Brooklyn Law School

Prof. Capers

Criminal Law

Fall 2018 – 1L

Book – Criminal Law and Its Processes: Cases and Materials 10 th Edition

Authors – Kadish; Schulhofer; Barkow

I. Chapter 1
A. THE SWEEP OF CRIMINAL LAW IN AMERICA
i. Facts
1. 2.3 M incarcerated in US
2. Rate 716 / 100K 5x 1972
a. U.S. has the highest prison population rate in the world, 716 per 100,000.
b. Mexico (194)
c. United Kingdom (148)
d. Kenya (130)
e. Germany (95)
f. Between 1925 and 1972, 79 per 100,000
g. 1985, 200 per 100,000
3. US pop 5% / US incarcerated pop 25%
4. 1 in 26 US under criminal justice supervision
5. 1 in 3 US criminal record
6. Social / Racial
a. Afr. Am. 13.2% of US / Nearly 50% us incarerated pop
b. 20% since '60 > 1 yr for Felony
c. 1 in 3 Black men can expect incarceration compared to 6% white
d. Afr. Am and Hispanics routinely receive harsher sentences
ii. Causes
1. Possibly not rising crime rates, more likely policy changes made by legislators to increase use of imprisonment as response.
2. Intensified enforcement of drug laws
3. mandatory minimum sentences
4. 3 strikes laws
5. Restrictions on parole
iii. Consequences
 1. Prison admission and return have become commonplace where high levels of crime, poverty, family instability, poor health
and segregation
2. Incarceration is correlated with negative social / economic outcomes for former prisoners and their families.
3. Vast expansion of criminal justice system has created a large population whose access to public benefits, occupations,
vocational licensees is limited by conviction
4. Criminal law now first option over civil … ex - mental health
iv. Implications
1. Behavior is certainly criminal, but is response correct?
v. Underenforcement?
1. Financial Crises of 2008
2. Unjustified impunity for police?
3. Civilian deadly force against minorities?
4. Too little police protection in high crime areas?
5. Sexual assalt / DV laws underenforced?
vi. They Shared Drugs. Someone Died. Does That Make Them Killers?
B. THE STRUCTURE OF CRIMINAL JUSTICE — THE RELEVANT INSTITUTIONAL ACTORS
i. Overall
1. Agencies of criminal justice have high volume of cases
2. Same have chronic shortage of resources and personnel.
3. 1 & 2 lead to mass-production / high degree of selectivity
4. Selection process is largely uncontrolled discretion
5. Police departments - up to cops on crimes to target
6. DA's office - ADA's assigned to case, little review
7. Public Opinion politicizes criminal law -- "soft on crime"
ii. Structures
1. Multiple jurisdictions - extremely decentralized
2. Zone of Control - Zones where things were kept internally like schools, sports teams/leagues
3. Police - make a determination on who / what to arrest
4. Prosecutors
a. determine level of evidence not strongly contested by judges / grand juries
b. Determine severity of the charges
5. Defense Counsel
 a. 20% have means for own lawyers
b. 5 distinct systems
i. Non-indigent defendants - retained counsel
ii. Non-ind - set price for sole attorney
iii. Indigent defendants
1. Appointed counsel system - selected from list of private practice
2. Contract System - gov't contracts private practice lawyers for side work
3. Defender system - Public defenders
6. Judges - predominantly popular election… large caseloads
7. Corrections - Punishment over rehabilitation… same on probation / parole
8. Class Discussion on Misdermeanerland
a. Whole subworld of misdermeaners
b. Because these cases don't get addressed in court, the laws are not questioned… there are no precedents set or
judicial reviews if there are no trials
c. Pleading means the elements don't get scrutinized
d. Constitutional issues don't get addressed
e. Diversion programs can be quite ownerous
f. Getting into diversion programs requires admitting guilt, this can lead to a downward spiral on the rap sheet.
C. CRIMINAL JUSTICE PROCEDURES - Stages of a Case
1. Investigation
a. Police assemble evidence
2. Dismissal / Diversion
a. Half initiated by arrest - case eventually dismissed at early stage
b. Defendant may be placed in pre-trial diversion program
3. Pre-trial release on bail/bond
a. Bail reform act of 1984, 18 U.S.C. &&1341-1350
b. Upheld by SCOTUS - US v. Salerno, 481 U.S. 739 *1987)
4. Guilty Plea
a. 90% of convictions due to guilty pleas / plean negotions
5. Trial
a. 4% of defendants went to trial / 1% aquitted
 b. 2012 Federal District Court
i. 97% - guilty plea, dismissal, pretrial diversion
ii. 3% Trial - 0.5% acquitted
D. THE PROCESS FOR DETERMINING GUILT
i. Proof Beyond a Reasonable Doubt
1. Nugget: Profs message is Reasonable doubt is difficult to define, but I felt that he was trying to say it in the end is what the
Jury says it is.
2. Nugget: Proof beyond reasonable doubt comes up (1) At trial, (2) At prosecution close (3) Close of Evidence (4) On appeal
3. Jury Instructions
a. Error in Instructions will result in a reversal on appeal
b. Cannot suggest %, Quantity or Quality
c. Therefore Judges will often stick to a script that has been litigated through the appeals process
d. Example: Manfort trial - Judge Ellis responded, “The government is not required to prove beyond all possible
doubt.” Reasonable doubt is “doubt based on reason.”
4. Prosecution must prove every element of the law charged
a. Burden of proof entirely on the prosecution
b. Exception - For any Defense raised, the defense must meet specific elements related to that claim
i. Rule: Burdon of Production – producing sufficient evidence to suggest the defense is valid
c. If Pros / Defs fails on any element judge will possibly grant def motion … or not instruct jury on the defense
element
5. Case: IN RE WINSHIP
a. Facts: D found guilty of "larceny" in juvenile court based on a preponderance of evidence
b. Issue: w/ using preponderance of evidence v. beyond a reasonable doubt.
c. Rule: Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of
every fact necessary to constitute the crime with which he is charged
d. Reasoning:
i. Requirement for criminal standard of proof beyond a reasonable doubt from early days. Reduces risk of
convictions based on factual error.
ii. Accused - stands to risk his liberty
iii. Sentencing is depriving of liberty
 iv. Reason for the holding is that issue was questioning the Litigimacy of the Criminal Justice System
v. Due Process Clause - No one shall be “deprived of life, liberty or property without due process of law.”
vi. In Criminal Law Due Process is fundemental fairness grounded in tradition and history
ii. Jury Trial
1. 6th Amendment - In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial
jury…
a. Understood as a right to a jury trial, but what does this mean?
i. 94-96% convictions are the result of pleas, not jury trials
ii. Jury trial right doesn’t apply to misdemeanors
iii. Requirement of “jury of peers” is really folklore - Strikes for cause and peremptory strikes
2. Why juries?
a. Maybe we’d be better off without them?
b. Jury secrecy?
c. Many countries (Israel, the Netherlands) don’t have juries at all.
d. Should a defendant be able to waive the right to a jury?
i. With the State’s consent?
ii. With the judge’s consent?
iii. Should the community have a say?
e. You’re a defense lawyer. Types of cases where you might want a jury? Not want a jury?
3. Jury Nullification
a. Rule: Juries have a right to nullify
i. Jurors not told about right
ii. Lawyers barred from talking about right
iii. Nugget: Prof talked about individuals outside courthouse explaining the right of a Jury to nullify
b. Case: UNITED STATES v. DOUGHERTY (1972)
i. Facts: Vietnam protestors found guilty of malicious distruction. Apealled that Jury was not instructed on
their right to nullify. Held that there is a right to nullify, but no requirement to tell the jury.
E. THE DECISION TO CHARGE
i. Disrection exists when institutions have legitimate authority to ignore established rules and determine questions of liability and
punishment
1. 2% of state court convictions come from jury trial
 2. Prosecutors have discretion and significant power
a. Reach of criminal law increased exponentially, there is abundance of possible criminal statues to choose
b. Authorized sentences increasingly severe
3. Prof. Culp Davis - "the power to be lenient is the power to discriminate"
4. Leniancy has become a systemic imperative giventhe state of jails. And given harshness of penalties, the ability to withhold
(not to bargain for plea) means there is a decision to impose severe punishment.
ii. Discretion @ every stage
1. To arrest
2. To charge
3. Specific charges
4. How to plead
5. Sentencing
6. NOTE: Judge cannot force a prosecution… Also private prosecution is not allowed - these are due to the seperation of
powers.
7. Note: Book talked about victim's role in prosectution
8. Jury discretion
a. Reasonable Doubt
b. Jury Nullification - Jury's discretion to find a defendant not guilty if they do not support the law, believe it
consitutional or humane, or do not support a punishment for breaking the law
9. Not many constraints
a. Example of constraint is changing sentencing ranges
b. Graham v. Florida - constraint on sentancing kids to life in prison
10. Nugget: Professor made an off-hand comment about putting a question about discetion on the exam as an essay question
11. ARTICLES – Cyrus Vance / Hillary Clinton
iii. The decision to charge
1. Rules permit prosecutors to file charges under "probable cause". Usually under legally admissable evidence suffiecient to
prove guilt
2. Has been a standard that felony prosecutors in NY County be personally convinced beyond a reasonable doubt.
3. Standards for Criminal Justice: Prosecutio Function #3-5.5c Proposed rev 2009 - requires prosecutor to dismiss charges
when "reasonably believes that proof of guilt beyond reasonable doubt is lacking."
 4. US Attorney's Manual 9-27-200 - DOJ authorizes "probable cause"
5. Choice not to persue all legally sustainable charges
a. Limited Resources - Josh Bowers, Legal Guilt.. 110 colum. L. rev 1655, 1657 (2010) - prosecutors understand office
prioriorities and resource limits
b. Need to individualize justice
6. Standards ABA recommondations
a. Strength of evidence
b. Harm cuased
c. Prosecutor's beliefs on probable cause
d. Defendants cooperation
e. Availability of private remedies
7. Multiple Jurisdictions - Likelihood of prosecution in another jurisdiction a factor. Fed charges much more severe
8. Internal review policies - Several offices supervisors systemically review charging decisions
iv. CASE: INMATES OF ATTICA CORRECTIONAL FACILITY v. ROCKEFELLER
1. Facts: After riots and police storming prison, alleged rights violations not investigated
2. Issue: Can inmates (anyone) compel prosecution?
3. Rule: Cannot compel prosecution
4. Reasoning:
a. Seperation of Powers doctrine and proplems do not lend judiciary to resolve these issues.
b. Decision not to prosecute may be based on
c. Insufficiency of available evidence
d. Grand Jury records are secret (for valid reasons)
e. Hard for Judicary to review.. When would prosector be allowed to stop?
F. PLEA BARGAINING
i. Notes: In 1997, according to federal courts data nationwide, 3,200 of 63,000 federal defendants were convicted in jury
trials; in 2015, there were only 1,650 jury convictions, out of 81,000 defendants.
ii. New York State Court data also shows a striking decline in felony jury trials. In 1984, there were over 4,000 jury verdicts;
in 2015, there were fewer than half of that.
iii. CASE: BRADY v. UNITED STATES (1970)
1. Facts: Charged w/ kidnapping and faced death penalty, plead not guilty but co-d got a plea bargain. D changed
his plea and got 30 years.
 2. Issue: Was his plea coerced?
3. Holding: ‘[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any
commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises
to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by
promises that are by their nature improper as having no proper relationship to the prosecutor’s business (e.g. bribes)
iv. CASE: BORDENKIRCHER v. HAYES
1. Facts: Defendant wrote bad check - $88.30, possible sentence 2 to 10 years. But also 2 prior felonies, so eligible for Career
Criminal. Prosecution Offer was 5 years or Trial, and prosecution would push for mandatory life at trial. Went to trial Got
life
2. Issue: Vindictive Exercise of Prosecutorial Discretion?
3. Holding: No -> if prosecutors could not bargain, the system would not work
4. Reasoning: Note, vindictive cases were about getting off on prior cases.
 
