I.

Introduction to Course:
 Behavior sometimes is and sometimes is not a crime, the legislature decides that.
 The same behavior can violate both the civil and criminal systems.
 The primary purpose of the criminal justice system is to punish the offender.
 The primary distinction between criminal and civil is that criminal cases provide
the accused with more constitutional protections than are available in civil.
 A crime is viewed as a crime against the state or government, not the person who
was a victim of the crime (the victim is not even a party to it)
o At the trial level, the government is first and the defendant is second in the
title.
o When there is a fine in criminal case it goes to state, not victim.
 Criminal law has its own enforcement system: the police
 Often times the law shapes morality instead of vice versa (ex: Roe v. Wade)
 MORAL BLAMEWORTHINESS!

II. Process of a Criminal Case:

 Arrest
 Complaint
 Preliminary Hearing: there is a probable cause determination, no jury, the
government must have some evidence.
 Grand Jury Hearing: Jury of 13-23, defense doesn’t participate- only prosecutor, if
grand jury agrees there is probable cause, there is:
 Indictment: must be told exactly what the charges are.
 Arraignment
 Trial

III. Some Fundamental Concepts:

A. Sources of Criminal Law
1. Continuing Role of Common Law:
o A crime described by courts; they are a system of judicial decisions following
precedent.
o Sometimes they were very broad; most jurisdictions today have ended
common law crimes. (if it is not a crime in the penal code, it is not a crime)
o It is often used to interpret statutes
2. Special Role of Statutes:
o Main source that tells what is/is not a crime
o Model Penal Code: a model for all American jurisdictions to consider when it
is updating its laws. Most laws you cover in a state will be the same as the
MPC.
o Penal codes are divided into 2 parts:
 General: statutes that deal with general principles that apply to many
areas of law: (definitions, procedures, defenses, a few general crimes
[attempt, conspiracy, etc.])

1
  Special/specific: Individual crimes (ex: murder or arson)
o Keeler Case: Man punched wife in stomach and killed fetus, murder is killing
of human being, is fetus human being?
 Court looked to common law and decided to be a human being you had
to be born alive. They were also concerned of rule of lenity (it was
ambiguous) and fair notice.
 After this, legislature changed the statute to include fetus killings.
o Instrumentalism (functionalism): seeks to discern the purpose/intent/function
of the statute and apply it consistently with that.
B. Quick Introduction to Proof Beyond a Reasonable Doubt
 Much higher than civil (which is preponderance of evidence- 51%) criminal is a
high degree of certainty- beyond a reasonable doubt- but it is an imprecise
standard.
 For elements of a crime, the burden of proof is on the government (they must prove
ALL elements beyond a reasonable doubt)
o Burden of production and persuasion fall on gov’t
 In 46 states (including NY) jury verdicts must be unanimous
o Therefore, defendant need only convince ONE juror that ONE element of
the crime did not exist.
 Gov’t usually has to prove case without a confession (5th amend)
 Proof of knowledge is defined as “reasonable” or “substantial” certainty
 Defense burdens are different!
o No constitutional rule, states are free to handle as they wish
C. A Few Limits on Criminal Law
1. Principle of Legality: The concept that criminal laws should be made in advance
with sufficient clarity so that citizens can know what is and is not prohibited.
 Main Principles: guide citizens so we know what we are allowed to do, and it
is a limit on government and its agents.
2. Retroactivity, Fair Warning
o Fair notice: society must define punishable conduct in advance
o Rogers Case: Stabbed someone who died 15 months later, common law had a
murder exception called “year and a day rule” Court ruled that this law no
longer had any support in policy and should be abolished.
  couldn’t claim retroactivity on this because he didn’t know victim
would live that long.
 Retroactivity- changing the rules that someone will be tried on to
something other than what the rule was when the incident occurred.
(legality says you cannot do this)
 Sup. Ct. said that you can take the common law, make changes to the
common law and apply it retroactively and this does not violate fair
warning.
 THIS RETROACTIVITY APPLIES ONLY TO COMMON
LAW, NOT STATUTES
o In order to retroactively change the law, the limit is that the change must not
be unexpected and indefensible (there is a solid justification)

2
 o Kevorkian Case: He had machine that would assist in suicides for patients, he
would set up machine but they would push button.
 Statute said murder is a crime but did not define it, so they went to
common law for definition.
 Common law said murder is taking of a human life, which he didn’t do
but common law had a crime of assisted suicide, which he could be
guilty of.
 Reception/Savings Statute: where the state receives the common law
when it fills the gap.
3. Rule of Lenity: Any ambiguous statute needs to be interpreted narrowly to favor
the accused (aka: strict construction).
 Policy rationales: accused has fair notice of the crime and the state, who
drafted the statute, has a duty to ensure that its criminal laws are reasonably
understandable and should not benefit from its poor drafting.
 The opposite view is the rule of fair import: encourages interpreting a statute
to further the general purposes of the statute. (The MPC takes a similar
approach)
4. Other Constitutional Limits: Neither a state nor federal legislature can create a
criminal law that violates the US Constitution.
 Lawrence v. Texas: Texas Penal Code said “a person commits an offense if
he engages in deviate sexual intercourse with another of the same sex.”
Deviate intercourse was defined to include oral and anal sex. Lenity
couldn’t apply because statute was unambiguous. Defendants said statute
violated their 14th amendment rights (no taking of life, liberty or property
without due process of law) and Supreme Court agreed.
 Substantive due process: the court strikes down a law that does not have a
solid reason for being a crime. The courts reject and overturn the reason that
the legislature wrote that statute.
 Overbreadth: laws that are overly broad and reach conduct that is protected by
the 1st amendment.
 Bill of Attainder: Legislation that designates a person as a criminal without
first affording them a trial and without the person first being convicted by a
judge or jury is not allowed.
5. Notice:

 Both notice and vagueness are defenses having nothing to do with guilt or
innocence.
 General rule: if the law is published (including on internet), that is adequate
notice.
 Ex Post Facto: Defendant cannot be punished for a crime that was not a
statutory offense at the time he committed the act. Also, punishment is limited
to what is contained in the statute at the time of the act. The constitution
prohibits ex post facto laws.
o Legislature cannot retroactively criminalize conduct, increase a
sentence, or change procedures in a way that makes it easier to
convict.

3
  Lambert Case: Municipal ordinance required anyone previously convicted of
a felony to register with police within 5 days of arriving in city. Lambert was
convicted, claimed she did not know and said it violated notice requirement of
due process clause, US Supreme Court agreed.
6. Vagueness: When a statute is written so generally you don’t know what it is. 14th
amendment issue.
 A limit on how the legislature expresses a crime.
 Connally Test: a test to measure whether statutes are sufficiently precise- it
must be so that people of common/general knowledge can know what it
means. This adopts the ordinary reasonable person standard.
 Facial Challenge: courts look to the statute as interpreted by courts and look to
the narrow judgment of it.
 Morales Case: The gangster ordinance was vague because it doesn’t give
adequate notice of what is/is not permitted and because there was no standard
of conduct specified.

IV. Elements of Crimes

A. In General :
 An element is a component that, when combined with the other elements, defines
the crime.
 The elements of a crime are policy decisions by a legislature.
 There are some general elements (identity of criminal, location and date of the
crime, etc.)
 The defendant’s knowledge cannot be used as proof of any element- 5th
amendment- prosecution cannot call defendant to witness stand.
 The district attorney has discretion to select which if any criminal charges to bring.
B. Actus Reus (the actual wrongful act of the crime)
1. In General:
 Moral blameworthiness is at the heart of actus reus.
 Rarely a problem in American criminal law, there is one for almost every
crime.
 ALWAYS a required element in every crime in every jurisdiction.
2. Voluntary Act: an act done at ones own will
 Sowry case: Man was arrested, asked if he had drugs on him, he said no,
brought him to jail, searched, and found bag of marijuana in pocket. Charged
with “knowingly conveying” drugs onto grounds of detention facility.
o He argued it was not a voluntary act because he was forcibly taken to
jail. Lying is not enough of an actus reus because of 5th amendment
underpinning and statute doesn’t punish lying, just bringing drugs.
 Case law has expanded the concept of voluntary act to behavior committed
earlier in a sequence of events. (ex: man who knows he has epileptic seizures
drives a car and kills someone. Even though the seizure was involuntary, the
voluntary act was driving the car even though he has this condition)
3. Omissions: the failure to do something when there was a duty to do it.

4
  The failure to do something must breach a legal duty to perform that act. The
duty comes from common law, statutes, or contract.
 The prosecutors must search law and find a duty- in US there is no general
duty of care.
o Vermont Aid Statute established a general duty of care
 There are some common law or statutory duties of care that are not general
(ex: parent has legal duty to feed a baby)
 The law does not require knowledge of the law in order for the law to impose
a duty of care (ex: woman cant say she didn’t know she had a duty to feed her
child); BUT the law may exempt if a person doesn’t know the relevant facts
(ex: the father wasn’t aware he had a child that needed taking care of)
 Miranda Case: Mother abused baby and live in boyfriend (not baby father) did
not stop it. Court said that in this case he had a duty due to the common law
imposing that the failure to act constitutes a legal breach when one stands in a
certain relationship AND voluntarily has assumed the care of another.
4. Possession: Not such an issue today because possession requires knowledge of
the item and if you have knowledge that you have it and control over it, it’s
sufficient for possession. (must be knowing, not accidental)

 Even if the person doesn’t have physical control over item, can have
Constructive Possession if they have dominion (control) over it (ex: car trunk)
5. Status Crimes
 Can only punish someone for an act, not for a status
 Deal with the constitutional limits on making conduct criminal (8th- cruel and
unusual punishment)
 Robinson v. California: Court said that you cannot convict someone for being
addicted- it is a status, not something that carries moral blameworthiness. You
can punish for using narcotics, but cant punish for being addicted anymore
than for being ill. This case opened door to a slew of questions- where is the
line?
 Powell v. Texas: Arrested for public intoxication. State said they were
punishing for act of being drunk in public, not his status as an alcoholic. This
case shows that you can punish for an act but not a status, even if the 2 are
related.
o HYPO: If Powell was homeless and an alcoholic, he would probably
have no alternative than being drunk in public since he needs to be
drunk because of his illness as an alcoholic. Probably could not be
punished.
C. Circumstances (facts that limit the reach of the provision)
 In selecting circumstances, the legislature narrows the scope of that law.
o Can refer to specific victim, location, time, etc.
 Commonwealth v. Noel: Drunk driving a horse. The vehicle is the circumstance
and they have to decide if a horse is a vehicle. As long as interpreting a horse as a
vehicle is not unexpected and impermissible, it is allowed.

