Fair Warning

Retroactive Criminalization &

Vagueness
Fair Warning:

1. Prohibition against Retroactive Criminalization

2. A prohibition against Vagueness

Violations of Due Process:

Retroactive Criminalization

Vagueness:
• Unfair Notice, OR
• Inadequate Guidelines
Fair Warning
Statutory Construction Problems
Felony Murder Issues:

Whether there is Murder in 2nd Degree – is Fel. Murder 2 available under statute?

Whether crimes expressed are the only crimes available for felony murder?

Whether a felony non-expressed is qualifying predicate felony for M2?

• Majority – only inherently dangerous felonies
 Option 1: look at felony in the abstract
 Option 2: look at felony in the circumstances in which crime was
committed
• Minority – all common law felonies not expressed quality
• i.e. => where we would put gun possession? Inherently dangerous?

If no M2 possible, or if felony doesn’t qualify, likely Unlawful Act Manslaughter…

 Actus Reus
Elements:
Voluntary Conduct
1. Voluntary Conduct
1. Act
2. Omission to Act
3. Vol/Invol => last act is what Act = Omission to Act
is considered for vol. Any bodily movement

2. Production of a Stated Result

3. Surrounding Circumstances Exceptions: bodily
movements that do Elements:
not qualify for liability

Conduct which is not

the product of own Duty to Act, AND
volition

Reflexive or
D has capacity, means,
Convulsive Act (i.e.
and ability to act, AND
seizure)

Conduct performed Omission to act is the

while unconscious or cause of a particular
asleep result
Actus Reus (contd…)
Omission to Act (never a crime)
Elements: Legal Duty to Act
• Statute
1. Volunary Act, AND
• Contract (employee)
1. Voluntary Act
2. Omission to Act if Duty • Relationship b/t the Parties
2. D has capacity, means, and ability to act, AND • Voluntary Assuming Duty
3. Omission to act is the cause of a particular result • D Created Peril
• D is landowner
• Duty between Parties

Only Types of Crimes of Liable by Omission:

1. Battery

2. Homicide

3. Arson

4. Any other crime that provides a legal duty to act

Actus Reus (contd…)
Voluntary Act
Elements: Possession:

1. Consciously willed by D • An act if:

2. Even if D doesn’t want to engage in the • A possessor knowingly procured, OR

action
• Knows he/she has it
3. Including Habits
• Which is incidental to the lawful
purpose of returning

• Had it for enough time for him to

Exceptions: have terminated his/her possession
1. Conduct which is not the product of your own
volition

2. Reflexive or Convulsive Act

3. Conduct performed while unconscious or asleep

 Mental State of Crime
Mens Rea
Mens Rea (3): - “Guilty Mind” (feeling of guilt is not required)
1. Negative Mens Rea – lack of justification or excuse, AND
2. Affirmative Mens Rea – mental attitude of D towards to actus
reus of offense, AND (possibly)
3. Special Mens Rea – special additional mental requisite over &
above, same as Specific Intent
Common Law Mental States:
1. Specific Intent (intent over and above)
• Qualify for additional defenses not available
• Crimes: 1st degree murder, assault, larceny, embezzlement, false
pretenses, robbery, burglary, forgery
2. Malice (NOT open to specific intent defenses)
• Very few crimes that qualify
• Murder, Arson – possibly (mayhem, malicious prosecution)
• Cunningham – allowed recklessness (pulling gas, but prob. not right)
3. General Intent –
• Intent to engage in the actus reus of the crime
• Examples – Rape & Battery (some of many)
4. Strict Liability - special additional mental requisite over & above
• Administrative, Regulatory, or Morality category crimes
• Mistakes of Fact – negates intention
• Consent of Victim – goes to intention
Model Penal Code Intents:
Purpose
• Ds conscious objective to engage in
conduct to create a result
Knowledge
• D acts knowing that his conduct will
necessarily or very likely to create result
• If knowledge is required and only high
probability that crime will occur is satisfied
unless D honestly believes possibility is not
a reality
Recklessness
o D consciously disregards a substantial or
unjustified risk that result will follow, and
this disregard is a gross deviation from the
standard of care that a reasonable person
would exercise
o D must know the risk he is taking:
 Failure to become aware
 Substantial unjustified risk
Negligence
• D fails to be aware of substantial and
unjustified risk that a result will follow, and
this failure is a substantial deviation from
the standard of care that a reasonable
person would follow – greater culpability
than tort
 Concurrence Inappropriateness:
• Ds mental state and his voluntary conduct may be so
far apart that no conviction of actus reus offense is
possible

