CRIMINAL LAW OUTLINE

SPRING 2019 – MAY 8TH 2019

I. HOMICIDE
1. Murder I (First Degree Murder)  (1) The willful, premeditated and deliberate unlawful killing of
another with; (2) premeditation (intent to kill).
a. Premeditated OR
i. Consider three things when determining if there was premeditation:
a. (1) Planning the activity
b. (2) Motive
c. (3) Manner of killing
b. Felony Murder
i. (1) Unlawful killing of another (murder) that is committed; (2) during the
commission of a felony
a. (rape, robbery, etc.) Considered to be a first-degree murder offence.
2. Murder II (Second Degree Murder)
a. (1) Unlawful killing of another; (2) with malice (express or implied).
i. Characterized by ill-will but every case where there is wickedness of disposition,
hardness of heart, cruelty, reckless consequences, or a mind regardless of social duty.
ii. No justification or excuse for unlawful act.
iii. Recklessness can arise to malice.
a. If drunkenly aiming at lamp and X shots Y by accident, this is enough for
malice because the activities are reckless.
3. Voluntary Manslaughter  The killing of another without premeditation or deliberation, or malice,
but while in the heat of passion.
a. (1) Act of provocation; (2) Adequate legal provocation leading to a heat of passion; and (3)
Person is provoked
i. Sudden and intense passion
ii. Minimal cooling off period
4. Defenses
a. Pure Self-Defense
i. When the person subjectively believes that s/he is in the danger of death or bodily harm
AND
ii. the belief is objectively reasonable
iii. Fully eliminates murder charges
b. Imperfect self-defense  Subjective belief, but not reasonable (POV of society) (Sety)

5. Involuntary Manslaughter  The killing of another without premeditation or deliberation, or malice

that can be reasonably expected to result in death or serious bodily injury. Usually characterized by
reckless conduct in the commission of a lawful act.
a. Misdemeanor manslaughter OR
i. Misdemeanor that doesn’t arise as a felony.
ii. When defendant is committing a misdemeanor and results in the death of the victim
b. Criminally negligent acts [Gross deviation]
i. Gross deviation
a. See if the risk and harm was foreseeable.
b. Gross deviation from the standard of care of conduct that a reasonable person
would observe in the actor’s situation.
i. Gross deviation means a deviation that is considerably greater than
lack of ordinary care (applies to terms like “negligent” and “with
negligence”)
c. Look for deviation  Actions that deviate you from the proper actions you
should have been taking under the law.
i. Drunk driving – the deviation is being drunk while driving
6. Corpus Delicti
a. Death; and
b. Criminal Agency.

II. ASSAULT
1. (1) A threat of bodily harm; (2) a present ability to be able to cause the harm; and (3) an apprehension
of harm.

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 2. Second Degree Assault  Intent to injure.
3. Criminal assault does not require that the victim suffer apprehension so long as the defendant has an intent to
injure and commits an act in furtherance of that intent

III. RAPE/SEXUAL ASSAULT

1. Common Law Rape: (1) The unlawful carnal knowledge of an individual; and (2) Without effective
consent.
a. Without any consent given by the victim
b. Any minimal penetration is enough.

2. Statutory Rape – Age of Consent – unlawful carnal knowledge is a crime committed upon a girl under
a certain age even if she consents.
a. Considered a common law crime. Consent or not.
b. Gender neutral, and under a certain age (usually under 12 or 14, under this age, they could not
give valid consent).
3. Statutory rape and common law rape are separate offenses, and you can be charged with one or the other or
both depending on the situation.
a. Mistake of age is not a defense

Defenses to Sexual Assault [3]

 (1) Consent
o Rape Shield Statutes will provide that if the defendant consented, they will try to provide evidence of prior
sexual contact with the defendant to the jury.
 (2) Alibi
o Rape Shield Statutes provide that the defense has an alibi, they may deduce evidence of sexual contact with
others within the proximity of the offense.
 Rape kits may come into play here  If the defense claims alibi, they can use rape kit information
to show that the semen extracted is not his (example).
 (3) Constitution
o Brady Issue – Gov’t is required to turn over from prosecutor any evidence that is favorable to a criminal
defendant.
 Brady case  person who kept making false rape claims and was mentally disabled. This
information should have been given to the defendant.
o Hearing  to see if evidence is admissible.

