I.

General Concepts
a. Purpose of criminal law and punishment
1. Rummell v. Estelle – A state has broad discretion to define and
punish criminal recidivism (cruel and unusual punishment)
a. Proportionality of convictions; live without parole
2. Herchenbach v. State – Sentencing statutes by state determine what
direction case will rule (utilitarianism or retribution) [college
student large parties]
ii. Utilitarianism: law seeks to maximize happiness/general welfare of the
community; forward looking
iii. Deterrence: punishment prevents future crime
iv. General deterrence: punishment sends a message to the community,
including those who might consider committing this crime, that crime
doesn't pay
v. Specific deterrence: punishment deters this defendant from further crimes.
1. incapacitation: defendant is unable to commit further violations
2. intimidation: defendant is discouraged from further violations
b. Proof beyond a reasonable doubt
1. Owens v. State - A conviction may be based on circumstantial
evidence alone if the circumstances are such that they are
inconsistent with any reasonable hypothesis of innocence.
2. In re Winship - For both adult criminal defendants and juveniles in
delinquency proceedings, the prosecution must prove an alleged
offense beyond a reasonable doubt.
ii. Common Law:
1. “Beyond reasonable doubt” is now accepted in common law
jurisdictions as the measure of persuasion must convince the trier
of all the essential elements of guilt
2. Proof of a criminal charge beyond reasonable doubt is
constitutionally required and reduces risk of convictions resting on
factual error
iii. Definitions of Reasonable Doubt: (a) Proof beyond a reasonable doubt is
such as you would be willing to rely and act upon without hesitation in the
most important of your own affairs (b) proof beyond a reasonable doubt is
proof that leaves you firmly convinced of the defendant’s guilt
iv. Government must prove each element beyond a reasonable doubt
II. Statutory interpretation
a. Void for Vagueness
1. Papachristou v. City of Jacksonville - Under the U.S. Constitution,
a law must (1) give a person of ordinary intelligence fair notice
that the person’s conduct is forbidden by the law and (2) must not
give unfettered discretion of enforcement to police.
2. Chicago v. Morales - A criminal law is unconstitutional under the
Due Process Clause on vagueness grounds if it either fails to give
 adequate notice of the prohibited conduct or permits arbitrary and
discriminatory enforcement of the law.
ii. Legal Standard: (1) Encourages arbitrary and erratic arrests and
convictions (2) fear notice, person of normal intelligence that conduct is
forbidden
iii. Keys of Vagueness: (1) Vague law no notice to defendant (2) Applied
arbitrarily (get some people, not all, fairness)
III. Elements of a crime
a. Actus reus (“act guilty,” the act required to constitute a crime)
i. A voluntary act
1. Bodily movement performed while conscious, as a result of effort
or determination or;
2. Omission when physically able
ii. Possession
iii. Omission (not generally guilty for failing to act, unless duty)
1. Special relationship (e.g. parent or guardian)
2. Duty imposed by statute
3. voluntary assumption of care to another
4. contractual obligation
5. creation of risk
6. botched rescue
iv. Courts generally do not consider the following as voluntary acts:
1. reflex or convulsion
2. movement while unconscious or sleeping
3. hypnosis
4. bodily movement not performed while conscious
v. cases:
1. State v. Hinkle – Passing out while driving… did not attempt to
correct driving and hit a car… someone died… had brain disorder
which results in unconsciousness… consciousness is required for
actus reus (see exceptions)
2. State v. Miranda – Step mom’s boyfriend abused child and brought
the child to hospital and he died… court could not prove actus reus
(abusing child)… most likely boyfriend
3. Decina – Known epilectic… hit schoolgirls
4. Fields –
b. Mens rea
i. types of culpability
1. purpose/intent –
a. conscious objective to engage in the conduct to cause a
result
b. awareness of the circumstances or believes/hopes that they
exist
2. knowledge –
a. awareness of circumstances or nature of conduct
 b. certainty (substantial certainty) that conduct will produce a
result
3. Recklessness –
a. When an individual consciously disregards a substantial
and unjustifiable risk of a result being produced through
that individuals conduct… the disregarded risk must be a
gross deviation to a reasonable individual…
4. Negligence – When an individual should know about a substantial
and unjustifiable risk that a material element will be produced from
that individuals conduct… must involve a gross deviation from the
standard of care for a reasonable person
ii. Cases
1. Trinkle – Trinkle had a lot of drinks… wasn’t able to drink at
tavern, went to another bar, bought a .357 and shot at original
tavern… hit someone… not lethally.