5
D. Harm
 Not all crimes require harm
 Some statutes punish not just the harm but the risk of harm.
 Sometimes the degree of harm is directly related to the amount of punishment (ex:
different levels of assault)
E. Causation (the linkage of the actus reus and the harm)
 Only an element when there is a harm.
 But-for causation: the harm would not have happened but for defendant’s conduct.
o Needed in every jurisdiction 100% of the time in order to hold someone
responsible. Some jurisdictions need only this, but most (including MPC)
also require proximate. There are 3 types:
o Intervening cause: When you do something and then some other event
occurs also that contributes to the harm. General rule: if the intervening
thing is independent, you are not responsible for the harm.
 EX: A shoots B. While B is in hospital, C stabs B. C caused death
so A is not liable for murder.
o Dependant cause: Someone created the second cause and is therefore
liable even though they didn’t directly cause the harm.
 EX: A stabs B. While B is in surgery, surgeon messes up and B
dies. Even though surgeon caused actual death, it is a dependant
cause because B would not be in surgery if not for A stabbing him,
so A is liable for the murder.
o Concurrent Causation: When two events occur, either of which could have
caused the harm alone, both are liable. Also, when 2 events together cause
the harm and neither would have caused it alone, both are liable.
 Proximate Causation: Asks if it is fair to extend criminal liability that far.
o Independent intervening cause: Usually not intended or foreseeable so it
would be unfair to hold defendant liable.
o Dependent intervening cause: It is fair to hold defendant responsible if it
was reasonably foreseeable or intended or in some places sufficiently
related to defendant’s conduct.
o Commonwealth v. McCloskey: Mother knowingly allowed party where
there was underage drinking and driving, drunk teen drove home and died.
Proximate cause: was it fair to hold mom liable? Yes.
F. Mens Rea (the mental component of the crime)
1. In General
 General mens rea: the defendant intended to perform the physical act
proscribed by the statute; they need not have intended the consequences of
that act.
 Specific mens rea: the defendant had the intent to cause the social harm of the
offense.
2. Model Penal Code (MPC)
 All of the following are downwardly inclusive: when 1 of the 4 are present,
automatically so are the ones below, but not the ones above. (ex: if you are
reckless you are also criminally negligent but not purposely).

6
 a) Purposely (intentionally): You wanted the result to happen, it was your
purpose in doing the act.
 Usually specific intent
 EX: Throw a grenade at someone to kill them.
b) Knowingly: Involves knowledge, but not certain. It was practically certain
to occur.
 May also cover awareness- you are aware that someone could die if you
stab them 20 times in the heart.
 EX: you saw a cop coming and threw the grenade into the crowd to get
rid of it, knowing someone will die from you pulling trigger and
throwing it.
c) Recklessly: “I knew it might happen, but I did it anyway”
 The most difficult to understand. For reckless the standard is
reasonable person. It requires:
o 1- a SUBJECTIVE awareness of the risk and despite that
risk you did it anyways, AND
o 2- the risk must be a very bad/high risk, AND
o 3- you displayed a gross deviation of the standard of care of
a reasonable person (objective component).
d) Criminally Negligently: You were not aware of a risk, and the failure to
perceive that risk was a gross deviation from the standard of reasonable care.
 Objective standard!
 The risk is the same as in recklessness, however in criminal
negligence you are not aware of the risk.
 Definition of criminal negligence talks in terms of you SHOULD
have been aware of a risk, not that you actually were.
3. Transferred Intent:
 A shoots to kill B but misses and kills C. A is still liable.
 The harm that occurs must be the same type as the harm intended.
 Transferred intent is not transferred based on the nature of the person.
o If you intend to shoot a normal citizen but instead shoot a cop,
you are not guilty of the higher crime of shooting a cop.
 There is also transferred recklessness and negligence, but it basically
never applies because if you are reckless/negligent to one and
someone else ends up getting hurt, you were probably
reckless/negligent to them too.
4. Ostrich: Deliberate Ignorance- arises when the mens rea is knowing. Difficult
element to prove because you must go into the person’s head and determine what
he knows.
 Jewell instruction: adopted by basically every court in US. Deals with the
person who tries to avoid getting information. Resolve the issue by relaxing
the definition of “knowing/ knowledge”
o Some courts require proof of deliberate ignorance as a prerequisite
to a Jewell instruction.
 US v. Heredia: Border patrol found 350 lbs of marijuana in her trunk, she said

7
 it was her aunts and she was suspicious but couldn’t check because of
traffic, etc. She said court erred in giving jury Jewell instructions because it
changed the mens rea and that if they did give them, the prosecution should
have to prove a motive for remaining ignorant. Court disagreed on both.
G. Strict Liability (does not require proof of any mens rea)
 Usually are not very serious offenses (speeding) but sometimes are (statutory rape)
 Policy behind is: to make you take special care, and in cases when proving a mens
rea is basically impossible.
 People v. Hoskay: Court held that “public indecency” was a strict liability crime
because there was no mens rea in the statute (however, when the conduct
necessarily involves a mental element, the court should read a mens rea into the
statute, ie for possession)
o Courts will sometimes look to common law or legislative intent to assess
whether a mens rea should be inferred.
o Recently, this isn’t an issue because modern criminal laws specify whether
there is a mens rea element.
 The MPC says if there is no mens rea in the statute, it must be at least reckless-
recklessness is the default mens rea.
H. Interrelationship of Elements
 Causation is link btwn actus reus and harm (only if there is harm)
 Actuation: the actus reus must happen because of the mens rea-there IS a
relationship. (this is rarely an issue)
o It is the combo of the act and mind that make a higher moral
blameworthiness.
o There must be a relationship btwn act and culpable mental state, though
they don’t have to happen at same moment (although they almost always
do)
 When a statute includes both circumstances and result elements, the 2 usually must
exist at the same time.

V. Proof Beyond a Reasonable Doubt

A. Basic Rule: Crime Elements
 Burden of proof has 3 categories:
o Standard of Proof: the degree of certainty that must be established
 Prosecution must prove each element beyond a reasonable doubt.
o Burden of Production: which party initially must produce at least some
evidence on a specific issue in order to make that issue one to be
considered in the case. Sometimes called establishing a prima facie case.
 Prosecution has burden of production for elements of a crime.
o Burden of Persuasion: which party has the task of convincing the trier of
fact that a particular fact exists.
 Prosecution has burden of persuasion for elements of a crime.
 Burdens for crime elements all fall on prosecution through 5th and 14th amends
B. Defenses

8
  States are free to assign various burdens and standards of proof for defenses.
 Defenses:
o Usually  has burden of production, then burden of persuasion shifts to
the prosecution to disprove the existence of the defense beyond a
reasonable doubt.
 Affirmative Defenses:
o  usually has both the burdens of production and persuasion by a
preponderance of evidence.
C. Defining “Beyond a Reasonable Doubt”
 Judges must instruct jurors on reasonable doubt standard, but no particular form of
instruction is required.

VI. Homicide Crimes

A. Overview of Homicide
 Must determine what life is and what death is. Technology complicates this.
 Traditional rule: victim must be born alive “a reasonable creature in being”
meaning separate from mom, breathing on its own.
 General rule: Traditional test- heart stops beating and breathing stops, OR the
Modern brain death test: Irreversible brain death (important for transplants).
Either standard is dead from legal perspective.
B. Pennsylvania Model
 The 4 categories of homicide are not exclusive- if you have murder 1, you can also
have criminal negligence. (though you cant be convicted of more than 1 because
of double jeopardy)
1. Malice Aforethought:
 A heart disregarding human life- something about their spirit makes them
especially morally blameworthy.
 4 Categories. If any exist, malice aforethought exists:
o Intent to kill
o Intent to injure seriously
o “depraved heart carelessness”- an extreme degree of carelessness;
wanton and willful disregard of a risk to human life.
o Felony- if you committed any felony and a death resulted (felony
murder rule)
 Malice aforethought is the distinguishing characteristic amongst the 4 degrees
of murder (1st and 2nd degree murder have it, voluntary and involuntary
manslaughter don’t)
 Requires neither malice nor aforethought, some accidental killings qualify.
2. Premeditation-Deliberation (First Degree Murder)
 1st degree murder is the only crime that carries the death sentence.
 Can occur in 1 of 2 ways:
 1- Willful, deliberate, and premeditated
o All 3 of these subjective mental states need to be proven beyond a
reasonable doubt.

9
 o Willful: the killer’s purpose in engaging in the actus reus is to kill the
person; an intentional killing (specific intent)
 The willful is the malice aforethought
o Deliberate: the killer acted with a cool state of mind.
o Premeditate: requires some advance planning occurring before the fatal
blow is struck.
 Need not be long a planning, in some cases an instant sufficed
o Carroll Case: Couple is in bed, they fight, 5 minutes later he shoots her
with the gun on the windowsill and tried to dispose of body. The issue
is whether premeditation is present making this 1st degree murder.
Court said there was premeditation- a brief time will suffice, no instant
is too small for an evil person to plan and premeditate.
o Anderson Case: Man kills little girl, sexual wounds, girl ran to different
rooms, brutal killing. The issues are premeditation and deliberation (it
wasn’t a felony murder since it couldn’t be proven that he sexually
abused her). The drawn shades and locked door could have been him
premeditating to abuse her. There was not enough evidence of either
premeditation or deliberation.
 2- Felony murder: a homicide that occurred during the commission of a listed
felony is 1st degree murder.
o Felony must be the cause of the homicide.
o Often easier for government to prove- they only need show the mens rea
for the predicate felony as opposed to willful, deliberate, premeditate.
3. Depraved Heart (Second Degree Murder)
 All homicides with malice aforethought that are not 1st degree murders.
 Can occur in 1 of 4 ways:
 1- Intent to Kill (without premeditation and deliberation):
o A homicide is 2nd degree murder if it is willful but not deliberate or
premeditated (or both)
o The willfulness establishes malice aforethought, but without the
other 2 elements, it cannot be 1st degree.
 2- Intent to do serious bodily injury
o Intent constitutes malice aforethought, but it is not willful, so it
cannot be murder 1
 3- Depraved heart: a killing so careless; involves extreme recklessness; an
act that shows extreme indifference to the value of human life.
o At common law, it was considered an implied malice.
o Some jurisdictions assess objectively (was degree of risk
excessive) and others assess subjectively (require an awareness of
a serious risk, then a conscious disregard of this risk)
o Knoller case: Couple has 2 aggressive dogs who attack and kill a
neighbor. CA requires awareness/recklessness.
 Trial court said she can only be guilty of murder is she was
aware that her conduct created a high risk of death- this
was too high a standard.

