CRIMINAL LAW OUTLINE

I. Law requires some basic elements to be present in all crimes:

a. Actus Reus (Action)
b. Mens Rea (Mental)
c. Causation linking action with social harm
d. Concurrence btw Actus Reus and Mens Rea

II. Actus Reus – culpable conduct (criminal act) – physical/external

a. Acting on one’s own v. acting under state compulsion: situation offenses
i. People v. Martin – (drunk man, public highway) – police took drunken man from home
to public location. When he became belligerent, they arrested him for public
drunkenness. Conviction was overturned bc, his appearance in public (a requirement of
the offense) was not voluntary
b. Acting voluntarily v. acting involuntarily: the unconscious defense
i. State v. Decina (seizure while driving, voluntary actus reus req. met)
1. ∆ voluntarily got into the car and drove. Actus reus is driving, not the actual
hitting of the kids while having a seizure. His mens rea here is negligence.
ii. MPC § 2.01 Requirement of Voluntary Act
1. Not guilty unless offense is a voluntary act or omission to perform an act
a. Following non voluntary acts:
i. Reflex or convulsion
ii. Bodily movement during unconsciousness or sleep
iii. During hypnosis or from hypnotic suggestion
iv. Habitual does not mean involuntary, law treats habitual acts like
voluntary acts
c. Acting versus failing to act: liability for omissions
i. ∆ must be physically capable of doing the omitted act. ∆ must have been aware of the
facts creating the need to act
ii. 5 situations in which individuals have a legal duty to act
1. Special relationship: husband/wife, parents/children, masters/servant
2. ∆ enters into special contract to act in a particular way (care for elderly)
3. Statutory duty to act (omit to file tax return)
4. ∆ creates the risk of harm to the victim
a. ∆ voluntarily assumes care of a person in need of help
i. in order to be held guilty for omission to act, ∆ must have been
physically capable of acting. ∆ must also know the facts that
would give rise to action (must know kid is drowning a few feet
away)
d. Establishing the duty to act
i. People v. Beardsley (mistress overdoses dies; no legal duty here)
1. ∆ has a hooker over when wife is away, hooker overdoses and dies. ∆ convicted
of manslaughter, reversed. Duty neglected must be a legal duty not a moral
obligation
e. CA Domestic Partnership Statute: registered domestic partners same rights, protections, and
subject to same responsibilities and duties under the law. With respect to child of either of them,
same responsibility
i. HYPO: Mary and Sue CA domestic partners. Co Parents to Mary’s biological child.
Sue hasn’t adopted kid. Mary beats kid and kid dies. Sue can be held liable because of
statutory legal duty. Her omission to act proximately caused kids death.
ii. Commonwealth v. Howard: (BF beats kid dead, mom jail, legal duty)
1. ∆’s BF beat ∆’s daughter, child dies. Legal duty btw parent/child. Mom
convicted. Childs death was direct result of mom’s omission to act
iii. Commonwealth v. Pestinikas (Contract to care)
1. ∆ contracted to care for elderly man. Legal duty was created and their failure to
act, or omission was the direct cause of his death
III. Mens Rea Development
a. Regina v. Cunningham (Gas meter, no MR, not reckless endangerment)
i. ∆ stole money from the gas meter but unbeknownst to him the pipe broke and was
leaking toxic gas that almost poisoned someone next door. He was convicted of burglary
and attempted murder. Burglary was upheld, but cant be convicted of attempted murder,
mens rea was not there
1. Mens rea means that the ∆ intended, expected, or should have expected that his
actions would produce a particular consequence. The question to as is whether ∆
foresaw that the removal of the gas meter might cause injury to someone but
nevertheless removed it
ii. Court here used malice incorrectly. Defined it as wicked, where malice is more like
with foresight of consequences
b. Mens Rea – a criminal mind, more commonly the mental state required to find ∆ guilty of a
crime
i. Mental state required for proof of crime – AR and MR must concur
ii. Establishes culpability

IV. MPC Culpability Requirements

a. Purpose – hardest to prove. Goal is to achieve the result. Conscious desire to engage in the
conduct or achieve the result of crime (subjective, insurance fraud)
b. Knowledge – know that an element exist, or knowing that a result is almost certain to occur.
Sufficient for most crimes like murder (subjective)
c. Recklessness – conduct created a severe risk that an element of a crime would occur. Know of
the risk and proceeded anyway (subjective)
d. Negligence – created a severe risk that an element of a crime would occur, should have been
aware. (objective reasonable person standard, kid left in car hot day)
i. Intent
1. Under common law, intent is like the “purpose” or “knowledge” categorization
of MPC culpability or Mens Rea
a. State v. Fugate (Robs 66 yr old, beats him then shoots him)
i. ∆ robbed a storeowner. Beat him with the barrel of the shotgun
then took him to the basement and shot and killed him.