Mens Rea & Actus Reus • D has the mens rea for an offense but, through
accident or mistake commits the actus reus of offense
which differs only in degree, age category, identity etc.
from the offense for which he has the appropriate
Mens Rea and Actus Reus Must: mens rea
• Transferred Intent
1. Must relate to, AND • Mens rea for more serious offense but
2. Must be the cause of the Ds conduct committed lesser offense
• Cant be convicted of the greater crime
that you didn’t in fact commit
Mismatching Mens Rea & Actus Reus: • Can be convicted either a lesser
offense or the attempt to commit the
1. Mens Rea for offense but commit accident/mistake when greater offense
have the proper mens rea • Prosecution usually goes with crimes
2. Recklessness for act but commit other act = will not concur that holds the strongest penalty
• Intent to commit a lesser crime but committed
3. Don’t have mens rea for the offense, but the offense may
a greater crime
apply • REMEMBER THIS BELOW:
4. Knowing whether RECKLESSNESS is defined through MPC • Common law view – guilty of the
or if it is defined how MPC defines greater offense
• Theory when engaged in
conduct with intent to create
Transferred Intent: lesser harm took the risk that
things would turn out worse
• Define: D has intent to commit crime one person but than had expected
mistakenly commit crime against another – the intent of the • Model Penal Code – might be
first will transfer to second appropriate to charge for lesser
offense
• When occurs = always 2 crimes, attempt and result
• D does not have the mens rea appropriate to the
offense charged or any closely related offense but
perhaps intends to commit an act generally regarded
as immoral
 Inchoate Offenses:
ATTEMPT
Elements: Actus Reus: Mens Rea (min suf.):
1. Specific Intent, AND • Must take a step BEYOND Common Law:
2. Substantial step beyond mere mere preparation
preparation in the direction of • Must take a step BEYOND
the commission of the crime mere preparation

Model Penal Code:

• Purpose or Knowledge

Notes:
 Inchoate Offenses:
Accomplice (Parties to the Crime)
Elements:
“Acts with the purpose of promoting or
facilitating the commission of the
substantive offense for which he is
charged as an accomplice”
Liability:
a. Accomplice is liable for “natural or probable”
consequences of the crime he advised, aided
or abetted (even though the consequences
was not intended)
b. Accomplice is not liable for crimes which are
the outcome of the total/substantial
departure from his counsel, agreement, plan,
etc…
c. Voluntary withdrawal can insulate D from
liability, but not if withdrawing because of
police intervention, etc.
i. D must withdraw for noble reasons
and take affirmative steps to try and
stop crime
ii. D must abandon plan before chain
becomes unstoppable (i.e. no
voluntary withdrawal once the fire
has been started or bank robbery
has begun)
d. If trying to trap someone, he is not
accomplice
Actus Reus:
• Principle in the First Degree
a. Commits actus reus with his own hand
or innocent agent who acts in concert
with the principle perpetrators (not the
accomplice)
a. Principle in the Second Degree
a. Actual or constructive presence at the
scene of the crime
b. Does not commit the actus reus of the
crime
c. Aids or abets the crime
d. Same liability as the first principle
e. Could be convicted as the second
principle even if the first principle is
acquitted (but can not be higher)
b. Accessory before the fact
a. Counsels, encourages, aides, abets but
is not actually or constructively present
at the time or place of the crime
b. Specificity of crime
c. Helps in the planning of the crime
d. Can incite felon to be reckless –
manslaughter
e. Treated like the second degree
principle as far as liability
c. Feigned Accomplice – not, no mens rea to
engage in criminal conduct
Mens Rea (min suf.):
Common Law:
• Must charge the person as principal or accessory according
to the facts and on an indictment charging a person as
principle
• “the enterprise & common design” – MPC Purpose for (1)
aiding and (2) abetting conduct
• Majority – Need Purpose (intentionally pushing
crime)
• Minority: Knowledge attitude to object crime
• Team agrees to common design, must be in design for
liability
Model Penal Code:
S. 2.04
A person is an accomplice of another person in commission of
crime if:
a. With purpose of promoting or facilitating the commission of
the crime, he:
1. Commanded, requested, encouraged or provoked
such other persons to commit; or
2. Aided, agreed to aid or attempted to aid such other
person in planning or committing it; or
3. Having a legal duty to prevent the crime, failed to
make proper effort to do so; or
b. Acting with knowledge that such other person was committing
or had the purpose of committing the crime, he knowingly,
substantially facilitaed its commission; or
c. His behavior is expressly declared by law to establish his
complicity