IV. BURGLARY
1. Breaking and;
a. [3] Types of Breaking
i. Actual – slightest application of force.
a. Opening door is enough
ii. Constructive – Arise from situations where entry is gained by fraud
a. (pretending to be meter reader and gains entry that way is fraud)
iii. Conspiracy – Working with person to gain entry into dwelling
a. You’re at party, let someone else (knowing what they will do) in and they steal
stuff.
2. Entering;
a. Minimal entry to the building
b. Across threshold
c. Tool can be considered entering, even if person does not physically go in.
3. Into the dwelling;
a. Not a burglary b/c it’s not part of the “curtilage”
i. Structure in question was not on the premises.
ii. Curtilage  Within the “fenced” area.
iii. Those building or structures that are directly connected to, or in proximity with a family
dwelling
4. Of another;
i. Cannot commit burglary of a premises you have a legal right to enter.
5. In the nighttime;
a. One hour after the sun set and one hour before rising

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 6. With the intent to commit a felony or petty larceny.

V. ARSON
1. There must be some actual burning (not necessarily total destruction)
2. The burning must be malicious
3. The object burned must be a dwelling house (curtilage is included)
4. The house burned must be the habitation of another

VI. LARCENY  Trespatory taking and caring away of the personal property of another with the intent to steal
the same
1. Personal property;
a. Unlawful material can still be larceny
2. Of another;
a. Larceny from a thief can constitute larceny
b. When item/property has a lien on it, it can be larceny when taken even if you are original owner.
3. Taken;
a. Can induce a third party to take
b. Acquiring dominion

4. By trespass;
a. Taking without the consent of the owner
b. Lost property
i. If you take property that is lost, shows intent to retain item in question if you don’t try to
find original owner
c. Mistake  If you exploit a mistake that is still a taking that can lead to larceny.
d. Fraud/Trick  larceny by trick or false pretenses can amount to larceny.
5. That is Carried away;
a. Removal of item in question from its original and intended place/position
i. Moving item from a shelf
ii. Any small asportation
6. With the intent to steal.
a. Intent to deprive permanently  If the intent is to fully deprive, then larceny. If intent to
temporarily, then no larceny (may be something else).

VII. GRAND LARCENY

1. Grand larceny and petty larceny 
a. Grand is typically a felony
b. Petty is typically a misdemeanor 
2. Problems arise when items stolen are not cash 
a. Government must prove value of property
b. May have to call an expert
3. Specific criminal intent may be inferred from the conduct of the accused where it is plainly indicated as a
matter of logical probability. 
a. Defendant does not have to know the value of the property

VIII. ROBBERY  Larceny of the person by violence or intimidation.

1. Larceny;
a. Personal property
b. Of another
c. Taken
d. By trespass
e. Carried away
f. With the intent to steal (to deprive permanently)
2. Of the person;
3. By violence OR intimidation; and
4. It is the immediate threat of violence or intimidation.
a. Needs to be present issue, not future.

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 i. Threatening a person in order to get paid is extortion, not robbery b/c it’s going to happen
in the future.

IX. EMBEZZLEMENT  Mutually exclusive with larceny.

I. (1) Fraudulent conversion of personal property; (2) When the embezzler has lawful possession; and (3)
converts to own use 
a. The crime is either a larceny or an embezzlement 
1. Cannot be both
b. Occurs at law firms where funds are transferred out of escrow account (client money) into firm
account (lawyer money)
1. Even if possession is legal if conversion to own use exists embezzlement is still present

X. FALSE PRETENSES
1. Actual transfer of title, which makes it different than larceny and embezzlement.
2. (1) Knowingly and deciding to obtain the property; (2) of another; (3) by means of untrue
representation of fact; (4) with intent to defraud.
a. Past  Act happened in the past
i. “X painted your house yesterday, give me my 100” X didn’t actually paint house, and they
got the money. Obtaining money through false pretenses.
b. Present  Monet/“Manet” painting knockoff example. Transfer happening now/at the moment.
c. Future  X says to give him 100 dollars to paint the house tomorrow, and X doesn’t paint the
house even though X is paid. False pretenses if they did not intend to paint the house the whole
time.
i. Promissory Fraud  not actually a crime, it’s a concept. Concept because person has a
future promise and they do not fulfill promise. Majority of jurisdictions say this. Only
because the concern of criminalizing civil debt or using criminal law with regard to
people paying back loans or other types of situations.
ii. For minority  if at the time the promise is made that independent evidence is made that
there is no intent to actually fulfill the promise, that is false pretenses.

XI. RECEIVING (or concealing) STOLEN PROPERTY

1. X is running a ‘fencing’ operation where group of people break in to houses and they bring it back to one
place and sell items. Buying these items (like a Rolex for 30 bucks) is a crime. Person should know it was not
a legit setup.

XII. OTHER OFFENSES AGAISNT PROPERTY

1. Forgery – (1) Fraudulent making; (2) of a false writing; (3) having apparent legal significance.
2. Uttering – (1) Uttering a forged instrument; (2) knowingly offering as genuine; (3) when on knows to
be false.
3. Counterfeiting – (1) An unlawful making of false money; (2) with the resemblance of the genuine
money; (3) Knowledge is necessary.
4. Extortion – (1) Unlawful extraction of money; (2) By means of threat not sufficient for robbery.