Convicted of 1st degree murder and armed robbery. Appeals the
1st degree murder conviction on grounds that he didn’t act
purposely when he killed victim. Claims he had no intent to kill.
Evidence however proved intent was there. Intent may be
deduced from surrounding circumstances (natural and
probable consequences doctrine)
ii. Knowledge
1. Under common law a person knows of a fact if he either is aware of that fact or
correctly believes the fact exists
a. United States v. Jewell (weed across border, knowledge)
i. ∆ drives a car across the border but there’s a lot of weed in it.
The weed is in a secret compartment of the car, which he knows
exists but chooses not to look to see if there is anything in it. He
suspects there is something illegal in there but chooses not to
look. Willful blindness is equivalent to knowledge here.
Usually act with willful blindness to deny knowledge, but
doesn’t work. Positive knowledge is not required to prove the
knowledge aspect of mens rea

iii. Specific intent v. general intent

1. Specific -- ∆ had specific future act or result in mind when committing actus reus
(ex. Premeditated murder, burglary, robbery, larceny, false pretenses, embezz)
 2. General -- ∆ no had no specific future act or result contemplated at the time of
actus reus (ex. Drunk driving, possession crimes)
a. People v. Atkins (Voluntarily drunk, arson, general intent)
i. ∆ got drunk and started a fire, which burned a lot of property.
Convicted of arson. He appeals saying that arson is a specific
intent crime and that voluntary intoxication is a defense for
specific intent crimes. That if intoxicated you lack the requisite
mens rea for a specific intent crime, so the mens rea element
should be neglected. However, CA considers arson a general
intent crime. Voluntary intoxication is inadmissible to
negate the existence of general intent
iv. Strict Liability – no mens rea needed
1. Runs contrary to fundamental criminal law principle that we punish according to
culpability
a. Garnett v. State (statutory rape, strict liability)
i. Mentally retarded guy, socially and mentally like 12 year old but
really 20. Convicted of statutory rape. Girl was 13 lied and said
she was 16 her friends lied too. Conviction upheld bc its strict
liability. Actus reus was the vaginal intercourse and MR not
needed. Since it’s a strict liability crime, cannot make a defense
argument, no allowance for mistake of age defense
THEFT CRIMES
I. Larceny
a. Definition: Trespassory taking and carrying away the property of another with the intent to
permanently deprive (common law)
i. Every person who shall feloniously steal, take, carry, lead, or drive away the personal
property of another is guilty of theft (CA)
1. Conduct crime, not result crime
a. Prohibits the conduct of taking and carrying away the personal property
of another
b. Offense complete when act occurs
2. Specific intent crime
a. Intent to permanently deprive
b. Or there has to be a substantial risk of loss
ii. People v. Brown (Larceny & Burglary bicycle)
1. ∆ took V’s bicycle from V’s home to get back at V. ∆ testifies that he had
intended to take the bicycle for a ride and bring it back to V Sunday night. Court
ruled that if ∆ did not intend to permanently deprive V, there is no felonious
intent, does not constitute larceny
b. Taking
i. The taking sometimes called “caption” requires the assertion of dominion and control
over the property by a defendant who does not have legal possession
c. Carrying Away
i. The carrying away “asportation” is complete upon even the slightest movement (6 inches
will suffice)
ii. MPC doesn’t require proving asportation requirement
1. §233.2(1)—proving that theft occurs if a person “unlawfully takes” another’s
property
d. Property
i. Common law: larceny was limited to tangible personal property
ii. Modern statutes have expanded the kinds of property to include theft of services and
other intangibles
iii. Abandoned property is not subject to larceny, although lost or mislaid property is
1. Lost or mislaid property: in order to be guilty for lost or mislaid property, there
are 2 requirements; the finder:
a. Must intend to steal it
 b. Either knows who the owner is or has reason to believe that the or she
can find out the owner’s identity
e. Custody v. Possession
i. Larceny is a crime against possession when committed by one who has mere custody
1. Employees are said to have custody over their employer’s property; however, the
employee has possession where
a. A third party gives property directly to employee for benefit of its
employer
b. The employee is in a high level position
f. Continuing Trespass
i. Occurs when D takes an item with no intention of keeping it, and then decides to
permanently deprive by keeping it for itself, at later point
1. Legal fiction that gets around the fact that intent has to occur at the time of taking
a. Says that initial trespass continues as long as wrongdoer remains in
possession of the property that is the subject of the prosecution
II. Larceny by Trick
a. When a person obtains custody of a thing through deceit, and takes custody with the specific
intent to permanently deprive the owner of it, thereby violating the owner’s constructive
possession, committing a trespassory taking (mere custody)
i. Custody v. possession
1. Constructive possession exists in three situations
a. When a principal or employer delivers property to an agent or employee
to use, keep, make a delivery for the principal
b. When the owner of property loses it or misplaces it and someone else
find it
c. When a property owner delivers the property to another person as part of
a transaction to be completed in the owner’s presence
III. Embezzlement
a. Generally defined as
i. The intentional conversion
ii. The property of another
iii. By someone who is already in lawful possession of it
IV. False Pretenses (Mills, ∆ gets title)
V. Robbery
a. Definition
i. Common law felony consisting of all the elements of larceny, plus 2 additional elements
1. The taking must be from the person or presence of victim
2. The taking must be accomplished by force, intimidation, threat or violence
b. Person or presence requirement
i. Taking must be from the person or the victim in his “presence”, meaning an area within
his control
1. Crocker v. State: ∆ took $500 from the clothing of V while clothes were on the
bed, charged with crime of robbery. Apparent that it did not satisfy the
“immediate person or presence” requirement of the robbery statute. Supreme
court reversed the decision
2. Miller v. Superior Court: V was at the pool changing in the bathroom, left his
pants hanging in the stall. When he went back to look for them, pants were gone.
