CRIMMINAL OUTLINE

Basics of Cimminal Law

o Preponderance of the Evidence standard in most civil cases and some criminal= More likely than not about 51% sure that
one side is more right over the other
o Clear and convincing more than Preponderance and less that Beyond a Reasonable

o
o
o
o
o

o
o

Jury Nullification: State v. Ragland

Def- A jurys knowing and deliberate rejection of the evidence or refusal to apply the law either
because the jury wants to send a message about some social issue that is larger than the case itself or
because the result dictated by law is contrary to the jurys sense of justice, morality, or fairness
Blacks

Principles of Punishment
Utilitarianism: (great good) Jeremy Bentham
Bentham- punishment should not be used in a case where it is
Groundless- no mischief for it to prevent/ inefficacious- where it cannot prevent
mischief/
Unprofitable- where it causes more mischief than it prevents/ and
Needless- where mischief can be dealt without it
Goal of punishment is to reduce future crime through:
General deterrence-punishment of one is an object lesson to others in society
Specific (individual) deterrence teach the individual a lesson through
incapacitation and intimidation. Wont repeat crime because scared of the more punishment. Incapacitation
Rehabilitation reform criminal tendencies
Criticisms and responses
Uses persons solely as a means to an end: deterrence of others, but util. says that
people dont nec. Have rights to be alienated
Could be used to justify punishment of the innocent. While theoretically
possible it probably wouldnt happen in the real world
Retributivism (for punishments sake/ lex talionis) Michael S. Moore/ Immanual Kant
Moral just deserts- (Kant) punishment can not be inflected for the sole purpose of
achieving a good thing either for the criminal or society but because of the sole reason that he has
committed a crime. One man should not be dealt with as a means for an end to another
People have free will to act and can be blamed when they act in violation of social norms,
done by a willful violator*
Assaultive retributivism criminal has hurt society and it is morally right for society to
hurt him back
protective retributivism restores moral balance to society. People have the burden of
self-restraint. Commission of a crime gives the criminal benefits with the burden. Punishment exacts debt
to restore balance. Respect for criminals personhood through the right to be punished
criticism too close to revenge Many see it as grinding criminals under the heal
Discussion of Utilitarian v. Retributivness
Pg 38- arresting innocent homeless black man to prevent white supremacy mobUtilitarian idea. Retributivness says you cant punish someone to serve the purpose of others.
Restorative Justice
Victim-offender mediation is a big part- trying to reconcile the conflict b/w the two as
well as b/w the offender and the community
The idea is to make the defendant and victim all feel whole again

How much punishment should be imposed?

Du

Things judges consider when sentencing

o TO protect society
o To punish the defendant for committing a crime
o To encourage the defendant to lead a law-abiding life
o To deter others
o To isolate the defendant so she cant commit other crimes
o To secure restitution for the victim
o To seek uniformity in sentencing

Federal Crime Control Act (1984) gives sentencing guidelines- 7 step process
Porportionality of Punishment
General Principles:
Immanuel Kant argues for jus talionis- an eye for an eye
Jeremy Bentham- argues to do as little as possible and as cheaply as possible to accomplish your
goal. And he gives 5 rules to calculate the right amount of punishment so that it is not too little or
too great
Constitutional Principals:
The Supreme court interprets the 8th amendment as follows: It is not only directed at torture, but
against all punishments which by their excessive length or severity are greatly disproportionate to
the offense charged
o There has been confusion over what constitutes greatly disproportionate
in 1972, the federal gov. found the death penalty to be unconstitutional in all cases not b/c its cruel
but b/c its unusual for a person to receive death penalty b/c so many factors in deciding it, so its
hard to predict (like being struck by lighting)
SO Sates re-drafted statutes to have separate guilt and sentecing phases (
Coker v. Georgia- DP not allowed for rape
Ewing v. California
factors in determining proportionality:
o 1. the gravity of the offense and the harshness of the penalty,
o 2 the sentences imposed on other criminals in the same jurisdiction,
o 3 the sentences imposed for commission of the same crime in other jurisdictions
Comparing Ewing and Coker:
-Why is it unconstitutional to give death to Coker but not to give Ewing what amounts to life for
stealing golf clubs:
The key difference is that death is different b/c of its finality and the moral statement that it makes
when society decides to execute someone.
In the 8th amendment context, the Supreme court says it will be applied VERY carefully in Capital Cases to
make sure it is proportional,
3. Modern Role of Stautes
Legality Principles :
1) No Retro-active law making: The principle of legality condemns judicial crime creation- there
must be a pre-existing law, the court cant create one in the midst of a trial
2) Void-for-Vagueness
a. Laws should be clear so that a person of ordinary intelligence will no what is
prescribed and can avoid that conduct; one of the elements of due process is that the
public will have fair notice of prohibited conduct
Its important that you restrict the vaugness of laws b/c you dont want the courts
or the police to have too much disectetion b/c it openes the door to arbitrary

enforcement and corruption, you also want the public to be able to accurately
predict the consequences of their actions Chicago v. Morals (loitering gang
memebers)
3) Rule of Strict Construction directs that judicial resolution of residual uncertainty in the
meaning of penal statutes be biased in favor of the accused
a. AKA lenity principle which provides that if a statute can reasonably be
interpreted favorable either to the government or to the individual, the statute should
be read in the light favorable to the individual (used only as last resort)
Commonwealth v. Mochan-common law misdemnor, but no leg. statute against
what he did (lewd comments over phone)
United States v. Foster (defining the word cary)
Keeler v. Superior Court, Supreme court of California ( man stomps pregnat lady- does fetus = human
being)
Rule of strict construction and Retro active laws: murder cannot be charged because the court does
not have the right to ignore the statutes of the legislature, nor can it broaden its interpretation of a
statute in this case without denying the defendant due process.
The Values of Statutory Clarity
In Re Banks
The Peeping Tom statute is unconstitutional based on 1) its language is too vague, which leads
to varying interpretations by different people and 2) that it is to broad so as to make ordinary
actions criminal
The clarity of laws and the consistency in which the courts interpret them is important b/c man is
free to think and reason for himself. When statutes and common law are vague or inconsistent,
men will undoubtedly interpret the law in various ways. Therefore the will be unable to predict the
consequences of their actions and in a very real sense, be denied to right of previous warning
which is a vital part of due process. Clarity is also important to prevent the arbitrary enforcement
of laws
4. ACTUS REUS
Definitions:
Actus Reus
actus reus (The wrongful deed that comprises the physical components of a crime and that generally must
be coupled with mens rea to establish criminal liability; a forbidden act <the actus reus for theft is the
taking of or unlawful control over property without the owner's consent
Result Crimes- Some crimes like murder are result crimes,- where you are punishing the result of
what happened, a
Conduct Crimes- like DUI where you punish the actions even though no harmful result was
produced
Attendant Circumstances- condition that must be present at the time of the condition or the
result in order for there to be a crime - driving a car while under the influence. Actus Readriving, the attendant circumstance is being intoxicated and the fact that it has to be a car
o Breaking and entering a dwelling house of another at nighttime with the intent to commit
a felony therin
Mens Rea:
General: Intend to break and enter
Specfic: with the intent to commit a felony therein
Conduct: 1)Breaking and 2) entering
Attendant Circumstance: at nighttime / dwelling house / of another
Act must be volunatary: (see MPC 2.01 )
Martin v. State- (drunk taken into street)
State v. Utter (automatism- stabbed son after drinking all day)

 4 of 2.01 Possession (Drugs, weapons, etc.)

