Criminal Law 1

Outline

Purposes of Punishment
 Retribution
 Deterrence- General & Specific
 Restraint- Protection of the Public
 Rehabilitation
Actus Reus
 Crimes are composed of elements.
 An element of ever crime is a voluntary act that is forbidden by law--- Voluntary Act
o Involuntary Acts-
 Drunkenness not involuntary, An “accusation of drunkenness in a public place cannot be established
by proof that the defendant was involuntarily and forcibly carried to that place by the arresting
officer.”
o Voluntary Act and the MPC
 A person is not guilty of an offense unless his liability is based on a voluntary act or the omission to
perform an act of which he is physically capable (and a duty to act is imposed by law).
 The MPC “has been cited in thousands of court opinions as persuasive authority for the interpretation of
a statute” and is “a standard part of the furniture of the criminal law.”
 MPC 2.01(1) an (2)
 A person is not guilty of an offense unless his liability is based on conduct that includes a
voluntary act or the omission to perform an act of which he is physically capable.
 The following are not voluntary acts within the meaning of this Section:
o A reflex or convulsion;
o A bodily movement during unconsciousness or sleep;
o Conduct during hypnosis or resulting from hypnotic suggestion;
o A bodily movement that otherwise is not product of the effort or determination of the
actor, either conscious or habitual.
o Involuntary Act and the MPC
 Reflex or convulsion, bodily movement during unconsciousness or sleep, conduct resulting from
hypnosis, bodily movement that is not a product of the effort or determination of the actor, either
conscious or habitual.
 An involuntary movement should not be punished because it cannot be deterred. A court may interpret
the “catch all” term under MPC 2.01 (2)(d) consistent with its own policy-based views.
o Fulcher: Actus Reus & Involuntariness
 Automatism is the “state of mind in which a person does not have conscious and willful control over his
own actions.”
 Actions performed in a state of unconsciousness are involuntary.
 The defense of unconsciousness resulting from head trauma is separate from the defense of insanity. It
is a complete defense.
 Insanity requires proof of a severe, permanent disease of the mind that prevents the individual from
determining right from wrong.
 The Fulcher court treated the unconsciousness defense as a condition that nullifies both the voluntary
act required for a crime and any accompanying mental state.
 If the defendant’s acts were the product of bodily movement that was not based on his effort or
determination, either conscious or habitual, you must return a verdict of not guilty.
 Or a failure to act when a duty is imposed. – Omission of an act
o An omission is a failure to act where a duty to perform the omitted act is imposed by law.
o Four legal duties to act
 A statute imposes a duty of care.
 One stands in a certain status relationship to another.
 One has assumed a contractual duty to care.
 One has voluntarily assumed care and secluded the person as to prevent others from giving aid.
Mens Rea
 Mens rea refers to the state of mind that, together with its accompanying conduct, the criminal law defines as an
offense. Most laws include a required mental state for culpability.
 Each element of a crime must be accompanied by a required mental state (excluding strict liability offenses).
 The mens rea for knowledge under the MPC has a conduct-circumstances driven component and a results-driven
component.
 In crafting jury instruction, a court must tailor the required mens rea to the specific element of the offense.
 Look for offenses with verbs describing conduct (“did treat”) or results (“resulted in”).
 Mens Rea and MPC
o The Model Penal Code drafters’ greatest contribution is there use of a limited number of defined culpability
terms.
 Intentionally
o Common Law
 A person acts with intent to cause the prohibited harm if:
 It is his or her desire to cause the harm (“conscious object)
 He or she acts with the knowledge that the harm is virtually certain to occur as a result of his
or her conduct.
 **Common law does not separate intent and knowledge.
o MPC – a higher form of knowledge.
 A person acts purposely when:
 It is his conscious object to engage in conduct of the prohibited nature or cause such a result.
 If the element involves the attendant circumstances, he is aware of the existence of the
circumstances or believes or hopes that they exist.
o Statutory (Illinois) – a higher form of knowledge.
 A person acts intentionally to accomplish a prohibited result or engage in prohibited conduct when his
conscious objective or purpose is to accomplish that result or engage in that conduct.
 Knowingly
o MPC
 He is aware that his conduct is of the prohibited nature or that those circumstances exist.
 He is aware that the prohibited result is practically certain to be caused by his conduct.
o Statutory- Illinois
 A person acts with knowledge when:
 He is aware that his conduct is of the prohibited nature or that those circumstances exist.
 He is aware that the prohibited result is practically certain to be caused by his conduct.
 **Foreseeability
o A defendant’s intent to commit one crime does not suffice to establish the requisite criminal state of mind for all
of the consequences of his actions- even those that are accidental.
o The defendant intentionally stole rum- but it was conceded that he had no actual intention of burning the
ship.
o The charged act must be in fact intentional- although the intention may (perhaps) be held to exist in the fact
that the accused knew that the injury would be the probable result of his unlawful act.
 The differences between the common law/MPC/Illinois law
o Common law does not separate intent and knowledge.
o Under the MPC and Illinois law, intent and knowledge lie on a continuum such that intent is a higher form of
knowledge.
o The MPC and Illinois definitions of knowledge are functionally identical.
o Intent in Illinois:
 Rejects common law use of virtually certainty.
 Rejects MPC use of attendant circumstances.
 Integrates MPC use of conscious object(ive).
 Recklessly
o As to recklessness and voluntary intoxication, it cannot negate conscious disregard of a risk.
o If the defendant is voluntarily intoxicated and –due to his intoxication- is unaware of a risk of which he would
have been aware had he been sober he is still reckless.
 Criminal Law 3
Outline