XIII. IMPUTABILITY: ACTUS REUS + MENS REA

1. Attempting
a. Need to demonstrate two elements:
i. Need specific intent to commit the crime; and
a. Ex: Person may be convicted of second degree murder even if they don’t have
the specific intent to kill (completed offense, because murder without intent)
BUT if a person is charged with attempted second-degree murder (when person
is not killed), need to show the specific intent to kill.
ii. Take a substantial step towards the crime.
a. Taking the step into a building for example is enough
b. Mere preparations may not be enough
i. Mere preparations take you closer to the crime, but do not always

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 1. In Young v State, casing banks is not a step, but the
defendant jiggling the door handle to gain entry is a
substantial step.
b. Perpetrating act
i. A person is guilty of attempting to commit a crime where he purposely acts in such a way
as to constitute a substantial step in a course of conduct planned to culminate in the
commission of a crime.
c. Mens Rea
a. Cannot be convicted of attempted second-degree murder without a showing
of specific intent to kill 
i. Express malice only; implied malice cannot coexist with specific
intent to kill

XIV. IMPOSSIBILITY
1. A criminal attempt may be committed even though, unknown to the accused, completion was impossible
a. An attempt is not prevented by the impossibility merely because, unknown to the accused, the
completion of the act has become impossible
2. With stolen property:
a. If defendant acts and intents show that the defendant intended to receive stolen property, then he
is unable to escape a conviction if the property was already recovered
a. Stolen and not recovered  no problem, receiving stolen property
b. Stolen and eventually recovered  Split in jurisdiction, half will say the
property lost its stolen characteristic when it was recovered (Booth) while the
other half will say they had the intent to steal stolen property (Rojas)
c. Never Stolen  Split also. Sting operations where feds will purposely buy TV
sets and tricks criminals to stealing cause courts to be split about determining
impossibility.
3. Attempt Intent combined with act that falls short of the thing interested
a. In order for a defendant to be guilty of a criminal attempt, the objective acts performed must
mark his conduct as criminal in nature, without any reliance on the accompanying mens rea.
4. Oviedo Rule  In order for defendant to be guilty of a criminal attempt, the objective acts performed must
mark his conduct as criminal in nature, without any reliance on the accompanying mens rea
a. Legal impossibility occurs when the actions that the defendant performs or sets in motion, even
if fully carried out as he desires, would not constitute a crime
i. Proper defense to criminal liability
b. Factual impossibility occurs when the defendant’s objective is proscribed by the criminal law,
but an unknown circumstance interferes with that objective

XV. SOLICITATION  Contact that is an attempt to have another individual to commit criminal acts
1. Even if individual that is solicited does not fully perform the crime, the solicitation itself is still a crime.
a. Solicitation occurs when the accused is shown to have counseled, incited, or solicited another to
commit a felony.
2. Solicitation does not rise to an attempt
a. If person that is solicited talks substantial steps to commit the crime, this may amount to
attempt (attempt is in section XV)

XVI. ABANDONMENT  voluntary relinquishment of a right without the intent to reclaiming it. Can have abandonment
of a criminal act.
1. One who procures another to commit a crime may withdraw before the act is done and avoid criminal
responsibility.
a. To withdraw, one must communicate the fact of the withdrawal to the party that was initially
solicited to commit the crime
2. Abandonment of an attempt of a crime does not prevent conviction for attempt where intent has been formed
and overt acts towards the completion were committed.
a. Cannot abandon a completed attempt/offense.
3. Act needs to be a voluntary act of the person to have a valid abandonment.

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 a. Ex: external situation the develops, like seeing a police officer. If you stop your acts because you
see the cop, that is not a valid abandonment.
b. Ex 2: If you start act (like setting fire to house) and you reconsider and extinguish the fire. Not a
valid abandonment because it was a completed act.

XVII. NEGATIVE ACTS

1. Legal duty  A person cannot be held criminally liable for a failure to act unless it is shown that the
person owed a legal duty and breached by his omission.
a. Involves circumstances that place other individuals in danger.
i. Four situations where you have a duty to act:
a. By statute
i. Some states have a rescue statute, and if you negligently do not act,
you can be convicted if there is a rescue statute. If state has no
statute, there is no duty.
b. By virtue of relationship to another
i. Relationships like:
1. Parent/child (duty to feed, care for, etc.)
2. Husband/wife.
c. Assumed a contractual duty to care for another
i. Under a contract to provide care, cannot breach for care. Usually in
nursing homes.
d. Voluntarily assumed care of another
i. If you take on role to care for another, you place the duty onto
yourself.