D has to know that he had it and be aware of this for long enough for him to do something about it - like
dispose of it or go to the police.
Usually this is made easier by statutes that allow for presumptions if in the car, etc.
The law does not punish involuntary movement because it cannot deter involuntary movement
Time Framing
Look at when the decision is made in order to determine if an act is voluntary (driving when you know you
are an epileptic)
o Utlilitarian- if you expand the time frame and allow this reasoning then you could
possibly deter such action
o Retribution- you see it wrong to punish someone for involuntary epileptic seizers so you
dont expand the time frame.
Omissions: usually not punishable (People v. Beardsley (man lets lover die in house))
bystander effect: If there are lots of people who dont act, who is responsible
(ex: Kitty Genovese are all 38 people responsible for her death?)
Hard to determine motives and culpability of ommitter
Aiding could just make the situation worse
Personal freedom law says what not to do and steers clear of telling us what
we have to do, moral imperative to help others does not translate into a law to
help others
When Omissions are punishable:
o Existence of legal duty
o Special relationship (Close blood relationship most noticeably) = duty to act (ex. Parent
fails to give food to child, child dies) Some courts hold one parent liable for child abuse
for failing to intervene. Can also be established through a statute.
Contract legal duty arises out of contract (ex. Lifeguard has a duty to act)
D caused the danger (D generally has a duty to save victim)
1. Ex. D digs a hole, V falls in a dies, D is liable for manslaughter
Undertaking D has a duty if he begins to help ; especially true where D leaves V worse
off than before and keeps others from helping
Tips:

Look for an actus reus problem when D has not committed physical acts but has guilty thoughts,
words, states of possession, or status.

Discussing AR on an exam:
Facts - Alice shoots Bob with a gun and kills him.
1st look briefly at Alices voluntary act -- define voluntary act (willed musc contraction) and point
to facts in case that show that Alices pulling of trigger was a voluntary act.
o if A killed B while sleepwalking, then A not resp b/c not a voltary act. If P charges A for
something she didnt do (ommission) say general rule (not resp. for failure to act), and
see whether any exceptions to genl rule apples.
Then, look to social harm (elements of crime in definition -- physical elements -- and discuss each
of them pointing to the facts. in the case that support whether the elements were or were not
present). If, like in Keeler -- he didnt kill human being, he killed fetus. Since human being
doesnt include fetus born dead, then the social harm of crime didnt take place.
5. MENS REA
An act does not make the doer of it guilty, unless the mind be guilty- this is the criminal laws mantra
Views

1) The broad understanding of mens rea is based upon culpability- the defendant is guilty of ac crime if she
commits the social harm of the offense with any morally blameworthy state of mind- it does not matter if
she causes the harm intentionally or with some other blameworthy mental state i.e. wantonly, willfully, or
recklessly
2) The narrow understanding- is an elemental understanding- she must the mental state of mind specific to
that wrongdoing- in other words she must do it intentionally
Attendant circumstances: unless evidence to the contrary, MR terms in the definitions of offenses do not
apply to attendant circumstance elements of the crime (using this rule of construction, mistake as to
consent for rape charge the man could be guilty regardless of his belief b/c intent only applies to sexual
intercourse, and he obviously intended to have sex
Common Law Mental States:

Intentionally: person purposely causes the social harm of an offense if

o It is his conscious object to engage in the conduct in question AND
o He acts with knowledge that the social harm is virtually certain to result from his conduct.
o CL intent often blends knowingly and intentionally together- so intent means that you either
desire the results of your actions, or you know that they are ceratian or practically certain to
follow
Knowingly: does not desire a particular result but is aware that it is certain or pratically certain to
follow. Knowledge of a material fact (attendant circumstance) is sometimes a required element of a
defense.
o Under CL, a person acts knowingly if he:
Is aware of the fact
Correctly believes that it exists OR
Suspects that it exists and purposely avoids learning if her suspicion is correct
(willful blindness)
o A person has knowledge of a material fact if he is aware of the fact or he correctly believes
that it exists.
o Willfully: intentional violation of a known legal duty
Purpose to disobey the law
Recklessly: unjustifiable risk taking; requires proof that the actor disregarded a substantial risk of
which he was aware. (aware of the risk and proceeds)
o We take risks every day (driving a car) but an unacceptable risk is one where the social good
does not outweigh the possible harm.
Negligently: When a person should have perceived a risk, but did not and proceeded.
o A deviation from the standard of care that a reasonable person would have observed in the
actors situation. Must consider 3 factors in determining if he acted as a reasonable person:
Gravity of the harm that foreseeably would result from s conduct
Probability of such harm occurring
Burden of the in refraining from the conduct

MPCs States of Mind

2.02s interpretative provision
Discards distinction b/t general and specific intent.
2.02(4) When the law defining an offense prescribes the kind of culpability does not
distinguish among the material elements, such a provision shall apply to all the material
elements of the offense, unless a contrary purpose plainly appears.
Default MR is Recklessness
o

4 MPC mental states:

1) purposely
w/ respect to result or conduct - s conscious objective is to do a particular act or cause a particular result
AC if he is aware of them or believes or hopes that they exist
Judged by a subjective standard.
2) knowingly
result - means knows or is aware that his conduct will very likely cause a particular result, its
practically certain
D lacks normal mental faculties or has a distorted sense of reality and hes not aware then he cant
knowingly intend the result.
D fires a gun in Vs direction, but was unaware that V was there not knowingly even if its Vs
presence was really obvious
willful blindness (ostrich instruction burying head in the sand) is included under this b/c the person is
aware of the high probability of something but tries to not become actually aware for whatever reason if
hes profiting from it for ex. and then he can say but I didnt know not good enough here buddy
2.02(7) When knowledge of the existence of a particular fact is an element of an offense, such
knowledge is established if a person is aware of a high probability of its existence, unless he actually
believes that it does not exist.
- To avoid situations where one is suspicious of certain things but in order to be able to deny any
knowledge, has purposely refrained from making inquiries which would have led to the
knowledge in question.
State v. Nations
Strip joint owner w/ 16 year old dancer.
Jewell Case- driving a car across the border when you know there is a secret compartment and you are
being paid
3) recklessly
means consciously disregarding an unjustifiable and substantial risk or harm that the material elements
exists or will result from his conduct risk must be of such nature and degree that the actors failure to
perceive it, considering the nature and purpose of his conduct and the circumstances known to him,
involves a gross deviation from the standard of care that a reasonable person would observe in the actors
situation.
Judged by a subjective standard.
knew of risk actors view
Some courts use an objective standard and find that if D behaves extremely unreasonably, even if unaware
of the risk, then he is guilty.
Night club owner had fire exits locked, 16 year old employee went to change a lightbulb and
started a fire, many died. Doesnt matter that he wasnt the one who started it b/c it was his
omission to perform his duty to protect the safety of his patrons which was the equivalent to the
affirmative act. He may have been really stupid and not realized the danger, but thats too bad
extraordinarily careless.
4) negligently
is the failure to appreciate a substantial and unjustifiable risk when he should have been aware of the risk
risk must be of such a nature and degree that the actors failure to perceive it, considering the nature and
purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard
of care that a reasonable person would observe in the actors situation.
Judged by an objective standard.
should have known of risk RPs view
2.02(3) default MR is reckless if no MR supplied, MPC says prosecution has to prove was at least
reckless for every element.
2.02(4) Culpability requirements apply to all material elements unless a contrary purpose plainly appears.
(including the structure of the statute)
*MPC rejects strict liability except w/ violations (practical reasons

SPECIFIC INTENT an offense where the mens rea is set out expressly in the definition of the crime
jury cant infer specific intent just by the commission of an act
specific intent judged by a subjective standard
3 types of mental elements usually found in specific intent crimes definitions:
o intention of future act, separate from the actus reus of the offense (assault with the
intent to rape)
o special motive - offensive contact with the intentional to cause humiliation)
o awareness of attendant circumstances (the intentional sale of obscene literature to
someone known to be under the age o 18)
Flag Words: WITH INTENT TO
GENERAL INTENT if no particular mental state is set out in the definition of the crime then the
prosecutor need only prove that the actus reus of the offense was performed in a morally blameworthy
manner (common law rape sexual intercourse by a male with a female not his wife, without her consent
general intent because no specific MR)
-jury can infer general intent just from the commission of the act
judged by a subjective standard
general intent means that D was aware he:
a) was doing the act, and
b) the likely consequences of the act
transferred intent doctrine
Transfers b/w people, but NOT between offenses
Regina v. Pembilton (1874) D tried to throw a rock at a person, but hit a window in the building
behind the person. D was charged w/ malicious injury to property. It doesnt transfer from one
type of social harm to another.