 

II. Chapter 2 The Justification for Punshment

A. PROBING THE BASIS FOR PUNISHMENT: A CLASSIC CASE
i. CASE: REGINA v. DUDLEY AND STEPHENS
1. Facts: Castaways stranded at sea, killed and ate cabin boy
2. Rule: Guilty of Murder – temptation is not an excused violation of the law against murder.
B. WHY PUNISH?
i. The Utilitarian View (Jeremy Bentham) – Forward Looking – Consequentialists / Instramentalists
1. Specific Deterrance - keep a specific person from wanting to do again
2. General Deterrance - keeping everyoen from wanting to do the same
3. Incapacitation
4. Rehabilitation - if that is what is best for society
5. Bentham Notes:
a. All punishment is mischief, all punishment itself is evil
b. Punishment ought to be allowed only if it promises to exclude some greater evil
c. Punishment should be no more than necessary to achieve a greater good
 6. Critisms
 We are not the same calculators (if at all)
 Draconian punishments
 Treats the defendant as a means to an end
 Perverse side effects (like "going out with a bang")
 Hard to measure the benefit
ii. Retribution (Immanuel Kant) – Backward Looking
1. Kant Notes: Punishment can never be used to promote some other good for the criminal himself or for civil society, but
instead it must in all cases be imposed on him only on the ground that he committed a crime.
2. Based on the concept of an eye for an eye – punishment should be equal to the crime
3. Negative Retribution - sets an upper limit on the amount you can be punished
4. Limits of Retribution
a. Finding an equivilance
b. Assumes people have the choice to violate the law
5. Critisms
a. Assumes free will
b. Emotional based
c. Nugget: Is it just utilitarism anyways?
iii. Mixed Theories
1. HLA Harts - proposal to build a system from utilitarianism, but use negative retributionism as the upper limit to punishment
2. Nugget: Theories Can be mostly complementary, but some cases where there is conflict
 Attempted Murder (attempted anything
 Utilitarianism - really bad
 Retrobutionist - did not do anything, therefore… its OK.
iv. RULES
1. Model Penal Code §1.02(2). The general purposes of the provisions governing the sentencing and treatment of offenders
are:
(a) to prevent the commission of offenses;
(b) to promote the correction and rehabilitation of offenders;
(c) to safeguard offenders against excessive, disproportionate or arbitrary punishment. . . .
2. New York Penal Law §1.05 (2016). The general purposes of [sentencing] are: . . . 
 a. To insure the public safety by preventing the commission of offenses through the deterrent influence of the sentences
authorized,
b. the rehabilitation of those convicted,
c. the promotion of their successful and productive reentry and reintegration into society, and
d. their confinement when required in the interests of public protection
3. California Penal Code §1170. The Legislature finds and declares that the purpose of imprisonment for crime is punishment.
This purpose is best served by terms proportionate to the seriousness of the offense with provision for uniformity in the
sentences of offenders committing the same offense under similar circumstances. [T]he elimination of disparity and the
provision of uniformity of sentences can best be achieved by determinate sentences fixed by statute in proportion to the
seriousness of the offense as determined by the Legislature to be imposed by the court with specified discretion
C. WHAT TO PUNISH?
i. Nugget: Note that pre-trial detention does not count as punishment.
ii. Two Questions Must Be Asked:
1. Does criminal statute infringe upon a constitutional right?
2. Does criminal statute exceed upon the government’s police powers?
i. Does it protect public health, safety, welfare or morals?
ii. Is it rationally related to one of these goals? (And narrowly tailored.)