He confronted the ∆ in order to get his belongings back. Court held that
immediate presence requirement was satisfied when ∆ is confronted by V as he is
attempting to carry the property to a place of temporary safety and uses forcible
resistance
c. Threat of violence
i. The threat of violence must place the victim in actual fear at the time of the taking
1. Fear and intimidation based on lies qualify as threats for robbery
ii. Larceny, assault and battery are all a lesser included offence to robbery
iii. Aggravated robbery, armed robbery carries a higher punishment than simple robbery
 iv. Merger
1. Larceny as well as assault and battery merge into robbery
2. As a result, a D cant be guilty of larceny and robbery for the same criminal
transaction
VI. Burglary
a. Definition
i. Trespassory breaking and entering the dwelling of another at night with the intent to
commit a felony therein (common law)
1. Trespassory breaking into [structures] with the intent to commit grand or petit
larceny, or any felony therein (CA)
a. No breaking requirement
b. Trespassory
i. Unlawful, without right, license or privilege
ii. Or beyond the scope of authority in time and place
iii. Store exception – just need intent to commit grand or petit larceny, or any felony, since
entry is open to public, infer trespassory element
iv. Iowa v. Peck: (Trespassory element, restraining order on husband)
1. Wife took out a restraining order against her husband. On the day she was
moving out of the house, ∆ went to the house, kicked in the door, and assaulted
wife’s nephew. Charged with burglary. Court held trespassory requirement was
met bc the restraining order prohibited the ∆ from being around the wife, that
would necessarily include the home (even though he may at one point have had
greater right of possession
c. Breaking/entering
i. Actual breaking
1. Needs some movement of structural impediment (goes through open window not
breaking)
2. Full body enters
3. Portion of body enters
4. Entry though instrumentality – instrument has to be used to commit target
offense
ii. Creasy v. State: (Insufficient evidence breaking, intent to commit crime)
1. ∆ was arrested in the basement of a sorority house with several items he had
taken from inside the house. ∆ claimed that the doors were open (no breaking)
and that court couldn’t prove he had intent to commit a crime therein. Court held
that there was sufficient evidence inferred from circumstantial evidence of the
nature of the felony
iii. People v. Tragni: (Insufficient evidence entering, jewelry store)
1. Instrumentality defense, court sided with ∆  intent to enter
d. Constructive breaking
1. Where entry is gained by fraud, misrepresentation of identity, or intimidation
e. Intent to commit a felony therein
i. Specific intent crime
1. Where a crime requires specific intent, means that ∆ in addition to desiring to
bring about the actus reus, must have desired to do something further
2. Desire to cause the consequences of the crime
3. Intent has to be formed in actor’s mind before or at the same time as the
breaking/entering
4. Double mens rea – intent to commit felony and intent of the felony
ii. People v. Tackett (attempted rape, burglary with intent to rape)
1. ∆ urges that no such intent was shown bc it was not established that at the time
he entered the dwelling he intended to have intercourse with V. Court held there
was enough evidence, he entered through the back door, immediately took
husband’s coat (saw her laying on the couch)
VII. Consolidated Theft (Commonwealth v. Mills)
HOMICIDE
I. 2 Main Categories
a. Murder  unlawful killing of a human being by another human being with malice aforethought
i. CA Homicide Statutes: Murder is the unlawful killing of a human being, or a fetus, with
malice aforethought
ii. Malice may be
1. Express: Intent to kill
a. Manifested a deliberate intention unlawfully to take away the life of a
fellow creature
2. Implied:
a. No considerable provocation appears
i. Intent to inflict grievous bodily injury: purpose to inflict such
injury, or knowledge that such injury would almost certainly
result
ii. Extreme recklessness: ∆ is aware of grave risk and ∆’s acts
showed an abandoned & malignant heart/depraved heart [MPC –
extreme indifference to human life