a. Rule: specific intent required for an attempted murder
charge
2. Fox –
iii. Strict liability
1. You are guilty for crime you commit, no defenses, do not have to
have mental requirement to be responsible (usually public health,
environmental, etc)
2. Proof of knowledge is not required for conviction
3. Government cannot place serious criminal penalty when they did
not have mental element
4. It’s not likely someone will be convicted of a crime punishable by
imprisonment for an act he did not commit, have knowledge of, or
give consent to
5. Cases:
a. State v. Loge – unknowing alc bottles in car
b. State v. Guminga – 17 yr old serving alc at bar
c. Morissette v. US – transported bullet casings
iv. Mistake
1. Rule:
a. Mistake of law is not an excuse unless
i. Conduct is not morally wrong
ii. If law determines court’s ruling erroneous after
conduct
iii. If honest mistake negates required intent
b. Justification
i. Law recognizes honest purpose, not dishonest
ignorance of the law, as a defense to a charge of
committing a crime requiring specific intent
ii. Ex: cant rob a store clerk at gunpoint and argue you
didn’t know it was illegal
2. Exceptions: 
 a. Issues concerning the defendant’s ignorance of law arise
when:
i. Defendant lacks mental state
ii. Defendant believed his conduct was not proscribed
by criminal law
3. Requirements for defense: 
a. Belief must be reasonable
b. Reliance must by placed on particular matters
4. Model Penal Code
a. Defendant has defense of mistake if
i. Statute not known and has not been published prior
to conduct OR
ii. Reliance on official statement of law that is
afterwards determined to be invalid
b. General intent offenses (murder, rape, arson, assault, etc):
did defendant have mens rea required for the act?
i. Mistake of fact must be in good faith and
reasonable
c. Specific intent offenses (conspiracy, attempt, larceny, etc):
did the defendant have intent to commit another act too?
Did defendant have special intent for act? Was defendant
aware of attendant circumstances?
i. Mistake of fact need only be in good faith; need not
be objectively reasonable
5. Cases:
a. People v. Urziceanu – weed law misinterpretation,
conspiracy
b. Ratzlaf v. US – structured cash from gambling
c. People v. Navarro – stealing wooden beams (specific
intent)
c. Causation
i. Proximate cause
ii. But-for cause
IV. Homicide
a. Intentional murder
i. Common Law
1. “Killing of a human being with malice aforethought”
2. Aforethought  requires premeditation and deliberation.
3. Premeditation does not require specific amount of time, but there
does have to be time.
a. Premeditation: quantity of time
b. Deliberation: quality “cool process”
4. CASE:
a. State v. Guthrie– Guthrie kills coworker for hitting his
nose. Must be time between premeditation and murder.
5. 4 ways to satisfy the mens rea requirement:
 a. Intent to kill
b. Intent to commit serious bodily injury (implied malice)
i. Midgett v. State – man did not have intent to kill
son, just to beat his kid up, no premeditation.
c. Reckless/extreme indifference to value of human life
(depraved heart) (implied malice)
i. People v. Knoller – Knoller disregarded human life
by keeping dangerous dog in apartment building.
ii. Commonwealth v. Feinberg – defendant sold Sterno
to individuals that he knew were drinking ita
lawful act can be performed unlawfully if it is
performed in a criminally negligent manner.
d. Intent to commit dangerous felony (felony murder)
i. People v. Salas – to be convicted of felony murder,
the underlying felony must be ongoing
ii. People v. Howard – Howard drove recklessly and
killed another driver, must be a felony that is
inherently dangerous
iii. Commonwealth v. Almeida – robbers had a
shootout with cops, they were proximate cause of
third person death regardless of whose bullet hit
him
ii. MPC
1. 3 Ways to prove under the MPC:
a. Purposefully/Knowingly killing another human being.
i. differs from willingly–did away with malice
aforethought
b. Recklessly manifesting extreme indifference to human life
i. depraved heart
ii. subjective view of recklessness
c. During a Felony
i. Recklessness of act presumed if engaged in
commission of SPECIFIC felonies= robbery, rape,
arson, burglary, kidnapping, felonious escape.
iii. Premeditation – How to Determine
1. Was there provocation by the victim? 
2. What was the conduct of defendant before and after killing? 
3. Were there threats and declarations of the defendant before and
during the killing? 
4. Was there ill-will between parties? 
5. Were there lethal blows after victim as rendered helpless? 
6. Was there evidence of killing being done in a brutal manner? 
b. Manslaughter
i. Common Law
1. Voluntary Manslaughter
 a. Intentional killing but mitigated by provocation and no
premeditation.
i. 4 Requisites:
1. Acts in response to provocation which
would cause a reasonable man to lose his
self-control
2. Pigeon-holes
a. Assault and battery
b. Trespass
c. adultery (must catch wife in the act)
d. acts against a third person (close
relative)
e. mutual combat
f. must be actualmere words are not
usually enough
b. Heat of passion- actually provoked.
c. Period of time between the provocation and killing cannot
be long enough for a reasonable person to have calmed
down AND
d. Defendant himself must not have calmed down.
i. Giouard v. State – man kills his gal because of mere
words.
2. Involuntary Manslaughter
a. Criminal negligence required
b. Unintended killing caused during the commission of an
unlawful act not amounting to a felony.
c. Misdemeanor manslaughter.
d. Lawful act in a reckless way.
i. alum prohibitum- act is made wrong by statute
e. State v. Horton – hunting on land, malum prohibitum).
ii. MPC
1. No distinction between involuntary and voluntary
a. 2 Requisites:
i. Recklessly
1. aware of the risk, but consciously disregards
it; subjective; gross deviation.
ii. Purposeful, BUT committed under under extreme
mental disturbance
1. heat of passion – reasonable person in
actor’s circumstances as he believes them to
be (subjective)
b. TEST: HOW WOULD AN OBJECTIVELY
REASONABLE PERSON UNDER CIRCUMSTANCES
ACT?
 c. People v. Cassassa –man kills woman claiming he was
under emotional distress, a reasonable person in his
situation would not have killed her.