People v. Conley (teenager hit in face with wine bottle)

its meant to result in punishment that is proportional to the culpability but sometimes it is more
severe b/c perp will get charged w/ what actually happened + intent to do whatever on whatever he
was trying to hurt/damage
o People v. Scott (Cal, 1996)
D meant to kill a certain person but shot someone else charged with murder
and attempted murder
MPC Ds act is not prevented from being the proximate cause of a result if the result differs from that
intended only in the respect that a different person or different property is injured or affected 2.03(2)
(a)
natural and probable consequences doctrine: Its unconstitutional for a judge to instruct a jury that the
law presumes that a person intends the ordinary consequences of his voluntary acts b/c then the due
process clause is violated. It makes D disprove that he intended the ordinary con (shifts burden from pros
to D). Its ok if the jury applies its own common sense in such circumstances and if the judge informs them
that they may, but need not, draw such an inference
Permissible inference vs. Presumption
You cant prove what was going on in the D head (Presumption- the state says that we presume
you intend the normal consequences of your actions-this removes the burden of proof from the
state to prove Beyond a reasonable doubt b/c the jury is asked to presume the mens rea without the
state proving it )
Permissible inference says the jury looks at the actions and circumstance i.e. the wine bottle with
no warning ect. So the state must show all this and prove beyond a reasonable doubt that allows
the jury to look at its case and make presumptions that this is what the Ds intent was

Strict Liability Offenses

United States v. Cordoba-Hincapie

Catagories that do not require any culpable mental state

o These are mostly low level public welfare offenses- these are normally something that is
considered dangerous to the public, and they are normally minor offenses that dont
include jail time (speeding, or food regulations)
Sometimes added to statutes to give bite (i.e statutory rape)
Morissette v. US- the court held that mens rea is the rule not the exception, that criminal intent is
necessary for a crime. Therefore, silence by congress does not mean that mens rea does not exist.
Congress must expressly show that mens rea is not required
United States v. Balint (cocoa leaves) and US v. Freed (hand grenades)- outline public welfare
offenses where the possession of an item deemed dangerous to the public makes it the burden of
the defendant to learn if there are any strict regulations to its possession
MPC doesnt have any strict l. offenses according to 2.02(1) except for 2.05 which are
violations and cant result in imprisonment or probation, just fines
Any Defenses that involve the s intent do not apply to SL

Mistake and Mens Rea

Mistake is not an affirmative defense, it is a failure to prove the crime (MR).
In genral- mistake of fact will be a defense, and a mistake of law will not be a defense
IN a case with a strict liabilty statute- then mistake of fact or law does not matter.
If mistake regarding attendant circumstances doesnt change the intent, hes guilty because doesnt get rid
of his intent (ex: in burglary definition, say he thought it was daytime instead of night still intended to
burglarize so still guilty)
COMMON LAW
MISTAKE OF FACT
GENERAL
Genuine + Reasonable need to neutralize the MR (if
unreasonable then still morally blameworthy even if
just negligent then you are guilty).
Also, depends on what youre mistaken about: - must
negate moral wrong/ bad intent
Exceptions: morally wrong and legally wrong doctrines
SPECIFIC
Good Faith
People v. Navarro (stolen beams from
constructions site)

MISTAKE OF LAW
NOT a defense even if reasonable

1)Staute permits behavior and is

later found to be invalid
2)Entrapment by estoppel
3)General Constitution due
process- Lambart case, defendant
didnt know about a law that the
Supreme court said a person
wouldnt be expected to know and
therefore he is not guilty
4th exception to mistake of law not
being a defense is that sate must
prove that the actually new the
law- IN Cheek v. US

MPC- NO DISTINCTION B/W GEN. AND SPECIFIC

MISTAKE OF FACT
Must be good faith, and negate MR of One element
Allowed if unreasonable, but lost if mistake is made
recklessly or negligently, and that is the MR of the
offense charged
No Morally wrong Doctrine
Legally wrong Doctrine charges you with lessor
offense

MISTAKE OF LAW
3 narrow exceptions under mistake of law:
reasonable reliance (typo or statement)
fair notice (Lambert case)
different law mistakes (negates MR in the
prosecuted offense) handled like mistake of
fact

morally wrong doctrine Even if a s mistake of fact is reasonable, his intentional commission of an
immoral act serves as the requisite blameworthiness to justify conviction if you know youre doing
something wrong, your taking a risk that things arent as they appear to be (that you are mistaken) it takes
the mistake defense away
(ex- hitting guy at bar, and not knowing they are a cop- it still immoral)
legally wrong doctrine less extreme than the morally wrong doctrine
if a s conduct, based on the facts as he believes them to be, constitutes a crime not simply an
immorality he may be convicted of the more serious offense of which he is factually guilty (hitting a guy
in a bar who turns out to be a police officer)
MPC- you would be guilty of lesser offense- how you saw things
People v. Marrero (prisone guard with gun in NYC club)
You must be right in your interpreation of the statute that the law doesnt cover you, if you are mistake,
then it still applies to you and you have no defese you can only use this as a defense it it is later determined
that the statute is invalid
6. Causation
1) But for
2) Substantial Factor

Acceleration Oxendine v. State

If Ds act shortened Vs life, this will strongly suggest Ds conduct was a substantial factor in
causing Vs death.
When a father beats his child and helps quicken his death (the girlfriend had
already done the really bad damage to the little boys internal organs but Dad
helped it along).
In this case, it couldnt be shown that the injuries he inflicted acclerated the
death, so he was innocent of murder
Contribution is also a good theory. 2 non fatal injuries together made it fatal.
If neither kills by his acts alone, then both guilty.
Also, if either would kill due to his acts alone, then both guilty due to substantial factor.
Lengthening life. Much more unusual, but it can happen.
D poisons V which causes him to not go on his scheduled plane trip. The plane crashes,
but V is still dying slowly and actually lives a week or two longer than if D hadnt
intervened. D is still a cause in fact of Vs death.
Cant kill a dead person. State v. Rose
o D hits a pedestrian and keeps on driving, dragging the body. Charged w/ manslaughter
on the theory of criminally negligent driving after the impact. However, if it cant be

shown that D was still alive at the time of Ds negligent conduct (driving off w/ him on
the grill) then D cant be convicted.
Couldnt be said But for s leaving the scene, the vic would have died
Joint enterprise.
X and D shoot V as part of a conspiracy. Each act will be attributed to the other and there
will be no need to determine whether each wound was a substantial factor in killing V.
PROXIMATE CAUSE Is different than tort law concept b/c of the consequences. Need moral fault to punish
and there needs to be a substantially closer connection b/t Ds act and the ensuing harm
Direct Cause: No event of causal significance intervened between Ds conduct and the social harm for
which he being prosecuted= Proximate cause
a.) If the same general type of injury occurs as was intended by D, the fact that the harm deviates
in some small manner is irrelevant.
b.) If the same type of harm actually intended occurs, D will not be absolved because the harm
occurred in a slightly different manner than intended.
c.) D must take V as he finds him. If D hits V, and unknown to D, V has hemophilia and dies
as a result of the injury D is the proximate cause of Vs death.
d.) Fright/Stress: Vs death results without physical impact, as result of fright caused by D.
When D robs her store, V has a heart attack and dies. D is the
proximate cause of Vs
death.
Intervening Cause: An independent force that operates in producing social harm, but which only comes
into play after the defendants voluntary act has been committed or his admission has occurred.
3 intervening causes
o Act of God- an event hat cannot be traced back to any humam intermediary
o An act of an independatn 3red party which accelerates or aggrevates the harm caused by
the
o An act of omisison of the victim tha assissts in brining about the outcome
Superseding Cause: An intervening cause which WILL RELIEVE D of criminal
liability.

