Professional Documents
Culture Documents
Criminal Law Outline
Criminal Law Outline
Criminal Law Outline
Purposes of Punishment
Punishment suffering purposely inflicted by the state because one of its laws was violated.
It connotes the blaming and stigmatizing of the perpetrator.
Utilitarian
We punish only to the extent that it benefits society.
Forward-looking seek to justify punishment on the basis of the good consequences
it is expected to produce in the future.
Punishment itself is an evil because it inflicts harm, so we must punish only to the
extent that it achieves some good:
Deterrence
Specific deterrence D may decide not to commit future crimes.
General deterrence Potential perpetrators learn of Ds punishment and
decide not to commit crimes, instills fear.
Jeremy Bentham, pg. 92 When a man perceives that pain may be the
consequence of an act, he will be prevented from performing it if the
magnitude of that pain is greater than the magnitude of the pleasure or good
he expects to be the consequence of the act.
Paul Robinson, pg. 93 For punishment to deter violators, three prerequisites
must be satisfied:
1) Potential offender must know the rule,
2) Must perceive the cost of violation as greater than the benefit
3) Must be able and willing to bring such knowledge to bear on his conduct
decision at the time of the offense.
If punishment is too high, offenders may commit more severe crimes (kill all
the witnesses) because they are already subject to the highest possible
punishment, pg. 94.
Incapacitation
Disables criminals ability to act again (usually by imprisonment).
John DiIulio, pg. 102 balances societal cost of keeping criminal locked up
and preventing the crimes he would commit if he was out in the community.
Jacqueline Cohen, pg. 103 More cost effective strategy would be to target
offenders who are most likely to commit serious crime to longer periods of
incarceration, but there are ethical concerns to this approach:
1) Punishment should be deserved, and two people who have committed the
same crime deserve equal punishment.
2) It is unfair to punish people for crimes they have not yet committed, and
might not commit if released.
3) Many variables that would be considered to determine offenders who will
likely have higher rates of recidivism have the effect of discriminating
against the poor and non-white.
Rehabilitation
Michael Moore, pg. 98 The ideal that we should rehabilitate offenders so
that they can lead flourishing and successful lives is paternalistic, allocates
scarce societal resources away from more deserving groups, and recasts
punishment in terms of treatment, which allows moral blindness.
Robert Martinson, pg. 99 Some programs do reduce recidivism for some
offenders under some circumstances.
Retributive
People who do wrong acts that inflict harm on society deserve punishment.
Backward-looking seek to justify punishment on the basis of the offenders
behavior in the past.
Immanuel Kant, pg. 80 the undeserved evil which any one commits on another is to
be regarded as perpetrated on himself, principle of equality requires equal retaliation.
Michael Moore, pg. 81 punishment is justified by the moral culpability of those
who receive it, we are justified in punishing because and only because offenders
deserve it.
H.L.A. Hart, pg. 82 it appears to be a mysterious piece of moral alchemy in which
the combination of the two evils of moral wickedness and suffering are transmuted
into good.
Herbert Morris, pg. 82 punishing criminals restores the equilibrium of benefits and
burdens by exacting the debt that they owe to society.
Regina v. Dudley and Stephens, pg. 73 (Starving men lost at sea ate companion) the
absolute divorce of law from morality would be of fatal consequence, killing
someone to save your own life when they pose no threat to you is murder, sometimes
there is a duty to die. But a reasonable person would have done the same thing, and it
is impossible to deter someone on the brink of death because dying is worse than any
other punishment.
Actus Reus
Martin v. State, pg. 182 (D convicted of being drunk in public, but was taken into
public by police, so conviction overturned)
Broad reading of Martin all elements of the crime must be voluntary
Narrow reading of Martin only the trigger element needs to be voluntary, but its
difficult to say which the trigger element is.
MPC 2.01, pg. 1081 A person is not guilty of an offense unless his liability is based
on conduct which includes a voluntary act (at least one) or the omission to perform
an act of which he is physically capable. The following are not voluntary acts:
1) A reflex or convulsion
2) A bodily movement during unconsciousness or sleep
3) Conduct during hypnosis or resulting from hypnotic suggestion
4) A bodily movement that otherwise is not a product of the effort or determination
of the actor, either conscious or habitual
When not self-induced, unconsciousness is a total defense.
People v. Newton, pg. 184 (D shot cop after being shot in the stomach and going into
a reflex shock condition)
Acts done while sleepwalking are not voluntary.