XVIII. CONSPIRACY
1. Conspiracy is a crime in and on its self AND a method of imputing criminal responsible to individuals who
are involved in a conspiracy in the furtherance of the acts.
2. Elements
a. Agreement among the parties (at least two); and
i. Demonstrated by circumstantial evidence (doesn’t need to be in writing)
ii. If there is an agreement and an overt act, and the conspiracy is formed, then each and every
coconspirator may be charged with all of the acts off the coconspirator in furtherance of
the conspiracy
a. Needs to be in furtherance AND
b. Foreseeable
iii. The coconspirators do not need to know each other.
a. Don’t need to know of the specific acts, all coconspirators can be charged for
all and any overt acts that follow
b. Overt act in furtherance of the conspiracy
i. Parties acting in concert/together
a. Ex: Students planning to get rid of professor, one student says they will fill up
the car with gas and actually does, that’s enough for an overt act (threshold).
Needs to have an actual action (saying they will fill up the car is not enough)
i. If not foreseen, all individuals may not liable  needs to be
reasonable
1. Ex: three people agree to burglarize house. During
burglary, X finds woman and rapes her. That may not be
foreseeable, and Y and Z may not be reasonable.
b. IF talking about an attempt  need a substantial step, not overt act.
c. If talking about conspiracy, do talk about overt act.
3. Wharton’s Rule (Minimum Number Rule)
a. Some crimes require at least two people (like bribery)
i. If two people are convicted of bribery, then they cannot be convicted of conspiracy also?
ii. Ex: receiving stolen property takes two people. Cannot charge with conspiracy
b. Cannot charge the people for the conspiracy because it needs that number of people anyway
i. If there are more than the required number of people, then you can charge with conspiracy
(like stolen property ring)
c. To charge for conspiracy, need more than the minimum number of people required to commit the
act.

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 d. Undercover Cop/Officials
i. If one of the two people charged with conspiracy is an undercover cop, then there may not
be a conspiracy chargeable.
ii. Undercover DEA agent, for example.
e. If you have a two person crime, you need three
4. Consistency Rule
a. If multiple defendants are tried for the same crime in a single trial, then they will be convicted all
together for the same charges
i. The rule of consistency does not apply where the alleged co-conspirators are not tried in the
same proceeding
b. If conspiracy is not charged, the fact that the defendants were involved in a conspiracy act, they
can use the acts of conspiracy to impute.
5. Bare Conspiracy
a. Agreement and overt act occurs, but nothing more than that. As a prosecutor, it may be difficult
to charge this.
6. Abandonment of Conspiracy
a. Abandonment  An abandonment will not exonerate ∆ from conspiracy but may protect against
future acts within the conspiracy.
b. To be fully exonerated for the conspiracy, need to abandon before an overt act and agreement
made (elements of conspiracy met).
i. Ex: 9/1 – A, B, C conspire to sell narcotics. A rents car (Have conspiracy b/c there an
agreement and overt act met) On 9/3, B sells narcotics and 9/4 C wants out. On 9/5 B sells
drugs again. C cannot abandon the conspiracy b/c the conspiracy was locked in on 9/2. C
may be subject to sale on 9/3 BUT not the sale on 9/5. Could be different if there was a
homicide on 9/5 if C didn’t report.

XIX. ENTERPRISE LIABILITY

1. RICO Acts – Racketeer Influenced and Corrupt Organization laws
a. RICO Acts  federal and state statutes enacted for the purpose of prosecuting organized crime.
Protects racketeering actions.
b. Applies to both legitimate and illegitimate/illegal enterprise
c. Violation of Rico needs two things
i. Enterprise  a group of persons who engage together to engage in specific course of
conduct (corporation, law firm, etc.)
ii. Pattern of criminal acts or racketeering activity
a. You need at least two of the acts to be committed.
i. Kidnapping, selling narcotics, etc.
d. Criminals can be convicted under the RICO statue.
e. Double Jeopardy  If charged and acquitted in state court, can still be tried separately in federal
court for a similar crime that arises out of the same transaction. Double jeopardy does not apply
to all sovereigns.
2. Civil RICO
a. Civil cases may be brought under a civil RICO statute
b. If person if found to be liable (civil), the award is Treble damages (3x)
3. Need: enterprise and pattern of racketeering
a. Two or more acts in an enterprise
4. Respondent superiors do not apply to criminal acts (not the case in civil actions)

XX. AGENCY
1. In civil cases, the principal is responsible for the actions of his/her agents. Attaches responsibility to
employer/employee, agency, etc. Does not apply to criminal case.
2. Criminality is only imputable to one who either (1) immediately does a criminal act or (2) permits it to be
done by agent with his consent or at his direction. Cannot attach criminal responsibility on the basis of
criminal activity/acts. No negative act.
a. An agent is an individual who has the authority to act on behalf of another.