Direct cause
INTERVENING:
(SUPERCEDING)
(RESPONSIVE
aka dependent)
Kibbie v. Henderson

(COINCIDENTAL -

Other factors in
determinig PC

COMMON LAW PX CAUSE LIABILITY

RESPONSIBLE
NOT RESPONSIBLE
Description
a reaction to the conditions created by the - will only break chain of causation if
it was abnormal and unforeseeable
Ex- set building on fire and V runs into save child= does not break chain
But if V ran in to save his hat, it would
NOT RESPONSIBLE if unforeseeable and abnormal
Description
when s act merely put the victim at a certain place at a certain time, and because
the V was so located, it was possible for him to be acted upon by an intervening
cause breaks chain of causation unless it was foreseeable
EX- Kibbie v. Henderson- forseeable that car would hit him
But, if V dies while you are raping her b/c Lightening hits the house, you are not
liable
NOT RESPONSIBLE unless foreseeable
Free, delibrate , and informed human intervention
Omission does not break chain

Apparent safty doctrine- when a person reaches a postiiton of safety, the

orginal wrongdoer is no longer responisble for any ensuing harm- P hits
his wife V. who leaves to go to her parents house. She gets there, but it is
late, so she sleeps on the ground and dies from the cold. P is not liabl
Intended Consequences Doctrine:
If you got what you wanted you cannot complain if what you got was
unusual. Liability is NOT cut off from .
ON EXAM discuss:
(1) Actus Reus
o (1A) voluntary act
o causing
o (1B) social harm
(2) Mens Rea
(3) Causation link between Ds conduct and social harm
o cause in fact
o proximate
7. Crimminal Homcide
Murder
w/ malice aforethought
basically intentional

MPC
210.2 and
210.3

Common
Law

Purposely or Knowingly
OR
Extreme indifference to human life
comparable to malignant heart in
common law
OR
Felony-Murder unlike common
law, its not automatic instead
there is a presumption of
indifference to value of human
life but D can rebut this
presumption.
1st Degree
premeditated (intent to kill) and
possible categories of felony
Murder
2nd Degree
1) those not premeditated but not
mitigated to manslaughter)
2) intent to seriously injure
(Midget)
3) Malignant/depraved heart or
reckless indifference to human life
(even though unintentional, its SO
bad that its under murder)
high known risk

Voluntary Manslaughter

Invol. Manslaughter

no malice aforethought
- but intentional
-Mistake allowed
-CL- if reasonable
-MPC- sandard Reck. Neg deal
Extreme emotional disturbance for
which there is a reasonable
explanation or excuse from
viewpoint of actor, under
circumstances as he sees them
1) Was there a loss of self control?
2) Would a person like that (w/ those
characteristics) be provoked?
3) Assuming that I was in that
position, is it a reasonable
reaction/conduct?

accidental
Awareness usually
required

Heat of passion caused by adequate

provocation w/ no time for RP to
cool off
In order to show
manslaughter instead of
muder you must show the
following
o Adaquate
provocationo Heat of passionprovocation must
put you in heat of
passion
o Response to heat

Gross negligence
OR
Recklessness

Recklessly
consciously disregard
a substantial and
unjustifiable risk
under circumstances
known to him

- sometimes blurry
Does not recoginize
ordiary negligence

no social utility

of passion- you
must act while you
are still in the heat
of passion
o Must be causual
relation b/w
provocation and
act in the heat of
passion
Traditional Provocations:
1) Catching adultrouse spouse
2) Harm to family member or
third person
3) Mutual combat
4) Assault
5) Resisting illegal arrest
-Words normally not enough, but
infromative words may now be
Also includes Imperfect SelfDefense and Mercy Killings
(sometimes)
Cant go out looking for it so that
then we can use this to mitigate no
Clint allowed make my day

Traditional common law rule that you get a year and a day- if a person survives based on the injuries you
inflicted on them, then you are not responsible for their death- many states have changed this rule
Premeditation:
Minority: State v. Schrader (argument in pawn shop over knife- stabs vic 51 times)
o no time is too short for a wicked man to frame in his mind a scheme for murder
Majority: some period must exist between the formation of the intent to kill and the actual killing
must be an opportunity for some reflection on the intention to kill after it is formed. So that you
are in cold blood instead of heat of passion
o Laying in wait, using poison or deadily weapon, well thought out plan- are all strong
evidence of premeditation

Reasonable Man- encompases age, sex, physical aspects (handicaps), prior experiences MPCallows the standard to be view point of the from the actors situation as he believed it to be, so
there is more subjection here- and may look at social history and life experiences People v.
Casassa (in love with woman- stabbed and drowned her)
NOT considered:
o However, cultural traditions arent taken into account when asking for manslaughter
because theyre on American standard now on slippery slope if let people bring their
laws with them. Wed lose sense of normalcy.
o Also reluctant to extend abnormal and irrational characteristics (idiosyncratic moral
values) like hatred of gays.
Malice can be:
o express- when there is mainifested a deliberate intention unlawfully to take away the life
of a fellow creature and
o Implied when no considerable provocation appears or when the circumstances attending
the killing show an abondoned and mailignent heart

Depraved Heart
o When a person does an act, the natural consequences of which are dangerous to life,
which act was dleiberatly performed by a perosn who knows that his conduct endangers
the life of another and who acts with conscious disregard for life
o The for a base, antisocial motive and with wanton disregard for human life, does an act
that invovles a high degree of probability that it will result in death
o Berry v Superior Court- pit bull case
FELONY MURDER RULE
The General test is:
1) felony must be inherently dangerous (Fuller (thief), Burroughs (med))
-Maj- in the abstract
-Min- fact specific
2) must be guilty of the felony
3) felony must be a separate crime from the homicide
4) felony must be one that foreseeably could result in death
5) death must have been caused during the commission of the felony or the immediate flight from the crime
scene
6) the victim is not a co-felon- there is a tendency to only protect the innocent
If innocent party kills another innocent party f-m may apply if fired the first shot
2) Merger Rule: Must be independent of the killing.
People v. Smith child abuse case (dad beat kid but abuse merges into murder, so no f-m)
If the felony is not independent, then the felony merges w/ the homicide and cannot serve as the basis for a
felony-murder conviction.
If a death results during the commission of an armed robbery, the underlying assault doesnt merge w/ the
homicide since the felonious purpose of the conduct to take property is independent of the homicide.
In the commission of
Means during escapes and even before possibly.
D puts his hand over V to shut her up before he rapes her. He accidentally chokes her
and then rapes her (or attempted rape since you cant rape a corpse). Probably liable for
FM.
If V comes back from vacation to find her house in shambles and has a heart attack
doesnt count, not FM.
Causation Limitation: It must be shown that there is a causal connection b/n the felony and the harm.
D1 and D2 flew plane filled w/ marijuana. B/c fog, they crashed. One died. No causal link b/n
the felony of drug distribution and the death; the crash was not a direct result of any act in direct
furtherance of the felony (were not flying low to avoid radar detection)
Keep in mind that the situation may call for depraved heart since many courts hold that the f-m doctrine
applies only where the killing is by the defendants own hand or the hand of his accomplice.
Robber initiates a shoot out and someone is hurt. Can be shown more easily that he had a reckless
indifference for human life.
Manslaghter
1) There must have been adequate provocation
2) The killing must have been in the heat of passion
3) It must have been a sudden heat of passion the killing must have followed
the provocation before there had been a reasonable opportunity for the passion to
cool not before reasonable person could have cooled off
4) There must have been a causal connection between the provocation, the
passion, and
the fatal act.
If D is actually provoked and has not cooled off, but doesnt qualify b/c missing the other elements
probably will get 2nd degree murder b/c he lacked premed.

But if D isnt driven by passion or has in fact cooled off probably will get 1st deg since it was in
cold blood.
Today adequate provocation is a jury question first has to be enough evidence for court to find that a
reasonable juror might find it was adequate
Mistake reasonably but erroneously believed wife was cheating probably could mitigate.
Rekindled its ok now, but something else happens which inflames the person (even if you have to take
the events together to make it bad enough) still get the mitigation
Imperfect self-defense. (unreasonably, but genuinely believes there is a threat)
Mercy killings.
Actual provocation if D suspects his bud and wife and catches them, the situation is normally one for
mitigation, but if he coolly thinks nows my chance to get rid of that dirt bag then its not mans. b/c hes
not actually enraged.
CAPTIAL MURDER
Furman v. Ga.- case that lead to separate verdict and sentencing phases
Punishment must not be excessive, which has 2 elemetns
o Must not invovle the unnecessary and wanton infliction of pain
o Must not be grossly out of proportion to the severity of the crime
Goals of Death Penalty are retribution and deterence
Victim impact evidence
Payne v. Tennessee
9. DEFENSES
1) Justification 2) Excuse 3) Offense Modification (vic is ) 4) Failure of Proof 5) Non-exculpatory
public policy (SOL, Diplomatic immunity)
JUSTIFICATION
Burden of Proof (Patterson v. New York)
peoples burden to prove intent beyond a resonable doubt,
o BUT the carries the burden to prove his affirmative defense by a preponderance of the
evidence, and if he does, then he is guilty of manslaughter, not murder.
Burden of persuasion is BRD for state but only a perponderance of the evidence for the (about
51%)
Supreme Court says that if you fail to prove your affirmative defense then that evidence cannot be
considered by the jury when deciding if the state has met its BOP for all its elements- i.e you think
you are shooting a space alien instead of a cop. You dont prove your crazy, but the jury might
want to consider this evidence in determining if you have malice aforethought- but they cant
Aprendi- any fact that substantially determines the punishment then it must be proven beyond a
reasonable doubt before a jury. (in a drug charge, a judge cant take on more time in sentencing
hearing if by perponderance of the evidence he thinks you have a gun- must be proven BRD in
front of jury)
Self-Defense
(a) Deadly Force
(i) Elements from the Peterson case
Must have been actual or apparent threat of deadly force
Threat must have been unlawful and immediate
Defendant believed he was in immediate danger of death or serious bodily injury
Defendant must have believed his response was necessary to save himself
Beliefs must have been genuine and reasonable in light of surrounding
circumstances

