THEORY, SOURCES, AND LIMITATIONS OF CRIMINAL LAW

I. Theories of Criminal Punishment

o Utilitarianism (forward looking) – punishment justified primarily by preventing future harms or reduction
of future crimes. Basically this theory of punishment is used to deter others from crime and to protect
society.
1. Deterrence – punishment of a criminal reduces crime in two ways:
 Specific Deterrence
 The defendant will avoid future crimes because he/she fears additional
punishment
 Punishment is meant to deter future misconduct by an individual defendant by
preventing him from committing crimes against society during the period of his
incarceration (incapacitation), and reinforcing to him the consequences of
future crimes (intimidation).
 General Deterrence
 Punishment is imposed in order to dissuade the community at large to forego
criminal conduct in the future.
 Individuals will not commit crimes for fear of suffering same punishment that
current defendant has suffered.
2. Incapacitation
 Isolating wrongdoers from law-abiding person thus preventing him from committing
crimes against society during the period of his incarceration.
3. Rehabilitation
 Society has an obligation to punish an individual in a way that makes him/her a better
person and better citizen tomorrow
 Reform of the individual
4. Retribution (looks backward to the past act) - a convicted defendant is punished simply because
he deserves it, even if it serves no utilitarian purpose. A wrong has been committed so it must be punished.
here the goal is to make the defendant suffer in order to pay for his crime
o Justifications
 Criminal must “pay debt to society” (“just deserts”)
o Retributive theory assigns punishment on a proportional basis so that crimes that cause greater
harm or are committed with a higher degree of culpability (e.g., intentional versus negligent)
receive more severe punishment than lesser criminal activity.

5. Communicative Retributivism- Equaling of rights;the criminal is worthless, not the victim

II. Determining the Appropriate Sentence (individualized)– fit appropriate sentence into punishment
goals
 Nature of the Offense
 Character of the Offender
 Protecting Society
o Primary consideration in sentencing is the good order and protection of society (Usu reflects
punishment goals)

A. State v. Jensen
Facts: H left W, W has a RN and decided to inject the H's new g/f with insulin and
methamphetamine. W injected her, watched her for an hour, and then left her to die, while her 3
year old daughter watches
Issue: How should she be sentenced? What power should an appellate court have in sentencing?
Rule: The court has "Abuse of discretion" which means they should uphold the sentence if the
sentence is deemed to be legal, cannot change unless the previous court abused its power.
 Reasoning: To try the case all over again would be a waste of time, and they were the fact finders
Holding: The court did not abuse its powers, she got life w/o parole. Affirmed
*To sentence her, the court looked at several things:She pled guilty- allowing the court to
save time/ no jury
 
Cant punish everyone the same way, each crime is different, each offender is different; thus each
sentence needs to be individualized
 
B. What is a crime: pg. 4 Professor and
1.Rolland Perkins, criminal law scholar
2."any social harm defined and made punishable by law"
 
 
C. 10 characteristics that constitute a true crime:
1.Blameworthy intent
2.Affirmative conduct on the part of the d or an omission to act when there is a legal duty
to act
3.Must be connection between 1 and 2
4.Harm to society
5.Harm had to be caused by the conduct/omission
6.Conduct/omission must incur the moral condemnation of society
7.Sovereign state must deem the conduct to be harmful to society
8.The sovereign must label it a crime and provide a penalty through the legislative process
and must publish the statute or ordinance
9.The conduct must occur after the published statute
10. The sovereign must act as a party in its own name in a proceeding against that person

Blakely v. Washington; the judge should not make the determination of the sentence based
upon the facts, no facts besides prior convictions can not be used by judges to increase
sentences; judicial fact-finding may violate the right to trial by jury declared in the 6th
amendment of the Constitution ; critical facts must be determined by the jury…
o Booker, also applies to Federal Sentencing Guidelines ===> NOT mandatory
o Defendant can waive rights to jury trial, plea bargaining can allow judge to consider more
facts in determining sentences

US v. Crawford
Facts: D brought a dispute about how he was sentenced. He was sentenced to 210 months
imprisonment. He got the lower end of the sentence. He appealed and it was affirmed.
D argued: Crawford's lawyers: sentencing judge should not have paid attention to the
guidelines
o In Booker, it says trial courts are allowed to assume the guidelines are reasonable/ it is
not an abuse. Booker said the guidelines are no longer mandatory
 
D. Proportionality: sentence is supposed to fit the crime
Ewing v. California: D stole golf clubs and sentenced 25 yrs.was this a proportionate
sentence?
  Constitutional Limits of Criminal Law - The Supreme Court has held that implicit in the Eighth
Amendment’s prohibition against “cruel and unusual punishment” is that punishment not be grossly
disproportional to the crime committed.
 Eight Amendment
o No cruel and unusual punishment
  3 Factor Test to determine whether a punishment is “cruel and unusual” for being
disproportionate:
 1. the gravity of the offense and the harshness of the penalty
 2. the sentences imposed on other criminals in the same jurisdiction
 3. the sentences imposed for commission of the same crime in other juris.
 Proportionality
 Punishment must be proportional to the crime, i.e., that punishment be inflicted in the amount required
(but no more than is required)
o Reflected in all theories of criminal punishment
 “the punishment should fit the crime”

E. CAPITAL PUNISHMENT
 Roper v. Simmons
  COA: Simmons charged with burglary, kidnapping stealing, and murder in the first degree.
Procedure: The trial judge accepted the jury's recommendation and imposed the death penalty.
Simmons unsuccessfully challenged his conviction and the death penalty in state and federal cts.
  Facts: Simmons and accomplice entered home of the victim. They duct taped her eyes and
mouth shut, bound her hands, and drove to a state park. Tied her hands and feet together with
electrical wire and threw her from the bridge, drowning her in the waters below. Simmons was
17 at the time of the crime.
  Issue: Death penalty for juveniles under age of 18?
  Reasoning: No cruel or unusual punishments provided by the 8th amendment. Thompson v.
Oklahoma, no death penalty for offenders the age of 16 at the time of the offense. This
constitutes cruel and unusual punishment. Too young/immature to understand implications.
  Holding:A majority states have rejected the imposition of the death penalty on juvenile
offenders under 18, and we now hold this is required by the 8th amendment.
  **Considerations**Differences between juvenile offenders under 18:
a. scientific and sociological studies show that they have an underdeveloped
sense of responsibility are found in youth than in adults. 18 and under
are prohibited from voting, serving on juries, or marrying without
parental consent.
b. Juveniles more susceptible to negative influences and outside pressures,
including peer pressure
c. character not well developed
 Dissent by O'Connor:
 There is no national consensus against the juvenile death penalty…some 17 year olds are
mature enough to deserve the death penalty…juries are not incapable of assessing a youthful
offenders maturity. Need more of a clear showing that society is set against the juvenile death
penalty before reading the Constitution and the 8th amendment as forbidding it.
 
Dissent by Scalia
  Strongly disagrees with looking to other countries standards in determining whether or not to
utilize the JDP for offenders under 18. The basis of the court's argument is that the American l
aw should conform to the laws of the rest of the world. Laws of other countries differ from our
laws. Other countries have constitutional provisions that may be read differently from our
constitution. The court should consider views of countries on other issues such as right to
religion, before using foreigners views as a reasoned basis of its decisions. Invoking alien law
when it agrees with one's thinking and ignoring it otherwise is sophistry (invalid argument).
 
 
Notes
 
1. Recommended five (5) aggravating factors making a defendant eligible for capital punishment
by Constitution Project's Death Penalty Initiative:
a. murder of a peace officer
b. murder of any person at a correctional facility
c. the murder of two or more persons
d. murder of person involving torture
e. murder by a person who is under investigation or has been charged with a crime of
anyone involved in the investigation
 
2. Victim Impact Statements
Booth v. Maryland ===> Supreme Court held VIS were irrelevant in Capital Punishment cases,
but reversed in Payne v. TN, as surely relevant in determining blameworthiness. Many states
permit such evidence, but there is caution against it.
 
 
Crawford v. State
 Procedure: D convicted of kidnapping, raping, and murdering Kristy Ray a few days before he was to
stand trial for assault and rape. The mother of Ray testified during the sentencing phase and the Court
held that the testimony was admissible and did not require reversal of the D's death sentence
 Rule: Payne v. TN did not bar admission of VIS, but not a blanket rule that all victim impact evidence is
admissible.
 Reasoning: The testimony cannot say "particularized narrations of the emotional, psychological and
economic sufferings" that the family members as a result of the victim's death. Comments about
marriage and grandchildren cannot be considered info on individual identity or verifying survivors…
cannot say things that have not yet happened.VIS should be a "quick glimpse" into the victim's life,
whether or not they left dependents, parents, or siblings; irrelevant emotional factors are too great and
offend the due process clause.
 Holding: The testimony in this case was allowed b/c it was shorter than that in Payne and was not
extensive as the VIS in Payne. The testimony did not divert the jury away from the issue at hand…
deciding the death penalty.

Chapter 2: CRIMINAL STATUTES

I. Principles of Legality - A person may not be punished unless his conduct was defined as criminal at the time
of commission of the offense. (common law)
 Vagueness – statutes required to be clear. Clarity is a matter
o Criminal laws that are so vague that ordinary people could not reasonably determine their meaning
and application from the language of the statute
 Helps ensure the principle of legality because it ensures that criminal statutes provide fair
notice of what behavior is forbidden so that people can steer clear of unlawful acts.
 Overbreadth
o A statute that is overbroad may in fact be unconstitutional.
 Ex Post Facto – Constitution expressly forbids both Congress and state legislatures from passing ex post
facto laws
 o Legislatures cannot enact criminal statutes that criminalize acts that were innocent when done or
that increase the severity of the crim or the punishment after the fact
 Bill of Attainder
o The Constitution prohibits Bills of Attainder
 Bill of Attainder is special legislation that declares a specific person to be guilty of a
crime and subject to punishment w/o either a trial or conviction

II. Interpreting Statutes and Creating Legal Arguments

A. Defining a Crime
People v. Lopez
i. Crime: Carjacking which requires a "felonious taking" of a motor vehicle
ii. Facts: Defendant approached vehicle to sell victim watch. Defendant pulled out a gun and ordered victim
out of the van. Victim returned to the van to retrieve some checks. Defendant pulled the trigger of his gun
twice, but the gun did not fire. Defendant fled from van and left his backpack, containing I.D., in the van.
iii. Issue: What constitutes carjacking under the meaning of the CA carjacking statute?
Does "taking" require proof of asportation?
iv. Reasoning: The actor in this case did not "take" the vehicle and therefore was not guilty of
carjacking…"taking" construed the same as in the robbery statute.Carjacking statute is an offshoot of
robbery, the language of "taking" is meant to mean the same thing, unless a contrary intent clearly appears.
v. Holding/Disposition: Conviction set aside, the "taking" means the same as in the crime of robbery.
State v. Donaldson
i. Crime: Second-degree theft
ii. Facts: Defendant broke into van, dismantled the steering column, and manipulated the ignition switch,
turning on the radio and lighting the check engine sign on the dashboard. As an officer walked toward the
van, the lights were flashing suggesting there was someone in the van. As the officer came nearer, the
defendant fled the van and ran away. The steering column had been dismantled and wires were hanging
from the column. The ignition switch had been removed and radio was operating and check engine light
was on. All electrical systems had been engaged, all that was left to do was engage the starter.
iii. Issue: Is a person guilty of theft if he breaks into another's car and engages the entire electrical system,
save the engine?
iv. Reasoning: Defendant argues he did not possess or control the van b/c he did not have the ability to
move or remove it. Defendant only needed to have dominion and control over the vehicle and had that
control by excluding others from the van, he used the van beyond his authority, and set in motion the steps
necessary to power the van.
v. Holding: Defendant controlled the van within the meaning of the Iowa Statute and the trial court
properly denied defendant's motion for judgment of acquittal. Affirmed.
Notes on the case:
1. Robbery or carjacking requires a victim to be present
2. Elements of theft:
i. Takes possession or control of another, or property in the possession of another, with the intent
to deprive the other thereof.
3. Common law larceny required:Caption &Asportation
o Common law is where criminal statutes come from, legislators will look to common
law…but also now use the Model Penal Code…or from a legislator's mind
4. Instead of using common law, Iowa follows the Model Penal Code…
○ Requires possession or control
○ NO requirement of asportation
5. Larceny
1. Taking
2. Carrying away (asportation)
3. personal property
4. of another
5. with intent to permanently deprive
Notes:
 Text of the statute – the plain meaning.
 o If a term is not defined, use a common definition from dictionary
 Legislative history
o Sometimes the title of the statute will provide a clear indication of the legislation passed.
o Statutory amendment (taking word out) may shed light on legislative intent
 Policy concerns
o Ex: Students who do not maliciously plant internet viruses v. terrorists who do
 Precedent
 Other Statutory Interpretation tools:
1. Ejusdem Generis – limits the general language to the specific terms. Words take shape from
those around them.
2. Expressio Unius est Exclusio Alterius – “expression of one things is exclusion of another”; used
by defendant when a statute contains list of acts/circumstances and they argue that by enumerating
specific terms the legislature intended to exclude anything that falls outside the list.
o Rule of Lenity
Courts use strict judicial construction of statutes that requires courts to construe a penal statute as favorably
to the defendant as its language and the circumstances of its application may permit. (common law)
o Thus any ambiguity in the statutory language should be resolved in the defendant’s favor.
The Model Penal Code does not recognize the lenity principle. Section 1.02(3) requires instead that
ambiguities be resolved in a manner that furthers the general purposes of the Code and the specific
provision at issue.

