Table of Contents

JUSTIFICATION OF PUNISHMENT................................................................................................................................................... 3
THEORIES........................................................................................................................................................................................... 3
a) Utilitarianism......................................................................................................................................................................................... 3
b) Retributivism......................................................................................................................................................................................... 3
3 GOALS.............................................................................................................................................................................................. 3
a) Rehabilitation........................................................................................................................................................................................ 3
b) Deterrence............................................................................................................................................................................................ 3
c) Incapacitation....................................................................................................................................................................................... 4
CULPABILITY: (1) ACTUS REUS (2) MENS REA (3) CAUSATION.......................................................................................................... 4
ACTUS REUS – CULPABLE CONDUCT................................................................................................................................................4
A. The Requirement of Voluntary Action.................................................................................................................................4
a) Majority................................................................................................................................................................................................ 4
b) Defining Actus Reus............................................................................................................................................................................... 4
c) Potential Exceptions.............................................................................................................................................................................. 5
B. Omissions to Act...................................................................................................................................................................5
a) When a legal duty exists........................................................................................................................................................................ 5
b) Distinguishing Act v. Omission..............................................................................................................................................................6
MENS REA – CULPABLE MENTAL STATES........................................................................................................................................6
A. Basic Concept....................................................................................................................................................................... 6
a) Rationale of necessity of Mens Rea.......................................................................................................................................................6
b) Malice................................................................................................................................................................................................... 7
c) MPC....................................................................................................................................................................................................... 7
B. Mistake of Fact.....................................................................................................................................................................9
a) Definition.............................................................................................................................................................................................. 9
b) Common Law Approach........................................................................................................................................................................ 9
c) MPC 2.04............................................................................................................................................................................................. 10
d) Statutory Rape.................................................................................................................................................................................... 10
e) Strict Liability....................................................................................................................................................................................... 10
f) Reasonable v. Unreasonable Mistake of Fact......................................................................................................................................11
g) Mistake of Fact Decision Chart.......................................................................................................................................... 12
..................................................................................................................................................................................................... 12
C. Mistake of Law...................................................................................................................................................................12
a) Basic rule:............................................................................................................................................................................................ 12
b) Exceptions........................................................................................................................................................................................... 13
CAUSATION....................................................................................................................................................................................... 15
A. Basic Concept..................................................................................................................................................................... 15
B. But-For Cause..................................................................................................................................................................... 15
C. Proximate Cause.................................................................................................................................................................17
SUBSTANTIVE OFFENSES.............................................................................................................................................................. 26
RAPE................................................................................................................................................................................................. 26
THEFT OFFENSES............................................................................................................................................................................. 32
Honest but Unreasonable Belief Negates the Offense..................................................................................................................32
A. Basic Notes on Possession vs. Ownership............................................................................................................................32
B. Trespassory Taking: Larceny...............................................................................................................................................32
C. Trespassory Taking: Robbery v. Extortion...........................................................................................................................35
D. Trespassory Taking: Larceny by Trick..................................................................................................................................35
E. Misappropriation: Embezzlement.......................................................................................................................................37
F. Fraud: False Pretenses........................................................................................................................................................ 38
HOMICIDE............................................................................................................................................................................................ 41

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 A. Murder................................................................................................................................................................................41
B. First-Degree Murder...........................................................................................................................................................41
a) MPC..................................................................................................................................................................................................... 41
i. MPC invention: Negligent homicide....................................................................................................................................................41
b) Majority Common Law........................................................................................................................................................................ 41
a. Commonwealth v. Carroll.............................................................................................................................................................. 41
a. State v. Guthrie.............................................................................................................................................................................. 42
c) Minority Common Law........................................................................................................................................................................ 43
B. Second-Degree Murder...................................................................................................................................................... 43
C. Felony Murder.................................................................................................................................................................... 46
D. Voluntary Manslaughter: Murder Mitigated to Manslaughter........................................................................................48
E. Involuntary Manslaughter.................................................................................................................................................55
Mens Rea: duty, breach, harm, substantial/unjustifiable risk; if death results:  awareness is imputed....................................55

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 Justification of Punishment

Theories
a) Utilitarianism: cost and benefit
i. Jeremy Bentham: argued against the death penalty for all felonies
1. Argued for proportion
2. Greatest happiness for the greatest number of people
3. All laws should augment happiness and subtract mischief AND punishment is mischief
SO it should only be permitted as far is it promises to omit greater evil: proportionality
ii. Cons to utilitarianism
1. Does not require you have the right person
a. Cost v. benefit ignores the individual and looks at the greater whole
i. Trolley problem: kill 5 on one track or kill 1 on the other: must choose
ii. Operating room: Let 5 people die who need organ transplant or kill one
healthy person
b) Retributivism: moral blameworthiness
i. Kant: only justified if the person committed the crime
1. Guilt is the justification
2. Utilitarianism uses person as means to an end: wrong (ex: under utilitarianism, you can
punish wrong person and it still deters)
ii. Moore: not only moral culpability but willfulness (Tumor example)
3 Goals
a) Rehabilitation
i. 2 competing theories
1. Societally focused: make criminals safe to return to society
2. Offender focused: help criminals achieve successful lives
b) Deterrence
i. 2 ways to increase
1. Probability of getting caught
2. Length of sentence
ii. Powerful effect when people trust the system: creates normative influence unless people start to
believe it is unjust (ex: marijuana)
c) Incapacitation

Culpability: (1) actus reus (2) mens rea (3) causation

Actus Reus – Culpable Conduct

Burden of Proof: prosecution must prove beyond a reasonable doubt

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Assume all acts are voluntary: Unless (d) proves otherwise

A. The Requirement of Voluntary Action

a) Majority: Where there is a conduct element in a statute, we read in the word voluntariness
i. Martin v. State: man was drunk at his home, taken by police on highway, and charged with
public indecency for being on the highway
1. Court ruled the act (of appearing in public) was not voluntary
ii. Conflicting contemporary viewpoints
1. Not reading voluntariness into action:
a. People v. Low: arrested and charged for stealing car, had drugs on him, taken to
jail, drugs found, and charged with knowingly possessing a controlled substance
in a jail
i. Court found him guilty: saying although he was in jail involuntarily, he
knowingly possessed the drugs
2. Reading voluntary into statute:
a. State v. Eaton: similar circumstances to above but this court found Martin
controlling: (d) would have no choice but to admit to another crime.
iii. Why require it? (MPC)
1. Individual liberties
2. Cannot deter involuntary action
3. Thoughts are not synonymous with action
b) Defining Actus Reus
i. MPC 2.01
(1) A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.
(2) The following are not voluntary acts within the meaning of this Section:
(a) a reflex or convulsion;
(b) a bodily movement during unconsciousness or sleep;
(c) conduct during hypnosis or resulting from hypnotic suggestion;
(d) a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual.
(3) Liability for the commission of an offense may not be based on an omission unaccompanied by action unless:
(a) the omission is expressly made sufficient by the law defining the offense; or
(b) a duty to perform the omitted act is otherwise imposed by law.
(4) Possession is an act, within the meaning of this Section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to
terminate his possession.

ii.
People v. Martin: Martin had an altercation with a police officer, officer shot him in the
stomach, gun dropped, Martin picked it up and shot officer and killed him, crawled to hospital
1. Martin claimed he was unconscious at the time he was shot and medical doctor
corroborated that story
2. Court reversed decision on guilty verdict because the jury should be instructed that had
Martin truly been unconscious, it is a complete defense (no actus reus)
3. “When not self-induced through voluntary intoxication, unconsciousness is a complete
defense to a charge of criminal homicide”
c) Potential Exceptions
i. Habit: voluntary (you consciously developed the habit)
ii. Hypnotism: depends on the case and very hard to prove
iii. Somnambulism: shown to be a sufficient excuse
1. King v. Cogdon: killed her daughter after having a psychotic episode, being prescribed
sedative, sleep walking, and killing daughter with an axe
iv. Epilepsy
1. Rendered unconscious without notice: defense
2. Rendered unconscious with notice: not defense
a. People v. Decina: had epilepsy, got in the care, drove when he was told not to,
killed 4 people
i. Decina had notice and foresight of knowledge

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 B. Omissions to Act
a) When a legal duty exists
i. Jones v. United States: (d) was charged with involuntary manslaughter for another woman’s
kid, the two contest whether mom was living with (d) and if (d) was actually in charge of taking
care of child
1. 4 Legal Duties: Cite to People v. Beardsley
a. Statute imposes a duty to care for another
i. Statutory duties to rescue
1. Criminal to refuse aid to person in peril: Rhode Island,
Minnesota, and Vermont (misdemeanor)
2. Good Samaritan Act: Florida, Hawaii, Wisconsin (misdemeanor)
ii. Misprision (Duty to report)
1. Only in a few states (SD and Ohio)
2. Certain professions
b. Certain Family Relationships
i. Parents duty to minor children
1. Over time, states have expanded to where if you are acting as a
spouse or parent, then you take on this duty
a. State v. Miranda: convicted because he was a live-in
boyfriend and he had assumed the role as a parent in the
nature of the relationship
ii. Spouses duty to aid each other
iii. Child assumed care of elderly parent
c. Contractual duty
d. One voluntarily assumed duty to care for another by excluding them from
other people and preventing them from receiving help elsewhere
i. Ex: taking someone home with you who is drunk
b) Distinguishing Act v. Omission
i. Barber v. Superior Court
1. Facts: (d) are two physicians and deceased went into cardiac arrest, pronounced brain
dead, but he continued breathing, (d) stopped all hydration and nourishment, and (d) died
2. Family sued because they stopped life-sustaining care
3. Issue: was (d) under a legal duty to continue treatment?
4. Ruling: there is no criminal liability for failure to act (omission) if there is no duty to act
a. Relevant act: not providing further care
b. But without possible effective treatment: there is no duty to be done
i. “He is not obliged to continue in a hopeless case” (Airedale NHS Trust
v. Bland)
ii. E.g.: Active v. Passive Euthanasia
1. Cruzan v. Director, Missouri Dept. of Public Health
a. Issue: Is the guardian of an individual in a persistent vegetative state
(Incompetent person) able to make a choice to discontinue life-giving care?
b. Parents of person in vegetative state cannot halt that life-prolonging care if there
is not clear and substantial evidence that adequately proves the patient’s wishes

Mens Rea – Culpable Mental States

A. Basic Concept
a) Rationale of necessity of Mens Rea
i. Utilitarian
1. A person cannot be deterred if he cannot appreciate the punishment
ii. Retributivism

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 1. Morally unjust to punish those who accidentally caused harm
2. Lack of moral culpability
b) Malice
i. Regina v. Cunningham
1. Facts: (d) was planning to move into house owned by MIL; needed money so he took gas
meter from the pipes to sell it, but gas seeped into duplex neighbor and asphyxiated the
(p)
2. Issue: judge instructed jury that malice = wickedness
3. Ruling: reversed: malice is required for the result for this statute and jury must rule if (d)
knowingly or recklessly caused the harm
4. Rationale: Malice is (1) an actual intention to do the particular kind of harm that in fact
was done; or (2) recklessness as to whether such harm should occur or not (i.e. the
accused has foreseen that the harm might be done and has risked it anyway)
ii. Regina v. Faulkner
1. Facts: (d) trying to steal rum, lit a match, caught the ship on fire, charged for maliciously
catching the boat on fire, trial court said if he intended the act then guilty of
consequences too
2. Issue: Is mens rea required for a collateral act?
3. Ruling: Yes
4. Rationale: to constitute an act requiring malice: the act done must be intentional and
willful or they acted recklessly knowing the likely consequences of their action
c) MPC
i. Basic Framework of a Statute
1. MPC 1.13(9)
a. There are three material elements of every statute
i. Conduct
ii. Circumstances
iii. Result
2. MPC 2.02: Person is not guilty of an offense unless he acted purposely, knowingly,
recklessly, or negligently as the law requires with respect to the material elements of the
offense (conduct, circumstances, result)
a. Purposely: conscious object to perform an action or cause result
b. Knowingly: aware of the conduct and circumstances and practically certain of the
result
c. Recklessly: engaged in conduct that consciously disregards a substantial and
unjustifiable risk
i. Objectively, did the individual undertake a substantial and justifiable risk
ii. Subjectively, did he consciously disregard the risk

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 d. Negligently: engaged in conduct that a reasonable person would perceive as a
substantial and unjustifiable risk
ii. Default Rules

1. General MPC Default Rules

a. “Pervasive distributive rule”
i. Distribute one to all
1. If the mens rea is defined for only one of the material elements,
the same mens rea will be read into each of the other material
elements
b. “MPC intent default rule”
i. Recklesssness default
1. If no mention of mens rea or conflicting mens rea
c. Intent
i. Typically means knowledge or purpose
2. Common law Default rules
a. Limited distributive rule
i. Distribute after mens rea word
b. Common law intent default rule
i. Negligence default
3. Special interpretive exception for knowledge
a. United States v. Jewell
i. Facts: (d) driving car with 110 lbs of weed in secret compartment;
evidence showed never confirmed the weed or saw it; but knew that there
was a secret compartment that likely had weed
ii. Issue: Is lack of positive knowledge enough to negate a knowledge mens
rea?
iii. Ruling: No
iv. Rationale: “Ostrich instruction:” Deliberate ignorance: shouldn’t allow
someone who deliberately turns a blind eye to remain ignorant to claim
they defense that they lacked awareness