(ii) Deadly force may not be used to repel a non-deadly attack even if it is the only way
to avoid injury
Disproportionate to kill someone over windshield wipers
(iii) Cant claim self-defense if you put yourself in the situation where you were
provoking people to use deadly force against you/
No Retaliation- once they retreat, you cant attack them
once you are in an area of safey, you generally cant claim SD if you go back out
to where the trouble is
2) Retreat
(i) Retreat to the wall- is the idea that in order for there to be necesity, you must take
any availbe avenue of escape if one exsists. Before you can use deadily force- One
restriction though- if the escape poses some peril to you, you do not have to take it.
(ii) Most jurisdictions dont require retreat but some do require it if there is any way to
retreat but not if there is no way to withdraw to a safe place
If you are intitial agressor, but try and retreat, and they continue to attack, you
may claim self-defense
(iii) Castle TheoryEven jurisdictions that say you have to retreat usually hold that you
dont have to retreat if it is you own house (including the yard) but Nelson
(windshield wipers) was the deadly force agressor so that exception not apply to him
This idea has expanded in some jurisdictions to include your car, your place of
work, and your boat
Some say you have to reasonabily believe you are in peril- if all they are doing
is taking you TV, you cant shoot them Florida says you now get to respond to
any sort of intrusion, you dont have to feel yourself in danger. You are allowed
to use deadily force.
Some say castle rule does not apply if attacker lives in the same house as
you
(iv) Stand your ground laws- no matter where you are, if you are attacked, you dont
have to retreat, you still must use proportional defense, but you can respond in SD
even if you know you can retreat.

(v) Common law rule if you are trying to prevent a felony no retreat is required
(vi) Another way- if you are an agressor, and the other person respondes diporportionatly
to you act- you slap and they pull out a knife, you can then claim SD
Reasonable Belief Requirements
Reasonable man includes age, sex, size, prior expierences of
Goetz and State v. Wanrow
Mistake:
CL- Must be reasonabel and good faith- Unreasonable = Incomplete/Imperfect
Defense ( may mitigate to voluntary manslaughter)
MPC- can be unreasonable, but Reck/ Neg will loose the defense for crimes that have
those MR. 309
(Same rules apply if you hit an innocent bystander)
Battered Women State v. Norman
During the violent pahse, the time when the traditional concept of SD would mandate that the
protect herself, the battered spouse is least able to counter because she is immobilized by
fear, if not physically restrained.
o BWS does two things- helps to show that she actually believed she was in danger
when someone who hasnt been abused may not. It also helpst to show immenianceyes he is passive now, but she still believes that that her death is imminent and that
this is her first chance to defend herself-

but the counter to this is that humans are unpredictable and they may change their
minds ans not kill you.
o The permissability of Battered woman syndrome (BWS) varies- it normally applies
to the subjective element of SD, but when you try and determine the objective
reasonablness, court vary in their approach- Should the reasonable standard by
based on an abused woman suffering from BWS or not?
Last Clear Chance- prison case where guy pours oil on fellow prisoner to prevent rape- eventually he will
be alone with the guy again so this is his last chance to prevent an attack- must be no other legal alternative
o

Defense of property/habitation
Property- never deadily force, never spring guns.
Defense of Habitation- different than property b/c you dont know an intruders intent
Some jurisdictions allow you to use deadily force to repeal someone from
entering your house b/c you dont know their intent
Some extend this right to once they are in the house
Others say once they are in the house and you can tell their intent. Regualr SD appplies and you may not be
able to use deadily force
NECESSITY Normally applies only when a force of nature is envolved; CHOICE OF TWO EVILS
3) Three elements to the defense
(a) The act charged must have been done to prevent a signifigant evil
(b) There must have been no adequate alternative
(c) The ham caused must not have been disproportionate to the hamr avoided
(i) Must have been undertaken to prevent evil at the outset (cant go back and claim
necessity)
If unaware of evil and does it anyway no defense
(ii) Belief about need to take action to avoid evil must be reasonable about:
The evil itself
There is no alternative to avoid evil
Taking action will avoid evil
(d) MPC on Necesity 302
(i) Limitation
1. Must believe that act is to avoid an evil
2. Evil sought to aviod must be greater than the law tries to prevent
3. Balancing of evils is to be decided at trial- so even if you honsetly believe
your financail stability is more important than someones life, the court can
still hold you guilty
a. Who balances out the competing harmsi. Some jurisdictions treat it as a matter of fact and leave it to the jury
ii. Others see this as a very subjective issue and therefore treats it as a
matter of law for the judge to decide (or to decide whether to send
it to the jury)
4. Choice of evils can not prevail if there is a legeslative choice that already
governs the decsion
5. If you rightly choose to break a law to prevent a greater evil, you can still be
culpable if you do so reckless are negligently
MENTAL STATE: necessity is based on what a reasonable person would have
precieved to be an emergency, and mistake is allowed
MPC no necessity Actor believes purely subjective (but must not be a
reckless or negligently formed belief if the MR for the crime is Reckless or
negligent
(e) Under necessity- the law requires us to look at the situation from the persepective that the
was in- so if you burn a corn field thinking that you are saving a village of 20 people,

but there turns out to be a miliatry base under the corn field with 200 people in it, you
would still have a necessity defense because your actions were reasonable from where
you were-look at point in time when decision occurred, not the acutal results
EXCUSE
o Caustation theoryo Defendant is not the one causing the social harm- it is being caused by people or things
outside of the persons control.- I didnt cause the social harm by bringing the drugs into
the country, its the person threateing to kill me if I dont
o Mentally ill, or some coercieve threat
o Moral Character theroyo excuses are desinged to cover situations where the wrongdoer does not exhibt bad moral
character- i.e. shooting at child molestor in order to get police to respond to the scene
when they have refused to do so do to lack of a warrant
o Saying that punishment should be proportional to the moral desert or a wrongdoing, and
that desert should be measures by a persons moral character
o robbing a bank b./c terrorists threaten to kill your child
o Critics say it is impossible for humans to facotr in all the variables that determine a
persons moral charater however- plus you would have to look at the wrongdoers entire
life
o
o Free Choice
Says people should only be punished when they were able to free choose to
violate the moral norms of society
Free choice exists when you have the opportunity to
understand the facts relating to your conduct
Appreciate the your conduct violates societys mores
Confrm her conduct to the dictates of law
o If you are missing one of these three elments, you should not be punished b.c you are
lacking one of the basic attributes of personhood
Necsessity focuses more on public welfare, while duress looks more at personal issues
What if the threat was that you have to poke a stranger eye out or he was going to poke your
daughters eye out
o No necesity b/c the harm is equal
o Duress does not require you to be preventing a greater harm, so you could aruge duress
Theortetical reason:
Utilitarian- seaks deterence- but if anyone would put out a strangers
eye before your daughters then it is non-deterable
Moral Character- if we would all do it then there is no bad moral
character
Causation- it was outside there control
. Duress
Elements
o Imminent Bodily Harm
o Reasonable apprehension
o No other legal alternatives
o Must not be at fault in createing the immient threat
Duress is on your mind, not your body
MPC test: the defense is available where the threat to D was sufficiently great that a person of
reasonable firmness in Ds situation would have unable to resist (MPC 2.09)
3. Intoxication

a.
b.