10
  App Court said she needs to be aware of a risk causing
serious bodily injury- this was too low a standard.
 CA Supreme court said defendant must have acted so that:
 There is a high probability of death (objective)
 AND a conscious disregard to the risk/danger to
human life (subjective)
 4- Felony murder: homicide that occurs during a felony not listed for 1st
degree murder. There are many limitations (see below)
4. Felony Murder
a) The Rule:
o If the homicide is committed during the course of a felony, it is a
murder.
 The felony satisfies malice aforethought
o If the felony is a listed felony, it is 1st degree murder, (generally
speaking) if it is any other felony, it is 2nd degree murder.
b) Limits on Felony-Murder Rule
o All only apply for 2nd degree murders, NOT 1st degree murders!
i. Nature of Felony
 Jurisdictions limit the felony murder rule for 2nd degree murder
to only dangerous felonies.
 Dangerousness is assessed in 1 of 2 ways:
o Inherently Dangerous: Courts look at the elements of
the crime in the abstract to see if it can be committed
without a high risk of death/serious injury.
 It is objective
o Dangerous Act: limit the rule to 2nd degree murders to
felonies that occurred while the defendant was doing an
act dangerous to human life. (Totality of circumstances
view)
 It is subjective- looks at defendant’s conduct in
the case
 State v. Anderson: had a prior conviction so him having gun
was a felony and he killed someone. State rule said any felony
is felony murder except a few. Here, court narrowed this. 2
ways to analyze:
o Look at elements of the crime
o Look at facts, what happened (totality of circumstances)
o They looked at totality of circumstances and decided it
was dangerous and felony murder rule should apply.
ii. Merger, Etc. – rule against basing felony murder on felonies inherent
in the homicide, it’s an issue of legislative intent.
 If you committed an involuntary manslaughter, that is a felony so
without merger, it would automatically be murder 2. This would
eliminate manslaughter.
 Assault/battery is also usually merged with murder

11
  Often, if there was an independent felonious purpose other than
killing/seriously injuring the victim, the courts will use this to
qualify it as murder 2.
 Another use of the word “merger”: many jurisdictions say that if
arson bumped the homicide to murder 2, you cannot be charged
for murder 2 AND arsonthe 2 crimes are merged together.
 Kilburn case: Man knocked on door, showed gun, forced victim
inside, then took him into room and shot him. Court held it can
be felony murder because there were 2 assaults and only the 2nd
was merged. This shows a way around the merger rule.
 Sophophone case: while 1 burglar is arrested, other is shot by cop.
Is it fair to hold surviving burglar liable? (proximate cause).
Court said that the killing resulted from the lawful acts of a cop
so defendant is not criminally responsible for accomplice’s
death.
iii. Causation: the death must be caused by the commission (or
attempted commission) of the felony. (often extended to the
immediate flight after the predicate felony)
 Duration of felony: death occurred because of and during the
perpetration/attempted perpetration of the felony.
o Res gestae of the crime: the timeframe- there must be a
closeness in time and distance between the crime and the
homicide. (Same transaction)
 Death of co-felon: usual rule is when a co-felon accidentally kills
himself, the other is liable for the accomplice’s death
 Killing by non-felon: ex- clerk kills 1 in self defense during robbery
o Under but-for causation, either is liable
o This extends liability far because usually the clerk’s shooting
isn’t a crime because self defense. Court’s use 2 approaches:
o 1-Agency Theory: a felon is responsible only for those
crimes committed by his agent (clerk is not his agent)
o 2- Proximate Cause Theory: holds a felon responsible for
deaths that are reasonably foreseeable consequences of the
felony (it’s foreseeable a clerk may use gun in self defense)
 A “cone of violence” is set in motion by the predicate
felony.
5. Voluntary Manslaughter
 Sudden heat of passion as a result of legally sufficient provocation.
 Includes an element of comparative fault (victim contributed somehow)
 Often involves an intentional killing but doesn’t show enough moral
wickedness to amount to malice aforethought.
 Has been used for imperfect self defense- self defense could be appropriate
but some aspect of it is missing and defendant nevertheless killed.
 Heat of passion:
o Defendant was in extreme emotional state.

12
  Insufficient cooling time:
o Must not have had time to cool off after provocation
o Usually jury decides if defendant cooled off
 Legally sufficient provocation:
o Must be provocation
o Must be of such gravity that it would cause even a reasonable person
to act rashly from passion rather than calm reason and judgment.
 Tresspass, slight battery, and mere words are usually not
enough.
 Words combined with acts may suffice.
 Informational words may qualify if they relate to facts that
would suffice provocation.
o Defendant cannot have forced/lured the victim into provocation.
 Avery Case: Avery was cheating on her bf with decedent, the 2 got into a
fight, she shot him. She said it was wrong for court to not instruct jury of
voluntary manslaughter charge. Court ruled that her story raised the issue of
sudden passion, so if jury believed her, they could find voluntary
manslaughter, so it should have been instructed to jury. Although words are
not enough, this case shows that sometimes past events may be relevant to
show the reasonableness of the passion to which defendant was provoked.
6. Involuntary Manslaughter
 Does not involve malice aforethought and the killing is unintentional.
 2 different types: misdemeanor-manslaughter and criminally negligent
homicide
 Criminally negligent homicide (a lawful act in an unlawful manner):
o Criminal negligence involved an especially significant departure
from the conduct of a reasonable person.
o It is common for it to be applied to negligence by omission
 Misdemeanor-manslaughter (an unlawful act):
o A homicide during the commission of an unlawful act other than a
felony triggering the felony murder rule.
o Many jurisdictions limit it to only dangerous misdemeanors.
 Robertson Case: Defendant was running from cops, jumped over a space in a
bridge, cop followed him, fell off, and died. Convicted of involuntary
manslaughter. Running from police on bridge at night is gross deviation of
standard of care of reasonable person. Conviction was affirmed.
C. Model Penal Code Approach
 No malice aforethought/ implied malice/premeditation-deliberation
 MPC has the idea that you fine-tune moral blameworthiness punishment at
sentencing, not in the definition of the crimes.
 MPC has only 3 homicide crimes:
1-Murder: a criminal homicide that occurs purposely (intentionally), or
knowingly, OR; recklessly under circumstances manifesting extreme indifference
to the value of human life.
 Killing in commission of 1 of 6 serious specified felonies establishes a

13
 presumption of “extreme indifference to the value of human life”, but does
not definitely satisfy it. (it is up to the trier of facts)
2-Manslaughter: a homicide committed recklessly or is committed under the
influence of extreme mental/emotional disturbance for which there is a reasonable
explanation/excuse.
 A manslaughter committed recklessly is a less extreme variety of
recklessness than in murder.
 Takes a subjective approach- the reasonableness of the actor’s
explanation/excuse is determined form the viewpoint of a person in the
actor’s situation under the circumstances as the actor believes them to be.
 Disturbance need not be sudden, need not be caused by deceased, words
are enough, there is no cooling off rule.
3-Criminally Negligent homicide: a killing committed with criminal negligence (a
gross deviation from the standard of a reasonable person)

VII Assault, Sexual Assault, Etc.

A. Assault
 Attempted-battery Assaults:  failed in an intentional effort to inflict bodily injury
on victim.
o Focuses on actions of  rather than reaction of victim (victim need not be
aware)
o Requires an intent to do physical harm (not merely frighten)
o Actor must come close to actually inflicting the harm
o Some jurisdictions require a present ability to inflict the harm
 Frightening Assaults: intentionally causes someone to be reasonably frightened of
suffering immediate bodily harm. Punishes those who intentionally cause fright
rather than physical harm.
o No present ability to inflict harm is needed, but victim must suffer actual
fright.
o Victim is usually held to reasonable person standard with normal
sensibilities
o  must intend to frighten- being negligent or reckless is insufficient
o Sometimes future harm will qualify (ex: a conditional threat)
 Battery:
o Physical contact without consent
 Contact may involve various degrees of harm (reflected in degree
and sentencing)- serious bodily injury; bodily injury; offensive
touching.
o All jurisdictions apply battery to intentional harm
 Transferred intent applies
o Some juris’s extend battery to reckless and criminally negligent injuries
o A few juris’s extend to harm caused by (during the commission of)
unlawful acts
 MPC Combined Offense: 2 crimes- simple assault and aggravated assault

14
 o Simple Assault: Purposely, knowingly, or recklessly causing bodily injury;
OR attempting by “physical menace” to put another in fear of imminent
serious bodily injury.
 Negligently causing bodily injury can be simple assault if a deadly
weapon is used.
o Aggravated Assault: (3 kinds)
 Purposely, knowingly, or recklessly causing serious bodily injury
under circumstances manifesting extreme indifference to the value
of human life
 Attempting to cause serious bodily injury
 Attempting to cause bodily injury with a deadly weapon.
o Aggravating factors:
 Degree of harm
 Especially grave intent
 Nature of victim
 Especially dangerous means of inflicting harm
 Limits on consent as a defense:
o Consent does not permit infliction of serious injury or death.
 Exception: a medical context (ex: a surgeon)
o The harm must be within the scope of the consent (ex: sports)
o Person giving consent muse be legally competent to do so
B. Harassment, Stalking
 Generally done for the purpose of putting someone in fear- fear of either physical
harm or mental anguish.
 Stalking statutes require repeated activity, not just one time.
 Some juris require that it actually put the victim in fear. That it was somewhat
successful.
 Mens rea:
o  must intend to do the prohibited acts (like repeated calls)
o In many juris,  must do so for the purpose of causing the victim to be in
fear or suffer mental anxiety and the like.
 Usually a misdemeanor but can be a felony if there is a deadly weapon or if it
violates a previous order of protection.
C. Domestic Violence
 Many of these crimes would be an assault.
 Victim often doesn’t want to pursue charges, however, the victim of a crime is the
state, so state can pursue the case even if victim doesn’t want to.
o State can also force victim to testify- spousal privilege usually does not
apply in these situations.
 Arrests:
o For dom. viol. calls, law is generally that police officer may arrest for
felony anytime there was probable cause (reasonable suspicion)
o Law of arrest says that for a misdemeanor, an officer may arrest ONLY if
crime occurred in his presence. (He must have seen misdemeanor)
 Some juris changed law to being able to arrest based on probable