Basis of an appeal – Vehicle to get to Court

 Insufficient evidence – when gov’t fails to present sufficient evidence of defendant’s guilt
 Improper Jury Instruction – when the court gives an improper definition of the crime/law or interpretation
of the statue
 Evidentiary Challenges – when evidence is improperly admitted or the court excluded evidence relevant to
case
 Constitutional Challenges – when the statute, charges, jury instruction deprived defendant of const. right

Mala in se (Malum in se) - morally wrong crimes

Mala prohibita (Malum prohibitum) - wrong b/c the legislature says its wrong (crimes require lower
intent or even no proof of intent)
Strict liability crimes - guilty if person acts or fails to act, little intent or no intent must be proven, not
considered a true crime...
B. Vagueness
Columbus v. Kim
i. Crime: convicted of harboring an unreasonably loud or disturbing animal in violation of
Columbus City Code 2327.14. Defendant argues that the code is unconstitutionally vague.
 ii. Issue: City code unconstitutionally vague? Whether an ordinance …(pg. 67)
 iii. D Arguments: Argues Code is uncon. on its face and as applied. Ferraiolo, owner's conviction
to similar statute was reversed b/c the ordinacne was vague. "All dogs will bark or emit loud
sounds at one time or another and that reasonableness of noise is a subjective matter that can
vary." How can anyone know whether their dog's barks are of such intensity…"
 iv. Reasoning: The challenger of a provision must show an individual of ordinary intelligence
would not understand what is required and prove beyond a reasonable doubt that the statute was
unclear…The statute sets forth sufficient standards of which a person of ordinary intelligence
would understand what the ordinance prohibits. Unreasoanbly loud or disturbing (objective
standard). ***Reasonable person standard***
 v. Holding: Not uncon. vague as applied. Affirmed
Notes:
 1. Reasonableness. The statute in the Kim case could have avoided vagueness questions if it had
included things such as length of time and prohibited hours of the day. One potential problem of
reasonable standard is the 'slippery slope' : what is unreasonable? A dog barking for sixty
minutes? Does time of the day matter?
2. Protections Afforded by Prohibiting Vague Statutes.
a. to allow people to arrange their conduct as to steer clear of unlawful acts
b. to prevent arbitrary and discriminatory enforcement of laws by police officers, judges,
and juries
c. to avoid limiting freedom of speech and protection
C. Federalism
Jones v. US
Crime: three-counts including Section 844(i) arson statute
  Issue: Does the statute for arson apply to arson of a private residence, and if so if application to
a private residence is constitutional? Is it affecting commercial activity?
  Reasoning: The statute does apply to a building being used "as rental property."
Holding: The statute does nor reach an owner-occupied residence that is not used for any
commercial purpose.Reversed.35 years and ordered to pay $77,396.87
Notes:
1.Other Constitutional Limitations:
a. Due Process Right to Privacy-Lawrence v. Texas, convicted under Texas sodomy
statute, Supreme Court decided the statute violated the right to privacy
guaranteed by the 14th amendment's Due Process Clause
2. Ex Posto Facto
  a. A criminal law that applies retroactively is unconstitutional
 3. Bill of Attainder
  a. Special legislation that declares a specific person to be guilty of a crime and subject to
punishment without either a trial or conviction.
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ELEMENTS OF A CRIME
Chapter 3: Actus Reus

General Elements of a Crime

  1. {Actus Reus - the criminal act or criminal conduct
2. {Mens Rea - criminal intent (mental)
3. Harm
4. Causation
5. Concurrence
A. The Act
Martin v. State
i. Crime: Appellant convicted of being drunk on public highway.
ii. Facts: Police arrested appellant at his home, drove him onto the highway, where he allegedly
committed the proscribed acts…manifested a drunken condition by using loud/profane
language.
iii. Rule:A voluntary appearance is required…his appearance was involuntary b/c he was brought
there by the police.Judgment of trial court reversed and appellant discharged.
Actus Reus - refers to the physical aspect of the criminal activity. The term generally includes (1) a voluntary
act (2) that causes (3) social harm.
 A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act
or the omission to perform an act of which he is physically able and has a legal duty.

 Voluntary Act as Actus Reus

o Subject to limited exceptions, a person is not guilty of a crime unless his conduct includes a
voluntary act.
o An act involves physical behavior.
 It does not include the mental processes of planning or thinking about the physical act
that gives rise to the criminal activity (such is the domain of mens rea).
 Mere thoughts are not a voluntary act.
o Model Penal Code
 Similar to the common law, MPC § 2.01 requires that criminal conduct include a
voluntary act.
 Not voluntary acts under MPC:
 Reflexes or convulsions, conduct during unconsciousness or sleep, conduct
during hypnosis, as well as any conduct that “is not a product of the effort or
determination of the defendant, either conscious or habitual.”
o Unconsciousness, when not self-induced, as by voluntary intoxication
or the equivalent is a complete defense
Cox. Director of Revenue
i. Facts: Defendant found sleeping/unconscious in driver's seat of his car parked at a gas station
with the motor running and the car in park.Arrested for driving while intoxicated. Officer
later testified he did not see defendant operating or driving the vehicle.
ii. D argues Driving = physically driving or operating a motor vehicle.The phrase "being in actual
physical control of." removed from the statute and presumed to change existing law.
Scope of statute narrowed.
iii. Rule: Using dictionary to interpret words from the statute .
iv. Reasoning: Cox met the dictionary definition of operating a car by causing it to function.
Key was in the ignition and engine was running and defendant was behind the wheel. The officer
had probable cause to believe D was operating the vehicle.
v. Holding:Director properly suspended the D's license.
vi. Dissent by Judge White says that "operating" must mean more than keeping restrained a
motionless vehicle, even while in position to operate it. Legislature did not intend for this
type of person to have his license revoked.
vii. Dissent by Judge Wolff says that the legislative intent was to avoid the danger of an
intoxicated person actually driving a car. It should be lawful for him to get into the car
run the engine for heat or A/C and stay put.
 Omission as Actus Reus
o Under the Common Law, subject to a few exceptions, a person has no legal duty to act in order to
prevent harm to another.
 The criminal law distinguishes between an act that affirmatively causes harm, and the
failure of a bystander to take measures to prevent harm.
o Omission to act can only constitute an actus reus of an offense when a person fails to act when he
is under a legal duty arising from civil law and not a mere moral obligation
 A legal duty to act and thus an omission to act is an actus reus when:
 1. Duty Based on Status Relationship
o One may have a common law duty to act to prevent harm to another if
he stands in a special status relationship to the person in peril.
 Usually founded on the dependence of one party to the other –
e.g., a parent to his minor child
 2. Duty Based on Contractual Obligation
o A duty to act may be created by implied or express contract.
  Ex: person who undertakes the care of mentally or physically
disabled person and fails to do so may be found criminally
liable based on omission for his ward’s injury or death.
 3. Duty based on Statute
o Some duties are statutorily imposed, e.g., a driver involved in an
accident must stop his car at the scene; parents must provide food and
shelter to their minor children.
o Good Samaritan Statutes
 4. Duty Based on Voluntary Assistance
o One who voluntarily renders assistance to another already in danger has
a duty to continue to provide aid, at least if the subsequent omission
would put the victim in a worse position than if the defendant had not
commenced the assistance at all
West v. Commonwealth
  i. Appeal from judgments of one year sentences of imprisonments.Convictions of
reckless homicide and complicity of reckless homicide.
  ii. Rule: Must be a LEGAL DUTY to act, imposed by law or contract…and the omission to
perform the duty must be the immediate and direct cause of death.The legal
duty was defined by statute as West being a "caretaker" and therefore the
conviction(s) were affirmed.Additionally, Jones v. United States identifies four
situations where a failure to act may constitute a breach of legal duty. West met the
4th situation aptly by isolating her from other contacts that might have resulted in her
aid or assistance.

o Model Penal Code

 Consistent with the common law regarding omissions in that liability based on an
omission may be found in two circumstances:
 (1) if the law defining the offense provides for it (expressly states that failure to
act is crime), or
 (2) if the duty to act is “otherwise imposed by law.”

 Possession as Actus Reus

o Actual
 Mere possession, or failure to terminate possession once the defendant becomes aware of
the item’s presence, is sufficient for a voluntary act.
 Under MPC, failure to act (terminate possession) is an omission in face of legal
duty to do so.
o Constructive
 Even though individual did not exercise physical dominion and control over items, the
proximity of the individuals to the item of the ability to reduce an object to control and
dominion is enough for constructive possession.

 Status or Condition
o Status or Condition cannot constitute an actus reus
 Robinson v. California
 Robinson was convicted under a California statute that made it an offense for a
person to “be addicted to the use of narcotics.” The Supreme Court struck down
the statute on Eighth and Fourteenth Amendment grounds.
 Essentially, the Court held that, although a legislature may use criminal
sanctions against specific acts associated with narcotics addiction, e.g., the
unauthorized manufacture, sale, purchase, or possession of narcotics, it could
not criminalize the status of being an addict.
State v. Winsor
 i. Facts: Appellant contends that his presence in the jail premises was not voluntary and his
conviction should be reversed.
ii. Reasoning: Appellant's willful possession of a controlled substance itself was the requisite
voluntary act.
  iii. Issue: Should mere possession fulfill the actus reus of a crime?
iv. Rule: possession requires control and aware of his control and have sufficient time
to dispose or terminate his control.
Robinson v. California
  i. Crime: criminal offense of "being addicted to narcotics"…"use" and "addiction" were parts of
the CA statute...
  ii. Facts: Officers testified of scabs and discolorations on D's arms, but appellant not under the
influence of narcotics or suffering withdrawal when the officers saw him
D explained the marks on his arms were from an allergic condition contracted during his military
service. To be addicted to narcotics was a status or condition and not an act. State had to show
he was of the status or had committed the act denounced by the statute; that D used a
narcotic in LA County.
iii. Issue: Constitutionality of the provision of the state law making it a crime to be addicted to a
narcotic…where is the actus reus in this?
  iv. Reasoning: Drug addiction considered a disease…making having a disease a criminal offense
would be an infliction of cruel and unusual punishment in violation of the 8th and 14th
Amendments. Narcotic addiction is an illness.
v. Holding: Conviction reversed, cruel and unusual punishment to criminalize having an illness or
disease. Conviction considered unconstitutional (due process). Reversed
  Notes:
1. This case makes Actus Reus a constitutional requirement for conviction for a criminal
act...
Attendant Circumstances (D)
 An “attendance circumstance” is a fact or condition that must be present at the time the defendant engages
in the prohibited conduct (the act – actus reus) and/or causes the prohibited result that constitutes the social
harm of the offense. Often an attendant circumstance is an element of the offense, e.g., the crime of
burglary – the breaking and entering of the dwelling house of another at nighttime – contains an elemental
attendant circumstance that the crime must occur at night.