iii. Killing committed during a felony – Felony Murder Rule
iii. Intent to Kill  Deadly Weapons Rule
1. An inference of intent to kill is raised through the intentional use of any
instrument which, judging from its manner of use, calculated to produce death or
serious bodily injury
b. Manslaughter  unlawful killing of a human being by another human being without malice
aforethought
II. Intentional Killings
a. 1st Degree Murder (Common Law)
i. Premeditation  killer must have reflected upon and thought about the killing in advance
ii. Deliberation  quality of the accused’s thought processes
1. Undertaken with a cool head
iii. Murder accomplished by lying in wait, poison, or torture
iv. State v. Bingham: (∆ strangled retarded adult left her in a field)
1. ∆ and V did not know each other, got off the bus together. V was found
strangled and raped in a field 3 days later. ∆ was charged with aggravated 1 st
degree murder, conviction reversed. Court held that having the opportunity to
deliberate is not evidence the ∆ did deliberate which is necessary for a finding of
premeditation. Holding a hand over someone’s mouth or windpipe does not
necessarily reflect a decision to kill the person, but possibly only to quiet her or
him
b. 2nd Degree Murder
i. All other murder w/ malice but without premeditation and deliberation
ii. Malice can be shown 4 ways
1. Intent to kill
2. Intent to cause serious bodily harm
3. Wanton and reckless conduct
4. Intent to commit an inherently dangerous felony such as
a. Robbery, arson, burglary, rape, kidnapping, mayhem, carjacking
iii. High probability of death (objective)
iv. Subjective appreciation of high probability of death (subjective)
c. Voluntary Manslaughter
i. An intentional killing, that would normally qualify as 2nd Degree Murder but is mitigated
by adequate provocation or other circumstances negating malice aforethought
1. Known as Heat of Passion (Common Law & CA)
a. Provocation legally adequate
b. No cooling off period
c. Causal connection
ii. Adequate Provocation
 1. Categorical Approach (Common Law)  could only be claimed if someone
killed in response to
a. Aggravated assault or battery
b. Observation of as serious crime against close relative
c. An illegal arrest
d. Mutual combat
e. Catching one’s wife in the act of adultery
f. “Mere words”  not enough to constitute legally adequate provocation
i. People v. Ambro: (exception to mere words rule)
1. ∆ and wife were arguing (several incidents of marital
difficulties), wife attacked husbands masculinity, told
him she was cheating, and said “kill me”, husband
stabbed wife in the heart
2. Modern “Reasonable Person” Approach
a. ∆ acted in a heat of passion
b. Reasonable person would have also acted in heat of passion
c. ∆ did not have sufficient time to cool off btw provocation and killing
d. Reasonable person would not have had sufficient time to cool
e. Causal connection  provocation is what actually provoked the killing
(V is the provoker or someone acting in concert)
i. People v. Berry: (Israeli woman, killed by husband)
1. ∆ testifies about a 2 week period of provocatory conduct
by his wife that could arose the same reaction in an
ordinary man of average disposition, the court agreed
III. Unintentional Killings
a. Depraved Heart Murder
i. Definition: an unintentional killing resulting from conduct involving a wanton
indifference to human life and a conscious disregard of unreasonable risk of death or
serious bodily injury, absent any defense negating defendant’s awareness of the risk
ii. Unlike involuntary manslaughter, this involves extremely negligent conduct or
recklessness
1. Higher degree than gross or criminal negligence
2. Punishable by 2nd degree murder
a. Commonwealth v. Malone: (Russian Roulette, 2nd degree)
i. ∆ and V played Russian Roulette, ∆ pulled trigger 3 times, third
pull was fatal. Malice will be implied in a homicide case if it
can be shown that the ∆ acted with gross recklessness and an
extreme indifference to human life
ii. ∆ recognized that his actions created a substantial and
unjustified risk of death and yet went ahead an committed the
actions anyway
b. People v. Knoller: (Fatal dog attack, 2nd degree)
i. ∆ owned dogs that eventually attacked V savagely killing her.