2. Negligent Homicide
a. Committed negligently
i. The defendant ought to have been aware of the risk
ii. Inadvertent
iii. Objective
c. Felony murder
d. Capital murder
V. Mistake
a. Mistake of law
i. good faith belief your actions were legal; do not have required mens rea
b. Mistake of fact
i. have required mens rea; if circumstances were as defendant believed them
to be, the defendant’s acts constituted a crime
ii. General-intent crime: mistake of fact must be in good faith and reasonable.
iii. Specific-intent crime: mistake of fact need only be in good faith; need not
be objectively reasonable.
1. Cheek v. U.S.
c. MPC
i. A defendant may claim ignorance or mistake of law or fact as a defense if
the defense is authorized by the law, or if the ignorance or mistake negates
a material element of the offense.
ii. If no specific intent or other special mental element if required for guilt of
the offense charged, mistake of fact will not be recognized as a defense
unless it was based on reasonable grounds
1. People v. Urziceanu
d. Common Law: specific intent crimes are more likely to let mistakes be a defense;
mistake need only be in good faith.
i. People v. Navarro
VI. Rape
a. 2 Types:
i. Forcible: mens rea, general intent, mistake of fact is a defense (second
degree rape)
ii. Statutory: no mens rea, strict liability (first degree rape)
1. Garnett v. State
b. Deception
i. Fraud in the inducement: NOT A DEFENSE; deception relates not to the
thing done, but merely to some collateral matter
1. Boro v. Superior Court
ii. Fraud in the factum: DEFENSE; deception causes a misunderstanding as
to the fact itself
1. People v. Minkowski
c. Common Law
i. Elements
 1. Carnal knowledge of a woman
2. Force (need proof)
3. Without consent (need proof)
ii. Only male perpetrators and female victims
iii. Actual vs. Constructive force
1. Constructive force: no physical resistance, but the victim is in
reasonable fear of death or bodily harm
a. State v. Rusk
iv. Jury determines whether, due to consumption of drugs or alcohol or for
some other reason, the victim was so impaired as to be incapable of
consenting to intercourse
1. Commonwealth v. Urban
v. General Intentonly mens rea needed is intent to do the act
d. MPC
i. Elements
1. Some form of sexual contact (penetration required for rape)
2. Force (actual or constructive)
a. Physical force element satisfied by the act of non-
consensual sexual penetration without any additional proof
of extrinsic force
b. States vary on force requirement
c. In the Interest of M.T.S.
3. Lack of consent
a. lack of consent may be established by proof of resistance or
by proof that the victim failed to resist due to a genuine
reasonably grounded fear
b. State v. Rusk
VII. Inchoate crimes
a. Anticipatory offenses and incomplete criminal conduct
b. Attempt, aiding and abetting, accessoryship, solicitation, conspiracy
c. Attempt:
i. General Principle: An attempt to commit a crime generally requires the
specific intent to commit that crime, and a substantial step, beyond merely
preparation, toward committing that crime
ii. Attempt crimes have a specific intent mens rea, even when the substantive
crime, if completed, would require only a general intent mens rea
iii. There cannot be an attempted crime for any substantive crime that is
negligent or reckless (Hemmer)
iv. Common law vs MPC
1. Common law: at common law attempt was charged solely as a
misdemeanor
2. MPC: new guidelines seek to charge attempt in accordance/relation
with the substantive crime attempted
v. There are several approaches to what must be done past preparation to
constitute attempt:
1. Uniquivocality test
 a. The “act speaks for itself
b. Focuses on what has already been done
c. Minority approach
2. Probable desistance
a. Would a law abiding citizen have stopped
b. Would a reasonable person have changed their mind
3. Substantial Step (THIS IS MPC TEST AND IS ADOPTED BY
MOST STATES)
a. act demonstrates “firmness of purpose.”
b. Proximate to accomplishment - focus on what has already
been done
c. Defendant has committed a substantial step strongly
corroborative of his criminal purpose.
d. examples of substantial step:
i. Searching for victim
ii. Scoping out the crime scene
iii. Possessing the tools necessary for the crime close to
the scene
e. Indispensable Element
i. Defendant has control of an indispensable feature
that they need to complete the crime.
f. Dangerous proximity
i. Defendant is close in space and time to completing
the crime that the danger of success is great.
ii. Defendant must be so near to accomplishment of
the crime that in all reasonable probability the crime
itself would have been committed but for timely
interference.
g. Last act doctrine
i. Defendant has taken the last act to commit the
crime
ii. Focuses on what is left to be done
iii. the defendant must have finished all the proximate
and final steps necessary to fulfill his criminal
purpose.
4. Defenses:
a. Abandonment:
i. Abandonment of a crime is a defense to crimes of
attempt if the abandonment is voluntary and not
motivated, in whole or in part, by circumstances,
not present or apparent at the inception of the actors
course of conduct, that increases the probability of
detection or apprehension or that make more
difficult the accomplishment of the criminal
purpose.
b. Legal Impossibility vs. Factual Impossibility
 i. Legal impossibility occurs when a defendant’s
actions, even if fully carried out exactly as he
intends, would not constitute a crime.
1. This is a defense
ii. Factual impossibility occurs when the actions
intended by a defendant are proscribed by the
criminal law, but a circumstance or fact unknown to
the defendant prevents him from bringing about the
intended result.