Notes: Aid – (a) helping – does not have to actually help (b) enough if made more likely to be successful (c) felon does not have to
Principle in the First Degree know he is being aided (the principal DOES NOT NEED TO KNOW!!! – can still be aiding Judge Talley ex.)
Accessory after the fact: (a) assists, relieves, comforts, or shelters the felon by hiding him after the crime is committed (b)
Principle in the Second Degree
knows the offense was committed (c) punished less severely (d) must act with intent to hinder the arrest of the felon (e) not
Liability Issues
held to the same liability as the first degree principle (f) obstructer of justice
Aid, Accessory, Abet Abet – (a) inciting or encouraging (b) communication must go through, otherwise no encouragement; must be made known (c)
MPC 2.04 – Purpose, Knowingly defendant must have intent to abet, there is not abetting by accident (principal needs to know that you’re encouraging)
Liable for Crime of Principal!
 Sex Crimes :
Common Law Rape (c.l. felony)
Elements: Actus Reus: Mens Rea (min suf.):
1. Unlawful vaginal sexual intercourse Voluntary Conduct Common Law:
(mpc recklessness sufficient – not • Vaginal intercourse (knowledge,
husband/wife)
maybe reckless – if fact about • General Intent
2. Engaged in by a male person with a marriage)
female person • By FORCE (knowledge)
Surrounding Circumstances Model Penal Code:
3. By force (or imminent threat of force), • Male w/ female (knowledge)
AND • Without consent (reckless) • Crim. Negligence
• H/R belief by D that V… • Except: Knowledge of
4. Without her consent, AND
• Absence of marital relationship Unlawfulness
5. Not the victim’s husband (knowledge, possibly reckless • Consent – recklessness
[divorce cases])
Notes: Lack of Effective Consent
1. Intercourse by Force Issue of CONSENT:
1. Old Rule – death before dishonor • Without Consent – Normally Recklessness
•Penetration Sufficient 2. Majority – Reasonable Resistance • Minority : (morgan) D must have
•Absence of Marital Relationship 3. Minority – No resistance requirement intended to have non-consensual (K/P)
4. IMPLIED FORCE – will not suffice normally • Honest but unreasonable belief is
•Lack of Effective Consent 2. Intercourse Accomplished by Threat accepted
•MD Statutory 3. Woman Incapable of Consenting (Knowledge but
•Create degrees Recklessness will do) • Majority: Minimum sufficient Reckless
1. D person of authority threatening to • For D to get off, must have BOTH
•Male or female institutionalize a child honest AND reasonable belief
•Resistance 2. Police officers – sex or arrest as prostitute
•Rape Trauma as evidence 4. Consent by Fraud
a. Fraud as to whether act constitutes sexual
•Rape Shield – only past history for that D intercourse
b. Fraud as to whether D is Vs husband
c. Other Fraud - psychological
 Sex Crimes :
Statutory Rape (felony or misdemeanor)
Elements: Actus Reus: Mens Rea (min suf.):
1. Unlawful vaginal sexual intercourse • Voluntary Conduct Common Law:
2. Engaged in by a male person with a
• Vaginal intercourse
(knowledge) • STRICT LIABILITY
female person

3. Female is below a certain age set by

statute (anywhere from 10-18, 14-16)
• Surrounding Circumstances Model Penal Code:
• Male/female
• Age violation • STRICT LIABILITY
• (generally strict, but
maybe reckless)