Cogden, pg. 188
D is liable if he had knowledge of potential unconsciousness and consciously
disregarded the risk (voluntary act requirement can have an expanded time frame)
People v. Decina, pg. 189 (D knew he was subject to epilepsy and drove anyway,
ended up having seizure and killing someone)
Habitual action done without thought is voluntary action.
Policy
MPC Commentary law cannot hope to deter involuntary movement or to
stimulate action that cannot physically be performed.
If D did not voluntarily commit a wrong, then he did not intend to commit a
wrong and should not be punished.
Omission Liability
D is not guilty of a crime for a failure to act even if the failure permitted harm to
another, the omission is morally reprehensible, and D could have acted with no risk to
personal safety unless:
1) D had a legal duty to act
2) The omission was the cause of the harm
3) D had the capacity to act
Simple omission liability breach of statutory duty to act (supposed to register your
gun, but you dont)
Complex omission liability commission by omission, statute criminalizes causing
harm and you cause harm by failing to act (crime to cause child abuse, and you dont
feed the child)
Legal Duty
D has a legal duty when:
1) A statute imposes a duty to care for another (good Samaritan laws)
Mens Rea
For liability, actor has to commit actus reus with a particular state of mind (mens rea).
ID material elements (ex. Burglary)
1) Conduct act or omission (enters and remains in a building unlawfully)
2) Result (none)
3) Attendant circumstances any other aspect the statute requires for conviction (building is
inhabited) (Specific intent: with intent to commit a felony therein)
Intent
1) General only requires proof that actor committed actus reus with a culpable or
blameworthy state of mind
2) Specific requires proof of a particular state of mind (intent to commit an act not part of
the actus reus, special motive in committing the actus reus)
Purposely and knowingly are considered to be intentionally.
The prescribed culpability requirement applies to all elements unless a contrary purpose
plainly appears.
MPC Mens Rea Terms when the statute does not give the mens rea, the minimum
requirement is recklessness.
Purposely MPC 2.02, pg. 1082
A person acts purposely with respect to a material element of an offense
when:
1) If the element involves the nature of his conduct or a result thereof, it is
his conscious object to engage in conduct of that nature or to cause such a
result
2) If the element involves the attendant circumstances, he is aware of the
existence of such circumstances or he believes or hopes they exist
Knowingly MPC 2.02, pg. 1082
A person acts knowingly with respect to a material element of an offense
when:
1) If the element involves the nature of his conduct or the attendant
circumstances, he is aware that his conduct is of that nature or that
such circumstances exist
2) If the element involves a result of his conduct, he is aware that it is
practically certain that his conduct will cause such a result
Recklessly MPC 2.02, pg. 1082
A person acts recklessly with respect to a material element of an offense
when:
1) He consciously disregards (subjective) a substantial and unjustifiable risk
that the material element exists or will result from his conduct.
2) Risk must be such that disregarding it involves a gross deviation from the
standard of conduct that a law-abiding person (objective, reasonable
person) would observe in the actors situation (subjective as to situation)
If D considered the risk and unreasonably decided that it would not occur,
there is no recklessness.
Regina v. Cunningham, pg. 214 (D pulled gas meter off the wall to get the money
out, and it released a gas that went through the wall and killed a neighbor
conviction overturned because malice requires actual intention to do the
particular kind of harm that in fact was done or recklessness as to whether such
harm should occur or not)
Negligently MPC 2.02, pg. 1082
A person acts negligently with respect to a material element of an offense
when:
1) He should be aware (objective) of a substantial and unjustifiable risk that
the material element exists or will result from his conduct
2) Risk must be such that the actors failure to perceive it involves a gross
deviation from the standard of care that a reasonable person (objective)
would observe in the actors situation.
3) Must consider nature and purpose of conduct and circumstances known to
the actor (subjective)
Strict Liability
Strongly disfavored, not applicable except for felony murder and sex offenses
with victims under 10 years old.
Regina v. Faulkner, pg. 216 (D went to hold to steal rum and lit a match to see
better, and the rum caught fire and destroyed the ship charged with maliciously
setting fire to the ship conviction overturned because you cant bootstrap the
mens rea from one offense to another)
Policy
Retribution Were calling D a criminal, so he should have to be aware that he was
doing something bad at the time to deserve punishment.
Deterrence its difficult to deter someone from taking risky behavior if it didnt
occur to them that it was risky.
Deterrence punishing negligence gives an incentive for people to be more aware of
their behavior.
The common laws mens rea terms are often contradictory and confusing, so we
should follow the MPCs concept of mens rea.
Bootstrapping is unfair because D is already being punished for the act he had the
mens rea for.