1. This is not a defense
5. State v. Hemmer – Hemmer was speeding and led cops on a high-
speed chase that resulted in the officer diving into a snow bank to
avoid collision. He was charged with attempt to recklessly cause
bodily harm to LEO.
a. Court decided that he didn’t have the mens rea; no attempts
of reckless or negligent crimes
6. People v. Rizzo – Intended on robbing Rao- they drove around
looking for him but never found him. The cops showed up and
Rizzo jumped out of the car and ran into building. Not guilty of
attempt because opportunity never came and he was not
“dangerously close” to committing the crime
7. United States v. Joyce – Joyce traveled from OKC to STL for
cocaine purchase. Seller (police) refused to show the cocaine
before he would give the money- walked away from the deal.
Since he was more than “1 step” away (holding cocaine or giving
money) from committing crime- not guilty of attempt.
8. United States v. Yossunthorn – Yossunthorn showed up to
McDonald’s for heroin deliveries. When he showed up, he just
checked the place out for cops. Court said the fact that they didn’t
agree on cost and amount, this was not a “substantial step” towards
committing crime. (MPC says it countersurveillance is a
substantial step).
9. Kolmeir v. State – Had ⅔ of the ingredients and equipment to
make meth in the car. Court said the totality of the circumstances
and determined it was more than “mere preparation” because there
was no other explanation
10. Hix v. Commonwealth – Hix was talking to Heather (cop) who
was 13 years old. Agreed to meet her at McDonalds. He was guilty
of attempted solicitation of minor because if everything had been
as he thought, it would have been a crime. (Factual impossibility=
not a defense)
11. Gravens v. State – Gravens went to rob bank. Teller’s actions
caused him to abandon the robbery. He was convicted of attempted
robbery because he did not voluntarily abandon the crime.
d. Solicitation
i. Model Penal Code:
 1. Crime to solicit any offense (felony or misdemeanor)
2. Punished at the same level of the crime solicited
ii. Common law:
1. Defendant invites, requests, hires, encourages to get another person
to commit a felony or certain misdemeanors
2. Solicitation was always a misdemeanor
a. Impossibility is not a defense
3. Guilty of solicitation if you induce action even if the second person
doesn’t follow through.
4. Mere solicitation ⧣ Attempt
a. State v. Disanto – Hiring a hitman, who was an undercover
cop, was not attempted murder because not a substantial
step to committing murder.
iii. Solicitation almost always merges if the crime occurs
1. Guilty of the crime that you induced
2. Elements
a. Mens rea
i. Specific intent crime (soliciting a crime)
1. Joking is not solicitation
b. Actus reus
i. Invites,
ii. Requests,
iii. Hires, or
iv. Encourages someone to commit the crime
e. Conspiracy
i. Elements:
1. Agreement
2. Two or more people
3. Do an unlawful act or a lawful act in an unlawful way
ii. Common Law Conspiracy is a misdemeanor.
1. Actus reus - agreement.
a. Common Law states that this was enough to fall under
conspiracy.
2. Mens rea - two parts.
a. Intent to agree
b. Intent to commit the offense
3. Mere knowledge does not make you a conspirator.
4. Once agreement is revealed, anyone can be held guilty under
common law.
5. If one does the act, everyone is guilty.
6. To escape conspiracy claims, the person must show complete and
voluntary and must be communicated to all participants.
7. Once abandoned, you cannot be held liable for any future offenses.
iii. Cases:
1. State v. Samuel – Samuel planned on selling cocaine and gave the
cocaine to a minor with the intent of the minor delivering the
 cocaine to the buyer. The minor gave the cocaine to an officer and
Samuel was arrested. The prosecutor used a witness to provide
evidence of prior drug acts, though Samuel wished for that
testimony to be removed because the witness had no link between
the minor and Samuel.
2. Pinkerton v. United States – Walter and Daniel Pinkerton were
trying to use the mail to defraud ther illegal alcohol business.
Daniel claimed he was not a part of the action because he was not
directly involved in the actual fraud itself.
VIII. Accomplice liability
a. General principle:
i. An accomplice is one who unites with another person or persons in the
commission of a crime, voluntarily and with common intent
ii. It is not necessary to prove that each defendant committed all the acts of
the crime; each person who does one act that is an ingredient of the crime
or immediately connected with it is as guilty as if he committed the whole
crime with his own hands
iii. In order for one to be an accomplice there must be mutuality of intent and
community of unlawful purpose
b. Mere knowledge that crimes is going to be committed is not sufficient to establish
liability, if the defendant does not encourage or intentionally aid in the
commission of crime
c. Mere presence, without more, is not enough to make an aider and abettor
d. A single criminal act has different levels of blameworthiness contingent upon the
particular mens rea with which it is perpetrated, multiple participants in the crime
do not necessarily share the same mens rea.
i. When 2 or more persons are joint participants in a crime, they are joint
participants only with respect to a single and common actus reus
ii. An aider and abettor of a manslayer may be guilty of murder and an aider
and abettor of a murderer may be guilty of manslaughter. The only
necessary common denominator is participation in the actus reus of the
homicide.
