CRIMINAL LAW OUTLINE

3 QUESTIONS THAT LAWYERS ASK:

(1) What are the elements of the cause of action? (Is this a prima facie case?)
Ex. A prima facie case may be that a person who is going 60 at a 25 mph zone. This is a prima facie
case for speeding. This does not mean he is guilty He may have a relevant affirmative defense.
(2) What is the evidence?
(3) SENTENCING Positive and negative sentencing factors.
One of the ways that criminal law is EASY is that it is generally uniform across states (even in common law).
Another way is that it is written down (CA California Penal Code).
Good News and Bad News about figuring out criminal liability:
GOOD NEWS Murder, rape, robbery, arson (pg. 7) They are everywhere.
There are also more common law crimes, and in many places, the common laws are changing.
New crimes are statutory We can go to the code and figure out the language, and it will be broken
down for us.
BAD NEWS In general, the criminal law is not logical, understandable, reasonable compared to civil law.
REASON: There is no effort for uniformity across the U.S.
The Uniform Crime Commission is trying to make the laws consistent across the United
States.
This goal has not been reached, but in many ways it has (CONTRACTS - UCC).
There is a model penal code The difference between model and uniform penal code is vast.
The model penal code was meant to be altered.
There is no uniformity in criminal law.
RESULT: Each state has their own criminal law, which may or may not be similar to criminal laws in other
states.
Most criminal cases are pleaded out.
CRIMINAL LAW is meant to DETER CONDUCT.
Criminal law is not trying to allow people to sell substances that might be controlled.
Criminal law is meant to stop these behaviors altogether.
Since it is meant to be DETERRENT, there is more room to be flexible and indefinite
A design feature of criminal law is that what we end up with is the best arguments on both sides.
Evans v. Michigan FACTS: The crime in this case was ARSON.
Burning down of other real property The prosecutor has to show that D willfully or maliciously burns any
building or other real property, or the contents thereof, other than those specified in the next preceding section of
this chapter.
DEFENSE: They have to prove that the property was not a dwelling place.
At common law, arson only applied to the burning down of another.
Why would they change this?
2 Reasons: MURDER or INSURANCE FRAUD.
1 Mich. Comp. Laws 750.72 (1981) Burning dwelling house, provides: Any person who wilfully or
maliciously burns any dwelling house, either occupied or unoccupied, or the contents thereof, whether owned by
himself or another, or any building within the curtilage of such dwelling house, or the contents thereof, shall be
guilty of a felony, punishable by imprisonment in the state prison not more than 20 years.
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 750.73 Burning of other real property, provides: Any person who wilfully or maliciously burns any building
or other real property, or the contents thereof, other than those specified in the next preceding section of this chapter,
the property of himself or another, shall be guilty of a felony, punishable by imprisonment in the state prison for not
more than 10 years.
2 INTERPRETATION: (1) It could be that the burning down of a dwelling place to be the basic crime, and the
burning down of other real property was the aggravated crime.
(2) But it is also conceivable that the Michigan legislature that we dont want prosecutors people who burn down
dwellings to get a break.
This is the way the Michigan court read the statute.
ISSUE: Was this a valid acquittal?
MAJORITY: Yes, even though the Michigan Appellate Court said that the acquittal was for an invalid
reason.
DISSENT: Alito says NO.
DOUBLE JEOPARDY ISSUE: The rule is if jeopardy attaches and then terminates, a person cannot again be
put in jeopardy for the same offense.
Jeopardy attaches in a jury trial when the first juror is selected and sworn (not when the whole panel
is selected).
Jeopardy terminates with an acquittal.
And an acquittal is an outcome in favor of D, whether correct or not.
DOUBLE JEOPARDY What does it take for Double Jeopardy to Initiate?
In bench trials The first witness is presented
In jury trials When the first juror is sworn in
When does Double Jeopardy Trigger?
At the determination of the non-existence of any of the elements
EXCEPTION: MANIFEST NECSSITY: a circumstance (as an incurable pleading defect,
the unavailability of an essential witness, juror misconduct, or illness of counsel) which is of
such an overwhelming and unforeseeable nature that the conduct of trial or reaching of a
fair result is impossible and which necessitates the declaration of a mistrial

If there is a manifest necessity for the declaration of a mistrial, D may be retried without
violation of the prohibition on double jeopardy.

LESSER INCLUDED OFFENSES The offense charged must include every element of the lesser offense, plus an
additional element or elements, so that one cannot commit the offense charged without committing the lesser offense.
A lesser included offense of another offense are the SAME for double jeopardy purpose.
This term is used not in the double jeopardy bar from a retrial for the same offense, but instead to bar
the separate punishment of the same offense.
When Double Jeopardy triggers, there can be NO PROSECUTION of an offense if it is the same as the old one.
TEST: Look at the ELEMENTS If the same elements apply, it is is the same offense.
LIMITATION: SOVEREIGNTY Double Jeopardy does not apply when different sovereigns
prosecute.
State A and State B may prosecute
State A and Federal Government may prosecute
State A and Indian Territory may prosecute
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Military Court and Indian Territory may NOT prosecute

o REASON: Both receive power from the federal government
ELEMENTS OF A CRIME
3 ELEMENTS OF A CRIME:
(1) ACTUS REAS
(2) MENS REA
(3) CAUSATION
ACTUS REAS
In order to be guilty of a crime, a defendant must normally engage in some sort of an act, unless his omission is
criminalized by law.
D must do something, it must be voluntary, [and it must not be the consequences of an action, or series of an
action.] A defendant may, that is, not be punished for being addicted to heroin, though he may be punished for
acquiring, possessing, or even using heroin.
ACTUS REAS This is achieved in 2 WAYS;
(1) Conscious and willful bodily movement.
(2) An OMISSION to act when there is duty to act.
Ex. A mother doesnt save her infant from drowning in a bathtub She had a duty to save her child.
Ex. A person having a seizure Actus reas is NOT met since it was not
People v. Gastello ACTUS REAS
FACTS: D had drugs on his person when he was arrested, but he brought them into jail when the cop took him into
the state prison for processing.
STATUTE: Penal Code section 4573:
Except when otherwise authorized ... any person who, knowingly brings or sends into, or knowingly assists in
bringing into, or sending into, any state prison ... or into any county ... jail ... any controlled substance ... is guilty of a
felony....
ISSUE: Did D commit an affirmative act that was unlawful?
HOLDING: NO.
REASONING: Since D went to jail involuntarily, he did not voluntarily bring drugs to jail and could not
be convicted.
Martin v. State Court REVERSED conviction of D for public drunkenness when he was involuntarily
arrested in his house and then dragged out into the street when he exhibited drunkenness.
MENS REA
Generally, the prosecution must demonstrate that the defendant acted with some sort of
culpable mental state, often referred to by the Latin term mens rea.
Everybody thinks that its appropriate to take what Ds are mentally thinking into account.
Ex. If someone is robbing a bank, that person should be prosecuted no debate.
But if one robber, whose bag that they grabbed had a bunch of pennies in it, that person will be
punished differently than one who grabbed a lot of money.
Criminal law theorists use 2 theories to JUSTIFY this:
(1) UTILITARIAN Prosecuting and penalizing will be a deterrent for the public.
General deterrence We will discourage the public from committing any crimes in general.
Specific deterrence Discouraging the public from committing that crime.
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Incapacitation Preventing the criminal from committing further harms.

Rehabilitation We rehabilitate the criminal and make him/her more suitable for society.
(2) RETRIBUTIVIST We punish people because they deserve it.
We have laws on the books and are legitimately passed, and one who breaks those laws put themselves puts
themselves above others.
Society has an obligation to respond.
A retributivist may say that there is no problem with punishing people based on result because they
deserve that punishment, and the result is relevant to the punishment.
Some people say that result is an ARBITRARY DIFFERENCE.
In legal theory, this idea has had some purchase but not much.
Ex. Every jurisdiction differentiates in their punishment between attempted murder and murder.
However, there are situations where a jurisdiction (Ex. MPC jurisdictions) that, for crimes other than the most
serious crimes, they treat the attempted crime as on the same level as the crime itself.
Ex. Attempted burglary is the same as burglary.
MPCs 4 LEVELS:
a. Purposeful This is often also known as intent.
b. Knowing
c. Reckless You disregard a substantial and unjustifiable risk that you know of.
d. Negligent You dont know, but you should be aware of a substantial and unjustifiable risk, but you arent
ISSUE: STATUTORY INTERPRETATION OF MENS REA What if a statute does not explicitly state a mens
rea element?
There are very different methods for interpreting this:
(1) MPC
Unless contrary purpose plainly appears, assume mens rea term applies to entire statute (i.e. every
element of the statute).
Excluding procedural elements Ex. Statute of Limitations, Jurisdiction, etc.
If the statute is SILENT, assume recklessness applies
If the statute is silent, recklessness is the norm.
If a statute says only Anybody who kills someone is guilty of murder, the MPC does
NOT require purposefully or knowingly kills someone, but merely that anybody who
RECKLESSLY kills someone is guilty of murder.
(2) Common Law Factors
There is a common law presumption AGAINST strict liability
Thompson v. State MENS REA
FACTS: D failed to have a permit pursuant to a Houston City Ordinance as she operated a club.
STATUTE: Section 2825(a) of the Code of Ordinances of the City of Houston while acting as
an entertainer on the premises of the aforesaid sexually oriented enterprise, to conspicuously display
upon his [sic] person at all times his personal card.
ISSUE: Since this ordinance/statute did not explicitly state a mens rea requirement, is the court
supposed to presume that mens rea is required anyway?
HOLDING: The statute DOES require mental culpability i.e. mens rea.
REASONING: FACTORS TO BE CONSIDERED:
1. LANGUAGE: If any section/part of the statute says that mens rea requirement is dispensed of,
then that entire section/part dispensed of mens rea.
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2.
3.
4.

5.

a. If the entire section/part is silent, then that is a good indication that mens rea is NOT
dispensed of.
b. Passive voice is more likely to equate to strict liability
NATURE OF THE OFFENSE: Whether the conduct is inherently bad malum in se
(requires a mens rea) or is bad solely due to the statute (less likely to require a mens rea)
SEVERITY OF THE PUNISHMENT: the more severe, the more likely that mens rea is required
Consider whether the conduct at issue is innocent conduct or is an accidental consequence of a
harmful act
a. The latter is less likely to require a mens rea.
b. Ex. D1 is driving home from shopping. D2 is running away from a robbery.
i. Mens rea would probably be required for the D1 because they want to make it
harder for to convict innocent people.
Consider the structure of the statute:
a. Ex. You are trying to determine the level of culpability for first degree murder If the
second degree murder requires knowing, we can determine that first degree murder
require at least knowing and probably more than that.

Staples v. United States MENS REA in FEDERAL STATUTES

FACTS: D was convicted under the National Firearms Act when he was caught with a fully automatic rifle.
The National Firearms Act makes it unlawful for any person to possess a machinegun that is not properly
registered with the Federal Government.
ISSUE: D contends that he didnt know that the gun was automatic. Did the lower court err in dispensing of a mens
rea requirement simply because the statute was SILENT on mens rea?
HOLDING: YES Conviction REVERSED.
REASONING: Absent a clear Congressional statement that mens rea is not a required element of an offense,
the Court should NOT dismiss with such requirement.
Also, there has been a long tradition of lawful gun possession.
Therefore, it is unthinkable that Congress intended to subject such law-abiding, well intentioned
citizens to a possible 10 year term of imprisonment if what they genuinely and reasonably believed
was a conventional semiautomatic turns out to have worn down into or modified into an automatic.
CAUSATION
But-For Causation TEST If D had stayed in bed that day, would the same thing have happened and in the same
way?
If so, but-for cause probably isnt satisfied.
But-for Causation is NOT enough.
PROXIMATE CAUSATION The issue is reasonable foreseeability.
TEST: Could D have reasonably foreseen the consequences of his act?
Ex. I am driving, but someone jumps in front of my car and is killed by my car.
I am the but-for cause of the person died.
But it is unforeseeable that someone will jump in front of my car whenever I decide to drive.
Ex. D stabs a victim. The wound is not fatal by itself.
The wound can be treated, and death can be avoided.
The victim is taken to the hospital.
But the victim dies because of the hospitals negligence, the victim dies.
But-for cause is met here.
But is it reasonable for the court to be held liable?
This will usually be a JURY QUESTION.
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The prosecution may find that mistakes at hospital are reasonably foreseeable, and
may expect the jury to find D liable.
State v. Rose NO CAUSATION
FACTS: D hit a victim. The victim (1) hit the hood of the car and then (2) got rolled over by the car.
D subsequently fled the scene of the crime.
STATUTE: Every person who commits manslaughter shall go to prison.
MANSLAUGHTER: an unintentional homicide without malice aforethought, committed either in performance of
an unlawful act not amounting to a felony or in the performance of a lawful act with criminal negligence.
This is the little sibling of felony murder rule.
THEORY OF MANSLAUGHTER: The theory is that the victim was killed BECAUSE D left the scene of the
accident. Leaving the scene of the crime was what caused the victims death.
Thus the prosecution would have to prove that the victim died AFTER D fled the scene.
ISSUE: We cannot tell whether or not the victim was dead when D fled the scene.
HOLDING: D is NOT criminally liable.
REASONING: There is no causation here since we do not know whether the victim was killed instantly
or not.
If the victim had died when he hit the hood of the car, then the D did not kill anybody when the person had
left the scene of the crime because the victim was already dead.
Here, we just dont know what the victim died instantly or not.
CHIN: Maybe the prosecution could have pointed towards speeding (which is another unlawful act), and would have
solved the temporal problem (if he had been speeding down the road, then he was already committing an unlawful
act when he hit the person and killed him under the car.)

INCOMPLETE CRIMES
Some offenses do not involve results; they punish only conduct.
Ex. Drug possessionno result, like use or distribution, is necessary.
Other offenses punish EFFORTS to achieve prohibited results or engage in unlawful conduct.
These crimes punish attempts and agreements to achieve unlawful goals and as well as requests that others
commit crimes.
3 TYPES OF INCOMPLETE CRIMES: M.P.C.
(1) SOLICITAITON A command, encouragement or request for another to commit the crime.
(2) CONSPIRACY 2 PARTS: (A) An agreement to commit the crime.
(B) An act in furtherance thereof.
This incomplete crime requires 2 people.
Ex. A and B conspire to murder.
B gets a gun.
A could be criminally liable for Bs in the furtherance of getting the gun.
To the extent that crimes are committed in furtherance of the conspiracy, liability gets
imputed to EVERYONE.
LIMIT: This does NOT apply to undercover agents.
(3) ATTEMPT A substantial step toward the commission of that crime.
Ex. If I buy a gun, decided to shoot someone, and get caught while I am in the victims house with the gun, I
am liable for attempted murder.
People v. Stroner When Person A and Person B conspire to commit a crime, and Person B shoots at the
victim, Person A can be convicted of attempted murder.
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DOUBLE JEOPARDY: Incomplete crimes are not lesser included offenses of one another.
You can get charged with all of them at the same time.
COMMON LAW You may be convicted of multiple incomplete crimes.
MPC You may be punished for only one of these
CA You may be punished for only one, but it must be the one with the longest prison term.
People v. Stroner FACTS: D was a cop who hired someone to kill somebody else.
Before the killing could take place, he was arrested.
He is charged with all 3 offenses (1) Solicitation for murder (D approach McAllister to kill the victim), (2)
attempted murder (McAllister shot at the victim), (3) and conspiracy to commit murder (D consulted
McAllister to commit murder and also gave him a shotgun to do it).
TRIAL COURT: Convicted him of all three.
APPELLATE COURT: Held that solicitation for murder was a lesser included crime of conspiracy to
commit murder, and that conspiracy to commit murder was a lesser included crime of attempted murder.
ISSUE: Can D be convicted of all of these offenses?
IL SC HOLDING: CONVICTION UPHELD.
COMMON LAW None of these are lesser included crimes of each other and D could be convicted
of ALL OF THEM.