Bootstrapping is fair because D was doing something morally wrong and has general
blameworthiness.
Homicide
1st Degree Murder vs. 2nd Degree Murder
1st degree murder is an intentional killing that is willful, deliberate, and premeditated.
2nd degree murder is an intentional killing that is not willful, deliberate, and premeditated.
Maher v. People, pg. 393 (D sees V enter woods with Ds wife, follows V to
saloon, Ds friend says they committed adultery, D shoots V, reversed and
remanded)
Words CAN constitute provocation better to let the question of whether the
provocation was reasonable go to the jury because it is a question of fact, and
the jury is in a better position to decide whats reasonable for an ordinary
man.
Maher v. People, pg. 394
Maher is more like an excuse approach.
There are many things that are provoking that we might not anticipate, so we
should put it to the jury and let them decide whats reasonable, not restrict it to
the box.
Times and cultures change, so what might have been reasonable for the box a
long time ago might not be valid now, and vice versa.
Maher dissent: the provocation itself must be given in Ds presence policy
reasons of protecting innocents (unless you actually see it, its hard to be sure
it happened because someone could be lying).
Cooling Time
Too long of a lapse of time between the provocation and the act of killing will
render the provocation inadequate. Pg. 399
Even if D hadnt cooled, but a reasonable person would have cooled, theres
no provocation objective standard.
Evidence of a prior argument or continuing dispute is insufficient to warrant a
voluntary manslaughter instruction in the absence of some sort of instant
incitement.
U.S. v. Bordeaux, pg. 399 (D told that V White Bear had raped his mother 20
years earlier. D killed V later that day, guilty of second degree)
Rekindling:
Something triggers the passion that would have been released before
cooling time.
Doesnt have to be legally adequate provocation in itself.
Has to be conduct on the part of the victim.
Ds heat of passion resulted from a long-smoldering prior course of
provocative conduct by the victim, the passage of time serving to
aggravate rather than cool Ds agitation.
People v. Berry, pg. 400 (provoked D waited for V in her apartment
for 20 hours before killing her, entitled to manslaughter instruction)
No Rekindling:
The legally sufficient provoking event had occurred two weeks before
the killing, and the interval constituted adequate cooling time.
State v. Gounagias, pg. 399 (V had raped D and bragged to others, the
others taunted D and he finally killed V, guilty of second degree)
Prior suspicions of infidelity provide adequate cooling time.
Rex v. Scriva, pg. 401 (Father sees driver injure daughter, goes after driver
with a knife and stabs bystander who tries to restrain him, guilty of second
degree)
Eliciting Provocation
If D elicits the provocation, he may still be able to get the defense.
Regina v. Johnson, pg. 461 (D threatened and insulted V, V pinned and
punched D, D stabbed V)
The Reasonable Person in Provocation
See cultural defense
Only applies for Maher jurisdiction
Objective Standard not particularized at all, may ignore the whole reason
for the provocation.
Bedder v. D.P.P (Prostitute taunts man about his impotence and he kills her
the reasonable person is a person who is not impotent)
Subjective Standard may make it too easy to find manslaughter.
D.P.P v. Camplin, pg. 408 (Abuser taunts boy about abuse, and boy kills him
jury should not apply characteristics that go to the capacity for self-control,
but should apply characteristics that go to the gravity of the provocation.
Perhaps a subsequent category of what you can actually control?)
Regina v. Morhall, pg. 409 (Reasonable glue-sniffer an addict with ordinary
powers of self-control, reversed)
Regina v. Smith, pg. 409 (Clinically depressed alcoholic killed friend who
stole from him jury should no longer be instructed about the reasonable
man with an array of unreasonable eligible characteristics, instead they
should look at the totality of the circumstances and whether D had a
characteristic that affected the degree of control society could have
reasonably have expected of him that it would be unjust not to take into
account)
Sexual Misrepresentation
Not in the box, but D could argue its like rape.
Could get to the jury on a Maher standard.
D would have to prove other elements of provocation, but it would be legally
adequate if:
1) D engaged in a sexual act, while in a reasonably deceived state of mind
2) concerning a fact reasonably material to consent, and
3) which would be likely to cause a reasonable person severe mental or
emotional crisis upon discovery
Reasonably deceived is subjective and objective because D has to actually
be deceived and a reasonable person under the circumstances would have
been deceived.
The Araujo Case (V was man dressed as woman, had sex with Ds, Ds beat
and killed V when his sex was discovered)
Policy Arguments
Provocation defense is bad for women because men are more likely to be
provoked, kill them, and get the defense, especially with infidelity.