III. CHAPTER 3 – DEFINING CRIMINAL CONDUCT – THE ELEMENTS OF JUST PUNISHMENT

A. INTRODUCTION
i. What makes a crime? (Framework for thinking, not actual elements)
1. Did defendant commit a voluntary act?
2. Did act fall within definition of the crime?
3. Did defendant have requisite mental state?
4. Notwithstanding the above, was the defendant justified?
5. If not justified, should his conduct be excused?
6. If justified or excused, not guilty.
ii. Defn: Mala inse: crimes that are evil in themselves (universal crimes)
1. Mala in se – wrong in it of itself (murder, rape, incest)
iii. Defn: Mala prohibitom: wrongful because of the state (more subjective according to area)
 1. Mala prohibitum – wrong because it is illegal (i.e. Drunk Driving)
iv. NOTE: Elements of Criminal Statutes
1. Conduct – Act or Omission
2. Attendant Circumstances – Facts that have to exists
3. Result – (Optional) The effect of Act or Omission
v. Examples:
1. A person is guilty of robbery if, in the course of committing a theft, he inflicts serious bodily injury upon another.
a. Act – Inflicts injury upon another
b. Circumstances – Course of committing a theft
c. Result – Serious bodily Injury
2. It is unlawful for any person 18 years of age or older to deliver any controlled substance to a person under the age of 18.
a. Act – Deliver any controlled substance
b. Circumstances
i. Person over 18
ii. Delivered to someone under 18
3. LOOK FOR MORE EXAMPLES OF THIS
B. LEGALITY –
i. Rules of Legality
1. Nulla Poena Sine Lege (no punishment without law)
2. Rule of Legislivity
a. Courts and Juries can no longer "make law"
b. Courts still obligated to interpret the law
c. Judge-made crimes lacked predictability, were open to judicial discretion, and were inconsistent with the “new”
America.
d. Lanzette v NJ (1939) is where the court establishes the rule of legislivity
e. MPC s 1.05 - “No conduct constitutes an offense unless it is a crime or violation under this Code or another statute
of this state.”
3. Rule of Lenity
a. If criminal statute is ambiguous, the defendant gets the benefit of the doubt…sometimes.
b. Normally, plain language controls.
 c. But if plain language can reasonably be read in more than one way, choose the way most favorable to defendant.
d. Cannons of Statutory Interpretation
i. Plain Meaning of the Text
ii. Context of the text and supporting words
iii. Purpose of the legislation
iv. Legislative History
4. Rule of Prospectivity / Rule against Retroactivity
a. Can only make rules / laws / crimes for conduct in the future
b. No ex post facto law.
i. Legis can’t make innocent action criminal and apply retroactively.
ii. Legis can’t increase punishment retroactively
iii. Legis can’t alter rules retroactively to make conviction easier
c. Similar constitutional limits on courts under the Due Process Clause of the 5 th and 14th Amendments
5. Rule of Specificity / Rule against Vagueness
a. The Court has long taken a two-prong approach to void-for-vagueness analysis:
i. Does the statute give fair notice to people so they know what behavior is criminal, and what is not?
1. it’s not so much the vagueness of the words, but whether an ordinary person would know or be
able to find out.
ii. Does the statute seem to allow or encourage arbitrary or discriminatory enforcement?
b. BTW, challenges to penal statutes on vagueness grounds are very rare, and they rarely succeed.
ii. Case: COMMONWEALTH v. MOCHAN (1955)
1. Facts: Mochan made numerous calls to Zivkovich, harassing, faul language
2. Holding: Used a common law misdemeanor as a statue
iii. Case: McBOYLE v. UNITED STATES (1931)
1. Facts: took an airplane known to be stolen from Illinois to Oklahoma
2. Issue: Whether the National Motor Vehicle Theft Act applied to aircraft
3. Holding: an airplane is not covered by a statute that makes it a crime to steal “motor vehicles”
iv. Case: YATES v. UNITED STATES (2015)
1. Facts: Yates throw fish overboard after inspection and replaced with appropriately sized fish
2. Issue: Charged under SOX
3. Holding: Ambiguity should favor leninty
 v. Case: KEELER v. SUPERIOR COURT (1970)
1. Facts: need ex-wife in gut, she delivered still born fetus
2. Issue: Was This Murder?
3. Holding: Rule of Legislivity – Common law murder did not consider killing an unborn fetus.
vi. Rogers v. Tennessee, 532 U.S. 451 (2001):
vii. Case: CITY OF CHICAGO v. MORALES (1999)
1. Gang Statute
a. PO must reasonably believe at lest one of the two or more persons are a gang member
b. Persons must be "loitering" - remaining in any one place with no apparent purpse
c. PO must order dispersonal
d. Person must disobey order
2. Does the ordinance provide sufficient notice so an ordinary citizen would know what conduct it prohibits?
a. If I stopped to talk to a gang member to convince him to come to church, could you be in violation?
b. How about if you just talk to him to shoot the breeze or talk sports?
c. Could you be in violation for speaking to someone who you didn’t’ know was a gang member?
3. Does the ordinance seem to permit or encourage arbitrary or discriminatory enforcement?
viii. Case: Papachristou v. City of Jacksonville (1972)
1. Several consolidated cases of defendants all charged with vagrancy. (The criminal statute’s on page 194)
a. Two couples out on a double date, en route to a club. Because they seemed to slow down as they passed a car
dealership, charged with vagrancy
b. Two men waiting for a friend with a car so they could drive to an interview, charged with vagrancy
c. A man who drives up as police are making arrests. Police order him out of his vehicle. Finding nothing else to
charge him with, they charge him with vagrancy by loitering.
d. A known criminal coming out of a hotel. Police motion him over, then charge him with vagrancy by loitering.
2. Prof. likes Papachristo v. Jacksonville - statue on page 192 of casebook.
C. PROPORTIONALITY
i. Punishment cannot be "grossly disproportionate"… this is implicit (thou, not stated explicitly) in the 8th amendment "cruel and
unusual" --> Courts struggle with specific tests.
ii. SCOTUS proportionality can be divided between Capital / Non-Capital cases
iii. Key SCOUTUS Capital Cases
 1. Coker v. Georgia (1977) - No capital punishment for rape
2. Edmund v. Floridat (1982) - No capital punishment for "felony murder as a co-conspirator" if its not reasonably foreseable
that murder will take place (later part is from subsequent trials)
3. Atkins v. Virginia (2002) - No capital punishment for Mental Retardation
4. Rober v. Simons (2003) - No capital punishment for Juveniles
5. Kennedy v. Louisiana (2008) - 5 year old raped… Still no capital punishment
6. Key phrases "evolving standards of decency" // "Contemporary values"
iv. Key SCOUTUS Non-Capital Cases and "grossly proportionate"
1. Rummel v. Estel --> Life with Parole is OK
2. Hatto v. Davis --> 40 years for 9 oz. of Marijana is Constitutional
3. Solem v. Helm (1983) - Life without Parole is Unconstitutional
a. LWOP - really considered as the same as a death sentene
4. Ewing v. California - CASEBOOK / Brief
5. Lockeyr v. Andead (2003) - 50 to life for videos --> Consitutional
6. Miller v. Alabama - No mandatory LWOP for Juvenile Murder
a. Courts explicitly said (and have to) that this applies retroactively.
v. Case: Ewing v. California
1. Facts– Ewing, while on parole, steals 3 golf clubs and convicted after trial; had just gotten out after 9-year sentence for a
series of burglaries (3) and a robbery in an apartment complex over 5 months.
2. Charge. Grand theft of personal property in excess of $400 while a previously convicted of four felonies.
3. Sentence, under Cali’s 3 strikes law to 25 to life
4. Design of law: “to ensure longer prison sentences and greater punishment for those who commit a felony and have a prior
violent/serious felony conviction.”
vi. Case: Graham v. Florida
1. Rule – No Life without Parole for Juvenile
vii. Case: Miller v. Alabama
1. Rule – Extended no Life without Parole for Juvenile to include no LWOP for homicide
viii. Nugget: Professor has issues on 3 strikes
1. Prosecutirial Discretion -- choice to prosucute 3 strikes
2. Deternce - Does it really work
3. Costs to imprison
4. Built after "moral panic"
5. Lot of these crimes can be drug related, are there better options?
 ix.
Analysis:
1. Threshold issue: does sentence seem grossly disproportionate?
a. Primacy of the legislature
b. Variety of legitimate penological schemes
c. Nature of federal system
2. If threshold answer is yes, consider objective factors
a. Punishment for other offenses in jurisdiction
b. Punishment for offense in other jurisdictions
3. Proportionality review be guided by objective factors
a. 8th amendment does not require strict proportionality
b. 8th amendment forbids grossly disproportionate
4. “If this comparative analysis ‘validate[s] an initial judgment that [the] sentence is grossly disproportionate,’ the sentence is
cruel and unusual. (Graham v. Fla)
D. CULPABILITY Crime Requires Actus Reus & Mens Rea (Unless strict liability)
i. Actus Reus—Culpable Conduct (COVERED IN PROF SLIDES 6)
1. ACTS in General
a. Defn: The act requirement simply means that more is required then a defendants unarticulated thoughts. For a
charge and conviction there must be a prohibited act.
b. There must be an ACT, or
c. There must be an OMISSION, where there is a DUTY to ACT and a voluntary failure to act.
d. IT IS NOT: Status – “Witch” is a status, not an Act
i. Note – Witchcraft is an ACT
ii. EXAMPLE: Robinson v. California (1964) - Defendant was found with needle marks on his arms was
charged with the crime of “being addicted to the use of narcotics” – Status not ACT
iii. Example: Chicago v. Morales (1999) (previously)– Is being in the presence of a gang member an act?
iv. Thought Q: Jones v. City of LA (2006) – LA makes offense for any person to “sit, lie, or sleep in or upon
any… sidewalk..” Does charging a homeless person violate act requirement – NOTE Prof thinks not,…
e. IT IS NOT: Thoughts - “Imagining robbing someone is NOT robbery” The law is unequivocal on this point. MPC
§2.01(1) would afford a full defense, and a long-honored maxim of the criminal law states: cogitationis poenam
nemo patitur—no one is punishable solely for his thoughts.
i. Note: Attempt requires serious steps towards a crime. Attempt is more then just “Thoughts”
 f. NOTE: “ARTICLE: WROTE DESTERBING PLANS”
g. ARTICLE: CHILD PORN gets 10 YEARS (extending laws?)
2. VOLUNTARY ACT
a. Rule: MPC 2.01
i. (1) A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act
or the omission to perform an act of which he is capable.
ii. The following are not voluntary acts…
1. A. a reflex or convulsion
2. B. a bodily movement during unconsciousness or sleep
3. C. conduct during hypnosis
4. D. bodily movement not the product of effort from the actor.
b. Thought Q: Maybe Voluntary means?
i. That the defendant can only be culpable if he or she voluntarily and consciously committed the
charged/prohibited act?
ii. That the defendant acted on his or her own volition?
iii. That the person did something to be morally culpable of the charge?
iv. That it wasn’t an unconscious reflex?
c. Case: MARTIN v. STATE (1944)
i. Facts: Defendant arrested at home, taken onto highway, where he became boisterous.
ii. Facts: Charged with public intoxication. -- “Any person who, while intoxicated or drunk, appears in any
public place…and manifests a drunken condition…shall be fined.”
iii. Holding: Being in public because you were brought there by the police is not a voluntary act. (Not guilty)
iv. Hypo: Supposed Martin got sloshed at a bar, then went outside?
v. Hypo: Supposed Martin got sloshed at a bar, and then was ejected by the bartender for being wasted?
vi. Simlar Examples: People v. Low - defendant arrested. Found drugs on him in jail.. Appeals found that he
voluntariy brought the drugs into prison
vii. Similar Example; State v. Tibbets - Defendant was arrested at his home, searched and transported to jail. At
jail, searched again and found to be in possession of pot. Defendant charged with supplying contraband by
knowingly introducing contraband into a correctional facility.
 viii. Counter Example: State v. Eaton - Similar case, but considered that he didn't bring drugs in under own
volition
ix. Counter Example: People v. Decina (NY 1956) - Defendant suffered from seizure while driving in Buffalo on
a clear day and ran into six schoolgirls, killing four. Had suffered several seizures, including one the year
before, and was on daily meds. Moved to dismiss on ground that he hadn’t committed a voluntary act.
Rejected.
x. Counter Example: Congressman Bill Janklow - Diabetic who hadn’t eaten in 18 hours speeds and kills a
motorcyclist. Charged and convicted of manslaughter.
d. Case: PEOPLE v. NEWTON
i. Facts: Defendant struggling with police officer Frey for gun. Defendant is shot in the stomach by another
officer, shoots Frey. Frey alleges (dr. testimony) that he blacked out due to being in shock after being shot.
ii. Holding: When not self-induced, a state of unconsciousness is a complete defense to a charge of criminal
homicide
iii. Hypo: Suppose Newton remembers very well what he did when he shot the cop. His defense, supported
by psychologists, is he hates cops and just can’t control himself, especially if a cop tries to show authority
over him. He just can’t control himself. Voluntary? - Prof thinks yes.
e. Rule: MPC 2.01(4): Possession is an act, within the meaning of this Section, if the possessor knowingly procured
or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to
terminate his possession.
3. ACTS OF OMISSION
a. Nugget: *** Note, Prof loves omissions ***
b. Rule: An failure to act (omission) can only be criminal if defendant had a duty to act
c. Nugget: "Beyond a reasonable doubt standard applies
d. Nugget: Mental state matters - Need proof of that "omiter" knew that a bad result would happen as well.
e. Rule: Duty to Care
i. Statute clearly spells out a duty
1. Note: Tax is a great example. You have a statutory duty to pay taxes.
ii. Specific relationships (Common Law defined and extremely limited)
1. Parent to child
 2. Spouse to spouse
3. Captain to crew
4. Crew to passengers
5. Master to apprentice
6. Innkeeper to guests
7. Hypo Others?
a. Child to parent?
b. Spouse-like?
c. Parent-like? Miranda's case was "parent like"
iii. Contractual Duty
1. Hypo: Hire Prof as baby sitter for 3 days - - Prof has duty and would be criminal not to care for the
child