PROSECUTORIAL AND LEGAL DISCRETION

Prosecutors have near limitless discretion in prosecution
The constitutional restraint on prosecutorial discretion is minimal.
LIMIT: They can prosecute on any basis that isnt barred by the Constitution (Ex. Religion, race,
gender, etc.).
Oyler v. Boles DUE PROCESS?
FACTS West Virginia's habitual criminal statute provides for a mandatory life sentence upon the third
conviction of a crime punishable by confinement in a penitentiary.'
The increased penalty is to be invoked by an information filed by the prosecuting attorney immediately upon
conviction and before sentence.'
Thus, the PROSECUTION has discretion on whether or not to apply the statute.
Here, of 5 men convicted as habitual offenders, D WAS THE ONLY ONE CONVICTED
UNDER THIS STATUTE.
ISSUE: (1) Is it Constitutional to send someone to prison for life for a $30 bad check and only be in the minority
of such instances?
There is some regulation of that under the Cruel and Unusual Punishment provision of the 8th Amendment.
This court seems to not be worried about this.
(2) Is it fair to do this without giving notice?
The accusation which Ds were facing were unknown to Ds until after the prosecution.
The court here also does not seem to care much about this as well.
HOLDING CONVICTION AFFIRMED.
The fact that only a minority of habitual offenders are prosecuted under this statute does NOT deny D equal
protection.
REASON: The prosecution in those other instances may not have known about the prior offenses.
And even if the prosecution was being selective, there is no indication that the reason why they
were selective was because of race, religion, etc.

Thus, prosecutorial discretion is unconstitutional only if the REASONING behind their

exercise of discretion is shown to be based on unconstitutional grounds (i.e. race, religion,
etc.).
Batchelder v. United States PROSECUTOR CHOSE THE HARSHER OF 2 STATUTES TO CONVICT D
FACTS: There were 2 statutes covering the conduct, but they carried different sentences.
One statute carried a maximum sentence of 5 years.
The other statute carried a maximum sentence of 2 years.
These statutes came about through a mistake in the Legislature.
The prosecutor chose to charge D with the 5 year statute.
Court of Appeals: REVERSE CONVICTION on 3 PRINCIPLES OF STATUTORY CONSTRUCTION:
(1) Lenity The rule of lenity is used after they have done everything that they can do when the statute is
ambiguous.
The prosecution is supposed to have a presumption of lenity when statutes are ambiguous.
(2) Implied Repeal If one statute is construed to implicitly repeal another statute, then the prosecution
must go along with the latter statute.
(3) Constitutional Question Avoidance The court ought to construe a statute in order to avoid
constitutional questions.
ISSUE: Can D challenge the prosecutors exercise of discretion in choosing the harsher of 2 applicable statutes to
convict him with?
USSC HOLDING: NO.
REASONING: (1) Lenity The statute here was NOT ambiguous Thus, there can be no presumption
towards lenity.
(2) Implied Repeal They reject the implied repeal because both statutes could potentially coexist
simultaneously.
Just because 2 statute cover the same conduct but arrive at different outcomes (i.e. sentences) does
NOT mean that one implicitly repeals the other.
Rather, the legislative intent to repeal must be manifest in the positive repugnancy between
the provisions.
(3) Constitutional Question Avoidance This also does not work since this principle should be invoked
only when an alternative interpretation of the statute is possible.
There have only been 3 successful selective prosecution cases ever raised in the country.
CA Homicide Penalties Importance of Discretion
Murder 1: DEATH, LWOP or 25 to life
Murder 2: 15 to life
Voluntary Manslaughter: 3, 6, or 11 years
Involuntary Manslaughter: 2, 3, 4 years
Vehicular Manslaughter: 1, 2, 4, 6, or 10 years
The same basic conduct, where D does something to kill someone, and the difference is HUGE Anywhere from
1 to DEATH.
PLEA BARGAINING
Plea bargaining is valid if:
1. Voluntary while considering the circumstances
2. D has access to a competent lawyer
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A law that forces Ds to plead out is invalid

This law would be unconstitutional because it would limit an individuals power to exercise their
constitutional right.
Brady v. United States STATUTES FORCING Ds TO PLEAD GUILTY
FACTS: D was charged under the federal kidnapping statute.
Since his victim eventually died, D potentially faced the death penalty.
D initially pled NOT GUILTY.
Then D changed his pleading to GUILTY when he learned that a co-D was going to testify against him.
Guilty pleas Bench trial and NOT jury trial.
The federal kidnapping statute has a PROBLEM: Under the statute, D can receive the DEATH PENALTY if D
goes to trial and the jury recommends death penalty.
In a previous case (Jackson), the USSC said that the provision that called for death penalty was unconstitutional
because D can avoid the risk of death 100% of the time if they pled guilty, in which case, D can avoid jury trial
and just have a bench trial and avoid the death penalty.
Jackson HOLDING: Congress CANNOT offer leniency in exchange for guilty pleas at any time in their
statutes.
REASON: This is essentially coercing D to plead guilty.
ISSUE: He felt that he was COERCED by the provision into pleading guilty.
D wants to apply Jackson to his case holding retroactively.
HOLDING: He was NOT coerced.
REASONING: He had competent counsel (CHIN: This is debatable, since D in Jackson seemed to have
competent counsel that actually caught the constitutional issue.)
D first pled not guilty, then changed his mind, which shows us that the plea was intelligently made.
Pleas must be intelligently made.
NOTE: Congress cannot be more lenient in exchange for guilty pleas.
However, prosecution CAN They could have discretion to be more lenient in exchange for pleading guilty on a
case-by-case basis (Batchelder).
Prosecution has UNLIMITED discretion.
Why are PROSECUTORS allowed to have this discretion but not CONGRESS?
It could be that if the power is left to the prosecutors, there is more flexibility, whereas with Congress, the
rule would be across-the-board.
Bordenkircher v. Hayes PROSECUTORIAL VINDICTIVENESS
FACTS: D was charged with forgery of a check, an offense which carried a 2-to-10 year prison sentence.
PROSECUTOR: Offered to pursue a 5 year sentence if D pled guilty and if D did not, he would seek indictment
under the Kentucky Habitual Crime Act because Hayes had two prior felony convictions on his record.
D chose not to plead, was found guilty and was sentenced to life in prison.
ISSUE: Was the prosecutor was too VINDICTIVE when D pleads not guilty and then goes on to charge D with
ANOTHER CRIME that carries a more severe sentence.
MAJORITY: There was no vindictiveness.
It is not vindictiveness to charge someone with a crime that they are guilty of.
DISSENT (Justice Powell): It is Ds constitutional right to be able to plead not guilty.
Here, the prosecution clearly acted only to limit Ds constitutional right to not plead guilty.
This is a denial of Due Process.
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NOTE: There are a lot of jurisdictions that DO NOT FOLLOW Bachelder and Bordenkircher.
There are jurisdictions where there are 2 separate statutes prohibiting the same conduct and yet carrying
different sentences (Bachelder) and the court will say that this has to be a mistake and the Legislature
could not have intended for there to be 2 statutes that mean the same thing.
These USSC cases do set a constitutional basis, but their BINDING EFFECT is LIMITED.
DISCRETION BY OTHER GROUPS:
(1) JUDGES They have discretion as well.
They may acquit de minimus charges if it is authorized by the statute.
DE MINIMUS STATUTES MPC says that a court may DISMISS a valid case based on its discretion.
This is used almost exclusively in low-level cases.
PURPOSE OF THE STAUTE: As a defense attorney, even if you have no chance of getting the
judge to accept the de minimus motion, you may want to raise it anyway in order to educate the
judge on the case.
(2) JURIES Juries have the right to jury nullification This is when a person is guilty of all of the
elements of the crime, and yet, a jury does not want to convict the person.
Ex. They may decide to not prosecute a thief who stole a piece of bread simply to feed his family.
The jury has the unreviewable power to acquit (Dean).
PROBLEM: They are not informed of this constitutional power.
Most of the time, judges and prosecution will instruct juries that they must follow the
facts and the law without deviation.
Defense attorneys are NOT entitled to educate or advise juries of their own
powers.
However, PROSECUTION is principled.
US General Attorneys Prosecution Manual:
There are non-binding legal scholarly works that instruct prosecutors on how they should go about their job.
They make it the case that not every case should AUTOMATICALLY be prosecuted.
On the other hand, the discretion should NOT be ARIBTRARY.
JURISDICTION
JURISDICTION OVER THE PERSON
This is one of the types of jurisdiction.
INDIVIDUAL STATES may control the conduct of their citizens over the high seas so long as:
1. They have a legitimate state interest
2. Theres no conflicting Federal law
Skiriotes v. Florida
The analysis may apply in different situations
States can theoretically prosecute an individual anywhere in the world.
Ex. Missouri can punish a Missouri citizen for going to Oregon to smoke
weed.
FEDERAL GOVERNMENT may control the conduct of a citizen anywhere in the world as long as:
An enumerated power justifies the governments activity
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US v. Kent
Generally, the federal government will allow this regulation under the treaty clause This is
the most vast unenumerated power.

Skiriotes v. Florida STATES SCOPE OF JURISDICTION = Crime Happened Beyond State Borders
ACTS: D violated the statute 2 leagues from the shore.
FLORIDA BORDER: The border is 3 leagues.
STATUTE: forbids the use of diving suits, helmets or other apparatus used by deep sea divers, for the purpose of
taking commercial sponges from the Gulf of Mexico, or the Straits of Florida or other waters within the territorial
limits of that State.
ISSUE: We need a jurisdictional hook. Florida cannot, by its own intrinsic power, govern or regulate activity in
the Gulf of Mexico.
D alleges that the United States border is 1 league.
Thus, he alleges that since he was out of the jurisdiction of the United States, he was out of the
jurisdiction of Florida.
USSC: CONVICTION UPHELD.
REASONING: D is a Florida citizen.
The Court concedes that he is NOT in Florida territorial waters.
He is on the HIGH SEAS.
Even if it were assumed that the locus of the offense was outside the territorial waters of
Florida, it would not follow that the State could not prohibit its own citizens from the use of the
described divers equipment at that place.
AKA It doesnt matter that D was outside of Floridas border when he committed the crime.
Florida can still convict him.
US v. Kent Frank FEDERAL GOVERNMENTS SCOPE OF JURISDICTION = Crime Happened Outside of
U.S.
STATUTE: Prohibits people from US traveling to other countries for the purpose of sex tourism.
US is a country of limited jurisdiction.
GROUNDS OF AUTHORITY: Optional Protocol A US treaty that forbade that forbade sex tourism.
If the US validly signs a treaty with a foreign country, then the US has the power to enact laws that implement to
regulate something that they otherwise would not be able to.
Missouri v. Holland If a US treaty is constitutional, then any statute that implements that treaty is also
constitutionally valid.
LIMIT: (1) No treaty can do something that the Constitutional expressly forbids.
However, treaty power CAN allot power to Congress that Congress originally would not
have had.
D argues that the statute should not apply here:
(1) The statute violates international law D is saying you cannot control me just because I am a US
jurisdiction.
COURT: US has the ability to prosecute US citizens who are abroad.
(2) The treaty is unconstitutional because it violates Cambodian law There, the age of consent is 15.
COURT: We are not regulating Cambodian people only US citizens.
HOLDING: CONVICTION UPHELD.
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JURISDICTION OVER TERRITORY

The Federal Government has EXCLUSIVE JURSIDICTION OVER A TERRITORY IF:
(1) It owns the land
(2) The land was purchased
PRIOR TO 1940 It is being used for federal purposes.
1940 and LATER The land is being used by the federal governement and it ACCEPTS exclusive
jurisdiction.
The president of the US does not have to accept the land.
State v. Ingram FEDERAL GOVERNMENTs JURISDICTION OVER LAND
CRIME: D was dumping hazardous material.
ISSUE: D was potentially on federal land.
STATUTE: There are 2 statutes that secedes federal authority and gives it to the state.
The State (NJ) cited 42 U.S.C.A. 6961 (a section of the Federal Solid Waste Disposal Act) as establishing in
clear and unambiguous language the waiver of sovereign immunity by the United States and thus, vesting in the State
of New Jersey the authority to regulate the disposal of hazardous waste within the State.
Waiving of sovereign immunity means that the Federal Government may be sued by the state.
COURT: But a waiver of sovereign immunity does NOT mean that the Federal Government relinquishes
all authority to adjudicate matters on that land.
6926 The act does contemplate the cession of jurisdiction to the states after the State has had a
Solid Waste Program approved by the Administrator of the Environmental Protection Agency (a Federal agency).
The prosecution brought evidence that the state did CONSENT to giving the land over to the Federal
Government.
However, BEFORE 1940, the Federal Government would have needed only consent and the land would have been
theirs.
ISSUE: However, AFTER 1940, the Federal Government would have had to satisfy 255.
40 U.S.C.A. 255: Any government official would have had to file a report of acceptance on behalf
of the federal government.
PROBLEM: PROSECUTION BROUGHT FORTH NO EVIDENCE OF ANY
OFFICIAL BRINGING SUCH ACCEPTANCE on behalf of the Federal Government.
There is NO way of finding out whether or not this was federal land.
Thus, NJ does NOT have jurisdiction.
STATE JURISDICTION OVER TERRITORY
CA obviously has jurisdiction if the crime was committed in the state.
But there are other ways CA can have jurisdiction:
A state has jurisdiction over a person who did not commit a crime in the state if:
(1) The person performed conduct related to the crime in that state
Ex. I built a bomb intending it to go off in Arizona in CA.
(2) The state suffered a result from the crime.
Ex. The bomb went off in Arizona, but CA citizens died.
(3) D conspired or attempted to commit the crime in the state.
(4) D was an accomplice for someone who committed the crime in that state.
(5) D failed to perform a duty owed to the state.
Ex. You owe taxes or child support to CA Even if you are somewhere else, CA can prosecute
you.
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When a state tries to prosecute a D who is a resident of that state but commits a crime in another state
SUBSTANTIAL EFFECT
Miller v. State GROUNDS FOR JURISDICTION OVER D WHO DID NOT COMMIT A CRIME IN THE
STATE
SUBSTANTIAL EFFECT NOT MET
FACTS: 2 robbers stole diamond rings in COLORADO.
They then went and met D in ARIZONA.
D then decided to help the robbers dispose of the rings in NEVADA.
D was caught in Utah and then extradited back to ARIZONA.
A.R.S. 13108 A. This state has jurisdiction over an offense that a person commits by his own conduct or the
conduct of another for which such person is legally accountable if:

2. The conduct outside this state constitutes an attempt or conspiracy to commit an offense within this state
and an act in furtherance of the attempt or conspiracy occurs within this state; or
4. The offense consists of an omission to perform a duty imposed by the law of this state regardless of the
location of the defendant at the time of the offense[.]
ISSUE: Does Arizona have jurisdiction to prosecute a crime that occurred in NEVADA?
HOLDING: NO.
REASONING: Arizonas 4 Theories of Why It Has Jurisdiction:
(1) Ds conduct produced a result in Arizona.
COURT: REJECTED Restatement: A state does NOT have jurisdiction to prescribe a rule of law
attaching legal consequences to conduct of an alien outside its territory merely on the ground that the
conduct affects one of its national.
MPC: A person may be convicted under the law of this State of an offense committed by his own
conduct or the conduct of another for which he is legally accountable if:
(a) either the conduct is an element of the offense or the result that is such an element occurs within
this State ...
ColumbaColell: In order for a state to prosecute D for a crime that occurred outside of its
territory, the crime must have had a SUBSTANTIAL EFFECT in that state.
The fact that someone in Colorado was deprived of their property lacks the requisite
substantial effect.
(2) D failed to perform a duty required under Arizona law.
COURT: REJECTED The same problem as the result theory.
Every state to which a theft victim travels would have jurisdiction over the thief.
(3) D was an accomplice to a crime committed in Arizona.
COURT: REJECTED ACCOMPLICE: One who knowingly and with criminal intent participates,
associates, or concurs with another in the commission of a crime.
All of Ds conduct occurred after the commission of the robbers crimes.
This would fall under a separate state/crime altogether.
(4) D was a conspirator to a crime committed in Arizona.
COURT: What Miller did is different from those situations where conspirators make specific preplanned efforts of escape, payment, concealment, or conversion of the fruits of the crime.
D did not make specific pre-planned efforts to aid the robbers in Colorado.
Instead, the robbers ended up running into D and then he aided them.
CONSTITUTIONAL PROBLEM: Is it a problem that D is going to be prosecuted for the crime of stealing goods
when the stealing occurred OUT-OF-STATE?
There may be an interest in regulating the stolen goods from outside the state, since non-regulation would
mean that conducting black-market dealings with goods stolen from out of state would occur in that state.
13

Thus, these statutes tend to be constitutional.