Juries cannot be expected to enforce a standard of reasonableness which
adequately protects a womans life because they view the world through the
lens of cultural construction that accepts masculine violence.
Emily L. Miller, pg. 397
Jury may blame the victim and instead of deciding whether the provocation
was legally adequate, decide whether V was a bad person who deserved to
die.
Anger cannot ethically afford any ground for mitigating deliberately violent
action, but a killing in anger produced by serious wrongdoing is less wicked
and therefore deserving of less punishment than a killing out of greed, lust,
jealousy, etc.
Law Commission (U.K.), pg. 398
Extreme Emotional Disturbance The MPC Approach
For an Extreme Emotional Disturbance defense, you have to consider:
1) Whether the defendant was actually acting under an extreme emotional
disturbance, and (subjective)
2) Whether there was a reasonable explanation or excuse for the disturbance.
(objective)
Dont have to prove the four prongs
Dont need a triggering event
State v. Elliot, pg. 405 (D had overwhelming fear of brother for years, killed brother
one day for no apparent reason EED instruction required)
Reasonable person is more subjectivized determined from the viewpoint of a person
in the actors situation under the circumstances as he perceives them to be, however
inaccurate that perception may be.
People v. Casassa, pg. 401 (D killed girl he dated after she told him she wasnt
falling in love with him. Spied on her, laid naked in her bed. Killed her when she
didnt accept a gift. Guilty because Ds emotional reaction was so peculiar to him
that it was unworthy of mitigation, a proxy for rejecting features that go to the
capacity for self-control. Ends up like Smith, where the question is whether Ds
actions can be understood in terms that will arouse sympathy in the ordinary citizen)
Unintended Killings
Involuntary Manslaughter
Common Law Majority
Have to prove Gross Negligence substantial and unjustified risk, gross
deviation from the standard of care.
Factors for measuring risk:
1) Magnitude of the risk
a) How likely is the harm?
b) How serious would the harm be if it came about?
2) Actors purpose (reasons for conduct)
a) Justified?
b) Unjustified?
Have to prove more than civil negligence (failure of due care)
Have to show wanton and reckless conduct, but this can be found by an
omission. Not reckless in the regular sense, just indifference or disregard to
probable consequences, can be found even when D didnt actually realize the
risk, but a reasonable person would have.
Commonwealth v. Welansky, pg. 411, (D maintained nightclub with unusable
emergency exits, fire broke out and people were killed. Guilty of
manslaughter. Courts language sounds like recklessness, but they actually
apply criminal negligence confusion vindicates the MPC)
State v. Williams, pg. 418 (Native American couple failed to get medical care
for ill baby standard was ordinary negligence, but would still have been
guilty of gross negligence because realized baby was sick in time to get
treatment, had used resources in the past, only gave the baby aspirin, guilty of
manslaughter)
Policy
How far do we particularize the reasonable person the reasonable
Native American?
Cant deter someone who doesnt realize the risk.
Someone who didnt realize they were doing a bad thing doesnt
deserve to be punished.
Establishes a general standard of conduct for the community that we
dont want people to fall below. Supplies people with a motive to take
care before acting, which may promote awareness.
3 Approaches
Pillsbury, pg. 423 culpability should depend on the actors reasons
for perceptive failure, not on the failure itself. Should ask whether D
was showing a disregard for worth of life. (Reckless drivers father
versus teenager)
H.L.A. Hart, pg. 423 Problem because some people cant comply
with the standard. Ask two questions:
1) Did the accused fail to take those precautions which any
reasonable man with normal capacities would in the circumstances
have taken?
2) Could the accused, given his mental and physical capacities, have
taken those precautions?
MPC, pg. 422 D must exercise the care that a reasonable person
would exercise in Ds situation. Situation is ambiguous things D
is experiencing at the moment can be taken into consideration (heart
attack) but not things you can prepare for (heredity).
MPC Manslaughter
Either intentional killing with EED or unintentional killing with gross deviation and
recklessness
Like common law minority.
MPC Negligent Homicide
A killing done with criminal negligence gross deviation from the standard of care.
Dont have to have awareness of the risk.
Like common law majority.
Depraved Heart Murder
An unintentional killing involving gross recklessness.
Second degree murder, arose from incredibly risky conduct.
Line between involuntary manslaughter and depraved heart murder is not clear.
Need a high risk of death or serious harm (extreme indifference / callous disregard for
the value of human life) and conscious awareness must be a greater risk than a gross
deviation.