2. St. Hypo: (which prof liked and suggested could be exam question) What if hired for 3 days to baby
sit but parent doesn't return for 6 days. Does babysitter have a duty to care on days 4, 5 and 6.
3. Hypo: Cleaning lady hired to clean elderly parent's apartment… not liable if she finds the "parent"
not being taken care of - Cleaning lady was not hired to feed elderly, contract has to tie to the
duty.
iv. Voluntarily (which includes a prevention of others)
1. Note the prevention of others can include the act of volunteering.
2. Hypo: if 5 people on a beach watch someone drowning. 1 person "volunteers" it will have the
effect on the other 4 that they do not have to do anything. So part of volunteering can have the
effect of preventing others. Vol cannot say halfway there, nah I don't want to save this person.
Then he failed his duty.
v. Creation of Peril
1. If you place someone in peril, you have a duty to try to save them.
f. Nugget: Duty is not "Moral obligation", duty has been defined narrowly
i. Hypo: Ex. A student starts chocking in the middle of class. No student would have a duty to assist. Prof,
maybe has a duty.
 ii. Note: American Jurisprudence is very stingy in giving out duties - Reprehensible, horrible, embarrassing,
sickening omissions don't mean it’s a CRIME.
iii. Thought Q: Prof asked is this right policy? *** might be exam type question *
g. Nugget: Domestic Violence – Man beats wife (not children), she has duty to remove children from unsafe
environment (particularly NY)
4. JONES v. UNITED STATES
a. Facts: Jones invited Greens into home, but questions as to the relationship (Jones says Shirley was living there,
Shirley says paying Jones to take care) Baby Anthony dies because it was not taken care of.
b. Rule: Jury instructions for omission must include a duty to care.
c. Notes: Of the 4 duties to care – No statute, no specific relationship. Jury should look at Contractual Duty or
Voluntary.
5. POPE v. STATE
a. Facts: Pope took in Mother and Child, then watched as mother savagely beat and killed her child.
b. Rule: No duty to care was created
c. RULE: there is no duty to report (you cannot cover up)
d. Nugget: Misprison of Felony - Whoever, having knowledge of the actual commission of a felony, conceals and does
not as soon as possible make known the same to some judge or other person in civil or military authority under the
United States, shall be… basically a common law holdover, no one enforces – CONCELMENT important today.
6. Hypos: (Duty to Care / Duty to Report)
a. Pulse Nightclub shooting – GF for conspiring / aiding and abetting, but she really did not have a duty to report.
7. STATE V. MIRANDA (NOT IN BOOK)
a. Facts: Miranda 21 year old moves in with 16 year old gf. GF has 2 year old. Miranda helps with the baby. Miranda
even takes the baby to the hospital. Hospital notes the baby is abused. GF and Miranda charged with assault, but
statute has no “omissions” standard
b. Holding: (orig) – had duty to care, as they had a family-like relationship
i. Thought Q: Does this holding really protect children, or does it mean men won’t move in with GF?
ii. Thought Q: Does this break “Rule of Lenity”?
c. Holding: (final) – No Duty to care
d. Hypos: Duty to care?
 i. If he were the father?
ii. If he were the step-father?
iii. If he’s the live-in boyfriend?
iv. If he voluntarily assumed the care?
8. KUNTZ V. MONTANA (NOT IN BOOK)
a. Facts: Lliving together, breaking up and fight. Woman stabs Man. Leaves, comes back, drives away.
b. Rule: Created a peril
i. Duty to come to aid created by peril, but…
1. Must show caustion (would have lived)
2. No obligation to put self in further danger
9. More Hypos:
a. After being offered $50, mother allows Coach Sandusky to take her 10-year old son home for an overnight at his
house, even though she’s heard rumors Sandusky likes them young. Her son is sexually abused. – Mom would have
duty if she was aware of probability
b. Janitor in real Sandusky case? - No duty
c. Registered nurse, who in her spare time trains people in using the Heimlich maneuver, is on subway when she sees
the girl choking on a lollipop. She could help the girl, but she’s late for the first date she’s had in months. Girl
chokes to death. – No Duty to care
d. Same facts, but this time the nurse stops to help and uses the Heimlich maneuver. Unfortunately, the nurse’s train
comes, and the nurse really doesn’t want to be late for her date. The nurse says, “Later,” and hops on the train.
The little girl dies. – Duty – voluntarily assumed care
e. Same facts, but this time the girl is in the hospital for a broken arm when she starts to choke. Nurse hears choking,
but it’s her lunch break. (Prof says probably
f. Nurse is driving home in a snowstorm. Through no fault of her own, she hits a drunk guy who stumbles into the
middle of street all of a sudden. Drunk guy is bleeding from his position on the hood of the car, and gives her the
finger. Thoroughly pissed off, she drives home with him still on the hood of her car, leaves him there, and goes to
sleep. During the night, he freezes to death on her hood. – YES, created a peril.
10. GOOD SAMARITANISM – limited laws
 a. Thought Q: should this be law - “It is a misdemeanor, punishable up to one year, for any person who knows that
another is exposed to grave physical harm, to not give reasonable assistance to the person where such assistance
can be rendered without danger to himself, unless such assistance is already being provided by others.”
11. Barber v. Superior Ct (Cal. D. Ct. App. 1983)
ii. Mens Rea—Culpable Mental States
1. Defn: Actus Non Facit Reum Nisis Mens Sit Rea Translation: An act does not make guilty, unless the mind be guilty. Or, “An
unwarrantable act without a vicious will is no crime at all.”
2. Note: Proving Mens Rea – Inferences and Jury. For exam, there will be signals in the fact pattern.
3. COMMON LAW
a. Development
i. No Mens Rea
ii. Moral blameworthiness/wickedness
iii. Maliciously and other vague language
b. Usage – Federal and Half States
c. Definitions - Common Law has 10 categories (with inconsistent definitions) - "willfully", "intentionally (Specific &
General)", "Maliciously", "corruptly", "wantonly", "recklessly", negligently, and "with scienter (aka w/ knowledge)".
d. Specific Intent Crimes Common Law –
i. Defn - activities must be done with some purpose. Common
ii. examples
1. burglery requires entering house of another with intent to commit a crime therein;
2. taking property with intent to deprive another of his property;
3. making an untrue statement with intent to deceive; or
4. kidnapping with the purpose of demanding ransom
iii. Note - "subjective awareness" also include crimes that expressly required some particular mental state -
Murder as killing “with malice aforethought” Bigamy requires awareness.
e. General Intent is more broad. Actor needs to perform a voluntary action, in the sense he knows the nature of the
acts performed. Assumed General intent if no specific intent
f. Motive v. Intent
i. Motive is an end result, but still an intent.
 ii. It does not displace an intent that needs to occur along the way.
g. Willfull / Willfully – Federal Law
i. knowing violation of the law.
ii. Used in highly technical regulatory / tax situations
iii. Ex: Willfully failed to file taxes. Willfully engaged in structured transactions.
h. Case: REGINA v. CUNNINGHAM
i. Facts: Ripped the gas meter off the wall to get change. Gas leaked into apartment next door, asphyxiating
future mother in law
ii. Thought ?: Whoever shall unlawfully and maliciously administer…any poison or noxious thing, so as
thereby to endanger the life of said person” is guilty of a felony - So what does it mean to “maliciously
administer . . . a noxious thing”?
iii. Rule: Malicious is more then intent, it can also be foreseeing the possibility of harm and continuing.
i. Case: REGINA v. FAULKNER
i. Facts: D went into ship to steal rum, Lit match and ship caught fire.
ii. Rule: When involved in two felonies, intent has to be there for both.
j. CASE: ELONIS v. UNITED STATES
i. Facts: Man posts threats on social media about wife, says theaputic. Charged with Whoever transmits in
interstate commerce “any communication containing a threat … to injure the person of another” is guilty of
a felony.
ii. Rule: Mens Rea exists, even if it is not specified in the statute.
4. MODEL PENAL CODE
a. Purpose - Working to improve upon the problems of definitions in common law, particular to Mens Rea
i. Manageable Categories
ii. Specific Words and Definitions
iii. Default Rules
b. Note - Think gradations of mental states, or a jagged continuum.
c. RULES
i. MPC s2.02 (1) - person must act - purposefully, knowingly, recklessly, or negligently with respect to each
element
 ii. S2.02 (2) Purposefully - person acts purposefully when If element involves nature of conduct - Conscious
objective to engage in element or cause such a result If element involved attendent circumstance - either
aware or hopes circumstance exists
iii. Knowingly - person acts knowingly when "nature of conduct", or attendent circ - he is aware of the nature
of his conduct, or cirucmstances exist If element involves "result" - is aware or practicly cirtain will result
1. Purpose v. Knowingly - Intent v Simply aware
2. Reckless to Knowingly - SCOTUS - defendant must take deliberate actions to avoid learning the
truth
3. Still where is the line between active not knowing and omission
4. Note: two ways to Prove Knowingly:
a. Positive Knowledge
b. Conscious Avoidance - Deliberately burying your head in the sand can function as a
substitute for knowledge.
c. MPC 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.
5. Case: UNITED STATES v. JEWELL
a. Facts: Defendant enters U.S. driving a car with 110 pounds marijuana concealed in trunk.
Claimed it was her aunt’s car, she smelled laundry detergent and asked and found
explanation suspicious.
b. Rule: Consious Avoidence
iv. Recklessly - Person acts recklessly when consciously disregards a substantial and unjustifiable risk that
material element exists or will result from his conduct. Risk would be major deviation from a standard law
abiding citizen
1. Opaque Recklessness - (Prof Ferzan) - person is aware there is rick, but failure to understand how
substantial
2. Reckless involves concious risk creation - risk must be substantial and unjustified
3. Just think conscious disregard of a substantial risk.
4. It’s like you perceive the risk of harm but do it anyway, or don’t really care, or don’t care enough.
 5. E.g., the guy who shoots into his neighbor’s yard despite protests thinking he won’t hit anyone.
6. Or the mother who “accidentally” rolls over her baby in bed and smothers the baby, after being
warned that she shouldn’t sleep with the baby.
v. Negligently - Person acts Negligently when he should be aware of substantial and unjustifiable risk that
element exists or will result. - risk to such degree that major deviation from reasonable person
1. Negligent when you create a substantial unjustified risk which not concious of, but should be.
failure to perceive risk was just crazy.
2. NY only has 4 statutes with Mens rea of Negligence
3. Reckless v. Negligence
a. There’s an subjective component and objective component. Was there a substantial and
unjustifiable risk? (Objective)
b. Did he perceive the risk? (Subjective). Did he perceive the risk to be substantial and
unjustifiable? (Subjective/Objective)
c. Was his disregard of the risk/failure to perceive the risk a gross deviation of care from pov
of a reasonable person? (Objective)
d. Reckless - subjectively aware, did it anyways
e. Negligent - didn't know, but really should have
vi. MPC s 2.02 (3) - when not stated, element met by acting Purposefully, Knowingly or Recklessly (4) and
needed for all elements
d. Defaults
i. Unless stated, breaking the law requires at least Reckless conduct
ii. standard (knowingly, reckless, etc) for only 1 element, but silent on other, the assumption is that standard
applies to all
e. HYPOs
i. Mick Cheney is out deer hunting in a designated hunting area during hunting season, and sees movement in
the bushes. He fires. As luck would have it, the movement in the bushes was a couple of paparazzi
photographers. Should Cheney be prosecuted for causing death of the photographers by shooting them in
the face? Did he act p/k/r/n with respect to the result or none of the above?
 ii. Eager to try out his new gun, Emilio drives five hours into the middle of the Arizona desert, looks around to
make sure no one is in sight, and then fires at a cactus. As luck would have it, it’s not even a cactus. Under
the MPC approach, should Emilio be charged with purposefully causing the death of the person posing as a
cactus? Knowingly? Recklessly? Negligently? Or should he not be charged with a homicide crime at all?
iii. Defendant is driving when his tire blows out. Despite his efforts to maintain control of the car, the car
swerves off the road and kills a pedestrian. Is he deserving of punishment? What mental state did he have
with respect to the death of the pedestrian? p/k//r/n?
iv. Defendant was driving at speed limit, had brand new tires, had no reason to think they were defective.
v. Defendant is driving at speed limit, but he knows that his tires are old and bald, and he was told he
shouldn’t drive because his tires might give out at any time.
vi. Knowingly driving with old, bald tires at 65 mph in 30 mph speed zone down Broadway. Was there a
substantial and unjustifiable risk? Defendant aware of risk? Gross deviation from what reasonable person
would do?
vii. John really wants to kill his wife. Knowing that she drives home each day on the interstate, he secretly
destroys the brakes in her car. She’s driving home on the interstate, the brakes fail, she goes off a cliff and
dies. – What mental state? - Purposefully
viii. Suppose John knows that his wife will be giving her best friend a ride home, and that the best friend will
likely die too, but so be it; John doesn’t plan on losing any sleep over it. – What mental state? - Knowingly
ix. Suppose John knows his wife’s friend will be in the car, but it never even occurs to him that the friend is at
risk of death too? – Mental State? - Negligently
x. Suppose wife is alone in the car, but when brakes fail, she runs into another car, killing the occupants of the
other car and herself. John was afraid this might happen, but figured it was worth taking the risk. – Mental
State? - recklessly
5. MENS REA and Statutory Analysis