Chapter 4: Mens Rea

Mens Rea (B) - refers to the mental component of a criminal act, i.e. intent.
 Doctrine has been defined in two basic ways:
 “Culpability” Definition of “Mens Rea”
 In the early development of the doctrine, many common law offenses failed to specify
any mens rea. Mens rea was defined broadly in terms of moral blameworthiness or
culpability.
 Thus, at common law and in jurisdictions that still define the doctrine broadly, it
was and is sufficient to prove that the defendant acted with a general culpable
state of mind, without the need to demonstrate a specific state of mind such as
“intentionally,” “knowingly,” or “recklessly.”
o Only have to show that person had negative criminal intent
o It is wrong, evil
 “Elemental” Definition of “Mens Rea”
 Much more prevalent today is a narrow definition of mens rea which refers to the
particular mental state set out in the definition of an offense.
 
Thus, the specific mens rea is an element of the crime.
o A person can be culpable in that he was morally blameworthy yet lack
the requisite elemental mens rea.
 Statutes refer to the “evilness” in the elements
 Common Law may use culpability or elemental approach. MPC uses elemental approach.

 Common Law Intent

 Specific Intent – offense requires two intents
 “Specific intent” offense is one in which the definition of the crime:
 includes an intent or purpose to do some future act, or to achieve some further
consequence (i.e., a special motive for the conduct), beyond the conduct or
result that constitutes the actus reus of the offense, or
o Ex: “breaking and entering of the dwelling of another in the nighttime
with intent to commit a felony”
 Intent to break and enter (actus reus) – alone is general
 Intent to commit felony – both together make it specific
 provides that the defendant must be aware of a statutory attendant
circumstance
o Ex: “receiving stolen property with knowledge that it is stolen.”
 General Intent – offense requires only 1 intent
 An offense that does not contain one of the above features is termed “general intent,”
e.g., battery, often defined statutorily as “intentional application of unlawful force upon
another.”
 Batter is GI b/c definition does not contain any specific intent beyond that which
relates to the actus reus itself. The only mental state required in its definition is
the intent to “apply unlawful force upon another,” the actus reus of the crime.
Specific Intent-General Intent
 
Carter v. United States, U.S. Supreme Court, 2000.
  i. Facts: Defendant robbed bank by pushing an exiting customer back inside, jumping over the
counter, emptying teller drawers totaling $16,000, and then leaping back over the counter and
exiting the bank. D was apprehended later that day.
  ii. Defendant sought to have the jury find him guilty under 2113(b) which carried a lesser
sentence and a max term of 10 years in prison instead of 20 as in subsection a.
iii. Issue: In deciding whether subsection b was a lesser offense, the Supreme Court considered
the intent level of the two provisions.
iv. Rule: 113(a) - bank robbery, max of 20 years
a. Much like common law robbery (does not require a specific intent)
b. Larceny plus force, violence, etc…
c. General Intent required in this statute!!!
2113(b) - larceny type of statute…"to steal and purloin", max of 10 years
a. Much like common law larceny
b. Lesser included offense within robbery at common law
c. Specific Intent required
v. Reasoning: General intent is the intent to do the act prohibited by the statute...
  Reasoning for denying the jury instruction is that (a) required only a general intent,
while (b) required a specific intent and the D could not be found guilty of the
lesser included offense(b) a separate crime, not a lesser included offense...
Notes:
2.Specific Intent(Larceny, Robbery, Burglary, Assault)
o Higher level
 o Requiring proof that the defendant had a particular state of mind that involved the
commission of the offense
General Intent ( murder, assault, battery, rape)
o Lower level
o Requiring proof that the defendant engaged consciously in the act that constitutes the
offense, but the gov't need not prove that the defendant sought a particular result or was
fully conscious that he was committing a crime.
General intent referred to as criminal intent, general notion of mens rea
Specific intent is taken to mean the mental state required for a particular crime.
3. Specific intent crimes add language such as "with intent to cause serious bodily injury" and "to
commit a felony therein."
 Model Penal Code
 MPC divides statutes into elements and material elements
 Elements
 Jurisdiction, venue, statute of limitations, etc.
 Material Elements
 Conduct
 Result
 Attendant Circumstance
 Except in the case of offenses characterized as “violations,” a person may not be convicted of an
offense unless “he acted purposely, knowingly, recklessly or negligently, as the law may require,
with respect to each material element of the offense.”
 The Code requires the prosecution to prove that the defendant committed the actus reus
of the offense—in fact, each ingredient of the offense—with a culpable state of mind, as
set out in the specific statute.
 Thus, the MPC:
 Eschews the “culpability” meaning of mens rea
 Discards the common law distinction between general intent & specific intent
 Limits mens rea to four terms: purposely; knowingly; recklessly; & negligently
 Requires application of mens rea to every material element of a crime, including
affirmative defenses.
 Mens Rea Terms under the MPC
 Purposely
 In the context of a result or conduct, a person acts “purposely” if it is his
“conscious object to engage in conduct of that nature or to cause such a result.”
 A person acts “purposely” with respect to attendant circumstances if he “is
aware of existence of such circumstances or he believes or hopes they exist.”
  Vermont v. Trombley
  Charge: Aggravated assault conviction
  Procedure: D appeals his conviction, claiming errors in the jury
instructions. "purposely or knowingly" when D was only charged
with "purposely" inflicting serious bodily harm.
  Purposely - act with conscious purpose of causing serious bodily injury
*Knowingly - practically certain his conduct would result in injury…then
not guilty
Issue: Did the jury instructions improperly instruct the jury on whether
the D acted purposely or knowingly?
  Holding: It was erroneous to instruct the jury on the mens rea of
"knowingly", however it was, beyond a reasonable doubt, a
harmless error and did not preclude the jury from considering the
D's self- defense justification.
 Knowingly
 A result is “knowingly” caused if the defendant “is aware that it is practically
certain that his conduct will cause such a result.”
 With “attendant circumstances” and “conduct” elements, one acts “knowingly”
if he is “aware that his conduct is of that nature or that such [attendant]
circumstances exist.
 Knowledge is established if a person is aware of a high probability of the
attendant circumstance’s existence, unless he actually believes it doesn’t exist.
United States v. Youts
  Charge: Violation of federal U.S.C. 1992 for train wreck statute…
  ssue on appeal: evidence of specific intent insufficient to support jury's
determination of guilt...
  Reasoning: Knowing conduct is sufficient to establish willfulness. Willful
satisfied if person acts knowingly with respect to material
elements of the offense. No specific intent requirement of the
statute as indicated by legislative history."Malicious" replaced by
"willfully"
  Holding: Mr. Youts knowingly set in motion the events which caused the
train to wreck. 
 Recklessly
 Person acts “recklessly” if he “consciously disregards a substantial and
unjustified risk that the material element exists or will result from his conduct.”
o A risk is “substantial and unjustifiable” if “considering the nature and
purpose of defendant’s conduct and the circumstances known to him,
its disregard involves a gross deviation from the standard of conduct
that a law-abiding person would observe in the actor’s situation.”
People v. Hall, Colorado, 2000.
  Charge: Reckless manslaughter
  Facts: Defendant skiing on Vail mountain when he collided with Allen Cobb, who
was skiing a slope below defendant. Cobb sustained traumatic brain injuries and
died as a result of the collision.
  Issue: What constitutes reckless behavior and whether D recklessly caused
death to Cobb.?
  Reasoning: For conduct to be reckless, the actor must consciously disregard a
substantial and unjustifiable risk that death could result from his
actions.D was a former ski racer trained in skier safety and his actions that day
consciously disregarded the risk of causing death to another.Focus on the
mental state of the recklessness…Reckless behavior is a gross deviation from
the standard of care that a reasonable person would exercise.
  Holding: The People provided sufficient evidence to establish probable cause
(lesser standard than beyond a reasonable doubt) of reckless
manslaughter… Negligently – only applies to homicide
 A person’s conduct is “negligent” if the defendant “should be aware of a
substantial and unjustifiable risk that the material element exists or will result
from his conduct.”
o The definition of “substantial and unjustifiable” is the same as that
provided for in the definition of “recklessness,” except that the term
“reasonable person” is substituted for “law-abiding person.”
  Negligence & recklessness require the same degree of risk-taking: “substantial and
unjustifiable,” and difference between them lies in the fact that reckless defendant
consciously disregards the risk, whereas negligent defendant’s risk-taking is inadvertent.
State v. Larson, Montana, 2004.
  Charge: Convicted on one count of negligent homicide…also misdemeanors:
DUI, speeding, and failure to wear a seat belt.
Facts: Larson and two college friends drinking in his car and at various bars.
Later that night, Larson was driving at a high rate of speed, when he
veered off the road, overcorrected when attempting to pull the vehicle
back on the road and sent the vehicle across to the other side of the
highway flipping multiple times. All three passengers, not wearing
seatbelts, were ejected from the vehicle. BAC of Larson 3 hours after the
incident was 0.12%. Larson objected to State's Jury Instruction #19 which
defined criminal negligence as an act being done with conscious disregard
of the risk of death of a human being will occur…(pg. 121)
  Rule:The risk must be of a nature and degree that involves a gross deviation
from the standard of conduct that a reasonable person would observe
  Issue: D argues that the standard of proof was lowered by not inserting the
adverb "consciously" before the word "disregards" as it related to the
individual's disregard for a known risk.
  Reasoning: Larson's mental state at the time he was driving is not at issue. The
issue is whether the driving of a car while intoxicated is a gross
deviation from the standard of reasonable care.
  Holding: Jury was adequately instructed on negligence and the elements
charged. Jury properly instructed on the definition of criminal
negligence. Affirm
 Finding Intent
 Intent is inferred through the circumstances
 Ex: pointing gun at someone and shooting someone; can infer the intent
 Natural and probable consequences
 Ex: if have loaded gun pointed at someone and pull trigger, then actual and probably
consequence is that someone is going to get hurt.
 On appeal – find intent in a light most favorable to prosecution
 Motive is not intent
 Motive is the reason why the defendant acted with the requisite statutory mens rea