State v. Winckler SUBSTANTIAL EFFECT MET

FACTS: Burglary took place on Sioux tribe territory.
The shooting is occurring FROM Sioux territory and INTO South Dakota (the police were in South Dakota the
whole time).
According to South Dakota law, ASSAULT is an attempt to commit battery or an offer (threat) to commit battery.
HOLDING: The bullets hitting South Dakota was ENOUGH to create jurisdiction for the state.
If an assault is an attempt or a threat to commit a battery, the attempt or threat occurred when the BULLETS
HIT South Dakota.
JURISDICTION IN INDIAN COUNTRY
FEDERAL CRIMES of general applicability
If there is a general applicability crime, then Federal Courts will have jurisdiction.
HOWEVER, if it is an Indian Offender breaching Indian law,
Indian courts have at least concurrent jurisdiction in:
1. CA, Nebraska, Wisconsin, Alaska, Minnesota, Oregon: State jurisdiction, exclusive or federal jurisdiction
for crimes in Indian country.
2. Florida, Idaho, Iowa, Kansas, NY, Washington: State jurisdiction which is concurrent with federal
jurisdiction.
3. All other state: Federal courts have jurisdiction as well as states, exclusive of the states of crimes by or
against Indians.
4. Tribal Courts have concurrent jurisdiction of Indian Ds.
United States v. Cruz FACTS: Cruz was charged under 18 USC 1153 Any Indian who commits against the
person or property of another Indian or other person any of the following offenses, namely murder, manslaughter,
kidnapping, maiming
Being Indian is an essential element of the offense.
QUALIFICATION AS AN INDIAN
Sufficient Degree of Indian Blood
AND
Tribal or Government Recognition as an Indian
This is determined by a 4 PRONG TEST, in declining order of importance:
1. Tribal enrollment
a. D was NOT enrolled in any particular tribe
2. Government recognition formally/informally through receipt of assistance reserved only
for Indians
a. He was prosecuted by an Indian court, but that wasnt good enough.
3. Enjoyment of the benefits of tribal affiliation
a. He was eligible for benefits, but he did not actually seek out or receive such
benefits.
4. Social recognition as an Indian through residence on a reservation and participation in
Indian social life.
a. D had not even lived on Indian territory since he was very young.
Generally, you need to meet at least some of these.
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DISSENT (Kazinsky): The fact that D was prosecuted by an Indian tribal court does mean that the tribe thought
that they were dealing with an Indian.
CHIN: The fact that Cruz was taken to jail (if you actually understand the way the court system works) does
NOT necessarily mean that they recognized D as an Indian.
PROBLEM: Concurrent jurisdiction means that sovereigns get their power from the same place.
This becomes a problem for double jeopardy purposes.
The Federal Government and an Indian court CANNOT have concurrent jurisdiction
They cannot prosecute the same person because of double jeopardy.
SUBJECT MATTER JURSIDICTION/JURISDICTION OVER PARTICULAR CRIMES
State prosecutions based on federal interests are not allowed
Exclusive federal interest = exclusive federal matter
However, states can still get to prosecute based on (exclusively) federally interests
States must:
a. Articulate a valid (legal) state interest
b. Not interfere with federal interests or authority
Ex. D gets convicted for federal perjury.
The state may still want to prosecute based on this federal breach since (for example) they want to
discourage perjury in state courts as well.
Ex. D was arrested for smoking weed.
The federal government can prosecute you for smoking weed.
People v. Ali Hassan STATE TRIES TO PROSECUTE A FEDERAL OFFENSE - PERJURY
FACTS: D is charged with violating 132 (STATE LAW) Every person who upon any trial, proceeding,
inquiry, or investigation whatever, authorized or permitted by law, offers in evidence, as genuine or true, any book,
paper, document, record, or other instrument in writing, knowing the same to have been forged or fraudulently
altered or ante-dated, is guilty of a felony.
ISSUE: The court is deciding whether providing documents in a federal proceeding can be used to prosecute in a
state court?
JURY found that he did put together false evidence in a federal investigation.
ELEMENT OF THE STATUTE IN DISPUTE: any trial, proceeding, inquiry, or investigation
whatever
Does this apply to FEDERAL LAW?
HOLDING: NO.
REASONING: People v. Kelly CA Supreme Court asked should we apply STATE LAW when a crime
happens in a FEDERAL PROCEEDING.
There, the court said that if there is ambiguity, we will NOT apply this statute to federal law.
Thomas v. Loney The interests involved with Ds crime was EXCLUSIVELY FEDERAL.
Courts of a state have no jurisdiction of a complaint for perjury in a contested election case involving a seat in
the Congress of the United States, although the false swearing was before a notary public of the state.
The power of punishing a witness for testifying falsely in a judicial proceeding belongs peculiarly
to the government in whose tribunals that proceeding is had.
People v. Cohen CONCURRENT JURISDICTION
FACTS: D was prosecuted for perjury in a state court when the alleged crime occurred in a federal proceeding.
ISSUE: Can a false oath given under a Federal proceeding be the basis of a STATE perjury conviction?
15

HOLDING: YES if the federal proceeding is given by a self-regulating body that is NOT acting pursuant
exclusively to Federal law.
REASONING: The NASD is NOT an exclusively federal tribunal, nor was it acting solely pursuant to
federal law when it investigated defendants actions.
Rather, NASD is a self-regulatory body that protects both federal and state interests (it enforced
both federal AND state laws regarding securities exchange).
(1) VALID STATE INTEREST: The NASD enforced state laws.
(2) The fact that there if a federal law in place does NOT create a presumption that there
is a conflict between state and federal authority.
There can be no presumption that state authority is excluded from the mere fact that
Congress has legislated.
If a crime concerns ONLY federal interests, it will NOT confer state jurisdiction.
But, like in Cohen, if there is no interference with federal authorities and if there are also CONCURRENT STATE
INTERESTS, states may have jurisdiction.
One of the many ways that the Federal Government gets in state criminal proceedings is through the Hobbs
Act (18 U.S.C. 1951).
Another statute that some have suggested might be available: Civil Rights Statute (18 U.S.C. 241)
United States. Min Nan Wang FACTS: D broke into Mr. and Mrs. Tsais (owners of a restaurant) home, hit them
with both with hard objects with an accomplice, and stole money that Mrs. Tsai had taken from the restaurant.
D appeals his conviction for the violation of 18 U.S.C. 1951(robbery affecting interstate commerce) and
of using and carrying a firearm in relation to a crime of violence (robbery) in violation of 18 U.S.C. 924(c)
(1).
TEST: To support a conviction under the Hobbs Act, we have required the government to demonstrate nothing more
than a de minimis effect on interstate commerce.
But there still would have to be a plausibility of affecting interstate commerce.
The Hobbs Act gives such a LOW STANDARD.
Since the standard is so de minimus, robbing this amount of money may be enough.
However, they robbed private individuals.
The prosecution did not prove that the robbery substantially affected their business.
If the victim is an INDIVIDUAL, we are looking for something more substantial.
HOLDING:
LIMITS ON FEDERAL JURSIDICTION
Most federal prosecutions are justified based on the Commerce Clause.
However, criminal prosecution must show SUBSTANTIAL IMPACT.
It can show substantial impact by showing:
1. Large sums of money
2. Numerous victims
3. Ds action was motivated by victims ties to interstate commerce
4. Ds actions were against a business
16

At this point, even de minimis sums of money are enough

If D robs a store rather than the people in the store, the businesses have noticeable links on
interstate commerce since it buys stuff across state borders.
Gonzalez v. Reich Even if all production happens in one state, it will still affect
interstate commerce.
CONSTITUTIONAL LIMITATIONS

The following constitute invalid ex post facto acts:

1. Passing a law that made an act, that was innocent when done, criminal
2. Aggravating a crime, making it a greater crime than it was when it was committed
3. Changes the crime by inflicting a greater punishment than one would have suffered when
he committed it.
4. Alters the rules of evidence to allow a conviction based on less testimony than was
initially required
a. There are certain evidence requirements that are necessary to convict.
b. Requiring less evidence to convict will have ex post facto implications.
i. Ex. A law says that you only need one witness instead of two (which was the
original requirement) in order to convict for treason.
c. This is not an admissibility issue.
i. Admissibility of the evidence does not necessarily say that you need less evidence;
It deals more with what kinds of evidence may be admitted.
These must be statutory acts, not judicial decisions
Carmell v. Texas EX POST FACTO
TEXAS STATUTE: Until September 1, 1993, the sex crime would require EITHER:
(1) Corroborating evidence,
(2) Prompt outcry ( victim was to report the sexual assault to someone) which was corroborated by prior
consistent testimony,
OR
(3) EXCEPTION: If the victim/witness was under 14 years of age, the testimony did not need to be
corroborated. i.e. If the person is under 14 years of age, they dont need to have told anybody else about the
crime/abuse.
NEW STATUTE: After September 1, 1993: EXCEPTION was CHANGED.
If the victim/witness was under the 18 years of age, the testimony did not need to be corroborated.
ISSUE: Before the 1993 Amendment, D was innocent, but under the new law, he isnt.
The victim/witness was OVER 14, and the prompt outcry was not corroborated.
Now his conviction was supportable even though the witness testimony was NOT
corroborated.
Does this violate the Ex Post Facto Clause?
This is an evidentiary limitation, that appears to have become an element of the offense.
COURT HOLDING: 4 things a statute can do that would violate the Ex Post Facto Clause:
(1) Every law that makes an action unlawful that was innocent before the enactment of the law
(2) Every law that aggravates the crime or makes it greater the
(3) Every law that changes the punishment or increases the sentence
17

(4) Every law that changes the laws of evidence of a crime and reduces the requisite evidence or
CHANGES the admissible evidence to support a conviction.
Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the
law required at the time of the commission of the offence, in order to convict the offender.
Hopt v. Utah WITNESS COMPETENCY: The new statute here enlarged the class of persons who could
testify against D and support a conviction (under the old rule, no felons could testify, but under the new rule,
they could).
Hopt changed merely the rules of evidence that was ADMISSABLE.
Thus, the new rule did NOT violate the Ex Post Facto Clause.
There is a difference between ADMISSABILITY of evidence and the SUFFICIENCY of the evidence.
Under the new statute here, there was a CHANGE IN THE ELEMENTS OF THE OFFENSE.
Hopt did not change the definition of the crime under the statute.
This new law, however, changed an ELEMENT of the offense.
Thus, it violated the Ex Post Facto Clause.
DUE PROCESS RETROACTIVITY
An unforeseeable judicial enlargement of a criminal statute, applied retroactively, violates the due process right to
fair warning of what constitutes criminal conduct
Consider the following factors
The existence and clarity of the state courts' previous interpretation
The explicit or implicit support of legislature

Harris v. Booker DUE PROCESS: PRECEDENCE: Bouie v. City of Columbia There, the USSC said that
retroactively apply unforeseeable interpretation of a criminal statute violates due process.
FACTS: D filed for habeas corpus, which was based on felony firearm rule.
Aiding and Abetting: Every person concerned in the commission of an offense, whether he directly commits
the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be
prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense.
D robbed a store, but his companion wielded a shotgun.
ISSUE: Johnson OLD RULE: A person aids and abets only when they help to OBTAIN or RETAIN the
firearm.
NEW RULE: That carrying a gun in the duration of a felony was classifiable as aiding and abetting.
COURT: The new rule was UNFORESEEABLE because the statute had been followed for 20 years.
(1) The old ruling had been good law for 20 years.
(2) The Legislature would probably repeal the statute or amend it if they didnt like it, but they didnt.
This implies that the Legislature wanted the OLD RULE to stay.

DUE PROCES: VOID FOR VAGUENESS In the case where there is a law on the books where there is possible
liability and we can go to liability for D.
18

But we cannot go from no liability to liability for D.

USSC says that the public is entitled to adequate warning.
A statute will be void for vagueness under two circumstances:
a. If fails to give a person of ordinary intelligence fair notice that his contemplated conduct is prohibited
by statute
b. It encourages arbitrary and erratic arrests and convictions
i. The is a certain amount of discretion allowed.
ii. BOUNDARY The line is blurry, but generally, if a law actively encourages arbitrary arrests
rather than just allowing discretion, it will probably be struck down.
Papachristou v. City of Jacksonville LOITERING
Vagrancy Statute: Criminalizes rogues and vagabonds, common drunkards, persons wandering or strolling
around from place to place without any lawful purpose or object, persons able to work but habitually living on the
earnings of their wives and minor children.
BROAD PURPOSE: People would be discouraged from loitering.
LOCALIZED FUNCTION: To allow the police to arrest anyone at any time.
PROBLEM WITH THE STATUTE: It encourages arbitrary arrest and prosecution.
The USSC already said that anyone can be arrested at any time.
So there is something else wrong with the statute.
HIDDEN EQUAL PROTECTION ISSUE: This statute inordinately affected some groups more
than others.
Several of the Ds were white females and others were black males Discrimination against
interracial couples?
CRIMINALIZES CONSTITUTIONALLY PROTECTED ACTIVITY: Can they make it a crime
if a male is working but is habitually living off the earnings of his rich wife?
This statute would criminalize activities that are not only previously innocent, but also
constitutionally protected.
Chicago v. Morales ELEMENTS OF THE OFFENSE: (1) A police officer reasonably believes that the person is
loitering, (2) the loiterers are gang members, (3) the cop orders them to disburse, and (4) the group disobeys and
refuses to disburse.
This law is NOT the same as the statute in Papachristou.
DIFFERENCE:
QUESTION: It may be hard to avoid being a wonderer or a loafer, or understanding what that is, but how is it hard
to go when the police say to go?
PROBLEM: The court says that, like the statute in Papachristou, the loitering that the statute prohibits is
Constitutionally approved.
RULE: (1) A statute may be considered TOO VAGUE for under the Due Process Clause if it (1) encourages
arbitrary arrests or if it (2) an ordinary reasonable person does not adequately know that he is breaking the law
under the current statute
19

(2) Think about some constitutionally protected rights that is implicated.

A statute will be struck down under the overbreadth doctrine if:
The enactment reaches a substantial amount of constitutionally protected speech
Overbreadth is not substantial if, despite some possibly impermissible application, the
remainder of the statue covers a whole range of easily identifiable and constitutionally
proscribable conduct.
DRUGS AND ALCOHOL
Govt can regulate it
If congress provides valid justifications for providing its position, it is irrelevant that the ultimate outcome is
seemingly discriminatory against certain protected groups.
Some groups do indeed get affected by this regulation more than others.
This is quite similar to prosecutorial discretion very deferential.
As long as there is a valid justification, no matter who is prosecuted, it will probably be upheld.
State v. Bonner CONSTITUTIONALLY PROTECTED ACTIVITY?
FACTS: D took photos of a 16-year-old while he was looking through blinds.
STATUTE: (1) It is a felony for any person at least five (5) years of age older than a minor child who is
sixteen (16) or seventeen (17) years of age, who, with the intent of arousing, appealing to or
gratifying the lust, passion, or sexual desires of such person, minor child, or third party, to:
....
(d) Make any photographic or electronic recording of such minor child.
Argument for nonliability The statute was UNCONSTITUTIONAL because it violated a First Amendment
right since the statute could violate any photo that didnt harm minors or could extend to photos with no sexual
content.
Ex. D went to a high school and took photos of a basketball game (which included minors) and sold them to
people who got sexual gratification from them.
He took the photos with the INTENT to sell them to these people.
Under the statute, he would be liable, and D thinks this is problematic.
Free Speech Coalition Virtual or cartoon pornography that depicts virtual children in a provocative image
is not harmful.
However, in another case, a photoshopped image of a child can be considered child pornography.
REASONING: It is embarrassing and humiliating and harmful enough to justify criminal
intervention.
HOLDING: This statute is OVERBROAD It criminalizes Constitutionally-protected conduct.
REASONING: PROTECTED BEHAVIOR THAT IS CRIMINALIZED UNDER THIS STATUTE:
Taking photographs of minors for the purpose of gratifying sexual desires AS WELL AS for nonobscene,
non-prurient purposes.
Obscenity Any works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual
conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or
scientific value.
A sexually explicit film that is not prurient (a non-wholesome but perverted interest in sex) is NOT obscene.
Ex. A photo of a naked young person is not necessarily obscene.
Ex. A photo of a high school basketball team is not a crime in and of itself.