a. Example: it’s a crime to pass a counterfeit bill.
b. Common Law Approach
i. Plain meaning
ii. Legislative history/intent
iii. Related statutes
 iv. Prior interpretations, etc.
c. MPC Approach
i. MPC 2.02 (3) When the culpability sufficient to establish a material element of an offense is not prescribed
by law, such element is established if a person acts purposefully, knowingly, or recklessly with respect
thereto. … aka default is at least Reckless
ii. MPC 2.02(4) If a statute “prescribes the kind of culpability that is sufficient for the commission of the
offense, without distinguishing among material elements thereof,” interpret such culpability provision as
applying to every material element of the offense “unless a contrary purpose plainly appears.” … aka If it
mentions a culpable state (mens rea), apply it to the whole statute unless a contrary purpose plainly
appears.
iii. Hypos
1. Let’s say it’s a crime to knowingly distribute drugs within 100 yards of a school. Material Elements?
Conduct? Attendant Circumstance(s)? Client comes to you and say he knew he was distributing
drugs, but didn’t know there was a school nearby. Does he have a defense in an MPC jurisdiction?
2. After getting caught in his neighbor’s house, your client is charged with “knowingly entering into a
dwelling belonging to another.” Client tells you he wasn’t thinking, i.e., he thought he was entering
his own house. (Though for a second, he did think it strange that the door was a different color.)
Does he have a defense in an MPC jurisdiction? Supposed the crime was recklessly entering into a
dwelling belonging to another?
iv. Case: People v. Ryan Defendant ordered shipment of 2 lbs magic mushrooms. He’s charged with
“knowingly and unlawfully possession 625 milligrams of hallucinogen.”
1. A person is guilty of criminal possession of a controlled substance in the second degree when he
knowingly and unlawfully possesses:
2. …. (5) 625 milligrams of a hallucinogen
3. Ryan asked his friend for 2 lbs of mushrooms, but did not know how many milligrams of
hallucinogen would be in 2 lbs.
4. Can he be convicted assuming NY follows the MPC rules of interpretation?
 5. After the NY Ct of Appeals reversed Ryan’s conviction, the NY legislature amended the statute. A
person is guilty of criminal possession of a controlled substance in the second degree when he
knowingly and unlawfully possesses:
6. …. (5) a hallucinogen and said hallucinogen weighs 625 milligrams or more.
v. Burglary Ex – NY
1. Conduct - enters and remains unlawfully in a bld
a. Requires knowledge
2. Conduct - Intent to comit a crime
a. Requires Purpose
3. Attendant – Buildign
a. Silent (Default to knowledge)
vi. Burglary Ex – CA
1. Conduct - enters house, apt. etc
a. Silent (default to purpose)
2. Conduct - Intent to commit larceny / felony
a. Purpose
vii. Destruction of property (DC
1. Conduct - injures, breaks or destroys (or attempts same)
a. Requires malicious --> purpose?
b. Attendants Public / private, Real / personal, not his own, greater than 1000
i. Silent (requires purpose?) 
6. Strict Liability
a. Strict Liability is technically not part of MPC; however, in practice jurisdictions w/ MPC add Strict Liability
i. MPC 2.02(1) “Except as provided in Section § 2.05, a person is not guilty of an offense unless he acted
purposefully, knowingly, recklessly, or negligently, as the law may require, with respect to each material
element of an offense.”
b. “The requirements of culpability prescribed in § 2.02(1) do not apply to
i. Violations
ii. Non-code statutes, insofar as a legislative intent to impose strict liability plainly appears.
c. Types:
i. Public Welfare Crimes
1. “selling alcohol to a minor under 21 years old.” Penalty is $500 fine.
ii. Statutory Rape
1. Especially for very young children
2. Mental state as to age element irrelevant.
iii. Violations – Traffic, licensce, codes
1. Operating a restaurant without a license or with an expired license is a crime, maximum penalty
$2000 fine.
2. Driving with an expired vehicle inspection is a traffic violation, maximum fine $200
d. Case Note: US v. Balint (1922) - selling derivative of opium without the proper order form - “[T]he State may in
the maintenance of a public policy [make some crimes strict liability.] Many instances of this are to be found in
regulatory measures . . . Where the emphasis of the statute is evidently upon the achievement of some social
benefit…”
e. Case Note: United States v. Dotterweich, 320 U.S. 277 (1943) – erroneous labels on pharmacuticals - “The
prosecution to which D was subjected is based on a now familiar type of legislation whereby penalties serve as
effective means of regulation. Such legislation dispenses with the conventional requirement for criminal conduct—
awareness of some wrongdoing. In the interest of the larger good…”
f. How can you tell whether statute that is silent as to mens rea might be a strict liability offense?
i. Legislative history/intent
ii. Legislative policy would be undermined by a mens rea requirement
iii. Penalty is usually, but not always, minor
iv. Penalty non-stigmatic
v. Regulatory crime that benefits large groups of people.
vi. Crime is malum prohibitum rather than malum in se
g. Case: MORISSETTE v. UNITED STATES
i. Facts: Morrissette took bomb cases from Air Force Range
ii. Charge: “Whoever embezzles, steals, purloins, or knowingly converts to his use…[a] thing of value of the
United States” shall be imprisoned not more than ten years…
 iii. Rule: Petty larceny still requires Mens Rea
h. Test – The conduct that is prohibitied
i. Is the emphasis on punishing the wrongdoer, or protecting the larger public?
ii. Is the penalty relatively light, such as a fine? Is it malum prohibitum?
iii. Does it make sense that a particular material element should be strict liability, if not the entire offense?
i. Strict Liability Hypos:
i. Operating a restaurant without a license or with an expired license is a crime, maximum penalty $2000 fine.
ii. Driving with an expired vehicle inspection is a traffic violation, maximum fine $200
iii. “selling alcohol to a minor under 21 years old.” Penalty is $500 fine.
1. Required mental state under MPC?
2. Likely mental state in a non-MPC jurisdiction?
j. Thought Q: Do we need strict liability
i. Can strict liability be squared with Retributionism?
ii. Can strict liability be squared with Utilitarianism?
7. Mistakes of FACT
a. Specific Intent Crimes – Any reasonable or unreasonable mistake could negate intent and exculpate
i. Example – taking property of another with intent to deprive another of property
ii. Taking an umbrella by mistake is not a crime. Honest mistake
b. General Intent Crimes – Any reasonable mistake could negate intent and exculpate
i. Example – It is a crime to sell liquor after midnight Saturday
ii. Selling licquor at 11pm by mistake if reasonable mistake could be OK
c. Case: REGINA v. PRINCE
i. Charge: Whosoever shall unlawfully take … any unmarried girl, being under the age of 16, out of the
possession and against the will of her father or mother…shall be guilty of a misdemeanor.
d. Hypos
i. After getting caught in his neighbor’s house, your client is charged with “knowingly entering into a dwelling
belonging to another.” Client tells you he made a mistake, he wasn’t thinking, i.e., he thought he was
entering his own house. Does he have a defense?
 ii. Suppose the charge is “negligently entering into a dwelling belonging to another.” Again, Client tells you he
made a mistake, i.e., he thought he was entering his own house. Does he have a defense?
iii. Your teenage client has been charged with reckless manslaughter, defined as “recklessly causing the death
of another person,” for shooting his best friend. Client tells you he was just fooling around. He mistakenly
assumed the gun was unloaded. Does he have a mistake defense? What? Suppose he had just emptied
the gun of bullets a minute earlier?
iv. Your client has been charged with statutory rape, a strict liability crime, defined as “having sexual relations
with a minor 15 or younger.” Your client claims he met the girl at the a BLS event, that she claimed she was
a 1L in section B, and that when he took her out for drinks, the bartender checked her ID before serving her
drinks. Does your client have a defense under the common law approach to mistakes?
e. MPC – Simplified under Mens Rea
i. Rule 1: Ignorance or mistake as to a matter of fact … is a defense if … the ignorance or mistake negatives
the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the
offense.
1. Unless your mistake means you didn’t have the mental state for a particular element, you’re out of
luck.
2. Ignorance or mistake as a matter of fact or law is a defense if … the ignorance or mistake negatives
the purpose, knowledge, belief, recklessness or negligence required to establish a material
element.
ii. Rule 2 -- Defense of mistake is unavailable if defendant would be guilty of another offense had the situation
been as he believed it to be.
1. In such case, defendant may be convicted but only sentenced to the lesser offense for which he
would have been guilty if the situation was as he supposed
2. MPC Rule 2 Hypo
a. People v. Ryan, charged with “knowingly possessing 625 milligrams of a hallucinogen.”
Thinks he’s getting 300 milligrams instead of 625. Or marijuana instead of mushrooms. –
He gets lessor punishment.
f. Summary
i. Specific intent crime: honest mistake of fact means not guilty.
 ii. General intent crime: honest mistake of fact means not guilty so long as mistake is both honest AND
reasonable.
iii. Unless Engaged in “moral” or “legal” wrong in connection
1. Mistake in age for statutory rape
2. Example: CL seemed to justify holding defendants liable for sexual conduct with under-aged
individuals even when their mistakes were honest and reasonable on the theory that they
defendants committed some moral wrong
8. Mistakes of Law
a. Ignorance of the law is not excused
b. Rule of Publicity – Rules are published so they are knowable
c. Case: U.S. v. Baker (5th Cir. 1986) - Def charged with violating law that made it a crime “to intentionally deal in
counterfeit goods.” “I didn’t know it was a crime!” Valid defense? Defendant had to intentionally deal in good and
knowingly use counterfeit mark with respect to good
d. Exceptions
i. Crimes (especially federal crimes) that have a “willfully” requirement
1. i.e., you have to know you’re violating a law, or at least know you’re doing something wrong.
2. Case: CHEEK v. United States – Presentation 9
a. Petitioner’s defenses: a) I sincerely believed I did not have to file taxes, and b) taxes are
unconstitutional
b. “Willfulness, as construed by our prior decisions in criminal tax cases requires the
Government to prove that the law imposed a duty on the defendant, that defendant knew
of this duty and that he voluntarily violated that duty.”
3.
ii. Official reliance “defense”
1. Case: Hopkins v. State (Md. 1950), pg. 341
a. Minister put up a sign advertising his services after checking with a state attorney to make
sure it wouldn’t violate a Md law making it a crime to erect a sign soliciting marriage
officiating. He’s then arrested. “[A]dvice of counsel, even though followed in good faith,
furnishes no excuse…Moreover, advice given by a public official, even a State’s Attorney…
 will not excuse an offender if, as a matter of law, the act performed did amount to a
violation of the law.”
b.
iii. Due Process “ catch-all” limitations for extremely unfair situations
1. Case: LAMBERT v. CALIFORNIA 1957– presentation 9
a. Facts: Unlawful for “any convicted person” to be in or remain in Los Angeles for more than
five days without registering
b. Holding: Unconsitutional – due process
c. Due Process places some limits on [the rule that ignorance of the law is not an excuse.]
Engrained in our concept of Due Process is the requirement of notice…[T]he principle is
equally appropriate where a person, wholly passive and unaware of any wrongdoing, is
brought to the bar of justice in a criminal case….. [Here, violation requires no act, merely
presence.]…We believe that actual knowledge of the duty to register or proof of the
probability of such knowledge … are necessary before a conviction.
2. HYPO NYC passes a criminal law requiring pharmacists to record the names and addresses of
customers purchasing Sudafed. Pharmacist Jim, who was on vacation when law was passed, is
prosecuted for violating the law. Lambert/due process defense?
3. HYPO - Jennifer, who has just moved to NY from Wyoming for law school, is prosecuted for carrying
her gun on the subway. She had no idea this was a crime in NY. The prosecutor says ignorance of
the law is no excuse. She says, “Due process, dude!”
4. All you want to do is take advantage of your neighbor’s wireless connection. Check for statutes on
internet piracy. Nothing. Assume that in NY State it is a crime “to, with intent to avoid payment of
the lawful charge for any service, including internet service, make connection with the equipment
of the supplier.” Is the fact that you were unaware of the theft of services law a defense?
5. Suppose you check with a defense attorney first. Defense attorney checks out the “theft of
services” statute, but says wireless isn’t a service. I.e., you’re fine. Go surf. You’re indicted.
Defense?
a. DA Friend is NOT official Enough!
 6. Just to be extra safe, you also check with your Crim Law professor, and your friend at the DA’s
Office. You even call up Eric Schneiderman, the former NY AG, who tells you over the phone that
you’re fine. You’re indicted. Defense?
7. IRS issues an official statement stating that gifts under $100,000 do not have to be reported as
income. You receive a gift of $75,000 and don’t report it. Turns out IRS release was supposed to
read $10,000, not $100,000 You’re charged with failing to report the $75,000. Defense?
a. I said YES, class and prof said NO!
e. MPC – Simplified under Mens Rea
i. Ignorance of the law is generally no excuse unless … … the ignorance or mistake negatives the purpose,
knowledge, belief, recklessness or negligence required to establish a material element.
ii. MPC s 2.04 - Ignorance is a defense if ignorance is result of reasonable reliance on an official statement in
a:
1. Statute, later found to be erroneous.
2. Judicial opinion, later found to be erroneous.
3. Administrative order, later found to be erroneous
4. Official interpretation of public officer charged by law with responsibility for interpretation, later
found to be erroneous.