e. Foreseeability Doctrine:
i. A person who knowingly aids and abets criminal conduct is guilty of not
only the intended crime but also of any other crime the perpetrator actually
commits that is a natural and probably consequence of the intended crime
ii. Liability under the natural and probable consequences doctrine is
measured by whether a reasonable person in the defendant’s position
would have or should have known that the charged offense was a
reasonably foreseeable consequence of the act aided and abetted
IX. Possession of a Controlled Substance
a. Definitions
i. Possession:
1. state must prove the defendant’s knowledge of the possession of
the controlled substance and that the controlled substance was in
 the defendant’s immediate and exclusive control. Possession may
be actual or constructive.
ii. Actual possession:
1. if it's on your person. (unless you claim it was planted)
iii. Constructive possession:
1. exists without actual personal present dominion over a controlled
substance, but with an intent and capability to maintain control and
dominion
2. Elements of Constructive possession
a. Defendant knows of the controlled substance and
b. Controlled substance is within defendants immediate
control
c. Mere proximity is not enough
d. May be inferred if defendant has exclusive control of
premise where drugs are found
b. Mens Rea for Drug Possession
i. If the statute doesn’t state a mens rea requirement for knowledge of type
of controlled substance and quantity, then the mens rea requirement is just
the knowledge of possession of a controlled substance
c. Joint Possession
i. Elements
1. Proximity to drugs
2. In view of knowledge of drugs
3. Ownership or possessory rights
4. Mutual use and enjoyment of the drugs
d. Cases:
i. In re K.A. (1997): Kid in the apartment with cocaine; shows that mere
proximity is not enough to show constructive possession
ii. Sierra v. State (1999): Sierra at warehouse; shows that proximity to the
drugs does not establish that the drugs were in his constructive possession
iii. United States v. De La Torre: DLT had backpack with meth inside; shows
that you didn’t need to know amount or type of controlled substance to be
guilty of possession
iv. Cottman v. State (2005): Cottman was with dealer when she sold cocaine
(he was lookout); shows possession may be joint; factors for joint
possession: proximity to contraband; defendant had knowledge of
contraband; ownership or possessory interest in premises where
contraband was found; circumstances show mutual use and enjoyment of
contraband.
v. Whittaker v. People (2002): Whittaker was on bus with backpack traveling
to Denver- backpack contained 8.8lbs of meth; showed that drug quantity
isn’t an element- so knowledge of quantity isn’t required to be guilty of
possession
vi. United States v. Villareal (2012): Villareal possessed cocaine that was
diluted with another substance.
 1. Mixture Rule: You must weigh a drug mixture as a whole if it is
usable in that format (ie, cocaine mixed with a powder that you
consume all together). If it is mixed with a liquid or other
substance that you don’t consume, you have to separate it out
before you weigh the drugs.
e. Possession with intent to distribute
i. Quantity of drugs is a factor
1. Quantity alone may be sufficient to establish intent to distribute if
it’s more than supply ordinarily possessed for one person’s use
2. Possession of small quantity → inference drug was for personal
use
ii. Intent to sell may be inferred from circumstantial evidence (packaging,
labeling, and storage, presence of cash, drug paraphernalia)
1. Mere possession won’t support conviction for intent to distribute
iii. Quantity can be enough to convict in large quantities, but quantity is not
enough to convict in small quantities
1. If quantity is large, that can be enough by itself to show that the
person is a dealer
2. If the quantity is small, there must be other evidence present in
order to show that the person is a dealer
iv. Cases:
1. Wells v. Commonwealth (1986): police searched home and found
70 bags of weed; despite the large amount, a lack of evidence of
paraphernalia for distribution, small amounts of cash and the other
members of the house not knowing about the weed- this was
enough to say it was of personal use and not with the intent to
distribute
2. Cotton v. State (2009): Guy was found with 4 small bags of
marijuana on him; the money value matching the amount of drugs;
no smoking device; at an apartment complex popular for drug
dealers; was driving a car that wasn’t his. Was guilty of possession
with intent to distribute.
3. State v. Wilkins (2010): Defendant had a small amount of
marijuana packaged in tiny bags, but a lot of cash. Claims the cash
is to pay a bail bondsman because he has a few warrants out for his
arrest. Rule is that the quantity of drugs can be enough to convict if
the quantity is large enough. If the quantity is small, then other
evidence has to be present to prove intent to distribute.
X. Driving
a. While Intoxicated
i. Typical statute elements:
1. Operating
a. “Physical control” → Broad definition
i. Prevent loopholes
ii. Encourage people to not even try to get into a car
drunk
 1. People v. Eyen - pushing his car that is in
neutral
a. Possession of key/capability of
starting car is enough
b. Movement required → more narrow (and more common)
i. Murray v. State - sleeping in car with engine on, no
alcohol containers nearby
1. Can use circumstances to infer whether the
defendant drove
2. A motor vehicle
a. A vehicle is any appliance moved over a highway on
wheels or traction tread, including street cars, draft animals,
and beasts of burden. This includes bikes
b. Wheelchairs (etc.) are not included in the definition of
motor vehicles because it’s a substitute to walking for
disabled people
i. State v. Brown (DUI on personal mobility scooter)
3. On a public road
a. Any place to which members of the public have access as
invitees or licensees will constitute as a public roadway for
purposes of DUI’s
b. This includes driveways of establishments even after hours
and driveways of residential complexes if they are open to
the public
i. Commonwealth v. Virgillo 
ii. State v. Schwein (parked in his own welding
company’s parking lot)
4. While intoxicated: TX Penal code and most states.
a. Intoxicated means not having the normal use of mental or
physical faculties by reason of the introduction of alcohol, a
controlled substance, a drug, a dangerous drug,  a
combination of these, or any other substance in the body; or
a blood alcohol concentration of .08
ii. Missouri: “A person commits the offense of driving while intoxicated if he
or she operates a vehicle while in an intoxicated condition”
iii. Kansas: “No person shall operate or attempt to operate any vehicle within
the state while [intoxicated].”