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 1. MPC 2.20(7): must be an ostrich instruction to the jury: “aware
or absence of awareness with substantial certainty/intent to stay
ignorant”

B. Mistake of Fact

“Defense”

Burden of Proof: Prosecutor

Burden of Production: (d) has the burden of production for the Mistake of Fact defense
a) Definition
i. Ignorance of fact is a defense when it negatives the existence of a mental state essential to the
crime charged
1. Must analyze whether the mistake pertained to a necessary element of the crime
2. Then see if the mistake negates the mens rea (purpose, knowledge, recklessness)
a. Cannot negate negligence
ii. Majority: reasonable mistake
iii. Minority: reasonable or unreasonable
iv. MPC: reasonable or unreasonable
b) Common Law Approach
i. Moral Wrong: act itself is blameworthy
ii. Lesser Crime: intent unnecessary for different degrees of same crime
1. Regina v. Prince
a. Facts: (d) was convicted of taking away (p) who was under 16 years old; (p) had
told him she was 18; (d) honestly believed it
b. Issue: Regarding the age requirement, what is the men rea required to convict (d)
given that he had an honest mistake of fact
c. Holding: Strict Liability
d. Rationale:
i. Moral Wrong: very act of doing something shows us they are
blameworthy because the act itself is wrong, no need for mens rea
1. Strict liability: mistake of fact is irrelevant
e. Dissent
i. Lesser-Crime
1. If you intend to commit a crime but then the offense is bigger
than you expected (ex: intend to steal $1,000 of jewelry but turns
out to be $10,000
2. But here, had the facts been as the (d) honestly believed them to
be, there would be no crime
c) MPC 2.04
i. “ignorance or mistake as to a matter of fact or law is a defense if it negates the purpose,
knowledge, recklessness, or negligence required to establish a material element of the offense”
1. Applies to both mistake of fact and mistake of law
2. Mistake negates mens rea  not liable
d) Statutory Rape
i. People v. Olsen
1. Facts: victim was 13 but told (d1/d2) she was 16, outside sleeping in trailer; engaged in
sex, dad caught them, degree of crime is higher if (p) is under 14 (“tender years”)
2. Issue: Should (d) be charged for the higher degree crime given the mistaken fact of her
actual age?
3. Holding: Yes
4. Rationale: 2 reasons
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 a. Lesser-crime: A mistake of fact relating only to the gravity of an offense will not
shield a deliberate offender from the full consequences of the wrong actually
committed
b. Policy rationale: a child under 14 is of “tender years” and must be protected
ii. MPC (strict liability)
1. sexual offenses below the age of 10
a. If above 10 and it is a mistake then it can be an affirmative defense
iii. Common Law (strict liability)
1. Majority: strict liability in all elements
2. Minority: allow for mistake of fact if (p) is older than 14 or the two parties are close in
age
e) Strict Liability
i. Permissible interpretation as strict liability (Mala in Se)
1. Regulatory offenses, drugs, and statutory rape
a. United States v. Balint
i. Facts: selling opium and cocaine leaves but said they didn’t know it was
illegal
ii. Strict Liability
b. United States v. Dotterweich
i. Facts: manufacturer mislabeled drugs twice and as a result so did Buffalo
Pharmacal Company
ii. Strict Liability: Person in best position to public danger is the person
responsible
ii. Impermissible interpretation as Strict Liability
1. Common Law Offenses
a. Morisette v. United States
i. Facts: (d) was a junk dealer, took used bomb casings, and was charged
with “Knowingly converting” government property, but at trial (d) said
he took the casings but honestly believed they had been abandoned (did
not intend to deprive someone of their property); but the trial court
rejected this mistake of fact and instructed the jury that the intent
whether or not (d) intended to take the property
ii. Issue: If there is congressional silence on the mens rea of an element, is it
strict liability?
iii. Holding: No
iv. Rationale: congressional silence does not mean there is strict liability on
an element of the offense; It is not okay to read in strict liability in a
traditional common law offense (i.e. larceny)
f) Reasonable v. Unreasonable Mistake of Fact

What Type of Mistake of Fact Would Matter - Reasonable or Unreasonable?

Purposeful Any kind, because if you don’t mean to be doing it, you don’t have a purpose

Knowledge Any kind, you either know it of you don’t, and if you don’t you lack awareness

Reckless Any kind, if you don’t know about the risk, you can’t disregard it

Negligent Only a reasonable mistake because we are asking how a reasonable person would have
interpreted the scenario

Strict Liability Neither

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 g) Mistake of Fact Decision Chart

Is the issue strict liability?

Mistake of Fact is affirmative defense if it
negates the necessary mens rea to one of
the material elements
 Statutory rape
o Standard: below the age of 10
 If above: was the mistake reasonable?
 Drug or regulatory offense (check on this)
MPC Is the men rea purpose, knowledge, or reckless?
 Yes: Honest mistake of fact is enough
 No: (Negligence): must be both honest and reasonable mistake
 Prosecutor must disprove mistake of fact beyond a reasonable doubt
Then ask

Common Law Is it a moral wrong?

 i.e.: statutory rape
o Majority: strict liability
o Minority: allow for mistake of fact if (p) is older than 14 or the
parties are close in age
Is it a lesser crime issue?
Is it a drug or regulatory offense?

C. Mistake of Law

“Defense”

Burden of Production: (d) has the burden of production for the Mistake of Law defense
a) Basic rule:
i. Mistake of law is usually not a defense because knowing the law is typically NOT an element of
the crime
ii. Personal mistake of penal law
1. People v. Marrero
a. Facts: corrections officer brought gun into night club and tries to claim that he
was a peace officer and misunderstood statute that he thought allowed him to
have one
b. References two cases
i. Gardner: mistake of statute has NO defense (general rule)
ii. Wise: (d) kidnapped but thought he was helping (in good faith)
1. Exception: authority of law: sometimes mistake of law you are
making is a misunderstanding of a different body of law (i.e.
torts, property, etc.)
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 iii. Mistake of other law
1. Damage to property
a. Regina v. Smith
i. Facts: (d) was a renter, put his wiring behind a wall and redid the wall
around it but he broke through it when he was leaving; charged with
damaging another’s property
ii. Holding: Mistake of Law acceptable (property law)
iii. Rationale: “property of another” is an element (circumstance) of the
offense and (d) was under the impression it was his own
iv. Mistake of property law (beyond criminal law)
2. Claim to property (Theft)
a. State v. Varzegi
i. Facts: tenant missed payments so landlord (d) went in and confiscated
his computers; was originally charged with theft but he believed he had a
claim to the property
ii. Holding: Mistake of Law acceptable (property law)
iii. Rationale: (d) lacked the felonious intent to steal
b) Exceptions
i. Mistake that negates an element
1. Mistake of attendant circumstances
a. Regina v. Smith
i. Facts: see above ^
ii. “Property of another” (circumstance)
iii. Mistake of law is not a defense unless a material element is mistaken
(usually from another body of law)
2. Law requires knowledge of the law (“knowingly” or “willfully”)
a. Cheek v. United States
i. Facts: Pilot worked for AA and said he was under the impression he did
not need to pay taxes
ii. SCOTUS reversed conviction because “willfulness” was written into the
statute
iii. Statutory willfulness: the prosecution must show that (d) was aware of
the law and intended to violate the law
b. Defining “willfulness” when written into statutes
i. When the act itself is wrongful and could cause public harm
Willful means:
Knowingly engaging in conduct that turns out to be unlawful

Ex: United States v. International Minerals & Chemical Corp

- Transporting corrosive liquid
- “knowingly violate” a regulation
o Court ruled you need to know what you are doing without consciously being aware of the law
Ex: United States v. Ansaldi
- Sold chemical compound that turns into date rape drug
- Said they didn’t know and statute says “to knowingly”
- Court ruled just needed knowledge they were selling GBL
Ex: United States v. Overhold
- Didn’t know illegal to dumb contaminated water and violate Safe Drinking Act
- Judge said just needed to knowingly engage in conduct

ii. When the act is innocent and there is no harm to the public
Willful means:
Knowledge of the statutes

Ex: Liparota v. United States

- Whoever “knowingly” uses food stamps and isn’t supposed to
- Judge rules must know regulation exists
- Why? Innocent conduct and trying to not criminalize seemingly innocent conduct/people

ii. Official Reliance

1. Common Law (stricter)
a. Reliance on an official statement or past interpretation
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 b. Hopkins v. State
i. State Attorney is not Official Reliance
ii. Ruled that just because you sought advice of counsel and they advised
you incorrectly, does not mean you have a defense to breaking the law
1. Policy Rationale: lawyers could sell their counsel for large sums
of money as defenses
2. MPC (more generous)
a. §2.04(3)(b): “reliance defense is only available when (d) acts in reasonable
reliance upon an official statement of the law, afterward determined to be
erroneous”
i. Includes statute, prior court ruling, administrative order, grant of
permission, or an official interpretation of public officer or body charged
with interpretation and enforcement
b. “Reasonable reliance:” an agency or person officially charged with provisions of
law
c. Those who have the power to interpret that kind of letter
i. Attorneys do not have official interpretation of the law
d. Nita Hypo: parents bringing in rug through customs: obtained a letter from
import/export agency
i. Defense: yes
ii. But once the law changes or a certain amount of time passes, you are on
“notice” that it may no longer be valid
iii. Court opinions
1. U.S. v. Albertini
a. Facts: (d) protested on a naval base and was charged and convicted (appealed)
and CoA reversed, so (d) went and protested again on the base; but Supreme
Court granted Cert and reversed CoA
b. Issue: court charged (d) for the second protest
c. Holding (SCOTUS): (d) cannot be charged for the second protest because that is
an issue of due process (law is upheld until it is reversed) and a court’s decision
is one in which can be relied upon
i. But once certiorari is granted, the (d) is on notice
ii. Technically considered official reliance

Causation

A. Basic Concept
a) Two-prong approach
i. But-for cause: actual cause or cause-in-fact
ii. Proximate cause: Is there a close enough nexus between the person and the result
b) MPC 2.03(1)(a)
B. But-For Cause
a) Introduction
iv. There can be several but-for causes (when you cannot prove that the but-for cause was the
sufficient cause beyond a reasonable doubt
v. But you can use cheats so long as the judge agrees to instruct the jury
b) Cheats
vi. Loss of Chance
You were the actual cause of the loss of chance to survive rather than the death
1. Basics
a. Must meet 1 of the 4 conditions for when an omission triggers actus reus
requirement
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 b. Must show the omission to act caused loss of chance beyond a reasonable doubt
2. Montoya
a. Facts: bodyguard shot and wounded person A then (d) drove him to secluded
location and left him there to die
b. Holding: convicted on loss of chance: took away A’s chance for help
c. Without this doctrine: this (d) could argue that he did not die from seclusion so
there was no but-for cause
d. Then (d) appealed and the court overturned the conviction because there was
enough evidence to show that the death would have likely occurred even if (d)
had taken him to get medical attention
3. State v. Muro
a. Facts: mother came home to find her daughter beaten with a fractured skull;
waited four hours to call police, and she later died
b. Issue: can we use loss of chance to prove but-for
c. Holding: No
d. Rationale: there was only “a possibility” that she would have survived
vii. Sufficiently direct cause:
There are multiple independent causes: either of which is sufficient to cause the result alone but not necessary to cause the result
1. People v. Arzon
a. Facts: two fires: 1st is set intentionally by (d) and the 2nd is unrelated; firefighters
came to the 1st fire but the 2nd causes extreme smoke and ultimately firefighter
dies
b. Issue: But-for cannot be satisfied alone because but-for Fire 1, Fire 2 may have
still occurred happened
c. Holding: Court interprets this with wide risk analysis: just need to foresee death
rather than the way in which it occurs
i. Must be an actual cause of death that forms a link in the chain of links
BUT it does NOT need to be the sole cause
2. Mechanism of Risk: if you don’t know the mechanism that caused the harm then you
don’t have much to go on
a. you don’t need to FORESEE the mechanism of harm, but you must SEE the
mechanism
b. Burrage v. US
i. Facts: (v) took a mixture of drugs (weed, heroin, oxycodone, and heroin);
he died and the state charged the (d) because he unlawfully distributed a
drug and it resulted in death
ii. Issue: the (d) had a large quantity of various drugs in his system; none of
heroin which were sufficient on their own to cause the death
iii. Holding: The heroin alone was not sufficient to be the mechanism of
death (or the direct cause)
c. Warner-Lambert
i. Facts: factory was put on notice for MS (explosive compound that was in
factory); factory exploded and charged with negligent homicide; no
proof as to exact cause/trigger
ii. Issue: We are missing both the proximate and but-for cause
iii. Holding: there is not enough proof
1. We don’t know the mechanism by which it exploded
2. Evidence: not enough to establish immediate foreseeability of
risk
3. We are missing the nexus between the conduct and the result
4. Failure to show how the harm occurred is an issue: must tie the
conduct to the result
d. Transferred intent
i. Different parts of the analysis
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 1. Mechanism of the risk: causation
2. Transferred intent: mens rea
ii. Transferred intent: you want to shoot A but you shoot B
1. Even if it happens in an unexpected way (mechanism) (ex: hits
off B’s hat, hits the ceiling and then comes back down and kills
B) but you intended the ultimate harm
a. Foreseeable and intended harm: full case
C. Proximate Cause
a) Introduction
i. Farahany: proximate cause is a fake idea of causation
1. Fairness test: Do you think it is fair to say that he caused it?
a. Rationale: want to exclude extraordinary results
ii. Even if action is foreseeable, a subsequent human action can break the chain
iii. Even if action is NOT foreseeable if it is caused by the actor, they can be responsible
b) Strategy to causation
i. Fight it out about what the jury needs to find to show that they were the cause of the result
ii. (d) and (p) are going to fight for their interpretations
1. The narrower the prosecution can go the more (d) is damned: the more reasonable and
narrowly tailored your case can be the better situated the prosecution can go
iii. MPC
1. Narrow risk analysis: did he cause the prohibited result with the mens rea for the offense
2. When no culpability is required (i.e. strict liability, felony-murder): result must be
natural and probable
c) Tests
i. Foreseeability (Foreseeable)
1. Two interpretations as a policy choice by the jugge
a. Wider Risk Rule: foreseeable harm not foreseeable method
i. People v. Brady: Running meth lab it is foreseeable that someone will
die (and someone died)
1. Seems like the just way to do the analysis
b. Narrow Risk Rule: foreseeable harm via a foreseeable method
i. How the harm occurred matters
ii. Ways foreseeable people could die in this situation but no one foresaw
helicopters crashing (Brady)
iii. Looks for superseding cause: independent cause that supersedes (closer
in time and proximity) and breaks the chain of events that started with
the first actor
2. People v. Acosta
Foreseeable that police chase causes potential danger to pursuers (mechanism (helicopter) is irrelevant
(Wide risk rule)
i. Facts: (d) was in a stolen car and approached by officers, (d) led officers
on 48-mile chase using reckless and negligent driving to evade the cops;
police kept tabs on (d) in sky; but helicopter from one county did a
reckless 360 turn and crashed into helicopter from Newport beach; 3 died
ii. Procedural: (d) charged with three counts of second-degree murder, (d)
was convicted, (d) appealed
1. (D) says: (1) insufficient evidence that his conduct was the
proximate cause
a. Mechanism by which death was foreseeable: on the
ground
b. 360 turn: superseding cause: independent cause that
supersedes (closer in time and proximity) and breaks
the chain of events that started with the first actor