Conditional Intent:
I. Holloway v. US
Facts: carjacking
Issue: whether the statute needs to prove an unconditional intent to kill or harm in all
events, or merely requires proof of an intent to kill or harm if necessary to effect a
carjacking. Is there such a thing as a conditional attempt?
Holding: a broader reading including conditional intent was needed
II. Direct v. circumstantial evidence
a. Direct leads directly to a guilty verdict: fingerprints, eyewitnesses, video tapes, dna
b. Circumstantial-leads to further evidence- evidence-evidence-evidence- guilt
III. State v. Worthy
Facts: D drove the vehicle while a girl's feet were dragged. On trial for criminal restraint
Issue: Does each element have to be done knowingly, or just maybe the first one?
 Rule: restraint, restraint has to be unlawful, and restraint had to have exposed the victim to
serious bodily harm
Holding; it does apply to each element, the jury instruction did not make that clear, case
reversed and remanded
 Willfull Blindness (ostrich defense) = Knowingly
 If the defendant is aware of a high probability of the existence of the fact in question, and he
deliberately fails to investigate in order to avoid confirmation of the fact, most jurisdictions will
find knowledge.
 Acting in conscious disregard for discovering the truth.
 A deliberate effort to avoid guilty knowledge is all the guilty knowledge the law requires
I. Rice v. State
Facts: driving with a suspended license
Issue: Whether McCallum had knowledge that his driving privileges were suspended and
thus his mental state must be assessed.
Holding: He knew it was going to be suspended, he avoided the letter, he acted willfully
blind. This does not work. He has knowledge and the necessary intent
 Transferred Intent
 Attributes liability to a defendant who, intending to kill (or injure) one person, accidentally kills
(or injures) another person instead.
 The law “transfers” the defendant’s state of mind regarding the intended victim to the
unintended one.
 Ex: Aiming at one person, and hitting the person next to him  trans. intent
 Only applies in the situation of the same intended harm inflicted on the unintended victims
 Exceptions to transferred intent
 Misidentification
 Ex: aiming at person thinking they are someone else
o Not transferred intent
 Does not mean that in the case of misidentification that a person is excused from
liability; just means that doctrine of transferred intent is not used as basis for
determining mens rea of accused
 Causes harm to intended person and also causing harm to innocent bystander
 Precluded by statute
 Cannot transfer to different crime/different type of harm intended
 Ex: intended to kill human but strikes dog instead
 Just means that doctrine of transferred intent is not used as basis for determining
mens rea of accused
a. State v. Fennell
i. Facts: has mental problems, grabs a gun and shoots this guy he is mad at, and wounds
another person in the process. He is charged with ABIK to the 2nd guy
ii. Issue: whether the doctrine of transferred intent can be applied when he purposely kills
one person but then mistakenly injures the other person
iii. Holding: Yes it is appropriate.
 Strict Liability
o Strict liability offenses are those that lack a mens rea requirement regarding one or more
elements of the actus reus.
 For such statutorily enumerated offenses, the mere proof of the actus reus is sufficient for
a conviction, regardless of the defendant’s state of mind at the time of commission.
 Promotes judicial economy
o Strict liability offenses are generally disfavored
 Policy reasoning – relates to theories of punishment
 If you didn’t know what you were doing is wrong, you cannot be deterred
specifically, rehabilitated, and retribution would do no good
 o Determining whether a statute defines a strict liability offense:
 1. There is no mens rea element in the statute  strict liability
 Can have strict liability in elements, but if no mens rea, statute cannot be SL
 Just b/c text doesn’t have mens rea term, it can still require a mens rea
 2. If statute comes from common law, it is highly likely NOT going to be a SL offense
 Common law crimes (most likely require mens rea):
o Murder, theft, robbery, rape, fraud, burglary, arson
 3. If public welfare offense, its going to be a strict liability crime
 Such statutes are aimed at conduct that, although not morally wrongful, could
gravely affect the health, safety, or welfare of a significant portion of the public.
o Ex: statutes that prohibit the manufacture or sale of impure food or
drugs to the public, anti-pollution environmental laws, as well as traffic
and motor-vehicle regulations.
 4. If severe punishment, most likely won’t be strict liability. Small punishment will likely
be strict liability.
 Ex: Speeding tickets are form of strict liability offense
 5. If crime has low stigma to the individual, more likely to be strict liability offense. High
stigma – won’t be strict liability offense.
 Ex: dinner test. If have over 4 dinner, crime is low stigma
 6. Legislative policy would be undermined by a mens rea
 Why make crime strict liability?
o Less costly to prosecute, more efficient to not include a mens rea
 7. Malum in se v. malum prohibitum
 Malum in se – inherently bad (murder) that usually require mens rea
o More likely to require mens rea and not strict liability crime
 Malum prohibitum – crime that comes from the legislature (likely strict liability)
o Model Penal
 The Model Penal Code does not recognize strict liability, except with respect to offenses
graded as “violations.” For all other offenses, section 2.02 requires the prosecution to
prove some form of culpability regarding each material element.
a. People v. Nasir
i. Facts: D had counterfeit tax stamps.
ii. Issue: Whether the legislature intended to dispose of the mens rea or fault requirement
when creating the strict liability offense
iii. Holding: yes, knowledge is an element of the offense of which D stands convicted based
on the 18 month-10 year punishment
iv. MPC does not even call these types of crimes, crimes. They call them violations and
would have no criminal record and the maximum punishment would be a fine
b. Public welfare policies may be able to get away with abolishing an intent requirement ex: a
quarantine for swine flu
c. Strict liability statutes are typically not favored and must be very clear
 Mistake of Fact
o An act committed or omission made under mistake of fact, which nullifies the requisite intent as a
element of the crime, is a defense to that crime
 Ex: If A thinks the white powder in vial is salt though it is really cocaine, A not guilty of
transporting cocaine.
 Policy reasons
 A retributivist would not convict her b/c she is not morally blameworthy
 A utilitarian would not punish her b/c people will not be deterred from doing
what they believe to be innocent acts.
o Common Law
 Specific Intent
  Defendant’s claimed mistake must be based only on good faith irrespective of
whether it was reasonable or unreasonable
 General Intent
 A person is not guilty of a crime if he commits a act or omits to act under a
honest and reasonable belief in the existence of certain facts and circumstances
which, if true, should make such act or omission lawful.
o Burden is higher for defendant’s charged with general intent crimes b/c
the jury must first determine whether the defendant actually had the
mistaken belief, and then that the mistake is one a reasonable person
would make
o If crime is one of strict liability, mistake of fact is no defense b/c don’t have to have intent
o Model Penal Code
 Mistake is a defense if it negates the mental state required to establish any element of
the offense.
 Does not distinguish between reasonable/unreasonable.
 The defense of mistake-of-fact is not available if the defendant would be guilty of another
offense, had the circumstances been as he supposed. In such cases, contrary to the
common law, the Code only permits punishment at the level of the lesser offense.
Stagner v. Wyoming, Wyoming Supreme Court, 1992.
Charge: Convicted of receiving or concealing a stolen vehicle. 
Facts: The judge refused to allow a defense of mistake of fact jury instruction. Two
theories of evidence: 1.) defendant believed the car had been bought and not stolen. 2.)
Issue: Violation of due process to deny a "Mistake of Fact" jury instruction for the
defense?
Holding: The refusal to give the instruction under this circumstance violated federal and
Wyoming due process.
Disposition: REVERSED.
  Dissenting Opinion: Evidence did not support the defendant's theory and doesn't make
a whole lot of sense. If the D's theory is inconsistent with the objective facts in the case,
then such a jury instruction should not be allowed.Not a mistake of fact case…the real
question is whether or not the D had knowledge of the stolen vehicle...
Defense of Mistake of Fact (Traditional Approach)
Specific Intent Crimes Any mistake can be a defense, including unreasonable
mistakes

General Intent Crimes Reasonable mistakes are a defense

Strict Liability offenses No defense due to mistake

 Mistake of Law
o Under both common law and MPC, ignorance of the law is no excuse
 Exceptions
 Reasonable reliance on official interpretation of the law later determined to be
erroneous (such as attorney general, not private attorney)
o Can’t rely on your own interpretation
 Didn’t have fair notice - Lambert
o The statute or other enactment defining the offense is not known to the
actor and has not been published or otherwise not reasonably made
available prior to the alleged conduct - MPC
 No mens rea – willfully
o Cheek Case
  Failure to perform a legal duty when brought upon by statute (tax statute) because of
disagreement with the law does not count as a mistake of law defense.
3. Due Process
***Lambert v. California***
 Convicted of forgery
 Statute required that anyone convicted of a felony must register with police if in LA for
more than 5 say
 D had no actual knowledge or notice of the ordinance
 D was convicted of the registration ordinance and is fined $250 and 3 year probation
 Supreme Court ruled in her favor…ignorance of the law was upheld here as a defense…
 Registration act violates due process where the person has no actual knowledge or no
showing of probability of knowledge…
 Notice is essential!!!
Chapter 5: Causation
Causation (C) - causation is an implicit element of all crimes.
 Causation may be “actual” or “proximate.”
o Actual Cause (Cause-in-fact)
 The But-for Test – requires the government to prove that but for the voluntary act (actus
reus) of the defendant, the result would not have happened
 “But for the defendant’s voluntary act(s), would the social harm have occurred
when it did?”
 Both common law and MPC use the but-for test
State v. Lane, N.C. Ct. App. 1994
Charge: indicted and tried for involuntary manslaughter. Found guilty, received max
sentence of 10 years.
Facts: 19 year old D and two cousins left D's home night of Sep. 17 1990. and walked to
a service station to get beer. Defendant swung at an intoxicated man and he fell on the
cement on the edge of the street. Police came and determined Linton not to be injured
but intoxicated and took Linton into custody in the jail for public drunkenness.
The following day Linton was taken to the hospital; he was unconscious. Autopsy showed no
external injuries but some injuries to the head and the brain, pneumonia of the lungs,
and liver damage. Linton was determined to have died from a blunt force injury to the
head.
Issue: Did the State show sufficient evidence to show the D's act of hitting Linton was
the actual and legal cause of his death?
Reasoning: Trial court must consider whether substantial evidence exists of each
element of the offense in considering a motion to dismiss. D contends that the State
failed to prove the causation element. A reasonable jury could find from the evidence
that D's punch was the actual cause of the blunt force injury to the head, leading to
Linton's death.
Disposition: Conviction upheld (sufficient evidence of proximate cause was also found).

o Multiple Actual Causes

 When a victim’s injuries or death are sustained from two different sources, any of the
multiple wrongdoers can be found culpable if his act was “a” cause-in-fact of the injury
or death. It is not necessary that any act be the sole and exclusive cause-in-fact of injury.
o Concurrent Sufficient Causes
 If, in the case of infliction of harm from two or more sources, if each act alone was
sufficient to cause the result that occurred when it did, the causes are concurrent and each
wrongdoer can be found criminally liable.
o Obstructed Cause – can prohibit actual cause
 If a defendant commits a voluntary act intending to cause harm – e.g., shooting a victim
in the stomach intending to kill the victim, but does not cause life-threatening injuries –
the person is not criminally liable for murder if a different person later causes victim’s
death
 Precludes initial perpetrator from suffering consequences beyond the crime that
he/she has committed.
o Accelerating the result
 If defendant accelerates death, even though inevitable, defendant still criminally liable
Oxendine v. State, Del. 1987.
Facts: Tyree beat the boy, then the next day Oxendine beat the boy.
Issue: on appeal, D argues that the trial court erred in denying his motion for
judgment of acquittal on the issue of causation.
Reasoning: Dr. Hoffman's testimony about Oxendine's acceleration was in
response to a hypothetical question in a cross-examination, not
sufficient to find acceleration; State would need to introduce this evidence in
their case-in-chief...
Holding: Oxendine's conviction for manslaughter set aside b/c of insufficient
evidence to establish that his conduct accelerated the boy's death.
Conditions
 Condition – not a cause.
 Ex: mom of a murderer (condition)
o Could say but for him being born, crime would not have occurred.
Doen’t mean parents automatically guilty for crimes of their children