There had been several incidents with the dogs and the ∆ knew
they were vicious. ∆ found guilty of 2nd degree murder and the
Supreme Court reversed the decision
ii. Issue: Definition of “implied malice”
1. Implied malice: no considerable provocation appears,
or when the circumstances attending the killing show an
abandoned and malignant heart. Requires ∆’s awareness
of the risk of death to another
2. Thomas Test: “the ∆ for a base, antisocial motive and
with wanton disregard for human life, does an act that
involves a high degree of probability that it will result in
death”
 3. Phillips Test: “killing is proximately caused by an act,
the natural consequences of which are dangerous to life,
which act was deliberately performed by a person who
knows that his conduct endangers the life of another and
who acts with conscious disregard for life”
b. Involuntary Manslaughter [MPC equivalents are manslaughter & criminally negligent
homicide]
i. Definition: an unintentional killing resulting without malice aforethought caused either
by criminal negligence or during the commission or attempted commission of an
unlawful act
ii. Mens rea based: required mens rea – depends on the applicable statute in the jurisdiction
where the case arises; may be any one of the following:
1. Criminal Negligence  ∆’s conduct creates a high degree of risk of death or
serious injury beyond the tort standard of ordinary negligence
a. Criminal or Gross Negligence
i. ∆ should have been aware of the risk AND
ii. The risk is a grave one AND
iii. There is no justification for the risk
iv. ∆ should have known of a substantial and unjustifiable risk of
death or grievous bodily injury
b. Ordinary Negligence  ∆ should have been aware of the grave risk
i. Misdemeanor manslaughter (MPC rejects this)
c. Ordinary Recklessness  actual awareness of grave risk (manslaughter
under MPC)
i. Commonwealth v. Welansky: (Nightclub fire accident)
1. Nightclub owner charged with manslaughter after a fire
in the nightclub killed over 400 ppl. Normally, wanton
or reckless conduct consists of an affirmative act in
disregard of probable harmful consequences to another.
Where a duty exists and it is recklessly disregarded, the
omission can serve as the reckless conduct
ii. State v. Williams: (Baby infected tooth, no medical attention)
1. Young child had a tooth infection an the ∆s failed to
provide medical attention to the child, within two weeks,
the child died. Guilty of manslaughter.
a. Rule: conduct should be tested from a
reasonable man standard
b. The ∆s had many warning signs. Baby showed
physical symptoms which communicated his
disease and failed to take reasonable steps by
taking the baby to the doctor
c. Felony Murder
i. Definition: an unintentional killing proximately caused during the commission or
attempted commission of a felony
1. A person who kills during the commission or attempted commission of a felony
has committed second degree murder
a. Enumerated Felony: felony specified in the first degree murder statute
i. Rape, robber, arson, burglary, kidnapping, etc.
ii. Often described as a strict liability crime because under the felony murder rule a person
may be convicted of murder even if she had no intent to kill and was not reckless or
negligent with respect to the risk of death
1. People v. Stamp (bank manager heart attack, while being robbed)
a. ∆s entered a bank with the intention of robbing it. In the midst they
demanded the manager lie on the ground. 15-20 minutes after the
robbery had occurred, manager suffered from a fatal heart attack. The
fright induced by the robbery was the catalyst (malice = nature of crime)
iii. Purpose: to deter felons from killing negligently or accidentally by holding them strictly
responsible for killings they commit during a felony
iv. Limitations of Felony Murder
1. The Inherently Dangerous Felony  by its very nature, cannot be committed
without creating a substantial risk that someone will be killed (an offense
carrying a high probability that death will result)
a. Majority Rule  Inherently dangerous in the abstract, do not look at the
facts of a particular case, look at the statutory language
b. Minority Rule  look into the facts of the case
i. People v. James (meth cooking mama)
1. Mother was manufacturing meth in her trailer (kitchen)
when there was an explosion that killed 3 of her
children. ∆was found guilty of 3 counts of second-
degree murder amongst other charges. Court held that
manufacturing meth is an inherently dangerous felony
ii. Hines v. State (Guy shoots friend in the head while hunting)
2. The “Res Gestae” Requirement
a. Felony and homicide must be close in time and distance
i. Felony murder liability continues until the felon reaches a place
of temporary safety
ii. People v. Bodely: (supermarket burglary, employee hits head,
dies)
1. ∆ burglarized a supermarket. Employee ran after him to
stop him, ∆ hit employee with his car. Employee struck
the back of his head on the pavement, and the impact
resulted in his death. Court held that the perpetration of
a robbery continues, for felony murder liability
purposes, so long as the robbers are in flight from the
scene and have not reached a place of temporary safety
b. Felony must causally be connected to the homicide
i. But-for causal connection
ii. King v. Commonwealth: (trafficking marijuana, airplane crash)
1. ∆s, felons, trafficking over 500 lbs of marijuana via
airplane. Co-pilot was navigating the airplane through
cloud over and fog, when they became lost. The plane
crashed into a mountain killing co-pilot. Surviving ∆