14
 iii. Issue: Was the (d) act the actual cause of the victim’s injury? (or was it a
highly extraordinary result)
iv. Holding: Yes because helicopters flying above is a foreseeable result of
engaging in a high-speed chase
v. Rationale:
1. Was the death of the helicopter pilots foreseeable?
2. Highly Extraordinary result: exclude the extraordinary results
that the “common sense of the common man as to the common
things” would not have foreseen
3. In the heat of a high-speed chase, there is a high probability that
one of the pursuers may crash or act negligently or recklessly to
apprehend (d)
a. The way the pilot crashed does not have to be
foreseeable
b. People v. Brady
Wide risk rule: death was foreseeable when running a meth lab
i. Facts: (d) recklessly caused a fire that caught his meth lab on fire, two
firefighter helicopters collided after one went off court; both pilots died
ii. Issue: Do you need to see the chain of death or just that your actions
could cause death?
iii. Holding: Only that your actions could cause death
iv. Rationale
1. Court said that likelihood of catching meth lab on fire: high
2. Probability of needing helicopters for a fire in the mountains:
high
3. Meth lab has lot of foreseeable death associated with it
4. And the death of the firefighter was a reasonably foreseeable
result of fire breaking out in a meth lab
ii. Natural and Probable/Sufficient Nexus
1. Basics
a. Sufficiently direct nexus between what you did and result that we can hold them
responsible
b. Fairness test
i. Causation can hold so long as no one breaks the chain
c. Looks at intervening causes
i. Responsive (dependent) intervening causes: (Foreseeable)
1. occur in reaction or response to the (d) prior wrongful conduct
2. negligent medical care
ii. Coincidental (independent) intervening causes: (Unforeseeable)
1. Relieves the criminal actor of their wrongdoing
2. A punches B, B goes to the hospital where C, a mentally ill
psychopath stabs him
3. Gross negligent medical care
iii. Subsequent Human Actions
a. Notes
i. Novus actus intervienens: a later action by another person that displaces
the relevance of prior conduct and provides a new foundation for causal
responsibility
1. An individual’s will is the self-regulating (autonomous) prime
cause of behavior
a. If one is under another’s will their actions are not
autonomous
ii. Exceptions to this doctrine
1. Coercion
15
 2. (d) has knowledge and instigates
3. Duty to rescue: fireman going into burning house
iii. Encouraging the reluctant actor
1. Michelle Carter: guilty of manslaughter: there was a foreseeable
substantial risk that the person will kill themselves if you
continue pushing them
a. And she said, “No. Get back in. You have to do this”
b. Surprising exception: knowing they are weak and
continuing to push them to do it: this is a very modern
exception
c. She somehow overcame his free will, his free will was
diminished, she knew it was diminished, and it is the
equivalent of him having pushed him in the car and
shutting the door behind him
d. Looking for autonomous subsequent actor because that
is what cuts off the causal chain and sometimes we
don’t find the autonomy of the subsequent actor
i. Through her instrumentality that someone died
b. Autonomous Human Action: Intended to Produce the Result
i. People v. Kervorkian
Autonomous subsequent actor/actions breaks the chain of proximity
1. Facts: (d) assisted two terminally ill individuals that wanted to
commit suicide; used suicide machine where he put the IV in
Subsequent Human
but then the victim raised their arm to release the chemicals;
Actor: AUTONOMOUS
other woman used mask with carbon monoxide; he provided
means but she released gas; both died
2. Procedure: (d) was charged with two counts of murder,
dismissed, State appealed, CoA reversed, (d) appealed to MI
Supreme Court
3. Issue: Is a conviction for murder proper if the (d) is involved in
the events leading up to the commission of the final overt act?
4. Holding: No/it depends
5. Rationale:
a. Autonomous human action breaks the chain
b. “A conviction of murder is proper if a (d) participates
in the final overt act that causes death, such as firing a
gun or pushing the plunger on a hypodermic needle,
but NOT where a (d) is involved in the events leading
up to the commission of the final overt act, such as
furnishing the means
c. Kervorkian gave them the means BUT was smart
enough to allow them to be independent actors in the
final overt act
d. Exception to this rule: when the individual is
despondent because of (d) actions: but that is not the
case here
ii. People v. Campbell
1. Facts: (d) was drinking with the (v), (v) had a history of
depression, (v) had slept with (d) wife and (d) told him to kill
Subsequent Human himself, (v) didn’t have a gun so (d) gave him one with bullets
Actor: AUTONOMOUS
in it, (v) killed himself
2. Procedure: (d) charged with murder; (d) moved to dismiss,
Circuit court denied motion, (d) appealed

16
 3. Issue: Can a (d) be charged with murder if he gave the victim a
loaded gun with the hope the victim would kill himself and the
victim proceeded to commit suicide once (d) left?
4. Holding: no, hope alone is not the degree of intention required
for murder
5. Rationale:
a. Court said he is not liable because while the (v) was
despondent (depressed), the despondency was not
caused by the (d) and deceased made the final overt
act
c. Foreseeable Subsequent Actions
i. Stephenson v. State
Mental Health Impact of Sexual Assault; Mentally Irresponsible
1. Facts: (d) kidnapped girl, raped her, was in control of her, (v)
tried to escape and couldn’t  (v) went to the store with a
NOT AUTONOMOUS guard and grabbed poison  took poison and died a month later
from the combination of poison and infection
2. Procedure: (d) was charged with murder, jury found him guilty,
(d) appealed, affirmed, (d) appealed
Sufficiently Direct
Analysis
3. Issue: If a (d) inflicts mental and physical injuries upon a (v)
which renders the victim mentally irresponsible, and suicide
follows, is the (d) guilty of murder?
4. Holding: yes
5. Rationale: Consider the following two cases
a. State v. Preslar: (d) fought with his wife, she left, did
not want to go inside her dad’s home; she slept
outside; was very cold, and she died  (d) found not
guilty
i. Staying outside: subsequent human action
which cuts off proximate cause
b. Rev v. Valade: (d) forced (v) to have sex with him in
an apartment, she jumped from window to try to
escape; (v) died
i. If (v) was rendered mentally irresponsible then
(d) is responsible
ii. It is NOT a subsequent human action if they are
not autonomous in their decision
6. This case mirrors Rev v. Valade
a. At the exact moment she swallowed the pill, she was
under (d) will: not autonomous
b. Died later but part of death was the taking of the
poison
c. “If the (d) engaged in a commission of a felony such
as rape and inflicts upon the (v) both physical and
mental injuries, the natural and probable result of
which would render the deceased mentally
irresponsible and suicide followed, we think he would
be guilty of murder”
ii. Farahany Notes:
1. Hypo shift on Stephenson: imagine she kills herself 2 week
later after she has been safely returned home
a. We could argue (d) is responsible but it gets harder as
time goes on

17
 2. Note: even if an action is foreseeable, subsequent human action
breaks the chain
3. But even if action is NOT foreseeable, if it is caused by actor
they can be responsible
d. Subsequent Human Actions that Recklessly Risk the Result
i. Rule
1. Courts generally hold that a subsequent actor’s risky choices do
not negate the liability of the first actor, when those choices
result from a predicament created by the first actor
ii. Commonwealth v. Root
Two autonomous human actors: No proximate cause
1. Facts: (d) was challenged to an automobile race by victim,
driving between 70 and 90 mph, merging onto one lane to cross
bridge, (v) attempted to pass (d) and ran head-on into a truck,
(v) died on impact
2. Procedure: (d) charged with involuntary murder, (d) found
guilty, (d) appealed
3. Issue: Was the (d) criminally liable for the (v) death when they
were both engaging in reckless and negligent behavior
voluntarily?
4. Holding: No, Reversed
5. Rationale: Assumption of the risk case
a. We have two autonomous drivers
b. It is not appropriate to hold (D) responsible for
someone else willingly engaging in a reckless activity
c. (v) is the one that swerved into oncoming traffic and
put himself in that position
6. Dissent (Eagen): had (D) not engaged and escalated the
challenge, this would have never happened
a. A crash was a clearly foreseeable risk of his behavior
iii. People v. Kern
One autonomous actor and (v) responding to escape = proximate cause
1. Facts: group of white teenagers chased black man with bat,
screaming racial slurs, and threatening to kill him; (v) was
NOT AUTONOMOUS running and tried to escape across a highway where he was
struck and killed
2. Rationale: Court upheld the manslaughter charge because the
Natural and Probable (v) felt he had no choice but to cross the highway to escape
Analysis a. Causation analysis: sufficiently direct cause: because
of your actions even if it was not foreseeable
b. Irresponsible agent
iv. People v. Matos
One autonomous human actor and a police officer (duty bound): not a subsequent human
action
1. Facts: (d) running from an officer, climbed up to the top of the
ladder to escape via the roof; officer followed him, fell down,
NOT AUTONOMOUS
and plunged to his death
2. Rationale: Court upheld conviction for felony murder because
officer’s risky pursuit in the line of duty was the way he died
Foreseeable
a. Death was the foreseeable result of the pursuit
b. Their job is to stop a fleeing felon, it is not a
subsequent human action
v. People v. Stewart
3rd party subsequent human actor

18
 1. Facts: (d) stabbed the (v), (v) taken to the hospital where doctor
was operating on the wound; doctor then did an unrelated
hernia surgery; (v) died; (v) would have almost certainly have
3rd Party Subsequent
Human Actor Broke
survived but for the hernia surgery
Chain 2. Rationale: Court didn’t hold him criminal liable for homicide
because but-for and proximate cause are lacking
3. The doctor’s subsequent actions broke the causal chain and
stabbing was not a sufficiently direct cause of the death

1. Actual Cause: But-For (d) actions, the result would not have occurred
 Yes: Actual cause satisfied
 No:
o Sufficiently Direct Cause? (i.e. multiple sufficient causes)
 Yes: good to go
 No:
o Multiple insufficient causes?
 Yes: Not good enough
\ did (d) take away the (v) only chance of survival)
o Loss of chance? (i.e.
 Yes
o Would (v) have survived had the (d) acted?
 Probably: may be good enough
o Must prove beyond a reasonable doubt that omission to act
took away the chance of survival
o Must also prove that (d) had a duty to act (1 of 4 duties to
act)
 Probably not: Not good enough
19  No
2. Proximate Cause:
 Was the result foreseeable (Narrow Approach): (i.e. both mechanism and result)
o Yes: Good to go
 Any subsequent human actors?
 Substantive Offenses