o Implicates subjective fault- a devil may care or not give a damn attitude.
o MPC
 The person consciously disregards a substantial and unjustifiable risk.
 The disregard constitutes a gross deviation from the standard of conduct that law abiding person
would exercise in the situation.
o Illinois
 A person is reckless or acts recklessly when the person consciously disregards a substantial and
unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining
the offense, and that disregard constitutes a gross deviation from the standard of care that a reasonable
person would exercise in the situation.
 Negligently
o Inadvertent risk of which a reasonable person would have been aware.
o Illinois:
 The person fails to be aware of a substantial and unjustifiable risk that circumstances exist or a result
will follow.
 That failure constitutes a substantial deviation from the standard of care that a reasonable person would
exercise in the situation.
Strict Liability
 Legislative bodies have the authority to enact strict liability laws.
 Strict liability describes offenses with no mens rea.
 The act alone is sufficient for culpability.
 Strict liability laws often concern particularly dangerous drugs or weapons or especially vulnerable victims.
 When the law is silent as to mens rea:
o Default to knowledge when law is silent since MPC disfavors strict liability.
o There is a longstanding tradition that criminal liability is not to be imposed absent some level of culpability.
o In the absence of a clear legislative directive to the contrary, we cannot ignore the legislature’s mandate to [apply
a mental state] when none is otherwise [set forth] by law.
o The court has found strict liability when a statute is a means of protecting children, such as for statutory rape,
based on “the legislative desire to protect those who are too unsophisticated to protect themselves.”
o Example: It shall be no defense that the defendant did not know the age of the child or reasonably believed the
child to be 13 years of age or older.
 The MPC disfavors the use of strict liability, rejecting it for any offense which may result in a sentence of probation or
imprisonment, unless expressly included in the statutory language.
Voluntary intoxication
 The “defense” of voluntary intoxication is really a failure-of-proof claim.
o *Prosecution can’t prove specific intent because he was drunk. Failure to prove required mens rea may result
into a lesser charge.
 The defendant lacked the mental state required in the definition of the offense.
 The concepts of general intent and specific intent offenses evolved at common law as a judicial response to the
problem of the intoxicated offender.
 These common law concepts pre-dated the MPC but are still employed in many states today.
 Illinois-
o The modern legislative trend is the reduce the scope of the use of voluntary intoxication evidence to negate a
required mental states or as a defense.
o Illinois- like the common law- allows a defenses of voluntary intoxication with respect to specific intent crimes
only.
o A voluntarily intoxicated person is criminally responsible for his conduct unless his intoxication is so extreme
as to suspend the power of reason and render him incapable of forming a specific intent.
 In most cases, voluntary intoxication acts only as a partial exculpatory defense, reducing an offense requiring intent or
premeditation to an offense of lesser degree. Not a complete defense.
 The MPC does not distinguish between general intent and specific intent crimes. A person is not guility of an offense
if- as a result of voluntary intoxication- he lacked the required mens rea of the offense.
 General intent requires mens rea to perform a prohibited act. SAAR
 o Voluntary intoxication does not negate the required mens rea for crimes of general intent.
o Second Degree Murder
o Assault
o Arson
o Rape
 Specific intent requires mens rea to perform a prohibited act with premeditation or plan to do a further act.
o Voluntary intoxication does negate the required mens rea for crimes of specific intent.
o First Degree Murder FLAB
o Burglary
o Larceny
o Attempt
Involuntary Intoxication
 Involuntary intoxication is a complete defense.
 It must result from the ingestion of an intoxicating substance either without knowledge of its nature or under direct
duress imposed by another.
Mistake in Fact
 A defendant’s mistake as to a matter of fact affects guilt only if it negates the required mental state.
 Most jurisdictions require that the mistake of fact is objectively reasonable to function as a defense.
 Mistake of fact is a defense to a crime only where the mistake precludes the existence of the mental state necessary to
commit the crime.
Mistake in Law
 The statute expressly states that knowledge of the illegality of conduct is an element of the offense.
 The individual acts in reasonable reliance upon an official- though erroneous- statement of law from a court or public
officer.
 MPC requires the defendant to prove that he or she reasonably relied on the official statement by a preponderance of
the evidence.
 Mistake of law is not a viable defense because we operate under the false assumption that everyone knows the law.
 Otherwise, “stupid people could get away with committing whatever crimes they were predisposed to commit.”
 Mistake of law is not a defense to a crime that does not require a showing that the defendant knew
Causation
 The MPC
o Conduct is the cause of a result when it is an antecedent but for which the result would not have occurred and
o The relationship between the conduct and result satisfies any additional causal requirements imposed by
the MPC or a law defining the offense.
o The definition of proximate cause is clearly a term which is not within the common knowledge of the juror. It is
asking too much of a jury to understand and apply such a technical term.
o Having the jury determine whether the result “is not too remote or accidental in its occurrence”
o The MPC replaces the “varying and sometimes inconsistent proximate cause factors developed in the common
law with a single standard which expressly invites the jury to reach a common-sense result.
o When a causation issue arises, it does so almost invariably in homicide cases- in other words, cases in which the
defendant is accused of unlawfully causing a death.
 Step one
o Is the defendant’s conduct the but for cause of the result?
 Step two
o Is the actual result within the purpose or contemplation of the defendant?
o Or within the risk of which he is or should be aware?
o The result is “within the risk of which the actor is aware or of which he should have been aware” OR
o The result is not “within the risk of which the actor is or should have been aware” but:
 The actual result differs from the risk result only in the respect that a different person or property is
injured or affected. OR
 The actual result differs from the risk result only in that the injury or harm would have been more
serious or extensive than the ultimately caused. OR
 Criminal Law 5
Outline