20

Argument that what D did is NOT child pornography: Even if the child was fully naked in the picture, you would
have to consider every single photo of their child in a bathtub as lascivious.
CHIN: Probably not every naked picture of a child is child pornography.
Perhaps in the high school example, even if the photos were taken in a public place of people fully clothed could
potentially be prosecuted under this statute depending on how the photos were framed (Ex. Where they are zooming
onto).
State v. Adkins VAGUENESS
FACTS: D is charged with being in presence of other people using unlawful or controlled substances, knowing
full well that these substances were being used.
At trial, the defense counsel argued that this was constitutionally vague.
STATUTE: It is unlawful To visit or to be in any room, dwelling house, vehicle, or place where any controlled
substance is being used contrary to the provisions of section 28 if the person has knowledge that such activity is
occurring;
VAGUENESS: Is there a right to be in a place where a controlled substance is being used?
COURT: Must the host expel his guest when s/he knows that a controlled substance is being used?
The court suggests that this is unreasonable.
The court then gives examples of OTHER JURISDICTIONS where similar statutes were saved.
Ex. Another jurisdiction statute would say that you need to be in your house you control the substance,
and if we require that, then the statute is constitutional.
Ex. Another statute requires that you partake in the consumption as well.
The court HERE says that they dont want to rewrite the statute.
So they strike it down.
Herman v. The State 1850
COURT: struck down a statute that prohibited the use of drugs in Indiana.
They disagree with European ideals and authority In places with monarchs, where there is no
freedom, the government can do anything.
But in America, its not that people get freedom from the government, but that the government gets
its freedom from the people.
The court says that idea that the Legislature can criminalize anything that is considered to
be injurious cannot be taken literally.
In 1855, some courts thought that it was preposterous for the government to tell people what they can or cannot
consume.
HOLDING: The Liquor Act was struck down.
Herman v. State OVERTURNED BY
Territory v. Ah Lim 1890
At this point, the picture has CHANGED.
Opium is sold over the counter.
COURT: First the court says that laws are presumptively constitutional.
21

Secondly, they say that it up to the legislatures job to keep the peoples interests in mind.
It is the judiciarys peculiar power to keep the legislature in line with the Constitution, but it does not
replace the legislature.
They admit that mistakes are going to be made, but it is more important that the government does what it
needs to do than the people find justice.
The court is basically saying that, if the government says that the people must take care of themselves, then that
is what it SHOULD be doing, so that that person is not a burden on the state.
NOTE: Today, do we have a constitutional right to alcohol and tobacco?
CHIN: Doesnt think so but isnt sure
- Things we used to think were criminal we now have a constitutional right
o Contraception
o Same sex relations
Constitutionally-protected things change.

United States v. Clary CRACK COCAINE

FACTS: US Sentencing Guidelines (highest level = 38, lowest = 6) show drug crime quantities :
(150 KG or more of Cocaine; 8.4 KG or more of Cocaine Base)
**Cocaine treated much more easily than Cocaine Base
(30,000 KG or more of Marijuana Thats 66,138 pounds!)
ISSUE: 50 grams of Crack Cocaine carries SAME MANDATORY MINIMUM sentence as 5,000 grams of Powder
Cocaine = 10 years imprisonment
--It is conceivable that there are valid reasons to treat similar drugs differently
Defendants argument: 100:1 penalty ratio contained in 21 U.S.C 841(b)(1)(A)(iii) [crack statute] and in US
Sentencing Guidelines has a disproportionate impact on blacks because blacks are more likely to possess cocaine
base than whites, who are more likely to use cocaine powder.
--Violates equal protection rights guaranteed by the Fifth Amendment
Whos racism are we concerned about?
The Legislature/Congress
--Argued that Congress was influenced by the portrayal of cocaine base in inner-city communities and
that this created a subliminal/unconscious racial bias
--Pointed to the arbitrary increase from 50:1 ratio to 100:1 ratio. NO real discussion or motive for this
increase.
--Congress hastily enacted the bill and ignored typical procedure in their hearings and fact-finding
efforts
--Congressional record cited articles that discussed preventing the crack problem from reaching the
suburbs from the inner-city
--Disparate impact/effect of the law: often enforced strictly against blacks, but there is evidence that
shows whites receiving favorable treatment for same crimes
22

(92.6% of Ds convicted in 1992 of crack cocaine violations were black and 4.7% of
defendants were white)
--Judicial/Police Discretion: typically is not a problem unless it is based on race/sex/etc.
--55 of 57 of Districts crack cocaine violators were black
**Outside Discussion/StudyScience facultys subtle gender biases favor male students**
--Male resumes rated higher on average than women resumes (even by female faculty)
**Extraneous factors in judicial decisions**
--Followed judges making parole decisions
--Straight-line correlation between how recently judges had eaten and how likely they were to grant parole
Percentage of favorable rulings drops gradually from 65% to nearly zero after each session, and rises again
after lunch breaks
Congress Justifications/Counterarguments:
--Concluded that crack cocaine was substantially more addictive and dangerous
--Dealers/kingpins more dangerous for this drug (really?...)
--Procedural deviations were not significant/egregious to make law unconstitutional
--Media bias/images did not substantially show that discrimination was involved in the drafting of the
legislations penalties
--Equal Protection Clause violated only if that impact can be traced to a discriminatory purpose
HOLDING: District Court finds legislature unconstitutional; sentences prison term consistent with power cocaine
levels instead of cocaine base levels.
In reversing, the Court of Appeals holds that the legislation was constitutional. The evidence present does not
PROVE the intent to discriminate requisite for an Equal Protection violation.
Clary presented only statistical evidence (oh yeah, thats not significant or anything) and offered nothing else to
show selective prosecution. What do they want, emails?
CHIN: It is obvious there is some discrimination in this practice, even if there is no concrete evidence of
discriminatory intent.
There is at least the possibility, but theres really not a
strong likelihood of a legal remedy in court.
Fair Sentencing Act (2010) Retroactively reduced sentences for crack cocaine; reduced disparity to 18-1
Proof Beyond a Reasonable Doubt
In Re Winship (1970)Supreme Court: the Due Process Clause protects the accused against conviction
except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is
charged.
--Just because the case is closed doesnt mean there cant be a conviction

23

SUFFICIENCY OF THE EVIDENCE Could any rational trier of fact, viewing the evidence in the light most
favorable to the prosecution, have found every element of the offense beyond a reasonable doubt?
The state no longer needs to disprove every possible innocent explanation in pure circumstantial evidence
cases.
Bobby L. Monroe v. State of Delaware FINGERPRINTS
FACTS: D claims he was window-shopping and that he and his GF were watching a movie during the night in
question (but, that movie was not in theaters on the date specified)
Appliance Center was burglarized through a broken window of a plexiglass door
Fingerprints of Monroe found on pieces of shattered plexiglass
Other fingerprints found but not identified/collectable
CHARGES: 1) Burglary Third Degree and Theft Felony
ISSUE: (1) Latent fingerprints of D on the outside door to a burglarized, commercial building is sufficient to convict
in the absence of any other evidence in the States case
(2) The failure of defendant to move for judgment of acquittal at the conclusion of the States case bars him
from raising sufficiency of evidence claims on appeal
Sufficiency of Evidence Claims:
--Page 90 cases show examples of when prints are (are NOT) sufficient evidence for conviction
A conviction cannot be sustained solely on a defendants fingerprints being found on an object at the crime scene
unless the State demonstrates that the prints could have been impressed only at the time the crime was committed.
This is followed by a number of jurisdictions
However, evidence may be sufficient where the circumstances create a strong inference that the defendant was the
perpetrator
a. Whether the prints were found in a private or public structure
b. Whether the D had any special access to the object in question
c. Whether the manner of placement of the prints on the object is supportive of the D having placed
them there while committing the offense
Waiver of Defendants Claims
Ds counsel did not file a timely appeal even though he was directed by his client
Were the defendants prints on any significant portion of the Plexiglas?
Evidence could not prove that he was there at the time of the robbery

BURDEN SHIFTING INSTRUCTIONS/ARGUMENTS: (1) The only way D can be acquitted is if the
prosecution witnesses are mistaken or lying.
Argument that this is objectionable: It creates a presumption that witnesses are telling the truth, and thus
shifts the burden to D to show that the witnesses are lying or mistaken.
(2) Scientific test shall be considered valid if done in accordance with regulations.
It is up to the jury to decide whether something like a chemical test is valid or reasonable.
In many parts of the trial, D needs to be able to show that such tests are invalid or unreasonable.
24

SPECIAL SUFFICIENCY RULES: There is a general test: In making a decision, judges have to decide whether
there was proof beyond a reasonable doubt that undermines the presumption of innocence.
On review, the question is whether a reasonable finder of fact could have found that any one of the elements
has not been met.
REASONABLE DOUBT (SUFFICIENCY OF EVIDENCE)
The standard of review for insufficiency of evidence claims is
whether any rational trier of fact, viewing the evidence in the light most favorable to the state, could
find a defendant guilty beyond a reasonable doubt
SUFFICIENCY OF FINGERPRINTS for CONVICTIONS
A conviction cannot be sustained solely on a defendant's fingerprints being found on an object at a crime
scene unless the state demonstrates that the prints could have been impressed only at the time the crime was
committed
Consider whether
a. The prints were found in a public or private structure
a. The object at issue is generally accessible or its access is restricted
b. D has special access to the item at issue, which may excuse the existence of his fingerprints
c. The manner of the placements of the prints is supportive of the contention that D placed them
there while committing the charged offense
SPECIAL SUFFICIENCY RULES
Some jurisdictions still prevent convictions based solely on accomplice testimony
Reason: If an accomplice is caught, he will probably falsely testify that his partner did it.
Corpus Delicti - Some jurisdictions (including California) prevent people from being convicted on a
confession alone - there needs to be corroborating evidence
Reason: A lot of crazy people claim that they did it.
Circumstantial Evidence Some jurisdictions hold that convictions based on circumstantial evidence alone
must exclude every reasonable hypothesis apart from guilt
This is a very hard standard to meet.
Weight of the Evidence (New Trial) - If the weight of the evidence goes against what the finder of fact
reaches, there will be a new trial ordered
Very few states allow this.
Corroboration - Certain states (and statutes - Ex. Treason) require certain corroboration
Ex. Treason Requires two witnesses to corroborate the evidence of treason.
But some jurisdictions have SPECIAL RULES:
ACCOMPLICE TESTIMONY: They say that
CORPUS DELICTI: A person cannot be convicted exclusively on their own uncorroborated statement that
someone else committed a crime (CA has this rule).
Ex. A woman says My baby didnt die of natural causes, but I smothered him.
The rule says that the confession alone is insufficient We need something else, such as
medical proof.
POLICY: People confess to crimes all the time that they didnt commit.
Ex. Thousands of people confessed to the Kennedy assassination.
If the gist of the crime is words alone, then a witness to the words can get over this doctrine.
But if there is no other corroboration to the words alone, it may not be enough under this
doctrine.
CIRCUMSTANTIAL EVIDENCE: This is a totality of the circumstances rule.
25

WEIGHT OF THE EIVDENCE NEW TRIAL This is where there is sufficient legal evidence, but the
state says that we are going to have a new trial anyway or dismiss the case.
This is when the court feels someone is innocent, despite a conviction by the jury.
This is very rare.
CORROBATION (Carmell) This is where the statute itself has its own special sufficiency rule,

PRESUMPTIONS
PROOF BEYOND A REASONABLE DOUBT: this is a standard used by judges in a bench trial, but this is
relevant to when judges and prosecutors make comments that undermine the presumption of innocence and
burden of proof beyond a reasonable doubt.
The evidence has to become sufficient to satisfy EVERY ELEMENT OF THE OFFENSE.
Then the question is what are the elements of the offense?
Ex. Connecticut General Statutes No person shall carry any pistol or revolver upon his or her person, except
when such person is within the dwelling house or place of business of such person, without a permit to carry the
same issued as provided.
ISSUE: except part Is this an element of the offense (which, in general, would put the burden on the
prosecution) or an affirmative offense (in which case, D would have the burden to supply the evidence)?
AFFIRMATIVE DEFENSES: D must bear burden of going forward, BURDEN OF
PRODUCTION some evidence.
This is enough to get to the jury.
Thus D would prefer it to be an ELEMENT rather than an AFFIRMATIVE DEFENSE, because
in which case, they dont have to supply any evidence.
Why would a defense witness NOT want to testify:
The witness could have some criminal convictions, and this could come up.
The witness could have accidentally confess to another element of the offense.
The witness could get impeached for prior inconsistent statements.
AFFIRMATIVE DEFENSES
Affirmative defenses are NOT an element of the crime
It should never be an element of the crime.
Affirmative defenses allows D to be found not guilty even if elements are proved
D has the burden of production and persuasion, which varies by jurisdiction
Creating a reasonable doubt Some jurisdictions just require that D only make a reasonable doubt
with evidence supporting the affirmative defense.
Once D is done, the prosecution must rebut and prove the element beyond a reasonable doubt
When can an Affirmative Defense Exist?
2 distinct standards:
1. CA Rule of Convenience and Necessity
D may have to prove the fact if
It is not unduly harsh or unfair for him to do so
Its existence is peculiarly within his personal knowledge
It would be relatively difficult or inconvenient for the prosecution to prove its non-existence
Ex. If D has a permit (and having a gun permit is an affirmative defense to a charge of
carrying a firearm), it would be a lot more difficult for the prosecutor to prove that D
does not have a permit than for D to come forth with the permit.
2. Florida (Majority) Rule
Legislature has a general ability to change an element into an affirmative defense
Exception when it would be patently unreasonable to do so
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PRESUMPTIONS
4 types of presumptions
A permissive presumption (regarding the existence of an element) based on specified facts
Constitutional
Mandatory (burden of production) presumption
Burden of production If the prosecution provides clear and convincing evidence that D was
in the car, but this can be rebutted by D by showing some evidence.
This is less than 50% sure.
???
Mandatory (burden of persuasion) presumption

Unconstitutional It shifts the burden of proof to D to prove that he didnt satisfy an element,
when this would usually be the prosecutions job.

The level of proof is definitely above 50%.

Conclusive presumption
Unconstitutional
Example: It is a felony to possess cocaine in a car
If the prosecution proves that he was in a car with cocaine, you may, but need not find that he
possessed it
If the prosecution proves that he was in a car with cocaine, you must find that he possessed it, but the
defendant may provide some evidence that he did not possess it, after which the prosecution must
prove possession beyond a reasonable doubt
If the prosecution proves that he was in a car with cocaine, you must find that he possessed it, but the
defendant may provide enough evidence (preponderance) to overcome the burden. At that point,
the prosecution must prove possession beyond a reasonable doubt
If the prosecution proves that he was in a car with cocaine, you must find that he possessed it
Even presumptions that are constitutional may be invalidated as applied IF:
There is no rational connection between the facts that must be shown by the prosecution and the
presumption that those facts then create
Ex. Once the prosecutor proves that someone is 18 and a high school graduate, the jury may,
but need not, presume that he possessed cocaine found in his house
There is no rational connection between the two facts the prosecutor must show (18
and graduate) with the presumption it is proving (possession of cocaine)

People v. Neidinger RULE OF CONVENIENCE AND NECESSITY

STATUTE: CA Penal Code: 278.5 (a) Every person who takes, entices away, keeps, withholds, or conceals a child
and maliciously deprives a lawful custodian of a right to custody, or a person of a right to visitiation, shall be
punished.
EXCEPTION: 278.7 - 278.5 does not apply to a person with a right to custody of a child who, with a good
faith and reasonable belief that the child, if left with the other person, will suffer immediate bodily injury or
emotional harm.
FACTS: D (divorced husband) saw that his children (wife had custody) had regressed to a state of
near autism, lethargic, and detached.
D took his children.

ISSUE: 278.5 does not say whether or not it is an element of an offense or an affirmative defense, nor does it say
who has the burden nor what the burden is.
27

Lower Court: D had a preponderance of the evidence.