o Proximate (Legal) Cause

 Direct Cause
 an Act that is direct cause of social harm is proximate cause
 Intervening Causes
 Intervening cause is an independent force that operates in producing social
harm, but only comes into play after defendant’s voluntary act or omission
 When an intervening cause contributes to the social harm, the court must decide
whether such intervening cause relieves the defendant of liability. If so, the
intervening event is deemed a “superseding cause” of the social harm.
 Intervening causes may keep from having proximate cause
 De Minimus Causes
o To be considered the proximate cause, the defendant’s act must have
been a substantial factor contributing to the result, rather than
insignificant or merely theoretical.
 Forseeability
o Some cases have held that the defendant cannot escape liability if the
intervening act was reasonably foreseeable
o unforeseeable intervening cause is superseding in nature.
 Intended Consequences Doctrine
o If cause/consequence intended, have proximate cause.
o Model Penal Code
 The Code treats matters of “proximate causation” as issues relating instead to the
defendant’s culpability.
 Thus to find the defendant is culpable, the social harm actually inflicted must
not be “too remote or accidental in its occurrence from that which was designed,
contemplated or risked.
 In such circumstances, the issue in a Model Code jurisdiction is not whether, in
light of the divergences, the defendant was a “proximate cause” of the resulting
 harm, but rather whether it may still be said that he caused the prohibited result
with the level of culpability—purpose, knowledge, recklessness, or negligence
—required by the definition of the offense.
State v. Lamprey, N.H. 2003.
Facts: Six children suffered injuries and one child died when they were in the bed of a
truck driven by the D that went off the road and hit a tree.
Issue: Whether trial court's jury instruction on causation conflicts with N.H. law by
defining too restrictively the circumstances in which an intervening cause warrants
acquittal. State must prove actual and proximate cause. "Sole substantial cause"
standard used by the trial court; is it the correct legal standard for legal causation under
N.H. law in cases concerning coincidental intervening causes?
Reasoning: The jury instruction was proper on the first issue.
On the second issue: D argues when the intervening cause was coincidental the D
should be less culpable b/c it arose independently of the D's acts.
The instruction by the D at trial did not raise the issue of foreseeability and therefore
will not be considered in this appeal.
Holding: "Sole substantial cause" was the correct standard…Affirmed
Notes and Questions
  1. The proximate cause analysis is more narrow in a criminal cause as opposed to a torts action.
2. Intervening Causes. General rule is that the intervening conduct of a third party will relieve a
D of culpability only if such an intervening response was not reasonably foreseeable.
  3. Independent and Dependent Intervening Causes. Independent = relieves liability. Dependent
= does NOT relieve liability; it is a normal and reasonably foreseeable result of the D's original
act.
  4. MPC. Whether the particular result was "not too remote or accidental in its occurrence to
have a just bearing" on liability.
  5. De Minimus Causes. Must be more than a "trifle." D's act must have been a substantial factor.
State v. Pelham, N.J. 2003.
  Charge and Procedure: First-degree aggravated manslaughter. Defense filed a motion to dismiss
the indictment, contending the removal of the ventilator was an independent intervening cause
that insulated the D from criminal liability. Trial court DENIED motion (removal of life supports
NOT considered a sufficient intervening cause to relive D of criminal liability). Jury Acquitted D of
aggravated manslaughter but CONVICTED him on lesser included offense of second-degree
vehicular homicide. Sentence was 7 years, no parole until after 3 years. On appeal, D argues the
trial court erred in instructing the jury that the removal of the life support was not an
intervening cause if death was the "natural result" of the D's actions.
  Issue: Was the removal of the life support an "independent intervening cause"?
  Holding: A victim's decision to invoke his right to terminate life support may not, as a matter of
law, be considered an independent intervening cause capable of breaking the chain of
causation…
Concurrence and Proof
 All the elements of the offense must concur
o Ex: cannot form intent after act occurs, and if act or attendant circumstance is element of crime,
then the government must prove that it existed at time of offense
 The government must prove all elements of the offense beyond a reasonable doubt
o Burden of proof is on the prosecution
o Proof beyond a reasonable doubt can be premised upon circumstantial evidence
 Non-material elements
o Jurisdiction and venue
  Constitution requires that trial shall be held in state where said crimes were committed
Jones v. State, Supreme Court of Georgia, 2000.
 One of the burdens on the prosecution is to prove venue
 Prosecutor always asks where the crime took place
 Not clear from the evidence in which county the crime took place…
Street names not sufficient to establish venue
Court says the conviction must be set aside b/c the Prosecution failed to
prove beyond a reasonable doubt…
State v. Rimmer p. 211
Facts: a couple who dated on and off again. He went to jail for aggravated
assault. He told his cell mates he planned to kill her, when he was
released he killed her. D appealed the jury instruction of reasonable doubt
Holding: The instruction did not result in a denial of due process, but we should
not use this sentence bc it is vague
Two elements of corpus delicti: a crime has been committed and it has been
committed by a human being) must be proven in every case
a confession is not admissible unless the prosecution has first established a
corpus delicti

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HOMICIDE

 General Definition of Homicide at Common Law

o The unlawful killing of a human being by a human being.
o Homicide is divided into two crimes – murder and manslaughter.
 General Definition of Murder at Common Law
o The unlawful killing of a human being by another human being with malice aforethought
 General Definition of Manslaughter at Common Law
o an unlawful killing of a human being by another human being without malice aforethought

 Actus Reus – killing of human being

o Must have dead body
 Death differs in some jurisdictions
 Some jurisdictions have incorporated brain death into their definition of death
o Time
 In old common law, death must have occurred w/in a year and day of act
 Most states have no restriction on this
 Mens Rea
o Today many states use degrees
 1st degree – premeditation and deliberation
 2nd degree – anything that is not 1st degree
o Common Law – malice aforethought
 When a person kills another, he acts with the requisite “malice” if he possesses any one
of four states of mind:
(1) the intention to kill a human being;
(2) the intention to inflict grievous bodily injury on another;
(3) an extremely reckless disregard for the value of human life; or
(4) the intention to commit a felony during the commission or attempted commission of
which a death results.
Murder
  At common law, there were no degrees of murder. The mens rea required for murder was malice
aforethought, which focused on the evil culpability of the defendant.
o Reform of common law has resulted in the division of murder into degrees based on def’s intent.
 First Degree Murder
 Second Degree Murder

 First Degree Murder

o Willfull, deliberate, and premeditated
 i.e. purposely killing while fully appreciating the significance of your actions and
thinking about them beforehand (killing in cold blood)
o Requires proof of express malice (Mens Rea)
 Specific intent to kill, usually described as a killing that was willfull, deliberate, and
premeditated.

 Factors proving Premeditation for First Degree Murder

o Premeditation and deliberation relate to mental processes (mens rea) and ordinarily cannot be
proved by direct evidence. Instead usually proved by circumstantial evidence.
 Circumstances to be considered when determining whether a killing was with
premeditation and deliberation:
 1. want of provocation on the part of the deceased
 2. conduct and statements of defendant before and after killing
 3. threats and declarations of defendant before and during the act giving rise to
victim’s death
 4. ill-will or previous difficulty between defendant and victim
 5. dealing of lethal blows after the deceased has been felled & rendered helpless
 6. evidence and that killing was done in brutal manner
 7. nature and number of victim’s wounds

 Second Degree Murder

o Any intentional (that is purposeful or knowingly) killing other than first degree murder or
voluntary manslaughter
 Ex: a purposeful killing done while unreasonably in the heat of passion
o Depraved heart murder (a special kind of extreme reckless killing done with indifference to the
value of human life
o Requires poof of implied malice (Mens Rea)
 Malice aforethought is implied if a person intends to cause grievous bodily injury to
another, but death results. In states that grade murder by degree, this form of malice
nearly always constitutes 2nd deg murder
 Implied malice also involves a killing that that results from defendant’s extreme
recklessness (extreme indifference to the value of human life, referred to as depraved
heart murder)

The Model Penal Code rejects the degrees-of-murder approach.

 A person is guilty of criminal homicide under the Model Code if he unjustifiably and inexcusably takes the
life of another human being purposely, knowingly, recklessly, or negligently.
 The Code recognizes three forms of criminal homicide: murder, manslaughter, and (unlike the common
law) negligent homicide.
o A homicide is murder if the defendant intentionally (purposely or knowingly) takes a life, or if it is
committed with recklessness (extreme indifference to the value of human life, i.e. depraved heart
murder).
Two types of 1st degree murder: premeditated murder felony murder
 
People v. Thompson p. 279
 Facts: killed his wife, shot at her several times with some time separating them. He had
threatened to kill her before if she divorced him
D argued for 2nd degree saying it was a crime of passion, and that the D hardly knew what he was
doing. This case talks about premeditation saying you have to have the intent and then the time to
reflect on it
The statute says proof is not required, all the had to prove was that there was time for the intent
to form but not that there is actual intent.
Holding: the court said it was incorrect instructions, yet the court does not set aside the conviction
saying the state presented overwhelming evidence that thompson reflected on killing his wife
 
Coolen v. State p. 286
Facts: Coolen stabbed Kellar to death. He was convicted of 1st degree murder and given the death
penalty
Issue: if he premeditated the murder?
Holding: No, they found him guilty of 2nd degree murder instead of 1st. Bc it seemed it came out
of nowhere, very sudden attack. There was not much evidence for reflection before the killing
occurred
 
Gilbert v. State p. 289
Facts: she was sick with osteoperosis and alzheimer's. Husband shot her (was premeditated)
Issue: whether or not this type of mercy killing should be allowed <motive v. intent>
Holding: as long as your intent is the type of intent spelled out in the statute, the motive is
irrelevant. They say there was no evidence of euthanasia. Although the florida law says
euthanasia is not a defense
 
Malice aforethought
1. kill
2. Injury- intent to seriously
3. Depraved heart and reckless indifference to human life
II. Murder-Depraved Heart
 
State v. Doub, III, Kansas Ct. of App. 2004.
 
Charge: Second-degree depraved heart murder. D appeals.
 
Elements of 2nd degree depraved heart murder
o Intentionally; or
o Unintentionally but recklessly under circumstances manifesting extreme indifference to the
value of human life.
 
Requisite state of mind for Depraved Heart murder by Vehicle:
o Intoxication
o Speeding
o Near or nonfatal collisions shortly before the accident
o Driving on the wrong side of the road
o Failure to aid the victim
o Failure to heed traffic signs
o Failure to heed warnings about reckless driving
 o Prior record of driving offenses (drunk or reckless or both)
 
Disposition: Affirmed conviction.

Manslaughter

 Voluntary Manslaughter - an intentional killing committed in “sudden heat of passion” as the result of
“adequate provocation”
o A killing that would otherwise be murder but that is mitigated to manslaughter b/c it was done
upon being reasonably provoked into a sudden heat of passion w/o cooling off where a reasonable
person would not have cooled off. Thus, the elements are:
 A killing in the sudden heat of passion
 Passion has been interpreted to include any violent or intense emotion such as
fear, jealousy, and desperation.
 A mental state what would ordinarily qualify for murder (Ex: a purposeful killing)
 Heat of passion caused by Adequate provocation by victim
 Mere words not enough for adequate provocation
o However informational words sometimes are enough
o The words alone rule doesn’t apply in jurisdictions following MPC.
 Provocation necessary to mitigate homicide from murder to manslaughter is that
which causes the defendant to act of passion rather than reason
o If not angry (in heat of passion), defendant’s ability to reason not
blurred by passion.
 A reasonable person would have been so provoked
 The defendant has not cooled off by the time of the killing
 Cannot be a cooling off period for the defendant to regain control of his passions
 A reasonable person would not have cooled off
 There must be a causal link between the provocation, the passion, and the homicide.

 Involuntary Manslaughter - an unintentional killing resulting from the commission of a lawful act done in
an unlawful manner (same as criminally negligent homicide)
o In some jurisdictions, involuntary manslaughter is a criminally negligent killing.
 Defendant is negligent regarding duty towards victim. Then as proximate result of this
negligence, victim dies  involuntary manslaughter
 Breach of duty had to amount to more than ordinary or simple negligence, had
to be gross negligence
 Some courts state that simple or ordinary negligence is enough
o State v. Williams - baby case (failure to seek medical care)
 Failure to exercise ordinary caution regarding duty that
reasonable person would  ordinary negligence
 That negligence proximate causes death  inv. manslaughter
o In some jurisdictions, a reckless killing (provided that is not of the special type of recklessness that
elevates the crime to depraved heart murder). In still other jurisdictions, a killing done w/ordinary
tort negligence
o An accidental homicide that occurs during the commission of an unlawful act not amounting to a
felony (or, at least, not amounting to felony that would trigger the felony-murder rule) constitutes
involuntary manslaughter.
 may be termed “misdemeanor-manslaughter” or “unlawful-act manslaughter.”
o Imperfect self-defense

 Model Penal Code

o A person is guilty of manslaughter if he:
  (1) recklessly kills another; or
 (2) kills another person under circumstances that would ordinarily constitute murder, but
which homicide is committed as the result of “extreme mental or emotional disturbance”
for which there is a “reasonable explanation or excuse
o In a sharp departure from the common law, the Code precludes liability for manslaughter based
on criminal negligence.
 A criminally negligent homicide – involuntary manslaughter at common law –
constitutes the lesser offense of negligent homicide under the Code.
I. Involuntary manslaughter: negligence must be gross such as a reckless disregard for human life
a. State v. Williams:
i. Facts: H and W have a sick 17 month child. The child dies bc of lack of treatment due to
gangrene from the tooth.
ii. Issue: was there a duty? Did their breach of duty constitute ordinary negligence?
iii. Holding: they held the parents were guilty of ordinary negligence (the caution exercisable by a
man of reasonable prudence under the same or similar conditions) thus the conviction of statutory
manslaughter.
Felony Murder Rule – any death during course of a felony is murder (Policy: will deter felonies). No mental
state or intent to kill is regarding the occurrence of the death is necessary  form of strict liability & is disfavored.
 Common Law
o A person is guilty of murder if he kills another person during the commission or attempted
commission of any felony.
 Statutory Law
o Under most modern murder statutes, a death that results from the commission of an enumerated
felony (usually a dangerous felony, such as arson, rape, robbery, or burglary) constitutes first-
degree murder.
o If a death results from the commission of an unspecified felony, it is second-degree murder.
o The felony-murder rule authorizes strict liability for a death that results from commission of a
felony.
 Strict liability comes from imposition of liability for a crime w/o requiring proof of intent
to commit that crime, but rather deriving it from proof of intent from underlying felony.
 Model Penal Code
o The Code also provides for felony-murder by setting forth that extreme recklessness (and, thus,
murder) is presumed if the homicide occurs while the defendant is engaged in, or is an accomplice
in, the commission, attempted commission, or flight from one of the dangerous felonies specified
in the statute.