Chapter 5 - Murder
I. INTRODUCTION
A. Initial Division by Malice
i. Common Law Murder - “The killing of a human being by another human being with malice aforethought.”
1. So there had to be “killing” of “another human being”
2. Year and a day rule
3. So murder had to be “aforethought”
 4. And murder had to be with “malice”
a. Express malice:
i. Intention to kill
b. Implied malice:
i. Intention to inflict grievous bodily harm
ii. Extreme disregard for the value of human life
iii. Death during the commission of a specified felony
ii. Common Law Manslaughter – “If no malice aforethought, the killing was manslaughter, not murder”
B. Second Division by Premediation
i. First Degree Murder became:
1. Intentional killing that was also premeditated and deliberate; or
2. an enumerated felony murder
ii. Case: COMMONWEALTH v. CARROLL
1. Facts: Man put gun on shelf, after argument while she was sleeping, shot her in the back of the head.
2. Holding: “Whether the intention to kill and the killing, that is, the premeditation and the fatal act, were within a brief space
of time or a long space of time is immaterial if the killing was in fact intentional, wilful, deliberate and premeditated.”
3. Thought ? – What does the court mean by deliberate?
iii. STATE v. GUTHRIE
1. “[T]o constitute a willful, deliberate and premeditated killing, it is not necessary that the intention to kill should exist for
any particular length of time..,it is only necessary that such intention should have come into existence for the first time at
the time of such killing.”
2. Hence, on appeal: Premeditation and deliberation should be defined . . To give juries both guidance and reasonable
discretion…there must be some period…which indicates… an opportunity for some reflection on the intention to kill after it
is formed.
3. Thus, there must be some evidence that the defendant considered and weighed his decision to kill in order for the State to
establish premeditation and deliberation under our first-degree murder statute. This is what is meant by a ruthless, cold-
blooded, calculating killing. Any other intentional killing, by its spontaneous and non-reflective nature, is second degree.
iv. Grevous Bodily Harm – 2nd degree
v. Depraved Indifference / Gross Recklessness - 2 nd degree
 1. Case: COMMONWEALTH v. MALONE (1946)
a. Facts: Def. had revolver and one bullet – played Russian roulette and it went badly
b. Rule: When an individual commits an act of gross recklessness for which he must reasonably anticipate that death
to another is likely to result, he exhibits that “wickedness of disposition, hardness of heart, cruelty, recklessness of
consequences, and a mind regardless of social duty”
c. Thought ? - Is there really difference between recklessness homicide (involuntary manslaughter) and a gross
recklessness homicide (depraved indifference 2d degree murder?)
vi. Felony Murder – 1st degree
1. Case: Regina v. Serne (1887)
a. Facts: Set Fire with family inside the apartment
b. Rules: Felonly Murder - the killing of another person by an act done with an intent to commit a felony. Or an act
done with the knowledge that the act will probably cause the death of some person.
2. Nugget: UK abolished felony murder rule in 1957
3. Note: Felony Murder in the US is mostly strict liability
a. Rule: The felonies are enumerated
i. Arson
ii. Rape
iii. Robbery
iv. Burglary
v. Kidnapping
b. Rule: Must prove the enumerated felony was committed and that a person was killed
4. Rule: Some jurisdictions include “inheriently dangerous felony”. Not enumerated “inherently dangerous” felonies that
result in death. Considered to be 2nd degree murder.
a. Case: Hans v. State – Killed while hunting, but felon in possession
b. Case: People v. Howard – Operating a meth lab
5. MPC Approach to Felony Murder – 210.2 - (b) it is committed recklessly under circumstances manifesting extreme
indifference to the value of human life. Such recklessness and indifference are presumed if the actor is engaged or is an
accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery,
rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape.
6. Common Law Felony Murder
a. The “Merger Rule”
i. Predicate Felony is Independent – Felony Murder rule applies only if the predicate felony is independent of,
or collateral to the homicide. There has to be an independent felonious purpose.
ii. Creates a dividing line
1. Robbery that results in death is felony murder
2. A fight that results in death is not felony murder
b. Agency Approach (Majority Rule)
i. Felonly murder only applies if one of the bad guys commits the homicide. Does not count as felony murder
if a security guard kills during a robbery.
c. Proximate Cause (Minority Rule)
i. Felonly murder applies whenever someone dies and the death is the proximate result of the felony – In this
case, if the security guard kills someone, then the bad guys could be convicted of felony murder.
d. “Res Gestae” rule (time, geography, causaction)
i. Not every homicide resulting from an enumerated or inherently dangerous felony is felony murder
ii. Applies only when a killing happens during the commission or attempted commission of the underlying
felony
iii. Must be proximity in time, place and must be “But For” causation.
e. Hypos:
i. Tom, Dick, and Harry do a “push-in” robbery. During the course of the robbery, Tom intentionally shoots
the home-owner, Mary, killing her.
1. All three – Felony Murder
ii. Tom, Dick, and Harry do a “push-in” robbery. During the course of the robbery, Tom accidentally drops his
gun, which goes off, hitting and killing the home-owner, Mary.
1. All three – Felony Murder
iii. Tom, Dick, and Harry do a “push-in” robbery. To get Mary to stand still, Tom fires a warning shot through
the ceiling, killing the upstairs neighbor Joe.
1. All There – Felony Murder
 iv. Tom, Dick, and Harry do a “push-in” robbery. The homeowner, Mary, fires a warning shot through the
ceiling, accidentally killing the upstairs neighbor Joe.
1. Agency – No Felony Murder
2. Proximate – Yes, Felony Murder
v. Tom, Dick, and Harry do a “push-in” robbery. This time, Harry waits in the car as the “get-away” driver. In
the house, Tom shoots Mary.
1. All Three – Felony Murder
vi. Tom, Dick, and Harry do a “push-in” robbery, which goes off without injury. However, as Tom, Dick and
Harry are speeding away from the robbery, Harry drives over a little girl who runs into the street, killing
her?
1. All Three – Felony Murder
vii. Tom, Dick, and Harry do a “push-in” robbery, which goes off without injury. This time, they manage to
make it to the next state 200 miles away without any problems. They stop at a diner to eat. Later, Harry’s
backing out the parking lot when he runs over a little girl, killing her.
1. Res Geste Rule – No Felony Murder
viii. Tom, Dick, and Harry do a “push-in” robbery. This time, as soon as Tom, Dick, and Harry push their way
into the house, Mary, terrified, has a heart attack and dies.
1. All three Felony Murder
ix. Tom, Dick, and Harry do a “push-in” robbery. This time, as soon as Tom, Dick, and Harry push their way
into the house, Mary, terrified, has a heart attack and dies.
1. This was the Stamp case - Yes, felony murder all three
x. Tom, Dick, and Harry decide a push-in robbery is too dangerous. Instead, they decide to con Mary into
giving them the password to her bank account. When Mary opens her next bank statement, sees its empty,
and realizes she’s been conned, she has a heart attack.
1. No Felony Murder
xi. Tom, Dick, and Harry do a push-in robbery, which goes off without a hitch. However, while fleeing from
Mary’s house, the police give chase. During the chase, the police car runs over a little girl, killing her.
1. No Felony Murder, Agency Rule
2. Yes Felony Murder, Proximate Rule
 xii. Tom, Dick and Harry are hired by Elliott Peale to burn down his store. (The store is losing money, and Elliott
Peale hopes to collect the insurance money.) Unfortunately, a homeless guy who was sleeping behind the
store asphyxiates from the smoke and dies.
1. All 4 – Arson is enoumerated felony
xiii. Tom, Dick, and Harry might be sick of doing crimes together. They’re always fighting these days. In fact,
Tom would love nothing more than to punch Dick in the fact right now. If Tom punches Dick in the face, and
Dick falls back and hits his head on the concrete and dies, can Tom be convicted of felony murder on the
theory that the punch was an “inherently dangerous felony?”
1. Merger Rule – No felony murder
f. Felony Murder Policy ?
i. Do we need felony murder? Should we consider abandoning it, like England?
ii. Or at least limiting it to certain enumerated felonies (robbery, kidnapping, rape, arson)?
iii. Or getting rid of the proximate cause approach to felony murder?
C. Policy Questions . Hypos on Common Law 1st / 2nd Murder
i. Thought ? Is every murder commeted with “intent to kill” (inferred from use of a gun – premeditated and deliberate?)
ii. Thought ? About half the states that use premeditation to distinguish 1 st and 2nd degree murder still say premeditation can happen
in an instant, and the jury gets to decide.
1. Thought ? Why should we trust juries with this issue?
2. Thought ? And does the grading murder based on whether there was premeditation/deliberation even make sense policy-
wise?
iii. Hypo - Defendant # 1 is having a bad day. When he sees a little girl sitting on a bridge and laughing, he impulsively pushes her over
the bridge into the river. She drowns. – which degree?
iv. Hypo - Defendant # 2 sees how much pain his terminally ill mother is in, and after careful consideration, gives her an overdose to
end her misery. – which degree?
v.
D. MPC Murder – MPC 210.2
i. Murder is purposefully or knowingly causing the death of another; or
ii. Recklessly causing death under circumstances manifesting extreme indifference of value of human life; presumed in death occurs
during enumerated felony.
 iii. No first or second degree murder.
iv.
E. Manslaughter
i. If murder is any intentional killing, what mitigates murder to the lesser offense of:
1. 1) Voluntary manslaughter, or an intentional killing “excused” by the heat of passion killing; or
2. 2) Involuntary manslaughter, or a non-intentional but reckless killing?
ii. Murder to manslaughter, much lesser punishment
1. This is what many homicide trials are about
2. And also about what evidence is admissible
iii. Voluntary Manslaughter –
1. If murder, especially 1st degree murder (premeditated and deliberate) is “cold blooded,” voluntary manslaughter is “hot
blooded.”
2. There’s still the intent to kill, but the person was acting in the heat of passion.
3. Predominant Common Law Rules
a. GIROUARD v. STATE
i. For provocation to be “adequate,” it must be “calculated to inflame the passion of a reasonable man and
tend to cause him to act for the moment from passion rather than reason.”
ii. Although we agree with the trail judge that there was needless provocation by Joyce, we also agree ... That
the provocation was not adequate to mitigate second-degree murder to voluntary manslaughter.
b. Four requirements at common law:
i. Defendant acted in heat of passion
ii. The heat of passion was the result of “adequate provocation”
1. Predominant CL approach permits only a few “adequate provocation” triggers:
a. Aggravated assault or battery
b. Mutual combat
c. Commission of a crime against a close relative
d. Illegal arrest
e. Discovery of spouse committing adultery.
iii. The defendant did not have an opportunity to cool off
 1. “Predominant” CL approach : strict time limits
a. State v. Gounagias (Wash. 1915), for example. (must be “before sufficient time has elapsed
for the blood to cool and reason to reassert itself)
b. People v. Ashland (Cal. 1912) (17 hrs to track down rapist too long to claim provocation)
2.
iv. There was a causal link between the provocation, the passion, and the homicide
c. Hypo: John’s at the local BLS nightspot when Louis starts shoving him around and kicking him. John, getting
angrier and angrier, pulls out his gun and shoots Louis, killing him – CL Manslaughter? … yes, manslaughter
i. EXAM NOTE – What about self defense? No - escalation
d. Hypo: Sam sees a text on his daughter’s Iphone and learns that his daughter, who is only 12, has been “seeing” the
next door neighbor, who’s 36. Blowing his top, Sam rushes next door and stabs the neighbor, killing him. Early
common law result if Sam claims he’s guilty of manslaughter, not murder? - Manslaughter
i. Suppose he misread the text?
e. Hypo: Ian goes to his girlfriend’s house and finds her in bed with another guy. Unable to control himself, Ian picks
up a lamp and hits his girlfriend over the head, killing her. - Early common law result if Ian claims he’s guilty of
manslaughter, not murder?
f. Hypo: James catches his wife having an affair with his brother. James punches her in the face. She calls the cops
and has him arrested for assault. Can James claim provocation? – provocation only available for homicide
g. Hypo: Steven catches his wife having sex with the UPS guy. Pissed off, Steven goes outside and rams his car into
the UPS truck. He’s charged with criminal mischief. Can James claim provocation?
h. Hypo: Suppose he hires a hitman who kills the mailman and makes it look like an accident. If James is arrested, can
he claim he’s guilty only of voluntary manslaughter, not murder?
i. Hypo: Dick is out with some guys when Joshua begins taunting him, calling him a “girlie man” again and again. Dick
pulls out his AK-47 and kills Joshua. Common law result if Dick claims he’s guilty of manslaughter, not murder?
4. Minority Common Law Rules
a. MAHER v. PEOPLE
i. “In determining whether the provocation is sufficient or reasonable, ordinary human nature, or the average
of men recognized as men of fair average mind and disposition, should be taken as the standard.”
 ii. Jurors from the mode of their selection, coming from the various classes and occupations of society, and
conversant with the practical affairs of life, are, in my opinion, much better qualified to judge the
sufficiency and tendency of a given provocation and much more likely to fix, with some degree of accuracy,
the standard of what constitutes the average of ordinary human nature, than the judge whose habits and
course of life give him much less experience of the workings of passing in the actual conflicts of life.
b. “Adequate provocation” - Would (might?) a reasonable (ordinary) person be provoked into acting out of passion? If
so, it’s a jury issue.
i. “Minority” CL approach: flexible, but not words
ii.
c. The defendant did not have an opportunity to cool off
i. Minority” CL approach: up to a jury, within reason
5. MPC – Manslaughter – MPC 210.3
a. Manslaughter is recklessly causing the death of another person; or
b. EED - “under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation
or excuse.”
i. A) It has to be committed under EED
1. Diagnosable mental illness not required, just evidence D experienced intense feelings, sufficient to
cause loss of control
2. This component is subjective
3. Remember Guthrie? In MPC jurisdiction, he might be able to argue he’s only guilty of manslaughter
ii. B) There has to be a reasonable explanation for the EED (or EMED)
1. This component is objective (mostly). Mostly, because it’s determined from viewpoint of a
(reasonable) person in actor’s situation under circumstances as he believes them to be.
2. But who is this mythical reasonable person?
3. The closer the instruction is to reasonable person the more “objective”. The closer to Subjective,
the closer to the actual person.
iii. No triggering event or provocation required. - Assuming D can show by a preponderance the two
components, D is entitled to have the jury/factfinder consider the lesser charge of manslaughter.
c. Case: PEOPLE v. CASASSA (1980)
 i. Facts: Cassassa dated Victim, then rejected, stabbed her after she rejected a gift of wine.
ii. Note: action influenced by an extreme emotional disturbance is not one that is necessarily so
spontaneously undertaken. Rather, it may be that a significant mental trauma has affected a defendant’s
mind for a substantial period of time, simmering in the unknowing subconscious and then inexplicably
coming to the fore
iii. Holding: EED still has to be considered from a reasonable person standpoint.
d. POLICY QUESTIONS
i. Which approach is best? The predominant CL approach? The minority CL approach? The MPC approach?
iv. Involuntary Manslaughter
1. Homicide that was committed with criminal negligence, or recklessly (but not so reckless as to constitute gross
recklessness/depraved indifference).
2. But what’s the difference between recklessness (involuntary manslaughter) and gross recklessness/depraved indifference
(murder)?
3. Historically an absence of clarity in Mens Rea
a. Some courts required that the defendant at least disregarded the risk of death (what we today would call reckless).
b. Other courts concluded someone could be guilty of manslaughter even if they were only “criminally negligent.”
c. Still others, ordinary negligence would do.
4. Case: Commonwealth v. Welansky (1944)
a. FACTS: Bar Boy set building on fire by accident.
b. Issue: Defendant was charged with numerous counts of involuntary manslaughter based on overcrowding,
installation of flammable decorations, absence of fire doors, and failure to maintain proper means of egress
c. Holding: It was enough to prove that death resulted from his wanton or reckless disregard of the safety of patrons
in the event of fire from any cause.
d. Thought? Was Defendant “wanton or reckless” in causing death?
e. Note: if a particular D is so stupid…that in fact he did not realize the grave danger, he cannot escape the
imputation of wanton or reckless conduct …if an ordinary man under the same circumstances would have realized
the gravity of the danger.
5. Thought ? - What homicides should we punish as “involuntary manslaughter”?
a. Reckless homicides?
 b. (Criminally) Negligent homicides (gross deviation from the standard of care of a reasonable person)
c. Ordinary negligent homicides (failures to exercise “ordinary care” or “ordinary caution”)
6. Case: STATE v. WILLIAMS 1971
a. Facts: Thought baby had toothache (btw Sept 1 and Sept 12) - did not know how serious. Did not seek medical
attention as they were concerned the baby would be taken away.
b. Holding: Under [our] statutes…the crime [of involuntary manslaughter] is deemed committed even though the
death of the victim is the proximate result of only simple or ordinary negligence.
c. Note: The concept of simple or ordinary negligence describes . . . The kind of caution that a man of reasonable
prudence would exercise under the same or similar conditions. If, therefore, the conduct of the defendant,
regardless of his . . .good intentions and good faith, fails to measure up to the conduct required of a man of
reasonable prudence, he is guilty of ordinary negligence.
7. MPC and Involuntary Manslaughter
a. MPC 210.4 - A killing is involuntary manslaughter if it is “reckless,” i.e., the defendant consciously disregarded a
substantial and unjustifiable risk of death.
b. A killing is “negligent homicide” if it was committed negligently, without awareness of the risk, the failure to notice
being a gross deviation
c. Thought ? = Just thinking about the MPC’s decision to distinguish a reckless homicide from a negligent homicide,
how should we categorize a parent who forgets an infant is in the back seat and the infant dies a few hours later
from the heat?
d. Thought? - Is there really difference between recklessness homicide (involuntary manslaughter) and a gross
recklessness homicide (depraved indifference 2d degree murder?)
v. UNITED STATES v. FLEMING
II. THE DEATH PENALTY
A. The Current Context
i. During the colonial period, all homicide was punishable by death.
ii. Execution was automatic for any homicide.
iii. But homicide wasn’t the only capital offense, at least until the late 1600s
iv. At the time the Constitution was ratified in 1787, the availability of the death penalty was taken as a given.
v. 5th Amendment: no one “shall be deprived of life …without due process of law.”
 vi. By 19th century, homicide had been divided into types to limit capital punishment. First into murder and manslaughter, and then
murder into first degree murder and second degree murder.
vii. No real constitutional scrutiny of capital punishment. It just was. The Supreme Court occasionally addressed whether the particular
mechanics of execution were “cruel and unusual.” But as to whether capital punishment itself was “cruel and unusual,” the
question wasn’t asked.
viii. Eventually, death no longer automatic for first degree murder, but discretionary, up to jurors.
ix. Executions probably reached their peak in 1935 – 199 executions that year.
x. Between 1935 and 1970’s, growing concern about fairness. There’s a growing abolitionist movement.
xi. One big elephant in the room was race.
B. Impact of Furman
i. Case: Furman v. Georgia (1972)
1. SCOTUS – 5 to 4 agreement on decision of unconstitutionality of death penalty, no agreement on reasoning
2. 3 Justices – too much randomness of the Juries in determing death penalty
3. 2 Justices – Death Penalty not constitutional at all
ii. Georgia Approach – More guidance and structure
1. Case: Gregg v. Georgia SCOTUS - DP is not cruel and unusual under all circumstances
a. Trial is Bifurcated – First a phase to determine guilt, then a phase to determine penalty
b. Jurors are given guided discretion and limits
c. Georgia Required that bifurcated Jury find Beyond Reasonable Dout the existenace of 1 out of 10 aggravating
factors as defined by statute.
iii. North Carolina / Louisiana Approach – Make Death Penalty Mandatory.
1. Woodson v. North Carolina – SCOTUS struct down NC rule
iv. Additional Cases:
1. Coker v. Georgia – No death Penalty for Rape
2. Enmund v. Florida – No Death Penalty for Accomplis for Felony Murder
3. Tison v. Arizona – DP for Felony Murder is OK, but need a plus factor
4. Booth and Payne – Decisions on what the jury can know about the victim
5. Atkins v. Virginia – No Death Penalty for Mentally Retarded
 6. McCleskey v. Kemp – SCOTUS – It is required to show that the defenadant was personally discriminated against, not just the
trends of death penalty in regards to race.
a. Race of defendant matters
b. Race of victim really matters
C. Abolitionist Movement
i. Unintended Consequences of attaching the dealth penalty is that there is significantly more Life Without Parole then death penalty,
but no really work towards reducing LWOP. No big move to protect people from spending life in jail. In fact more crimes have been
added to LWOP
ii. Pittsburgh Shooting – Fed Death Penalty in States that do not allow death.
1. Feds can still go for DP, but the jury may not find. Example – 1 st wTC bombing.