XXI. INCORPORATIONS/CORPORATIONS
1. Two Types of Offenses
a. Common law offenses
i. Corporations may be criminally responsible

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 a. Need to show that the higher officers knew and approved of the crime. Needs
to be manifested by the upper management and be created the crime
themselves. Needs to be proven beyond a reasonable doubt. Can be held for
many crimes, including homicide, even though that’s not usually common law
crime.
b. Acquiescence can also lead to criminal responsibility of the corporation
(knowing something is happening, but not stopping it)
b. Civil offenses (statutory offenses)
i. Corporations may be criminally responsible
ii. Usually carry imprisonment or fines

XXII. PARTIES TO A CRIME (Aiding and Abetting, etc.)

1. (1) With knowledge and unlawful purpose; (2) and aide, promote encourage, or instigate; (3) the
commission of the crime.
2. An individual who aids and abets in the commission of a criminal offense is equally responsible as the person
who was initially committing the crime.
a. If additional crime to the initial, needs to have natural and probably consequence of the natural
crime
b. Bottom line: If someone aids and abets, they are responsible for the criminal activity
i. Ex: Car driver for bank robber, can be held with robbing a bank since they aid and abets
person who actually did rob. All connected individuals are guilty.
3. Aiding and abetting is not a crime, but rather a method of imputing criminal responsible (individuals will still
be charged with robbery, not aiding and abetting)
4. Mere presence is not enough, need more.
5. Abandonment  will not exonerate from conspiracy but may protect against future acts within the
conspiracy
a. Ex: 9/1 – A, B, C conspire to sell narcotics. A rents car (Have conspiracy b/c there an agreement
and overt act met) On 9/3, B sells narcotics and 9/4 C wants out. On 9/5 B sells drugs again. C
cannot abandon the conspiracy b/c the conspiracy was locked in on 9/2. C may be subject to sale
on 9/3 BUT not the sale on 9/5.

XXIII. ACCESSORY AFTER THE FACT

1. Separate crime/offense, therefore, conviction of the principal charge is not a condition precedent to the
conviction of an accessory after the fact
2. 3 Elements
a. Initial crime needs to be completed (predicate felony)
i. If they know what took place, then they are charged with aiding and abetting, but if they find
out of the crime and conceal knowledge of the crime, they are an accessory after the fact
(didn’t know of the crime at the time the crime has been committed)
b. Had knowledge of the actions they are aiding
c. Aid or conceal the principal (person who commits offense)
i. Principals  getaway drivers, lookouts, etc. Almost everyone (need to be constructively or
subjectively present)
ii. Helping person after crime (giving housing, etc.)
a. Ex: If principal goes to mother and says they robbed a bank and mother says to
leave, not concealing or helping.
iii. Helping after the fact, not during the commission of the crime
iv. NOT accomplices

XXIV. CAUSATION
1. Criminal result may properly be found to have been caused by the interaction of two independent acts of two
different parties or sources.
2. Criminal causation of any material consequence of a crime may be established by the creation of freight, fear,
or terror alone, even though no hostile demonstration or overt act was directed at the victim
a. Three types of principal causes (fear, fright, or terror?)
3. Where criminal causation is established by the creation of fright, fear, or terror in a homicide victim, the
felon “takes his victim as he finds him”
4. Inflicting wound with the intent to harm or endanger life will not escape reasonability even if the victim
would have lived but for negligent medical care he received

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 5. Responsibility for criminally negligent homicide exists only where the defendant’s acts bear a causal
relationship to the death
6. An unlawful injury may be the cause of death if the injury directly and materially contributed to the
happening of a secondary or consequential cause of death.
a. Criminal act, that ultimately resulted in death, with instructions given to the jury. If instructions
given, courts may or may not affirm decision. Juries usually find no causation

XXV. RESPONSIBILITY (MENS REA and ACTUS REAS)

1. Mens rea  need mental component/aspect (translate to guilty mind)
a. Most cases need both mens rea and actus reas.
i. Some cases only require one or the other, or neither
a. Petty offenses (like health, traffic, housing, civil, etc.) do not require mens rea,
only actus reas.
i. Parking ticket offense only requires the illegal act, guilty mind
doesn’t matter.
b. Mens rea will be typically be requirement of the crime unless Congress has already decided
otherwise.
i. If legislative intent is clear, determine mens rea requirement that way

XXVI. CRIMINAL NEGLIGENCE AND RECKLESSNESS

1. One who participates in reckless conduct cannot withdraw from criminal responsibility by performing a
single prudent act immediately prior to infliction of harm.
2. Conscious disregard for substantial and unjustifiable risk