USSC: Rule of Convenience and Necessity: unless it is unduly harsh or unfair, the burden of proving an
exonerating fact may be imposed on D if its existence is peculiarly within his personal knowledge and proof of
its nonexistence by the prosecution would be relatively difficult or inconvenient.
Ex. If you have a pistol permit, you would probably know that you have it.
This rule states that, thus, if you have something that would exonerate you from criminal liability, you
should probably bring forth that evidence (Ex. permit).
CA says that if it is a fact that you know or should know, the burden is going to be on the D, under this rule.
BURDEN: REASONABLE DOUBT D just has to come forth with something that will put the prosecution
at issue.
Once D has gone forth and raised a reasonable doubt (and gotten to the jury), and if the jury finds
REASONABLE DOUBT, D should be acquitted.
Thus, the standard for getting the case to the jury (i.e. reasonable doubt) is the exact same as the standard to get D
to win the case (i.e. reasonable doubt).
CHIN: PROBLEM: The judge has already found that there is a reasonable doubt that is why the judge
sent the case to the jury anyway.
If this is so, then shouldnt the judge just dismiss the case rather than sending it to the jury?
ANSWER: The judge is evaluating it as a legal question The standard would be could a reasonable jury
find that not every element of the offense has been met?
The judge is not saying that he/she thinks that there is a reasonable doubt.
They are instead saying, could a reasonable jury find reasonable doubt?
HOLDING: (1) Thus the rule of convenience and necessity says that 278.7 is an affirmative defense, placing
the burden on D, but the burden is LOW.
(2) The burden is on the PROSECUTION to disprove Ds defense and that burden is also reasonable
doubt.
A legislature cannot make an element of the offense a defense.
Ex. Any person who, with premeditation and deliberation, kills another is guilty of murder.
DEFENSE: The killing was not premeditated and not deliberate.
State v. Adkins BURDEN OF PROVING MENS REA
STATUTE: 893.13(1)(a), (6)(a), Fla. Stat. (2011) it is unlawful for any person to sell, manufacture, or deliver,
or possess with intent to sell, manufacture, or deliver, a controlled substance or to be in actual or constructive
possession of a controlled substance.
The court here goes through the history of this section.
There was a history of cases that says that 2 kinds of knowledge is required: (1) Knowledge of the presence
of the substance and (2) the illicit nature of the substance (CHIN: They are not really talking about whether
or not your know that the substance is illegal which would require you to know the law but that you need
to know that the substance is a drug).
Then the Legislature comes out and says that knowledge of the illicit nature of the substance is NOT an element
but it is a DEFENSE.
ISSUE: Is it constitutional for a statute to require D to prove that they had no knowledge that the substance
they possessed was illicit?
HOLDING: It is Ds burden as an affirmative defense, and in the prosecution, they dispense with mens rea.
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REASONING: Rather than punishing inaction, to convict under 893.13, the state must prove that the D
engaged in the affirmative act of selling manufacturing, delivering, or possessing a controlled substance.
There is no protected right to be ignorant of the nature of the property in ones possession.
Common sense tells us that those who traffic in heroin will inevitably become aware that the
product they deal in is smuggled, unless they practice a studied ignorance to which they are not
entitled.
CONCURRENCE: The concurrence suggests a case-by-case defense: it would be difficult to uphold the act,
which codifies felony offenses with substantial penalties, against a constitutional attack when mounted by a person
who possessed a controlled substance unwittingly or without knowledge of its illicit nature.
CHIN: This doesnt really work because we already have the affirmative defense.
NOTE: Mens rea is rarely constitutionally required.
tra
QUESTION: How consequential is the decision?
Even if we had BOTH requirements that we know that we possess something and that we know that that
substance is an illicit substance, how much will it affect outcomes?
ANSWER: JURY PRESUMPTION If a person says that we didnt know that we the suitcase in
my car contained drugs, a jury may presume that, since the suitcase was in my car, I must have
known about the drugs.
Neidinger There is language in Neidinger that suggests that CA law does not agree with the decision in that
Adkins.
There are, of course, limits on what the state may do in this regard. [T]he state may not label as an
affirmative defense a traditional element of an offense and thereby make a defendant presumptively guilty
of that offense unless the defendant disproves the existence of that element.
TRADITIONAL ELEMENT of the statute: Knowledge of the illicit nature of the substance.
Therefore, it is not right to make that into an affirmative defense and thereby shift the
burden to D to prove its nonexistence.

DIFFERENT LEVELS OF PRESUMPTIONS

(1) PERMISSIVE PRESUMPTION The jury is permitted to infer from the truth or presence of a basic fact (Ex.
Having a gun in your car) the truth or presence of a elemental fact (Ex. Therefore the people in the vehicle owned or
possessed the gun).
BUT THEY DONT HAVE TO INFER THAT.
Prosecution: They have the burden of proving the basic fact (Ex. The guns were in the car), and thats it.
Ds BURDEN: NO BURDEN They dont have to show anything really (its a roll of the dice).
CONSTITUTIONALITY These are generally constitutional (Sandstrom)
(2) MANDATORY PRESUMPTION JURY INSTRUCTIONS: Once the state has proven the basic fact, the
burden SHIFTS to D to disprove the presumption.
Burden on Defense: Production of some evidence.
Once the prosecution proves the basic fact, they have to presume the elemental fact unless they D
disproves (preponderance of the evidence) the basic or the elemental fact.
CONSTITUTIONALITY (1) If it is a defense or an exception, it IS constitutional.
(2) If it is regarding elements (D would have to disprove an element), then it MAY be constitutional, but
maybe not.
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(3) CONCLUSIVE PRESUMPTION JURY INSTRUCTIONS: Ex. IF the prosecution successfully proves that
you possessed something, then the jury HAS to presume the elemental fact.
Conclusive presumptions are IRREBUTTABLE.
Burden on Defense: Irrelevant Once the presumption is met, it sticks.
CONSTITUTIONALITY NO.
(4) BURDEN SHIFTING PRESUMPTION D has the burden of production and proving that the presumption is
wrong.
CONSTITUTIONALITY (1) If it is an element that D has to disprove, then it is NOT constitutional.
(2) If D has the burden to prove the inexistence or falseness of an element via a DEFENSE or an
EXCEPTION, then it IS constitutional.

Sandstrom v. Montana PRESUMPTION OF INTENT/MENS REA How Much Proof?

CHARGE: D was charged with deliberate homicide.
ELEMENTS OF DELIBERATE HOMICIDE: (1) PURPOSEFULLY and (2) KNOWINGLY (3) killed the
victim.
ISSUE: JURY INSTRUCTIONS: The law presumes that a person intends the ordinary consequences of his
voluntary acts.
HOLDING: They said that they need not decide the constitutionality of this or the MANDATORY
PRESUMPTION.
Permissive presumptions are constitutional.
The state tried to argue that the jury could have found the instructions could have been
interpreted to mean either BURDEN SHIFTING or PERMISSIVE.
But, since the instructions could have also been construed as either MANDATORY or
CONCLUSIVE (which were probably the more constitutionally problematic), they
choose to focus on those 2.
Conclusive Presumptions: NOT CONSTITUTIONAL.
Burden-Shifting Presumptions: (1) If Ds burden is to prove the nonexistence or absence of an ELEMENT, then
NO.
(2) If Ds burden is to show the applicability of an affirmative defense or exception, MAYBE.

Ulster v. Allen PERMISSIVE PRESUMPTION

FACTS: There were 3 adults and there were big guns in the car.
2 of the guns were found in the handbag of the 16-year old girl.
The 3 dudes tried to assert the EXCEPTION (since it was in the girls bag, it must have been hers).
Predicate facts that trigger the inference: That Ds were in the car with weapons.
PRESUMPTION: That all of them possessed the gun.
EXCEPTION: If the weapon was found on one person.
JURY INSTRUCTIONS: They are permitted to find that Ds possessed the gun.
ISSUE: Ds claim that they were denied Due Process because of the presumption.
The mere fact that they were in the car cannot give rise to the presumption that they all possessed the gun.
30

TEST: The ultimate test of any devices constitutional validity in a given case remains constant: the device must not
undermine the factfinders responsibility at trial, based on evidence adduced by the State, to find the ultimate
facts beyond a reasonable doubt.
LEARY TEST: The predicate facts that supposed to lead to the elementary conclusion does not
correspond.
MAJORITY: The court does not look at the test NOT in the abstract.
They say that maybe this presumption makes sense ACCORDING TO THE FACTS OF THE THIS CASE, and
thus, it may not be very problematic to make such a presumption since the girl was the least likely to be in
possession of the gun.
DISSENT: They want to look at the test in the abstract.
They say that just because you jump into the car, it doesnt necessarily mean that you possessed
the gun.
People v. Nix FAILED LEARY TEST
FACTS: Gun was found in Ds trunk.
NYC Admin. Code 10-303: It shall be unlawful for any person to have in his or her possession a rifle or shotgun
unless said person is the holder of a permit for the possession and purchase of rifles and shotguns.
PRESUMPTION: If the gun is inside of a persons car, that gun must be in his or her possession.
ISSUE: This time, the gun was in the TRUNK (and thus there was no clear view), and thus there was an
issue of whether or not D actually had any control or even knew about the gun.
Also, the statute made the holding of a PERMIT to be an ELEMENT, not a defense or exception.
HOLDING: This was unconstitutional because there was not enough evidence to support the logic of the
presumption.
The presumption was ILLOGICAL since, even though D was present in the car, since the gunw as in the
TRUNK rather than in plain view, it makes no sense that D must have known or had control (i.e.
possessed) the gun.
In other words, the presumption that the statute created failed the Leary Test.
Conley v. United States FACTS: D was in a vehicle with an illegally obtained firearm on the front console and D
was in the backseat.
PMVCF STATUTE:
(a) It is unlawful for a person to be voluntarily in a motor vehicle if that person knows that a firearm is in the vehicle,
unless the firearm is being lawfully carried or lawfully transported.
(b) It shall be an affirmative defense to this offense, which the defendant must prove by a preponderance of
the evidence, that the defendant, upon learning that a firearm was in the vehicle, had the specific intent to
immediately leave the vehicle, but did not have a reasonable opportunity under the circumstances to do
so.
ELEMENTS: (1) They must be in a vehicle, (2) they must know that a firearm is in a vehicle, and (3) they must
remain in the vehicle (4) and they must be voluntarily be in the vehicle.
ISSUE: D argues that this statute violates Due Process by shifting the burden to D because Ds voluntary
presence in the vehicle is an ELEMENT of the statute, but according to the affirmative defense, the D must show
that it wasnt voluntary.
PROSECUTION: Must prove that there was no opportunity to get out, reasonable or not.
DEFENSE: They must prove that it was not reasonable to get out under the circumstances.
31

However, it is implausible for D to try to prove that it was unreasonable, since any presence inside
of the car would be construed as voluntary.
MAJORITY: 2 PROBLEMS WITH THE STATUTE: (1) The burden shifting is unlawful.
A statute cannot make an affirmative defense out of an element, since that would shift the burden to D.
(2) The statute places a high and unusual duty on D.
o Lambert A big USSC case where the court stated that a statute was unconstitutional because it
criminalized remaining in LA for a certain period of time without registering if you are a felon.
o INQUIRY NOTICE: Nobody could ever think that they (as a felon) would have such a duty.
o MAJORITY: The duty to get out of the car if you see a gun in the car is a highly unusual and
unforeseeable.
Here, the majority believes that it is a federally constitutional right to knowingly ride around
with a firearm that is illegally obtained.
REASONING: There are a lot of lawful guns D.C.
o Thus, there is no way a person should be put on alert when they see a gun.
CONCURRENCE: Focuses on the AFFIRMATIVE DEFENSE.
He gets around the objections of the majority by saying that if they have an opportunity to get out of the car to
mean that the burden on D is fairly light compared to the burden of the prosecution since all they have to prove is
that they had no reasonable opportunity to get out.
Thus, he argues that the burden on D and on the prosecution is the EQUIVALENT, at least in some
circumstances.
HYPO: If an elderly woman gets in a car with an illegal firearm outside, but the bus stop is a mile
away The prosecution needs to prove that she voluntarily remained in the vehicle but all the
defense needs to prove is that it was unreasonable to get out of the vehicle because she had no
reasonable opportunity to get out.
Ulster v. Allen This USSC court case suggests that maybe it IS dangerous (legally) to be in a car with an
unregistered gun, and that it is not unreasonable for the law to place restriction on people to be in the presence
of a gun.
CHIN: How to harmonize Allen with Conley:
NOTICE: Maybe Allen states very clearly that you should be on notice when you get into a car with a
firearm.
However, maybe this is a critique of Allen.
State v. Taylor PERMISSIVE INFERENCE NOT CONSTITUTIONAL
FACTS: D was convicted of murder.
As we the trial approaches, a witness is dragged to court and THREATENED BY D.
PROSECUTION: They want to use the fact that D threatened the witness as a presumption of guilt.
REASONING: People wouldnt want to tamper with evidence or try to destroy it if they werent
guilty.
CHIN: Even if I am being prosecuted for a crime which I didnt commit, I may be equally motivated
to tamper with the evidence.
Thus the jury is given a conscious guilt instruction This creates a PERMISSIVE INFERENCE.

32

INSTRUCTION: The instruction must specifically include a statement explaining to the jury that it may regard the
basic facts as sufficient evidence of the inferred fact, but that it is not required to do so.
ISSUE: Should there be such a presumption of guilt?
HOLDING: This is a burden-shifting instruction.
REASONING: It is the prosecutions job to provide the jury with the witness, and it is the jury (factfinders) job to rule on whether or not to consider the witness testimony as true and valid.
Stating that the jury may presume the truth and validity of the threatenend witness testimony shifts
the burden to D to disprove the truth and validity.
QUESTION Are presumptions legitimate?
CHIN: This is a pro-prosecution mechanism that Due Process says that it doesnt apply (People v. Nix) or
where the presumption is irrelevant (Ulster v. Allen).
However, it does seem to be upheld in CLOSE CASES, where the conviction or acquittal could go
either way. We can GENERALIZE presumption in that, where we have a logical connection
between the predicate fact and the elemental fact, then it may be upheld.
Another way to do it would be to give things favorable to the defense in presumption form.
(Ex. If you find it to be reasonable under the circumstances, the jury may presume a
prosecutions witness to be unreliable or lying if they feel it is so.)

STATUTORY INTERPRETATION
2 BASIC APPROACHES TO STATUTORY INTERPRETATION:
(1) TEXTUALISM APPROACH: look at the words, define them
This is designed to limit the power of judges and puts more powers on the Legislature.
Here, there will be reluctance to go beyond the text except for what people commonly believe
certain words to mean (i.e. the usage of dictionaries).
This doesnt like legislative history.
NOTE: Legislative history Things like committee reports usually dont come about until after Congress
passes the law.
Thus, legislative history can be a rather retroactive discussion.
Also, until recently, the national Congressional record was never actually said on the floor of
Congress.
Instead, they usually write speeches, but dont have enough time to say it.
Now, after the REFORM, they just have to read the first sentence.
CHIN: This is still not really evidence of Congressional intent.
Scalia says NO to intentionalism.
Other justices like Breyer agree that unambiguous text must be interpreted by its own meaning.
However, these justices are more willing to go beyond the text.
PLAIN MEANING RULE Both sides agree that unambiguous statutes must generally be interpreted by
their own meaning.
33

(2) INTENTIONALIST APPROACH: what is the legislature trying to accomplish?