15
 cause for a misdemeanor.
 In these cases, the totality of circumstances may furnish
probable cause.
 A lot of DV cases are misdemeanor assaults- not serious injuries
o Victim could go to courthouse and execute an arrest warrant.
o Some juris made mandatory arrest statutes (NJ), requiring officer to make
an arrest if there is probable cause on a DV call.
 Some of these statutes also have mandatory sentencing options (ex:
mandatory anger management/counseling)

VIII: Property Crimes

A. Overview
1. Overview
 Concepts of personal property matter because the pigeonhole the crime fit
into was determined by these concepts. They determine the legal
relationship to an item.
2. Basic Property Concepts
 Custody: physical control over the property, usually for a very short time and
particular purpose.
o EX: trying on a tie in a store- owner gave you custody for short time
 Possession: Exclusive control, usually a longer period of time than custody
and with more rights.
o Person in possession has actual or constructive possession with the
intent to possess it and the right to exclude others from possessing it
at that time.
o A strong exclusivity- you rent/borrow something but it is limited.
o EX: Renting a car
 Bailment: Special relationship between somebody and property. Creates
special obligations of care.
o Involves a transaction between the bailor (who transfers property
and physical control over property) to bailee (who gets possession
but not title) for a particular purpose.
o Created by express or implied contract
o EX: Dry cleaner is the bailee when you give him your shirt.
 Title: Ownership
o Can do whatever you want with it (burn, destroy, etc.)
o Title is not a piece of paper- if you lose deed to your house, you still
own house.
 Abandoned Property: The person with title relinquishes all interest in property
o If owner abandons and relinquishes his rights, nobody owns it.
o Abandoned property: if you find it, you own it.
o A purely mental thing by the owner- he chooses to give it up.
 EX: if you find couch on side of the road, you do not own it
if owner was intending to move it in and he didn’t want to

16
 relinquish ownership. If you take it, it is stealing.
B. Traditional Approach
1. Larceny: obtaining possession of property through theft.
 Originally, one was only guilty if they took it from someone’s possession. If
they had possession and then took it, they weren’t guilty so larceny
expanded.
 Doctrine of Constructive Possession: At this minute, you are in possession of
all of your stuff at your apt, even if it is miles away.
a) “Regular” Larceny
-ELEMENTS:
 A Trespassory- without consent
 Taking and- securing dominion/control over
 Carrying Away of- (asportation); requires some kind of movement.
o Jurisdictions differ as to how much is enough. In many, a
slight movement will suffice.
 Personal Property- Not real property.
o Property attached to land cannot be the subject of larceny.
o Modern laws now allow services and animals to be the subject
of larceny.
 of Another Person- someone else’s possession (NOT ownership)
o Larceny is a crime against possession NOT ownership. If
victim is dispossessed of property by , even if  owns it, it is
larceny.
 with Intent to Permanently Deprive- your plan is that original owner
has no further interest in it. 2 Mens rea:
o Intentional deprivation of property from possessor.
 If you took it b/c thought it was yours, no larceny.
o Intent to deprive had to be permanent.
 Permanent can be a substantial amnt of time, or an
amnt of time that deprives property of its value.
 If you take it temporarily and later decide to keep it, the
necessary intent was not there at the time of the
trespassory taking, so this is not larceny.
-People v. Meyer: Man put overcoat on dummy outside store and
attached coat to dummy and dummy to building.  grabbed coat and
started to leave with it but didn’t get anywhere b/c it was attached to store.
 This was not larceny. Focused on asportation element- it was not
carried away. Also may have been a taking issue- he didn’t have
any independent control over it.
b) Larceny by Trick- same crime as larceny but includes the situation where
possession is obtained by fraud/ deceit.
 King v. Pear: man shows interest in buying horse, rides horse with
owner’s consent, and rides away with it.
c) Larceny by Bailee- same crime as larceny but includes bailment situations
 Theft by bailee doesn’t fall into larceny because bailee may have

17
 gotten possession with a clean mind and then decided to keep.
2. False Pretenses: Title is obtained through trickery.
-ELEMENTS:
 Transfer of title- owner must intend for his ownership interests to go to
person.
 Intentional misrepresentation- lies told about past/present facts.
o Lies/predictions about future facts do NOT suffice.
o An omission can be false pret. if  has a duty to disclose
 Facts are untrue- even if person thinks it is lie, if it is true, not false pret.
 Misrepresentation is material- the lie is the reason the deal happened.
 Mens rea: knowledge that the fact is false AND intent to defraud
-Phebus case:  switched price tags. Not larceny b/c not trespassory; not larceny
by trick b/c he secured title, not possession. False pretenses because: intended to
misrepresent a present fact, fact was untrue, misrepresentation was material.
3. Embezzlement: Lawfully (with a clean mind) obtaining possession of property,
then wrongfully converting it to one’s own interests.
o Fraudulent breach of trust/fraudulent conversion: statutes that
broaden embezzlement to any situation where someone acquires
possession as the result of any position of trust.
-ELEMENTS:
 Entrustment- victim entrusts the property to .
 Conversion- fraudulent conversion of the property by the person with
otherwise lawful possession.
o The conversion must be a serious interference in the owner’s
property rights by  who takes it for his own use.
  need not necessarily gain anything/benefit
 Mens Rea: specific intent crime- intend to fraudulently convert the property
to personal use. (But need not be to permanently deprive.)
4. Differences:
 Embezzlement occurs when thief takes lawful possession then converts to
his own use; Larceny occurs when thief takes property from someone
else’s possession but wasn’t given possession by that person.
o But if they obtain possession by trickerylarceny by trick
 ’s mens rea at time he acquired property is a big difference between
larceny and embezzlement:
o If used trick to gain possessionlarceny by trick
o If acquired with a clean mind, then converted embezzlement
C. Modern Consolidated Approach (EX: MPC)
 Substitutes a single unified “theft” offense for: larceny, larceny by trick, larceny by
bailee, embezzlement, false pretenses, receiving stolen property, and similar
offenses.
o Extortion is not part of the consolidated crime in many juris
 All the crimes will be covered under the consolidated statute, just a ? of why/how
 Example: NY §155.05—Consolidated Theft Statute
o Elements:

18
  Wrongfully (without consent, by threat, or by deception)
 Takes/obtains/withholds (no more asportation)
 Property (no distinction between title, possession or custody)
 Of Another
 With intent to deprive or appropriate (no more permanently;
doesn’t matter when evil intent is acquired)
 From the owner (defined as the person who has a right to
possession)
D. Receiving Stolen Property
 Mens Rea (2):
o  had knowledge that it was stolen, AND
o  intended to deprive the owner of the property
 A crime in almost every juris. Usually included in consolidated theft statute
o Consol rules cover embezzled property as stolen property
 Many juris made the crime receiving OR concealing.
 Usually punished the same as the theft of that property. Severity related to value.
o The value is a circumstance, not a mens rea- doesn’t matter if you didn’t
know it was worth that much when you got it.
E. Gap Fillers
1. Theft of Services- consolidated theft covers anything of value. Still concern over
theft of services so this was passed.
2. Joyriding- makes taking a vehicle with knowledge that you don’t have
authorization to do it illegal.
 Theft requires taking permanently, so joyriding didn’t fit into that.
3. Forgery- altering/executing a document that is not the document it purports to be
WITH the intent to defraud.
 Often covered by false pretense statutes.
 Every juris has law that if you write check knowing there isn’t enough $/ that
it isn’t yours/ it’s a forged signature (etc.) it is a crime.
o Controversial b/c comps may threaten criminal charges if checks
bounce.

IX. Theftish Crimes, Sometimes Violent

A. Robbery
 An aggravated form of larceny. The aggravation is the risk of harm.
 Includes the elements of larceny PLUS 2 additional elements:
o Theft occurs by force/violence or by threat of immediate force/violence
 Force/violence must be in addition to the force needed to take the
property (ex: purse snatching-nudging arm is not enough force)
 Traditionally, the force/threat had to be before/at the time of taking
 Now, MPC and many juris extend robbery to force/threats “in the
course of” takings or “to retain possession”
o Taking must be from the person or presence of the victim (close proxim)
 Proximity requirement because it increases the likelihood of harm
 Constructive possession: extended to cover situation when victim

19
 is tied up and thief takes property from other room of house.
 Robbery does not make the custody/possession distinction that larceny does
 Often a listed felony for the felony murder rule.
 Carjacking crime- many are robberies. It is a listed felony in some juris
 MPC robbery provision applies only if  commits/threatens serious bodily injury
(which is an objective and high standard)
 Never included in consolidated statute- always its own, more serious crime
B. Extortion
 ELEMENTS:
o An intent to obtain the property of another, and
o A threat to injure the property or reputation of another.
 Some juris- extortion is to make threats for not doing something a
that a person has the right not to do (ex: go on date with someone)
 Under MPC, this is NOT extortion b/c it is not a transfer of
property
 Overlaps with robbery but primary distinction is that robbery is threatened/actual
force against person and a taking from person/presence; while extortion is a threat
against property or reputation.
 Worse than larceny but not as bad as robbery
 Does not have to be successful- can be an attempt but no property transfer occurs
 Some juris include it in their consolidated crimes, others make is a separate, more
serious offense.
 Claim of right: an affirmative defense, designed to allow people to work things out
between themselves without the legal system.
o “If you return my car I will not call cops”
 US v. Jackson: Bill Cosby’s alleged daughter asked for $40 mill or else she would
go to press. Wrongful in 2 ways:
o Threats to injure someone’s reputation are inherently wrongful.
o Threats to injure someone’s reputation when there is no claim of right
(they aren’t entitled to money) is inherently wrongful.
C. Burglary, Trespass
 Common law burglary ELEMENTS:
o (1) Breaking and (2) Entering of (3) The Dwelling (4) Of Another (5) At
Night with (6) The intent to commit a felony therein.
 MPC and modern statutes have changed these elements
o Often eliminate breaking requirement
o MPC uses entry, but many modern ones say enter or remain.
o Many take away dwelling requirement but use that as aggravating factor
o Night is usually eliminated but is an aggravating factor.
o Many juris change last to intent to commit a misdemeanor
 Possession of burglary tools:
o Many juris have this but they punish the possession with the intent to use
them in a burglary.
 Mens rea is key because any toolbox has burglary tools