XXVII. INTENT (General, Conditional, and Specific)

1. General  intentional to conduct unlawful activity as impose to particular unlawful act.
a. Can be inferred from the doing of the act
2. Specific  need actual intent to commit particular crime (gov’t has burden to prove the intent)
a. Ex: If X is charged with assault with the intent to kill, gov’t has to prove beyond a reasonable
doubt that the person intended to kill. Specific Intent crimes.
b. Ex 2: Burglary with the intent to commit a felony or larceny. Gov’t must prove specific intent.
c. Being charged with an attempt crime is a specific intent crime because it requires the specific
intent to commit a crime with a substantial step.
3. Criminal attempts require that the act be done with the specific intent to commit the particular crime allegedly
attempted.
a. Need to show the specific intent to actually commit a specific crime (cannot charge with
attempted murder if X didn’t intend to murder).
4. Intent inferred from a commission of a crime is general intent?
5. Conditional  Intent to commit a crime but later decies againsty it

XXVIII. OTHER STATES OF MIND (Malice, etc.)

1. Criminal statutes that proscribe “malice” punish conduct that is performed with the intent to do the wrongful act
and not a different act whose consequences are ultimately wrongful.
a. Need to hex, injure, or annoy another.

XXIX. KNOWLEDGE
1. Knowingly: Intentionally, willfully, an act that is committed with knowledge as to its probably consequences.
a. Willfulness  depends upon the nature of the crime and the facts involved but generally means
only that a person charged with a duty knows what he is doing.
i. Action that is undertaken intentionally, knowingly, and with the intent to commit an
unlawful act without a justifiable excuse.
b. Willful blindness  if a party has suspicions, then they are deemed to have knowledge. Willful
blindness is equivalent to blindness. Deliberate avoidance is also equal to knowledge.
i. ∆ knows of a high probability of the existence of a fact that would tend to
incriminate him but avoids knowledge of the fact in order to escape criminal liability
2. Knowledge may be a requirement within the statute/elements of a particular crime

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 3. Meaning of the word “willful” depends on the nature of the crime and the facts involved. Usually  person
charged with a duty knows what he is doing.

XXX. STRICT LIABILITY

1. No mens rea requirement
2. Offenses are usually not true crime, but rather minor, such as parking tickets and traffic violations.
3. Crimes that are merely mala prohibita (bad b/c the legislature says so) do not have mens rea as a needed
element
a. proof may be made on a strict liability basis
4. Two types of crimes
a. mala prohibita (bad b/c the legislature says so)
b. malum in se (bad in themselves, like murder)
5. In criminal statutes that appear to impose strict liability by requiring a defendant to know whether his conduct is
actually lawful, the presence of a severe penalty tends to show that strict liability should not be applied.

XXXI. UNLAWFUL CONDUCT

1. The unlawful act of inadvertently or unintentionally violating a (malum prohibitum) statute will constitute
culpable negligence if, and only if, the act is accompanied by recklessness amounting altogether to a
thoughtless disregard of consequences.
a. All because someone does something unlawful, doesn’t rise to mens rea (like going through a
stop sign). Violation of statute is not enough of involuntary manslaughter, which usually needs
mens rea and requires a gross deviation.
b. Ordinary torts negligence is not enough to have a gross deviation for criminal charges.

XXXII. TRANSFERRED INTENT

1. Better to look at mens rea
2. When a person acts with the intent to commit one crime against one person and instead commits that same
crime against another person, the person’s intent is transferred to the actual victim for the purposes of liability
3. Need specific intent (like specific intent crimes)
a. Need the specific intent to commit a specific crime.
4. Use mens rea instead
a. ∆ wants to shot A but instead shots B (but survives). ∆ had the mens rea to commit an assault.
Would not be guilty of assault with intent to kill. Has mens rea to assault and kill A, but instead
only assaulted B. So, ∆ had mens rea to assault due to the completed battery. IF B had died,
would be guilty of murder II (reckless, hardness of heart, etc.) If premeditated for A, still
premeditated for B (because they had the premeditation to kill only, not to kill A. Not
individually directed).

XXXIII. MOTIVE
1. Slightly different than intent  must show intent of the individual to commit the crime Beyond a reasonable
doubt
a. Could be specific (like burglary, larceny)
2. Motive  has to do with motivation
a. Hatred, jealously, revenge, greed (avarice), fear, love
b. Government is not required to show motive.