Chapter 4 - Rape

I. Background
A. Traditional Definition: a man is guilty of rape if he has sexual intercourse with a woman (other than his wife) by physical force (or threat of
physical force) against her will and without her consent.
i. Ex: Central Park Jogger
ii. But most rape/sexual assault/sexual misconduct/sexual harrassment cases do not involve strangers. Or weapons.
iii. Before the 1980s there was no vocabulary for Date Rape or Acquantance Rape
iv. Rape – the traditional rule: a man is guilty of rape if he
1. has sexual intercourse with a woman (other than his wife)
2. by physical force (or threat of physical force)
3. against her will (i.e., she resisted), and
4. without her consent (i.e., she resisted)
5. also vaginal intercourse with a female incapable of consent due to age or mental condition;
6. also vaginal intercourse by deception re the act itself, not deception in the inducement
B. Difficulty in Rape as a crime
i. Rape originally a property Crime
 ii. Stimaga attached to Rape
1. Jurisdictions don’t disclose names / change names
iii. Crime and Punishment – looking at the victims.
1. 18 y.o. virgin
2. 32 y.o. mother of two
3. 21 y.o. topless dancer coming from the club
4. 22 y.o. ex-girlfriend
iv. Thought ? – Term “sexual assault” help?
v. Thought ? – Can you rape someone and not be a “rapist”
C. Proving Common Law Rape
i. Physical force (or threat of force)?
ii. Whether it was against the person’s will? – required proof of resistance
iii. Whether it was without consent?
iv. Nugget: Anne Coughlin - There was almost a “woman’s failure to actus reus defense.”
v. Case Note – Brown v. State (Wis 1906) )- Not only must there be entire absence of mental consent or assent, but there must be the
most vehement exercise of every physical means or faculty within the woman’s power to resist the penetration of her person, and
this must be shown to persist until the offense is consummated
vi. Case Note – People v. Dohring (NY 1874) - a woman, aware that it will be done unless she does resist, does not resist to the extent
of her ability on the occasion, must it not be that she is not entirely reluctant?
II. Rape Reform / Transition
A. MPC 1962 – Sexual Contact other than vaginal intercourse and degrees of rape
B. Gender Reform
C. Removing Marital Privilege
D. Trends
i. Reducing the Amount of force required
ii. Reducing / eliminating resistance requirement
iii. Affirmative consent / absence of consent
E. Case: State v. Rusk (1981)
i. Facts: Rusk met Pat at bar, Pat took Rusk home. Rusk took keys, no evidence of force
 ii. Only force was light choking, but Jury found guilty – apl ct upheld
1. Her failure to resist was excused
iii. Judge Cole’s Dissent - This was a married woman with children. . . He had not forced his way into her car; he had not taken
advantage of a difference in years or a state of intoxication or mental of physical incapacity on her part. He did not grapple with
her. She got out of the car, walked with him across the street and followed him up the stairs to his room. She certainly had to
realize they were not going upstairs to play Scrabble
F. 50% of states still require force
G. 50% of state still require proof of resistence
III. STATUTORY FRAMEWORKS – GET FROM BOOK
A. CALIFORNIA PENAL CODE, TITLE 9 (1950)
B. MODEL PENAL CODE PROPOSED OFFICIAL DRAFT (1962)
C. CALIFORNIA PENAL CODE, TITLE 9 (2016)
D. NEW YORK PENAL LAW (2016)
E. WISCONSIN STATUTES (2016)
IV. ACTUS REUS
A. Thought ? - Should we define rape to require the use of “force”? If so, what do we mean by force? If not, do we use some other “bright
line” instead?
B. Thought ? – What Actus Reus should be required? Force? Non-Consent? Lack of affirmative consent? Resistance?
C. Thought ? - Or maybe include a lesser degree offense for non-forcible sex without consent?
D. Thought ? - How about no sex without affirmative consent? What does affirmative consent mean?
E. Thought ? If women ruled the world, would we define rape differently?
F. Thought ? If we didn’t have the baggage of history, if we were starting afresh, what sexual conduct would we criminalize? Would we
require proof of force?
G. Case: STATE IN THE INTEREST OF M.T.S. (NJ 1992)
i. Facts: Victim 15 yo girl, Boy instered and thrust 3 or 4 times
ii. Holding: Enough for force requirement
iii. Result – Reading “Force” out of the statute and “Lack of Consent” into the statute
iv. What does this mean? That sex without “manifestations of consent” is rape?
v. Doesn’t this violate the rule of legislativity?
 H. Affirmative Consent
i. Words and Actions in Totality
ii. A Verbal “NO” negates all Affirmative Consent.
I. Deception
i. Case Note – People v. Evants – Take away – Sex through deception in the inducement is not a crime.
J. Hypos
i. John spots a woman getting into her car late at night. He comes up behind her, forces her into the car, forces her to drive to a back
alley, and forces her to have oral sex. She fights back, but is overcome.
1. Result under original definition of rape? - NOT RAPE
2. Under more modern approaches? - RAPE
3. If he also forces her to have vaginal sex? – Now it is RAPE
ii. John spots a woman getting into her car late at night. He comes up behind her, orders her to get into the car, orders her to drive to
a back alley, and orders her to have sexual oral and vaginal sex. Terrified what might happen if she resists, she does not resist.
1. Traditional – Not Rae
2. Modern – Rape
iii. John spots a woman getting into her car late at night. Wielding a knife, he comes up behind her, orders her to get into the car,
orders her to drive to a back alley, and orders her to have sexual oral and vaginal sex. Terrified of getting AIDS, she begs him to at
least put on a condom.
1. Traditional – Not Rape
2. Modern - Yes
V. MENS REA
A. Case: COMMONWEALTH v. SHERRY (1982)
i. Facts: Multiple Drs. And Nurse traveled to Rockport
ii. Lesson: The trial judge stated that the jury “should look at acts of the defendants…and not look at the case from the point of view
of the defendants’ perceptions
iii. Note: Mass later adopted a strict liability standard.
B. Case: COMMONWEALTH v. FISCHER (1998)
i. Facts: College students, sex before and after dinner
C. Mistake of Fact
 i. Most states follow the common law approach to mistakes of fact when it comes to rape (even though consent no longer an
element).
ii. One is not guilty of rape if one:
1. Honestly believes consent is present; and
2. Reasonably believes consent is present.
iii. Thought ? - If we’re fine with honest and reasonable mistake defense, how would we defend Rusk in State v. Rusk?
iv. Thought ? - Would it be a problem if he had this defense?
VI. Statutory Rape
A. English history, 10 was the magic number
B. Really about incapacity to consent
C. This country, statutory rape ages vary: 12, 14, 16
D. Most states treat statutory rape as purely strict liability
E. Others allow some reasonable mistake of defense
F. Some apply hybrid, like MPC, depending on age.
G. Romeo and Juliet laws
VII. Rape Shield Laws
A. Prior – Victim would be put on trial
B. After Laws – Exclude any victim prior history, except as it relates to the defendant
C. Excluding complainant’s reputation for chastity?
D. Excluding complainant’s prior acts of sex?
E. Excluding complainant’s prior history of sex with defendant?

Chapter 6 – Causation & Attempt

I. Foreseeability and Coincidence

A. Notes – William Barns – In 1966, Paralyzes Officer during Robbery, 16 years for attempted murder. Officer paralyzed, but survived. 2 Car
accidents, died from urinary tract infection.
 i. DA arrests Barns 41 years after shooting and charges Barnes with Murder
1. Double Jeopardy?
2. Rationales for Punishment?
B. Causation is mostly a CL issue
i. Issue in “Result” crimes (homicide)
ii. Implicit in Actus Reus – Actus Reas (conduct causing harm) + Mens Rea = Crime
iii. Causation is rarely an issue, if can be very obvious.
iv. Causation can lead to different punishments
1. Drunk Driver, no accident – just DWI
2. Drunk Driver, with accident – vehicular manslaughter
v. To be guilty of a result crime, defendant must be
1. The actual cause of the result
2. The proximate cause of the result
a. More strict then tort law
b. Was result reasonably foreseeable
vi. Note, you have to take victim asyou get him. No defense for thin skull
vii. Hypos
1. D1 shoots victim in stomach. D1’s friend comes along after and drives victim to the woods to die so that no one can come
to V’s aid. V dies. Is D1’s friend guilty of homicide?
a. Not if friend would die anyways (if took to hospital)
2. D1 gives heroin go V, who is already flying on several other drugs. V overdoses, but it is impossible to say whether V would
have died but for the heroin. Is D1 guilty of homicide?
a. No. No Beyond Reasonable Doubt
C. Hypos p 603
i. No
ii. No (Not foreseeable)
iii. No
iv. Yes
v. Yes
 vi. Six
1. A – yes
2. B – Yes (class no)
3. C – No
4. D – No
5. E – Maybe
6. F – No
vii. Yes
viii. Yes
D. Case - PEOPLE v. ACOSTA (1991)
i. FACTS – During car chase, two police helicopters ran into each other
ii. Charge – depravied indifference mens rea
iii. Reversed on mens rea
E. Case – People v. Arzon
i. Fire stared on 5th floor, another fire started on 2nd floor
ii. Celic responded to 5th floor fire, but overcome with smoke from 2nd floor.
iii. Rule - “it is not necessary that the ultimate harm be intended by the actor. It will suffice if it can be said beyond a reasonable doubt,
as indeed it can here be said, that the ultimate harm is something which should have been foreseen as being reasonably related to
the acts of the accused.”
iv. Might be an odd case
F. Case - PEOPLE v. KEVORKIAN – Did Kevorkian “cause” the deaths.
i. But for Cause – Yes
ii. Human Action Intervening? – So no proximate cause
G. COMMONWEALTH v. ROOT – Drag racing Case (outlier)
i. But for Cause – Yes
ii. Proximate Cause - NO
H. STATE v. McFADDEN
i. But for Cause – Yes
ii. Proximate Cause – Yes
 I. MPC 2.03(a)
i. Defers to states on prox cause
ii. A 100% MPC jurisdiction, the Mens Rea requirements define the work (in homicide cases)
II. ATTEMPT
A. Introduction
i. Model Penal Code §5.05(1)
ii. Model Penal Code and Commentaries, Comment to §5.05 at 490 (1985)
iii. Retributionist – would not punish Attempts
iv. Utilitarian – would punish attempts
v. Imperfect Attempt – Missing the shot
vi. Incomplete – Not taking the shot
B. Mens Rea
i. Intentional and Purposeful
1. Intent to commit underlying crim
2. No such thing as a reckless or negligenct attempt
ii. SMALLWOOD v. STATE – Man w/ Aids raped 3 women - r only if there was sufficient evidence from which the trier of fact could
reasonably have concluded that Smallwood possessed a specific intent to kill at the time he assaulted each of the three women. 
C. Actus Reus
i. Distinguishing between preparation and cimrinal intent
ii. Thoughts  Mere Preparation  Perpetration  Completion
iii. Historically
1. The accused must have taken the last step he was able to take along the road of his criminal intent. R. v. Elgeton (1855)
2. He must have done all he intended to do and was able to do to effect his criminal purpose.
3. Anything short of this: innocent preparation.
4. A criminal attempt is an act that shows criminal intent on its face, res ipsa loquitur. King v. Barker
iv. Old Tests (Some state still follow)
1. The Last Act Test – Criminal once defendant has taken the last necessary step or partially completed a series of acts
2. Unequivocal Conduct Test – Act on its face must reflect criminal intent
3. Dangerous Proximity Tests – Defendant must be at point of no return or pretty close to it.
 v. Case – People v. Rizzo (NY 1927)
1. Facts – Driving around looking for Payroll guy, never find him
2. Rule - The law must be practical, and therefore considers those acts only as tending to the commission of the crime which
are so near to its accomplishment that in all reasonable probability the crime itself would have been committed, but for
timely interference.
3. Test is “Dangerous Proximaty Test” or “Last Act Test”
vi. MPC 5.01 – “Substantial Step” – 24 states and most fed courts
1. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for
commission of the crime, he:
a. c) purposely does or omits to do anything which, under the circumstances as he believes them to be, is an act or
omission constituting a substantial step in a course of conduct planned to culminate in commission of the crime.
2. Step must be strongly corroborative of criminal purpose
3. Sustantial Step + Criminal Mind (Mens rea)
vii. MPC 5.01 (2)
1. the following, if strongly corroborative of the actor’s criminal purpose, sufficient as a matter of law:
a. (a) lying in wait, searching for or following the contemplated victim of the crime;
b. (b) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its
commission;
c. (c) reconnoitering the place contemplated for the commission of the crime;
d. (d) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed;
e. (e) possession of materials to be employed in the commission of the crime, which are specially designed for such
unlawful use or which can serve no lawful purpose of the actor under the circumstances;
f. (f) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the
place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of
the actor under the circumstances;
g. (g) soliciting an innocent agent to engage in conduct constituting an element of the crime.
viii. MPC in Nutshell
1. With purpose of committing underlying crime
2. Defendant commits a voluntary act (or omits an act where he has a duty to act)
 3. Act amounts to a substantial step.
4. An act amounts to a substantial step if it is strongly corroborative of criminal purpose.
ix. Case – US v. Jackson (2d Cir 1977)
1. Facts – tried to rob bank, but didn’t do so on June 14 th because too crowded, didn’t do so on June 21 st because the FBI
surviellance
2. Holding – Passed beyond stage of preparation
3. Substantial Step getting in the car
D. Abandonment – Changing one’s mind
i. MPC 5.02 (4) Affirmative defense if defendant abandoned his effort or prevented the crime’s commission under circumstances
manifesting a complete and voluntary renunciation of criminal purpose.
1. Means that you cannot use if you change your mind as you see it is too dangerous
2. Also meants that you cannot be dissuaded – talked out of rape? Not an affirmative defense
E. Impossibility / Mistakes
i. Traditional rule permitted legal impossibility and factual impossibility.
ii. Modern rule is to allow neither, except maybe pure legal impossibilities.
iii. A rule of thumb: If defendant would be guilty of a crime if actual circumstances were as he believes them to be, defendant can be
convicted of attempt.
iv. Case Note – People v. Dlugash – D1 shoots V in head, falls to floor, after 5 mins Dlugash fires bullet in V for good measure
1. Victim already dead? – Yes then not murder, no caustation, but attempted murder – yes
2. Hypothetically – thinks V is dead, but is not – 2 nd degree murder
v. Hypo - Abbey finds out her husband is having an affair and, intending to kill him, pulls out a gun and shoots him. In fact, it just
happens there were no bullets in the gun. Guilty of attempted murder?
1. Yes
vi. Wicca girls attempt to cast spell on prom queen – Not guilty