• Victim Below Age of Consent

Notes:
• Even if V consents – age negates the consent
• Mistake as to Age
•Penetration Sufficient
• Generally, no mistake to age permitted
•Absence of Marital Relationship
• Generally 4 year difference included
•Lack of Effective Consent
 Sex Crimes :
Bigamy (statutory – felony or misd.)
Elements:
1. Intentionally entering into a
marriage (voluntary)
2. While being married to another
(surrounding circumstance)
Notes:
•Mistake Defense
•Only when D honestly and
reasonably believes that he/she
is not married – when
jurisdiction allows
•Mistake of Law – must be of concurrent
law saying whether married
Actus Reus: Mens Rea (min suf.):
Voluntary Common Law:
• Marriage Ceremony – P/K for ceremony
• Mistake must be H & R to get off • n/a
• False understanding that actually
getting married
Model Penal Code:
Surrounding
• Married to another (surrounding circum) • Intentionally getting married
• Some: strict liability (no H/R) • Recklessness & Above
• Others: statute not strict liability • Likely not strict liability
• Exception:
• 5/7 no spouse then ok (but 2nd marriage is
not valid) – anywhere, maybe
• Many times comes up in cases of divorce
• Purported Marriage of Another Spouse by a Married Person
• Split of Authority –
• Some – strict liability about being married to another
• Mash – honest belief of spouse gone over 5/7 years and honest belief dead
• Tolson – penalty is too severe allow negligence (added mens rea)
 Crimes Against Property:
Abduction (stat. felony or misdemeanor)
Elements: Actus Reus: Mens Rea (min suf.):
1. Taking • Voluntary Common Law:
• Taking • Age – Strict liability
2. Of underage girl
• Carrying away • “Doing something wrong” -
assuming that act was just wrong
3. From the custody • Surrounding
strict liability
4. Of the parents
• Of another • Recklessness/Negl.

5. Without permission

Notes:
 Crimes Against Property:
Common Law Larceny (c.l. felony)
Elements: Actus Reus: Mens Rea (min suf.):
1. Trespassory taking • Voluntary Common Law:
• Trespassory taking • Specific intent – permanently
2. Carrying away
• Carrying away deprive
• P/K
3. Of the personal, moveable property • Surrounding
(worth more than 1 penny, tangible,
not real property)
• Of another
• Without consent Model Penal Code:
4. Of another (without his consent) • Intent to “permanently” deprive
that other there of
5. With the intent to permanently • V => Servant – gets custody • Without claim of right
deprive that other thereof, AND only • Court may accept Recklessness
• Subsequent
6. Without Claim of Right misappropriation is c.l.
larceny
Notes: • Mens Rea
•Actual Legal Possession • “Intent to deprive” – economic or emotions deprevation
•Custody • Permanently Deprive
• Without Claim of Right
•Bailment
• Defense = honest and reasonable mistake that property owned by D
•Constructive Legal Possession
1. Honestly believe property is Ds
•Wild Animals v. “Useful” Animals
2. Honestly but unreasonably believe property has been abandoned
•Trespassory 3. Honestly but unreasonably believe that property is that of another that
•Taking consented to the Ds taking of the property
•Asportation 1. WHETHER FOR SALE SPLIT
•Real v. Personal Property • Special Application:
•Co-Property (not “another”) • Abandoned or Lost Property
•Innocent agent • Misdelivered Property
•Property for Sale – SPLIT • Container Issues
 Crimes Against Property:
Common Law Larceny (c.l. felony)
* Breaking Bulk Crime (crime by bailee, Carrier’s)
Elements:
1. Bailee has possession
2. Bailee misappropriates after
breaking bulk
3. With intent to steal
• NON - FIDUCIARY
Note
• Mens Rea
• Intent to Steal – somewhat
different than intent to deprive
permanently
• At the point of breaking
bulk/bale, possession returns to
bailee so cannot be
embezzlement b/c possession is
returned to bailee (legal fiction)
Actus Reus: Mens Rea (min suf.):
• Having possession Common Law:
• Misappropriating after
breaking bulk • Specific Intent
• Bulk v. Bale
• Bale = by package
Model Penal Code:
• Bulk = by weight
• Intent to steal
• V(owner) -> Bailee (non-fiduciary) – possession of “stuff”
• Container
• Misappropriates the package = larceny by bailee (st)
• Breaks Package = breaking Bail – Carrier’s (c.l. felony)
• No Package
• Sold by Weight = c.l. larceny, breaking bulk
• Sold by Bulk = larceny by bailee (misdemeanor)
 Crimes Against Property:
Common Law Larceny (c.l. felony)
* Lost & Mislaid Property
Elements: Actus Reus: Mens Rea (min suf.):
• Factors: • Finding property and Common Law:
1. Possessory interest of the owner at
the time the property is discovered
subsequently either:
• Returning • Specific Intent
2. The finder’s state of mind when he • Misappropriating
retrieves, whether finder knows: Model Penal Code:
• Holding for ransom
a. To whom the lost property – criminal if only
belongs • Depends on whether the original
intend to return
taking is lawful
b. Has reasonable ground to
with reward or • If NOT – continuous trespass
believe, from nature of some other until act and mental state
property or the extension of right become continuous
circumstances under which it
is found, that if he deals
not owed
honestly with it, the owner otherwise
will appear or be ascertained