XXXIV. CONCURRENCE of MENS REA AND ACTUS REA

1. Where a crime requires a showing of general criminal intent, it must be established beyond a reasonable doubt
that the defendant’s commission of the wrongful act took place at the same time he possessed the required
intent or knowledge

RESPONSIBILITY – LIMITATIONS on CRIMINAL CAPACITY

XXXV. INFANCY

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 1. Below a certain age, there is no capacity to carry out a crime (usually between seven and fourteen years old,
below these ages mean incapacity).
a. Seven – fourteen: rebuttable presumption of incapacity
b. Over fourteen: have the capacity
2. Standard of Proof
a. Beyond a reasonable doubt (toughest standard)
b. Clear and convincing (use this)
i. Birth certificate, concrete proof, etc.
c. Preponderance of the evidence
d. Probable cause (minimal standard)
3. Juvenile Justice System
a. Want to create fairness, like not having juveniles being placed in adult prisons. Not safe.
b. Want to promote rehabilitation of a young person, don’t need the same protections.
4. Waiving Jurisdiction – Waive the minor into adult court to have adult trial
a. The procedure for determining probable cause in a juvenile court waiver proceeding is not
unconstitutional because it does not provide for confrontation and cross examination
b. Kent Type Waiver - (grey area between 7 and 14) to waive juvenile court and be tried as an adult
i. Minor brought into juvenile court, but gov’t holds hearing based on the nature of the
mental acuity of the minor, seriousness of the offense, background of individual, etc.
ii. Waiver hearings are only used in juvenile courts.
c. Prosecutorial Waiver – Prosecutor makes the determination
d. Legislature Waiver – legislature in the statute provides waiver standards. Statute automatically
waives minor into adult court.
5. Juvenile’s rights with respect to due process
a. Motivations
6. Due process does not require jury trial for juveniles in a state proceeding.
a. Have right to know that a jury trial is not required, and they have the right to know what charges
are being brought against them.
b. 5 Reasons
i. we are not yet ready to concede that juvenile proceedings are absolutely undifferentiable
from adult proceedings;
ii. any benefits that are currently accruing to the juvenile as the result of current procedures
would be violated by the introduction of a jury into the proceedings
iii. the jury will provide no better fact finding for defendants
iv. since hardly any states have seen fit to guarantee jury trial to juveniles, to hold that a jury
trial was actually guaranteed would be to impose a large stain on the resources of the
states and to force change upon a large number of them
v. the judge may still use an advisory jury when whew feels it is wise to do so

XXXVI. INSANITY (Defense of Diminished Capacity)

1. Reaching a specific level of insanity will render a not guilty verdict due to a lack of a specific mindset
a. Need psychiatric evidence when conflicting, need to go to a jury.
2. Diminished Capacity  Capacity to commit the crime was diminished since they do not have the mind to create
intent/premeditation
3. Rule 1: Do not know act and nature of the act they are doing.
a. Goes with actus reus
4. Rule 2: Does the ∆ have a mental disease and did that illness produce the act?
5. Rule 3: Unable to apricate nature of act.
a. Does not appreciate consequences of actions
b. Burden of Proof  use to be preponderance of the evidence
i. On the defendant to prove insanity by a preponderance of the evidence
c. Changed after Regan shooting
6. Rule 4: A criminal defendant is not guilty by reason of insanity if, at the time of the alleged criminal act,
the defendant was so deranged that she did not know the nature or quality of her actions or, if she
knew the nature and quality of her actions, she was so deranged that she did not know that what she
was doing was wrong.
7. Federal Insanity Act/Defense  Changed after Regan shooting
a. Burden of proof on ∆ to prove insanity by clear and convincing evidence
8. Steps before/during trial/arguments
a. Gov’t  prove offense without insanity, just put proof in.

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 b. Defense will come in and put their defense on and out on defense of insanity. Examine by
psychologist and psychiatrist to show that the ∆ was insane at the time of the offense
c. Gov’t comes back and puts on their own testimony
9. Competency  if the person competent enough to stand trial
a. Test: is the person able to understand the nature of the charges against them and can they assist
counsel?
i. If no, then cannot continue with the proceedings against the person.
b. No competency  go for treatment and remand case to have treatment continue until they are
competent to withstand trial. ∆ needs to be both competent and sane.
i. If gov’t says that they are competent but insane, they will go to a stipulated not guilty by
reason of insanity (called an NGI).
a. Will be locked away to a mental institution until they are not a danger to
themselves and the community.
10. Mental issues determined by (use with competency or insanity)
a. Affect of the individual
i. no comprehension of surroundings
ii. violent in nature
b. Nature of the offense
i. Killing babies is bad, shows possible mental illness
c. History of institutionalization
11. Only raised with crimes such as homicide and sexual assault (Not with minor criminal charges.
12. Competency versus Insanity
a. Competency
i. Time of the proceeding,
ii. Effect: No proceeding
iii. Test: unable to upstand nature of charges or able to assist counsel
b. Insanity
i. Time: Time of offense
ii. Effect: No guilty verdict
iii. Test: M'Naghten Test/Know other ones.
13. Can be guilty but mentally ill (mentally ill is not the same as insanity)
14. Mental observation
a. Government examination for:
i. Competency
ii. Insanity
b. Defense Exam
i. Competency – if it is challenged, then will go in front of judge to see if they are
competent
ii. If insane, can employ insanity defense

XXXVII.VOLUNTARY INTOXICATION (Defense to Specific Intent Crimes)

1. ∆ is so intoxicated they are unable to form specific intent
a. Ex: Larceny needs specific intent to commit larceny. But if they were so drunk they couldn’t
create the specific intent.
2. Test is difficult  jurors do not like drunkenness
a. Can still be used as a defense though. Usually used in a situation of mutual combat.
3. Jury may consider intoxication evidence when its relevant to determine mens rea, but common law prohibiting
this is still permissible when the court decides this.