Available for omission liability.
Conscious Awareness
Courts say that conscious awareness is required, but this may not be true in
practice because juries end up thinking that any reasonable person would have
had to know of the risk.
Commonwealth v. Malone, pg. 426 (D played Russian Roulette with boy,
thought he knew where the bullet was, but on the third pull it discharged
conviction upheld even though D didnt think boy would be hurt)
When recklessness establishes an element of the offense, if the actor, due to
self-induced intoxication, is unaware of a risk of which he would have been
aware had he been sober, such unawareness is immaterial.
U.S. v. Fleming, pg. 431 (Drunk drove like a maniac, lost control, and caused
death of V)
Pears v. State, pg. 432 (D was warned that he was too drunk to drive, but
didnt listen and went through red lights and stop signs)
People v. Watson, pg. 433 (D drove to a bar where he drank, knowing he
would have to drive it later, and sped through a green light not really a high
risk of death, holds a drunk person to a different standard and normatively
criticizes drunk driving. Policy: collapses distinction between murder and
manslaughter)
Examples of DHM
Sernatowski shooting in a room D knows is occupied by several people.
Ds actions must be the proximate cause of the death connect the fact of the
felony to the cause of the harm, the harm was the natural or probable
consequence of the felony.
King v. Commonwealth, pg. 439 (D and copilot were transporting drugs in a
plane, crashed into a mountain, and copilot died no proximate cause
because the crash was not made more likely by them carrying drugs, risk has
to arise from the commission of the felony itself)
Mistake
Mistake of Fact
A person has the actus reus for a crime, but was mistaken about some fact that, had he
been correct, would have made his conduct not that crime.
Subset of mens rea.
Comes up when part of the statute is blank as to mens rea and prosecution wants to
read it as strict liability.
Failure of proof defense
Specific Intent Crimes
D not guilty if the mistake of fact negatives the specific intent element.
(Burglary makes it a crime to enter and remain in a dwelling with the intent to
commit a felony prosecution must prove trespass and also specific intent if
mistake negates intent to commit a felony, D is not guilty.)
Mistake does not need to be reasonable, just honest.
General Intent Crimes
A mistake of fact must be honest and reasonable to create a defense.
Even if its both honest and reasonable, in the common law D doesnt always
have a defense.
Bootstrapping Mens Rea
Bramwell approach if D commits an underlying moral wrong, hes
running the risk that it turns out to be illegal, and you can bootstrap the
mens rea from that wrong. View lingers in crimes of moral turpitude
(like statutory rape).
Regina v. Prince, pg. 234 (D convicted of taking an unmarried girl
under 16 out of the possession and against the will of her father, but
honestly and reasonably believed that she was 18 Bramwell says that
since its wrong to take any unmarried girl out of the possession and
against the will of her father, D is guilty)
White v. State (D leaves pregnant wife not knowing shes pregnant,
guilty)
Brett approach you can only bootstrap the mens rea to the greater
crime if D would have been guilty of a lesser crime if the facts had
been as he supposed, cant bootstrap if he would not have been guilty
of any crime. Only applies today in the common law, and only when
its a question of grading (1st degree burglary instead of 2nd degree).
Regina v. Prince dissent, pg. 234
State v. Benniefield, pg. 239 (Conviction upheld for more serious
school-zone offense for D who possessed drugs within 300 feet of a
school, but didnt know or should have known that he was near a
school)
U.S. v. Barbosa, pg. 239 (D swallowed crack pellets but thought they
was heroin, conviction upheld for more serious cocaine possession
charge)
MPC approach
1) Ignorance or mistake is a defense if it:
a) Negatives the mens rea required for a material element of the
offense
b) The law provides that the state of mind established by the mistake
constitutes a defense
2) If D would have been guilty of a lesser offense had the facts been
as D supposed, D is guilty of that lesser offense.
MPC 2.04, pg. 1083
Policy:
1) If D is guilty of a moral wrong, there is general blameworthiness.
2) George Fletcher, pg. 236 moral duties should not be identified
with criminal duties.
3) If the legislature had wanted to criminalize that conduct, they
would have.
4) U.S. v. Cordoba-Hincapie Mens rea for one crime should not
justify conviction for another because it violates the requirement
that punishment be calibrated to degree of culpability.
5) MPC Commentary, pg. 239 the measure of a defendants liability
should be his culpability, not the actual consequences of his
conduct.
6) Bramwell view gives judges too much discretion to impose their
own ideas of morality.