 The actual result involves the same kind of injury as the risk result and is not too remote or accidental to
have a bearing on the actor’s liability or the gravity of his offense.
 Still culpable if:
o Different person or property than contemplated or risked.
o Harm caused less severe than contemplated or risked.
o Harm is not too remote or accidental to have just bearing on liability.
 The test for determining if a Ds conduct caused a victim’s death is whether his conduct was a cause- not the only cause.
 Although third-party negligence is a factor in determining if a defendant’s conduct was a cause of the victim’s death, it is
not a defense.
 Substantial Factors Test (Actual Cause) (Common Law- Acosta)
o Number and extent of other factors contributing to the harm. Whether forces created by the actor are
continuous. Lapse of time between the act and any harm.
o Continuous Forces
 The forces set into motion by the “but for” act must remain in continuous and active operation up to
the time of the harm for the act to be considered a substantial factor in producing the harm.
o Time lapse between act & harm
 As the length of time between an act and harm increases, more time is available for other factors to
contribute to the harm- and for the “but for” act to become less substantial in relation to those factors.
 The “foreseeability” test (Common Law- Acosta)
o Sometimes intervening causes arise between the act of the defendant and the harm.
o Dependent intervening causes.
o Independent intervening causes.
o An independent intervening cause will not supersede the defendant’s act unless the result is highly
extraordinary. The test is an objective one.
 A Common Law Proximate Cause Flowchart
Was the defendant’s conduct the actual cause of the harm (in other words, “but for” his actions would the harm
have occurred as it did?)