Notes:
2 Requirements: • Mens Rea
1. Finder must know or have reason to believe she • Intent to Steal – somewhat different than intent to deprive permanently
can find out the identity of owner, AND • 2 Different Crimes Potentially Involved:
2. Finder must at moment she takes possession of 1. Taking by Trespass
the lost property have the intent necessary for 2. Misdelivered -
larceny
 Crimes Against Property:
Common Law Larceny (c.l. felony)
* Larceny by Trick (c.l. larceny)
Elements: Actus Reus: Mens Rea (min suf.):
1. D obtains possession or custody (but • Possession through promise Common Law:
NOT title) of a thing
or misrepresentation
• Specific Intent
2. If title is NOT transferrable

3. Obtained through use of false promise

or misrepresentation Model Penal Code:
• Promise or Misrepresentation
can be past, future, or present
and can be oral, written, or
• Obtaining property through
through silence (w/ duty to INTENTIONAL use of
speak) misrepresentation
• Cannot be negligent or reckless

Notes:
• Similar to False Pretenses but NO TRANSFER OF TITLE
 Crimes Against Property:
Statutory Extensions of C.L. Larceny (new theft)
* Embezzlement (strictly statutory, felony)
Elements: Actus Reus: Mens Rea (min suf.):
1. The fraudulent • As defined by statute Common Law:
• Conversion of property of another
2. Conversion • Person must be a fiduciary in lawful
• Specific Intent
possession
3. Of property
• Conversion – acting in a way contrary
to Vs ownership of the property Model Penal Code:
4. Of another
• If custody – subsequent conversion
5. By a person in lawful possession of that constitutes offense • Obtaining property through
property and a fiduciary INTENTIONAL use of
misrepresentation
6. With intent to defraud for a conversion • Cannot be negligent or reckless
• Intent to Defraud/Steal – must
“If there is an embezzlement statute and D is a
come after possession and before
fiduciary of the kind indicated by the
statue” possession is given

Notes: • 3rd Party => Fiduciary => Misapp. Not to V =

• Fiduciary
• Conversion
• Property – including securities
• Fraudulent Intent (no intent to
restore)
• Claim of Right = allowable
• Earmarked Fund Issues
• Statutory Embezzlement (if statute and D is fid. covered)
• Often deals with situations of employee and employer
• Five Situations to Distinguish:
1. Fraudulent Securing of Property = Custody = taking is criminal (larc by trick)
2. Receive as an employee for owner for use in the relationship = Custody = larceny
3. Employee receives for employer from 3rd party = Possession = embezzlement
4. Bailee w/ Possession of Container, sells container = embezzlement
5. Bailee w/ Container sells goods inside = larceny
 Crimes Against Property:
Statutory Extensions of C.L. Larceny (new theft)
* Larceny After Trust (statutory misdemeanor)
Elements: Actus Reus: Mens Rea (min suf.):
1. D is a Non-Servant, Fiduciary • D is Fiduciary Common Law:
• Property FROM V so D
2. Misappropriates after getting retains actual legal • Not under CL
the property FROM V possession
Model Penal Code:

• Purpose/Knowledge
• Possibly Recklessness

• V (owner) => Non-Servant Fiduciary =

• Larceny After Trust (if statute)
Notes: • Earmarked Fund Issues
• x • Options in Statutory Construction:
• Sometimes under embezzlement
• Sometimes under larceny extension
 Crimes Against Property:
Statutory Extensions of C.L. Larceny (new theft)
* False Pretenses (strictly statutory, likely felony)
Elements: Actus Reus: Mens Rea (min suf.):
1. Obtaining title • Obtaining title Common Law:
2. To the property of another
• Of property
• Using false statement • n/a
3. By an intentional (or knowing) false • V is defrauded
statement of past or existing fact (not
Model Penal Code:
future)

4. With intent to defraud the other • Intentional or Knowing False

Statement – know statement is
5. V is actually defrauded false
• Intent to Defraud