Rape

A. Basics
a) Majority approach: Requires
i. (d) uses force: force beyond and in addition to the act of sex
ii. Victim’s nonconsent
b) Minority approach
i. Nonconsent is enough
c) Parties
i. Varies from state-to-state
1. Can husband be liable for raping their wives?
2. Can the victim be a male?
B. Actus Reus
Sexual intercourse by force or threat of force without consent
a) Consent
i. Internal consent/internal nonconsent
1. Is internal enough?
2. Minority jx: MTS Case
ii. External consent/external nonconsent
1. “No”
20
 2. Resists physically
b) Force
i. Majority Approach: Force beyond the sex itself
1. General Law
a. “Overcomes the victim through the application of physical force or physical
violence”
b. Beyond the force inherent in all sexual penetration
2. State v. Rusk
Hands around the throat = enough; the subjective fear she felt = not neough
a. Facts: (p) went to the bar with her friend, said she would drive (d) home, got
to his place, (d) took her keys, said come upstairs, she went, (d) ordered her
to take off her clothes, asked if he would let her go if she obliged, lightly
choked her; (d) made her perform oral and vaginal sex, (d) gave her keys
after and (p) left
i. State statute: “A person is guilty of rape in the 2nd degree if the
person engages in vaginal intercourse with another person by force
or threat of force against her will and without the consent of the other
person”
1. Conduct: engages by force or threat of force
2. Circumstances: with another person, against her with, and
without consent
3. Result: vaginal intercourse
b. Procedure: (d) was charged with rape in 2nd degree, found guilty, (d) appeals,
CoA reversed: insufficient evidence bc no proof of force: (p) did not resist or
have enough force to threaten fear, (p) appealed, cert granted
c. Issue: Did the (p) show beyond a reasonable doubt that there was enough
force used by the (d) to constitute force by fear in the requirement of rape?
d. Holding: yes, reversed
e. Rationale
i. This is an issue for the jury to decide but the statute is satisfied
ii. Had it only been the implicit threat of harm: “will you let me live if I
do this”: it would not have been enough
iii. But the physical force of him putting his hands around her neck is
what makes this fit within the statute
c) Resistance
i. ½ of states: reasonable resistance is required
1. “sufficient resistance to establish that the sexual act was without consent and by
force”
2. Exception: gun to your head (State v. Burke)
ii. Remaining states: resistance is no longer required
d) Threats/Coercion
i. When are threats/coercion enough?
1. Constructive Force (i.e. Physical Threats): may be enough
a. State v. Burke: police officer picked up hitchhiker and commanded oral sex;
he was armed and in a position of authority
b. General laws:
i. “Uses or threatens to use a weapon; or any article used or fashioned
in a manner to lead the victim to reasonably believe it to be a
weapon”
ii. “Coerces the victim to submit by threatening to use force or violence
on the victim and the victim REASONABLY believes that the
accused has the present ability to execute those threats”
2. Non-physical threats: not enough
a. State v. DiPetrillo
21
 i. Facts: (d) was employee of (d) who was 30; (d) grabbed her, pulled
her onto his lap; kissed; put his hand up her shirt; she pushed away
and said stop; kissed her more; (d) pulled down underwear and
digitally penetrated her; (p) stood up and was able to leave
ii. Procedural: (d) charged with sexual assault (requires proof of sexual
penetration AND conduct by “force or coercion”); (d) found guilty
for using both force and psychological pressure
iii. Issue: Does the psychological-coercion-of-a-susceptible victim
standard for sexual assault apply to implied threats in the context of
employer-employee relationship?
iv. Holding: No, reversed
v. Rationale
1. Psychological-coercion-of-a-susceptible-victim was
established in State v. Burke
a. State v. Burke: police officer picked up a hitchhiker
and commanded oral sex; he was armed and in a
position of authority
2. The court says they cannot extend that employer relationship
to be the same as a police officer: Here, the (v) could lose
her job but not her life
3. Without the coercion of the relationship, we don’t know if
there was enough force or threat of force
4. Modicum of force: grabbing the arm is not enough
b. State v. Thompson
i. Principal threatened to not let a girl graduate if she didn’t have sex
with him; ruled that it could not be sexual assault
e) Conduct without Force
i. Minority Approach: need for affirmative consent; force is synonymous with the act itself
1. State in the Interest of M.T.S
a. Facts: (d) was living with (p), (p) says this: (d) came into room, she went to
bathroom, fell back asleep, woke up, and he was penetrating her, told him to
stop, slapped him, he left; (d) says this: (p) encouraged him to come to her
room, he did, she was awake, they were kissing, they started having sex, after
4 thrusts, she said get off, he did, she slapped him, he left
b. Procedure: (d) charged with sexual assault, (d) convicted, (d) appealed, CoA
reversed (need level of force beyond the penetration itself), (p) appealed
c. Issue: Is the element of “physical force” met simply by an act of non-
consensual penetration involving no more force than necessary to accomplish
that result?
d. Holding: yes, reversed
e. Rationale: to require force beyond the act itself, you are basically bringing
back the resistance requirement
i. Physical force is synonymous with the act
1. The victim does not need to say or do anything
2. The job of the jury is only to decide whether the (d) belief
that the alleged victim had freely given affirmative
permission was reasonable AND here they obviously did not
believe hin
C. Mens Rea
a) MINORITY: Consent: Strict Liability
MENS REA: STRICT LIABILITY
i. MTS: you either got a yes or a no; there can be no mistakes when affirmative consent is
required

22
 ii. Commonwealth v. Fischer
Minority: strict liability and no mistake of fact
1. Facts: (p) and (d) were at school together,
a. P sequence of events: earlier in the day had kissed fondled but then that night
(d) locked the door, put arms over her head, forced penis into her mouth, and
would not stop until she kicked him in the groin
b. D sequence of events: rough sex earlier in the day, came back again, she said
it needed to be quick, he held her hands up, forced himself into her mouth,
she said she didn’t want it but that was similar verbiage to earlier, then she
said “No she really didn’t want it” and he stopped
2. Procedure: (d) was charged with IDSI, (d) was convicted, (d) appealed
3. Issue: Is mistake of fact that a (v) consented to a (d) sexual conduct a defense to the
crime of IDSI?
4. Holding: no, affirmed
a. Commonwealth v. Williams: college student accepted ride from stranger,
took her to gas station, threatened to kill her, so she let him have sex with
her, (d) claimed mistake of fact to consent and it was denied
b. Court says this is binding law: the jury instruction for mistake of fact is not
allowed here
c. The act here speaks for itself: everyone here agrees force was used, she said
no, he took it as no means yes
5. Notes
a. This shows us that it is strict liability because a reasonable mistake of fact
would negate negligence
b. But in many jurisdictions Williams and Fisher would be distinguished from
one another
i. Williams: stranger rape
ii. Here: date rape situation
1. They have past sexual experiences with one another that
complicate things
b) MAJORITY: Consent: Reasonable Mistake
MENS REA: NEGLIGENCE
i. Tyson v. State
1. Facts: Mike Tyson (d) accused of rape, trial court refused to instruct jury that
reasonable mistake as to consent would be a defense
2. Rationale: Tyson’s testimony negates the “force” element of the crime but that was
the jury’s job to determine
a. His version vs. her version
i. Not about a misunderstanding but two completely disputed set of
facts
1. He alleges a consensual encounter, and she gives non-
consensual encounter
2. This is not where a mistake-of-fact defense comes into play
ii. State v. Kelly
Compare & Contrast larceny and rape
1. Facts: Guy breaking into a house and letting Kelly (d) take oak; Guy had told (d) it
was his house and he was allowed to go inside;
2. Rationale: the court said his mistake was unreasonable but he was still given a
mistake of fact instruction
a. Mens rea had to be “recklessness” because he cannot consciously disregard
something he is not aware of
3. Note

23
 a. The mens rea is lowered to negligence in the case of rape because failure to
obtain consent means that you run the risk of doing something really bad that
will have lifelong effects on someone else
b. It is not enough for you to have an honest mistake
c. It must be moth honest AND reasonable (negligence)
D. Causation:
a) Implied in Rape Cases
E. Problems of Proof
a) Corroboration: (more of a historical issue)
i. Basics
1. To guard against fabrication there must be independent corroboration and objective
evidence (i.e.: bruising, DNA)
2. Rape is easy to accuse and difficult to defend
3. Forcible rape cases
a. Not required
4. Date rape cases
a. Need some sort of corroboration typically
ii. United States v. Shephard
1. Although corroboration is not required, when there is a credible witness with solid
evidence  (d) counsel and the judge can remind of the harms of falsification
iii. U.S. v. Wiley
1. (d) conviction was reversed because there was no independent evidence that permits
the jury to conclude beyond a reasonable doubt that the (v) account of the crime is
truthful
2. Issue with false allegations against black men (to preserve reputation they would
claim rape)
b) Cross examination and Shield Laws
i. Basics
1. History of abusive treatment of complainants; (d) counsel trying to discredit and is
getting violated on the stand all over again
2. Shield Laws put into place
a. Nearly all American jurisdictions have some sort of shield laws that limit
admission of evidence about (p) past sexual history
i. But they can and should be pierced when it is probative and relevant
ii. State v. DeLawder
1. Facts: (d) was accused of raping a girl under 14-years, (d) counsel was not allowed to
ask girl questions about sexual history
a. Defense strategy was to discredit the (p) because at the time of accusation
she was pregnant by another man and instead of coming clean to her mother
she accused (D) of rape
2. Procedure: (d) charged with statutory rape; 15-year-sentence, (d) appealed, judgment
affirmed, (d) sought postconviction relief
3. Issue: Did the trial court err in barring questions attempting to show that the
prosecuting witness had sexual intercourse with other men on other occasions
4. Holding: yes, reversed
5. Rationale: Must have an opportunity to expose witness’s motivation
a. (d) was not given this right and should have been
b. “The desirability that the prosecutrix fulfill her public duty to testify free
from embarrassment and with her reputation unblemished must fall before
the right of an accused to seek out the truth in the process of defending
himself”

24
 Theft Offenses
Mens Rea: Minimum of Knowingly; Theft, Fraud, False Pretenses

Honest but Unreasonable Belief Negates the Offense

A. Basic Notes on Possession vs. Ownership
a) From the owner’s perspective
i. Actual Possession: exclusive physical dominion and control of a thing combined with the
manifested intent to exclusively control it
ii. Legal/Constructive Possession: what actual legal possessor has after someone else acquires
custody but not legal possession of the thing
b) From the possessor’s perspective
i. Mere custody: de facto possession
1. Exclusive physical dominion over the thing within any mental element
B. Trespassory Taking: Larceny
a) Basics
i. Common Law: “taking and carrying away of someone else’s property with the intent to
permanently deprive the owner of possession”
a. Makes larceny a continuing offense until you reach a point of safety (can
become robbery if use violence while carrying the stolen good away)
b. Actus Reus and Mens Rea must coincide
c. Asportation is not ALWAYS necessary
d. You need to either
i. Have dominion/control MPC §223.2(1)
1. Steal a car: don’t necessarily have to move the car so long as
it has the capacity to turn on (People v. Alamo)
2. Pick-pocketing: don’t necessarily need to move
ii. Carry it away
b) Elements
1. Taking without the owner’s consent
2. Asportation: carrying it away
a. Accomplice liabil
3. With the intent to permanently deprive the owner of possession
c) Differentiating Larceny from False Pretenses (Consent v. Nonconsent)
i. People v. Williams
1. Facts: (d) reencoded credit card using third-party credit card to obtain gift cards from
Walmart; after purchasing, clerk noticed the numbers on card and receipt didn’t
match, (d) was approached, (d) ran and shoved store security
2. Procedure: (D) was charged and convicted of robbery
3. Issue: Did (d) commit larceny (can be upped to robbery) or false pretenses (cannot be
upped to robbery)?
4. Holding: False pretenses, Reversed
5. Rationale
a. Larceny: trespassory taking (nonconsensual taking) and asportation
b. False pretenses: misrepresentation of a present or past material fact with the
intent to defraud, the (v) relied on the material fact, and transferred title to (d)
i. Ends the moment the transfer of title occurs
c. Here:
1. The (d) misrepresented a material fact of her credit card
2. The (d) intended to defraud Walmart
3. The Walmart employee relied on that material fact
25
 4. And consensually transferred (willingly enter transaction and
hand over the property) the gift card to the (d)
a. ONLY after that transfer did she notice the issue: but
in the moment she handed the money over the (d),
the title was passed and the offense was over so
robbery is not possible
d) Asportation Minimum
i. People v. Olivo
1. Facts: Customer took sensor off of a jacket and walked towards exit
2. Holding: customer can be charged with larceny even before leaving the store
3. Rationale: if a customer is invited to examine items in a store and on display, but
exercised control inconsistent with the right of the owner = can be charged with
larceny
ii. Turning the car off is enough
e) Imputing asportation from innocent actor
i. Mcalevy v. Commonwealth
1. Facts: (d) sold farm equipment that was not his to an innocent buyer who then walked
away with it
2. Issue: the (d) did not himself carry the good away
3. Holding: Resolved the issue of asportation by imputing the actions of the buyer onto
the (d)
f) Setting a Trap for Larceny: Issue with Consent
i. Topolewski v. State
1. Facts: (d) had a plan to steal 3 barrels of meat from a company by pretending to be a
buyer; his feigned accomplice (Dolan) was guy who owed him $ but he told boss the
plan, Boss told him to play along; Dolan set meat on platform for pick up; guy
operating back platform was told the buyer would come soon; (d) came and picked
up the meat while the platform guy was watching, (d) arrested
2. Procedure: (d) arrested and charged with larceny, (d) was convicted of larceny, (d)
appealed, affirmed, (d) appealed
3. Issue: Did Dolan’s aid, the boss’s set up, and the platform man’s consent interfere
with the need for a nonconsensual taking?
4. Holding: yes: reversed and remanded
5. Rationale: You can set someone up, but you cannot interfere with the consent
element
a. Need asportation of the goods without consent so you can go no further than
is necessary: make it easy for them but DO NOT hand them the goods
ii. TOO FAR: Reg. v. Lawrence: held that if the property was delivered by a servant to the (d)
by the master’s direction the (d) cannot be guilty of larceny
iii. JUST ENOUGH: Reg v. Eggington: Knew the thieves were going to break in so the servant
unlocked the house and made the items the (d) wanted easy to find
iv. Jarrott v. State
1. Facts: informant told officer that (d) wanted to steal and sell cars; officer set up his
own car with the keys inside at a place he knew (d) and the informant would be;
policeman was still in the back of the car; (d) drove it to a parking garage where
officer got out and arrested (d)
2. Procedure: (d) appealed larceny conviction on grounds that (1) the car was never
taken from the personal possession of the owner and (2) the taking occurred with the
owner’s consent
3. Issue: Did the officer go too far in setting the (d) up to take the care
4. Holding: NO, affirmed
5. Rationale:
a. There was still a trespassory taking, you did not have the consent to take the
car
26
 b. You had the intent to permanently deprive the officer of his care
c. You drove it away: Larceny complete
g) Limits of consent
i. Nita Hypo: You give a friend a key to your home so that they can house sit while you are out
of town; your friend ends up going into your house and taking your jewelry
1. Your friend exceeded the scope of her invitation and her taking your jewelry
constitutes a trespassory taking (trespass on goods)
C. Trespassory Taking: Robbery v. Extortion
a) Robbery: Larceny + violence
i. Requires immediacy and there is no consent
ii. MPC §222.1
b) Extortion: trespassory taking + use of force/threat of force to obtain consent
i. Gives time to make a decision to cooperate
ii. MPC §223.4
D. Trespassory Taking: Larceny by Trick
a) Basics
i. Appears to be a case of false pretenses (consent)
ii. But the trick vitiates the consent and as a result, it is a trespassory taking  larceny
b) Cash vs. Goods
i. Cash: who are you giving it to
ii. Goods: when are you transferring title
c) Elements
1. Taking and carrying away by trick or device
2. the goods that are in the legal possession of (v)
3. with consent obtained by trick
4. and the intent to permanently deprive another of property
d) Hufstetler v. State
i. Facts: (d) came to the gas station, told owner to “fill her up,” owner filled up 6.5 gallons, (d)
then asked for oil change, owner went to grab oil and (d) drove away without paying for the
gas
ii. Procedure: (d) charged with petit larceny, convicted, (d) appealed
iii. Issue: Does the proof given in the facts sustain the judgment of larceny?
iv. Holding: Yes, affirmed
v. Rationale
1. The owner of the gas station transferred constructive possession of the gas NOT
lawful possession
a. Lawful possession only obtained once the (d) pays
2. Issue: Is it larceny or false pretenses
a. False pretenses the title has transferred but (d) has no lawful possession of
the gas only constructive possession/mere custody
3. (d) says I didn’t intend to trick him
a. Court says: at the moment you received the gas: you do not intend to pay for
it so receiving it by trick.
i. Trick vitiates consent
e) Graham v. U.S.
i. Facts: (d) asked to represent witness who had been arrested for disorderly conduct, witness
was seeking American citizenship and worried it would effect it, (d) offered to represent him,
(d) took $200 for professional fee and $2,000 to talk to the police (as a bribery), (d) did talk
to the police but there was no money exchange so (d) kept the money for himself
ii. Procedure: (d) charged with 2 counts of larceny, convicted, appealed
iii. Issue: Is fraudulent representation considered to be larceny by trick?
iv. Holding: yes
v. Rationale
27
 1. If you give money to perform a service, (d) is in constructive possession of that
money but does not have the title (false pretenses)
2. Without trick and with honest intent  only later deciding to convert it to his own
use, it would be embezzlement
3. Here Trick vitiates consent: trespassory taking
4. You have constructive possession UNTIL you perform the service in this case AND
you have constructive possession with the lawful possession and title ultimately
going to the officer
5. Helpful to look at the intent of both parties