: Voluntary intoxication is not an excuse; however it is, in limited circumstances, an

opportunity to demonstrate lack of mens rea due to intoxication
3 circumstances:
a. a person whos intoxicated may be able to prove that they lacked the
specific mens rea for the crime (INTOXICATION IS NOT A
DEFENSE TO GEN. INTENT CRIMES)
i. must convience jury that under CL- intoxication negates
spcefic intent
ii. under MPC- it negats MR for one of the elements
b. a person might be so drunk that could claim they were unconscious and
thus committed no voluntary act
c. under extreme circumstances, long-term intoxication may produce
insanity

INSANITY
Competency to Stand Trial
o Incometent if you
Are mentally ill or disabled
Suffer from amnesia
Unable to communicate with her attorney due to a physcial hanicap such as the
inability to speak
o Comp, does not care about state of mind at time of offense- instead it is concerned
whether or not he has a rational and factional understanding of the proceddings in court,
and they have to be able to communicate with the attorney
Burden of Proof
Clear and convencing standard
Insanity is an affirmative defense, so the prosecutor can require the to persuade the factfinder
that she was insane at the time of the crime
The prosecution must prove all elements of the offense, so the evidence that the enters to show insanity
may be taken by the jury to show that thye lacked a certain mental element or voluntary act.

3 requirements for insanity standard

o Must accuralty reflect the underlyng principles of substanitive law and community values
while comporting with the realities of scientific understanding
o The standard must be phrased in order to make fully available to the jury such psychiatric
information as medical science has to offer regarding the individual yet be
comprehensible to the experts, lawyers and jury alike
o The definition myst preserve to the trier of facts it full authority to render a final decsion

INSANITY TESTS
1) MNaghten rule
At the time of committing the act, the party accused must have been laboring under Such a defect
of reason From disease of the mind:

As not to know the ature and quality of the act he was doing
Or if he did know it, that he did not know that what he was doing was wrong.
2) Irresistible Impulse of Control test (Arizona)
o When a person knows that a given act is wrong, but is driven by insane impulse to
commit it anyway
3) Durham or Product Test
o 1954 an accused is not criminally responsible if his unlawful act was the product of
mental disease or mental defect

Gave to much authority to experts

4) ALI, MPC 4.01 commentatires

When as a result of mental diesease or defect the lacked substantial capacity to appreciate the
criminality of his conduct
o Use of appreciate rather than know conveys a broader understanding than simple
cognition
When as a result of metal disease or defect the lacked substantial cpacituy to conform his
conduct to the requirements of law
This test does not require complete impairment of ability to know or to control- which is more
consitant with medical reality
Deific Decrees- a person is legally insane if, as a result of mental illness, he believe that God personally
spoke to him and ordered him to commit a crimminal act.
-must think God is telling them to do something, cant just claim that this is how you interpret you religion

Expert Testimony: if the states evidence does not show that the acted contrary to what
the experts say is insane, then the experts testimony may have particular force State v.
Green
o Says the best way to decide if a person is crazy is to find out as much as possible
about the actor from those persons who have had an opportunity to observe him
directly in a wide variety of circumstances
Diminished Capacity
DC doctrine allows to introduce evidence of mental abnormality at trial either to negate a mental
element of the crime charged, or to reduce the degree of cime for which the may be convicted,
even if he satisfied all the formal elements of a higher offense
o DC does not mean you claim you are less responsible for the crime charged, it means the
is denying th prosecutions prima facie case by attempting to cast doubt on the
prosecutions claim that a requisit mental element was present at the time of the offense
Essentially claiming he is not guilty at all
Partial Responsibility Variant
o Form of lesser legal insanity- claims that as a result of mental abnormality, he is not
fully responsible for the crime proven against him
o The actor is reasonabily rational and in control of his actions,
Kinda like small children- follows the same rational- they can be dangerous, but
not fully responsible as moral agents
INCHOATE OFFENSES
Attempt
I.

Common Law
Definition: a person, with the intent to commit a criminal offense, engages in
conduct that constitutes the beginning of the perpetration of, rather than mere
preparation for, the target offense.

Merger Doctrine: A criminal attempt merges into the target offense, if it is

successfully completed.

Actus Reus: Tests

o Physical Proximity Test: an act must go so far that it would result, or
apparently result n the actual commission of the crime it was designed
to effect, if not extrinsically hindered or frustrated by extraneous
circumstances.

a.

Indispensable element if D is missing a necessary instrumentality for

the crime (a gun for the murder or a machine to manufacture illegal
whiskey) then he has not yet crossed the line from preparation to
perpetration easier to apply, but is arbitrary and says nothing of her
intentions or culpability or the degree of her prior conduct which may
have disturbed the publics repose.
o Probable Desistance Test: proceeded past the point of no return i.e.,
the point past which an ordinary person is likely to abandon her
criminal endeavor.
a. focuses on what the actor has done (not what he has left to do)
and convicts when the actor reaches a point where it is
unlikely that he would have voluntarily desisted from his
effort to complete the crime
b. Ex: a man who sets up to meet a minor and then meets the taxi
cab just to find a decoy cop passes test, but a woman who
rewrites prescription to say 11 rather than 1 (Tylenol w/
codeine) doesnt pass test b/c there is still doubt that she
would have returned 2 more times once to get the
prescription she was entitled to and the second time to get the
one she wasnt entitled to
o Unequivocality/ Res Ipsa Loquitur Test: A person is not guilty of a
criminal attempt until her conduct, standing alone, demonstrates her
criminal intent.
a. when the actors conduct manifests an intent to commit the
crime if eliminate MR, have to wait and tell by watching his
conduct whether hes about to commit the offenseeliminate
knowledge of mens rea (if any) and observe the conduct by
itself (like watching a movie w/ the sound off)
b. may not adequately protect people b/c later acts can make it
ambiguous
o Abnormal Step Approach: step toward crime that goes beyond where
the normal citizen would think better of conduct and desist allows
conviction at a very early stage
o Last Act test very favorable to the defendant; must have taken the last
step within his power to commit the target offense; preserves a
maximum opportunity for the actor to change his mind while requiring
very strong evidence of criminal intent
Mens Rea: criminal attempt involves two intents (intend the act and intend
the result under the circumstances)
o

Actor needs to have the power to commit the crime

immediately
Dangerous Proximity Test: Not satisfied unless the conduct is so near
to the result that the danger of success is very great.
a. like physical proximity but more flexible. the greater the
gravity and probability of the offense, and the nearer the act to
the crime, the stronger the case for calling the act an attempt
(not as restrictive as last act, requiring everything to be done
except for the result desired)
b. How close is the person to committing the crime in terms of
time and location?
c. In this regard, courts consider three factors:
i. Nearness of danger
ii. Substantiality of the harm
iii. Degree of apprehension felt

actor must commit the actus reus of an attempt with the specific intent
to commit the target offense
o Ex: D intentionally aims a loaded gun at V, who is standing nearby. D
is arrested before he can pull the trigger. Although D intentionally
aimed the gun at V-the first intent-he is not guilty of attempted murder
unless he did so with the specific intent of killing V. If he merely
intended to scare V, he is not guilty of attempted murder.
o Specific-intent versus general-intent:
a. Attempt is a specific-intent offense, even if the target crime is
general intent. Thus, rape is a general-intent crime, whereas
attempted rape is specific-attempt in nature.
Attendant Circumstances: It is probably not necessary that Ds intent
encompass all of the surrounding circumstances that are elements of the
crime.
o A federal statute makes it a federal crime to kill an FBI agent. Case
law demonstrates that for the completed crime, it is enough that the
defendant was reckless or even negligent with respect to the victims
identity. D tries to shoot V (an FBI agent) to death, but his shot misses;
D recklessly disregarded the chance that V might be an FBI agent. D
may be found guilty of attempted killing of an FBI agent.
o

II.

