscious object to engage in conduct
ii. Element involves nature of his conduct or a result
thereof, it is his conscious object to engage in conduct
of that nature or to cause such a result
iii. Δ is aware of existence of such circumstances
iv. How to establish?
1. If Δ confesses – conscious object to do the
crime (kill someone) Person wants to kill
someone on the bus. Cannot be purposely
responsible for other passengers that die. Did
not consciously desire that other bus
passengers should be injured.
v. Proving Intent
1. MPC definitions
a. Conscious object that Δ consciously
desires to achieve a result
b. Purposely and knowingly
2. Common law
a. Knowledge to a virtual certainty
3. State v. Fugate: intent of accused person dwells
in his mind; Can’t be proved by direct testimony
of 3rd person; may be inferred through natural
and probable consequences through Δs acts
4. Virginia v. Black: KKK rally – falls outside
prescription outlined in RAB
5. Ex. Yermian
a. Material element of an offense:
element that does not relate exclusively
to the statute of limitation, juris, venue,
or to any other matter similarly
unconnected w/ the harm or evil,
incident to conduct, sought to be
prevented by law defining the defense
6. Ex. Holloway v. US
a. Carjacking w/ intent to cause death or
bodily harm is a crime
b. Conditional intent is part of intent;
unless condition negatives the harm or
evil sought to be prevented by the law
defining the offense
vi. Transferred Intent Doctrine
1. Concept: intent to do one things can’t be
substituted for intent to do another
2. Can be held liable for intentionally doing
another crime even if that person was in fact
not an intended victim
a. People v. Scott
i. “bad aim” scenario – in park
vii. General v. Specific Intent
1. People v. Atkins: burning canyons: specific:
what the actor was actually thinking or planning
at the time of event; general: vaguer, burden of
proof on prosecution lower, prove that Δ
wanted to do the act
2. MPC doesn’t recognize different
3. Gen: prosecutor has to prove that Δ did the
underlying act – when crime required mens rea
only as an intent to do the act that causes harm
a. Δ wanted to do the crime but didn’t
have intent to do further act or
consequence
4. Spec: Δ had specific intent to achieve the resultcrime when required mens rea entails an intent
to cause the resulting harm
a. Δ had intent to do some further act or
consequence
viii. MPC 2.03
b. Knowledge
i. Acts knowingly with respect to material element of
offense when – he is aware of his conduct will result in
harm.
ii. Not only the conduct, also the result of the conduct
iii. He is aware that his conduct is of that nature of that
circumstances exists
iv. Awareness element is still there
v. Δ only has to be practically certain that the result may
follow
vi. How to establish?
1. Δ could have been practically certain that
others would be hurt on the bus. Knowingly
hurt them
2. If Δ is aware of requisite fact
3. If Δ correctly believes that requisite fact exists
4. Doctrine of deliberate/willful blindness; Δ can’t
shield self to gain positive knowledge
a. If there is a high probability that a fact
is going to be true, Δ cannot avoid crim
liability by ignoring that fact or
circumstances around that fact
vii. US v. Jewell
1. Knowingly exported drugs
2. Π had burden of proof to prove that Δ knew
positively that he was transporting the drugs
3. *Can’t be blind to knowledge
viii. MPC 2.02(7): When knowledge is an element, such
knowledge is established if person is aware of high
probability of its existence
c. Recklessness
i. Disregard deviates from standard of conduct that a lawabiding person would observe in actor’s situation
ii. When Δ consciously disregards material risk
iii. Δ consciously disregards a substantial and unjustifiable
risk
1. Substantial risk that is
2. Unjustificable
3. Conduct as gross deviation from standard
4. Law abiding person
iv. Awareness: conscious disregard for risk
v. How to establish?
1. Jury question
2. Ex. Driving 100mph to get close to death wife to
hospital. Hazards of going too fast above speed
limit. Social utility aspect – in trying to aid
someone who has been severely injured.
3. Ex. New surgical procedure to save lives of
people with heart failure. Success rate is 10%,
but if successful, patients live much longer.
vi. Strict Liability Offenses
1. When statute is silent in regards to mens rea,
no presumption that it is strict liability, but
presumption that some kind of mental state is
required
2. Elements of crimes
a. Not acting/acting illegally
b. Prohibited mental state
3. Morriesette
a. Knowingly converts govt property
b. Knowingly, but ct says its strict liability –
no mens rea needed
c. Strict liability offense doesn’t need to
prove a mental state
4. Barone
a. Intent not required on face of the
statute. Intent was to reduce fatalities
on the road.
5. MPC strict liability
a. 2.02(3) default minimum mens rea is
recklessly
b. Looking at strict liability offense,
prosecutors can convict someone if at
minimum, establishes that Δ acted
recklessly
d. Negligence
i. Does not have to consciously aware of such a risk
ii. Law requires Δ to live up to a reasonable care standard
iii. Parallel elements to reckless
iv. When he should be aware of substantial and
unjustifiable risk
v. Gross deviation
vi. Reasonable person would have been aware of the risk
5. Wrap-up and review of mens rea
a. Ex. Sami hates her rival, carrie, and lies in wait outside her
house intending to shoot her dead. Another woman resembling
Carrie, comes out and Sami kills her. This person was actually
Christy, Carrie’s twin.
i. With what state did Sami killed Christy? Under MPC,
Sami killed Christy
1. With purpose: made decision to lay outside
house to kill Carrie. Conscious desire to kill
Carrie
2. Transferred intent 2.03(2) – if only difference
that a different person is injured, a murder
charge is okay.
b. Ex. Carrie was carrying Will, her baby son, and the bullet killed
them both
i. Purpose: Sami still wanted to kill Carrie.
ii. Mpc 2.03(2a) – actual result differs from that designed
or contemplated only that harm would have been more
erious that that caused
1. If actual result differs from what was intended,
knowledge or purpose can’t be inferred
2. Can purposeful intent to kill Carrie be
transferred ot Will?
a. Can also be prosecuted under
negligence. Sami doesn’t know Carrie
was carrying Will.
c. Ex. Sami hate, lies and waits when someone emerges, Sami
sprays bullets. She kills Carrie, but also wounds Austin would
was coming out after Carrie.
i. Sounds like set of facts of Scott
ii. Carrie killed: purpose
iii. Autsin killed: recklessness
1. Can transferred intent be used to impute
purpose
2. If only difference is that another person is
injured, can be prosecuted for purposely or
knowingly injuring another person
VI.
Mens Rea Concepts
a. General v. Specific Intent
i. Gen: prosecutor has to prove that Δ did the underlying act
1. Factual mistake must be in GF and reasonable
2. Sometimes a moral wrong/legal wrong test applies
a. Moral wrong: cts going to look at Δs actions, if actions were
morally worg, ct will say that holding her liable will be okay, as
long as it was done w/ intent, acting with recklessness or
wrongdoing; find that Δ is still culpable even if mistake was
reasonable
b. Legal wrong: take off from moral wrong; if facts were as Δ
believed, Δ can raise a mistake of fact claim. If facts were what
Δ thought, but actions would still be a crime, then will be
punished. Ex. Procuring a minor for prostitution even though
thought she was older
c. MPC approach: still legal wrong doctrine, but Δ is charged w/
less offense
ii. Spec: Δ had specific intent to achieve the result
1. Factual mistake must be in GF
2. Is a complete defense
3. Does not have to be reasonable
iii. MPC: doesn’t make distinction
iv. Willful Blindness
v. Strict Liability
b. C/L
i. Effect of Mistakes depends on distinction b/c gen and spec intent
ii. Have to see what kind of intent in required
c. MPC 2.04(1): Follows C/L entrapment by estoppel defense
d. People v. Navarro
i. Mistake has to be made in GF but doesn’t have to be reasonable
1. Mistake of Law defence goes to underlying law
2. Even if he knows the law, GF mistake doesn’t mean there is intent
ii. C/L: specific intent crimes/mistake of fact: provide complete defense
1. If crime spec intent, mistake has to be in GF not reasonable
2. Larceny: specific intent crime – HYPO: leave umbrella in umbrella stand.
Pick up another black one and later realize it is not mine. GF belief that
umbrella was mine DOES NOT have to be reasonable. Could accidentally
have taken a green one.