They are more willing to look at legislative history and other sources to figure out what Congress actually
wanted.
YULE KIM STATUTORY INTERPRETATION This lists a lot of the cannons of construction which
courts use.
PROBLEM: A lot of the cannons of construction have OPPOSITES.
There are a number of state codes and criminal codes that take a STANCE on HOW A STATUTE
IS TO BE INTERPRETED.
A number of statutes have statutes that say that statutes must be construed in a certain way.
A number of statutes in MPC jurisdictions REJECT strict textualism for a more purposivist
view.
Ex. LOUSIANA The articles of this Code cannot be extended by analogy so as to
create crimes not provided for herein; however, in order to promote justice and to
effect the objects of the law, all of its provisions shall be given a genuine construction,
according to the fair import of their words, taken in their usual sense, in connection
with the context, and with reference to the purpose of the provision.
CANNONS of CONSTRUCTION:
1. Plain meaning rule
a. It text is unambiguous, use the plain meaning of the words to reach a result
i. However, you do not interpret a statute using the words' plain meanings if that
would lead to absurd results
2. Rule of Lenity
a. Criminal statutes are subject to strict construction under the rule of lenity
i. Construe ambiguities in favor of D
3. Constitutional Avoidance
a. Courts will interpret statutes in such a way to avoid serious constitutional issues
4. Consider legislative history in interpreting statutes
5. Public welfare/statutory rape statutes are less likely to have a mens rea
a. Public welfare offenses do not carry social stigmas, but rather regulate minor, low level
conduct
6. Grammar and Punctuation
7. Mens rea term applies to all elements
a. MPC has adopted this; common law followed.
8. Jurisdictional facts are treated differently
a. Ex. Mens rea We dont care whether or not D knew he was in North Dakota when he
killed someone in North Dakota.
9. In pari Materia
a. Statutes that are passed together are assumed to have similar requirements (mens rea
requirements)
10. If Congress re-passes a statute after a court's interpretation of that statute, it is implicitly
accepting that interpretation

34

ENTRAPMENT
2 VIEWS:
1. SUBJECTIVE Majority View
i. Did the government induce the crime?
a. Must be a Yes
ii. Was D predisposed to committing the crime?
a. Must be a No
b. QUESTION: Did the government come up with the idea and try to punish an innocent
person who was otherwise not predisposed to illegal activity.
i. This is a jury question.
2. Objective Version Minority View
i. Did the govt use a method that would make ordinary law abiding people commit a crime
Substantial risk test Did the governments conduct create a substantial risk of D
committing the crime?
This works as an affirmative offense for really any offense.
Sorrells v. United States ENTRAPMENT
FACTS: D was indicted for a half-gallon of whiskey to an undercover agent.
D tried to use ENTRAPMENT as a defense.
TRIAL COURT DENIED.
The undercover agent asked D three times if he could get some liquor.
After he provided the liquor, he was prosecuted under the
WITNESSES: testified of Ds good character.
CHIN: There is a traditional defense of GOOD CHARACTER This will take the form of defense
bringing in witnesses to say that D is actually a good person.
The jury is allowed to consider whether the persons good character creates a reasonable doubt.
PROBLEM: Once the fact that the persons good character is an issue, the probability of his
bad character also becomes fair game.
ISSUE: Is entrapment a defense, even though the statute doesnt mention it.
ACTUS REA and MENS REA seems to be both satisfied.
DEFENSE: The undercover cop essentially coerced him
USSC: Entrapment should be a defense in this case.
HOLDING: They REMANDED it back to the District Court to consider it.
This is a JURY QUESTION.
TEST: It is fair game to consider whether D was otherwise innocent, and the defense may be brought
up in the not guilty plea.
CONTROLLING QUESTION: D was a person otherwise innocent whom the government is seeking to punish for
an alleged offense which is the product of the creative activity of its own officials.
When the criminal design originates, not with the accused, but is conceived in the mind of the government
officers, and the accused is by
1. persuasion,
2. deceitful representation, OR
3. inducement
35

lured into the commission of a criminal act, the government is estopped by sound public policy from
prosecution therefor.
TEST: (1) When the government induces D into committing the alleged crime via persuasion or (effectually)
coercion.
(2) (Sort of the same question) Whether D was predisposed to the crime.
The government thinks that there could not really be inducement without predisposition.
MAJORITY They get here via statutory interpretation.
They say that Congress couldnt have logically said that this exception DOESNT apply here.
Thus, there is the exception/defense of entrapment.
The cases that are cited are ones unlike where a narc sends drugs to someone and then waits to see whether or
not D takes them.
NOTE: Here, the legislature did not dissent to this reading of their statute at all.
CONCURRENCE Justice Roberts has different thinking of how to get to the conclusion.
He thinks (Scalias textualism) that you cannot read into the statute an exception THAT WASNT
ALREADY THERE.
He believes that courts cannot rewrite the statute.
CHIN: DISAGREES There is no way around courts rewriting statutes.
It makes no sense to believe that individual statutes are completely divorced from surrounding
legal principles.
Thus, in the case of incomplete codes (Ex. US Code) which do not read in things like selfdefense, courts should read in such a defense.
Elsewise, we assume that Congress did not know of such exceptions.
Nevertheless, he believes that D should get off the hook according to Roberts.
How far does entrapment go?
What if the cops really induced D to commit murder?
NOTE: For certain things, no matter how much emotional pressure you are put to you would never do it.
Thus, predisposition must be looked at through circumstantial evidence.

MISTAKE
Mistake of Law
An individual who breaks a law based on a reasonable reliance on the interpretation of a law through
an established modem is not guilty of violating the law
Attorney General If D relies on the AGs interpretation of the law, and then commits an
offense, D is not guilty.
Army Corp of Engineers
Local law professor Not OK.
Listening to Chin misstate the law cannot alleviate Ds culpability.
X-Citement Video 18 U.S.C. 2252 (a) Any person who
(1) knowingly transports or ships in interstate or foreign commerce by any means including by computer or mails,
any visual depiction, if
(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
36

(B) such visual depiction is of such conduct;

(2) knowingly receives, or distributes, any visual depiction that has been mailed, or has been shipped or transported
in interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported,
by any means including by computer, or knowingly reproduces any visual depiction for distribution in interstate or
foreign commerce or through the mails, if
(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct;
FACTS: The actress Traci Lords used a very convincing fake I.D. to allow her to do porn.
This created a lot of child porn videos floating around.
D sold an officer a video KNOWING that the video contained child porn.
D challenges the constitutionality of the statute on the grounds that it violates 1st Amendment rights and gets
rid of mens rea requirement.
This case showcases all of the methods of statutory interpretation.
There are a lot of them.
ISSUE: It is clear that the object that is being transported or shipped has to be knowingly transported or shipped.
Does D have to know that the object being transported or shipped depicts a minor engaging in sex?
HOLDING; The court goes through a large number of interpretative tools.
(1) Grammar and Structure (a) The fact that the word knowingly is put in the big section ((a)(1)) maybe
suggests that the word flows throughout the whole clause (through (a)(1)(A)).
(b) But the fact that the relevant clause (minor having sex (a)(1)(A)) is separated from the
overarching part ((a)(1)) suggests that knowing applies only in (a)(1).
(2) Purpose of the Statute
(3) Legislative History they find this inconclusive, but there are hints both ways.
However, they do say that probably Congress intended that D, in order to be culpable, at least
know that the images being transported were of a sexual manner.
DOJ argues that the statute requires knowledge of the explicit nature of the materials.
The DOJ is NOT saying that knowingly applies everywhere.
They are saying that knowingly JUMPS AROUND.
From here, the court reasons that then they are FREE and not bound by the strict text of
the statute.
They then go on to interpret the statute in a reasonable way.
CANNONS/TOOLS of STATUTORY INTERPRETATION
1. Avoid potentially unconstitutional interpertations.
2. Public Welfare offense/statutory rape more likely to have no mens rea requirement.
a. Here, the majority says that 2252 is not a public welfare statute.
b. Public Welfare Offenses Ex. Speeding, letting weeds grow
c. Murder is NOT a public welfare offense.
3. Legislative History
4. Grammar and Punctuation
5. Avoid absurd interpretations (Congress could not have meant that)
a. The court does not necessarily say that applying liability to a person who does not know that they are
transporting child porn is absurd.
b. They are going off of more Constitutional reasons.
c. The majority believes that porn is a constitutionally protected activity.
6. In pari material.
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7. Mes rea term applies to all elements.

8. Jurisdictional facts treated differently.
DISSENT (Justice Scalia): He said that 2252 makes sense only if Ds are knowledgeable that they are transporting
sexually explicit material.
For him, distributing hardcore material is not constitutionally protected.
Therefore, since they know already that they are carrying explicit material, they are fulfilling mens
rea already.
The statute is unconstitutional, however, because the GRAMMAR and STRUCTURE of the statute (in his
opinion) do not allow for knowingly to flow throughout the statute.
But there is nothing the USSC can do about this statute They cannot simply rewrite it themselves.
Justice Stevens and Alito: The traditional rule is that mens rea applies to ALL the elements of the offense.
In the MPC, this is a MANDATORY RULE.
This is also a common law rule.

CRIMES AGAINST THE PERSON

HOMICIDE COMMON LAW
1. Intent to kill
2. Intent to cause severe bodily harm (or symptoms),
3. Felony murder,
4. Depraved heart murder
a. Driving a car into a crowd does NOT necessarily mean that he/she intended to kill them They may
have been hoping that the people would scatter.
b. However, this could be extreme recklessness.
MURDER 1: Premeditated and deliberate intent to kill.
Requires malice, intent to kill, intent to cause severe bodily harm, felony murder, depraved heart
murder (extremely reckless conduct).
MANSLAUGHTER:
1. Reckless Conscious disregard of the unjustifiable risk (mens rea).
2. Unlawful Act (State v. Hinckle)
3. Heat of Passion
Some intent that would otherwise be murder, but when that intent is associated
with some heat of passion that the law acknowledges is legitimate.
This will be intent that is coupled with provocation.
Ex. Someone punches D in the face while walking down the street.
SOME JURISDICTIONS:
1. Imperfect self-defense (This includes unreasonable belief, unreasonable reaction
applies).
a. Responding to a non-deadly force with deadly force, but WITHOUT the heat
of passion.
i. D honestly, but unreasonably, believes that a non-deadly threat to be a
deadly threat.
1. This would be enough for in some states.
2. The court will still give D some credit for having this
unreasonable belief.
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Actus Reas: For the completed crime of murder/manslaughter, there must be some act/omission that caused
death.
FELONY MURDER: A killing that took place in the commission of a felony.
This doctrine bolts onto other criminal law doctrines like aiding and abetting and conspiracy to commit a
felony.
Ex. D is facing murder charges by lending his car to his friends, who used that car to rob a store, and
in the commission of their robbery, they killed somebody.
Mens rea D knew that they were going to use it for a crime.
D will probably still be guilty of felony murder.
CHIN Most states will probably require actual knowledge rather than
reasonable/constructive knowledge (i.e. D should have known that that the car would
be used in a robbery).
DISTINCTION BETWEEN FIRST AND SECOND DEGREE MURDER:
Generally, first degree murder is premeditated.
M.P.C. DIFFERENT LEVELS (From highest to lowest):
1. Purposely (you are consciously trying to kill someone) OR knowingly (substantial certainty) Murder
a. Purposely You put poison into Tylenol.
b. Knowingly You counterfeit Tylenol with different substances probably knowingly.
2. Reckless with Extreme Indifference to Human Life Murder
a. Certain felonies raise a presumption of reckless with extreme indifference to human life (permissive
inference).
3. Extreme Emotional Disturbance OR Recklessness Manslaughter
a. Reckless Conscious disregard for the substantial and unjustifiable risk.
i. This is a conscious disregard of an unjustifiable risk.
ii. Twitchell Think not about just the magnitude of the risk, but also the
purpose of assuming that risk.
iii. Risks that have a higher degree of social utility will probably not be
considered as reckless.
iv. This is why a risky surgery will probably not be considered reckless,
as opposed to an illegal car race.
v. What is reckless JURY.
b. Extreme Emotion Disturbance MPCs equivalent to heat of passion.
4. Negligently Negligent Homicide.
a. You should know of the unjustifiable risk, but you dont know.
i. For both Recklessness and Negligence, D is deviating from a
standard of care.
EXAM QUESTION What type of MPCs type of murder is established by civil negligence?
ANSWER: NONE.
State v. Hinckle UNCONSCIOUSNESS NO ACTUS REAS
CHARGE/FORM OF HOMICIDE: INVOLUNTARY MANSLAUGHTER.
ELEMENTS OF INVOLUNTARY MANSLAUGHTER:
They have a form of unlawful act manslaughter You are guilty of involuntary manslaughter if you
do something unlawful.
FACTS: D drove after having been drinking and crossing a centerline and crashed and killed
someone.
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NOTE: In some jurisdictions, doing something like crossing a centerline can be a basis for a low-level unlawful act
involuntary manslaughter.
What other forms of homicide could D have been charged with?
D did not have an intent to kill.
Recklessness D got into the car after having consumed alcohol.
Unlawful Act D crossed the dividing line.
ISSUE: D had a brain condition could have caused Ds loss of consciousness, which in turn could have caused D to
cross the centerline.
JURY INSTRUCTION Did not include unconsciousness doctrine.
COURT: Unconsciousness is traditionally treated as a kind of insanity.
They do not want a kind of insanity because it could lead to institutionalization.
However, if D is able to prove unconsciousness, they destroy one of the elements of the offense actus reas.
BURDEN OF PROOF: Once D comes forth with any evidence of unconsciousness, the prosecution
must prove, not only all of the elements of the offense, but must prove that D fulfilled all of those
elements beyond a reasonable doubt while conscious.
HOLDING: REVERSED AND REMANDED. This is improper jury instruction.
The court said that the jury was given to lenient an instruction.
Instruction If the person knew or should have known of the threat of unconsciousness, then D is
criminally liable.
The should have known part is not a basis for liability.
OMISSION DUTY TO ACT
These are generally NOT the same as acts unless one of these conditions is present:
1. A statutory duty to act
2. A statutory relationship (Ex. Parent/child, teacher/student).
a. These relationships usually prescribe a duty to act.
3. Contract (Ex. Nurse/patient)
4. Risk creation (car accident)
5. Voluntary assumption of care Once you start to help, you have to take reasonable steps to follow
through on the theory that your voluntary conduct might have dissuaded other volunteers.
a. Ex. There is a accident by the road. D pulls over and starts to help, but then stops.
DISTINCTION:
Ex. If A wants to kill B, and C gives A a gun, that is aiding and abetting.
Ex. If A wants to kill B, but C says that they dont want to get involved.
Commonwealth v. Twitchell HOMICIDE BY OMISSION
CONVICTION Involuntary manslaughter.
FACTS: Parents practiced Christian Science, and did not seek traditional medical attention for their child.
Evidence showed that the child would have been saved had regular medical attention been sought.
FORM OF HOMICIDE: Wanton and reckless conduct.
No intent to kill is required, but the activity is wanton and reckless to preserving human life.
STATUTE: A child shall not be deemed to be neglected or lack proper physical care for the sole reason that he is
being provided remedial treatment by spiritual means alone in accordance with the tenets and practice of a
recognized church or religious denomination by a duly accredited practitioner thereof.
40

PROSECUTION: Argues that this statute is unconstitutional.

REASON: The only religions that this protects are state-recognized religions.
This seems like a First Amendment issue.
Perhaps it could be an Equal Protection Rights issue as well.
The rights of a child could be infringed.
We shouldnt have a rule that restricts the rights of a child to seek medical attention
simply because of his/her parents religion.
What is the right answer here?
COURT: The court reasoned that this statute was not intended to include to homicide cases.
Instead, it was meant to amend another statute that was aimed at negligence crimes.
Thus, there is no protection for their acts/omissions.
Part of the reasoning of the court is probably that they dont agree with the statute.
DEFENSE ARGUMENTS: D acted (thus this is not wanton and reckless) and they followed this statute, relying on
it to provide them protection.
CHIN: If this statute is saying that remedial alternative treatment is protected, then the statute is essentially saying
that such treatment is legally legitimate and NOT wanton and reckless.
If it is impossible to be wanton and reckless if D has exercised proper due care, then there is a tension here
with the holding.
This is another case of a statute
Leet v. State MURDER BY OMISSION
With Twitchell, there is no question where the duty comes from.
FACTS: D wasnt the parent, so there wasnt a clear duty.
His girlfriend killed her son.
STATUTE: 415.504 Mandatory reports of child abuse or neglect; mandatory reports of death; central abuse
registry and tracking system.
(1) Any person, including, but not limited to, any:
(a) Physician, osteopath, medical examiner, chiropractor, nurse, or hospital personnel engaged in the admission,
examination, care, or treatment of persons;
(b) Health or mental health professional other than one listed in paragraph (a);
(c) Practitioner who relies solely on spiritual means for healing;
(d) School teacher or other school official or personnel;
(e) Social worker, day care center worker, or other professional child care, foster care, residential, or institutional
worker; or
(f) Law enforcement officer, who knows, or has reasonable cause to suspect, that a child is an abused or neglected
child shall report such knowledge or suspicion to the department in the manner prescribed in subsection (2).
The violation of this section constitutes an act of omission and in such regard the use of the term any person
suffers from the same type of infirmities which I have noted in regard to the use of the term whoever in section
827.04(1). It has been construed to be subject to some limitations, but not in the context of the facts of this case.
Any person has a duty to report.
Interpretive Technique: Jusdem Generis When you have a list of things followed or preceded by a general
concept, the general concept is interpreted in the nature of the list.
If that were to apply here, any person wouldnt mean every person.
It would include people like law enforcement officers, teachers, firearm, etc.