Larceny By Trick Embezzlement

Person Intent Person Intent
(v) Constructive possession to pay another and perform a service
(v) Constructive possession to perform a service and mere
(d) Actually had the role of a negotiator and honest intent to help but then
custody of officer’s bribe money converts to his own use
(d) Was to take it

f)
Bourbonnaise v. State
i. Facts: (v) gave money to go buy liquor and then (d) took the money as his own
ii. Issue: Is this larceny by trick?
iii. Holding: Yes
iv. Rationale: (d) was in custody of the money with no title to his portion of the payment until he
got the bottle of whiskey
1. Hypo: if (d) returned with the bottle of whiskey and (v) paid (d) but (d) refused to
give over the bottle then it would be false pretenses
a. Moment you transfer the money to that person: you transfer title too
g) Means v. U.S.
i. Facts: Possession of money given but the title was not given, since the intention of owner of
goods was title would be transferred once their kidnapped child was returned, but at the time
the defendant
ii. Holding: larceny
iii. Rationale: received possession it was not lawful since he did not intend at the time money
was received to actually perform the service to return the child
1. This vitiates the consent
2. Larceny by trick
E. Misappropriation: Embezzlement
a) Basics
i. Limited to a fiduciary or a “trusted” relationship
b) Elements
1. (d) has lawful, limited possession (by permission) and
2. fraudulently converts the money
3. for his own use
4. with the intent to defraud
c) MPC
i. All employee conversions constitute embezzlement (regardless of whether employee was
acting as employee or custodian)
ii. State v. Willard-Freckleton: Rejects common-law distinction between larceny and
embezzlement
1. All employee conversions constitute embezzlement when the employee has custody
or control of the property by virtue of his employment, even if the employee does not
have lawful possession.
d) Common Law
i. Cares about figuring out exactly where money was at the time of conversion
1. Nolan v. State

28
 a. Facts: (d) worked at the Federal Discount Corp.: making loans and
collections; as payments were received (d) put them into the drawer and at
the end of the day would take part of the $; accomplice counted $ at the end
of the day and would tailor amount to match
b. Procedure: (d) arrested and charged with embezzlement, convicted, (d)
appeals
c. Issue: Is the evidence produced sufficient to charge the (d) with
embezzlement?
d. Holding: No reversed and remanded (Larceny fits here)
e. Rationale:
i. $ was not taken from the customer, it was taken from the drawer
ii. Who was in possession of the $ when he took it: He was custodian
(embezzlement) if company was custodian (larceny)
f. Concurrence
i. MPC approach
1. Stop distinguishing between the two: regardless the party is
guilty
e) Larceny v. Embezzlement
i. Possession
1. Larceny: (d) does not have possession of the property
2. Embezzlement: lawful possession at the time of embezzlement
F. Fraud: False Pretenses
a) Basics
i. Mens rea: knowingly made the false representation with the intent to deceive
b) Elements
1. Knowingly and intentionally
2. Takes title to another’s property
3. By false representation of a material fact
a. Material fact must be past or present: not a false promise
4. Requires an affirmative act, NOT failure to disclose
c) Issue with Loans: loan is transfer of possession and title
i. People v. Ashley
Enter into loan intending to never pay it: false pretenses
1. Facts: (d) asked two women for money, First: gave a loan of 7,200, and he told her
that it would be used to build movie theatre: used for operating expenses instead;
Second: gave a loan of over 13,000 and loaned 4,000 more
2. Procedure: (D) charged with grand theft, (d) convicted, (d) appealed, affirmed, (d)
appealed
3. Issue: Does the crime of false pretenses occur, when, for the purpose of obtaining
another person’s property, a (d) promises to perform a contractual obligation in the
future but does not intend to perform his promise and never does?
4. Holding: Yes
5. Rationale
a. False pretenses can be present in a case of false promise if at the time the
agreement was made the (d) had the intent to defraud and never pay back the
money
b. Prosecution must prove the (d) fraudulent intent at the time of the loan
beyond a reasonable doubt

False Pretenses Innocent

Person Intent Person Intent

(v) To loan money (title and possession) for future (v) To loan money (title and possession) for future
repayment repayment
(d) To take the money and never pay it back (d) To pay it back  later on no longer has the means to
29 do so
 ii. Nelson v. United States
We can presume your intent to defraud because you knowingly engaged in the act
1. (d) was a retailer who had been buying merchandise from Potomac Distributors to
resell to his own clients; overdue debt in $1800; went to Potomac to buy 2 TV and a
washing machine; Potomac said no, but (d) offered his car as security (claimed he
paid $4,260 on it BUT did not mention that he owed over $3,000 on mortgage to city
bank
a. (D) gave a note to the bank for past and present debt in total of $2,047.37;
(D) never paid, car was in collision and repossessed by the bank
2. Procedure: (d) charged with false pretenses, convicted, appealed
3. Issue: May the intent to injure or defraud be presumed when the lawful acts, resulting
in the loss or injury, is proved to have been knowingly committed?
4. Holding: yes
5. Rationale
a. (d) knowingly committed the act (lied) but argues that he did not have the
intent to defraud (AKA no mens rea)
b. Court says: the wrong is in the act itself
i. We can prove the intent to defraud by the fact that you lied and
knowingly committed the act (the act being misrepresentation of
present/past material fact; knowing it is false; inducing owner to part
with title)
d) Intent to Defraud
i. Regent Office Supply
Puffery is not an intent to defraud
1. Facts: calling people, we lost customers so things are on sale, and getting more
business that way
2. Issue: Was this false pretenses with an intent to defraud?
3. Holding: No: only deceived but did not defraud customers
i. No injury flowed from the company’s deception because the prices
and quality were honest and they were able to return the goods
ii. Lied about external facts: lying about a sale
b. Misrepresentation has to be about a material fact (quality or price)
c. Blatant dishonesty IS NOT a scheme to defraud

30
 We could presume your
intent if you knowingly
Falsity and passing of title engaged in the act: (Nelson
must coincide v. US)

31
 Homicide

A. Murder

Actus Reus: The unlawful killing of another human being

Mens Rea: Malice Aforethought: (1) intent to kill (2) intent to inflict serious bodily injury (3) extreme recklessness (4) felony murder (5) conspiracy

B. First-Degree Murder
a) MPC: Separate into murder and manslaughter but DO NOT separate murder into degrees
i. MPC invention: Negligent homicide
b) Majority Common Law: use “premeditation” to identify first degree murder:
i. Issue: How much time is required to develop malice aforethought?
1. Majority: premeditation can be satisfied either an instant before or simultaneously
with the act of homicide
a. Commonwealth v. Carroll
Premeditation can be formed in the instant (malice aforethought)
In Carroll Jurisdictions, when conscious object i. Facts: (d) was serving in the Army, Wife was living with the kids
is to kill, premeditation is met
and (d) parents, arrangement was not working, so (d) came home,
wife had schizoid personality type and abused kids, (d) had to go to a
conference and his wife asked him to load a gun and leave it by the
bed, when he got home, they got in a heated argument, he took the
gun, shot her twice in the back of the head, wrapped up the body and
disposed of it, then went on to teach
ii. Issue: Is there a set length of time to form the intention for first-
degree murder?
iii. Holding: NO
iv. Rationale
1. Intent (purpose) to kill can be found in (d) actions
a. Inferences made by objective evidence of subjective
intent
b. Infer from words/conduct, circumstances, or use of
weapon on vital body part
c. Point the gun and pull the trigger at a vital part of
the body shows conscious object to kill
2. Conduct (deliberate): conscious object to grab the gun and
shoot his wife
3. Result: (deliberate): infer conscious object to kill her by
aiming the gun at her head
4. (d) says: insufficient time to premeditate
a. Court says: amount of time does not matter: so long
as the killing was intentional, willful, deliberate and
premeditated
5. (d) says: Lack of planning
a. Court says: that doesn’t matter but that is
circumstantial evidence that the jury can weigh
6. (d) says: Psychiatric testimony
32
 a. Testimony said it was desperation not intentional
b. Impulsive, reflexive homicide is not excused
(Commonwealth v. Tyrrell): irresistible impulse is
not an excuse
c. The judge and jury do not need to credit the
testimony
d. Especially be an expert which is based on statements
made by the (d) which are contradicted by the fact.
2. Minority: must be time for reflection to be “premeditated”
a. State v. Guthrie
Premeditation requires time for reflection
In Guthrie Jurisdictions, (d) must reflect on his i. Facts: (d) suffered panic attacks depression, borderline personality,
decision to kill and body dysmorphic regarding nose; (d) was being teased by (v);
(v) snapped a dishtowel at him and it hit his nose; (d) outraged,
pulled out a knife, stabbed victim in neck, and killed him
ii. Issue: To constitute first-degree murder, must the (d) have had some
period of time between the development of the intent to kill and the
actual killing to show that the act was premeditated and deliberate,
not impulsive?
iii. Holding: Yes
iv. Rationale: if we were to accept the approach of Carroll, there would
be no reason to grade offenses
1. Court sets a new precedent: there must be some period of
formation of the intent to kill and the actual killing which
indicates an opportunity for some reflection on the intention
to kill after it is formed
2. 1st degree: intentional killings that are calculated and ruthless
3. 2nd degree: intentional killings that are spontaneous and
nonreflective
b. How do you determine reflection?
i. People v. Anderson: 3 categories
1. Planning activity
2. Motive
3. Preconceived design (manner was particular and exact)
c) Minority Common Law: no “premeditation” required
i. Why take this approach?
1. The Anderson Case: butchered a child because of sexual frustrations, over 60 wounds
but no signs of premeditation  only second-degree murder
2. State v. Forest: (d) shoots father who is terminally ill in the hospital as a mercy
killing
a. Issue: Is prior deliberation really the worst of the worst?
B. Second-Degree Murder
a) Recklessness PLUS
i. Commonwealth v. Malone
1. Facts: (d) lived with the deceased, two had loaded revolver from uncles house, (d)
went to the move and met up at ice cream shop, agreed to play Russian Poker; (d)
placed revolver on the right side of Long and pulled trigger 3 times; on the third it
fired and (v) died three days later
2. Issue: Can we convict the (d) when it was not his conscious object to bring about the
Malone result?
a. Conduct: Conscious Object to pull the trigger
b. Circumstances: awareness that he was aiming the weapon at a vital body part