3. Specific intent: to permanently deprive owner of property (larceny is
specific intent to deprive owner)
iii. C/L: general intent crimes:
1. GF mistake, mistake must be reasonable
2. Moral wrong doctrine: if conduct is morally wrong, culpability principle
established by the mens rea principle is not violated if conduct is also
criminally punishable. If Δs conduct is culpable, mistake even if it is in GF
and reasonable, Δ could still be prosecuted for that crime.
3. Δ will not be exculpated if facts were as Δ believed them to be. If
mistake were actually true, Δ could still be prosecuted as to the facts
iv. MPC
1. Does not observe specific intent/gen intent
2. Does not distinguish b/w mistakes of fact and mistakes of law
e. Garnett v. State
i. Mildly retarded - sex with 13 yr old – pregnant. Statutory rape in Maryland
ii. Strict liability – Mistake of Fact doesn’t work; don’t need mens rea
f. Mistakes of Law
i. Ignorance no excuse!!!
ii. EXCEPTIONS
1. Entrapment by estoppel
a. Where a person is not held criminally liable when they rely on
an official interpretation on what law is
b. C/L:
i. Affirmative defense
1. A defendant's assertion of facts and arguments
that, if true, will defeat the plaintiff's or
prosecution's claim, even if all the allegations in
the complaint are true. • The defendant bears
the burden of proving an affirmative defense.
c. MPC 2.04(3)
i. Codifies the affirmative defense
d. Policy: citizens should not be coerced by gov’t officials to
commit crimes; lays in gov’t officials interpretations of crime
e. US. V. Clegg
i. Δ relied on US official’s statements to give weapons in
Pakistan
f. Mararro
i. Gun dealer said he didn’t need a permit b/c he was a
peace officer – relied on gun dealer, custom, law
professor and other officer’s actions
g. Fridley
i. Δ driving w/ revoked license, Debby at DMV said it was
okay – ct rejected Debby’s authority
2. Law required Knowledge
a. Ignorance to knowledge negates mens rea
b. Knowledge that prohibited conduct is unlawful is an element of
crime
c. Cheek
i. Had not filed taxes – in a group saying they were
unconst
ii. Ignorance as no excuse is a large legal doctrine when
dealing with tax code. Congress put “willfully” as mens
rea
iii. Bishop rule: willfully means a voluntary, intentional
violation of a known duty
iv. Disagreement v. misunderstanding
1. Dis: aware of the law but don’t think it should
be that way; acknowledge that law exists. NOT
a defense
2. Mis: under 16th amendment, income was not to
be taxed. Misunderstood what amendment
meant; could be a defense!
3. Lambert exception
a. Const requires due process; people should receive notice under
due process
b. Lambert v. CA
i. Statute that a person convicted of a felony – Δ was an
unregistered felon
ii. Due process should give some notice to register- LA
didn’t.
iii. Ignorance of law defense
g. Wrap up:
i. Mistakes of facts depending on type of mens rea crime requires , can sometimes
be a defense
ii. Mistakes of law are rarely a defense
iii. Ignorance is no excuse
1. Exception: Lambert rule: barely followed; find no due process problem.
VII.
CAUSATION
a. Required b/c Δ should not be held accountable unless her action actually caused the
result – actus reus and mens rea have to be coupled to establish criminal liability
b. Elements
i. Voluntary act (or omission when Δ has a duty to act)
ii. CAUSES
iii. Social harm
c. When is causation required?
i. Result crimes
1. Crimes which are defined in terms of a prohibited result
2. Ex. Δs acts or omission caused social harm for crime or murder
(prohibited result: death of human)
ii. Not for Conduct crimes
1. Crimes which are defined in terms of prohibited conduct
2. Ex. Crime of speeding (conduct driving over speed limit)
d. C/L
i. Actual
1. “but for” – but for Δ’s conduct, would the harm have resulted. If no,
then it is the actual cause
2. Cause and effect, operative link, sine qua non cause, factual cause
ii. Proximate
1. Test foreseeability
a. Of ultimate social harm
b. Of intervening cause
2. Intervening causes
a. Independent- upon Δs voluntary act- Δ is prox cause unless
extremely unusual or bizarre
b. Dependent – coincidental to Δs voluntary act; Δ doesn’t have
liable unless the cause is foreseeable
3. Legal cause
4. Why? Not fair to hold Δ liable if resulting harm not foreseen
e. Rementer
i. Taxi cab fight – it was foreseeable for her to get injured/killed
f. Govan
i. Δ shot victim over his head and caused her quadriplegia – later died from
pneumonia – gunshot wound caused paralysis – chain of events
g. Henderson v. Kibbe
i. Left man out on the street in the cold – sufficient causation when hit by truck
h. MPC
i. But for test in there
ii. Conduct is cause of result when it is an antecedent but for which the result
would not have occurred. BUT FOR suffices for ALL causation inquiries
iii. No prox cause for purpose crimes – not w/in purpose of Δ’s actions
1. In result crimes: if not w/in contemplation
2. Negligence: if not a risk that Δ should have been aware of
iv. EXCEPTION: transferred intent
1. Even if actual result is the same, resulting harm is same as what Δs
purpose or contemplation or risk of which Δ was aware or should have
been aware and is not too remote or accidental then Δ can be liable
VIII.
Concurrence (final element)
a. Law requires connection b/w actus reus and mens rea
i. Temporal concurrence: mens rea is present at time of when act is committed
ii. Motivational: reason for mens rea has to be reason behind act
b. Thabo Meli v. Reginam
i. Plot to take man to hut and kill him, hit him, threw him off cliff – died in cliff.
ii. Was there sufficient mens rea to kill him over the cliff? They just wanted to
dispose of the body
c. Rose
i. Struck by car and dragged; ran from scene of crime, left body. Mens rea:
negligence, recklessness?
d. MPC
i. 2.03: Causal relationship b/w conduct and result
ii. Divergence b/w result designed or contemplated and actual result or b/w
probable and actual result
1. But for test
IX.
HOMICIDE
a. Murder
i. Requires Malice Aforethought
ii. Factors
1. The unlawful
a. Doesn’t have justification or excuse- no defenses apply
2. Killing
a. Death: when heart stops functioning/brain death
b. Uniform determination of death act: shield physicians from
criminal liability and promote organ donors
3. Of a human being
a. Under C/L: person who has been born alive (not fetus)
b. States created feticide statutes to punish death of fetus
c. MPC: 210.0(1) human being is person who has been born alive
4. With Malice Aforethought
a. Distinction b/w murder and manslaughter
b. Proving it under CL:
i. Intent to Kill:
1. express malice, proved if Δ acts with knowledge
that death was substantially certain to result;
inferred from circumstantial evidence
2. Deadly weapon Rule: inference by jury – infer
intent to kill when Δ used deadly weapon in
manner it is used aimed at vital part of human
body
ii. Intent to do serious bodily harm
1. Implied malice, inferred from circumstances
surround crime, not intent to kill, just harm
iii. Depraved heart murder
1. Implied malice, Δ acted w/ extreme
carelessness w/ wanton and willful disregard for
human life. Ex. Shooting into crowd
iv. Felony Murder
1. Implied malice: rule states: if Δ is involved in
commission or attempted commission of a
felony that results in death, can be prosecuted
for murder
5. MPC distinction: does not recognize degrees of murder- purposeful,
knowing, negligent or reckless death of another human being. Doesn’t
explicating recognize felony murder but 10.2 presumed if actor is
engaged in commission of a crime – any time punished by death
a. Crim homicide is MURDER when committed PURPOSELY OR
KNOWINGLY or when committed RECKLESSLY under
circumstances manifesting extreme indifference to value of
human life
b. Recklessness and indifference presumed if actor engaged
attempt to commit or flight after committing certain other
crimes (DHM, felony murder)
c. 210.3: Manslaughter as criminal homicide
i. When it is committed recklessly but w/o circumstances
manifesting extreme indifference to the value of human
life AND
ii. When homicide that would otherwise be murder is
committed under influence of extreme mental or
emotional disturbance for which there is reasonable
explanation or excuse
b. 1st Degree
ii.
iii.
iv.
v.