Statutory Rape
MPC Jurisdiction - MPC 213.1, pg. 1117
1) Strict liability with a child under 10
2) With a child over 10, mistake has to be honest and reasonable
Common Law 1 strict liability as to age
People v. Olsen, pg. 239 (D convicted of lewd or lascivious conduct
with child under 14, but honestly and reasonably thought she was over
16, guilty) public policy of protecting children, legislature provided
for possibility of probation for people with this belief
Garnett v. State, pg. 245 (Retarded 20-year-old had sex with 13-yearold, but honestly believed she was 16, guilty) not based on Bramwell
view, plain language of statute doesnt allow mistake defense. But
people over the age of consent are entitled to have sex, and this regime
discourages people from having sex with them.
Common Law 2 Honest and reasonable mistake as to age is accepted
People v. Olsen dissent, pg. 241
Common Law 3 Mistake just has to be honest, not reasonable
B (A Minor) v. Director of Public Prosecutions, pg. 243 (B convicted
of inciting a child under 14 to commit act of gross indecency, honestly
believed she was over 14, conviction overturned) the reasonableness
or unreasonableness of Ds belief is material only to the question of
whether the belief was held by D at all. Bramwell approach would not
be upheld in a modern court.
Garnett v. State dissent, pg. 246
People v. Marrero, pg. 267 (D arrested for possessing an unlicensed pistol, but
thought he was exempted as a peace officer, conviction upheld because court uses
MPC ideas even though NY didnt adopt their language)
Policy:
1) Would encourage ignorance
2) If it was allowed, would punish people who know the law because people who
dont know would have an excuse
3) Dru Stevenson, pg. 272 Presumes that everyone knows the law, purpose is to
create limited uncertainty about the law because uncertainty can deter harmful
behavior by promoting caution.
4) Dan Kahan, pg. 272 courts should make context-specific judgments about
which actors have characters good enough to be excused for their mistakes of law
to distinguish them from loopholers.
5) Could just allow mistakes of law that are reasonable.
Exceptions
The statute requires knowledge that the statute exists for there to be a
conviction negatives the mens rea required to prove a material element
(failure of proof). Willfully and knowingly have different interpretations:
1) Awareness of the specific statute at issue
Cheek v. U.S., pg. 275 (D convicted of willfully failing to file a tax return,
but honestly believed that he owed no taxes and that taxes were
unconstitutional court held against constitutionality claims, but that he
had to violate a known legal duty so conviction overturned)
Liparota v. U.S., pg. 278 (D acquired food stamps in a questionable way,
conviction overturned because D would have had to know the way she
acquired them was against the law)
2) Just a more general awareness that the acts committed are unlawful
Bryan v. U.S., pg. 278 (D convicted of willfully dealing in firearms without
a federal license, conviction upheld because D had to know his conduct
was unlawful, but didnt have to know of the statute)
3) Merely awareness of what acts were committed, pg. 277
U.S. v. International Minerals & Chemical Corp., pg. 278 (D violated a
regulation regarding the transportation of corrosive liquids, conviction
upheld because it was sufficient to prove that actions D knowingly committed
violated the regulations)
U.S. v. Ansaldi, pg. 279 (D sold GBL but didnt know it was on the controlled
substances list, conviction upheld because intent to violate the law is not part
of drug statutes)
U.S. v. Overholt, pg. 279 (D unlawfully disposed of contaminated water,
conviction upheld even though he didnt know it was unlawful)
Statutory exceptions:
1) MPC 2.04(3) D acts in reasonable reliance upon an official statement of
the law, afterward determined to be invalid or erroneous.
2) New Jersey Statute D pursues all means available to ascertain the
meaning and application of the offense and honestly and in good faith
concludes his conduct is not an offense in circumstances in which a lawabiding and prudent person would so conclude.
Collateral mistake of law some other law is a material element of the
offense, and the mistake of law is about that element (like mistake of fact).
The mistake of law D made was about some other law, not the one he was
charged with. Has to be honest, maybe reasonable, pg. 274. MPC 2.04(1)(a)
strict reading of MPC doesnt require reasonableness?
Regina v. Smith, pg. 273 (D damaged wall panels and floorboards that he had
installed with landlords permission to retrieve wiring before moving out,
conviction overturned mistake was thinking that the floorboards belonged to
him, would have had to know law of fixtures)
State v. Woods, pg. 274 (Man got a divorce in Nevada and married D. Back
in Vermont, D charged with being in bed with another womans husband
knew it was illegal, but didnt know the divorce wasnt valid under Vermont
law, conviction upheld)
Rape
MPC MPC 213.1, pg. 1117
Backwards standard no spousal rape.