Chapter 7 . ACCOUNTABILITY FOR THE ACTS OF OTHERS

I. Group Criminality
A. Accomplice – Purpose plus Aid
 B. Facilitator – Knowledge (not purpose) plus aid
C. Conspirator – purpose plus agreement plus overt act
i. Pinkerton – Criminally Liable for underlying crimes of co-consprirators as long as within scope and foreseeable consequence.
II. Aiding and Abetting
A. Background
i. Getting everyone responsible w/ culpable mental state, gets everyone else
ii. Crime must happen
1. Can aid and abbett an “attempt” crime
iii. The charge will be aiding and abetting
iv. Nugget: Prof would add “Aiding and Abetting” to every count
v. Accessories after the fact are treated differently, it is a separate charge.
vi. Nugget: If it takes two people on opposite sides – then one is not guilty of aiding and abetting the other.
1. Seller / Buyer; Hooker / John; Bribe Maker / Taker; Abortion Doc / Pregnant woman.
B. Mens Rea
i. Rule: Generally, a defendant must have a purpose to assist in the criminal venture.
1. Note: Knowledge without purpose is insufficient
2. Note: Assist w/ Goal of having the venture to succeed, or at least the conduct to happen
3. Nugget:
a. A commits crime having Mens Rea and Actus Rea
b. B helps A
i. Aiding – Must have Purpose or Want success
ii. Underling Crime – Have min mens rea of base crime
ii. Case – Hicks v. US (1893) – Men on horse back
1. Finding – The intention of the words matter (to support the crime), not the intention to use words (not the intention to
speak, then event happens)
2. Note – Have to want conduct to happen. This is a “Purposefully” mens rea – knowing is not enough, you are involved
iii. Case – State v. Gladstone (1970)
1. Facts – Informant went to Gladstone for drugs, Gladstone gave map to Kent.
2. Issue – Gladstone aid and abett?
 3. Holding – No nexus between Kent and Gladstone to establish aiding and abetting. Gladstone did not have a purposeful
Mens Rea
iv. Case Note US v. Peoni (1938) - To be guilty of aiding and abetting, it is necessary that the defendant “in some sort associate himself
with the venture, that he participate in it as something that he wishes to bring about, that he seek by his action to make it
succeed.”
v. Nugget: An omission is aiding and abetting if there is a duty.
vi. Hypo - I’m a landlord. I know that McDuff wants to rent my apartment to use as a stash house for his drug business. If I say yes, am
I guilty of aiding and abetting his drug business?
1. No
vii. What if I say yes, but charge him double?
1. Yes
viii. Weird Cases
1. Case – Rosemond
a. If and only if 1) takes an affirmative act in furtherance of that offense 2) with intent of facilitating the offense
commission
b. Holding - Intent - defendant choose to participate w/ full knowledge, not that he would have planned it differently.
2. Case – McKay
a. Facts – Boilder explodes
b. Aiding and abetting manslaughter due to criminal negligence
c. Finding - Manslaughter is likewise committed if an unintentional killing is occasioned by gross negligence in the
doing of an act lawful in itself. There is no inherent reason why, prior to the commission of such a crime, one may
not aid, abet, counsel, command, or procure the doing of the unlawful act or of the lawful act in a negligent manner
3. Case – Roebuck
a. whether it is possible, as a matter of law, to be convicted as an accomplice to third-degree murder.
b. Indeed, an accomplice to third degree murder does not intend to aid an unintentional murder; he intends to aid a
malicious act which results in a killing
C. Actus Reus – Action, not just wish
i. Common Law - With intent that venture succeed, defendant provides actual assistance.
1. Physical Conduct
 2. Psychological Encouragement (i.e. Man Up!, Don’t be a Pussy)
3. Omission of a duty
4. Assistance has to assist, has to matter; however trivially.
5. At CL, aiding and abetting required that the act in fact aids or facilitates, however minimally.
ii. MPC 2.06 – Complicity - (2) A person is legally accountable for conduct of another when:
1. a. acting with requisite culpability for commission of the offense, he causes an innocent/irresponsible to commit the crime;
or …. C. he’s an accomplice
2. (3) A person is an accomplice if, with the purpose of promoting or facilitating an offense, he:
1. Solicits another to do it? (Gotti?)
2. Aids or agrees or attempts to aid such person in planning or committing it. (Gotti’s soldiers?)
3. Having a legal duty to prevent, does nothing. (the parent who ignores abuse)
3. MPC – two factos
a. Purpose to facilitate or promote offense
b. Aids (Agrees to Aid / Attempts to aid)
4. MPC and Result Crimes
a. Like CL, MPC seems to embrace two mens rea requirements, and does so explicitly for result crimes.
b. MPC 2.06 (5) “When causing a particular result is an element of the offense, an accomplice in the conduct causing
such result is an accomplice. . . If he acts with the kind of culpability, if any, with respect to that result that is
sufficient for the commission of the offense.”
5. MPC, it seems sufficient if the defendant attempts to aid, even if the attempt is ineffectual and unknown to the principal
actor.
6. (6) A person is not an accomplice if…
b. His conduct is inevitably incident to the offense.
c. He terminates his complicity and
i. undoes what he’s done; or
ii. timely alerts the authorities.
III. Facilitation
A. Nugget: Prof LOVES Facilitation
B. Aiding and Abetting requires a mens rea of “purposefully”; Facilitation only requires a mens rea of “knowingly”
 i. Hypo – landlord rents a room to drug dealer knowingly – Facilitation
C. NY Penal Code 115.05 - Knowingly making commission of crime easier
D. Accomplice (purpose plus aid)
i. Actual aid, however slight, under traditional approach
ii. Under MPC, attempt to aid or agreement to aid will suffice
E. Facilitator (knowledge, but not purpose, and aid)
IV. Conspiracy
A. Summary - to be guilty of conspiracy, prosecution must prove the defendant joined the conspiracy (actus reus) with the purpose (mens rea)
of furthering the criminal activity, and that a coconspirator committed an overt act (actus reus).
B. Actus Reas - the actus reus is joining an unlawful agreement. (have to prove joining)
i. Case – Perry
1. Family financially dependant on Young
2. Young slept in room with 8 yo daughter, committed oral, vaginal and anal sex
3. Holding – no evidence of conspiracy
4. Dissent – plenty of evidence of conspiracy
ii. Nugget: Proving conspiracy
1. Will almost never be proof of an agreement
2. Can infer from circumstantial evidence that there was a meeting of the minds – can be an implicit agreement.
iii. Rule – Actus Reus of conspiracy is:
1. A) Defendand Joins an agreement to commit a crime (AND – in most jurisdicitons)
2. B) A conspirator (does not have to be defendant) commits an “overt act in furtherance of the conspiracy”
a. Almost any overt act will suffice
iv. Hypo
1. During an urban riot, one teenager shouts to three of his friends, “There’s great stuff in that store, and the owner’s a cheat.
Let’s go get it!” All four run into the store and start grabbing goods. Seeing the looting, two passersby, strangers to each
other, enter the store and join in the looting. Are the four teenagers guilty of conspiracy?
a. Yes
2. Are the two passersby guilty of conspiracy with each other?
a. No
 3. Are they guilty of conspiracy with the four teenagers?
a. No
C. Mens Rea
i. Case – Lauria
1. Facts – Call girls using Lauria’s answering service
2. Issue – Conspiracy?
3. Holding- No
a. Required Mens Rea is – Purposful Have to want / intent of success – to further criminal enterprise
D. MPC 5.03
i. A person is guilty of conspiracy if with the purpose of promoting or facilitating a crime he:
1. Agrees that they will commit the crime; or
2. Agrees to help in committing the crime.
3. And……
4. A member of the conspiracy commits an overt act in furtherance of the conspiracy.
ii. MPC allows an affirmative defense for renunciation; CL generally does not.
E. Thought? Can someone conspire with an undercover officer, for example?
i. MPC 5.04 and Majority – Yes
ii. Fed – NO!
F. Thought? And can someone be prosecuted for conspiracy and the underlying crime?
i. Yes
ii. PINKERTON goes further
G. Pinkerton - A person can be held responsible for the acts of coconspirators so long at the acts fall within the scope of the conspiracy or were
a foreseeable consequence of the conspiracy
i. Uses conspiracy to find someone guilty for the substantive crime
H. Spokes v. Chains
V. Criminal Solicitation
A. A person is guilty of solicitation if, with the purpose of promoting or facilitating a crime, he requests or commands another person to
commit a crime.
B.
Chapter 8

A. INTRODUCTION: THE CONCEPTS OF JUSTIFICATION AND EXCUSE

B. PRINCIPLES OF JUSTIFICATION
1. Protection of Life and Person
UNITED STATES v. PETERSON
PEOPLE v. GOETZ
STATE v. KELLY
STATE v. NORMAN
STATE v. ABBOTT
UNITED STATES v. PETERSON
2. Protection of Property
PEOPLE v. CEBALLOS
3. The Use of Force in Law Enforcement
C. PRINCIPLES OF EXCUSE
1. Introduction: What Are Excuses and Why Do We Have Them?
2. Duress
STATE v. TOSCANO
MODEL PENAL CODE
Regina v. Ruzic, [1998] D.L.R.4th 358
3. Intoxication
Roberts v. People, 19 Mich. 401, 419 (1870)
State v. Stasio, 396 A.2d 1129 (N.J. 1979)
MODEL PENAL CODE
Model Penal Code and Commentaries, Comment to §2.08 at 357-359 (1985)
4. Mental Disorder