20
 o This attempts to reach earlier to the burglary- gov’t must prove you
intended to use in a burglary.
 Criminal Trespassing: Entering (or sometimes remaining) on someone’s property,
KNOWING {mens rea} you do not have the right to be there.
o Some juris say rural areas cant have crim trespassing unless there is notice
o Almost always a misdemeanor
o Does not apply to abandoned property
X. Preparatory Crimes
A. Overview
 Allow police to intervene in the early stages of a crime, before the target crime has
been accomplished, which benefits the public.
 The three are NOT mutually exclusive- they are all separate.
 General inchoate crimes: apply to virtually any offenses
 Specific inchoate crimes: narrowly written to address a specific social crime (ex:
conspiracy to commit bank fraud)
 Punishes for having same moral culpability as the target crime.
o Punishment is usually linked to that of the target crime.
B. Attempt-  makes an effort towards committing target crime.
 Punishes risk of harm rather than actual harm
 Law of attempt divides into 2 different stages:
o (1) Preparation
o (2) Perpetration
1.) Punishment:
 General rule: Merger is that if  carried out crime, they cannot also be
convicted of attempt for that same crime; the 2 crimes are merged if target
crime is achieved
o However, it is a lesser-included offense of the target crime so if
government fails to prove completion of the target crime,  can
still be found guilty of attempt.
 Grading of attempt is dependant on target offense. (attempt to commit a
misdemeanor is treated as a misdemeanor; attempted felony treated as
felony)
o Majority of jurisdictions: punishment for attempt is less than
object crime.
o Minority rule: same punishment as target crime.
 Usually there can be no attempted assault/attempted battery because that
is assault.
2.) Actus Reus
o When you cross the line from preparation to perpetration, the crime of
attempt has been committed.
o The line is the actus reus- until you cross that line, you have not
committed an attempt.
o Tests of conduct:
 Dangerous Proximity test: Looks at the physical aspects of the
conduct to determine how close  was to actual commission of

21
 offense.
 A very soft test, sometimes police will avoid making an
arrest until it gets closer to the crime.
 Res Ipsa Test: You cross the line when the acts themselves
manifest the criminal intent.
 Substantial Step Corroborative of the Criminal Purpose Test: 
purposely does/omits to do anything which (under the
circumstances as he believes them to be) is a substantial step in
course of conduct to commit object crime.
 Must also prove that the substantial step is strongly
corroborative of the person’s intent to engage in the crime.
o MPC uses this test
3.) Mens Rea: 3 required mens reas:
o Intent to commit target offense: specific intent crime
 Usually recklessness or negligence does not suffice (you cannot
attempt a reckless/negligent crime)
o Intent to engage in the conduct constituting the attempt
o Mens Rea required for target crime
o Mens rea is often inferred by the actus reuscircumstantial evidence.

4.) Potential Defenses:

 Impossibility:
o Factual impossibility: when  is mistaken about the facts
surrounding the crime such that it cannot be accomplished.
 NOT A DEFENSE TO ATTEMPT
 Look at the facts as the criminal believes them to be.
 EX: Shoot a dummy instead of a person.
o Legal Impossibility: There would be no crime even if the object of
the “crime: had been accomplished.
 Is a defense- not punished for something not a crime
 Prevents the individual from making up his own criminal
laws and then being guilty of them.
o Inherent Impossibility: Taking steps to commit a crime but uses
means that make the crime inherently impossible to accomplish.
 EX: Attempted murder by sticking pins in a voodoo doll.
 Few juris’ mention in their laws- few cases on it.
 MPC says ct can reduce/dismiss these charges because they
are not a threat to anyone.
o People v. Thousand: Sting operation man sent nude picture online to
who he thought was a minor but was cop. Couldn’t charge with
distribution to minor because she was cop, so  was charged with
attempted distribution to minor.
 Dispute over what kind of impossibility if was. Would
probably be factual impossibility.
 This is not defense because ct interpreted facts as he thought

22
 they were, so he was guilty.
 Renunciation:
o Designed to provide incentive to stop and not do object crime.
o Lets you remove the attempt crime after you’ve already committed
it.
o An affirmative defense to attempt, solicitation and conspiracy
o ELEMENTS:
 A complete mind change
 Complete NOT conditional (won’t kill today, will kill
when sunny out)
 Voluntary
 Product of your own will- not by extrinsic factors
making detection or difficulty of crime more likely.
 Object crime must not occur!
 Even if it occurs because of codefendant and you did
your best to prevent it, there is still no renunciation
defense.
 Minority of juris’ add element requiring you to alert
police that someone else is involved.
C. Solicitation- trying to get someone else to help you
 Bases on important idea that group criminality if viewed as especially dangerous.
 Focuses on the danger created by person who initiates criminal activity irrespective
of whether activity occurs or whether  gets person to join in scheme.
 Actus reus: Very broadwhen you try and get another person to commit the crime.
o Request for indirect assistance is not solicitation if recipient is not being
asked to participate directly in criminal conduct.
 Exception: MPC
o Innocent instrumentality is different from solicitation.
 Dispute between whether there must be successful communication:
o MPC: doesn’t matter if communication is successful-  still just as evil
o Other juris’ say must be a successful communication
 The harm is the solicitation irrespective of whether person accepts.
 Mens rea: Specific intent must intend to get other person involved in crime.
o Cannot do it recklessly/negligently
o If the object of the solicitation is a crime that entails a specific result, 
must intend that solicitee achieve that criminal result and not merely
engage in conduct causing the result.
 EX: A tells drunken B to drive C home; car accident C dies, A not
guilty of solicitation.
 Usually occurs before attempt, so solicitation does not form attempt (it’s still
preparatory)
 Defenses:
o Some juris’ recognize impossibility as a defense
o Renunciation is defense (same elements as attempt renunciation)

23
 o Cts usually hold that victim of crime cannot be solicitor.
 EX: Underage girl telling older bf to have sex with her.
 Many juris’ require a corroboration- cannot be convicted solely on testimony of
accomplice
o Fear they may rat out innocent people to get lower sentence.
D. Conspiracy- a successful solicitationthe person did join you
1.) In General
 Theory behind it is that group criminality is worse than single criminality, so
the group effort (conspiracy) is punished as an additional, and often
separate, crime.
 No specific sentence to conspiracy, it is tied to what the object crime is.
 Each conspirator is responsible for certain crimes of each and every other
conspirator.
o Extends liability far beyond what your actual role in conspiracy was
o If 100 people in 1 conspiracy selling drug all over country, they are
ALL liable for ALL/ANY of their crimes (even non-drug related)
 It is possible to have a conspiracy without solicitation- if 2 ppl get together
and come up with idea together.
2.) Advantages for the prosecutor:
 Joinder: All conspirators charged with a crime may be joined together in 1
trial
o Meaning 100 may be charged together so it is much harder for 1 to
deny involvement because of guilt by association.
 Venue: Trial can be held where any act by any conspirator occurred.
 SOL: The SOL does not begin to count down until the conspiracy ends.
o Conspiracies usually go on a while, so they can usually be charged
many years after object crime.
 Evidentiary: Hearsay rule limits gov’t proof in a crim case
o There is co-conspirator’s hearsay exception-hearsay rule doesn’t
limit conspiracy proof in some cases; makes it easier for gov’t to get
evidence in an crim case
3.) Types of Conspiracies: ways to look at structure of conspiracy, tells you nothing
about who is in a conspiracy with whom.
 Spoke Wheel Model: There is a central figure that is dealing with people on
the outside.
 Chain-link model: ABCDE (A sells to B who sells to C, etc.)
o The fact that there is a chain-link model doesn’t tell you who is in a
conspiracy with whom because they could all be 1 or individual
conspiracies.
o Must examine liab of each individual party by looking at elements of
conspiracy.
o Key is the agreement-does A agree to be in with just B or all?
 Can have a spoke wheel that is a chain link
 MPC:  can be guilty of joining larger conspiracy if he knows that someone
he conspired with to commit a crime also conspired with another to commit

24
 same crime. ( doesn’t need to know other persons identity).
4.) ELEMENTS
 Plurality: more than 1 conspirator is required.
o If 1 of 2 parties feigns agreement (ex: informant), there is no
conspiracy.
o Jury must find more than 1 conspirator, although it need not find
both guilty.
o MPC uses unilateral approachstill a conspiracy if a party was
faking agreement so there is technically only 1 party. (Undercover
agent issue)
 Agreement: an understanding btwn 2 ppl that they’re in together (not a K)
o Can conspire with people whose identity you don’t know as long as
agree to be part of enterprise as a whole.
o Hard to prove because: often understood but not expressed; diff
understandings; people leave and enter conspiracy regularly.
o Gov’t will prove by circumstantial evidence; jury question
 Criminal Conduct
o Some juris have conspiracy only for felonies, others have for
misdemeanors too.
 Mens Rea: (there are 2)
o Intent to agree: agree to be part of larger whole w/ others in scheme
 Need not know how many/who else is in it, you are part of
whole.
o Intent to promote (the facilitation of the crime): in this and intend for
this crime to occur.
 Must agree to help out this crime.
 Supplier becoming conspirator requires more than
knowledge
 When knowledge morphs into intent: cts look to: Do you
have stake in the transaction? An interest? Does item have
legit use? How long did it go on? Did you help conceal
crime? Is it a really serious crime?
 Direct sales: drug manufacturer sold huge amnts of
morphine to Dr. for 7 yrs. Held that manufacturer was
a conspirator-he had knowledge, it went on for a
while, and it was more than any other Dr. used.
 Laurie Case: Prostitution used answering service; ct
held that was not a part of a conspiracy here.
 Roy Case: Held the opposite of Laurie. Was more
involvement- offering business advice and
introducing somebody to a prostitute. That additional
stake in venture yielded conspiracy liab.
 Lawrence case: man rents out trailer for meth
production for $1,000 for day; knew what was
happening (tarped area, sampled product), then