33
 c. Result: conscious object to kill
3. Holding: Yes
4. Rationale:
a. (d) reasonably must have known
i. Constructive knowledge: the only reason you don’t know is because
you don’t want to know (Ostrich)
ii. Probability and magnitude of the substantial and unjustifiable risk
becomes an indifference to human life
b. “An act of gross recklessness for something that one must reasonably
anticipate that the death of another can result, shows the wickedness of
disposition, hardness of heart, cruelty, recklessness of consequences and a
mind regardless of social duty”
c. Here, wicked disposition is evidenced by the intentional doing of an
uncalled-for act in callous disregard of its likely harmful effects to another
i. He reasonably must have known
1. Constructive knowledge
ii. This takes away the need to prove knowledge: or substantial
certainty it would bring about a result because that could be a game
of numbers as shown in Russian poker: 1/6, 3/5, etc
ii. Other examples of Recklessness PLUS
1. Throwing a heavy object down a busy street, shooting into an occupied building, and
beating someone so severely that the person is unintentionally killed
iii. Affect v. Conduct
1. Find the worst of the worst thought an abandoned heart: affect: subjective
a. Issue: at trial, some (d) are drugged to be deemed competent
2. Better to find the worst of the worst through conduct: more objective
iv. Recklessness PLUS vs. Criminally Negligent Homicide (Murder v. Manslaughter)
1. 2nd Degree Murder: Extreme indifference to the value of human life
a. Depraved (wicked) heart murder
b. the (d) consciously disregards the substantial and unjustifiable risk and
“manifests extreme indifference to the value of human life” (MPC §2.02(2)
(c)
c. Recklessness so extreme that it becomes indifference to human life is a
determination that the jury must make
2. Involuntary Manslaughter: Utter disregard for human life
a. (d) disregard to the circumstances so far that it is a gross deviation from the
standard of conduct of the ordinary reasonable person
v. Distinguishing between disregard and extreme indifference to human life
1. NY: extreme indifference requires: utter depravity (disregard of human life) +
uncommon brutality + inhuman cruelty
a. People v. Taylor
i. Facts: smoked crack together, (v) attacked (d), (d) hit her in self-
defense, bleeding from head, he tied bag around her head, took her to
the roof, and left her there
ii. Holding: Involuntary Manslaughter
iii. Rationale: did not establish torture or prolonged harm
b. People v. Prindle
i. Facts: led officers on a high-speed chase, running red lights, going
into lanes, collided with vehicle and killed driver
ii. Holding: Involuntary Manslaughter
c. People v. Burden
i. Facts: (d) failed to feed his child, when he knew he was dying from
starvation; after 2 weeks the child died
ii. Holding: Second-degree murder
34
 iii. Rationale: The father was aware and “just didn’t care”
1. Uncommon brutality and suffering to not feed an infant
2. Gross Deviation Warrants Inference
a. United States v. Fleming
i. Facts: (d) had a BAC of .315 and was driving between 70 and 100
mph in 45 zone; swerving; then going 70-80 in 30 zone; hit (v) head-
on and killed her
ii. Procedure: (d) charged 2nd degree; (d) convicted; (d) appealed on
inadequate facts to establish malice aforethought
iii. Issue: Was there evidence of conduct which is reckless and wanton
The magnitude and such a gross deviation from a reasonable standard of care
and probability
of this risk is so warranting an inference that the (d) was aware of a serious risk of
high we can
bring you right
up to the line of
death or serious bodily harm?
awareness iv. Holding: YES
v. Rationale:
1. Proof of the existence of malice can be established through
“reckless or wanton conduct that is a gross deviation from a
reasonable standard of care”
2. What can we look at to help us?
a. Hardness of heart
b. Deviation of norm
i. Need such a deviation that it converges with
knowledge: practical certainty that someone
will die
c. Subjective context

Degree to which (d) behavior deviates from the norm is closer to knowledge than reckless

3. Normally: when a person causes injuries while drunk

driving, it is because they are trying to operate their vehicle
as any normal individual would, but they fail to do so well
because they are intoxicated
4. BUT HERE: the (d) acted beyond that level: and “drove in a
manner that could be taken to indicate wicked disregard for
human life.”
3. Murder by Drunk Driving
a. Majority: egregiously dangerous driving supports a conviction of murder
i. MPC §2.08(2): recklessness need not be shown if the (d) was
unaware of the risk because of voluntary intoxication
ii. State v. Dufield
1. Facts: (d) brutally injured woman during drunken orgy,
charged with reckless murder
2. (D) argues: intoxication is not an excuse for lacking
awareness but should be relevant to “extreme indifference”
3. Holding: Intoxication is irrelevant
4. Rationale: it is an objective measure and voluntary
intoxication that blinded (d) to the risks of such extreme
deviant behavior is irrelevant
b) MPC Approach to Homicide
i. MPC §210.2: Negligent Homicide

35
 1. Inadvertent risk creation: no matter how extravagant or unjustified CANNOT be
punished as murder
2. Negligent Homicide is its own category
ii. Homicide has 3 categories in MPC
1. Murder
a. Committed purposely or knowingly
b. Recklessly under circumstances manifesting extreme indifference to the
value of human life
i. Recklessness presumed if engaged in commission of crime such as
robbery or rape (Basically felony murder)
2. Manslaughter
a. Committed recklessly or
b. EED
3. Negligent Homicide
C. Felony Murder
a) Rationale
i. Deterrence
1. If you know you be held strictly liable, then encourages criminals to commit felonies
safely and deter felonies that are inherently dangerous
ii. Critics argue not in line with retributivism
1. Moral culpability is disproportionate
b) Basic Doctrine
i. Regina v. Serné
1. Facts: (d: homeowner) and friend set fire to his house and shop; (d) needed money;
(d) took out life insurance policy on son, insured stock and furniture same month
house burned; 2 fires in lower part of house and 2 above; (d), wife, and daughters
survived; son died
2. Issue: If a person commits a felonious act known to be dangerous to life and likely to
cause death to another person, is it murder?
3. Holding: Yes
4. Rationale:
a. Malice Aforethought satisfied in 2 ways (both presented to jury)
1. Act with intent to commit felony OR
2. Knowledge
b. Judge is worried felony (1) could be overused so sets boundary
i. “Act known to be dangerous to life and likely in itself to cause death,
done for the purpose of committing a felony which causes death, is
murder
1. Recklessness (conscious disregard of substantial and
unjustifiable risk) + felony
2. Establishes this inherently dangerous felony
c. Ex: man is raping a woman he must accept the consequences if he goes
further than expected when he began and kills her
i. Moral wrong: act shows blameworthiness in and of itself
d. Nita Example: someone dies while (d) explodes a prison for prisoners to
escape
i. Explosion: straight up recklessness  manslaughter but felony
murder closes the gap
1. Malice per se: we don’t need to show anything beyond
recklessness
e. Nita hypo: securities fraud, and guy defrauded commits suicide
i. Felony-murder: no, felony is not inherently dangerous

36
 ii. Recklessness PLUS (Malone): No: not extreme disregard for human
life
c) Mens Rea
i. Strict Liability
ii. Malice is imputed as a matter of law when committing a felony
1. Replace intent to kill with intent to commit felony
d) Causation
i. Basics
1. But-for:
a. But-for the felony, the death would not have occurred
2. Proximate Cause (potential limitations exercised here)
a. In the furtherance: liable for criminal acts of another when those acts are
Look here first: reasonably foreseeable in furtherance of a common objective of the
participants
b. Result must be fairly attributable to the D conduct rather than mere
If YES:
coincidence or intervening action or act
i. In the furtherance element
1
Agency Theory
1. Ex: King v. Commonwealth
a. Facts: (d) and copilot crashed because of fog when
transporting 500 lbs of weed
Merely Proximate b. Procedure: court convicted (d) of felony murder for
2
death of copilot
c. Issue: Was (d) conduct/crime the proximate cause of
the death?
d. Holding: No, reversed
e. Rationale: Had the plane been flying low to avoid
detection and crashed, the proximate cause would
have been satisfied
f. Death would have resulted from the furtherance of
the crime
ii. Foreseeable + The agency theory (Majority)
1. Identity of the killer matters
2. Each death is different
a. Who was killed and who did the killing?
b. Only a killing done by a co-felon or someone in
concert with co-felon
c. Majority: If co-felon is killed by a co-felon then
felony murder does apply
3. Rationale
a. Makes sense to hold the (d) responsible for the act of
co-felons
b. Justification homicide: owner had justified act of
self-defense (issue: justification is personal)
i. You assumed the risk of death so co-felons
are not charged for each other
c. Target of felony murder doctrine is for the innocent
public: misapplies it if charged for the death of one
another
4. State v. Canola
a. (d) and co-felons rob jewelry store; fire exchange;
co-felon and owner killed
b. Holding: (d) charged for felony murder regarding
the owner but not the co-felon
5. Consider a police shooting bystander
37
 a. If a robber shoots @ an officer, officer returns fire,
bystander gets shot and killed
b. The robber can be charged with purposeful murder
i. Not under the felony-murder rule because of
agency theory
ii. But under implied malice or transferred
intent
iii. Proximate cause (Minority)
1. Whether killing is within the foreseeable risk of committing
the felony
2. Natural and Probable OR Foreseeable
a. Result was the natural and probable consequence of
(d) conduct OR was foreseeable
b. Foreseeable: wide-risk analysis
ii. People v. Stamp
1. Facts: (d) robbed the (v), had him lie face down for 10 min until he fled, (v) had a
heart attack, experts testified that the robbery was a shock to the (v) system and sent
him into cardiac arrest
2. Holding: Convicted on First-Degree Murder (via felony murder)
3. Rationale
a. Actus Reus: Felony
b. Mens Rea: strict liability
c. Causation
i. Felony-murder doctrine is not limited to deaths that are foreseeable
Notice: Without Felony Murder Doctrine:
would not even have manslaughter because
1. Wide-risk analysis: in the course of a robbery, it is
death was not foreseeable (recklessness:
substantial and unjustifiable risk of result (i.e.
foreseeable that someone could die
death)) ii. Sufficient Close Nexus: All that is necessary is the direct casual link
between the robbery and the death
iii. Held strictly liable for all killings committed by him or his
accomplices during the felony regardless of if they are a natural or
probable consequence of the robbery
e) Hones in on Actus Reus
i. Abstract Approach: (Minority)
1. Basics
a. Inherently dangerous felony is one in which the offense carries a high
probability that death will result
i. Ex: arson, manufacturing meth, shooting into an inhabited dwelling
b. If even one element of conduct can be done without danger to human life,
even if (d) committed the element that did involve inherent danger it
CANNOT be felony murder
i. Incredibly limiting
2. People v. Phillips
a. Facts: (v) was 8 and had cancer; told needed eye removed, (d) was
chiropractor and told family he could cure her, charged parents $700 for his
treatment and child died 6-months later
b. Procedure: (d) charged with second-degree murder while committing felony
of grand theft (theft by deception)
c. Issue: Are only felonies that are inherently dangerous to life able to serve as
underlying felonies for the felony-murder rule?
d. Holding: Yes, reversed
e. Rationale:
i. Trial Court wanted to look @ the specifics and the totality of the
conduct to show inherent danger

38
 1. Supreme Court of CA worried this would expand Felony
Murder too much
ii. SC says: Crime must be dangerous in the abstract
iii. Look at the elements of the crime (not the specifics)
iv. Here, this is not an inherently dangerous crime in the abstract  no
malice per se: must go back to see if you can find malice elsewhere
3. People v. Henderson
All methods of the crime must involve violence/threat of violence
a. Facts: (d) held gun to the head of a hostage, hostage ducked, hit gun, fired,
and killed bystander
b. Procedure: (d) convicted of Second-Degree Murder, (d) appealed, reversed
c. Issue: Is false imprisonment an inherently dangerous felony in the abstract?
d. Holding: NO
e. Rationale: All possible elements: violence, menace, fraud, or deceit did not
involve violence or life-endangering contact
i. Because there are not separate imprisonment statutes: one for
violence vs. one for fraud there can be no felony murder based on the
statute
4. People v. Burroughs
a. Facts: (v) diagnosed with terminal leukemia, (d) told him to drink lemonade,
slat water, and herbal tea, eat nothing; (d) bathed him and gave him massages
for additional fee: (v) died within two weeks from hemorrhage caused by the
massages
b. Issue: Can (d) be charged with felony murder?
c. Holding: No
d. Rationale:
i. Phillips decision precluded FM based on grand theft
ii. Prosecutors tried to use felonious unlicensed practice of medicine
(no valid license that creates a risk of great bodily harm, injury, or
death)
iii. Felony murder was reversed: not inherently dangerous “in the
abstract”
ii. Totality of the Circumstances (Majority)
1. Basics
a. Permit a felony (even a nonviolent felony like theft) to qualify if it is
committed in a dangerous way
i. Way in which it is done matters (converges on reckless +)
ii. Totality of the circumstances must show it was inherently dangerous
1. Give context, facts, information, etc.
b. Who decides if the predicate felony is inherently dangerous?
i. Majority: judge
ii. Minority: jury
2. Hines v. State
a. Facts: (d) was out hunting turkey with friends, thought he saw a turkey, shot
and killed friend; (d) was drinking and convicted felon; (d) was not supposed
to use a firearm
b. Procedure: convicted based on underlying crime of possession of a firearm
by a convicted felon: felony murder; (d) was convicted; appealed
c. Issue: Is possession of a firearm by a convicted felon an inherently dangerous
felony which can serve as the underlying felony for a criminal charge of
felony murder
d. Holding: yes
e. Rationale:

39
 i. Ford v. State: (d) was a convicted felon, was unloading gun, gun
misfired, went through floor, hit someone in apartment below
1. Convicted of felony-murder
2. Reversed: no evidence (d0 knew someone was in apt below
and not intentional
ii. BUT HERE: (d) intentionally fired a weapon, had been drinking,
drinking while hunting, and hunting at desk
1. All these factors demonstrate that (d) illegal possession of a
firearm created foreseeable risk of death
f. Dissent: (d) was negligent but that does not establish that his act created a
high probability that a human death would result
i. To punish him the same as an arsonist that firebombs an occupied
building is a gross expansion of FM
3. People v. Stewart
a. Facts: felonious child neglect; crack binge, something happens to the child
b. Holding: predicate felony (child neglect) - can be felony murder if the
child dies from dehydration
1. Predicate felony (mens rea satisfied for that felony)
a. Way in which you commit the felony establishes
whether it is inherently dangerous
i. Converges with recklessness +
2. Result: Someone died
3. Causation
4. Nita Hypo
a. Dr Oz: felonious malpractice and someone dies
i. Abstract: No: felonious practice of medicine does not inherently
cause imminent death
ii. Totality of the circumstances: it depends
f) MPC Approach
i. Gets rid of the Felony-Murder Doctrine but maintains it still in a sense
1. “Murder is an act committed recklessly under circumstances manifesting extreme
indifference to the value of human life”
a. Recklessness presumed if engaged in commission of crime such as robbery
or rape
b. Felony murder can oftentimes still be established under ‘extreme
indifference”
c. But the (d) can rebut the presumption of recklessness and extreme
indifference by showing that he lacked the necessary mental state
g) Various Common Law Statute Regulations
i. Limiting list of eligible felonies
1. Rape, arson, burglary, kidnapping, and robbery
2. Other felonies serve as basis for manslaughter
ii. Grading of felony murder
1. Side range of felonies that trigger the rule, only certain felonies trigger first-degree
murder
2. Other trigger second-degree
iii. Requiring homicidal mens rea
1. (d) must cause the death “recklessly” or “under circumstances manifesting extreme
indifference to the value of human life.”
iv. Permitting Affirmative Defenses
1. NY: allows affirmative defense when a co-felon caused the death but (d) was
unarmed
h) Limiting Doctrines

40
 i. The Merger Doctrine
1. Basics:
a. Precludes felony-murder charges based on felonies that inherently
require personal injury
1
2. People v. Burton
Independent a. Facts: (d) killed a person while committing an armed robbery
Felonious b. Procedure: (d) was charged with felony murder, (d) convicted, (d) appealed
Intent (merger doc citing following two cases)
i. Ireland:
1. Facts: (d) shot and killed his wife, claimed alcohol,
medication, and emotions preclude malice required for
murder
2. Procedure: Court instructed that felony murder based on
assault with a deadly weapon; convicted; (d) appealed
3. Issue: Can felony murder be based on a felony where the
felony is a necessary element of homicide?
4. Holding: NO
5. Rationale: assault with a deadly weapon and felony murder
cannot be bootstrapped together when felony is an integral
part of the homicide
ii. Wilson
1. Facts: (d) intended to assault wife, entered home, went to
bathroom, shot and killed her
2. Procedure: (d) charged with predicate felony of burglary and
Majority of states reject this holding and felony murder; (d) convicted; (d) appealed
convict for burglary even if the sole
objective was to assault victim.
3. Issue: If the intent behind entering the home was to assault
with a deadly weapon, is the merger doctrine activated?
Rationale: assault indoors is more deadly 4. Holding: yes
5. Rationale: Where the intended felony of the burglary is an
assault with a deadly weapon, the likelihood of homicide is
not increased by the place where it takes place
a. i.e. the dwelling that resulted in the charge of
burglary
c. Issue: Do deaths resulting from felonies undertaken for a purpose
independent of homicide support a charge for felony murder?
d. Holding: YES
e. Rationale:
i. (d) line of thinking: armed robbery: larceny + assault which when
accomplished with a deadly weapon is assault with a deadly weapon
SO merger doctrine
ii. Court says NO: this would eliminate the application of FM to all
unlawful killings accomplished by means of a deadly weapon
iii. Ireland/Wilson: purpose of the conduct which resulted in homicide
was the infliction of bodily harm
1. Single course of action
f. Rule: Difference between deaths resulting from assault with deadly weapon
vs. an independent felonious intent

Merger Doctrine NO MERGER

Intent to cause Intent to cause Intent to cause Intent to acquire

bodily harm/death bodily harm/death bodily harm/death money

Ireland Burton
41 Wilson
 3. Ask yourself
a. What is the purpose/intent of the predicate felony?
b. Is there an independent felonious intent?
4. More examples
1 a. People v. Mattison
Independent i. Facts: (d) supplied methyl alcohol to inmate that died; asked for
Felonious merger
Intent ii. Holding: No merger doctrine; upheld second-degree felony-murder
based on furnishing the drug
b. People v. Robertson (OVERRULED)
i. Facts: (d) shot and killed individual he believed was stealing his
1
hubcaps; (d) said he was only trying to scare them off
Independent ii. Issue: Does the merger doctrine apply here?
Felonious iii. Ruling: NO
Intent iv. Rationale: Shooting to scare vs. Shooting to kill (independent
felonious purpose)
v. Dissent: shooting to scare does not have an independent felonious
purpose: to scare is to assault
1. This would be manslaughter at best: (d) would have been
better off claiming he intended to hit the (v): makes no sense
5. Assaultive in Nature
a. People v. Chun (overrules Robertson)
Look at elements: if any are assaultive (even if parts of it are not necessarily assaultive) it
3 merges
Assaultive in i. Facts: (d) shot at three individuals driving in a car thinking they were
Nature a rival gang; family NOT the gang; one was killed, two injured; (d)
claimed he shot at them to scare them, not to kill
1. Would be independent felonious intent BUT overruled
ii. Procedure: convicted based on shooting at an occupied vehicle, (d)
appealed
iii. Issue: In CA, can the crime of shooting at an occupied vehicle serve
as the underlying felony for the purpose of the felony-murder rule?
iv. Holding: NO
v. Rationale:
1. An “assaultive felony” involves a htreat of immediate
violent injury: we must look at the elements of the felony in
the abstract NOT the facts of the case
2. People v. Smith: child abuse includes “both active or/and
passive conduct by direct assault and child endangering by
extreme neglect”
a. Court says: this felony merges at a whole regardless
of if the endangerment was active or passive
3. Rationale: extend protection of merger doctrine to those
potentially less culpable
6. Tests to Determine Merger
a. “Included in fact;” (Minority)
i. Whether the felony is included in fact in the homicide
1. Issues: we cannot use alone or felony-murder would cease to
exist for robbery
b. “Independent felonious purpose” (Majority)
i. Whether the felony is independent of the homicide
1. Assault with deadly weapon: NO

42
 2. Robbery: YES
3. Burglary: It depends
ii. Issue: someone commits burglary to steal tv and someone dies: 1st
degree BUT if someone commits burglary to kill they are not
necessarily guilty of the same
c. “Assaultive in Nature” (CA)
i. Look at the elements of the felony
ii. If any are assaultive in nature, the felony merges even if there is a
way to commit the crime in a non-assaultive manner
ii. The agency theory
1. Previously discussed in causation but is a limitation on the felony murder: analyzing
who was killed and who did the killing
i) Felony Murder Attack

Minority: Abstract

Majority: Totality of the

1. Is there a predicate felony Circumstances
a. No: no felony murder
b. Yes: Minority: Included in Fact
i. Was it inherently dangerous?
1. Yes:
Majority: Independent intent
a. Does it merge?
i. Yes: No felony murder
ii. No
1. Can you prove causation? CA: Assaultive in
Nature
a. Yes: good to go
b. No: no felony murder
Majority:
Proximate +
Agency Theory

D. Voluntary Manslaughter: Murder Mitigated to Manslaughter Minority:

Proximate
a) Common Law: The Concept of Provocation (30 States) Cause
i. General: Heat of Passion
1. How it works
a. (d) must raise a legally adequate provocation for the judge to instruct jury on
manslaughter
b. Negates mens rea so if allowed by judge it is the prosecutor’s job to disprove
2. Rationale
a. Who are we to hold someone to a higher standard than we expect ourselves
to act?
ii. Majority Common Law Approach
1. Legally Adequate Situations
a. When the accused witnesses his or her spouse in the act of adultery
b. When the accused is assaulted or faced with an imminent assault himself
c. When the accused witnesses an assault on a family member or close relative
i. Are one of these categories satisfied
1. Yes  instructions to jury: causation
a. 2 prong test: (1) Honestly and (2) Reasonably
provoked
2. No  No instruction

43
 2. Girouard v. State
Words are not enough unless accompanied by conduct that shows intention/ability to cause bodily harm
a. Facts: (d) and (v) had been married for 2 months; marriage was tense, got in
heated argument, (v) started verbally assaulting him, claiming she reported
him to the JAG, and was going to leave him, he was no good etc, (d) lunged
at her with a kitchen knife and stabbed her 19 times
b. Issue: Were the taunting words uttered by the (v) enough to provoke a
reasonable person to kill?
c. Holding: No
d. Rationale: Court says that words must be accompanied by conduct that
present an intention or an ability to cause bodily harm
i. No conduct on the deceased part
ii. And the jury would be required to take circumstances into account:
(v) was 5’1 and (d) was 6’2
1. If she says “I am going to kill you” – it doesn’t mean much
2. Especially not enough to provoke the (d) to stab her 19 times

Minority: Maher
Majority: Girouard
- Words that disclose facts that are sufficient to result in
- Words are NOT sufficient
provocation if the (d) had seen them him himself
- 3 categories
- Provocation is typically a question of fact that is up to the
1. Adultery
jury to decide (honest and reasonable)
2. Being assaulted or fear of injury
- Cooling time is also a jury decision: did enough time pass
3. Family member being assaulted
that average person would regain reason
- Requires that judge determine legal adequacy before sent to
- Judge may still deny if no reasonable juror could find
the jury to determine (honest and reasonable provocation)
provocation
iii. Minority Common Law Approach
1. Provocation is a reasonableness standard and a question of fact that is up to the jury
to decide (still must be honest and reasonable)
2. Words that disclose facts that could be sufficient to result in provocation if the (d)
had seen them himself
a. Jury must decide if the words/situation was sufficient (use the test described
below in Maher)
3. In super clear cases judge can deny instructions (“no reasonable juror could find
provocation”)
4. Maher v. People
a. Facts: (d) heard that his wife was cheating on him, (d) followed (v) after he
finished having intercourse with his wife to the barber, entered barber,
muttered something inaudible and shot him (nonfatal); charged with an
assault with intent to kill but with provocation it would be only simple
assault
b. Issue: May a criminal charge of murder be reduced to manslaughter if the
intentional killing is committed in the heat of passion produced by a
reasonable provocation before a reasonable time has lapsed for the passion to
cool?
c. Holding: yes
d. Rationale
i. Definitional test: If the act of killing though intentional was
1. Committed under the influence of passion or the heat of
Judge
blood (legally adequate)
2. Produced by adequate or reasonable provocation
3. Before reasonable time has elapsed for the blood to cool
Jury
(reasonable person adequate)
b) Various Approaches
44
 i. Justification versus Excuse
1. How we frame the provocation impacts how we punish
a. Provocation as a partial excuse
i. You did the understandable thing
ii. United States v. Roston: concurrence: provocation should
acknowledge and focus on the degree of passion necessary to reduce
the actor’s self-control
1. Act on impulse: the law ought not put itself above what the
average person would do because the law would lose respect
iii. People v. Beltron: individual is never morally justified but we
understand based on the average shortcomings of people
b. Provocation as justification
i. You did the right thing
ii. The victim is partially to blame so you are only partially wrongful
1. State v. Pittman
a. Facts: (d) paddles grandson, who then gets gun and
shoots grandfather
b. Issue: Is this provocation?
c. Holding: No
d. Rationale: provocation is inapplicable because while
the physical encounter may have provoked the child,
the grandfather was legally entitled to paddle him
i. Justification: legal entitlement = no
provocation because the (v) was innocent
2. Why it matters?
a. D shoots immediately but misses and kills innocent bystander
i. Justification (Majority)
1. Actual victim was not to blame: no instructions
ii. Excuse (Minority)
1. Still give instructions
b. Misdirected Reaction
i. EXCUSE RATIONALE
1. State v. Mauricio
a. Facts: bouncer at a bar kicked out (d) and slammed
him against the wall and down the stairs; (d) waited
for him outside, mistook patron for him, followed
him, and shot him dead
b. Issue: Should he have been given a provocation
instruction?
c. Holding: (NJ Supreme Court): Yes
d. Rationale
i. Partial excuse (Minority): transferred intent
& transferred provocation
ii. Justification (Majority): NOT THE
APPROACH HERE would say the innocent
victim negates provocation
ii. JUSTIFICATION RATIONALE
1. Rex v. Scriva
a. Facts: (d) observed driver knock down and injures
his daughter, (d) brandished knife, went over to
driver, but bystander attempted to restrain him and
father stabbed bystander
b. Issue: Should he be given a provocation instruction
c. Holding: No
45
 d. Rationale:
i. Justification: Provocation defense
unavailable on charges of murdering the
nonprovoking victim
ii. Sexual Infidelity as Adequate Provocation
1. Highly disputed so many interpret the category narrowly
a. NC: you have to discover wife in the act of intercourse
b. MD: only if it was sexual intercourse, not just sexual conduct (Dennis v.
State)
c. Alaska: girlfriend shot unfaithful boyfriend when she caught them engaged
in sexual intercourse but there was no provocation excuse because they were
NOT married (State v. Turner)
iii. Sexual Encounters
1. People v. Nesler
a. Facts: (d) confronts man who sexually abused her son; shoots and kills him
in a burst of anger
b. Issue: Does she have a provocation defense?
c. Holding: Yes
iv. Cooling Time
1. Significant lapse of time between provocation and kill renders provocation
inadequate “as a matter of law”
a. United States v. Bordeaux
Early in day  later that day = enough cooling time
i. Facts: (d) told that (v) raped his mom 20 years ago, (d) mother
confirmed, later that evening (d) and friends severely beat (v), (d)
returned and slashed his throat
ii. Issue: Did the (d) have adequate cooling time?
iii. Holding: yes
iv. Rationale:
1. Provocation is a SUDDEN heat of passion that you could not
control yourself
2. Must be impulsive, instinctive, and instantaneous
3. No instruction here: too much time passed
b. People v. Berry:
i. Facts: (d) waited on the (v) for over 20 hours in her apartment after
he found out that she had cheated on him; (v) finally got home and
(d) strangled her to death
ii. Issue: Was the 20-hour waiting period a time of cooling off?
iii. Holding: No
iv. Rationale:
1. Expert testimony by psychiatrist said that the 20 hours
aggravated more than it cooled off the (d)
v. “Rekindling”
1. Cooling time limitation can sometimes be surmounted by arguing that an event
immediately preceding the homicide rekindled earlier provocation
a. State v. Gounagias
i. Facts: (v) committed forcible sodomy on (d), went and bragged, (d)
was ridiculed for 2 weeks, and he killed (d)
ii. Issue: was the two weeks of teasing sufficient to rekindle the earlier
provocation?
iii. Holding: no
iv. Rationale: this long build up rather than a rekindling of the
immediate and instantaneous passion required for the provocation
instruction
46
 Provocation/Extreme Emotional Disturbance