Threat would prevent resistance by a woman of ordinary resolution gross sexual
imposition
Actus Reus
When is the act rape?
Traditional Elements:
1) Vaginal intercourse
2) By force or threat of force
a) V resisted and resistance was overcome by force, or
b) V failed to resist out of fear
State v. Rusk, pg. 302 (V drove D home, he took her keys and made her go to
his apartment and have sex, lightly choked her, she cried and asked to leave)
3) Against the will of the victim implies Vs resistance
4) Without the victims consent
a) V resisted, or
b) V failed to resist out of fear
Force: Standards for Resistance
To the utmost traditional common law standard, not required by any
jurisdiction anymore, except Louisiana, pg. 308
Enough to show that the sexual acts are abhorrent and repugnant to her natural
sense of pride.
State v. Rusk dissent, pg. 306
Earnest resistance, pg. 308
Reasonable resistance jury question, measured by totality of the
circumstances, Hull v. State, pg. 308
Deception
Consent is procured, but by artifice, deception, flattery, fraud, or promise.
Seduction is a crime in some jurisdictions.
People v. Evans, pg. 337 (D seduced unworldly young woman court held not
rape if words used in an attempt to seduce are misinterpreted as a threat)
Mens Rea
Was there a mistake of fact on Ds part as to whether V consented?
MPC honest belief that V consented = no rape (recklessness standard) (failure of
proof approach)
Regina v. Morgan, pg. 349 (Married man drinking at pub with friends, tells them that
they should go home and have sex with his wife, and that shell fight but actually likes
it, conviction overturned because an honest belief negatives the intention to have nonconsensual intercourse)
Reynolds v. State, pg. 349 (This jurisdiction had no resistance requirement, and since
statute didnt mention a specific mental state to govern consent, recklessness is
required)
Common law mistake must be both honest and reasonable (negligence standard).
Commonwealth v. Sherry, pg. 342 (Ds take V nurse to house and have sex with her,
thought they had consent conviction upheld because cant recognize mistake of fact
without considering its reasonableness)
Justification I did it and am responsible for it but you should not find me guilty because it
was the right thing to do.
Excuse I did it and it was a bad thing to do, but you should not find me guilty because for
some reason I was not responsible. 3 types:
1) Involuntary acts not consciously willed by actor (reflex)
2) Cognitive deficiency inability to know acts were wrong or illegal
3) Volitional deficiency actor is externally threatened
Eugene Milhizer, pg. 831
Justifications
Self-Defense
Elements (Common Law)
1) Honestly and
2) reasonably believe
3) that the force was necessary to defend against Vs
4) imminent use of
5) unlawful force, and
6) ones own force isnt excessive.
Cant be invoked after the fact had to honestly and reasonably believe at the
moment.
A person may not use deadly force in self-defense if he is the aggressor at the time of
the conflict (Vs force wasnt unlawful so one of the elements is missing) but the
met, such as cannot be guarded against by calling for the assistance of others
or the protection of the law.
State v. Norman, pg. 763 (D battered wife killed husband while sleeping
conviction upheld D could have pursued other avenues of help. Policy:
court unwilling to say that theres a meaningful futility component to
imminence because theres still a chance V wouldnt hurt her, and there are
always other options, applying temporal definition of imminence)
Robinson v. State, pg. 769 (Court holds self-defense applicable when D kills
batterer in his sleep when torture appears interminable and escape
impossible, because the belief that only the death of the batterer can provide
relief may be reasonable in the mind of a person of ordinary firmness,
applying futility definition of imminence)
Reasonable belief requirement belief has to be objectively reasonable, not
just reasonable to D.
People v. Goetz, pg. 739 (D shot teens who asked him for five dollars on the
subway reasonable belief required because otherwise someone with
aberrational or bizarre thought patterns could claim self-defense and people
could create their own standards for permissible use of force)
People v. Romero, pg 748 (D tried to introduce cultural evidence to support
claim that he reasonably believed harm was imminent, ruled inadmissible)
Can particularize to the reasonable person in Ds situation. Situation includes:
1) Ds relevant knowledge about V
2) Physical attributes of all persons involved
3) Physical movements of V
4) Prior experiences of D that could provide a reasonable basis for a belief
that another persons intentions were to hurt him / circumstances of event.
People v. Goetz, pg. 742
Imperfect self-defense when D had honest but unreasonable belief that force
was necessary, most jurisdictions wont give any defense, but some give
imperfect self-defense, which mitigates it to voluntary manslaughter (or
involuntary in a few jurisdictions).