25
 changed his mind, made them leave. Ct said no
conspiracy b/c he was not enough a part of it and
didn’t have a stake in the venture.
 A number of juris have criminal facilitation: knowing it is
probable that what you are providing is being used in a
crime, but providing the aid anyway and the felony occurs.
 Meant to get sellers who don’t qualify for conspiracy
o MPC: person must agree with “the purpose of promoting or
facilitating” the object offense.
 “Overt Act” (term used only for conspiracy)
o Rationale: need be more than talk-need enough moral
blameworthiness to carry it out.
o Some juris’ require it be 1 act by any single conspirator in
furtherance of conspiracy.
o MPC: Requires proof of an overt act for a conspiracy to commit a
misdemeanor or 3rd degree felony, but not for 1st of 2nd deg felony
5.) Limitations
 Wharton’s rule: there are a few crimes where definition requires 2 guilty
people, so legislature didn’t intend for it to be conspiracy.
o If min # do the crime, it isn’t conspiracy, but if more do, it can be
o Since it is a legislative intent limit, legislature can change.
o EX: bribery, gambling, extortion, simple drug sales.
 Protected class of victims: a person who is within the class of individuals
protected by the criminal statute usually cannot be prosecuted for conspiring
to commit the crime in which that person is the victim.
o However, if they commit the crime against another, they can.
 Impossibility:
o Not a defense to conspiracy- Even if crime is impossible to commit,
there is conspiracy as long as the agreement seeks attainment of crim
object.
o HOWEVER, legal impossibility is a complete defense.
6.) Defenses
 Renunciation: (Only through MPC and some juris’ statutes allow it as
defense)
o Based on idea that it encourages criminals to leave the conspiracy
and not follow through with object crime.
o Requirements:
 Must manifest complete withdrawal (can’t be driven by fear
of disc or inability to complete criminal object)
 An affirmative act showing  is leaving conspiracy
 Must prevent the success of the conspiracy!
 Establishes a voluntary complete renunciation of criminal
purpose.
 Withdrawal:
o Not a defense if there was agreement and an overt act (if required)

26
 because at that point the conspiracy is complete. (in most juris)
o An effective withdrawal limits liability for future crimes in
furtherance of the agreement.
o Usually  must notify either police or co-conspirators of his
withdrawal, but need not thwart the conspiracy.
o Usually not a defense, even in MPC, unless by statute.
7.) Scope of Liability:
 Duration of conspiracy is key in determining liability. (When exactly  was
in it)
 Pinkerton Rule: Every conspirator is guilty of all “reasonably foreseeable”
crimes committed by other conspirators during and in furtherance of the
conspiracy.
o Extends criminal liab to those who don’t have the mens rea for the
substantive offense.
o MPC reject Pinkerton

XI. Parties to Crime

 Pinkerton and Accomplice liab are 2 separate models of analysis and need be
analyzed separately.
o Not mutually exclusive- Pinkerton juris’ have both.
o In states that have both, you can analyze using either.
A. Pinkerton
 Every conspirator is guilty of all “reasonably foreseeable” crimes committed by all
other conspirators during and in furtherance of the conspiracy.
o With/without their participation/knowledge; doesn’t matter that they
didn’t have requisite mens rea.
 Applies in Fed cts and several states
 Pinkerton v. US: Pinkerton brothers were farmers; were producing moonshine;
charged with 10 substantive counts and 1 conspiracy; Daniel was in prison but
charged with 6 and 1 conspiracy he claims not liable b/c he wasn’t there and
didn’t do it.
o Ct. said Daniel could be responsible in prison b/c conspiracy was still
going on b/c a conspirator is still outside of prison doing illegal acts
 Doesn’t matter if  thought about the crime or not, if it is foreseeable, he is liable
 Renunciation under Pinkerton? Renunciation is statutory but does Pinkerton allow
it?
 Withdrawal: can withdraw from conspiracy but must make an affirmative act to
leave, don’t need to call cops or thwart conspiracy.
o Withdrawal doesn’t wipe out past crimes
o Benefits of withdrawing:
 Future overt acts do not confer venue on you
 Future hearsay statements are not subject to co-conspirator hearsay
exception
 Not responsible for any future crimes of the others in conspiracy

27
  Limit: does not extend to every possible offense in connection with conspiracy
not responsible for the status of the conspirator as a felon (ex: crime of felon
firearm possession)
 Can apply regardless of whether gov’t actually charges the conspiracy offense
o However, gov’t must still prove existence of conspiracy (beyond a
reasonable doubt) in order for Pinkerton to apply.
B. Traditional: Principals and Accessories
 (All categories except accessory after the fact are treated the same for sanctions)
o Reason for distinction- only 1st deg principal could get death penalty
 1st Degree Principal: The person actually doing the crime
 2nd Degree Principal: person who was actually or constructively present at
commission of crime; and provided (or was ready to provide) assistance to 1st
degree principal in committing the crime. Usually called aidor and abettor
o Ex: The getaway driver waiting outside.
 Accessory Before the Fact: “brains of the operation”-counseled/advised/directed/
aided the commission of the offense.
 Accessory After the Fact: did not participate in the crime itself but helped in escape
(avoiding apprehension)
o Must know what you’re doing and you do it for purpose of helping avoid
apprehension.
C. Accomplice Liability
 EVERY American juris has Accomplice liab
 Combines first 3 categories
 Permits punishment of all participants regardless of their role or whether 1
participant is not convicted of the offense. All are treated same way and liable for
crime that was committed.
 Traditional American law followed but packaged differently
 Actus Reus: Must assist or attempt to assist in that crime. Includes both aiding
(physical help) or abetting (psychological help)
o Can be satisfied by an omission to act if accomplice has a legal duty to,
provided they have the requisite mens rea.
o People v. Moore: Mich had statute increasing jail time if one possesses
firearm while committing felony.  encouraged friend to shoot and kill
person so he was accomplice but he didn’t give him gun so he contests his
felony-firearm conviction.
 Ct upheld conviction because in provoking friend to use the gun he
was carrying  induced him to possess that gun. (Arguable decis)
o Mere Presence is insufficient to support a conviction unless they have duty
to intervene.
o Perpetrator need not know that someone is providing assistance for
accomplice to be liable
 Mens Rea (2)
o 1-Intent to assist in committing criminal act (specific intent)
o 2-Must have the required mens rea for the offense committed by the
principal

28
  This can usually be inferred from the specific intent to assist
 Accomplice can be liable for offenses with negligent/reckless
intent or strict liab crimes with no intent element.
o Medina case:  aiding in commission of a drug trafficking offense held
liable for a firearm charge; ct found that she needed knowledge of the
firearm (which she had), and some sort of facilitation of carrying the
firearm driving the car was sufficient.
 Gov’t does not need to prove conspiracy
 Exceptions:
o Innocent agents have no liab so it is as if  did crime himself.
o Exempt participants: not an accomplice if they are member of class of
individuals protected by the statutory prohibition.
 Withdrawal: similar to conspiracy and attempt- can avoid liab even if crim act does
take place but usually must attempt to “undo” the assistance he/she has rendered.
 Some juris think accomplice liab is too narrow so they broadened it in direction of
Pinkerton, so some accomplice liab juris’ extend liab for whatever you do PLUS
the natural and probable consequences of what you do.
o EX: Bank robbery- pointing gun at teller who dies of hear attack may be a
natural and probable consequence of bank robbery so getaway driver can
be liable too.
D. Model Penal Code: Modern View
 Holds the accomplice liable for that person’s own acts and intent. (REJECTS
PINKERTON)
  guilty of his own conduct or by conduct of another for whom he is legally
accountable or both.  is legally accountable for another when:
o Causes an innocent or irresponsible person to engage in the conduct
o If MPC or other law provides that 1 person is accountable for another’s
conduct, or
o If the person is an “accomplice” as defined under the MPC
 Accomplice: person acting with the purpose of
promoting/facilitating commission of offense solicits, aids, agrees
to aid, or attempts to aid another in planning/committing a crime.
 Omission can be basis if there was a legal duty to act
 “Agreeing” or “attempting” to aid is enough.
o Also, do not need principal to know you are helping
 Liab as an accomplice can be established even if the formal elements of conspiracy
can’t be proven.
o A narrower agreement to provide assistance w/o joining bigger
conspiratorial agreement is sufficient.
 Mens Rea: “Purpose of promoting…” the highest mens rea level in the MPC.
o Recognizes liab for accomplices for a crime that only requires proof of
negligence or recklessness.
 Renunciation Defense: must stop participation in the offense PRIOR to its
commission, and then must take 1 of 2 further steps:
o 1- “wholly deprives” his earlier assistance of any effectiveness in the

29
 commission of the offense, or
o 2- Timely warn the proper authorities or otherwise make a “proper effort”
to prevent its commission.
 May be hard to demonstrate if perpetrator goes through with crime
despite ’s decision to end participation in it.
E. Accessory After the Fact, Misprision, Etc.
 Faces a different, ordinarily lesser sentence than felon they assisted
 Actus Reus: Harboring, aiding, or concealing
 Mens Rea:
o Accessory must know that the person has committed a crime
o Must render assistance for the purpose of assisting the offender avoid
apprehension (sometimes extended to other parts of crim justice system)
 MPC refers to it as “hindering”
 Some juris’ have a family member exception
 Misprison of felony: deliberately not reporting of a known felony committed by
someone elsegenerally NOT a crime
o Some exceptions (ex: failure to report child abuse in some states)
 Compounding: taking money to not report a crime