1. Under Kansas Common Law, operate is synonymous with drive.
This means the vehicle must have been moved. 
iv. Kansas law makes it a DUI to drive while:
1. (1) The alcohol concentration in the person's blood or breath as
shown by any competent evidence is . . . is 0.08 or more;
2. (2) Alcohol concentration in the person’s blood or breath, as
measured within three hours of the time of operating or attempting
to operate a vehicle is 0.08 or more;
 3. (3) Under the influence of alcohol to a degree that renders the
person incapable of safely driving a vehicle. 
v. State v. Thurman (Kan. 2006)
1. Thurman was involved in a hit and run and tried to find the vehicle
that hit him by driving around. Officer noticed that Thurman’s
breath smelled of alcohol, eyes were bloodshot, and struggled with
basic motor functions. 
b. While Texting
i. Construction
1. Broad
a. “Handsfree law” - more effective in convicting defendants
2. Narrow
a. Being on phone can be several other things than texting
b. “Personal freedom states” - compromised statute -
legislature doesn’t really want to outlaw it
c. US v. Paniagua-Garcia - statute only outlaws texting &
emailing
i. Anytime the police stop you that’s a seizure - must
have probable cause
1. So seeing someone on their phone ≠ they are
texting/emailing
d. Seizure: 
i. Prohibited by 4th amendment unless probable cause
to suspect a crime.
ii. Reasonable suspicion has to be more than mere
speculation.
iii. If it is an invalid stop it is inadmissible.
c. Construction:
i. Normally if one thing is excepted in the law then that means something
about the things not excepted.
ii. Minnesota: rule to interpret statute so result isn’t absurd or unreasonable.
iii. Rule of Lenity
1. When a rule is ambiguous use rule of lenity to narrow.
2. Start with ordinary meaning of word
3. Then judicial interpretation of similar statute with same words
4. If still unclear then decide where things stand on rule of lenity.
iv. Purposeful interpretation:
1. Purpose of legislature.
XI. Larceny
a. Larceny: trespass of a wrong to a possession
i. Elements at Common Law:
1. Taking
2. Asportation
3. Corporeal personal property of another
4. From possession of another
5. Wrongfully
 a. Without permission
i. Guilty knowledge can be inferred from the
defendant’s possession of stolen goods.
1. State v. Chester
b. With permission obtained by deceptionlarceny by
trick/false pretenses
i. Misrepresentation of past or present fact
ii. Must obtain ownership, not just mere possession
(Davies v. Commonwealth)
1. Does not require title for goods
iii. General intent crime
1. State v. Bugely: must intend to be deceptive
when you make the statement
6. With intent to permanently deprive
ii. Mens Rea: intent to deprive
1. Specific intent to deprive the owner or possessor of the property
2. General intent to take and carry the property away
3. *Taking with the intent to return cannot be larceny*
iii. Continuing trespass rule: wrongful taking and intent to deprive need not
be concurrent
b. Other property offenses
i. EMBEZZLEMENT
1. Elements at Common Law:
a. Lawful possession under trust arrangement
b. Conversion of the property
i. Fraudulent conversion does not need to involve
personal gain
1. State v. Lough
c. With the intent to defraud
2. Weldon v. State: Evidence showing theft by embezzlement cannot
support a conviction for theft by larceny.