If YES, was the result an intended consequence of the act? If NO, proximate cause is lacking.

If YES, proximate cause is established. If NO, was the defendant’s action a substantial factor?
- What were the number and extent of other contributing factors, if
any?

- Were the forces created by the actor continuous in producing the

harm or did they merely create a condition in which independent
forces acted?

- What was the lapse of time, if any, between the act and the harm?

If YES, was the result highly extraordinary?1If NO, proximate cause is lacking.

1
The “highly extraordinary” test focuses on the objective conditions present when the defendant acts.
 Criminal Law 7
Outline

If NO,
proximate cause is established.

Complicity
 Principal
o A principal is one who, with the required mental state, engage in the prohibited conduct or causes the
prohibited result. In other words the one who did it- allegedly
 Accomplice
o An accomplice is one who, with the intent that the crime is committed, aids, counsels, or encourages the
principal before or during the commission of the crime.
o Other verbs of accomplice liability include solicits, abets, or agrees, depending on the jurisdiction.
o An accomplice is responsible for:
 The crimes he counseled
 Any other crimes committed in the course of committing the crime contemplated, as long as the other
crimes are probable or foreseeable.
o An accomplice may avoid liability if he withdraws from the crime before it is actually committed by the
principal.
o Often, statutory language describes the conduct or actions necessary to withdraw.
 Merger
o Accomplices are generally treated as if they had actually committed the crime at issue- that is, as if they are
principals.
 Accessory After the Fact (ATF)
o An accessory after the fact is one who receives, relieves, comforts, or assists another, knowing that he has
committed a felony, in order to help the offender escape arrest, trial, or conviction.
o The crime committed by the principal must be a felony and it must be completed when the aid is rendered.
o Harboring a fugitive, aiding escape, obstructing justice
 Mere Presence
o A defendant’s presence at the scene of a crime or knowledge that a crime is being committed is not sufficient
by itself to establish his or her guilt.
o Association with persons involved in a crime is not enough to establish liability.
 Corporate Liability
o The only way in which a corporation can act is through individuals who act on its behalf.
Attempt
 Criminal attempt is a “inchoate” (imperfect or incomplete conduct) offense.
 Two varieties of criminal attempt:
o Complete-but imperfect attempt: occur when the actor performs all of the acts she is set out to do, but fails to
attain the results.
o Incomplete attempt: occurs when the actor does some of the acts necessary to achieve the criminal goal, but
either quits or is prevented (for example by a police officer)
 Illinois, and many other jurisdictions, characterize both types of attempt as (1) intent to commit a specific offense and (2)
intentionally taking a “substantial step” towards the completion of the offense – regardless of whether the attempt is
ultimately complete-but-imperfect or merely incomplete. In other words, Illinois has a single definition of attempt
that encompasses both of the above varieties.
 The MPC, on the other hand, separates attempt into complete-but-imperfect [Section 5.01(1)(a) and (b)] and incomplete
[Section 5.01(1)(c)].
 Illinois:
 o Statute: A person commits the offense of attempt when, with intent to commit a specific offense, he or she does