Limits on the Felony Murder Rule

 Inherently-Dangerous-Felony Limitation
o Many states limit the rule to homicides that occur during the commission of felonies which by
their nature are dangerous to human life or create serious risk of death e.g., armed robbery.
 To determine which crimes are inherently dangerous, some courts look at the statute and
nature of the offense in the abstract and also the circumstances surrounding act
 Independent Felony (or Merger) Limitation
o Felony-murder rule only applies if the predicate felony is independent of, or collateral to, the
homicide. If the felony is not independent, then the felony merges with the homicide and cannot
serve as the basis for a felony-murder conviction.
 Ex: most jurisdictions hold that felonious assault may not serve as the basis for felony-
murder.
 Death must be a consequence of the felony
o Victim must be killed in furtherance of the felony

Killing by a Non-Felon (Co-Felon Rule)

o The “Agency” Approach to felony murder – majority of states
 o Precludes any killing committed during the commission of the felon by a person other that the
defendant or his accomplices from serving as the basis for felony-murder.
o However, a killing by an accomplice can be imputed to others involved in the commission of the
felony so that felony-murder can be charged against the non-killers.
o “Proximate Causation” Approach to felony murder - A minority of courts murder
o A felon is liable for any death proximately resulting from the felony, whether the killer is a felon
or a third party.

a. Hines v. State: Felony murder rule

i. Facts: Hunter shot his friend on accident thinking he was a turkey. He was a convicted
felon previously, and he was convicted of felony murder based on the underlying
crime of felon in possession of a firearm.
ii. Issue: Whether the fact that he has a firearm as a convicted felon, was hunting a turkey
an inherently dangerous?
iii. Rule: A felony is inherently dangerous when it is dangerous per se or by its
circumstances creates a foreseeable risk of death.
iv. Holding: Given the facts, he was drunk and it was dusk the conviction was affirmed
b. Felony murder: proof to commit the felony is all that is needed, there need not be an intent
to kill
c. State v. Contreras p. 323
i. Facts: Respondent knocked on hotel door and beat the guy up. They arrested him for
burglary. The guy died due to the injuries. The court tried to use the merger doctrine
to dismiss the felony murder charge.
ii. Holding: they reversed. The court felt that it is not approppriate to apply the merger
doctrine to felony murder when the underlying felony is burglary, regardless of the
intent of the burglary, thus it is appropriate to elevate a homicide to felony murder.
iii. Dissent: The intent in both the underlying felony and the homicide is the same,
application of the felony murder rule does not further the rule's intended purpose, to
prevent accidental or negligent killing, but rather, extends the rule unjustly.
d. State v. Sophophone p. 328
i. Facts: Sophophone conspired and broke into a house. In the commotion the police came
and lawfully shot his cohort Sysoumphone.
ii. Issue: can he be convicted of a felony murder?
iii. Rule: there was two ways to look at this:
1. Agency approach- limits application of the doctrine to those homicides
committed by the felon or agent of the felong
2. Proximate cause approach- liability attached for any death proximately resulting
from the unlawful activity
iv. Holding: no it was a killing based on the lawful acts of a police officer

RAPE
Rape is a general-intent offense. As such, a defendant is guilty of rape if he possessed a morally blameworthy state
of mind regarding the female’s lack of consent.

Factors to Consider
 Force; Against the will, W/O Consent
o The traditional common law rule requires proof that both the female did not consent to the
intercourse and that the sexual act was “by force” or “against her will” (“resistance”
requirement).
  Nonconsensual intercourse is “forcible” if the male uses or threatens to use force likely to
cause serious bodily harm to the female or, possibly, a third person.
o Traditional rape statutes define the offense as sexual intercourse achieved “forcibly,” “against the
will” of the female, or “without her consent.”
 Most statutes require force as element today as well
o The MPC defines rape solely in terms of the male’s acts of aggression and does not require proof
of resistance by the victim.
People v. Griffin p. 351 FORCE
Procedural history: Griffin was convicted by a jury of five counts of child molestation and
one count of forcible rape. He argues the forcible rape conviction must be reversed bc
the court erred in faling to instruct the legal definition of force/
Facts: Raped her but holding down and pinning her arms to the floor so that she was
unable to move them
Issue: Whether or not the legal definition of force was a necessary jury instruction
Rule: Force is to "press, drive, attain to, or effect as indicated against resistance…by
some positive compelling force or action." D argues it is "substantially different from or
substantially greater than the force normally inherent in an act of consensual sexual
intercourse.
Reasoning: there is nothing in the statute that suggests force in a forcible rape
prosecution actually means the second definition.
Holding: Ruled against D, ther term force is proper used as it is commonly understood
and does not require the heightened definition

 Gender neutral
o Traditional Statutes
 Like the common law, such statutes are gender-specific, i.e., only males are legally
capable of perpetrating the offense, and only females can legally be victims of the crime.
o Modern Statutes
 Rape is now defined in gender-neutral terms regarding both perpetrator and the victim.
 Marital rape
o At common law, a husband could not be guilty of raping his wife.
o The majority of states retain a partial exemption under which immunity does not apply if the
parties are legally separated or are living apart at the time of the rape.
o A minority of states maintain a total exemption for marital rape, while at least twelve states have
abolished the rule.
o The Model Penal Code recognizes a partial marital exemption that bars a rape prosecution
against a spouse or persons “living as man and wife,” although they are not formally married.
More stringent than the majority exemption, the only exception to the marital immunity rule is for
spouses living apart under a formal decree of separation.
 Rape by fraud
o Many states now extend the law to specified forms of non-forcible, but nonconsensual, sexual
intercourse, e.g., sexual intercourse by a male with an unconscious or drugged female.
 Ex: Loaded drink
o Unlike the common law, the Model Penal Code does not provide for rape on the basis of fraud.
State v. Vander Esch p. 371 Fraud
Fraud in the inducement- victim knows what he or she is doing but misunderstands Ex:
patient has sex with surgeon bc he says it will save her from a block in her
vagina, not guilty of rape
Fraud in the factum: doctor saying they were putting an instrument inside her but really
he put his penis, this is rape.
The case held this was fraud in the factum.
Modern Statutory Law
 Rape has been broadened to include all forms of sexual penetration (considered actus reus)
 The name of the crime has been changed (e.g., “criminal sexual conduct” or “sexual assault”) and the
offense is divided into degrees.

Model Penal Code

 A male is guilty of rape if, acting purposely, knowingly, or recklessly regarding each of the material
elements of the offense, he has sexual intercourse with a female under any of the following circumstances:
o the female is less than 10 years of age;
o the female is unconscious;
o he compels the female to submit by force or by threatening her or another person with imminent
death, grievous bodily harm, extreme pain or kidnapping; or
o he administers or employs drugs or intoxicants in a manner that substantially impairs the
female’s ability to appraise or control her conduct.

Statutory Rape
o Today, “statutory rape” remains an offense in most states.
o Many states apply a two-level approach to this offense:
o sexual intercourse with a very young girl (e.g., twelve years of age or younger) remains
punishable at the level of forcible rape
o intercourse with an older girl (especially if the male is older than the female by a specified
number of years) is a felony of a lesser degree.
o The Model Penal Code does not recognize any strict liability crimes, and thus does not recognize
statutory rape
State v. Martinez p. 376: Statutory Rape
Facts: 19 year old guy has sex w/ a 15 year old girl. He argues that he thought she was of the age of
consent.
Issue: Do you need mens rea for statutory rape
Holding: the state decided strict liability is imposed, there need not be a mental state.
Reasoning: The statute makes no mention of any required mental state & no due process rights have
been violated
Commonwealth v. Sa p. 379 Rape Shield Laws
Facts: Guy rapes a girl, she gets dropped off at her b/f's house and has sex with her b/f
Issue: Whether the trial judge properly invoked the rape shield statute to preclude evidence that the
victim had sex with her b/f soon after the rape
Rule: Rape shield law, prevents evidence that would embarrass the woman discussing her sexual past.
However, you can bring in evidence has real relevance (like if she falsely accused ppl of rape before).
Holding: The evidence that the victim had sexual intercourse after the rape was not relevant to a
defense theory based on consent.

THEFT

Larceny – basic theft offense; specific intent crime

o Common law larceny is the:
o (1) trespassory taking and
 A “trespass” is the dispossession of another’s property without his consent or when an
actor secured dominion over property of another
 Dispossession by fraud also constitutes a trespassory taking.
 o (2) carrying away (asportation) of the
 Common law
 A person is not guilty of larceny unless he carries away the personal property
that he took trespassorily from another.
 Virtually any movement of the property away from the point of caption is
sufficient and even if only for a moment
o Ex:larceny, rather than attempted larceny, occurs even if a shoplifter is
caught with merchant’s property in his possession inside the premises.
 Model Penal Code does not require proof of asportation.
o (3) personal property of another
 Only tangible forms of personal property are encompassed in the offense.
 Land and Attachments
 Real property is not the subject of larceny law
o The common law of larceny does not protect land because by its nature
it is immovable.
 Items attached to the land, e.g., trees, crops, and inanimate
objects affixed in the earth also fall outside the scope of the
offense. Once they are severed from the land, however, they
become personal property and subject to larceny law.
 Stealing from a Thief
 It is larceny for a person to take and carry away the property of another, even if
the “victim” also had no right to possess the property in question.
o (4) with the (specific) intent to (steal) and
 Courts commonly state that a person is not guilty of larceny unless he takes and carries
away the personal property of another with the “specific intent to steal” the property.
 Thus the defendant’s intent at the moment of the taking determined whether the
conduct was larceny
 Claim of Right
 A person is not guilty of larceny if he takes property belonging to another person
based on the good faith belief that he has a right to possess the property. The
defendant’s belief negates the specific intent to steal.
 Continuing Trespass Doctrine
 Ex: a defendant took property temporarily, and then changed his mind and
decided to keep it.
o Defendant’s retaining possession of the item is a trespass, and at the
moment the intent to permanently hold the time  larceny complete
o (5) permanently deprive the possessor of the property.
 Not larceny to take a thing for a temporary purpose and with the bona fide intention of
returning it

Custody” versus “Possession”

o Larceny involves the trespassory taking of personal property from the possession of another.
o Ownership is not the key.
o A person has possession of property when he has sufficient control over it to use it in a reasonably
unrestricted manner.
o Possession can be actual or constructive.
 It is actual if the person is in physical control of it
 It is constructive if he is not in physical control of it but no one else has actual possession
of it, either because the property was lost or mislaid or because another person has mere
“custody” of it.
o Breaking the Bulk Doctrine
o Carrier is bailee of goods enclosed in a container. When a bailee is entrusted with a container for
delivery in unopened condition, he receives possession of the container but mere custody of its
 contents. When the bailee wrongfully opens the container and removes the contents, i.e., when he
“breaks bulk,” a trespassory taking of possession of the contents results.
 Breaking bulk = larceny
 Mafnas Case – taking $$ from bags  convicted of larceny b/c “broke bulk” of bag
 Bank had constructive possession of bags, employee only had temp. custody
o Thus guilty of larceny b/c trespatorily took $$ that was in constructive
possession of Banks

o Innocent Instrumentality
o dog steals newspaper for you. Dog cannot be charged w/larceny b/c inn. Instrumentality
o Lost of Mislaid Property
o the finder of lost property must make every reasonable effort to find the owner when he has the
means to do so or else the finder exposes himself to possible prosecution

People v. Shannon p. 392: Larceny

Facts: Steals clothes and tries to return the clothes for money. He claims he committed attempted not
completed theft bc he did not remove the clothes from the store and he did not intend to permanently
deprive the store of the clothes.
Holding: neither of these arguments prevailed.
Reasoning: In neither case does it matter that the thief intends to sell the victim's property back to the
victim after wrongfully stealing the preoperty and claiming to be the rightful owner, thus ultimately
stealing the victim's money rather than the property. Shannon completed the theft when he moved the
clothes, thus appropriating them and intending to fradulently resell them to the store.
 