was charged with felony murder. Court found that there
was no causal connection between the felony and the
killing by the plane (bc of the bad weather, the plane
may have crashed regardless). If ∆ was flying the plane
to avoid radar detection, then the rule could have applied
3. The Merger Doctrine
a. The felony has to be independent of the homicide
b. The felony cant have an intent to kill or an intent to commit great bodily
harm
i. People v. Smith: (child abuse, mom and boyfriend)
1. ∆ tried to discipline her daughter by physically beating
her. In the process, the daughter was pushed and her
head hit the closet, which resulted in her death. ∆ was
convicted of second-degree murder (via felony murder
rule, felony child abuse). Court ruled that ∆ had the
intent from the beginning to commit assault and this
assault was the direct cause of the death (and therefore
will not be deterred by the felony murder rule)
 4. The Agency Rule
a. Felony murder does not extend to a killing by one other than the
defendant or those associated with him in the act of the felony
i. People v. Washington: (gas station robbery, attendant wins)
1. Gas station attended shoots a robber, kills him. Then
shoots second robber and wounds him. Surviving ∆ was
convicted of first-degree felony murder (in the
commission of a robbery). Court held that the purpose
of felony murder would not be served by punishing ∆ for
killings committed by their victims
b. Proximate Cause Approach  killing must be reasonably foreseeable
d. Misdemeanor Manslaughter
i. Definition: An unintentional killing that occurs during the commission of or attempted
commission of a misdemeanor (an unlawful act not amounting to felony) constitutes
involuntary manslaughter
1. Todd v. State: (church theft, V lost control of car, hit tree, died of cardiac arrest)
a. ∆ stole money from church collection plate and ran. V took off after him
in his car, had a heart attack, crashed and died. The heart condition was
preexisting. ∆ charged with manslaughter alleging that he caused the
death by committing the misdemeanor petty theft. Court held that there
was insufficient causal relation btw the misdemeanor and the death. The
cause must be a direct cause and a foreseeable cause of the death. In this
case, it cannot be said that the petty theft was a foreseeable risk of
physical harm
IV. Death Penalty
SEXUAL OFFENSES
I. Forcible Rape
a. Definition (common law): the act of unlawful sexual intercourse by a male person with a female
person without her consent
i. Carnal knowledge of a woman, not the perpetrator’s wife, forcible and against her will
1. Married persons exempted at common law
2. Threats, intercourse accomplished by threats may also constitute rape
3. Consent – if the victim is incapable of consenting, the intercourse is rape
a. Inability to consent may be caused by the effect of drugs or intoxicating
substances or by unconsciousness
4. General intent crime
ii. Fundamental Question – whether the ∆ used force or threat of force to accomplish the
sexual intercourse
1. Rusk v. State – (keys from ignition case)
a. Facts – 2 ppl met at a bar, female drove male home, and he took the keys
out of the ignition and asked her to come upstairs. Woman claims she
begged male to let her go
b. Holding – there is insufficient evidence of force or threat of force to
support a rape conviction
iii. Consent Requirement – generally requires proof that the sexual intercourse was without
the consent of the victim
1. What constitutes consent
a. In Re John Z – (rape, broken arm house party)
i. Facts – 2 teens went to a house party (they were dating) went
upstairs and male started fondling female, she let him. Told him
she did not want to have sex. 2nd male comes in (his arm is
broken) gets on top of girl and she likes it at first then tells him
to stop (holding -- ??????)
2. Mistake defense – most jurisdictions recognize a mistake defense, but require
that the ∆’s mistake as to the victim’s consent MUST be HONEST AND
REASONABLE in order to constitute a complete defense
 b. Statutory Rape
i. Definition – where a female is under the statutorily prescribed age of consent (usually
16, 18 in CA), an act of intercourse constitutes rape despite her consent
1. A ∆’s mistake as to the age of the victim is generally not a defense to statutory
rape
a. Strict liability crime
ATTEMPTS
I. Elements of the Crime

a. Actus Reus Requirement

i. Specific intent to bring about a criminal result
ii. Significant overt act in furtherance of that intent
b. Merger –
i. Common Law – once the target crime is committed, the attempt mergers into the target
crime
ii. MPC – does not merge (can be indicted for both attempt and object crime)
c. Specific Intent Crime – the specific intent for attempt can apply to both specific and general
intent crimes, as well as strict liability crimes
i. Although rape is a general intent crime, attempt to commit rape is a specific intent
d. Overt Act Requirement – must render the ∆ significantly close enough to actual perpetration
that he unequivocally intends to commit the crime
i. Common law -- ∆ required to have performed the last at necessary to achieve the
intended result
ii. MPC – acts prior to the last act are often sufficient as long as the act is a substantial step
toward commission of the target offense
1. Focuses on what the ∆ has done, rather than on what remains to be done, and
whether the ∆’s acts or omissions are strongly corroborative of his criminal
purpose
2. Mere preparation is not enough for attempt
3. Examples of substantial step – lying in wait, obtaining materials, reconnoitering