1. Requirement that prosecution proves
a. Premeditation, deliberation
b. Murder committed using means specified in 1st degree murder
statute OR
c. Murder occurred during commission or attempted commission
of enumerated felony
d. Cold blooded
2. Jury decides on factors:
a. Time involved during the killing
b. What Δ did before the killing – planning
c. Motive
d. Δ prior relationship to victim
e. Plan an escape after the killing? – premed, deliberation
Willful, deliberate, malicious, and premeditated killing or murder committed
under felony
If you kill peace officer in line of duty, 1st degree no matter what
State v. Brown
1. Beating of 4 year old child to – died from it
2. Δ says no premed or deliberation – premed formed in instant, but
deliberation requires thinking – done in a cool mind
3. Not enough evidence to prove deliberation
Premeditation and Deliberation
1. 1st degree requires deliberation
2. State v. Bingham: strangled for 3-5 minutes – ct says that’s not
deliberation b/c can’t think while having sex
3. Gilbert v. State: shot wife to put her out of her mistery – spent a lot of
time thinking about it.
c. 2nd Degree
i. Default charged when there has been a crim homicide
ii. Prosecutor has to prove Δ acted with premeditation and deliberation – then it is
aggravated 2nd degree
iii. If in heat of passion (no malice aforethought), 2nd degree can be mitigated to
voluntary manslaughter
d. Voluntary Manslaughter
i. Imperfect self-defense
ii. Diminished capacity
iii. Provocation: if too provoked, there is not enough mens rea
1. Purpose
a. Mitigate Δs culpability
b. Used to be considered an excuse – when honor is impugned,
anger and passion resulting can be justified
2. Approaches
a. Categorical Approach
i. Early C/L – list of crimes that are justified:
1. Aggravated assault or battery
2. Observation of a serious crime against close
relative
3. An illegal arrest
4. Mutual Combat
5. Catching one’s wife in act of adultery
6. **Mere words do not constitutae sufficient
provocation
ii. People v. Ambro
1. Δ and wife having problems, she was going to
leave him, admitted to having an affair- he
stabbed her. Could have been adequately
provoked. EXCEPTION TO MERE WORDS RULE
b. C/L Reasonable Person Test
i. Jury must find:
1. Δ acted in heat of passion
a. Provoked by an act or event that would
have also provoked a reasonable
person in Δs shoes to lose control
2. Δ did not have sufficient time to cool off
a. A reasonable person in Δ’s shoes
wouldn’t have had reasonable time to
cool off
3. Causal connection b/w the provocation, passion
and killing
ii. People v. Berry
1. Young wife left Δ after 3 days, went back to
Isreal, fell in love and got preggers with another
man. He choked her into unconsciousness,
waited in her apt 20 hrs and then strangled her
to death.
iii. Chapati pan
1. Killed adult male victim after forced sex –
should instruction be for reasonable person or
15 year old?
iv. Mison argument
1. Sexual advances coming from victim to Δ –
enough provocation – homosexual advance is
NOT sufficient provocation to incite a
reasonable man to kill
v. Dressler argument
1. Takes Misons argument and focuses on idea of
RP
2. Says Mison failed b/c he missed the basic
presence of RP – not idealized person who
won’t act as human – ORDINARY PERSON
vi. Commonwealth v. Carr
1. Δ killed 2 women engaged in lesbian love
vii. Gwen Araujo case
1. Transgender teen in CA killed by 4 teenage boys
after discovered she had male genitalia
c. MPC’s EMED defense
i. Reasonableness shall be determined from viewpoint of
person in actor’s situation
ii. Stave v. Dumlao
1. Δ had personality disorder – accused wife of
cheating, tries to shoot her, misses, his mother
in law – victim not provoking him
2. People v. Casassa
a. Determination should be made by
viewing subjective internal situation in
which Δ found himself and the external
circumstances as he perceived them at
the time
b. MPC doesn’t require provocation to be
coming from victim – no connection to
killing
3. MPC: no cooling off period
X.
Depraved Heart Murder
a. Treated as 2nd degree murder – also as malignant heart murder, wantonness, extreme
indifference to value of human life-implied malice
b. Malice is implied where Δ acts with gross recklessness and an extreme indifference to
the value of human life. Δ realizes that her actions have created a substantial risk to
human life, but carried on anyway
c. C/L
i. Implied if Δ acted with gross recklessness and extreme indifference to human
life- Δ realized that his actions created a substantial and unjustified risk of death
and yet went ahead and committed the action anyway
d. Malone
i. Δ did not intend to kill victim (Russian roulette) – said sorry
ii. 2nd degree DHM – malice aforethought implied
iii. Russian roulette/shooting into crowd is ALWAYS DHM
e. Davidson
i. Δ’s dog killed boy
ii. Ct uses foreseeability aspect-Δ should have foreseen that tragedy could occurdogs had escaped many times
XI.
Involuntary Manslaughter
a. Requisite mens rea: gross negligence or recklessness
b. C/L
i. Recklessness: under DHM: conscious disregard of an unjustifiable and
substantial risk or harm to human life
ii. Negligence: does not require awareness
iii. Differences depends on juris – discretion of prosecutors as to what charges
should be applied
iv. Difference b/w DHM and involuntary manslaughter – conscious disregard
v. Requires something more than recklessness
c. Welansky
i. Δ nightclub owner
ii. Wanton recklessness – grave danger was realized by Δ in act of omission which
caused the harm amounts to wanton or reckless conduct no matter whether
ordinary man would have realized the gravity of the danger or not
d. Williams
i. Baby sick for 12 days – died from infection
ii. Parents had duty and didn’t act in time
XII.
The Felony Murder Rule
a. Inherently dangerous felony rule
b. Res gestae
i. Events at issue or other events contemporaneous with them
c. The Merge Doctrine
d. Third party killings: the agency rule
e. Felony murder is the commission of a felony that results in death
i. Types
1. C/L approach: felony murder will be punished as 2nd degree murder
2. Statutory rout: felony murder is usually lifted to 1st degree murder,
when the felony is one of the underlying felonies in the statutes
f. Purpose:
i. To deter Δ’s committing felonies from neg acts that could lead to death
ii. To be criminally liable for something you have to have had the appropriate
mens rea to commit that crime
iii. Prosecutor is relieved of that burden of having to prove mens rea
iv. HYPO: A and B robbing liquor store. Cause the death of owner. Men liable for
felony murder- can’t say they didn’t have intent – they robbed it
g. People v. Stamp
i. Δ and accomplices commit robbery using rubber sticks – victim died of heart
attack even though wasn’t beaten, shot etc.
ii. Heart attack triggered by robbery – so prosecutors able to convict him
1. Used “but for” test: but for the robbery, the victim would not have had
the heart attack and died
iii. Standard of review in this case was substantial evidence. Does not have to go
into a lot of analysis. As long as there was substantial evidence presented at
trial.
h. FIRST LIMIT: THE INHERENTLY DANGEROUS FELONY RULE
i. Not fair to hold criminally liable for death that occurs during the attempted
commission of a felony that is not itself inherently dangerous
ii. EX. Tax fraud
iii. Approaches:
1. ELEMENTAL
a. Look at felony in the abstract: element by element
2. FACTUAL
a. Under set of facts, was the felony as committed dangerous
iv. People v. Patterson
1. Victim dies from cocaine OD and Δ charged w/ felony murder
2. New rule: look at felony in the abstract; look at statute that lies out the
felony….this makes any felony inherently dangerous
v. C/L Felony-murder rule
i.
j.