XXXVIII. IGNORANCE or MISTAKE OF LAW (Defense)

1. Larceny  cannot be found guilty of larceny if at the time of the taking, he honestly believed that he had an
honest right to the property

XXXIX. IGNORANCE or MISTAKE OF FACT (Defense)

1. Mistake of fact is a valid defense if the mistake negates the existence of the mental state that the statute
proscribes with respect to an element of the offense

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 XL. DURESS (Defense)
1. Necessity probably not/may not justify killing other individuals

XLI. IMPLIED PERPETRATION

1. ∆ may not be denied an instruction of duress if he knowingly or recklessly placed himself in the situation in
which it was probable that he would be subjected to some compulsion, but not compulsion by threat or
imminent death or serious bodily injury to himself or others

XLII. CONSENT
1. Usually with sexual assault/rape cases

XLIII. CONDUCT of the INJURED PARTY

1. Contributory negligence is not a defense to criminal prosecution.

XLIV. CONDONATION
1. Crimes are an offense against the state/society/gov’t
a. Victim does not decide whether or not they want to go forward.
i. This issue usually comes up in domestic violence cases
2. Charges Process
a. Whether to Charge
i. Total discretion is by the district attorney
b. What to charge
i. Crime and possible punishment
c. Immunity
i. Usually given as an incentive to get someone to testify (only can be given by the
prosecutor)
d. Pleas
i. Prosecutor will decide if please is available to someone
e. Cooperation
f. Sentencing

XLV. PUBLIC AUTHORITY

1. A ∆ makes out a defense of public authority only when he has shown that his reliance on the governmental
authority was reasonable as well as sincere

XLVI. DOMESTIC AUTHORITY

1. Parents may discipline children

XLVII. PREVENTION of a CRIME (Defense)

1. May use force to prevent a crime
a. Deadly force may be used only if it is a dangerous felony being prevented.
2. Two purposes
a. Intervene for the purpose of preventing the perpetration of crime and
b. to defend person or property

XLVIII. SELF DEFENSE

1. Privilege to use force in the effort to avert harm threatened by the wrongful act of another is based on the
reasonable belief that the defender under the circumstances as they appear at the moment
a. Non-deadly force typically allowed
b. Deadly force  need subjective belief that is reasonable.
i. Non-Retreat Jurisdiction: do not have to retreat, and instead use deadly force if they are
in a dangerous situation.
ii. Retreat Jurisdiction: if you can reasonably retreat to safely, you must take this course of
action if it is a safe option.

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 XLIX. DEFENSE of OTHERS
1. A defense to criminal liability for harm or threats made upon another in defense of someone other than
oneself
2. Deadly force cannot be used to save another from non-deadly force
3. Extends to included spouse, children, and servants
a. Also, extends to any member o the family that had the privilege of defending another.
b. Also: includes immediate family members where you have a legal duty to protect.

L. DEFENSE of HABITATION
1. For habitation
a. Can use deadly force (at common law) to prevent a burglary or an arson of the home.

LI. DEFENSE of PROPERTY

1. An affirmative defense to criminal liability for the use of force in the protection of one’s property

LII. ENTRAPMENT (Defense)

1. An act by public officer that induces a defendant into committing a criminal act
a. A person may assert the entrapment defense, regardless of his predisposition to commit the
crime, if the conduct of the law enforcement agents was likely to induce a normally law-abiding
person to commit the offense
2. Issue of “trapping” the ∆
3. Russel Standard  For no entrapment defense
a. ∆’s predisposition to commit the crime
i. Was the ∆ predisposed to commit the offense? Focus on the ∆, not the government
action.
a. Predisposed: previous actions, like previously making drugs.
b. Gov’t actions not important. If they sell illegal drugs, they can still change the
person who purchased them
b. Not in agreement of the government’s conduct
4. Issues with asserting an entrapment defense
a. Can cause the jury to hear information that they shouldn’t have heard.
b. Now need to call witnesses
c. Opening evidence of predisposition that would be otherwise inadmissible  could void
entrapment defense.
5. A person nay assert an entrapment defense, regardless of his predisposition to commit the crime, if the law
force agent were likely to induce a normal, law abiding citizen.

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