ii. THEFT (MPC)
1. Possession or control of another’s property with intent to deprive
the owner thereof
a. State v. Donaldson: vehicular theft requires an individual to
have possession or control over the vehicle
2. Possession: securing dominion
3. Control: use of an object in a manner beyond the person’s
authority
4. Last Antecedent Rule: a qualifying word or phrase refers only to
the noun or phrase immediately preceding it
a. CAVEAT: does not apply when the modifying phrase is set
off from a list by a comma
c. Burglary
i. Elements at Common Law:
1. Breaking and entering
 a. Does not have to cause damage
b. Must create an entrance where one did not exist before
c. Any part of the body is sufficient
d. Entering a different room when already lawfully in the
house qualifies as entering
2. Of the dwelling house of another
a. Used as a sleeping place
b. Cannot be your own dwelling
3. In the nighttime
4. With the intent to commit a felony
a. Doesn’t need to complete the felony, just attempt
b. Can be any felony
c. Intended some act and that act is illegal
d. Robbery
i. Robbery: Larceny done with threat of force or fear
1. Elements at Common Law:
a. Felonious intent
b. Taking and carrying away
c. Of personal property of another or in his presence
d. By violence or putting him in fear
ii. Extortion/Blackmail: obtaining property by means of other threats, such as
threats to (a) do something other than physical or (b) do something
physical but not cause imminent harm
XII. Defenses
a. Self-defense
i. Self-Defense Non-Deadly Force
1. IMMINENT danger of being illegally physically harmed
2. Force was NECESSARY to prevent the threatened harm and
3. Perception of imminent danger and need for defensive force was
REASONABLE
4. Must be an OVERT ACT
5. Force must be PROPORTIONATE
ii. Self-Defense Deadly Force
1. IMMINENT danger of death or serious bodily injury
2. Deadly force was NECESSARY to prevent that harm
3. Perception of imminent danger and need for defensive force was
REASONABLE
4. Must be an OVERT ACT
5. Force must be PROPORTIONATE
iii. Retreat rules
1. Minority rule - if not in your own home, you must retreat before
using deadly force if it can be done with complete safety
2. Majority rule - opportunity to retreat is a factor to consider in
determining whether deadly force was reasonable
3. MPC § 3.04 - the use of deadly force is not justifiable if a person
can avoid the necessity of self-defense safely by retreating or
 surrendering possession of an item except where they are in your
dwelling or place of work unless the person is the initial aggressor
iv. Aggressor rules
1. A person who starts a fight can’t use force in self-defense during
the fight
2. An aggressor regains the right to use force in self-defense during a
fight by either
a. Withdrawing
OR
b. Giving notice of desire to withdraw
v. Imperfect self-defense - Occurs when a person subjectively believes that
the danger was imminent, but that belief was not reasonable
1. Common Law - not a defense
2. MPC - invalidate the mens rea for murder, mitigates the murder
charge to voluntary manslaughter
vi. Battered woman syndrome -
1. Battered woman syndrome relaxes the imminence requirement for
self-defense
2. Some courts don’t require the battered spouse wait until a deadly
attack occurs before force can be used
3. If the court admits evidence of battered woman syndrome, the
court will allow evidence of the husband’s past abusive actions
vii. Cases:
1. Commonwealth v. Cary
2. People v. Goetz
3. United States v. Peterson
b. Defense of Others
i. There are two rules regarding defense of others:
1. Alter ego - the right to defend another is coextensive with the
other’s right to defend themselves
2. Reasonable belief - (MPC) as long as the defender reasonably
believes the other is being unlawfully attacked, they are justified in
using reasonable force.
ii. MPC § 3.05 requires:
1. Reasonable right to protect himself from the injury he believes to
be threatened on the other person
2. If the circumstances were as he believed, the person he seeks to
protect would be justified in protecting themselves in the same way
3. The actor believes his intervention is necessary for the protection
of such other person
iii. Cases
1. State v. Beeley
c. Defense of Property
i. Deadly Force
1. Common law - no use of deadly force even if that is the only way
to protect it
 2. MPC - usually cannot use deadly force to protect property, but if
you are attempting to stop a felony if the criminal has already tried
to use deadly force against you or if using non-deadly force would
expose you to substantial danger
ii. Non-Deadly Force
1. Common Law + MPC - you can use non-deadly force to protect
property
iii. Defense of Habitation
1. Common law - you can use deadly force if you reasonably believe
it is necessary to prevent an imminent and unlawful entry
2. MPC - You must believe the intruder is trying to dispossess you of
the home in order to use deadly force
3. Narrower view - some statutes say you can use deadly force if you
reasonably believe the perpetrator will unlawfully enter and
intends to injure you or commit a felony inside the home
iv. Spring guns
1. Common law - spring guns may be used and the defendant may
claim self defense but defense only exists if the resident had an
actual (not a reasonable but mistaken) claim of self defense
2. MPC - spring guns are forbidden
v. Cases
1. People v. Ceballos
d. Police Use of Force
i. Police acting to prevent crime
1. Common law - allow deadly force to prevent forcible and atrocious
crimes
2. Modern: limit to situations where there is substantial risk of death
or serious bodily harm
3. Tennessee v. Garner (man was running from a petty theft, police
shot him in the back of the head, there was no threat of death or
serious bodily harm, police guilty)
4. Scott v. Harris (car refused to stop, car chase, police hit car to
make it crash, deemed okay because of danger to civilians)
ii. Police arrest power
1. Limit use of deadly force to arrest if there is reason to believe
suspect has committed a dangerous felony
a. Risk of physical harm to others
iii. Constitutional factors
1. Claims of excessive force are judged for reasonableness
2. Factors:
a. Seriousness of crime
b. Extent of immediate threat to safety of others
c. Extent to which suspect is resisting arrest or attempting to
escape
e. Duress
i. Common law elements (not applicable to intentional murder)
 1. Another person threatens to kill or grievously injure ∆ or his
family
2. Actor reasonably believes it’s a genuine threat
3. Threat is imminent, possible future harm not enough
4. No reasonable way to escape the threat
5. Actor not at fault for exposing himself to the threat
ii. If there is a reasonable opportunity to avoid doing act w/o undue exposure
to harm there is not an excuse
iii. Considered a defense therefore there is a crime
1. Derivative liability is available
iv. State v. St. Clair (held at gunpoint with threat to his family to rob a
woman, found it was under duress)
f. Necessity
i. Not available for intentional murder
ii. Common law usually
1. Imminent danger
2. Must reasonably believe his actions work to stop the danger
3. No legal method to stop the danger
4. Harm ∆ will cause by violating the law will be less than harm
caused by the impending danger
iii. Away from harm - no more use of necessity
1. United States v. Bailey (prison escape, did not return right away,
not necessity because they did not return once they were away
from the harm)
iv. Necessity is considered a justification so there is no crime
1. Therefore, no derivative liability
v. United States v. Oakland Cannabis (tried to argue medical necessity,
statute did not allow sale/use of level 1 controlled substance therefore no
necessity)
XIII. Insanity
a. 3 Tests for Insanity:
i. M’Naughten Test (Right/Wrong Test)
ii. ALI Model Penal Code Test
iii. Irresistable Impulse Test
b. M’Naughten Test:
i. Person must not know the nature and quality of the act they are doing; or,
if he did know, he did not know what he was doing was wrong
ii. A person who knows they are acting contrary to the law is guilty
iii. A person will be considered to have a defense on insanity based on if the
facts with respect to which the delusion exists were real…
1. Whether an individual was right or “wrong” is determined by a
personal and subjective standard of wrong.