1. A homicide that is a direct causal result of the commission of a felony
inherently dangerous to human life (other than the six felonies
enumerated) constitutes at least 2nd degree murder
vi. Hines v. State
1. Δ thinks he’s shooting a turkey but ends up shooting victim
2. Possession of a firearm by a convicted felon can be inherently
dangerous felony
SECOND LIMIT: RES GESTAE
i. Requirements:
1. A time
2. A space AND
3. A causal connection b/w the homicide and the predicate felony
ii. People v. Bodely
1. ISSUE: whether a killing occurs during perpetrator’s flight from a
burglary occurs “in the perpetration” of the burglary and therefore is
felony murder
2. Burglary v. Robbery
a. Burglary requires entrance into any structure which has walls on
all sides and is covered by a roof with intent to commit grand or
petit larceny or any felony
b. Robbery is the felonious taking of personal property in the
possession of another, from his person or immediate presence,
and against his will accomplished by means of force or fear
c. Act of robbery isn’t complete until the person can take the
property away and has exited the scene
3. Ct says escaping was part of the burglary
iii. King v. Commonwealth
1. Felony: intent to distribute marijuana
2. Whether commission of this felony was sufficiently causal to the
vicitm’s death? – death coincidence not a consequcne of felony.
THIRD LIMIT: MERGER DOCTRINE
i. People v. Smith
1. Felony child abuse statute- likely to produce bodily harm or death
2. Under Felony Murder Doctrine: malice aforethought presumed from
fact that Δ planned to commit the underlying felony
3. Merger doctrine considers whether or not the acts of the underlying
felony were similar enough to the result that happened – homicide?
ii. State v. Canola
1. 4 guys robbing store, one is shot by victim store owner – he shoots store
owner, both die. Can other 3 robbers be held laible for their
accomplice’s death?
a. Liable for store owner’s death not for accomplice b/c victim did
the killing
2. State v. Almeida
a. Fleeing a robbery- firing and police firing back. Police 1 hits
Police 2 – ct holds them liable b/c they initiated the gun battle
3. State v. Thomas
a. Victim fires back and kills one of Δs – Δ can be liable for 2nd Δ’s
death b/c it was a foreseeable consequence of the crime
4. Commonwealth v. Redline
a. Police kills one of felons – Other Δs can’t be held liable for death
of co-felons b/c killing of felon during felony by policeman is
justified
5. Ct follows redline- Δ can’t be held liable for death of co-felon
iii. Aaron case
1. Ct abolishes felony murder rule- in MI
2. MPC doesn’t recognize felony murder explicitly, it does recognize that
reckless murder can be presumed from the commission of the felony,
but it doesn’t explicitly recognize felony murder
3. ISSUE: felony-murder rule that allows element of malice equired for
murder to be satisfied by the intent to commit the underlying felony or
whether malice must be otherwise found by the trier of fact
4. Facts: convicted of 1/st degree felony murder from homicide during
armed robbery
5. MPC limitations: felonious act must be dangerous to life, homicide must
be natural and probable consequence of felonious act, death must be
proximately caused, act must be a C/L felony, period of felony in
process must be narrowly construed, felony must be independent of the
homicide
6. FLAW: Punishes all homicides w/o proving the relation b/w the
homicide and the perpetrator’s state of mind. Ignores the concept of
determination of guilt on the basis of indv misconduct. Categorized as
1st degree: wrong b/c no premeditation, deliberation and willfulness is
required to be proven – just intent to do the underlying felony. Δ only
allowed to raise defenses to mental element of the felony- not any
about premeditated murder
7. Ct abolishes rule which defines malice as the intent to commit the
underlying felony. Does not have sufficient mens rea to establish the
crime of murder
8. Ct defines MALICE
a. Intention to kill, intention to do great bodily harm, wanton and
willful disregard of the likelihood that the natural tendency of
Δ’s behavior will cause death or harm
Second Half of Semester
CRIM LAW FINAL EXAM OUTLINE
I.
Forcible Rape/Use of force or threat of force
a. History of Rape C/L
i. No to protect women in sexual autonomy, but way to protect a virgin’s chastity
for economic value b/c women owned by father
ii. Cts created procedural and substantive rules try to counter some of the harsh
punishment for rape charge to create rules more difficult for prosecutors to
present charge against alleged criminal
iii. Woman had to resist at the upmost
1. In Rusk – woman would have “consented”
iv. Victim’s testimony could not be the sole piece of evidence against the perp
v. Must be corroborated with other evidence
b. Element of Rape C/L
i. Carnal knowledge of a woman not the rapist’s wife forcible and against her wil
1. Sexual intercourse
2. Force or threat of force
3. Without consent
4. Marital exception
a. Theory: when a woman marries husband, consents to all future
intercourse
b. C/L: woman considered husband’s property
c. Marriage – binds woman and man into one legal entity
ii. Heterosexual – penetration of penis into vagina required
c. MPC
i. Relationship b/w husband and wife is private/preservation of marriage
ii. Shift from victim’s behavior to what perp actually did
iii. Art 213
1. Rape
2. Gross secual imposition
3. Deviant sexual intercourse by force or imposition
4. Corruption of minors and seduction
5. Sexual assult
6. Indecent Exposure
iv. Default Charge: 2nd Degree Rape
v. MPC eliminated “non consent” element
vi. Does NOT required victim to resist
1. What did victim do during an assault?
2. Prosecution has to focus on behavior of perp NOT victim
vii. Aggravated to 1st degree felony if actor inflicts serious bodily injury on anyone
OR if it was a stranger rape (not voluntary social companion and not previously
permitted him sexual liberties)
viii. 3rd degree: gross sexual imposition; acknowledges differently than C/L: coercive
non-violent threats could be force necessary to commit rape
ix. MPC 213.2 – ANY threat that would prevent resistance by a woman of ordinary
resolution (threats of losing job, economic, reputation)
d. Elements of Rape
i. Sexual intercourse
1. C/L: penis into vagina
2. MPC: broader approach to defining
3. What is penetration? Oral, anal, objects
ii. Force or threat of force
1. Physical force
2. Non-physical force
3. Threats of coercion
iii. Rusk v. State
1. 21 yr old went to HS reunion, 3 bars, met attacker, he asked for ride ho,
he took her keys and asked her to come up. She said “if I do what you
want, will you let me go w/o killing me?” He raped her.
2. Force: evidence msut show conclusion that victim resisted and it was
overcome with threats to her safety – no force in this case
iv. Rape victims and resistance
1. Passive resistance
a. Cry – don’t physically resist
2. Controlled reaction
a. Appear in fornt of police officers/in court – don’t present selves
as victims
b. Not crying on stand – present a controlled demeanor
c. Lost control during rape – control self in public
3. Old force
a. Had to be tied to danger of victim or 3rd person
4. C/L threat
a. No physical injury – economic harm ,to reputation - not
substantial enough for requirement under rape
v. MPC: threat was not physical , but was violent. Doesn’t fit in MPC 2nd degree or
1st degree rape category b/c both require threats of physical force. 3rd degree:
gross sexual imposition
vi. Commonwelath v. Berkowitz
1. Girl has martini in dorm, friend straddles her, she says no but keeps
kissing.