iii. People v. Rizzo – (4 ppl decided to rob payroll, but guy never showed up)
1. Facts -- ∆s started out in a car looking for the man carrying the payroll, and
police followed them. Later they were arrested as they ran into the bank
building. The individual they wanted to rob was never around
2. Holding – court found that you cannot be convicted of attempted robbery when
the intended victim is missing
iv. People v. Staples – (living over the bank case)
v. People v. Latraverse – (undercover officer that was dissuaded from testifying)
1. Remanded to see if ∆ can prove the abandonment defense
e. Mens Rea Requirement
i. A criminal attempt involves two “intents”
1. ∆ must intentionally commit the acts that constitute the actus reus of an attempt
2. ∆ must perform these acts within the specific intention of committing the target
crime
a. People v. Harris – (∆ got out of car pointed gun at GF (v))
i. Remanded bc the jury instruction for attempted murder was
incorrect (added serious bodily harm to murder statute)
f. Defenses
i. Abandonment – once a criminal attempt has commenced, may the actor avoid
conviction for the attempt if she abandons her criminal conduct before consummation of
the target offense
1. Common Law – NO abandonment defense
2. MPC – there IS an abandonment defense, must occur
a. Voluntary – genuine change of heart, not motivated by unexpected
resistance
 b. Not complete if merely postpones the criminal endeavor until a better
opportunity presents itself
ii. Impossibility – outcome is predestined to fail  impossible for the actor to succeed in
consummating the offense
1. Factual Impossibility
a. Fails bc of attendant circumstances unknown to her or beyond her
control
i. Pickpocket putting her hand in the victim’s empty pocket
ii. An assailant shooting into an empty bed where the intended
victim customarily sleeps
2. Legal Impossibility --
a. Common Law
i. Factual Impossibility is NOT a defense
ii. Legal Impossibility IS a defense
b. MPC – take the circumstances as the ∆ believes them to be
c. United States v. Thomas – (???)
II. Accomplice Liability
a. One who intentionally assists another in the commission of a crime can be convicted of that
offense as an accomplice
b. An accomplice must intentionally assist the principal in the first degree in committing a crime,
mere presence generally is not sufficient for accomplice liability
i. Principal in the first degree – person who actually committed the acts constituting the
offense or used an innocent instrumentality to commit the crime
1. Innocent instrumentality could be either a non-culpable person, or non-human
agent
ii. Principal in the second degree – person who intentionally assisted the commission of
the crime in the presence of the principal in the first degree
1. Actual or constructive presence
iii. Accessory before the fact – person who intentionally assisted in the commission of the
crime, but who was not present when the crime was committed
iv. Accessory after the fact
1. Person who helped the principal in the first degree and his or her accomplices
avoid arrest, trial, or conviction
c. Pace v. State
d. State v. Parker
e. Wilson v. People
f. Brewer v. State
III. Solicitation
a. Definition
i. Common Law – inviting, requesting, encouraging solicited party to commit crime
ii. MPC
iii. Timing
1. The offense is complete at the time the solicitation is made
iv. Agreement unnecessary
1. It is unnecessary that the person solicited enter into an agreement to commit the
requested crime. Indeed, a person solicited to do a crime may not even respond,
but the solicitor will still be guilty of solicitation
v. No defenses to solicitation at common law
1. Impossibility, even where it would be impossible for the soliciting person to
carry out the crime, such impossibility is no defense to the crime of solicitation
2. Withdrawal, bc the crime of solicitation is complete as soon as the solicitation is
made, withdrawal can be no defense. Even where the solicitor later changes her
mind, such will be a defense to the underlying crime, but not to the solicitation
vi. Merger – the crime of solicitation, unlike conspiracy, merges with the target felony upon
completion of the latter
 vii. Specific intent crime in that the person soliciting must specifically intend the other party
to commit the crime and not merely show approval
1. People v. Rubin
IV. Conspiracy

a. Common Law
i. An agreement by two or more persons to commit either one or more criminal acts, or one
or more acts that are non criminal but are corrupt, dishonest, fraudulent, immoral, and in
that sense illegal
1. No need to prove that ∆ ever came close to actually committing the target crime
2. Conspiracy does not merge into the target crime, ∆ can be convicted of both the
target crime and the conspiracy to commit that crime
b. MPC
i. Actus Reus – the agreement PLUS an overt act
ii. Mens Rea – specific intent to agree, with knowledge of the unlawful objective, AND
specific intent that the object crime occur
1. Conspiracy merges with the target crime
2. People v. Lauria
c. Scope of Conspiracy – each co conspirator is liable for the crimes of all the other conspirators
where the crimes were both
i. A foreseeable outgrowth of the conspiracy
ii. Were committed in furtherance of the goal
d. Single or Multiple conspiracy – it is the nature of the agreement which determines whether
there is a single or a multiple conspiracy
i. Single – in a “chain” relationship where several crimes are committed under one large
scheme in which each member knows generally of the other parties’ participation and