MPC:
A. Definition: Section 5.01(1): Must have acted with culpability of commission of crime AND
either:
1. conduct defense purposely engages in conduct that would equal the offense, guilty
of completed attempt, OR
2. result as an element when crime has result elements with purpose of causing or with
belief that act hes engaging in will cause the result OR
3. covers both purposely engages in conduct which constitutes a substantial step
ultimately planned to culminate in the commission of the crime you did everything you
expected to do but didnt bring about the crime
C. Merger: The common law merger doctrine applies as well under the Code. MPC 1.07
D. Actus Reus: Substantial Step Approach
E. Mens Rea:
1) Intentiall acts
2) Intends for his acts to result in the crime
F. Abandonment:
a. Common Law: generally not allowed under common law; some states allow a
defendant to prove that though he committed an attempt he subsequently abandoned
his criminal purpose (must change mind because of actual remorse not higher
probability of being caught); must establish by the preponderance of the evidence
b. MPC: permits defendant to introduce evidence of abandonment; 5.01(4); only
available when the target offense has a result or circumstance as a material element;
not available when conduct is the only material element (nothing left to abandon
when conduct is committed); must be voluntary, must be complete (cant wait for a
better opportunity)
G. Impossibility:
a. Common Law:
i. legal impossibility (doing something you think is a crime but it is not
actually a crime; smuggling a legal pill into the US) was a defense,
ii. factual impossibility (someone trying to sell illegal pills when the pills were
actually sugar pills; can be convicted of attempt) was not a defense;

b.

iii. Hybrid- Intend to commit an illegal act, and if the circumstances were as
you believed them to be, then it would be illegal, but you are mistaken
about the legal status of somethin- i.e shooting a stuffed deer out of seasoncourts are split
iv. inherent impossibility is not a defense (trying to kill someone by sticking
pins in a voodoo doll; the best hope is to not have committed the actus reus)
MPC (5.01):
i. Legal impossibility is a defense because it requires the actor to do
something that is a crime (not a true defense, he just didnt do anything
wrong; prosecutor must find a statute for what he did do);
ii. factual impossibility is not a defense (guilty if he would have committed the
target offense had the facts or conditions been as he believed them to be);
iii. Hybrid- NOT A DEFENSE
iv. inherent impossibility is not a defense (permits the court to dismiss a
prosecution in such a case if the defendants conduct was so inherently
unlikely to culminate in the commission of a crime that neither conduct nor
the actor presented a public danger) 5.02(2)

Assault
Battery is an unlawful touching- un-invited, unconsenting touch
Assualt was an attempted battery
Assault was often consolidated with Battery
o Originally an attempt to commit battery
o Unlawful attempt coupled with present ability to commit a injury on the other person
(under common law if your gun is unloaded, then it is not an assault)Common law said
you had to compelet you attempt- so take a swing and they duck
BUT ALI incoporates the idea of apprehension- so if you place someone in fear of being touched
you are guilty.
o So now attempt and assualt have the same principles
Fact pattern about guy telling girl he wants to date her and if she refuses he will beat her, he will
put a note on her car, and she will have 24 hours to answer. Does the note = assualt
o Common law said there had to be imminet threat of battery- so it would not be assault
o MPC- says there just have to be a substantial threat coobarative of his crimminal intent
Could go either way, but if you apply MPC test for attempt at lookin at a
substantial step, this could be an assualt
Solicitation
State v. Mann

Solictation involves the asking, enticing, inducing, or counselling of another to commit a crimethe soclicitor concieves the crimminal idea and furthers its commission via another person by
suggesting to, inducing, or manipulating that person.
Merger- the offense of soliciation merges into the crime solicited if the substantive crime is
completed
Going back to case about candel in turpintine, problally would have been guilty of solicitation
Why is this a crimeo The moral danger is that it is easir to ask someone else to do something for you and if
you dont have to worry about getting in trouble, a lot of people would do this- so you
want to discourage people from doing this
How do you establish proximate cause sense there is an intervening cause
o The result is a response to what actor did so chain is not broken

State v. Cotton
CL- may require effective communication

MPC- does not require effective communication (letters never made it from jail)
CONSPIRACY

Bridging with solicitation

If you solicit someone to commit a crime, and they go ahead and commit it, then it is conspiracy
Merger:
o CL- DOES NOT MERGE WITH TARGET CRIME
o MPC- MERGES unless there are target crimes yet to be completed
Actus Reus
It is an agreement b/w parties
o Some jurisdictions require an overt act
Ex: A and B agree to make meth
o If overt act is required: A and B agree, and then A goes and buys a lot of sudephed
Overt act standard is very lienent (not the same as substantial step for attempt)
Mens Rea People v. Swain
o
o
o
o

Specific intent offense parties must intend to agree AND intend that the object of their
agreement be achieved
Knowledge itself is not sufficient (unless serious target crime), but can used it to infer intent
B/c it is a specific intent crime, it can require a higher MR thn the crime the parties agree to
commit.
You CANNOT conspire to commit something that is unintentional.
Example involuntary manslaughter
Essence of consp is an agreement must agree that we are going to commit the
particular offense.
If it is a homicide and we agree to commit it it is going to be some sort of
purposeful homicide.

Conspiracy and target crime do not merge, so you can be charged with both

Pinkerton v. US
Pinkerton was in jail but conspired with brother to commit tax fraud
every member of the conspiracy will be guilty of every crime committed by every other member, as
long as the crime is among the objects of the conspiracy (rob a bank) OR is a reasonably foreseeable
outgrowth of the broad conspiracy (steal a car to rob the bank).
Proving Conspiracy
Commonwealth v. Azim

Its hard to show agreement b/c they activley try ad cover it up, and there is no materail evidence
like a contract or anythingo Instead you have to try and show what a normal person would have done- maybe he
should have driven off.
o Look at the actions and try and show that they obviously had an agreement

People v. Swain
Conspiracy is a specific intent crime
o Inten to combine with other

o Intent to accomplish the illegal objective

Charged with Conspiracy to commit second degree murder
o State must show implied malice and you can not show intent to have implied malice

Knoweldge is not enough

People v. Lauria
Charged with conspiracy for prostitution- he provided answering service for the hookers
It is found that he had knowledge, but not intent to further the crime
Intent can be shown by direct evidence, or by inference from the situation
o Direct- evdience of advice from supplier of goods to buyer about the illegal use of them
o Inference
Look at suppliers knowledge of illegal applicatioin of item
Does he have a stake in the venture (money to be made)
If there is no other puprose of item (horse racind info)
Volume of business
The inten of a supplier who knows of the criminal use to which his supplies are put to participate
in the cirminal activity connected wit hthe use of his supplies may be established by (1) direct
evidecne that he intends to participae or (2) through an inference that he intends to participate
based on (a) his special interest in the activity ro (b) the aggravated nature of the crime itself
Mens Rea element of conspiracy can actually be a higher standard than the target crime
Structure of Conspiracy
Wheel (really a sun, b/c if outside rim connects them, then they would be related) and Chain
conpiracies
Sun
o Rays not connected with each other b/c they have know reason to know that the other
spokes exisit, so just b/c they conspire with the central hub does not mean they are coconspirators with the other rays
Chain
o Each link knows that the others exist otherwise the crime couldnt work, even if they
dont know who the other links are
o It becomes harder to convict as you get further up the chain and more removed from the
final comition of the crime
o Higher up you go, the more information the links will have- so prosecutors can get more
out of them in exchange for a deal- so a lot of times the head guy gets a break in order to
sink the whole chain (doesnt seem fair, but is practical)
Wagon Wheel
o Take the Sun, and show how they are connected with the rim by going back to the hub
o
Withdrawl
How can you limit crimminal liability for conspiracy
o Express withdrawl- open and notoriously withdraw from the conispiracy
What if you dont have contact with your co-cospirators (say you lost their
number, or dont know their identity
You probably cant- in large conspiracies, its almost impossible to
actually withdraw.
Why is is fair to hold someone reasonbisble for actions taken after they desire to
withdraw
The actues reas is the agreement, so once you agree, the social harm is
complete.