2. Statute: person commits rape when by a forcible compulsion, by threat
of forcible copulation that would prevent resistance by a person of
reasonable resolution who is conscious- RESISTANCE NOT REQUIRED
3. Ct found that “saying no” w/o additional action is not sufficient on tis
own to support a finding of force – considers relationship b/w alleged
victim and perp
e. CONSENT
i. C/L: achieves against the woman’s will
1. Consent presumed If legit marriage
2. Statutory rape casesL children under certain age cannot give consent
3. Consent while on drugs in effective
ii. MPC:
1. Eliminated non-consent from rape statutes
iii. Dialogue requirement (college statute)
1. Hard to require spoken consent to each act
2. Against it: studies that when a woman says no, she may actually mean
yes
3. Doesn’t make practical sense
iv. In re John Z
1. CA statute on forcible rape
a. Sexual intercourse accomplished
b. Against will of victim
c. By force or threat of bodily injury
d. It is immaterial at what point victim withdraws consent
e. So long as withdrawal is communicated
f. And he thereafter ignores it
2. Burden of poof in rape case – to prove that initial consent was given
then was withdrawn, then withdrawal was CLEARLY communicated
v. State v. Scherzer
1. Mentally disabled girl
2. Δs argued there was no physical force and that she voluntarily did these
things
3. Aggravated sexual assault
4. When actor uses physical force of coercion or victim is one who actor
knew was mentally defective
a. Couldn’t understand right to refuse to engage in contact with
another
b. b/c of her mental incapacity – unable to give consent.
5. Under MPC
a. 1st: serious bodily injury; stranger rape
b. 2nd: default charge – requires force/threat of force
II.
III.
IV.
c. 3rd: gross sexual imposition; if he knows she suffers from a
mental disorder which renders her incapable of appraising the
nature of her condition
Fraud and Sexual Intercourse
a. Fraud cases:
i. Fraud in inducement:
1. If person acknowledging tand consenting to act- no rape
ii. Fraud in the fact
1. Rape cases can be pursued
iii. Boro v. Superio Ct
1. Held that fraud and inducement – rape case could not be pursued
Statutory Rape
a. Extension of non consent
b. C/L marital exception – consent by marrying someone
c. Should it still be a strict liability crime?
d. Early C/L
i. Not a crime
ii. Adult could have sex with children – not crime
iii. Early 1200s, English cts developed statutory rape
e. If no mens rea requirement – mistake of age NOT a defense
f. Both english common law cts and US juris – rejected repeatedly defenses based on
mistake of age UNTIL Ca in 1964 – dealt with hernandex case
i. Recognized reasonable mistake of age defense
g. Garnett v. State
i. Δ 20, mentally handicapped; 13 yr old girl, said she was 16. He believed her
ii. Statute: If under 14 it is rape – if person performing act is 4 yrs older
h. State v. Yanez
i. Δ18, victim 12 when met; when 13, had sex
ii. 1st degree child molestation, sexual assault if he or she engaged in sexual
penetaration w/ person under 14 years old
iii. Mens rea being applies/ the girl is EXACTLY THE TYPE OF VICTIM statute meant
ot protect
THEFT
a. Types
i. Larceny
ii. Larceny by trick
iii. Embezzlement
iv. False Pretenses
b. C/L
i. Theft is a crime against property and the law sought to protect property
ii. Law of theft hasn’t changed very much from initial stages in C/L
iii. Led to courts application to new, emerging fact patterns
c. Mills
i. Mass has consolidated theft statute
1. w/o consolidated theft statuted, prosecution could face acquittal if they
didn’t charge the correct crime
2. These statutes allow prosecutors not to worry about raising the
incorrect crime
3. Def: Whoever steals, or with the intent to defraud obtains by a false
pretense, or whoever unlawfully and with intent
a. Unlawful (trespassory) taking
b. And carrying away (asportation)
c. Of personal property of another
d. w/ intent to deprive the owner permanently
ii. Δ retired from Boston police force b/c of hypertension, he is granted a penion.
1. Under penion rules, Δ entitled to other income, but amt of pension will
be redcued if extra income above certain limit
2. Δ has private investigation firm
3. Prosecution has larceny charge- Δ says was not charged w/ correct
crime
iii. Embezzlement
1. Δ fraudulently converted to his personal use
2. Property that was under his control by virtue of “trust or confidence”
3. With the intent o deprive the owner permanently
iv. False Pretenses
1. False statement of fact was made
2. Δ knew or believed statement was false when he made it
3. Δ intended that person to whom he made the false statement would
rely on it
4. The person to whom the false statement was made rlied on it, and
consequently, parted w/ the property
d. Larceny by trick
i. C/L
1. Trespassory
2. Taking (taking and intent must occur at same time)
3. And carrying away
4. Of personal property
5. From the possession of another
6. w/ intent to deprive the owner permanently
a. Continuing trespass doctrine: gap filler-ct can find Δ liable for
larceny when original taking did not occur at the same
time/intent to deprive permanently. If taken thereafter, later on
developed the intent
i. Ex. If on the el and person siting across from you is
reading a magazine on design and carrying a package.
She gets off and drops her package. You don’t call out
to her that she dropped it. After she gets off, you take
the package. You may just want to see whats in there.
Inside there is a watch inside with address of watch
repair shop. You want the watch – its gold. Now its
larceny. Original intent was not innocent but it later
develops and coincides with taking
ii. Trick continued
1. Subset of larceny
2. Focuses on the possession element of larceny
3. Extends possession to cover other situations where possession was
achieved by trick or deceit
4. Distinguished from crime of false pretenses b/c
a. Possession not traded
b. Victim intends to give title to Δ
iii. Embezzlement
1. STATUTE – not C/L
a. Intentional
b. Conversion of
c. The property of another
d. By someone who is already in lawful possession
iv. False Pretenses
1. False statement of fact that
2. Causes the victim
3. To pass titled to Δ
4. Δ must
a. Know that statement is false
b. Thereby intend to defraud the victim
5. ***Distinguished from larceny by trick: possession being passed and
victim intends to pass over title/ownership
e. AGGRAVATED THEFT CRIMES
i. C/L
1. Breaking
2. Entering
3. Of a dwelling house
4. At night
5. With the intent to commit a felony therein
ii. Requirement of at night b/c that’s when occupants of dwelling would be
sleeping and less able to defend selves
iii. Modern rule: expanded definition of burglary. Day and night and in structure,
not just home. Any other occupied building and curtilage that surround
someone’s property
f. US v. Eichman
i. Motor oil over armed forces building – didn’t enter 4 walls
g. State v. Thiebeault
i. Entered gardeners house, stole valuables
ii. Guilty of burglary if he enters or surreptitiously remains in a structure, knowing
that he is not licensed or privileged to do so, with the intent to commit a crime
therein
iii. Under C/L: consent was complete defense
1. Breaking: trespass and force
iv. Section 401 Elements
1. Entry
2. Of a structure
3. w/ knowledge that entry is not licensed
4. w/ intent to commit crime w/in the structure
h. Crocker v. State
i. 2 friends have coffee then beer and whiskey – leaves wallet on bed, other guy
takes money and puts money clip back on bed and leaves
ii. Mississippi Robbery
1. Felonious intent
2. Force or putting fear as means of effectuating the intent
3. By the means taking and carrying away the property of another from his
person or in his presence
iii. C/L Robbery
1. Larceny plus 2 other factors
a. Force or threat of force
b. Taking from victim’s immediate person or presence
2. If no force, no robbery
i. Miller v. Superior Ct
i. Pants and wallets gone; Δ argues that bc victim wasn’t there, not robbery
ii. CA Robbery
1. Felonious taking of personal property in the possession of another from
his person or immediate presence and against his will, accomplished by
means of force or fear
a. Theft
b. Taking from
i. Gaining possession of V’s property
ii. Carrying it away
c. Person/immediate presence
d. With force
any force used above and beyond just taking
property away from the victim will count as force, no matter
how slight
V.