XII. Defenses
A. In General
 Moral blameworthiness is either eliminated or considerably reduced
 Today, most defenses are statutory
 Not mutually exclusive! Can have many defenses!
 Negative Element Defenses: Negate an element of the crime.
o EX: diminished responsibility- so crazy that you couldn’t premeditate-
can’t be guilty of murder 1, but maybe murder 2.
 Partial Defense: Drops the charge to a lower charge
o EX: Imperfect self defense
 Complete Excuse: No moral blameworthiness, not guilty of a crime
o EX: Insanity, duress
 Burdens vary state to state, but  almost always has burden of production
o Burden of persuasion- 2 models:
 Stays on 
 Shifts to gov’t
 Some juris do both
 2 Categories of defenses:
o 1) Justification: When what you do is socially desirable even though it
may involve violence or harming someone (ex: self defense)
o 2) Excuse: There is no moral guilt or moral blameworthiness. (ex:
insanity, infancy)
B. Alibi
 A failure of proof-type “defense” (not really a defense)
 Disproves gov’t element that THIS  was the one who did THIS crime

30
 o A way of challenging evidence that will cause the jury not to find beyond
a reasonable doubt
  is not required to present an alibi
 Alibi Notice Rule: Requires defense to notify prosecution in advance (usually
written notice) if it is going to offer an alibi witness.
o Designed to stop surprise
o However,  doesn’t need to give notice that he will take the stand and give
a conflicting alibi- only needs to if witnesses will.
o State v. Defebaugh:  gave witness who was at crime and testified that 
wasn’t; he didn’t give prosecution notice. Ct ruled that there was no notice
requirement because it was not evidence that he was somewhere else, just
that he was not there.
C. Self Defense
 Reasonableness is key- just about everything in self defense must be reasonable
(objective standpoint)
o MPC rejects this and uses only a subjective stnd
 However, if ’s belief of threat was mistaken due to
negligence/recklessness,  can be liable for an offense based on
these mens rea. (ex: could have defense against 1st and 2nd deg
murder, but if the charge was crim neg hom or vol manslaughter, 
cannot use self defense)
 A justification defense. If successful, it is a complete defense.
 Always contextual- look at that moment; differs case-to-case
 REQUIREMENTS:
o Reasonable amount of force
 Objective
o Must be a reasonable belief that this amount of force was needed
 Objective
o Must be an honest belief that this amount of force was needed
 Subjective
o Imminent
 Self defense is a last resort, so must be unlawful force NOW
o Unlawful force
 Cop arresting you is lawful force so if you attack, no self defense
 Can use non-deadly force without retreat
 Retreat Rule: Before you use deadly force, you must retreat if you can safely
o Exception: Your own home (the castle) you can use deadly force without
retreating in your own home but it must be reasonable
o Some juris’ (FL) passed rule saying you do not need to retreat
o Paradox: by definition, you can never retreat safely when it is appropriate
to use deadly force b/c as part of that definition, you must believe attack is
imminent.
 Self defense is 1 of the rare cases where  will testify since it requires an honest
and reasonable belief
 People v. Goetz: Man on subway shot 4 young African America men when 2

31
 approached and said give me $5; claimed he bought unlicensed gun to ward off
criminals in past. Issue was: was it subjective test? “Reasonably believes” is
objective. Can look from reasonable person in ’s shoes.
 State Edwards: Victim of domestic violence kills husband when he is not attacking
her.
o Usual rule: a somewhat normal, ordinary person who has experienced
what  has experiencedwould that reaction be reasonable.
o Ct determined that means reasonable std must be looked at from POV of a
battered spouse.
o Many states have statutes specifying rules for cases like this.
 Agressor who started it usually cannot use self defense unless:
o He withdraws and then is attacked or
o His victim unreasonably responds and escalates the situation
 Imperfect self defense: Self defense but not all requirements are met. May lower
charge from murder to manslaughter.
o Policy decision weighing moral blameworthiness. (not as blameworthy)
D. Defense of Third Persons
 Policy behind it: we as a society want to encourage people to help others facing
imminent bodily harm. Society says if you rescue someone you are not morally
blameworthy.
 Justification defense
 3 versions:
o Stand in shoes rule: Rescuer cannot do more than the person rescued can
do (under self defense). Looks through the eyes of the rescued.
 This means that if rescuer misperceives what’s going on, he has no
defense (ex: no defense if you arrest someone you think is being
attacked but is really being arrested by cop)
o Reasonable belief rule: We will hold the rescuer to an objective test of
reasonableness. Like self defense. Looks through eyes of rescuer.
 Even if you misperceived situation, if it was reasonable, you are
protected.
 Most prevalent today
o Honest belief rule (MPC): Completely subjective- if rescuer honestly
thinks it’s necessary, there is a defense.
 Underlying policy: if you are honestly doing what you can to help
another, it is hard to find you morally blameworthy (even if wrong)
E. Defense of Property
 A justification exception
 General rule: life over property- you may not use deadly force to protect property
o Theory: rather than take a life, we would rather have you lose property and
then try and get it back later.
 General rule: In order to protect property, you may use reasonable non-deadly force
to protect it.
 Exception: Use of deadly force usually allowed to protect your home.
o People v. Ceballos: Man set spring gun in his garage while he wasn’t

32
 there; discharged and injured intruders.  argued it was ok b/c if he were
there he could have used gun to protect property so result shouldn’t be diff
 Ct held trap guns are as a matter of law unreasonable- cant exercise
judgment and do things society expects 1 to do before using deadly
force. Defense not allowed.
 MPC: Subjective approach- justifiable if actor believes such force is immediately
necessary
F. Law Enforcement (Arrests, Preventing Escape)
 Justification defense
 Common law rule: Officer could use deadly force to stop a fleeing felon (no
reasonableness standard)
 General Rule: Law enforcement may use REASONABLE force to effectuate an
arrest.
o They may press on (if little force not enough, use more)
 MPC goes subjective: law enforcement officer may use the amnt of force he
BELIEVES is reasonable/appropriate.
 Tennessee v. Garner: 14 yr old trying to escape, assumed burglary; tried climbing
fence and cop shot and killed him.
o Civil case- family sued that it was violation of his constitutional rights
(taking under 4th amendment).
o Ct concluded cop killing someone was 4th amnmt seizure and we are
protected from UNREASONABLE ones.
o Issue now is: was it reasonable in this situation? NO
o This constitutional test is not a statutory defense test.
o What was a civil judgment has now become the test for a criminal
defense: if cop shoots a fleeing felon, he has defense only if it passes the
Garner test.
o Garner Test: It is reasonable only if victim posed a threat of serious death/
bodily injury to the officer or other people.
o Here, he did not pose this threat so cop was required to let him go.
 NY v. Tanella: Boy ignored repeated orders to stop, cop got in physical struggle
with him and boy got shot. Sup. Ct. ruled it WAS reasonable.
o Cts recognize that officers are forced to make split-second decisions
 Police may not use deadly force unless in rare circumstances. Citizens may also use
this defense if they are carrying out a citizen’s arrestmust be REASONABLE
force. (crime prevention…)
 Crime Prevention: Essentially says you may use force to stop a crime from
occurring.
o Justification Defense
o General defense that applies to anybody.
o Officer OR regular citizen can use non-deadly force to stop any crime
(although officers also has law enforcement defense)
o May use deadly force ONLY to stop crimes that threaten serious bodily
injury. (The typical limit on deadly force)
o Very often used in conjunction with self-defense and defense of 3rd parties

33
G. Resisting Unlawful Arrest (Dumb Idea)
 No defense to resist. It is its own crime.
 You may not resist regardless of whether it is lawful or unlawfulMUST give in, it
doesn’t matter why you’re being arrested. Get arrested and sort it out in ct later
o Possible exception if the force is excessive (ex: cop is strangling you).
Reasons:
 Many statutes say you may resist excessive force
 Still have self-defense which allows you to resist unlawful force
 Police must identify themselves as law enforcement officials.
H. Public Duty
 Justification defense
 Law enforcement and other pub officials have jobs that sometimes require them to
use force or go onto property, etc. and public duty says: if he is doing his job then
that is not a crime, it is a defense to a crime (ex: trespassing)
 Many juris’ say it must be reasonable.
 Some juris’ make it subjective (if pub official thought he was reasonably exercising
his duties)
 Usually not an issue because DA wouldn’t normally punish it.
 Controversial in military duty when dealing with obeying military orders.
o MPC has a military orders defense: if they are following orders and don’t
know order is unlawful, it is not an offense.
I. Discipline Based on Relationship
 “A cousin of public duty”
 Sometimes somebody has a job/relationship that they may need to use force to
carry out their duties.
 Authorizes a REASONABLE use of force to discipline in situations where society
recognizes that discipline is in the public interest.
 REQUIREMENTS:
o Force must be reasonable
o Force cannot be deadly
 Examples: Parents, teachers, bus drivers, jailors (when switching prisoners’ cells)
 Also covers preventing suicide- if you see someone about to commit suicide, you
can use reasonable force to prevent that.
J. Necessity
 The choice was the product of chance of nature
 In both necessity and duress,  is forced into criminal activity, against his will, by
forces beyond his control, so moral blameworthiness is reduced (choice of evils)
 Necessity example: Trespass because you are stranded in a blizzard and will die if
you don’t go inside.
 REQUIREMENTS:
o Immediacy
o There is no other choice
 By using necessity as defense, you essentially have to admit that you did it.
 Social policy: Ask ordinary citizens (jurors): in an extreme situation, is this the kind
of situation that we want to punish?