41

Arguments that D had no duty: CAUSATION It is not clear that even if D did what he was supposed to that that
would have prevented the victims death.
OMISSION of a DUTY TO ACT: Different things can establish a duty of care:
(1) Statutes
(2) Status relationship (parent/child)
(3) Contract (nurse)
(4) Risk creation (car accident)
(5) Voluntary assumption of care
PROSECUTION: They could have based their duty of care on voluntary assumption of care.
D brought the mother and child into the house.
When Walter White went into the house where Jesse and his girlfriend were shooting up heroine,
backed off when he saw her OD, that was fine.
Rather, if Walter invited them, and saw that she was dying in his guest room, that would be a
problem.
PREMEDIATED AND DELIBERATE
Question: What is premeditated and deliberated as opposed to intentional murder.
State v. Guthrie SUFFICIENCY
DIFFERENCES BETWEEN PREMEDITATE, DELIBERATED, and INTENTIONAL
FACTS: D was being harassed (hit with a towel repeatedly), ignored it at first, but then turned around and stabbed
the victim in the neck.
The victim died later.
COURT: The court goes through the question of sufficiency of the evidence.
ISSUE: Was there enough evidence that this murder was deliberate and premeditated?
ANSWER: They are pretty deferential to jury verdicts.
A conviction is a rejection of a self-defense defense.
The jury must have rejected self-defense (one mitigation defense It mitigates murder to
manslaughter).
The jury must have found no provocation (and mitigation to manslaughter).
o D might have rationalized that he had been provoked and responded to nondeadly force
with deadly force the jury must have rejected this.
NOTE: According to Sandstrom, the jury is not allowed to presume that D intended to kill the victim.
But they are allowed to infer that D intended this based on the fact that he stabbed the victim in the
neck.
The jury must have also found that attack intentional.
The jury also must have found premeditation.
STANDARD OF REVIEW (Appellate court looking at a sufficiency of the evidence case):
Taking the facts in the light most avorable to the prosecution, including all credibility deteriminations and inferences
of fact, could any reasonable jury have found every element of the offense?
Ds rarely win on appeal when challenging a jury verdict.
The jury verdict is very important.
This is why the jury instruction is so important.
42

HOLDING: The evidence is sufficient even though it is weak.

If the appellate court says that the evidence supporting one of the elements is insufficient, D walks out, and
there is no new trial.
NOTE: If D is challenging the presumption of the jury, saying that there was insufficient evidence to support a
presumption made by the jury, D does NOT work.
DOUBLE JEOPARDY Restricts further trial where new proceedings would be required.
On the other hand, if the lower trial could
If the trial judge states that there is insufficient evidence and they are WRONG, then since there must be
further proceedings, it is BARRED by double jeopardy (Evans v. Michigan).
PREMEDITATED AND DELIBERATED This means intentional (Schrader and other states).
In some jurisdictions, even though the premeditated and deliberated is second degree, and first
degree is intentional, most states just say that premeditation and deliberation is the same as
intentional.
In other jurisdictions, premeditated and deliberations means more than intentional (Guthrie).
o This overruled Schrader.
What is the argument based on statutory interpretation that Schrader is right and Guthrie is wrong?
The Legislature changed the penalty for second-degree murder.
They raised the penalty from 10 to 40 years.
This suggests that the Legislation agrees with Schrader in order to make the difference between
first and second degree murder is not so distinct.
STATUTORY INTERPRETATION PRESUMPTION: If the SC issues a decision and Congress or the Legislation
makes a statute that does not conflict with the decision, they will take this as the Legislation ratifying the decision.
Mere inaction does not create as strong a presumption.
State v. Guthrie
First degree murder requires more than intentional, as well as a sufficient amount of time to pass before killing
(between intent formation and killing).
FACTORS:
(1) planning activity-facts regarding the defendant's behavior prior to the killing which might indicate a
design to take life;
(2) facts about the defendant's prior relationship or behavior with the victim which might indicate a motive to
kill; and
(3) evidence regarding the nature or manner of the killing which indicate a deliberate intention to kill
according to a preconceived design.
There should also be evidence that D weighed the intent to kill, D must be reflective, was not impulsive.
The fact that D did not seem remorseful also played a part.
There should also be a relationship Ex. Bad blood that would explain a murder.
However, there is something in this case that suggests that the prosecutions job could be easier:
The time in which to form a deliberate and premeditated design varies as the minds and temperaments of people
differ, and according to the circumstances in which they may be placed.
Any interval of time between the forming of the intent to kill and the execution of that intent, which is of sufficient
duration for the accused to be fully conscious of what he intended, is sufficient to support a conviction for first
degree murder.
43

We have a number of factors, but then the court says that any amount of time could do.
Ex. If the prosecution could prove that D formed the intent, and automatically stand up and then
committed the fatal act, this would satisfy the time requirement BUT not any of the others.
ROLE OF ALCOHOL or DRUGS in Eliminating Mental State
Reckless driving
o D cannot claim that s/he cannot be convicted for reckless driving because they were drinking.
o REASONS: (1) The act of getting into a car while drunk satisfies actus reas, and (2) public policy.
Assault

Premeditation
o I didnt plan to kill since I was high.

VARIATIONS OF MURDER BY JURISDICTION

1. Some jurisdictions say that merely intention is enough.
2. Other say that premeditation and deliberation is required, but this is synonymous with intentional.
a. CHIN Then why have this distinction?
b. Maybe it is that there has to have been some provocation?
3. Premeditation and deliberation requires actual premeditation and deliberation.
a. Some jurisdictions within this category say that premeditation and deliberation can be formed
instantly based on the facts.
b. Others say that this cannot be formed instantly.
FELONY MURDER
Like intentional murder, it can be first and second degree.
In some jurisdictions, the distinction between first and second degree intentional murder is
For felony murder, the difference is is the predicating felony one of the predicating felonies (like
rape or burglary).
The legislature will divide first and second degree
Here, like other crimes, it is controlled by statutes.
Felony murder eliminates any need for intent to kill.
They will simply presume mens rea for the predicating felony, and that transfers to murder.
Ex. D sees a wallet inside of a car and takes the wallet.
This is burglary, but there is no recklessness for the risk of death, and there is no intent to kill.
However, it does not completely eliminate causation.
Ex. If someone dies because of the stress of the robbery, that is causation.
There has to be at least cause-in-fact, and some proximate cause.
Ex. If the robber goes into the liquor store and tells the patrons to not move, and then simultaneously, a gas
line explodes, and kills one of the customers, there is cause-in-fact (the customer would have left the store
had it not been for the robber).
But is there proximate cause?
LIMITATIONS for FELONY MURDERS
Look at the statutes and look at the jurisprudence in the jurisdiction.
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Every felony can be predicate for felony murder?

Maybe some jurisdictions.
1. Merger Doctrine Some felonies that are particularly close to the homicide will NOT be a predicate for
felony murder.
2. Inherently Dangerous Doctrine Felony murder is to be limited to predicate felonies that are inherently
dangerous.
TRADITIONAL COMMON LAW PREDICATE FELONIES:
1. Rape
2. Robbery
3. Burglary
4. Arson
5. Kidnapping.
State v. Armstrong MERGER DOCTRINE LIMITATION
There was an earlier case Andress where the court said that assault cant be the predicate for felony murder.
But the Washington Legislature says that it can, and it is.
The legislature codified this.
STATUTE: Explicitly states that it is any felony including assault.
ISSUE: Doesnt this mean that just about every murder will have an assault.
This would mean that the prosecute them for felony assault and attach felony murder without having to
prove intent?
D: Armstrong argues that the statute was applied in an arbitrary way since the state has a choice to charge felony
murder on top of assault.
Oyler v. Boyles There is no problem with giving prosecutors the discretion to choose between two different
statutes under which to prosecute.
Another place where Due Process could get invoked is when the statute prohibits either innocent or
Constitutionally protected behavior (Chicago v. Morales).
Here, neither can really be argued assault is not really protected or innocent.
PROBLEM 1: Most jurisdictions do NOT allow assaults to the predicate to felony murder.
One reason: If we think of common law malice Intent to kill, felony murder, intent to cause serious bodily
harm, extreme recklessness
If we were to say that every homicide would be punished the same way (the elderly man who
accidentally distributes the wrong drug at a pharmacy and the rapist who murders the victim to
prevent witnesses), this would be problematic.
PROBLEM 2: STRUCTURE.
If the elderly pharmacist is convicted of manslaughter of the second degree (criminal negligence), the
prosecution could argue manslaughter 2 is the predicate of felony-murder 2 (which says any felony is OK),
then ANY felony will be OK for felony murder.
Here, the manslaughter 2 was automatically ratcheted up to felony-murder 2.
Most courts would say that this is NOT OK.
CHIN: If a felony-murder says any felony can be a predicate felony, it usually will NOT be every single felony.

45

This is a part of the MERGER DOCTRINE This is will limit the list of predicate felonies to prevent felonies that
are too close to murder already.
Assault is usually one of these felonies is assault (although Armstrong disagrees)
(2) ANOTHER LIMITATION INHERENTLY DANGEROUS LIMITATION This is the opposite of merger
doctrine.
These will limit the predicate felonies from adding in felonies that are too far away to murder/homicide in
the first place.
State v. Anderson INHERENTLY DANGEROUS LIMITATION
This looks to the HISTORY of Felony Murder doctrine.
HISTORY: This doctrine arose when there were fewer felonies, and most of those felonies were punishable
by death anyway.
However, attempts for most of those felonies was NOT punishable by death.
The felony murder doctrine came about to prosecute those who did not complete these felonies, but
someone ended up getting killed anyway.
COURT: There are a lot of new felonies and not all of them are as dangerous.
TESTS:
1. Facts of the case
2. Elements of the offense
3. Or both.
States are split on whether a court should look just to the elements of an offense, or the circumstances of the
commission of the offense to determine whether the felony is inherently dangerous.
PROBLEM OF ADVERSE SELECTION - Looking only at the circumstances of a particular case-i.e. the
facts-would eviscerate the special danger to human life standard because the predicate offense would always
be found to have been committed in a particularly dangerous manner if a death occurs.
Ex. If felony murder is attached to identity theft case in which someone happened to die, if you just
look at the facts, the prosecution could always say that this nondangerous act was applied in a
dangerous way.
Thus, we must try to look at it in the abstract.
What if we just look at the facts and not in the abstract then?
PROBLEM Well, you could say that just about any crime could be committed in a non-dangerous way.
NOTE: M.P.C. basically got rid of felony-murder.
For many jurisdictions, in the felony murder doctrine, courts will NOT read the statute literally if the statute says
any felony.
Instead, it is going to have to be a dangerous felony.
But this also go into merger doctrine.
MERGER DOCTRINE We have a carefully constructed mens rea system and
NOTE: Between these two limitations, we have the potential to dramatically narrow the list of predicate felonies.
State v. Contreras CAN BURGLARY WITH INTENT TO COMMIT ASSAULT BE A PREDICATE
OFFENSE?
CHIN: Burglary, along with robbery, are the classic felony murder predicates.
46

ISSUE: This is NOT the classic version of burglary.

ELEMENTS of Burglary Trespassing in a building with intent to commit a crime.
FACTS: The crime/felony that D committed was assault.
It was burglary because D broke into a hotel room with the intent to commit assault.
Victim died.
NEVADA LAW: This application of the merger doctrine has not been considered in Nevada because NRS
200.030(1)(b), the felony-murder statute, does not include assault or battery as crimes that support a felony-murder
charge.
If D had been walking on the street, instead of breaking into a hotel room NO BURGLARY there
can be no felony-murder since the statute excludes assault.
ARGUMENT: If assault cannot be the predicate to felony murder, then why can the law attach felony murder to
boost the burglary with the intent to commit assault?
CALIFORNIA: You cannot do this.
Burglary is an enumerated predicate felony, but if the burglary was for the purpose of assault, then this
burglary is not the kind that can be the predicate for felony murder.
NEW YORK: Disagrees with California, and so does Nevada.
HOLDING: This is allowed. Felony murder can be attached to burglary with the intent to assault.
REASONING: Everybody seems to agree that felony murder is a statement to everyone who is engaging
in burglary or robberies to be careful.
If you pistol whip a guy in order to get their intention, and they die, you could be on the hook.
INCENTIVE Do not commit felonies, but if you do, make sure no one dies.
Also, this is to encourage people to not bring a gun.
PURPOSE OF FELONY MURDER DOCTRINE:
1. To encourage care in committing non-assaultive predicate felonies like burglary.
2. To prevent innocent deaths from occurring.
3. One argument is that what this is about is reducing the utility of perjury.
a. Ex. Anderson Could D actually have killed his friend with a loaded stolen shotgun intentionally?
Another traditional limitation: IDENTITY OF KILLERS AND VICTIMS.
Who has to die and who has to be the killer?
In some jurisdictions, the Legislature takes responsibility for these problems.
This has come up for a long time in this country.
Ex. WASHINGTOM MURDER 1 STATUTE: (1) A person is guilty of murder in the first degree when:
He or she commits or attempts to commit the crime of either (1) robbery in the first or second degree
APPROACHES TO THIS PROBLEM
(1) AGENCY APPROACH The way felony-murder works is it assigns liability to any co-felon if a co-felon does
the killing.
TEST: Was the killing done by the co-felon?
In Washington (they have the agency approach), their policy is to protect innocent bystanders.
Thus they also say that the death be an innocent bystander.
47

In other jursidictions, they want to protect everyone, even co-felons.

Thus, they include co-felons in the list of victims.
INNOCENT INSTRUMENTALITY RULE: Ex. Co-felons An undercover cop and a drug dealer.
If the undercover cop shoots someone (or gets shot) during a drug bust, the drug dealer will be liable.
(2) PROXIMATE CAUSE APPROACH Did the conduct of D cause the death?
This is not simple but-for cause.
But also, the proximate cause analysis is relaxed.
MAIN TEST: Was the death foreseeable?
Ex. There are situations where a reckless conduct is judged to not to have satisfied proximate cause.
People v. Dekens VICTIM KILLED CO-FELON FELONY-MURDER OK according to PROXIMATE
CAUSE THEORY
STATUTE: A person who kills an individual without lawful justification commits first degree murder if, in
performing the acts which cause the death:
FACTS: D was charged with felony-murder when his co-felon was killed by the victim (a cop they were trying to
rob).
ISSUE: Is Illinois an agency jurisdiction or a proximate cause jurisdiction.
COURT: D is guilty using the proximate cause theory.
PROXIMATE CAUSE THEORY: The death resulted from the direct result of Ds felony.
The cop killed the co-felon in order to stop the robbery.
HOLDING: D is liable.
AGENCY THEORY: The cop wasnt a co-felon nor was he Ds agent.
Thus, D wants the agency theory.
Purpose of Felony-Murder Proximate Cause Theory: The majority looks to a lot of precedent cases.
DISSENT (Justice Blandic): POLICY What is the purpose of felony-murder?
According to him, there is a difference between a co-felon getting killed and a co-felon killing someone.
This is means that the purpose of the doctrine is to protect innocents, NOT other co-felons.
DISSENT (Justice Heiple): He looks at the plain meaning of the statute.
He notices that the statute says that since a person who kills, the state has to prove that the person actually
killed the victim.
He argues that on the plain meaning of the statute, D has to do the killing AGENCY THEORY.