any act that constitutes a substantial step toward the commission of that offense.
o Instruction: A person commits the offense of attempt when he, [without lawful justification and] with the intent
to commit the offense of ____, does any act which constitutes a substantial step toward the commission of the
offense of ____.
o If you find from your consideration of all the evidence that each one of these propositions has been proved
beyond a reasonable doubt, you should find the defendant guilty.
o If you find from your consideration of all the evidence that any one of these propositions has not been proved
beyond a reasonable doubt, you should find the defendant not guilty.
o Issues:
 First Proposition: That the defendant performed an act which constituted a substantial step toward the
commission of the offense of ____; and
 Second Proposition: That the defendant did so with the intent to commit the offense of ____.
o A person commits the offense of attempt when-
 With intent to commit a specific offense
 He or she does any act that constitutes a substantial step towards the commission of that offense.
o The intent to commit the target crime.
o Intentional commission of the acts that form the substantial step to completion of the crime.
 Punishment for criminal behavior, even when the individual fails to achieve the prohibited act.
 As statutes vary, the MPC provides guidance.
 Common law also plays a role in modern attempt.
 Common Law
o Mens Rea
 Under the common law, attempt is a specific intent offense.
 The defendant must perform acts with the specific intent to commit the crime.
o Actus Reus
 The common law used a variety of tests to define acts needed for attempt.
 The most oft-used was the physical proximity test.
 The defendant must have committed an overt act that directly tended towards the completion of the
crime.
 MPC
o Acting with the kind of culpability required for the crime, the individual-
o Intention does or omits to do anything that, under the circumstances as he believes them to be, is an act or
omission that constitutes a substantial step in the crime.
o Substantial Step:
 Conduct that strong corroborates [or supports] the defendant’s criminal purpose.
 Consider in light of the totality of the circumstances.
 Examples include lying in wait, following a victim, enticing the victim, unlawful entry of a car or
structure, possession of materials to be employed in the crime, that are designed for unlawful use, or
possession of materials to commit the act.
 “Mere Preparation” is not a substantial step. Preparation is thinking about committing the crime, talking about it, or
planning in the abstract to do it, while preparation is taking an action that puts the plan into motion and that would
result in the intended crime.
 Maestas- Mens Rea-the law requires only the kind of culpability required for the commission of the completed offense.
There can be no difference between the intent required as an element of the crime of attempted first degree murder
and that required for first degree murder itself. As long as the defendant acts knowingly as to the conduct, he can be
convicted of attempted first degree murder.
 Abandonment & MPC
o It is an affirmative defense that the defendant has abandoned his effort to commit the crime or has prevented
its commission.
o The defendant must how a complete and voluntary renunciation of his criminal purpose, not motivated by the
probability of detection.
 Criminal Law 9
Outline