there exists a community of interest, on e single conspiracy results
ii. Multiple – in a “hub-and-spoke” relationship, where one common member enters not
agreements to commit a series of independent crimes with different individuals, multiple
conspiracies exist
e. Defenses
i. Impossibility is no defense to conspiracy
ii. Withdrawal
1. Common Law –
2. MPC – withdrawal by a co-conspirator may be a valid affirmative defense where
the renouncing party gives timely notice of his plans to all members of the
conspiracy and performs an affirmative act to “thwart” the success of the
conspiracy
f. Vicarious Liability
i. Pinkerton Doctrine
1. United States v. Graziano
2. People v. Taylor
g. State v. Pacheco

SOLICITATION CONSPIRACY ATTEMPTS

 ∆ entices, advises,
encourages, orders or
requests another to commit
a crime
 The crime solicited need
not be committed
 The crime requires no
agreement or action by the
person solicited
 Defenses, at common law
no defenses were
 consists of an agreement
btw 2 or more persons to
commit a crime and an
intent to achieve the
criminal objective
 The agreement is the
essence of the crime
 Unlike attempt, the crime
does not require a
substantial step in the
commission of the crime
 consists of an intent to
commit a crime and an act
in furtherance or a
substantial step toward the
commission of the offense
 the act in furtherance of the
crime must go beyond mere
preparation
 specific intent crime
 Defenses: at CL legal
impossibility but not factual
 recognized; MPC  Defenses: at CL impossibility was a defense
renunciation is an withdrawal was not a valid to a charge of attempt;
affirmative defense defense; MPC withdrawal MPC, abandonment
is recognized as an
affirmative defense if the ∆
thwarted the success of the
conspiracy
 Merges

DEFENSES
I. Two types of defenses
a. Case-in-chief – ∆ attacks the prosecution’s case by arguing the prosecutor failed its burden of
proof
b. Affirmative – defense attorney admits that the government has met its burden of proof, but argues
that the nonetheless should be acquitted
i. Two types – justification and excuse defenses
II. Justification (self-defense or necessity)
a. ∆ claims he did the right thing or took the most appropriate action under the circumstances –
society has decided ∆ should not be punished
i. Self – Defense – the ∆ is allowed to use reasonable (OBJECTIVE STANDARD), non-
deadly force. Deadly force is generally not permitted
1. ∆ must have had an honest and reasonable belief that
a. He or she was threatened with an imminent threat of unlawful force
b. That the force he or she used was both necessary to repel the threat and
proportional to the threat
c. Imminence requirement
d. ∆ must not have been the initial aggressor, can lose aggressor status
i. by withdrawing from the conflict and making that withdrawal
clear to the other person
ii. when the other party engages in a disproportionate response
2. Exceptions – if a person has a reasonable belief that they are in imminent threat
of bodily harm or death, they may use that amount of force, which is reasonably
necessary to prevent such harm
a. People v. Goetz (man shoots 4 minorities on subway)
i. Prosecutor used objective standard, trial used subjective
standard, appeals used objective standard (the correct standard
“to a reasonable person”)
b. State v. Simon (man shoots Asian neighbor)
i. Jury was given a subjective instruction and was acquitted, the
proper standard was objective (to a reasonable person, not to the
∆)
3. Retreat Rule
a. Majority – one threatened with force/violence has no duty to retreat
b. Minority – one threatened with force /violence has a duty to retreat if that
person may do so to a place of complete safety (does not apply under the
“castle” doctrine
i. Jenkins v. State (∆ stabs man on his own lawn)
1. Court decides it doesn’t matter where the attack occurred
bc after the first punch V did not have time to retreat, he
was attacked and needed to defend himself
ii. Imperfect Self – Defense – Honestly believe that force is necessary on the present
occasion, but your belief is unreasonable
1. Common Law – generally, does not recognize imperfect self defense, some
states, murder could be mitigated to voluntary manslaughter
2. MPC – actor who is acquitted of the charged offense on the ground of self-
defense may be found guilty of a less serious crime which requires proof of
 recklessness or negligence as the mental state
iii. Battered Person’s Syndrome
1. State v. Stewart (woman kills her husband while he sleeps)
iv. Reasonable Person
1. If the facts are ambiguous as to the imminent threat, or ∆ made a mistake and in
fact there was no imminent threat, then ∆ must have had an honest and
REASONABLE belief that there was such a threat
2. State v. Wanrow
III. Excuse (duress, intoxication, insanity)
a. ∆’s actions are presumed to have been wrongful, but the ∆ asks the state to excuse him for some
other reason
b. Voluntary intoxication – whether by alcohol or drugs will be considered a defense when it
negates the existence of an element of the crime
i. Specific intent crime – negates the requisite mental state
c. Duress – also known as coercion -- ∆ claims she was threatened by another person with physical
force unless she committed a specific crime, 3 basic elements
i. ∆ acted in response to an imminent threat of death or serious bodily harm
ii. ∆ had a well grounded fear that the threat would be carried out unless she committed a
specific crime
iii. ∆ had no reasonable opportunity to escape the threatened harm