MPC elements 3.04, pg. 1089
1) Use of force is justifiable if D believes that such force is immediately
necessary for the purpose of protecting himself against the use of unlawful
force by such other person on the present occasion
2) The use of deadly force is not justifiable unless D believes that such force
is necessary to protect himself against death, serious bodily harm,
kidnapping, or sexual intercourse compelled by force or threat.
3) If D is reckless or negligent in his belief that force was justifiable (belief
was honest but not reasonable) D can only be held liable for homicides
with the mens rea level of recklessness or negligence, respectively (like
negligent homicide). MPC 3.09, pg. 1094
Policy
Joseph Berger, pg. 743 Goetz widened the circumstances that justify
use of deadly force, jurors often nullify self-defense standards set by
law, had little faith in criminal justice system to protect us from threats
tolerates vigilante behavior.
Marvin Wolfgang, pg. 744 Perceptions about who is more likely to
commit a crime have statistical basis, higher for blacks.
Jody Armour, pg. 745 If we accept that racial discrimination violates
contemporary social morality, then an actors failure to overcome his
racism is blameworthy and thus unreasonable, independent of whether
or not it is typical.
R. Restak, pg. 746 There are no reasonable people under conditions
in which death or severe bodily harm are believed imminent people
are taken over by their limbic systems.
Richard Rosen, pg. 767 Norman court never answered the question
of whether it was necessary for D to kill her husband to avoid great
bodily harm or death.
Excuses
Policy
Jeremy Bentham, pg. 832 excuses identify situations in which conduct is
nondeterrable, so punishment would be unnecessary evil. Only the
nondeterrable are excused, so withholding punishment offers no comfort to
the deterrable.
Sanford Kadish, pg. 832 Punishing all closes off any hope a deterrable
offender might harbor that he could convince the jury that he was among the
nondeterrable.
H.L.A. Hart, pg. 832 to blame a person is to express a moral criticism, and if
the persons action does not deserve criticism, blaming him is unjust.
Duress and Necessity
Duress can be thought of as a justification or excuse.
Necessity traditionally thought of as a justification. Elements:
1) D reasonably believes imminent harm will result unless D breaks the law
2) D did not cause the situation (traditionally force of nature or God)
3) The prevented harm would be greater than the harm from Ds act
(balancing test)
Duress elements: (traditional common law) (are all elements subject to
objective standard?)
1) A threat (do it or else) of
2) imminent
3) death or grievous bodily harm
4) that it is reasonable to fear will be carried out.
5) Not applicable to murder.
MPC Duress elements: 2.09, pg. 1087
Cultural Defense
No courts allow the cultural defense as an affirmative defense.
Question is where cultural evidence is relevant for mitigation.
Can reduce punishment in sentencing phase.
Can potentially be used as a provocation defense would have to be in a
Maher jurisdiction because the things provoking them are not in the box for
Girouard can particularize to the reasonable person from their culture.
Wu (D mother killed son and tried to kill herself because father was
mistreating them, entitled to present provocation defense)
Ds have tried to use it to negate actus reus (it was an involuntary act because
I was compelled to do it by my culture) doesnt work because to prove
involuntary act you have to be physically compelled or mentally absent.
Can be used to buttress insanity defense, but Ds resist the characterization of
mental disease, and they can be subject to civil commitment.
Can help for mistake of fact or mistake of law (but tends to fail because more
like direct mistake of law).
Moua (D immigrant thought he was participating in marriage-by-capture, but
V experienced it like kidnap and rape, mistake as to consent)
Chen (D bludgeons wife to death because in China, infidelity is a stain that
can only be eradicated by killing)
Kimura (D engages in mother-child suicide to rid family of shame of
husbands adultery)
Butler (D Native American kills desecrator of sacred burial ground)
Rodriguez (D had bar fight and Puerto Rican culture taught him not to back
down)
Khat (Ds chew mild narcotic like caffeine, against the law here direct
mistake of law so no defense, but could be collateral mistake?)
Bui (D father killed children because wife was with another man and told her
if she didnt come home, he would kill the children)
Policy
Our country values the lives of the victims.
If you can prove the actus reus and mens rea, youre guilty.
We assume everyone knows the law here and the law applies to
everyone, and if Americans are held to that standard, immigrants
should be too dont want to give disincentive not to learn it.
Doriane Lambelet Coleman, pg. 289 when cultural evidence is
permitted to excuse criminal conduct, it creates a discriminatory