Continuing trespass doctrine- under which the D's retaining possession of the item is a trespass, and at
the moment of intent to permanently hold the item the larceny is complete.
 
US v. Mafnas p. 403: Larceny
Facts: delivered money from banks to banks. He took money out of the bag and is charged with larceny,
He says it is embezzlement. He says it cannot be larceny bc he had possession and he was takingtaking it
for possession thus is embezzlement.
Holding: Court said it was larceny bc he had custody not possession
 
 

Embezzlement – not a common law offense; created by legislature

o Different than larceny b/c the victim entrusts the property to the defendant, and the defendant fraudulently
converts it to personal use.
o Person has lawful possession of the property, and then misuses the property for his own purposes.
 Ex: Employees who hold/receive money on behalf of employer (bank teller/retail clerk)
o Distinguishing larceny and embezzlement
o Possession of property is gained by unlawful means in larceny while embezzlement is
accomplished by a lawful taking of the property through its entrustment to one by another.
 Other than difference, all the rest of the elements are the same.
 Thus the Central question for embezzlement is whether the defendant received the
property in trust
 The state therefore is required to establish existence of trust relationship
o A trust is an arrangement whereby property is transferred to another
with the intent that it be administered by the trustee for the benefit of
the transferor  fiduciary relationship (acting on behalf of another for
their benefit, not yours)
  Normally created by express words to do so
Can be implied trust as well by showing evidence that

State v. Parris p. 406

Facts: A couple wanted to purchase a mobile home. They gave the money to Parris since he owned the
mobile home dealership. However, Parris used it for his own purposes; paying bills, paying employees
Issue: Whether the D received the property in trust which he later violated
Holding: was not a criminal matter, the state did not prove there was a trust relationship
 relationship was fiduciary

Receiving Stolen Property

o No person shall receive, retain, or dispose of property of another knowing or having reasonable cause to
believe that the property has been obtained through the commission of a theft offense
o Jennings Case
 Defendant had possession of credit cards and money cards from victim
 Credit card and money cards deemed to be property
 Thus defendant guilty of receiving stolen property

State v. Jennings p. 411

Facts: Three guys robbed this woman. Police found them outside w/ the credit cards 15 feet away from
appellate
Issue: Did he have possession of the credit cards? Was it correct for him to be convicted of stolen
property
Holding: Yes, it has to be in his possession (dominion and control)& knew it was stolen

Robbery – Larceny from the victim’s person or presence where the taking is accomplished by force or threats
o Robbery requires all elements of larceny plus:
o Property must be taken from victim’s person or presence
o Use of threat or force no matter how slight to accomplish the taking
 However the force used to merely remove the property from a victim is not the same
force required to support a robbery charge  Larceny, not robbery, when the evidence
shows no more force than the mere physical effort of taking the property from the
victim’s person and transferring it to defendant
 Ex: Removal of wallet from victim’s pocket does not constitute the element of
force or threat required to support robbery conviction. Thus, crime is larceny.
 Sufficient force to constitute robbery may be found when the article taken is so attached
to the person or clothes as to create resistance, however slight.
o Putting person/victim in fear
o Jurisdiction with Subjective Test (person was afraid)
o Jurisdiction with Objective Test (reasonable person would have felt the necessary fear)
o Powell Case
o Just saying that you have gun is not enough
o Fake or inoperable weapons can be dangerous weapons.
o Adopts victim’s viewpoint asking whether the victim reasonably believed the defendant had a
dangerous weapon at the time of the theft to make it an armed robbery.
o Jones Case – Timing of use of force
o Threat or force must occur at time of the taking
o However when defendant produced firearm, he only had custody of boots while store still had
constructive possession
 Thus because he produced firearm to overcome manager’s opposition to the taking, the
crime became robbery, not larceny
o MPC doesn’t require the taking from the person/presence, only the threat of force
Burglary
o Common law burglary is:
o 1. breaking and entering of
 Entry
 Slightest intrusion into the structure by the defendant or some part of the
defendant’s body is sufficient
 Entry is also accomplished by defendant’s insertion of a tool into the structure
 Breaking
 Use of force to create an opening in the structure by trespass (w/o consent)
 If go to house and its unlocked, might be attempted burglary
o 2. a dwelling of another
o 3. in the nighttime with
o 4. intent to commit a felony therin
o Burglary is specific intent crime
o Burglary requires the specific intent to commit a crime upon entry, and that the intent must be
formed before the burglary.
 The actor must specifically intend (actively desire) to commit a felony or theft w/in the
premises at the time of his unauthorized entry.

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DEFENSES
Defense – the term defense means any set of identifiable conditions or circumstances which may prevent a
conviction for an offense.

Five General Categories of Defenses

 1. Justifications (focus on act, not actor)– Justifying your actions (Ex: parking in front of fire hydrant
purposefully  “I had to. I was taking my baby to hospital to save life = defense of others)
o A justification defense deems conduct that is otherwise criminal to be socially acceptable and non-
punishable under the specific circumstances of the case.
o Justification focuses on the nature of the conduct under the circumstances.
o Examples:
 Self-defense
 Defense of others
 Defense of property and habitation
 Use of lawful force
 Necessity
 Justification can be claimed when the conduct is the reasonable discipline of minors by a parent. - Sedlock
 2. Excuses – focus on actor, not act
o Excuse defenses focus on the defendant’s moral culpability or his ability to possess the requisite mens rea.
o An excuse defense recognizes that the defendant has caused some social harm but that he should not be
blamed or punished for such harm.
o Examples include:
 Duress, Insanity, Diminished capacity, Intoxication (limited circumstances), mistake of facts,
Mistake of law (limited circumstances)
 3. Failure of Proof – prosecution is unable to prove all the required elements of the defense, the objective
conduct, circumstance, culpability, etc.

Alibi Defense – an alibi places the defendant at the relevant time in a different place than the scene involved and so
removed therefrom as to render it impossible for the accused to be the guilty party.

Cultural Defenses – irrelevant as a defense  Romero - Hispanic street fighter case

Entrapment Defense – Was defendant predisposed to commit the crime?
 Entrapment is a defense that attempts to strike the balance between proper police undercover investigation
and detection of crime and inappropriate instigation of crime.
 The defense focuses on :
o (1) what the police did, and
 Government conduct must induce commission of the crime
 There’s difference between merely affording opportunity to “unwary criminal”
to commit a crime & actually inducing “unwary innocent” to commit a crime.
o (2) the defendant’s predisposition to commit the crime.
 The defendant not be predisposed to commit the crime prior to government involvement.
 Jacobsen v. U.S. – Subjective Approach
o Holding: government had to establish that defendant was predisposed to commit the crime and
that his predisposition was not the product of government conduct.
 Defendant never before ordered illegal material, gov’t hounded him for 26 mos. 
defendant wasn’t predisposed to commit crime before government involvement 
Jacobsen was entrapped as a matter of law
o Policy
 Because the gov’t is allowed to show defendant was predisposed to commit the crime, it
would be “open season” on individuals with criminal history, and prosecutors could use
any imaginable inducement to obtain their conviction.
 Risky Defense  past criminal history becomes fair game  could bias jury
 Model Penal Code (and minority of states) – Objective Approach
o Under the MPC, the defense is established when a gov’t agent, in order to gather evidence that
crime has been committed, induces or encourages another person to engage in an offense either by
(a) making knowingly false representations designed to induce the belief that such conduct isn’t
prohibited; or (b) employing methods of persuasion or inducement which create a substantial reish
that such as offense will be committed by person other that those who are ready to commit it.
o Looks primarily at what government did and assesses what its impact would be on normally law-
abiding people.
 Looks at government conduct from objective standard
o Policy
 Concerned far less w/criminal history of offender compared to controlling police conduct
 Focuses on whether police behavior was appropriate & not on characteristics of
offender
 This approach creates disincentives for inappropriate police conduct
People v. Maffett p. 649
Facts: informant begs a guy for crack cocaine, asks over and over and over. The guy finally says
fine, I'll give you some.
Issue: IS that entrapment
Holding: Yes, that was manufactured by the police. And we don’t want gov manufacturing crime.
This is the reason for the entrapment defense.
 
There are two different theories:
Subjective (origin of intent) majority-focuses primarily on the D's disposition before the offense
Objective (police conduct)-focuses on primarily the nature of the police conduct before the crime
 
Jacobson v. US p. 650
Facts: Ordered pics of naked men through an adult bookstore, however, he received pics of
boys. The police got his name from a mailing list and tried for years, sending letters and
questionnaires attempting to get him to violate the new statute. Finally another gov entity
 attempted to send him pics of young boys & he ordered a magazine & was subsequently
arrested.
Issue: Was this entrapment?
Holding; Majority said this was entrapment, based on the subjective theory
Reasoning: Gov didn't prove he had the intent to commit the crime even when it was legal
and by the time he did the crime again it had been 26 months of the gov trying. The gov
implanted the idea of committing the crime in the D's mind.
Dissent: D was offered two time and bought both times, they did not coax or persuade him
 
Notes:
1. Police object theory- do they police do something so reprehensible that it cannot be
tolerated. They do not focus on predisposition. Positive of this side is that unlike the other
theory you do not need to bring up the D's past crimes,
 
Foster v. State p. 656
Facts: Foster spat out a bag of crack cocaine into the hand of an officer in disguise, who offered to
pay for it
Rule: Had to determine the D was predisposed to commit the crime b4 the approach him,
however decided to do away with this case law rule. No ex post facto rule should be passed, thus
ex post facto apply to statutes not case law.
 
Notes:
5 Factors that are relevant in determining predisposition:
1. Character of D
2. Who first suggested the criminal activity
3. Whether the d engaged in the activity for profit
4. Whether the D demonstrated reluctance
5. The nature of the gov's inducement
 
People v. Moore p. 662
Facts: Two acquaintances, one was selling drugs to the other over a period of time. He asked 2
times a week for 4 weeks.
Rule: D is entrapped if: 1) police engaged in impermissible conduct that would induce a law
abiding citizen to commit a crime 2) conduct was so reprehensible, it cannot be tolerated.
Objective theory

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SELF-DEFENSE
Self Defense is the most widely accepted justification defense  a person may use force to resist another who seeks
to cause harm to that person.

Self-Defense is a crime of necessity – it only arises when necessity begins and ends when necessity ends.

Use of Non-Deadly Force – CL (MPC is similar)

 A non-aggressor is justified in using force upon another if he reasonably believes that such force is necessary
to protect himself from imminent use of unlawful force by the other person.
 However, the use of force must not be excessive in relation to the harm threatened.
 One is never permitted to use deadly force to repel a non-deadly attack.