DEFENSES
a. Failure of proof defense – Case in sheaf
i. Mistake: disprove elements of every crime (intent/mens rea)
ii. Δ could show a reasonable doubt about element of a crime
b. Affirmative defenses
i. Δ si saying: yes I can see that prosecutor has met burden, but Δ should escape
prosecution, receive acquittal b/c of some other reason to justify his action that
would excuse his conduct
ii. Δ bears burden f proof
1. Standard of proof: preponderance of the evidence that affirmative
defense applies
2. Then burden shifts back to prosecution to disprove elements of defense
beyond a reasonable doubt
iii. Difference than case in sheaf b/c al lΔ had to prove was reasonable soubt as to
any one of elements of offense where affirmative defense – evidence that each
of the element s satisfied
c. Justification Defenses
i. Factors
1. Focus on the ACT- Δ is going to claim that he did the right thing given
the circumstances
2. Given a choice, society would have preferred Δ’s actions – justify their
actions
3. When non-aggressor is threatened w/ harm/deadly harm, and nonaggressor uses deadly force to repel attack, makes sence.
a. Δ was justified in actions taken
ii. Views
1. C/L: would be acquitted
2. Today: if presumed justified accomplices justified, all acquitted
iii. Self-Defense
1. Triggering condition
a. Honest or reasonable belief that Δ is threatened with imminent
force
2. Necessity (Δ’s act), imminence (threat of harm), proportionality (Δ’s
response to threat)
3. Δ cannot have been the initial aggressor (clean hands)
4. C/L: person claiming self defense could not have first started conflict
5. Jury has to believe Δ’s story
6. Culverson v. State
a. Objective standard. Jury evaluates self-defense claim under
reasonable person standard
b. Found No Duty to Retreat
7. Self Defense Rules:
a. “John Wayne” Rule: in traditional common law, there was a
duty to retreat, but when there were new areas w/o complete
law enforcement structure – in development of states – no duty
to retreat
b. Minority of jurisdicitions: duty to retreat – on East coast –
unless you are attacked I your own home. Castle Doctrine – also
in workplace
8.
C/L: impose object standard, jury looks at reasonable man
a. Western states: no duty to retreat
b. Eastern: old C?L duty to retreat unless at home/workplace
9. Review: Self Defense:
a. Triggering condition
i. Reasonable belief in imminence of threat of unlawful
force
b. Necessity, proportionality
i. After condition appears, Δ justified in using force as long
as Δ believes force is necessary to repel attack and
proportional to force being used
c. Δ cannot have been the initial aggressor (clean hands)
i. Δ could not have been initial aggressor
d. Duty to Retreat??
i. Majority: no duty to retreat
ii. Minority: duty to retreat when faced with attack- Castle
doctrine- when attacked in own home/workplace
iv. Escalation of Force
1. Can retain self defense claim had withdrawn and communicated this, if
other person continues to pursue him after original aggressor who had
withdrawn leaves and kill him.
a. C/L: still use self- defense
b. MPC: use of deadly force is not justifiable if
i. The actor with the purpose of cause death or serious
bodily injury provoked the use of force against himself I
the same encounter
1. Initial aggressor requires something extra than
starting a fight- he has to act w/ a purpose of
causing death or serious bodily injury
2. Person claiming self-defense will retain self
defense as long as he does no intend death or
serious boidly injur to provoke the attack
c. Even though MPC/C/L approach seem different – actually
similar
i. MPC: tries to take factual questions outside the jury’s
hands and tries to specifies when Δ retains claim to self
defense
ii. MPC: takes “subjective” approach – when questions
about fact go to a jury, jury should stand in shoes of Δ
and make determination as to reasonableness of Δ’s
actions for Δ’s perspective
iii. MPC: has objective element: crime that requires
knowledge/purpose – subjective standard applies;
crimes that carry negligence/recklessness, objective
standard applies
iv. C/L: subjective approach: in determining what a
reasonable person would have done in those
circumstances, jury can consider the Δ’s own
experiences, circumstances but their mental also
2. People v. Goetz
a. Man shoots 4 boys on subway
b. Did he reasonably believe that it was an attempted robbery?
i. Ct found that standard had to be objective
3. State v. Simon
a. Man thinks all asian men know martial arts
b. Ct finds: a reasonable belief implies both a belief and the
existence of facts that would persuade a reasonable man to the
belief
c. HYPO: Simon does it again, would psychological beliefs from
first trial be invalid?
i. Under C/L: info would be admissible. Objective standard
is side-by-side with subjective standard. Need objective
facts presented to convince a jury that reasonable
person would have believed it
v. Procedural Question
1. State v. Stewart
a. Husband kept saying she didn’t need to clean b/c she wouldn’t
be there much longer. Wife found husband’s loaded gun and
hid it. When he slept, she shot it. She was a victim of domestic
violence
I.
II.
III.
b. Issue: whether or not as a matter of law, statutory justification
can be given when there is no evidence of a deadly of imminent
threat in regards to killing/ self defense
c. Cycle of violence
i. Initial building of tension and violence
ii. Explosion
iii. Honeymoon
d. Δs long cycle of abuse – needed to choose moment of lull when
he wasn’t abusing to sotp it
e. Batter Omen Syndrome/Social Framework testimony
i. Explain what is on Δs mind when it happened to give
jury insight into why the imminence of harm ma have
been viewed. Jury should have standard of
reasonableness
ii. Must prove that belief is reasonable
Imperfect Self Defense
a. Δs belief in the need to take protection action is honest but unreasonable
b. V wrongfully escalates the conflict and instead of retreating, Δ responds
with deadly force
c. Prima facie defense b/c it negates te mens rea of the crime
d. Rational: person who acts with onest belief is less culpable than person who
acts with intent to kill
e. If someone attacks w/ nondeadly force but Δ escalates deadly force and kills
V.
f. From murder involuntary manslaughter
SD and Imperfect SD
a. Can be raised at the same time in trial
b. Mitigates punishment
Defense of Others
a. Steps
i. Triggering condition
1. 3rd party is under imminent and unlawful attack
ii. Necessity
iii. Proportionality
iv. Honest and reasonable belief
1. That force used was necessary to protect 3rd party
from imminent and unlawful threat
b. Different than C/L:
i. Originally to claim DoO as complete defense, Δ had to have
close relationship w/ 3rd party – related, employer,
employee
ii. Now, this relationship requirement is gone
vi. People v. Young
1. Act at Peril Rule
a. Δ who came ot rescue of 3rd person could not claim
defense of others unless 3rd party had valid claim of self
defense
b. Has now fallen out of use
2. 3rd party’s rights only go as far as initial victims. If V doesn’t
have valid SD claim, person coming to rescue can’t claim DoO
3. If gen intent crim:
a. Δ also needs to show that mistake was a reasonable
mistake of fact in GF and also satisfied a moral wrong
test
i. Not malicious sense
vii. People v. Brown
1. Landscaper who didn’t get work done in time
2. Deadly force may be used against aggressor who brings
imminent deadly force
3. Reasonable Expectation Test
a. What a reasonable person would expect another
rperson to do – ex walk up into the close porche – like a
girlscout. – can’t claim defense a habilitation
viii. People v. Ceballos
1. Deadly force can be used to protect sel for another from threat
of deadly force but may not be used when only purpose is to
protect your property
ix. People v. Quesada
1. Stolen stereo – was burglary forcible and atrocious?
x. Tennesse v. Garner
1. Police shoot fleeing 8th graded.
2. C/L old rule: both citizens and police could use deadly force to
sotp of apprehend a fleeing felon
3. Ct uses balancing test:
a. Public interest and effective law enforcement v
b. Suspects right to live
xi. Necessity
1. Elements
a. Balance of harms
i. Harm Δ seeking to avoid greater than harm Δ made
b. No legislative intent to the contrary
i. Δ took an action that has not already been anticipated
and rles out by legislation
c. Causal connection
i. b/w act and harm Δ was seeking to avoid
d. No effective legal alternatives
e. Clear and imminent danger
f. Clean Hands
i. Δ did nto creat the harm that he is facing
2. MPC
a. 3.02(1)
b. Conduct that actor belives to be necessary to avoid a harm or
evil to himself or to another ris justificalbe provided that
i. Harm to be avoided by such conduct is greater than that
sought to be prevented by the law defining the offnse
ii. Neither Code nor law defining offense provides
exceptions/defenses dealing with specific situation
involved and
iii. A legislative purpose to exclude the justifiaiont claimed
does not otherwise plainly appea
c. Doesn’t require imminence of threat
d. MPC does not set out restriction
i. No explicit restriction
ii. Possible in MPC juris for homicide to be a necessity NOT
in C/L
3. US v. Shoon
a. Political protest in IRS against El Salvaor policy
b. Appellate Ct: direct/indirect civil disobedience:
i. Indirect: violating law that is not object of protest
ii. Direct: protesting law by breaking that law
iii. This case is indirect b/c they aren’t breaking law about
El Salvador –
c. Elements of defense
i. Choice of evils and chose lessor
ii. Acted to prevent harm – imminent hardm
iii. Reasonably anticipated causal relationship b/c conduct
and burden AND
iv. No legal alternatives
4. Commonwealth v. Hutchins
a. Δ raises necessity
b. RULE: Δ has to meet burden for necessity. Crime committed
under pressure of imminent danger may be excused if harm to
be avoided exceeds harm committed
c. Δ can expect thtat legal actions will be affected as cause
d. Has no legal alternative
e. Legislature has not acted to preclude choice
f.