30
20

Common Law
- Subjective and Objective (Honest AND Reasonable) MPC
- Adequate cause - Subjective and Objective
1. Legally (judge determination) o Subjective: particular (d) acted under the
2. Jury decides was it adequate in these influence of extreme emotional distress
circumstances o Objective: there must be a ‘reasonable
- Words are not enough (majority) explanation’ or excuse for the actor’s disturbance
o Unless they describe a situation that if - Does not need to be from the victim or directed at (d)
witnessed would reasonably provoke - No “cooling off” requirement
(minority) - No limitation on what is adequate
- No time to cool off (Depends on Min/Maj)
c) MPC Extreme Emotional Disturbance Approach (MPC §210.3) 20 States
i. Basics
1. Criminal homicide constitutes manslaughter when a homicide which would otherwise
be murder is committed under the influence of extreme mental or emotional
disturbance for which there is a reasonable explanation or excuse
a. Reasonableness of such explanation or excuse must be determined from the
viewpoint of a person in the actor’s situation under the circumstances as he
believes them to be
i. Lots of states make it totally objective and remove “from the
person’s viewpoint” portion
ii. People v. Casassa
1. Facts: (d) had briefly dated the (v), (d) obsessed with her, broke into apartment with
knife twice, obsessed, last time he brought alcohol as a gift and (v) refused; he cut
her throat and put her body in the bath to make sure she was dead
2. Procedure: (d) charged with second-degree murder, (d) argued EED, judge said test
must be objective, (d) found guilty, appealed
3. Issue: Did the trial court judge err in failing to afford (d) the completely subjective
benefit of the affirmative defense of EED?
4. Holding: No
5. Rationale:
a. Mental illness could be a reasonable explanation
b. A person acted under extreme emotional distress if the person “was exposed
to extremely unusual and overwhelming stress” that would cause a
reasonable person under the same circumstances to lose self-control and be
overcome with intense feelings such as anger or passion.
c. Reasonableness from the view of a person in the actor’s position under the
circumstances as they believe them to be
i. Situation should be viewed considering the (d) past experiences and
emotions
ii. Mental distress over time may suffice
d. Comes down to the jury: what empathy can you show basically
i. Here: (d) asked for a bench trial: so it is empathy of the judge
ii. He deemed the (d) acted out of malevolence rather than out of a
reasonable explanation or excuse for EED
iii. EED 2-part test
1. Acted Under EED
2. Reasonable explanation or excuse for such disturbance
a. “Reasonableness is both subjective, viewing the internal situation in which
the (d) found himself and the circumstances as he perceived them, and
objective, determining whether the explanation for the disturbance was
reasonable
47
 b. Viewing external circumstances as the (d) saw them and use average person
standard to determine whether the circumstances were sufficient to cause the
EED to kill
iv. State v. White
1. Facts: Divorce, (d) won the house but couldn’t pay mortgage, stress mounted, she
drove to (v) work and struck him with her car twice, (v) survived
2. Procedure: Charged with attempted murder, (d) brought up EED defense, appellate
court refused: must be a reaction to a highly provocative trigger event simultaneous
with loss of control.
3. Issue: Is CoA rationale accurate to EED?
4. Holding: NO, reversed
5. Rationale: Supreme Court said EED may simmer in subconscious for a while before
coming to the fore
1st degree
1. Majority: premeditated
a. Majority: can be simultaneous to act
b. Minority: time to reflect
2. Minority: not premeditated Provocation/EED
2nd degree
1. Intentional killings without premeditation Murder

Purpose, Voluntary
Knowledge, Manslaughter Involuntary
Reckless + Manslaughter

Criminally
Reckless Negligent
Homicide

Criminal negligence

Intend the Conduct

Not the result

E. Involuntary Manslaughter
Mens Rea: duty, breach, harm, substantial/unjustifiable risk; if death results:  awareness is imputed
a) Basics
i. Mens Rea Explanation

Criminal/Gross Negligence

Purpose
Recklessness +
Civil Negligence

Knowledge Reckless Strict Liability

b) Involuntary manslaughter
i. Recklessness
ii. Gross negligence
iii. Misdemeanor-Manslaughter
c) Criminal/Gross Negligence
i. Focus is on . . .
1. Magnitude
2. Probability

48
 ii. Statute: the (d) must fail to perceive a substantial and unjustifiable risk that a certain result
will occur, and the risk must be of such a nature that the (d) failure to perceive it constitutes a
gross deviation from a reasonable person’s standard of care
iii. Main issue in these cases: causation

When the probability in the

circumstances is so high, the
substantial and unjustifiable
risk of the result moves
Probability of towards practice certainty
this risk is so (knowledge); you do not
high it is have to prove awareness
reckless because it is such a high
probability that they should
have known

iv. Was there an extraordinary breach of

care?
1. Duty, breach, causation, injury
a. Gross negligence is required for legal negligence
b. Jury must find a breach serious enough to be a crime
c. Must disregard a substantial and unjustifiable risk TO HUMAN LIFE
Welansky 2. Commonwealth v. Welansky
a. Facts: (d) owned nightclub, (d) was in the hospital, over 1000 people in the
nightclub and under normal operations and conditions as when (d) is present;
entrance was single revolving door, 3 emergency exits poorly marked, 2 exits
with panic bars: one blocked other locked; electric lightbulb was out, barboy
went to change it out, match caught fake palm tree on fire; place in flames;
500 people died
b. Procedure: (d) was charged with counts of involuntary manslaughter, (d) was
convicted, Prosecution said killings unintentional but reckless and wanton
conduct, (D) appeal
c. Issue: In order to prove involuntary manslaughter through wanton or reckless
conduct, does the jury assume the test is subjective?
d. Holding: no
e. Rationale
i. Duty: employees have a duty of care to their customers
ii. Actus Reus:
1. Here: omission
a. Employees: have a duty of care to their customers so
we can make a case without an affirmative act
b. Breach: Failure to take care: i.e. ensure that the exits
were lit, unlocked, and accessible
iii. Mens Rea:
1. Reckless or negligent
iv. Causation
1. But-For: Satisfied
a. Regular but-for
b. Loss of chance
2. Proximate cause: (Wide risk analysis)
a. Was the result foreseeable? No
b. But is it foreseeable that without exits people would
die? YES
d) Criminal Negligence: The Reasonable Person
i. Issue: average person under these circumstances
1. What characteristics do we give to the average person
49
 2. State v. Williams
a. Facts: (d) are a married couple  wife (d) is the mother and husband (d) is
Williams
the step-dad, both Indian with 11th and 6th grade educations; (d) were aware
child was sick for 2 weeks but did not take the child to do the doctor; autopsy
showed that child had infection and smell had been there for 10 days,
autopsy said if medical care had been obtained for the first time on the
second week the baby was ill, the child would have died anyway; parent
motive for not going to the doctor: fear of CPS
b. Issue:
i. 1: Is negligence enough to charge for involuntary manslaughter?
ii. 2: Was the negligence (failure to get medical care) of the parents the
proximate cause of the death?
c. Holding: Yes
d. Rationale
i. Issue 1: this is the view of a small minority of states and is no longer
the WA standard: must be criminal negligence
1. Must ask: when an ordinary reasonable person would deem
it necessary to call the physician
a. We are not looking at this through the lens of the
education level, intelligence, or culture of the (d)
b. Sometimes we take into account context: such as
physical attributes but that is not the case here
2. Nowadays: the magnitude and probability would likely not
be enough for this same result
ii. Issue 2: proximate cause
1. When was the duty to furnish medical care activated?
2. Evidence that child would have died after the first week of
no medical attention is important
a. But within the first five day: cheek was swelling,
baby fussy, cheek bluish color, throwing up and they
fialed to take child to the doctor
b. Visible symptoms: notice that child needed medical
care and reasonable person would have done so
e) Objective vs. Subjective Standard
i. Pro Objective
1. Holmes: ordinary reasonable person
a. Public safety benefits
ii. Hesitations
1. Samuel Pillsbury: culpability should be what leads us
a. Choices give individual’s conduct a distinct meaning
i. What did (d) choose to care about vs. to perceive
iii. Criticism
1. Punishing for negligent mistakes does not deter
a. No moral culpability
iv. MPC
1. “the care that would be exercised by a reasonable person in the actor’s situation as he
believes them to be”
a. Circumstances: heart attack, blindness, suffering a blow to the head
b. BUT heredity, intelligence, and temperament are NOT considered
v. Common Law: Case Law
1. State v. Everhart
a. (d) had an IQ of 72, young girl, gave birth, thought baby was dead, wrapped
baby up, smothered her to death

50
 b. Holding: NO involuntary manslaughter: did not rise up to the level of
culpable negligence
2. State v. Patterson
a. (d) withheld water from child for 4 days because wetting the bed, (d) had IQ
of 61 (bottom 1% of population); child died
b. Holding: CONVICTED of criminally negligent homicide
3. Walker v. Superior Court
a. (d) kid fell ill with flu-like symptoms and stiff neck; prayed over child rather
than medical treatment; child died after 17 days
b. Holding: CONVICTED of criminally negligent homicide
c. Rationale:
i. First amendment does not offer protection for manslaughter
ii. Life threatening condition: parent is not allowed to impose your
religious choices on your child
d. Nita Consideration: issue of vaccination
i. Preventing disease is different from not treating a life-threatening
illness
1. But Polio: life limiting and threatening: when will failure to
vaccinate become criminal negligence

Attempt

51
 MPC: Legality: convict them of what they think they are committing
 Convict them for the thing they are committing but if it is no crime at all then I have nothing to
convict you of
Most places: no; legality problem: not illegal on the day you are doing it

Felony-Murder
 Furtherance of: causal relationship between the felony and the result and the relationship between
the parties who did the shooting
 Proximate cause versus the agency analysis

Self-defense (Universal Standard)

 Reasonable person standard takes into account the circumstances when it is relevant (wire fraud
together do we take into account jeff’s height)
 But if we are taking into account provocation or
 Expertise is only relevant if the (d) holds some sort of expertise
 About objective facts the jury needs to understand the case
 Religious circumstances: don’t take into account
 IQ: Majority of the time: no heightened or diminished IQ for a reasonable person standard
 On occasion: what did they understand about what is happening around them?
 Death penalty: does take into account (below 70)

Emotional disturbance
 Trying to figure out if a person with that emotion disturbance would behave the way that person
behaved
o Objective analysis: would a person under those circumstances behave that way
Renunciation and abandonment are the same thing
o Only able to be a defense in the places in which renunciation is not recognized

Acknowledgement versus Tacit agreement

 Acknowledgement is parallel action
 Hardest part is figuring out if people have agreed
Overt act
 MPC/Majority: overt act
 Small Minority (OH/Maine): substantial step
Attempt
 No impossibility defense, you do not need the causation

A+B
1. Theft
a) Conspiracy to steal
2. Felony murder
a) Accomplice liability
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 3. Conspiracy
C+D
1. Conspiracy with A + B
a) Pinkerton
i. Theft
ii. Felony Murder
iii. Conspiracy
2. Conspiracy with Each other
3. Conspiracy to kill F
4. Murder of F
a) Guthrie v. Carroll

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