o Renunciation is not complete if motivated by a decision to postpone the criminal conduct until a more
advantageous time.
 Impossibility
o Hypo:
 The defendant is tried for attempted murder under an attempt statute similar to the one used in
Illinois. The defendant knows he has HIV and threatened guards about biting them- and did bite one. At
trial, a defense expert testifies credibly that a bite cannot transmit HIV.
 When a defendant has done all he believes necessary to cause a particular result, he has committed an
attempt.
 It is not a defense that because of the defendant’s misapprehension of the circumstances it would have
been impossible for him to commit the offense attempted.

Conspiracy
 Illinois:
o A person commits the offense of conspiracy when, with intent that an offense be committed, he or she agrees
with another to the commission of that offense. No person may be convicted of conspiracy to commit an offense
unless an act in furtherance of that agreement is alleged and proved to have been committed by him or her or by
a co-conspirator.
o An intent to commit a crime.
o An agreement with one or more others to commit that crime.
o An act in furtherance of the crime by at least one of the co-conspirators.
 Common Law:
o An [intended] agreement- between two or more persons- made with the intent to commit a crime.
o Agreement must be bilateral
 Statutory
o An [intended] agreement- between two or more persons- made with the intent to commit a crime- and the
commission of an overt act toward the completion of the crime.
o In addition to the act of entering into the agreement, the MPC and Illinois require that one or more of the co-
conspirators engage in an overt act towards the completion of the crime.
 Bilateral
o Common law
 Unilateral Approach
o Criminal conspiracy occurs even where one of the two co-conspirators is an undercover police agent or
informant.
o Under the unilateral statute, look to the subjective behavior of the defendant. What did he intend or believe
with respect to the agreement?
o MPC and most state statutes require only unilateral agreement.
 Conspiracy is a inchoate offense, no substantive offense is ever needed. A conviction may be obtained even when the goal
of the conspiracy is impossible.
 Wharton’s Rule: An agreement between two persons to commit an offense is not a conspiracy when the offense is
defined so that it can be committed only by the participation of two persons.
 Mens Rea: Intent as used in conspiracy means conscious objective to agree and to accomplish the result of the crime.
o Conspiracy and Recklessness: Reckless crimes are committed unintentionally, but with a conscious disregard
for a substantial and unjustifiable risk that result will occur.
o Two or more people cannot intend to commit a crime unintentionally.
o Conspiracy to commit a crime of recklessness would require the accused to possess a specific intent to achieve
an unintentional result.
 Mere Presence: An individual’s mere presence at the scene of the crime, even coupled with knowledge of the crime, is
not sufficient to establish his guilt for a conspiracy charge
 Withdrawal: It is an affirmative defense that- after conspiring to commit a crime- the accused informed law enforcement
about the existence of the conspiracy or otherwise thwarted the commission of any offense in furtherance of the
conspiracy.
Homicide
 Common Law
o “Malice Aforethought”
 Intent to cause death or serious injury.
 Knowledge that act will cause death or serious injury.
 During commission of felony.
 With intent to oppose, by force, a police officer.
 Modern Approach
o Intentional killings
 First degree murder
 Voluntary manslaughter- second degree murder
o Unintentional killings
 Involuntary manslaughter
 Felony- Murder
o A matter of degrees
 First Degree Murder
o Willful, deliberate, and premeditated…
o Knowledge that defendant will kill precedes the killing by a length of time to permit reflection.
o Premeditation requires more than time to reflect- it requires actual reflection.
o Reflection may be as instantaneous as successive thoughts in the mind.
o Defining premeditation as instantaneous as successive thoughts “obliterates any meaningful difference
between first and second degree murder.”
o First degree murder statute has always been aimed at those who actually reflected- and then murdered.
o Just as murder requires actual killing, premeditation requires actual reflection. It can be proven by
circumstantial evidence.
 Voluntary Manslaughter and Second Degree Murder
o Voluntary manslaughter-SDM is murder with mitigating [as opposed to aggravating] circumstances. The two
most common categories of mitigation circumstances are provocation/heat of passion or imperfect defenses.
o MPC
 A homicide that is committed under the influence of extreme mental or emotional distress for which
there is a reasonable explanation from the viewpoint of a person in the actor’s shoes.
o Statutory, Illinois
 In Illinois and many other states, second degree murder is intentional murder mitigated by the heat of
passion or provocation.
 VM-SDM is a “lesser included” offense to FDM.
 Successfully asserting provocation or imperfect defense does not mean that the defendant is not
guilty and goes free. He is guilty of the “lesser included” offense of VM-SDM.
o Provocation must be actual and reasonable.
o Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.
o An imperfect defense arises when the defendant commits an intentional murder but does so when he
honestly-though unreasonably- believes that he has a legal defense- usually self- defense.
o Subjective- The defendant’s belief must be sincerely held- and it must be unreasonable.
 Involuntary Manslaughter
o MPC
 Criminal homicide constitutes [involuntary] manslaughter when it is committed recklessly.
o Statutory
 An unintentional killing
 With a mens rea of negligence or recklessness, depending on the jurisdiction
o The core of IVM is the defendant’s awareness and disregard that his conduct or the circumstances surrounding it
created a substantial and unjustifiable risk of death of another.
 Felony-Murder
o Felony-murder is proved by demonstrating that an unintended killing took place in the commission of certain
felonies. It is considered a crime of transferred intent.
o Illinois:
 Criminal Law 11
Outline