34
 o Provides a very general standard applied by the community (jurors)
o Jury Nullification: The power of a jury to do justice in a case- to acquit/
lower the charges when it is just to do so. (“Do justice!”)
 Not a defense, not given in instructions, jury in any US juris can do
this.
 Many juris require that is be reasonable (must do everything you can to avoid it)
 MPC: Balances the gravity of harm
o This defense can ONLY be used if the harm avoidance (ex: death) is
greater than the harm prevention (ex: trespassing)
o The balancing is done by the private individual
o EXCEPTION: when you are reckless/negligent in bringing about the
situation, you cannot use this as a justification.
 Commonwealth v. Leno: s operated a needle exchange (which was illegal) to stop
the spreading of HIV. Claimed necessity. Court ruled no necessity because the
harm was not imminent and there were other options.
 Necessity does not work for prison escape cases because even if escaping was the
lesser evil if  would be hurt/killed, once he reaches safe place, he is required to
call police and turn himself back in.
K. Duress
 The choice was the product of another human being
o The choices are: suffer immediate physical harm or do a crime.
 Usually involves an objective test, standard being: a person of reasonable firmness
would not be able to resist. (Majority of juris AND MPC)
 Many juris’ say duress doesn’t work in homicide situations.
o Usually does not work if s recklessness/negligence got him into that
situation.
 Common law elements:
o Immediate threat of (Immediacy)
o Death or serious bodily injury (Severity)
o With a well-grounded fear (objectively justified)
o And no reasonable opportunity to escape (No escape)
o Sometimes, submission to proper authorities when safety is attained
(prompt surrender)
 MPC: Defense is allowed when there is
o Use of/threat to use unlawful force
o Against his person, or another
o That a person of reasonable firmness (objective standard)
o Would have made the same choice.
o CAN be used as defense for a homicide (unlike common law)
 EX: Kill A or I’ll kill all 4 members of your family 1 dead is
better than 4 dead so MPC allows it.
 Can have both duress and necessity apply in 1 situation
L. Entrapment
 At the heart of entrapment is concept of limited gov’t

35
 o Goal of gov’t is to prevent crime, not encourage it and turn normal citizens
into criminals.
o The other side: gov’t needs to be able to do stings, etc.
 Entrapment says: at some point we are going to stop gov’t from benefiting from the
lies they sometimes have to tell to be involved in stopping crime (benefit being a
conviction)
 Only consequence of entrapment is that you can’t get conviction, so gov’t can still
do it to stop crimes.
 2 major views that represent a market diff in philosophies: (subjective is majority)
o Subjective Test: Looks at s actions and history instead of gov’t’s actions.
Looks at character and for predisposition- not would you have don’t it but
are you predisposed to do it?
o Objective Test: Looks at what gov’t didit was so bad that it would
induce the innocent person to commit the crime.
 Focus is on changing somebody’s mind from law abiding to
criminal
 MPC uses objective test
 Rarely used and very rarely successful because:
o Must admit to the crime
o  almost always has to testify, if nothing else than to describe gov’t’s
conduct or discuss predisposition.
o Most juris use subjective test and need to show predisposition and to do
this, gov’t is allowed to use all kinds of evidence they wouldn’t usually be
allowed to use because “the door is open”
 (ex:  had 20 other drug convictions)
 Russell Case: s were making meth, gov’t agent talked, gave $ and supplied a
chemical. Common law said fed cts use subjective test but  wants cts to use
objective test because he clearly was predisposed. Sup ct said no, this ct uses
subjective approach.
o Case freed up the gov’t to use whatever means they want to show
predisposition to a crime.
M. Mental Status
 Moral blameworthiness is tied into the concept of your mental state.
1. Insanity
 Measures ’s mental status as of the moment of the crime
 4 tests in US. Underpinnings of them all are same: moral blameworthiness- if
you satisfy the test of insanity, you are not morally blameworthy enough to
be punished.
1. M’Naghten Test: established the English and American test of insanity
i. Often called the right/wrong test
- Didn’t know the nature and quality of the act, OR
 Ex: thought he was squeezing an orange and was
actually strangling someone
- Didn’t know that it was wrong
2. Irresistible Impulse Test: An addition to the M’Naghten test:

36
 i. Could you control your behavior?
- They know what they are doing and they know it is
wrong but they cannot control it.
3. Durham Test: (1964 D.C. Circuit): Rejects M’Naghten and irresistible
impulse test and instead said,  is insane if what he did was the product
of a mental disease or defect.
i. Looks at causation
4. ALI/MPC Test (“Substantial Capacity Test”)
i. ELEMENTS:
- Applies only if  has a mental disease/defect (not simply
because he was outraged by something)
- Lacked substantial capacity to: appreciate the criminality
or the wrongfulness of it, or conform
 Appreciate- feel it is wrong instead of simply
knowing it is
 Conform- similar to the control test
ii. Got widespread adoption by many states and all fed circuits
 Insanity is a complete defense.
o If you pass-cannot be held criminally liable for crime
o If you don’t pass, insanity is not available regardless of whether you
do have mental issues relating to it.
o Not often successful and when it is there is usually a history of
mental illness.
o When  raises defense, they are sent for an evaluation and it is on
record.
o Most insanity cases are not contested.
 Procedures:
o Every juris requires notice of the intent to use the insanity defense
 Same fear of surprise as in alibi
o If  doesn’t cooperate with state mental evaluation, they lose the
ability to use defense.
o If  is poor, he gives notice to get free evaluation
o If state’s evaluation concludes he is insane, prosecution will concede
because no evidence to the contrary
o When  gives notice of intent to use insanity and is sent for
evaluation, he is usually tested for insanity and competency together
 If  was arguing he was crim insane, may well be
competency issue too.
 Jury comes back with verdict (guilty/not guilty). Criminal insanity gives 3rd
choice: Not Guilty by Reason of Insanity (NGRI)
o NGRI is a not guilty verdict
o After NGRI verdict,  goes to mental hospital, not for criminal
punishment, but for civil purposes.
o Sent to a mental hospital for an evaluation period, after that he may
be civilly committed. (For protection, not punishment)

37
 o Civil Commitment: person is taken to mental hospital involuntarily
 Test for civil commitment: are you dangerous to yourself or
others?
 GMBI (Guilty But Mentally Ill)person is guilty, but mentally ill so they
cannot be punished. (An additional verdict jury can give)
o If  gets GMBI verdict, he goes to a mental hospital and stays there
until the hospital says he is well enough to stay in prison for rest of
sentence.
o GMBI just tells where  will start (and in some cases finish) his
sentence
o If they want to keep  in hospital longer than his sentence, they must
civilly commit him.
 Sexual Predator Laws: for sexual predators who have committed multiple
sexual offenses.
o Allow gov’t to keep you in locked up situation because you would
continue sexual crimes if released.
o Cousin of civil commitment- civil issue for protection of public
2. Incompetence
 Relates to a fair trial- at some point mental status may be so shaky that you
can’t have a fair trial and cannot participate in a trial because of your mental
status.
 Looks at competency at time of trial, not at time of crime.
 Says nothing about guilt or innocence
 TEST: Can  understand the proceedings and participate in his defense?
o It is a functional test- if  doesn’t pass, he cannot be tried even if he
wants to as a matter of due process of law.
 Competence is a due process issue, not a moral blameworthiness issue
 Applies to every proceeding:
o Cannot be sentenced if incompetent at sentencing
o Cannot be executed if incompetent at execution
 Test for competency at execution is a little diff: can you
understand you are about to get killed by the state.
 Very common-often ppl become incompetent sitting on death
row for years.
 When raised,  will be evaluated to decide whether he is competent.
 If incompetent,  goes to mental hospital until he is competent to stand trial
o Limit: If incompetence will never change,  can’t be held forever
3. Intoxication
 Negates the mens rea of a crime
o For negligence/recklessness, it does not negate mens rea of crime
usually proves it.
 General Rule: Cannot claim lack of awareness because of intoxication.
 Two types of intoxication:
o Voluntary- takes something he is aware is an intoxicant

38
 o Involuntary- somebody tricks/forces you to take an intoxicant OR
when you have an unexpected result/reaction
 Impact of involuntary is same as voluntary but in addition, it
is insanity like- in addition to negating mens rea, it can create
a defense with same result as insanity defense.
 Although involuntary intox is not a mental
disease/defect, said by statute that it can form
something similar to insanity. HOWEVER, the
procedures from an insanity defense are not triggered
(don’t have to go to mental institution)
4. Diminished Capacity/Responsibility
 A partial defense- lowers the grade
 Says: ’s mental condition was such that he could not premeditate, but maybe
he acted negligently/recklessly, etc.
 2 FACETS:
o 1- you lack capacity to form mens rea
o 2- you didn’t deliberate at the moment because of your condition
o Most cases don’t distinguish, they are almost indistinguishable.
N. Mistake and Ignorance
 Usually mistake of fact or law, which can negate mens rea.
o Same as diminished capacity/intox- I did not have the mens rea because of
a certain reason.
 EX: take umbrella b/c you think it is yours- no mens rea (no intent
to deprive permanently)no theft
 Key is: does it negate the element of the crime? Must look at elements of actual
crime. (ex: speeding is strict liab, no mens rea needed, so doesn’t matter you
thought you were going 50 but were actually going 70)
 Perez Case: statutory rape case,  was misled by girl about her age; ct allowed him
to be able to present defense even though it is a strict liab crime not requiring
knowledge of age.
o Policy decision- do you want reasonable mistake to be a defense?
o Widespread rule: it is not a defense and there is strict liab of age, even if
misled.
 Ignorance:
o Ignorance of law is almost never a defense because law doesn’t require
knowledge of it.
 If there is a crime that requires knowledge of law (only a few),
then ignorance of the law is a defense.
 General rule: Reliance is NOT a defense unless it negates mens rea.
 Reliance: situation where  is mistaken about law and relies on mistaken
interpretation- thinks it is ok to do something when it is actually a crime.
o Exceptions: reliance on certain officials IS a defense because  has no
moral blameworthiness.
 If rely on statute and then it becomes illegal, it is ok
 If admin agency says it is ok and you do it and agency was wrong,

39
 you have a defense.
 If an individ enforcing law (ex: attorney general) interprets law and
you rely and it was a misinterpretation, you have a defense.
 Private citizens (including lawyers) giving advice that is
reasonably relied on is NOT a defense.
o Lambert v. California: felon and didn’t register when in CA b/c didn’t
know she had to. Raises issue of availability (not reliance)
 Involves passive conduct and only when there is not availability to
learn the truth.
 Ct. said in the unsusual circumstances of case, due process bars
liab for itshe has a defense.
 Not an issue today b/c it is common knowledge there are sex
offender registration laws and they are told it.
0. Age (Youth)
 Common Law View: children of certain age couldn’t form mens rea so not morally
blameworthy. Rule of 7’s:
o 0-6: Conclusively incapable of committing the crime. Couldn’t be
convicted as a matter of law.
o 7-13: Rebuttable presumption of incapacity
 Gov’t would have to come up with proof that child did have mental
capacity- had knowledge of right and wrong. If he did, he could be
convicted.
o 14 and above: It was assumed they had capacity although evidence can be
offered to the contrary.
 Most juris have juvenile cts to deal with children of certain ages, so the rule of 7s
generally doesn’t apply.
o Infancy is not a valid defense since they were designed to handle minors
o Juvenile cts focus on rehabilitation
o Not criminally liable meaning they can be dealt with in juvenile ct which
is not considered a ct of criminal liab

XIII Review

40