ELEMENTS
i. Competing Harms
1. Hastened death
2. Wants to avoid harm by smoking marijuana to
alleviate symptoms
ii. Clear and imminent danger
iii. Causal connection
iv. No legal alternative AND
v. No legislative intent to the contrary
g. Balance of harms: societal
5. MPC
a. Allows defense of homicide crimes
b. Blanacing harms
d. Excuse Defenses
i. Factors
1. Whether than focusing on the act- focus on the ACTOR
2. Whether or not individual is blameworthy
3. Insanity
4. C/L: eliminate possibility to be put to death
5. Today: considered personal to the actor, accomplice may not be
acquitted
6. Today: issue comes into play when there is accomplice liability
ii. Duress
1. Purpose
a. Sometimes orindary ppl placed in extraordinary circumstances
b. Allow leeway for these ppl
i. View Δs actiosn while they were illegal that it was
better than other chioces
2. C/L Elements
a. Δ acted in response to an imminent thrat of death or serious
bodily injury
b. Δ had a well-gorunded (reasonable) fear that the threat would
be carried out unless she committed a specific crime
c. Δ had no reasonable opportunity to escape the threatened
harm
3. Distinction
a. Necessity: imposed by nature/situational/general
i. Had to break into cabin to get out of blizzard
b. Duress: threat coming from specific person/individual
4. C/L
a. When wife committed crime in front of husband, husband was
provoking the duress, claim of duress
b.
c.
5. MPC
a.
b.
c.
Limited duress defense, Δ threatened himself
Δ’s family threatened
Duress is affirmative defense of homicide
Threat doesn’t need to be imminent
Responsible firmness in his situation would have been able to
resist
6. Elements of Duress Defense
a. Threat has to be imminent
b. Δ has well grounded fear threat to be carried out
c. No reasonable opportunity to escape
d. Δs must submit to proper authority after attaining a position of
safety
7. State v. Hunter
a. Hitchhiker is made to do crimes with ppl who pick him up
b. MPC: eliniates C/L presumption: It is not a defense that a
woman acted on command of her husband unless she acted
under such coercion as would establish a defesne under this
Section
iii. Insanity
1. Cts recognizes
a. That some ppl don’t meet basic requirements of agency to be
held responsible for acts, criminal or otherwise
b. Ppl acquitted b/c of insanity – law recognizes that although Δ
who claims insanity shouldn’t be held responsible for actions,
they have nonetheless committed a crime
c. Ct recognizes that act was illegal, but there is some other
reason to excuse their actions
2. Early C/L
a. Reasons why we should not imprison those who are mentally ill
b/c its better ofr ppl who are mentally ill to be in specialized
institutions where illness can be treated
b. Putting mentally ill in jail, not treated, then back out into society
3. Retribution
a. When someone does something wrong, someone must pay
b. Why doesn’t it justify putting illegally insane in jail? Don’t have
mental state required to do criminal act
4. Skepticism
a. People claim insanity al lthe time, juries don’t believe, will they
get off scott free?
5. M’Naghten Test
a. Rejected Right/Wrong test that was in England at the time
i. Found sometimes effects in your mind can cloud your
reasoning
b. TEST: AT TIME of committing the act, party accused was
laboring under such defect of reasoning of disease of mind so
as not to know the nature and the quality of the act. OR If he
did know, that he did not know right from wrong.
i. Focuses on cognitive aspect in people’s minds –
whether they could distinguish from right and wrong
c. Limitations:
i. Doesn’t give jury opportunity that while some ppl can
tell the difference b/w right and wrong, can’t control
their actions
ii. Cts found that when applying the strict absolute
right/wrong test –when expert witness cames to testify
on behalf of Δs, psychiatrists were committing perjury
b/c had to fit testimony into small scale box. Knew they
may know right/wrong, but knew they were still insane
1. Had to bend professional opinion to fit into
small scale box
6. Irresistible impulse test
a. Ground for acquittal
b. When Δ is found to have been driven by an irresistible impusle
to commit his offense
i. Shortcoming: sees things in obsolute, implies that Δ can
only be legally insane when he acts in response to a
sudden, emotional outburst
ii. Class of Δs that can’t benefit include: mentally ill ppl
after a long time of deluding, then act
7. Durham or “product test”
a. Δ is not criminally responsible if his unlawful act was a product
of metnal disease or mental defect
i. Revolutionary b/c it eliminated right/wrong dichotomy
ii. Allowed experts talk about things b/w shades of black
and white
iii. Judgment substitutued by experts who would tesify at
trial – this was troubling to many b/c took away juries
power at trial
8. MPC test
a. Cts decided this approach was best
b. MPC recognizes NEW research – best approach although not
perfect.
i. **It provides a workable definition that is easy for lay
people
ii. Ct rejects knowledge from MNaughten test
iii. MPC drafters are ateempting to improve upon
knowledge requirement from MnAughten
iv. Recognizes real fact that while some mentally ill poepl
may be able to know what they are doing is legally
wrong, it doesn’t affect their understand of moral
wrongness of their actions
v. Improvemnet from irresistible impulse test/follows
product test b/c it allows experts to give FULL testimony
vi. MPC returns power to the jury
vii. Metnal disease do NOT include abnormality manifested
only be repeated criminal or otherwise antisocial
conduct.
1. Ex. just b/c ur a drug addict, ur not excused
9. State v. Crenshaw
a. Δ thought wife was unfaithful, beat and stabbed her 24x,
cleaned off fingerprints
b. Knowledge of Δ at the time of the act
i. Δ knew legal wrong instead of moral wrong
c. To Satisfy the McNaughten Test
i. Prove mental disease
ii. Unable to prove right/wrong
iii. Insane AT TIME committed the act
d. Insantiy will allow complete acquittal
iv. Diminished Capacity
1. As a defense
a. Not affirmative defense
b. Case in chief defense – if can’t prove all elements, it doesn’t
work
i. If can’t prove that they were insane at the time fo the
unlawful act, can still seek that they were suffering from
some mental illness that could acquit them and prove
case for acquittal or judgment for lesser included crime
c. Prevented from having mens rea/awareness necessary to fulfill
essential element of the crime
2. Dan White “Twinkie Defense”
a. Partial responsibility
b. Some mental defect not amounting to insanity, he or she is less
blameworthy than others who didn’t suffer
c. High blood sugar = mental defect
v. Infancy
1. In re Devon T
a. 13 yrs old, Grandma belived some students had been using her
house to sell drugs. Argued b/c under 14- still infant and he
didn’t know what he was doing. No crim intent
2. Presumption of doli incapax for minors
a. 0-7 y.o.: 0% will possess cognitive capacity
b. 10 years, 6months: 50% will possesss cognitive capacity
c. 14 years old: 100% will possess cognitive capacity
vi. Intoxication
1. Difference b/w voluntary and involuntary intoxication
a. Voluntary at C/L: could be a defense if a specific intent crime
i. Intend to cause harm
ii. Gen intend: intend to do act that causes harm
iii. Now, defense is aggravated by statute
iv. MPC:
1. Intox is not an affirmative defense
2. Only be used as case-in-chief defense to negate
mens rea
v. Most juris got rid of it b/c it was too easy to escape
liability
b. Involuntary
i. Allowed to be applied to gen and spec intent crimes
1. Gen: requires prosecutor prove that Δ had
intent to commit underly acts
a. Hard to prove you coudlm’t form
capacity that you did not intend to act
ii. Temporary Criminal Insanity
1. Affirmative defense that Δ must prove with
preponderance of evidence
2. People v. Register
a. Shot and killed 3 ppl in a bar – said b/c he was drunk
b. Δ charged with Deprave Heart Murder
c. Recklessness, awareness that there is a substantial, unjustifiable
ris,, gross deivaiton that a law abiding person in actor’s situation
would realize
3. Negligence under MPC
a. Substantail risk, unjusifibable risk that Δ should be AWARE of
gross deviation reasonable person would in actor’s siutaiton
b. Prosceution doesn’t need to prove that Δ is aware, just that he
should have been
4. Montana v. Egelhoff
VI.