Comer v. State AGENCY THEORY What if the statute Legislature

FACTS: Neither D nor co-felon killed the victim. Victim was just at the wrong place and wrong time.
DELAWARE CODE 636 (OLD CODE): A person is guilty of murder in the first degree when: (1) the person
intention causes the death of another person;
(2) In the course of and in the furtherance of the commission or attempted commission of a felony or
immediate flight therefrom, the person recklessly causes the death of another person.
PRECEDENT CASES:
In Wieck They adopt the agency theory That the person doing the killing has to be a co-felon.
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In Williams Then they added another requirement that the killing has to have been in furtherance or had to have
moved the felony along.
Then the Legislature changed the statute.
NEW STATUTE: a person is guilty of murder in the first degree when:
While engaged in the commission of, or attempt to commit, or flight after committing or attempting to
commit any felony, the person recklessly causes the death of another person.
ISSUE: Did the new statute overall Williams only, or did it overrule Williams and Wieck together?
COURT: Just Williams.
Both the old and the new statutes uses the word causes.
Looking at the Legislative history, it seems that it doesnt seem that they wanted to rule out agency theory.
They continue to apply the agency theory.
HOLDING: Since neither D nor the co-felon did the killing, a first-degree murder cannot be sustained.
However, a lesser crime manslaughter may be sustained.
REMEDY: So either, conviction of the lesser crime can be accepted or they can remand it for a new trial.
CHIN: D may be prejudiced by this remedy since, although D cannot be convicted of felony-murder, the elements of
manslaughter was found by a jury.
PROSECUTION ARGUMENT: The jury found the elements of manslaughter.
DEFENSE ARGUMENT: The defense could not bring it up and deliberate.
Also, there may be another crime at play here depraved heart murder or extreme recklessness.
Clearly, this was extremely reckless conduct.
Even if there is no agency, isnt it extremely reckless behavior that resulted in the cops death.
However, they cannot convict for extreme recklessness because they were never charged with it in the first place.
PREDICATE FELONY The underlying felony (shooting) seems to be assault.
This could be a merger doctrine problem.
NOTE: This Delaware is NOT classic felony murder because of the word recklessly This implies that the result
has to be somewhat foreseeable.
DEFENSE: There going to be an argument that this result was not foreseeable.

State v. Pierce ESCAPE RULE

ISSUE: What if the death occurs 20 days later, is it fair to say that the death is in perpetration of a theft.
SUPREME COURT: ESCAPE RULE Once the theft is over and done with, and the person has reached a place of
safety, the felony is over for the purposes of felony-murder and we have to look for a new underlying felony.

DEFENSES
INSANITY DEFENSE TESTS:
I. M'Naghten Test (Once, majority rule, then, minority rule, majority rule again):
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A. By reason of mental disease or defect the defendant,

B. Was unable to know the nature and quality of the act,
OR
2. If he did know the nature and quality of the act, was unable to know that it was wrong.
II. Durham v. United States, 214 F.2d 862 (D.C. Cir. 1954) (The Durham Rule or Product Test; in effect in D.C.
from 1954-1972).
An accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect.
III. American Law Institute Test (Model Penal Code) (Once, majority rule, now, minority rule)
Insanity defense established when either:
A. As a result of mental disease or defect, the defendant lacked substantial capacity (thus, it is not that D must lack
total capacity they just cant have most it) to appreciate the criminality [wrongfulness] of his conduct,
OR
B. When, as a result of mental disease or defect, the defendant lacked substantial capacity to conform his conduct to
the requirements of the law.
IV. United States federal rule: (Back to M'Naghten - more or less) 18 U.S.C. 17(a):
at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe (not every
mental disease will work) mental disease or defect, was unable to appreciate the nature and quality or the
wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.
V. California. MNaghten. Penal Code 25
(b) In any criminal proceeding, including any juvenile court proceeding, in which a plea of not guilty by reason of
insanity is entered, this defense shall be found by the trier of fact only when the accused person proves by a
preponderance of the evidence that he or she was incapable of knowing or understanding the nature and quality of his
or her act and of distinguishing right from wrong at the time of the commission of the offense.
SELF-DEFENSE
COMMON LAW
The insanity and self-defense are similar
1. Honest AND reasonable belief
a. Honest He actually believed that he was facing deadly force
b. Reasonable Would a normal person believe they were facing deadly force?
2. Deadly Force OR SPI D must have used no more force than necessary to defend against the danger.
a. You can use non-deadly force for but both non-deadly and deadly force.
b. But in order to be using deadly force, you must be facing deadly force OR are in danger of serious
personal injury.
c. SPI Even if the risk itself isnt deadly, you may be able to shoot someone in order to prevent
yourself from being knocked out.
d. CALIFORNIA You can also use deadly force to prevent serious forcible felonies (Ex. Rape,
robbery).
i. Thus, in CA, if someone comes up to you and says that you have to be
3. Imminent Attack The attack needs to be happening right now.
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a. Ex. The victim and felon alone in the woods. The victim says that they are going to go get a gun from
the car. This is NOT an imminent attack. Thus, D cannot kill the attacker.
i. REASONING: The victim may change their mind. D must wait until the threat is
unambiguous.
4. Necessary There can be no other reasonable alternatives. If there are other alternatives (Ex. You have a
taser), then
a. In most jurisdictions, you dont have to retreat. This is because, in most circumstances, the threat is
somewhat imminent (i.e. the attacker is not on a plane from Cleveland to come and kill you).
b. Even in jurisdictions that do require jurisdictions have a castle jurisdiction This says that you have
to retreat unless you are in your home or (sometimes) your office unless the attacker has a right to be
there (then you probably have to retreat).
5. Unlawful Force The force cannot come from authorities victims (i.e. you cannot claim self-defense for
shooting a cop).
M.P.C. SELF-DEFENSE
1. Honest Belief Just an actual belief that you are facing force. This does not have to be a reasonable belief.
a. POLICY It is unjustifiable for D to be able to assert that he honestly believed he was facing force if
D was just sitting around.
b. BUT MPC 3.09 says that if the belief is reckless or negligence, D can be convicted of reckless or
negligent crimes.
i. Thus, they have self-defense to murder, but not to other crimes.
2. Deadly Force However, this includes danger of death, serious bodily injury, kidnapping or rape.
3. Immediately Necessary The attack does NOT have to be imminent.
a. Thus, under the MPC, D can commit preemptive murder and claim self-defense.
4. Unlawful Deadly Force The other side must be using unlawful force.
5. You must retreat before using deadly force if you know you can do so with complete safety.
PROVOCATION
You cannot claim self-defense if you were the provoker.
However, the provocation claim is LIMITED:
An unlawful assault

Not simple insults, being a jerk

If D provoked the victim in order to use deadly force against the victim, he may not claim self-defense
California Law
An individual who starts a fight may bring a self-defense (if he ended up killing the guy he provoked)
claim if
He tries to stop fighting in good faith
He indicated the desire to stop fighting to the other individual in a way a reasonable person
would understand
MPC3.04(2)(b)(1) the actor, with the purpose of causing death or serious physical injury, provoked the use of
deadly force against himself in the same encounter
This is NOT OK.
CA 3471 D starts a fight unless withdraw and communicate.
Ex. If I insult him but dont touch him, then this is not enough.
Nor is minor assault really.
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BUT, for both MPC and CA, if a jury is convinced that the victim, by insulting him, was trying to
provoke or incite such behavior, then self-defense works.
OR
CA 3472 contrived. Nonthreatening words alone shouldnt be provocation.
Non-Deadly Aggressor, and the Victim Responds with Deadly Force
COMMON LAW:
SEVERAL APPROACHES.
SITUATION 1: V provokes A with nondeadly force and A kills V.
SITUATION 2: V provokes A with nondeadly force, A responds by trying to kill V, and V (now faced with deadly
force) kills A.
SPLIT in Jurisdictions:
1. Some Jurisdictions The result is manslaughter.
a. REASONING: If V provokes A with nondeadly force and A kills V, then A was partially justified
because he was provoked.
b. If V kills A (Situation 2), V was faced with deadly force.
2. Other Jurisdictions Murder. Killing was not justified in either situation.
3. Other Jurisdictions In SITUATION 1 (A kills V) there is no homicide crime, assault only.
a. REASONING:
b. Why doesnt this work for V kills A?
MPC: 3.04(2)(b)(1) Again, this goes back to whether the provocation was for the purpose of killing or causing
serious bodily injury.
Gibbs v. Florida VERBAL PROVOCATION
FACTS: Black lady says hello, then racist white lady gets all crazy then dies from the stress of the incident.

ISSUE: Insufficient jury instruction, what does provocation mean?

HEAT OF PASSION/PROVOCATION
What if someone asserts self-defense by saying that his killing was because he was provoked and was in the heat
of the moment.
COMMON LAW
Mere words are not enough Insults do not work.
Must be sudden The emotion must be obtained immediately after the provocation.
obscure the reason of an ordinary man.
Traditional list of provocation that is considered adequate: assault, sudden discovery of adultery,
illegal arrest, homosexual proposition.
This list says that, while the killing is not necessarily understandable, the heat of passion (the
emotion) is understandable.
This list is pretty must gone.
MODERN VIEW: jury question.
M.P.C. In the M.P.C., murder is mitigated to manslaughter.
Mere words ARE enough
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The act does NOT need to be sudden

No rigid limit on type of provocation
Jury question Is the jury sympathetic

BURDEN OF PROOF: D has the burden of production when asserting self-defense.

Then, the prosecution has the burden to disprove one or all of the elements of self-defense beyond a reasonable
doubt.
If they cannot, the jury must acquit.
Ex. If the jury believes that there is a 15% chance it was self-defense, and there was 85% chance that
it was cold-blooded murder, they must STILL acquit.
Roberson v. State
The defense lawyer was not paying attention (in contrast to Gibbs) and allowed jury instructions that
misrepresented Indiana law.
In Indiana, if you have heat of passion negates malice (and therefore murder).
Up to the lawyers
Defendant can claim both SD and HOP
HOP negates malice
Trial court instructions: A. Do not consider lessers (i.e. manslaughter) unless not guilty of murder.
B. D is guilty of manslaughter only if prosecution proves sudden heat BRD.
Appeals court instructions: The correct instructions to display this idea is that it is not that D is guilty of
manslaughter only if prosecution proves sudden heat, but D is only guilty of manslaughter cannot prove
heat of passion.
A. Do not convict of murder without considering whether sudden heat has been disproved.
B. D is guilty of manslaughter only if prosecution fails to disprove sudden heat BRD.
HOMICIDE
D engaged in conduct (or an omission when there was a legal duty to act)
If D is unaware of a condition that causes him to become unconscious and commit a homicide, then
he cannot be found liable for the homicide
There is a lack of voluntary action
OMISSION: Omission may be met in one of several ways
Statute
If a statute says that you have a duty to do something, and you dont do that, you are liable.
Status relationship (parent/child, teacher/elementary student, captain/sailor)
Contract (nurse)
If you contracted to do something, you cannot escape liability by saying that you didnt do
anything.
Risk creation (car accident)
If you are the reason why the person is going to die, you must do something to do something.
Voluntary assumption of care - take reasonable steps to follow through
Ex. A person is drowning in the ocean. You jump in, but halfway there, you change your
mind.
If other people chose not to help the victim because you jumped in, you are liable.
With a culpable state of mind Mens rea.
That caused a death Causation.
MURDER
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Culpability requirements vary by state

Intentional is enough
Premeditation and deliberation is required but is synonymous with intentional
Premeditation and deliberation is required, but say that it is NOT synonymous.
2 Subgroups That these Jurisidictions fall Into:
It may be formed in an instant
It may not be formed in an instant D needs to have had a certain passage of time.

VARIATIONS OF MURDER This is NOT common law

Most jurisdictions have varying degrees of murder.
First Degree Murder
Different ways you can get charged with first-degree murder:
Premeditated and deliberate / intent to kill
Premeditation and deliberation may only be met if there is a period in time between the
formation of the intent to kill and the actual killing, which indicates that the killing is by prior
calculation and design
These jurisdictions want D to be a ruthless, cold-blooded, calculating killing
Alcohol or drugs may negate the premeditation/deliberation requirement
This does NOT mean they cannot get charged with murder It just means that you
cannot use the premeditation/deliberation requirement.
Special victim (police officer) Often times, if you kill a police officer, you are automatically
guilty of first-degree murder.
Felony murder, especially certain felonies
Depraved heart murder (extreme recklessness) These are ridiculous acts that have no regard for
others safety.
Second Degree Murder
Intent to Kill
Note: The statutes in the final exam have a different spread than this
FELONY MURDER
A murder committed during the commission of a felony
May be 1st or 2nd degree
1st degree generally requires enumerated felonies (specific listed ones)
Eliminates the intent (mens rea) You can have committed a felony (burglary) and be going down the
street at the speed limit (no recklessness) and you hit someone; this is felony-murder.
Does not completely eliminate causation
Total coincidence is not enough - much more leeway though
LIMITATIONS TO FELONY MURDER DOCTRINE
Merger doctrine
Underlying felony must have an independent felonious purpose other than to assault (commit SBH)
the victim.
Not all states accept this
Some states allow an assault to serve as the underlying felony (no states have allowed
manslaughter though)
Split on burglary with the felony being committed within the house being an assault
Inherently dangerous felony limitation
Only applies to inherently dangerous felonies
Some jurisdictions look at the crime in the abstract
Others look at circumstances of the specific situation
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Catch 22 here though - of course it was dangerous - it caused a death.

Even if tax evasion is not inherently dangerous, it caused someones death in my
situation, and that may make it seem dangerous.
The identity of the killer and victim: 2 RULES:
1. VICTIM-KILLER RULE: Generally, a killing by the victim will not be imputed onto D
2. Generally, a death of a co-felon will not be imputed onto D
ADDITIONAL FELONY MURDER REQUIREMENT
Liability for killings not committed by the defendant
2 distinct positions
Agency theory These states say that D cannot be liable if someone other than himself or his
cohorts did the killing.
D is only liable for his actions along with those of the people working with him
Proximate cause theory
If the death is sufficiently connected to D's actions, it doesn't matter who caused it
Cop shoots someone trying to stop you, you are liable
Generally, a state will be adopt only ONE of these theories.
Commission of a felony?
ESCAPE RULE: Once the underlying felony has been accomplished and D has reached a place of
safety, the felony is over
MANSLAUGHTER
Different Ways D Can Meet Manslaughter Requirements:
Heat of passion
Common Law: Words are not enough. Insults are not enough. It has to be triggered on the spot.
The grievance that causes D to go off must be sudden
No build-up overtime (anger, fear, excitement must happen immediately)
The grievance must be one that would obscure the reason of an ordinary person
The ordinary person would understand the grievance, not the underlying action the killing
(hence it's still a crime)
Traditionally - assault, sudden discovery of adultery, illegal arrest, homosexual proposition
Modern view - jury question
MPC: Mere words are not enough
DIFFERENCE: The grievance doesn't need to be sudden
There is no rigid limit on the type of provocation
Jury question
Imperfect self-defense (some jurisdictions)
Use excessive force to protect yourself
Misdemeanor manslaughter (equivalent to the felony murder rule) You are in the commission of a
misdemeanor and you kills someone.
Felony-murder analysis applies.
Killings brought upon by criminal negligence
COMMON LAW SELF DEFENSE
Honest and reasonable belief
Imminent danger of death/great bodily injury
Future harm is not enough
Use of deadly force is necessary
No alternatives must exist
Exception - most states do NOT require retreat
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STAND YOUR GROUND: Some states require retreat except in home or work
The other side must be using unlawful force
No shooting a cop
D used no more force than necessary to defend against the danger
May use non-deadly force against deadly force or non-deadly force
May use deadly force against deadly force or force that will cause great bodily harm

MPC: 1.01-1.13
2.01-2.13
3.01-3.11
4.01-4.10
5.01-5.07
2.10.0-2.10.6
2.11.0-2.11.3
2.12.0-2.12.5
2.13.0-2.13.6
220.1-220.3
221.0-221.2
222.1
223.0-223.9
A state cannot simply say that the federal it illegal for an officer to speak disrespectfully about the President, and
therefore we can prosecute in Yolo county.
This does not work.
The federal crime can come into the state in certain OTHER ways:
Ex. Sentencing in state court. Someone has been convicted of committing a crime under Federal law.
They may not be able to prosecute that crime, but in later convictions, the state can take the previous federal
violation/conviction into consideration.
If the state doesnt have power to prosecute for it directly, it probably cannot prosecute for related offenses.
If the Federal government owns the property, it very well could be exclusive Federal jurisdiction.
Assimilative Crimes Act The Assimilative Crimes Act, 18 U.S.C. 13, makes state law applicable to conduct
occurring on lands reserved or acquired by the Federal government as provided in 18 U.S.C. 7(3), when the act or
omission is not made punishable by an enactment of Congress.
National Parks Jurisdiction (state or Federal) would depend on whether or not the Congress accepted the land and
the US bought it (Ingram).
BURDEN SHIFTING STATUTES:
Ex. pistol without a license
FIRST: Ask is this an element or a defense.
(1) If it is an element, then the prosecution has the burden of production and persuasion.
Then D has the burden of production (rebutting the presumption).
Then the state can also rebut with a burden of persuasion.
SECOND: If it is a defense, then the state has no burden (D has to bring it up).
Here, D has the burden of production and persuasion.
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