One narrow variation is WARTONS RULE

o If by its nature, the crime requires a certain number of people, and that is the exact
number you have then you cant be charged with conspiracy- i.e you couldnt be
charged with adultary and conspiracy.
o If you have more than the bare miniumin then this rule does not apply
If one of the conpirators is the victime- i.e statutory rape, the jail bait cannot be a victim as well
o One thing to conisder is who is the victim- in an illegal abortion, is it the mother or the
fetus, you would have to look at the legislative inten
UNILATERAL vs. BILATERAL CONSPIRACY
Bi- is when two or more are held as co-conpsirators b/c they actually intend to accomplish
something
Uni- where two people agree, but only one of them intends for the crime to be commited- say one
is an undercover cop.
Traditionally, Uni wasnt a conspiracy, but modern view allows uni to be allowed as a conspiracy.
ENTRAPMENT
Objective from
o Is the police behavior so outragous (that you dont have to look at ) that it basically
creates the crime.
Subjective
o Is the a nice responsible person who would otherwise never commit a crime, but was
coereced into the crime by the officer or the situation they were in
ACCOMPLICE LIABILTY

Derivative liabilty- you are taking liabilty from the primary actor
No such crime as aiding or abetting, or being an accomplice- these are things that you do, they are
tools- your liability is derivative (see above)

MPC 2.06o A person is an accomplice of another person in the commisision of an offense if

Whith the purpose of promitog faciilitatioin the commsiiion of the offense he
Solicits such other perosn to commit it
Aids or agrees or attempts to aid such other person in the planning or
commiting
Having a lega duty to prevent the commission of the offense, fails to
make proper effort to do so
His conduct is expressly declared by law to establish his complicity
Side note- for specfic intent crimes, you need duel menes rea- intent to assist, and inent of the
acutual crime, inent to bring the target crime about

Lauria

What if he had been charged as an accomplice?

Should it matter what A intends when he sells a gun to B
A intends to sell gun with the only intention be to sell it
o A is not liable
A intends to sell gun, and intends for B to kill someone
o Yes, you will probally be an accomplice
A intends to sell gun and simply knows it will be used, but doesnt intend for it to be
o Harder to decide- Lauria looks at this

Lauria
o Knlowegde may be enough under CL- if one substantially benefits in some way has a
stake in the venture (gets extra money, free sex, has a disporportionate amount of
business from it, or if there is no legitmate use for the item)
o But if you dont have stake, then if it is particularly dangerous, then knowledge may be
enough as well

Riley v. State
What kind of intent is required when the target offense doesnt have inetn- when it is recklessly or
negligento Must he act with the intent ot cause the resutl
o OR, must he only have the mental state of the offense
Court says statute requires you to act with the intent to promote or facilitat the offense- what does
this mena
o For an intentional crime like murder- you must act with the intent to promote or cause
death
o For Crimes that have a mens rea that is not intentional MPC 2.206(4) says for a specific result crime, you are an accomplice if you
act with the mental culpabiilty of the crime- i.e would have to have acted
recklessly in this case
Only have to have the mental state of the conduct, not intetion for the acutal results
Is this consitant with the underlying rational of accomplice liabilty and why we punish
accompliceso Baiscally an assumption of risk if you intentnionally assist someone.
Note 1- Etzweiler is the minority opinion saying you cant be liable as an accompllcie for
neligence offense
Note 2 page 891
Alice askes cabbie to speed and gives encouragement by saying she would tip
A- MPC- yes she is an accomplice, b/c she is an accomplice in promoting the speeding
B- she encourages speeding, he runs red light- this might changes situation b/c she did not solicit
running a red light, so she maynot be an accomplice in the crime that causes the result.
Actues Reas of accomplice Liability
Teller sees robber, tries to alert guard, but actually alerts robber of guards prescnece- you are not
accomplice b/c you did not intend to to assist them
What if you hope he succedes and try to assist them to help them?
o You have Mens Rea b/c you intend to assist them
o But, if you never acuallty give help, then you dont have actues reas- mere precesne is not
enough (Under MPC, if you attempt to assit it would be enough, Under CL, if you
encourage, it is enough)
Vailancourt
He was there, but did not acutaully assist, and unless you can prove that he encouaged him or
acted as a lookout, then you cant show actues reas.
Mere presence does not an accomplice make
o Jurors often interpret this to mean that anything other than mere presence is enough
Wilcox
What kind of defense is entrapment?
Public Policy based defense- not b/c we excuse the but b/c we dont want the gov. to engage in
that type of behavior.

Natural and Probable Consequences- Only Common Laww

State v. Linscott
going to rob drug dealer, but co-defendant ends up shooting the drug dealer- the never agreed
to kill the vic. And did not think that the other would do so
o Co- shot through a window and accidently killed the vic
Linscott is not a priciple b/c he did not pull the trigger
But judge says he was guilty under complicity
Accomplice liability holds you liable for the natural and probable results of you actions, but that
doesnt mean that you are held liable for everythgibg that COULD happen- we are talking about
things that are PROBABLE to happen
o In this case, it was a probable result
What about an illegal gun sale? if there is an armed robbery- not nescesarily say that this is a natural and
probale result, but you could make an arugment
In accomplice liability the liable for any of the natuarl and foreseeable consequences of the cimre they
are actually participating in
IN conspiracy, you are liable for conspiracy for crimes that you are not assisting in any way shape or formas long as they were done in furtherance of the conspiracy, and any of the natuarl and foreseable
consequences of those acts.
No causation principle
The act that the commits does not actually have to help the crime be completed- meaning that
they can be charged even when they did not acutally create the social harm.
Removal of caustation is mostly an evidentiary rule that helps the prosecution prove its case
Vicarious and Corporate liablity
Commonwealth v. Koczwara
No eveidence that he sold liquor to minors, but his employees did- is he liable?
o Yes- similar to automatic weapons case (Stapples) difference is in Stapples they were
trying to figure out something that strict laibility- here there was no actues reas- he was
vicariously related to the victim
has not actues reas or mens rea. So this is against everything we have been studying
o Court gets around this by saying that the punishement orgiinally given was
disporportionate to the crime commited- public welfare offenses, should only have fines
not jail time.
11/28/06
Corporate Liability
Corpations should be held liable when:
o When an agent comits a crime
o Within the scope of their employment
o For the benefit of the corporation
Courts mainly look to see if an employee has commited a crime and dont concern themselves
much with the last two. The MPC looks mainly at people high up in the corporate structure
Rape
o

Consent- traditionally treated as a defense, and must be proven by the

Failure of proof defense (possibly)
How would you like the to demonstrate consent
Rape shield laws dont prevent the victim from testifying, the limit the
types of evidence that may be presented- ie you cant try and show that
a women was sexually premiscous to show that she probably consented

Verbal
Want of resistance
o Verbal
o Physical
o Against Her Will- she may have submitted, but it is against her will
Must she resist- traditionally yes, but this could be dangerous
o What should the mens rea be
Intentional?
Knowledge
Reckless
Negligence
Normally the more punishement there is the higher the mens rea, but with rape
its hard to draw the line. Rape could be punished up to 30 years, so traditionally
it would require a higher mens rea
Maybe allow conviction for each mens rea, but give different punishements
Rape is not a specific intent crime, so intoxication should not be a defense
Mistake of fact?
o Requires reasonable mistake of fact- should this be a defense in the rape case
Traditionaly force has proven mens rea, but what else
o Penetration- vaginal penetration by a penis is traditional, but has been relaxed to say any
type of penetration
What about oral sex- counts as penetration in SC
o Violation?- touching, forcing vic to perform sexual act
Forcible rape
Common law definition
o Intercourse
o By force
o Or threat of force
o Against the will
o And without consent
VI. Force and non-consent
1) Find force from totality of circumstances even though there was no explicit threat
(a) Alston
(i) From Vs perspective she knew he was a continuing threat and feared being hurt if
she did not comply
(ii) From defendants perspective this was how they behaved in the past and how was
he to know if she was really resisting this time
(iii) Distinguish from Brown because victim was startled and that could constitute force
and Alston was an on-going relationship
(iv) Even thought here is no explicit threat, the totality of the circumstances gives rise to
the reasonable inference that the unspoken purpose of the threat was to force the
victim to submit to unwanted sexual intercourse

Most involveo Actues rea- some type of penetration

o Mens Rea- against vic will, resistiance has faded
Many require force
And Intent was the mens rea
o Consent has been a full defense

Withdrawl of consent
Most courts says that if vic withdraws consent at anytime any you continue, it is rape

Last month a Maryland court ruled exactlly oppisit to this.