iv. Cases: Daniel M’Naughten
c. ALI Model:
i. Same as M’Naughten, except:
 1. Whether an individual was right or “wrong” is determined by an
objective standard of wrong (the standard of society rather than
the individual).
2. "Deific-decree": the justification of doing a wrongful act by the
word of god… constitutes legal insanity defense according to ALI
model penal code
ii. Moral Obliquity: refers to a deviation from moral rectitude -it is
mentioned to distinguish an act committed by a person capable of
distinguishing right from wrong but nonetheless acting out of a perverse
and culpable rejection of prevailing moral standards and an act committed
by a person in a state of mental illness that renders the person incapable of
distinguishing right from wrong with respect to the act.
iii. Cases: Serravo
d. Irresistible Impulse Test:
i. If an individual is determined to have a knowledge of their wrongdoing,
then they still may have a defense of insanity if:
1. An individual lost power to choose between right and wrong; and
2. Cause and effect relationship exists from such mental
delusion/disease
ii. This is because an individuals free will is destroyed due to mental delusion
iii. Cases: Parsons
XIV. Intoxication
a. Types of intoxication:
i. Voluntary intoxication
ii. Involuntary intoxication
b. Voluntary Intoxication:
i. Defense (excuse) to specific intent crimes
ii. May be used to negate specific intent by disproving intent to produce a
specific result
c. Involuntary Intoxication:
i. Defense when substances which were ingested unwilfully
ii. May also be used to negate mens rea
iii. Cases: Durham
d. The Exculpatory Rule:
i. "Although you cannot take drunkenness as any excuse for crime, yet when
the crime is such that the intention of the party committing it is one of its
constituent elements, you may look at the fact that a man was in drink in
considering whether he formed the intention necessary to constitute the
crime.
e. “Volitional” or “Control” test:
i. juries asked to assess a defendant’s capacity for self-control, not whether
he suffered an irresistible impulse.
ii. Insanity excuse defense used to protect those who are not morally
blameworthy for their conduct.
iii. Durham case decision tells us that a defendant is insane if his conduct is
“the product” of a mental disease or defect.
 iv. footnotes on page 1117: Governing law of entrapment: Where a person
already has the willingness and the readiness to break the law, the mere
fact that the government agent provides what appears to be a favorable
opportunity is not entrapment.
f. Morse two variants of diminished capacity:
i. (1) the “mens Rea variant” which is not really a defense at all but one
which, through the use of evidence of a defendant’s mental condition,
seeks to create a reasonable doubt in the minds of the jurors as to whether
the statutorily required mens Rea element of the crime is present; and
ii. (2) the “true” diminished capacity, which he called the defense of “partial
responsibility”, where the actor commits the prohibited act with the
required mental state but is adjudged guilty of a lesser crime because of
mental or emotional impairment short of insanity, that quantitatively
reduces his moral responsibility.
g. Jury instruction for entrapment: Acquit the respondent if it had a "reasonable
doubt whether the defendant had the previous intent or purpose to commit the
offense . . . and did so only because he was induced or persuaded by some officer
or agent of the government."
i. Diminished responsibility doctrine not been widely adopted
ii. Most other states have rejected the idea of partial responsibility
h. MPC for Intoxication:
i. (1) Intoxication of the actor is not a defense unless it negatives an element
of the offense
ii. (2) When recklessness establishes an element of the offense, if the actor,
due to self-induced intoxication, is unaware of a risk of which he would
have been aware and he been sober, such unawareness is immaterial.
XV. Entrapment
a. Entrapment: Government cannot be permitted to instigate the commission of a
criminal offense in order to prosecute someone for committing it.
i. Entrapment focuses on the origin of criminal intent.
ii. If the criminal intent originates with the government or law enforcement,
the defendant is entrapped and can assert the defense.
iii. If the criminal intent originates with the defendant, then the defendant is
acting independently and can be convicted of the offense.
iv. The two tests of entrapment are:
1. (1) subjective entrapment and
2. (2) objective entrapment. The federal government and the majority
of the states recognize the subjective entrapment defense
(Connecticut Jury Instruction on Entrapment, 2010). Other states
and the Model Penal Code have adopted the objective entrapment
defense
b. Montana Approach: defense that the defendant, as a result of mental disease or
defect, lacked the mental state required as an element of the offense charged.
i. Ref: Sentencing Entrapment (page 1171), Sentencing Manipulation (page
1172), The Outrageous Conduct Defense (page 1174)