 The Illinois first degree murder statute encompasses felony-murder- “is attempting or committing a
forcible felony other than second degree murder.”
o In many jurisdictions, the felony that triggers the felony-murder statute cannot be an offense that is inherent in
the act of killing itself.
o To establish felony murder, the prosecutor may show that the victim died from an act committed by a non-
participant in the felony,.
Assault and Battery
 Battery
o Common Law
 An unlawful application of force to the person of another resulting in:
 Bodily injury or
 Offensive touching.
o MPC & Statutes
 The MPC and most statutes recognize only the bodily injury component of battery.
o Illinois:
 A person commits battery if they knowingly without legal justification without any means causes bodily
harm to an individual or makes physical contact in an insulting or provoking nature.
 Assault
o Common Law
 The original assault crime was attempted battery.
 The mens rea was intent to commit a battery.
 The actus reus was the act of coming close to a battery.
 Another element was the actual ability to complete the battery.
o MPC and Statutes
 The MPC and most statutes now require only apparent ability to commit the assault.
 The attempted battery assault remains.
 Most jurisdictions also proscribe frightening assault.
o Illinois:
 A person commits an assault when, without lawful authority he or she knowingly engages in conduct
which places another in reasonable apprehension of receiving a battery.
o MPC: Frightening Assault
 Intent to frighten the victim
 Conduct that is objectively frightening because of the implicit threat of bodily injury.
o Many states treat transmission of HIV as a bodily harm battery.
 Illinois, knowledge that you’re infected and intent to commit the offense.
o Assault and Totality of Circumstances
 The words spoken by parties
 The appearance and demeanor of the parties
 The conduct of the parties in light of the setting and circumstances.
 Stalking
 Illinois:
o Knowingly engaged in a course of conduct towards the victim.
o Which would cause a reasonable person to fear for his or her safety.
o Actually placed the victim in fear.
Sexual Assault
 Illinois:
o Offense name changed, gender-neutral language added, acts covered by the offense broadened, defendant
conduct broadened, marital language eliminated, mens rea and consent?
o The concepts of use of force and consent remain.
o Consent: is an affirmative defense. When the defense of consent is raised by the evidence, it is necessary
to give the third proposition. When consent is raised by the defense, the prosecutor has the burden of
proving the victim did not consent.
o In 2003 Illinois became the first state to add withdrawal of consent language to its statute.
 o Consent
 Consent may be manifest in actions or words by the victim
 The accused may argue that he or she reasonably inferred that the victim gave consent.
 That is, a reasonable person in the position of the accused would have believed that consent was
freely given.
 Standards of Consent
o Most jurisdictions, including Illinois, define consent as words or actions indicating a freely given agreement.
o The definition reflects that failure to resist is not consent.
 California: “Yes means yes”
o Affirmative consent means affirmative, conscious, and voluntary agreement to engage in sexual activity. Lack
of protest or resistance does not mean consent, nor does silence mean consent.
Theft
 Originated at common law larceny, larceny by trick, embezzlement, and false pretenses.
 common law was consolidated by the MPC as theft by unlawful taking and theft by deception.
 The MPC theft provisions are widely regarded as one of its most successful and popular reforms.
 MPC: Larceny, larceny by trick and embezzlement all theft by unlawful taking.
 Theft by Deception: False pretenses
 Illinois and many other states use the MPC for structure and guidance.
 The mens rea for most theft crimes is knowledge.
 The actus reus involves unlawfully obtaining or exercising control over the property of another.
 MPC theft and most theft statutes also require an intent to permanently deprive the owner of the property.
 The specific intent piece is taken from the carrying away requiring of the common law.
 Property includes anything of value, whether market value or value measured by “the interest of the true owner.”
o Includes real estate, money, merchandise, labor, utilities, computer data and programs, prototypes and formulas
and pets.
 Property: Requiring tangibility in the definition of property might unduly restrict the scope of theft laws, “especially in
the modern technological age.” As a result, data transferred electronically is property.
o To determine what constitutes property, look to the definition in law of jurisdiction.
o Most statutes mirror Illinois and define property broadly as anything of value. The value of the property in
question often separates misdemeanors and felonies.
 “Claim of Right” & Mistake of Fact
o A claim of right defense is a defense to theft crimes.
o Many states only require an honest belief that the defendant was entitled to the property at issue.
o In deciding if the defendant believed in good faith she had a C-O-R, consider all the facts known to her at the
time she obtained the property.
o If you find that the defendant was aware of facts that made the belief unreasonable, you may conclude that the
belief was not held in good faith.
Robbery = Theft “Plus”
 Under the common law, MPC, and Illinois, robbery includes the same basic elements of the theft plus the use or threat
of force.
 Larceny +
 The taking of the property from the person or presence of the victim +
 By means of force or threats of imminent force.
 MPC
o The MPC does not require a forcible taking from the person or presence of the victim.
o A theft plus inflicting or threatening with fear or serious bodily injury suffices.
 Illinois:
o A person commits the offense of robbery when he intentionally, knowingly, recklessly takes property from the
person or presence of another by the use of force or by imminent use of force.
o Specific intent to permanently deprive is not an element of robbery in Illinois.
o Presence means within the reach, observation, or control of the victim. It is not so much a matter of eyesight as
it is one of proximity and control.
Burglary
 Criminal Law 13
Outline