Use of Deadly Force

 Common Law
o Deadly force is only justified in self-protection if the defendant reasonably believes that its use is necessary
to prevent imminent and unlawful use of deadly force by the aggressor.
o Deadly force may not be used to combat an imminent deadly assault if a non-deadly response will
apparently suffice.
 MPC
o The Code prohibits the use of deadly force by a deadly aggressor, i.e., one who, with the purpose of
causing death or serious bodily injury, provoked the use of force against himself in the same encounter.
o The Code specifically sets forth the situations in which deadly force is justifiable: when the defendant
believes that such force is immediately necessary to protect himself on the present occasion against:
(1) death;
(2) serious bodily injury;
(3) forcible rape; or
(4) kidnapping.
Key Requirement of Deadly Self Defense
 A threat, actual or apparent, of use of deadly force against defender
 Threat must have been unlawful and immediate
 Defender must have believed that he was in imminent peril of death or serious bodily harm, and that his
response was necessary to save himself
 Must be honest beliefs (subjective beliefs by defendant) and objectively reasonable in light of the circumstances
o MPC require subjective belief
 Not available to one who provokes the a conflict or who is an aggressor in it
 Mere words do not constitute provocation
 If someone precipitated the altercation but thereafter withdrew from it in good faith and informed other by
words or act, then that person can use deadly force to save himself from imminent danger or grave bodily harm

Retreat Rule
 Common Law
o If a person can safely retreat and, therefore, avoid killing the aggressor, deadly force is unnecessary.
o Jurisdictions are sharply split on the issue of retreat.
 A slim majority of jurisdictions permit a non-aggressor to use deadly force to repel an unlawful
deadly attack, even if he is aware of a place to which he can retreat in complete safety.
 Many jurisdictions, however, provide that a non-aggressor who is threatened by deadly force must
retreat rather than use deadly force, if he is aware that he can do so in complete safety.
 American Rule
o One does not have a duty to retreat  force is okay if it is reasonably necessary to save oneself
 MPC
o One may not use deadly force against an aggressor if he knows that he can avoid doing so with complete
safety by retreating. Retreat is not generally required in one’s home or place of work. However, retreat
from the home or office is required: (1) if the defendant was the initial aggressor, and wishes to regain his
right of self-protection; or (2) even if he was not the aggressor, if he is attacked by a co-worker in their
place of work. However, the Code does not require retreat by a non-aggressor in the home, even if the
assailant is a co-dweller.

Exception to Retreat Rule

 Castle Doctrine
o A universally recognized exception to the rule of retreat is that a non-aggressor need not ordinarily retreat
if he is attacked in his own dwelling place or within its curtilage [the immediately surrounding land
associated with the dwelling], even though he could do so in complete safety. (unless provoke conflict)

Battered Woman Syndrome

 A special type of self-defense is the “battered woman syndrome” defense. Cases in which this defense arise
may occur under three scenarios:

(1)“Confrontational” homicides, i.e., cases in which the battered woman kills her partner during a
battering incident. In such cases, an instruction on self-defense is almost always given. It is now routine for
a court to permit a battered woman to introduce evidence of the decedent’s prior abusive treatment of her, in
support of her claim of self-defense.

(2) “Non-confrontational” homicide, where the battered woman kills her abuser while he is asleep or
during a significant lull in the violence. Courts are divided on whether self-defense may be claimed if there is
no evidence of threatening conduct by the abuser at the time of the homicide, although the majority position
is that homicide under such circumstances is unjustified.

(3) Third-party hired-killer cases, in which the battered woman hires or importunes another to kill her
husband, and then pleads self-defense. Courts have unanimously refused to permit instructions in third-party
hired-killer cases.

Defense of Others
 Common Law Rule – Act at Peril/Alter Ego Rule
o A third party is justified in using force to protect another from unlawful use of force by an aggressor to the
extent that the other person is justified in acting in self-defense.
 Thus a defendant using deadly force to defend a person who was not entitled to use deadly force is
criminally liable.
o This so-called “alter ego” rule, as applied in early common law, required that the other person had to have
been justified in self-defense, irrespective of how the situation would have appeared to a reasonable person.
o Today, however, the majority view is that the use force may be justified if it reasonably appears necessary
for the protection of the other person.
 MPC – Reasonable belief rule
o An intervenor who acts in defense of another is not liable if his or her actions were reasonable under the
circumstances.
 A defendant may be legally justified in killing to defend another, even if the intervenor acted
under a mistaken belief as to who was at fault, provided his/her belief was reasonable.
 Policy for disintegration of alter ego rule
o Individuals will be encouraged to assist others in need and yet not expose themselves to criminal liability
in the process if there is no alter ego rule.
Defense of Property
Gatlin v. US p. 612
Facts: A reporter was hit and police officers and reporter filed assault
Rule: A person is justified in using reasonable force to protect their property from trespass or theft when
they reasonably believe that their property is in immediate danger of an unlawful trespass or taking and
that the use of such force is necessary to avoid danger.
Holding: D cannot claim a defense of property against the police bc they were legally there. If the
defense was available regarding the reporter and photographer, the ct was satisfied there was assault
and the TC did not abuse their discretion
 
Class Notes: Tenn v. Garner
Family went away on a trip and told neighbors they were going away. Neighbors saw a light flashing in
the house and call police. Police arrive and see a figure leaving the house, climbing the fence, shot at the
figure, saw that it was a young kid. Father of the dead boy sued the police under the Civil Rights Act. The
court said its ok to use deadly force for dangerous crimes like burglary. Supreme Ct said no, shooting to
kill during a property offense is not reasonable.
 
State v. Johnson p. 621 Arrest
Facts: Johnson shot and killed a man who was in the process of breaking into a vehicle, stealing a car
radio, and driving away.
Issue: Was this New Mexican law, that allowed this action, still valid?
Holding: No, not after Garner. You cannot use deadly force to stop someone from fleeing from a
property offense. The state even enacted a statute forbidding police from doing so, and extending it to
regular citizens

Necessity and Duress

 Duress – excuses criminal conduct where the actor was under an unlawful threat of imminent death or serious
bodily injury, which caused the actor to violate the law.
o Duress is a threat made by another human being to use force against the defendant or another unless the
defendant commits the offense
 Ex: Gun to your head
o Coercion had its source in the actions of other human beings
o Common Law – could not use duress as a defense to murder
o Today – permit duress to limit murder to manslaughter
 MPC – duress can be raised as defense to murder

o Duress Defense will allow a person to possibly be acquitted of any offense except murder if the criminal
act was committed under the following circumstances:
 1. Immediate threat of death or serious bodily harm
 2. Well-grounded reasonable threat that harm will occur
 3. imminent
 4. no reasonable escape from threat except for compliance

Bates v. Commonwealth p. 640

Facts: Prisoner who fled bc he said another prisoner claimed he would be forced to perform oral
sex. Charge is escape.
Issue: Whether the TC erroneously failed to give a duress instruction
Rule: In order to enact necessity, it was necessary for him to escape in order to not perform oral
sex.
Reasoning: No, should not be used as a defense bc it was not an imminent danger
Rule: Duress statute- Must show through threats that’s why u committed the offense of which you
are charged
Reasoning: not entitled to an instruction of duress bc he had other avenues instead of escaping
(talk to an officer) and also why did he stay away for 5 months

 Necessity – physical forces beyond the actor’s control rendered illegal conduct the lesser of
two evils
o It is a defense of last resort as it legitimizes technically illegal conduct that common
sense, principles of justice, and/or utilitarian concerns suggest is justifiable, but which is
not specifically addressed by any other recognized justification defense.
o Choice of evils as defense is applicable when the alleged crime were necessary as an
emergency measure to avoid and imminent injury
o Generally speaking, a person is justified in violating a criminal law if the following six
conditions are met:
 (1) The defendant must be faced with a clear and imminent danger.
(2) There must be a direct causal relationship between the action and the harm to be
averted.
(3) There must be no effective legal way to avert the harm (legal alternative).
(4) The harm that the defendant will cause by violating the law must be less serious than
the harm he seeks to avoid. The defendant’s actions are evaluated in terms of the harm that
was reasonably foreseeable at the time, rather than the harm that actually occurred.
(5) There must be no legislative intent to penalize such conduct under the specific
circumstances.
(6) The defendant must come to the situation with “clean” hands, i.e., he must not have
wrongfully placed himself in a situation in which he would be forced to commit the
criminal conduct.
People v. Fontes p. 629: Necessity/Choice of Evils
Facts: tried to cash a forged check. Said he did this bc his children were starving
Holding: There must be something more than economic necessity to commit the crime. He was
not entitles to assert a choice of evils defense. He could have persued other legal alternatives to
obtain food.
Rule: Choice of evils- when the alleged crimes were necessary as an emergency measure to
avoid an imminent public or private injury that is abt to occur by reason of a situation through no
conduct of the actor and which is of sufficient gravity to outweigh the criminal conduct
 
Geljack v. State p. 633
Facts: Had license suspended for 10 years. He drove car and claimed it was an emergency and
necessary to save life or limb (bc the brakes were bad)
Issue: Whether the rule was unconstitutional bc it imposes a burden on the D to establish the
affirmative defense of emergency
Holding: NO it was not unconstitutional

o Civil Disobedience
o “Civil disobedience” is a nonviolent act, publicly performed and deliberately
unlawful, for the purpose of protesting a law, government policy, or actions of a
private body whose conduct has serious public consequences.
o The necessity defense rarely arises in cases of direct civil disobedience, where the
goal generally is to have the protested law declared unconstitutional.
o Indirect civil disobedience involves violation of a law that is not the object of the
protest, e.g., violating trespass statutes to protest construction of a nuclear power
plant or the performance of abortions at a clinic.
 While protesters often advocate that they should be entitled to a “political
necessity” defense, courts consistently have held that necessity is not a
defense to indirect civil disobedience.
o US v. Maxwell p. 634: Civil Disobedience
o Facts: Protested use of submarines on American Navy property in Puerto Rico w/o
authorization. He alleges. He wanted to present a defense based on necessity and
international law.
o Holding: Court said no they cannot use international law- he was under no compulsion to
violate international law like Nuremberg.
Insanity – at time of the offense
o Incompetency to stand trial
o Looks at defendant’s competency at the time of the trial, not at the time of the act
o Elements:
 Know you’re charged
 Capacity to consult w/attorneys w/reasonable degree of understanding
 Understanding the proceedings against him
o Insanity
o Uses different Tests
 1. M’Naghten Test
 The M’Naghten rule focuses exclusively on cognitive disability.
 Under this rule, a person is insane if, at the time of the criminal act, he
was laboring under such a defect of reason, arising from a disease of
the mind, that he (1) did not know the nature and quality of the act that
he was doing; or (2) if he did know it, he did not know that what he
was doing was wrong.
o Not knowing difference between right and wrong.
 Policy: limits psychiatric testimony
 2. “Irresistible Impulse” Test
 Some jurisdictions have broadened the scope of M’Naghten to include
mental illnesses that affect volitional capacity.
 Overmastering a defendant’s will by insane delusion produced by
disease of mind
o Can’t use this as defense/excuse to crimes after extensive
brooding of melancholy
 Generally speaking, a person is insane if, at the time of the offense:
(1) he acted from an “irresistible and uncontrollable impulse”;
(2) he was unable to choose between the right and wrong behavior;
(3) his will was destroyed such that his actions were beyond his
control.
 3. Model Penal Code Test
o The Model Penal Code provides that a person is not responsible for his
criminal conduct if, at the time of the conduct, as the result of a mental
disease or defect, he lacked substantial capacity to:
(1) appreciate the “criminality” (or “wrongfulness”) of his conduct; or
(2) to conform his conduct to the requirements of the law.
o This test does not require total mental incapacity.
 4. The Product (Durham) Test
o This rule, now defunct, provided that a defendant’s criminal behavior may
be excused if he was suffering from a mental disease or defect at the time
of the offense and the criminal conduct was the product of the mental
disease or defect.

Diminished Capacity
o “Diminished capacity” refers to a defendant’s abnormal mental condition, short of
insanity.
o Negates mens rea element, usually specific intent, in some jurisdictions.
o Some jurisdictions can never use as a way to null a mens rea.
o In MPC, negates mens rea terms
o Some jurisdictions have it as separate defense
o Partial Responsibility
 This form of diminished capacity partially excuses or mitigates a
defendant’s guilt even if he has the requisite mens rea for the crime.
 Reduce murder to manslaughter