a. Δ camping and eating mushrooms, very drunk, 2 ppl in front
seat here killed, he was in back seat
5. Smith
a. Woman pulled over for DUI – arged b/c on pain meds didn’t
know alcohol would have such big affect. Ct found she was
guilty b/c she participated in self intox
ATTEMPT (inchoate offenses)
a. Attempt, solicitation crimes, conspiracy, stalking: NOT COMPLETED ACT
b. Thought-act continuum
i. State needs a bad act resulting in social harm to hold someone crim liable =
can’t punish for fantasy
ii. Attempt: police stop before offense is finished, prevent act before crime is
done
iii. Relax actus reus requirement for public safety
c. C/L
i. Intent to commit a crime
1. Mens rea
ii. The execution of an overt act in furtherance of the intention
1. Actus rea
iii. Failure to consummate the crime
1. Failure
2. If targe offense compelted, then charged for that
d. Every juris has an attempt statute – broadly written to cover all crimes
i. If attemped crime is complete, attempt crime merges w/ targer offense and Δ is
charged w/ both
ii. If thwarted from target crime, just charged w/ attempt – more lenient
punishment
iii. No common test- each juris tries to describe at what state acts go from
prepration to completed social harm
e. MPC
i. Punishment for attempt crimes is on par with target offense
ii. Crim who acts w/ bad thoughts should be punished as severel as person who
completes the act
f. Staples
i. Mathematician turned bank robber
ii. People v. Staples- bank robber wannabe. The attmpet is the direct movement
toward the commission after preparations are made. The act must reach far
enough towards the accomplishment of the desried result to amount to the
commencement of the consummation.
iii. Equivocality Test
1. Where intent to commit substantive offense is clearly established, acts
done toward the commission of the crime may constitue an attempt
2. Benefits
3. Disadvantages
a. Difficult to say what is unequivocal
iv. Ct sasy that Δ was attempted bank burglar
g. Rizzo
i. AN act done with an intent to commit a crime and tending but failing to effect
its commission is an attempt to commit that crime
ii. Proximinty Test
1. Only acts “so near’
2. That in all reasonable probabilyt the crime would have been committed
but for a timely interference
3. Must be “dangerous proximity to success”
h. Latraverse
i. Car dealer revenge
ii. MPC
1. Substantial Step Doctrine
a. A person is guilty of an attempt to commit crim if he purposely
does or omits doing anything which constitutues a substantial
step in the course of conduct planned to culminate in his
commissino of the crime
b. Conduct is not a substnail step unless it is strongly corroborative
of the actor’s crim purpose
c. Δ who completely and voluntarily abandons in his crim purpose
is not guilty
d. Abandonment is not complete and voluntary if
i. It is motivated by unanticipated difficulties or resistance
or circumstances that increase the prob of detection or
apprehension OR
If Δ has decided to postpone his endeavors until
another time or substitute another victim
iii. Difference b/w C/L
1. Looks at steps that have been done and not whats left to be done
i. Mens Rea for Attempt
i. Harris
1. Victim accused of infidelity – Δ aims gun toward victim
2. Can’t prove attempted murded w/o showing specific intent of result of
murder
ii. HInkhoouse
1. Contrast to Harris
2. State v. Hinkhouse – HIV case – A person is guilty of attempting to
commit a crime when the person intentionally engages in conduct
which consitutues a substantial step towards commission of the crime.
VII.
VIII.
Commits assault in 1st degree when person intentionally causes serious
physical injury to another rby means of a deadly or dangerous weapon.
iii. Intent to commit a crime
iv. Specific intent crime
1. In order to prosecute successfully, Δ msut have intended the result from
completing the targe offnes
j. Actus Reus for Attempt
i. Equivocality Teset
ii. Proximity Test
iii. MPC Substnail step test
1. Different from C?L test
2. Concerned wth what Δ did toward completetion of crime
Impossibility
a. C/L
i. Pure Legal Impossilbity
1. Where Δs intented act is NOT in fact a crime (Hypo 7)
ii. Hybrid legal Impossilbiyt
1. Where Δ is mistaken about status (Hypo 8)
iii. Factual Impossibility
1. Includes instances wehre Δ is mistaken about a face relevant to
commission of target offense
2. If Δs belief abou relevant fact had been correct, would he have
compelted crime?
3. Not a defense to attempt
iv. Inherent factual impossibility
1. Defense to attempt
2. A wants B’s arm to fall off, so A gets a voodoo doll and pulls of the doll’s
arm. Can’t be prosecuted for attempted assault b/c means could never
be successful for the crime
b. US v. Thomas
i. 3 men accused of attempted rape of dead woman
ii. Said woman already dead, can’t rape – factually not a defense, legally it is a
defense
Accomplice Liability (Complicity)
a. When one intentionally assist another in the commission of a crime, then that person
can be held accountable as an accomplice
b. MPC
i. When committed by own conduct or by the conduct of another person for
which he is legally accountable or both
1. When acting with kind of culpability that is sufficient for commission of
offense, he cause an innocent or irresponsible person to negate in such
conduct OR
c.
d.
e.
f.
g.
2. He is made accoutnablef or conduct of such other person by the Code
or toehr law defining offense OR
3. He is an accomplice of such ther person in the commission of tan
offense
Terminology (C/L distinctions imp)
i. Principal in the 1st degree
1. Person who committed the acts or used an innocent instrumentality to
perform the acts
2. Innocent instrum: a person who is for some reason incompetent or not
culpable, trained animal
ii. Principal in the 2nd degree
1. Intentionally assists in the commission of a crime and is present when
the principal actually commits the crime
2. Present @ scene of the crime
iii. Accessory before the fact
1. Intentionally assists in commission of the crime but not present when
crime Is committed
2. Ex. someone who purchases guns for bankrobbery but not there
iv. Accessory after the fact
1. Intentionally assists in the escape/evasion from trial
v. Aider-and –abettor
Merger (of criminal liability)
i. Prin in 1str
ii. Pirn in 2nd
iii. Accomplice before fact
iv. NOT accomplices after the fact
v. Can all be held liable as Principals
Actus reus
i. Mere presence is NOT enough to satisfy
ii. Accomplice msut somehow assist the principa;
iii. Any assistance besides mere presence is enough
Pace
i. C/L
1. Completely failed attempt to aid is NOT sufficient for accomplice liability
ii. MPC
1. With the purpose of promoting or facilitating the commission of the
offense he
2. Aids or agrees or attempts to aid such other person in planning or
committing it
Parker
i. 2 types of intent: Accomplice must
1. Intend to assist AND
2. Intend that P1 commit the target offense
h. Wilson
i. Feigned accomplice defense
1. Δ: yes, I intended to help Δ boost him into store to steal something but I
never really intended to assist him. My real intent was to catch him in
the act b/c he stole my watch earlier