 A person commits the offense of burglary when he without authority knowingly enters into a building, house trailer,
water craft, aircraft, railroad car, motor vehicle, or any part thereof, with intent to commit therein the offense of felony or
theft.
 Conviction based on intent to remain within will not stand. Can’t just break and enter, must commit a felony or theft after
entering.
 Specific intent.
 Voluntary intoxication does not negate the required mens rea for crimes of general intent.
 Voluntary intoxication does negate the requirement mens rea for crimes of specific intent.
Self-Defense
 Common Law
o A person is justified in using deadly force if he or she reasonably believed that such force was necessary to
repel the imminent threat of death or great bodily harm by another.
 Illinois
o A person is justified in the use of force against another when and to the extent that he reasonably believes that
such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. He
or she is justified in the use of force which is intended or likely to cause death or great boldly harm only if he
reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or
another, or the commission of a forcible felony.
 An instruction for self-defense is given when there is some evidence presented which, if believed by a jury, would
support a claim of self-defense. Self-defense is an affirmative defense, meaning that the defendant bears to burden of
presenting evidence sufficient to raise the issue.
 Duty to retreat in self-defense cases
o In Illinois and in most jurisdictions, a person who has not initially provoked the use of force against himself or
herself has not duty to attempt to escape the danger before using force against the aggressor.
 MPC: The use of deadly force is not justifiable if the person knows that he can avoid the necessity of using such force with
complete safety by retreating.
o The person is not obliged to retreat from his dwelling or place of work unless he was the initial aggressor.
 Aggressor: The first person to threaten the use of deadly force.
o The person who responds to an aggressor justifiably with deadly force can claim self-defense.
o In good faith, he withdraws from physical contract with the victim and indicates clearly that he desires to
withdraw and terminate the use of force, but the assailant continues or resumes the use of course.
o The aggressor instigates or provokes the use of force and force is then used against him by the victim- he (the
“aggressor”) must exhaust ever reasonable means to escape the danger before returning force. In other
words, the initial aggressor does have a duty to retreat.
Defense
 Entrapment
o Entrapment is an affirmative defense. The defendant must offer credible evidence that:
 The criminal design began with law enforcement officers and-
 The defendant had no prior predisposition to commit the crime before his enlistment.
 Duress (“Coercion”)
o The duress defense arises when an individual is faced with a threat of death or serious bodily injury, and
chooses to commit a crime rather than suffer the threatened consequences.
o In general, the individual must have a reasonable belief that the threat is serious, and there must be no
reasonable means of escape.
o The test is objective. An honest but unreasonable belief does not suffice.
o Homicide is no excusable using the duress defense.
o Depending on the jurisdiction, the duress defense covers the individual and third parties.
 Insanity
o Those who are unaware of or do not appreciate the nature and quality of their actions can hardly be expected
to weigh the consequences of their conduct.
o M’Naughten Rule
 Due to a disease of the mind the defendant lacked the ability at the time of his actions:
  To know the wrongfulness of his actions or
 To understand the nature and quality of his actions.
 To fail to understand the wrongfulness of actions is considered moral incapacity.
 To fail to understand the nature and quality of actions is considered cognitive incapacity.
 The test is “open to state choice” and tests vary.
o In “practical terms,” if a defendant did not know what he was doing when he acted [cognitive incapacity], he
could not have known that the act was wrong [moral incapacity].
o Irresistible Impulse
 Under an irresistible impuslse test, a defendant is entitled to a not guilty verdict if he proves that he was
unable to control his actions to conform his conduct to the law.
 Irrestible impulse is considered volitional incapacity.
o MPC-ALI Standards
 Due to a mental disease, the defendant lacked substantial capacity to:
 Appreciate the criminality of his conduct or
 Conform his conduct to the requirements of the law.
o Illinois:
 Like the MPC-ALI standard, Illinois law defines insanity as lacking capacity to appreciate the
criminality of conduct due to a mental disease.
 Illinois does not use an irresistible impulse test.