• Misrepresentation
• False representation concerning a matter of fact (not puffing)
• Must relate to past or present facts – not a warranty
Notes:
• Must be the CAUSE of the loss of possession
• V must act in reliance on the misrepresentation
• Must have statute in jurisdiction
• Intent to Defraud
• Must be false at time of transfer
• Either D must know statement is false OR
• Future promise won’t do
• V will have to have lose because of relying on the misrepresentation
• Related Crimes
• Bad Checks, Abuse or Misuse of Credit Card
 Crimes Against Property:
Receiving Stolen Goods (c.l. or stat. misdemeanor)
Elements: Actus Reus: Mens Rea (min suf.):
Common Law: • Agree not to report Common Law:
1. Agree not to report crime for some
something of value (compounding), OR
• Don’t report
• Knowledge, Purpose
2. Receive and didn’t report a crime
(misprision) – obligation to report • Receive
Model Penal Code:
Model Penal Code:
1. If they know or reasonably believe the
goods were probably stolen • Purpose/Knowledge

Notes:
- Seldom processed in modern times
and most jurisdictions have not
discussed
 Breaking Bale Exceptions: Legal Fiction

Crimes Against Property: When the bailee breaks bail (opening the
container, taking some contents with intent to
steal) the breaking of the bale without permission
Relationship between V & D Issues terminates the bailment and sends constructive
legal possession back to the bailor, which means
that breaking bale w/o permission and takes
Different Factors: some/all contents WITH an intent to steal, he is
taking the contents from the constructive legal
Fiduciary
• 3rd Party (gives to F for V) > Fiduciary (any) - Misappropriation > V
possession of the owner - GUILTY of c.l. larceny
• Statutory Extortion (if statute & F is covered in stature)
Mistaken Identity - the transferred goods
• V (gives to D for relationship purposes) > Servant – Misappropriation = were mistaken so possession cannot
• C.L. Larceny (Servant only retains custody, not possession) transfer
• V (gives to D for purposes) > Non-Servant Fiduciary – Misappropriation = Embezzlement : a statutory offense, and can only be
• Larceny After Trust (if statute – misdemeanor) committed by a fiduciary as defined in the statute
• For Bazeley to be embezzlement - must (1) have a
Non-Fiduciary statute and (2) must gain the intent to steal AFTER
• V > Bailee – if misappropriates THE THING or THE PACKAGE = he gains possession and BEFORE he gives
• Larceny by Bailee (if statute – misdemeanor) possession to his master
• In order for possession to have transferred to his
• V > Bailee – Container – if Bailee opens the container = “Carrier’s Case” = master he must have placed the money in a place
• “Breaking Bail” => C.L. Larceny (custody of inside) where he had a duty to place the goods

• No Package
• Sold by Weight – D takes some but not all = C.L. Larceny (breaking bulk – felony) Exceptions & Notes for CL larceny
Must have value
• Sold by Bulk – D takes some of bulk = DEPENDS (think 3 apples, weight or Co-Owners – no larceny, co enjoyment
count)? Wild Animals - no ownership
• If by count – Larceny by Bailee (misdemeanor) Specific Animals
• If by weight – Breaking Bulk C.L. Larceny (felony probably) Animals that can be used for food (cows, ox,
etc) - ARE subject to CL larceny Horses - are
Fiduciary - A person is a fiduciary when the business which he transacts or the money or property subject to larceny, military value
which he handles is not his own or for his own benefit but for the benefit of another person, as to
Base Animals (no value - dogs, cats, monkeys,
whom he stands in a relation implying and necessitating great confidence and trust on the one part
falcons)
and a high degree of good faith on the other part
NOT subject to CL larceny
• A bailee just for being a bailee is not necessarily by definition a fiduciary
• Servant/Servicer - custody when under immediate direction and control by the Statutory Expansion
"master" Have increased the number of types of property
• Custody was developed to cover those holding "employers" goods - guest/host that are subject to larceny (theft) - "…and anything
relationship as well of value"
 Crimes Against Property:
Robbery (c.l. felony)
Elements: Actus Reus: Mens Rea (min suf.):
1. A taking • Taking Common Law:
• Force/Intimidation
2. Of personal property of another • Threat – immediate death or bodily
• Specific Intent
harm (V, member of family, relative,
3. From the other person or presence person in presence) or V dwelling
• Intimidation –
Model Penal Code:
4. By force or intimidation • Put V in fear or immediate
bodily injury or death where
5. With the intent to permanently injury must be party of same • Purpose/Knowledge
deprive him of it transaction AND
• Intimidation by D against V or
family or someone with V at
time
• Intimidation must be cause

• Force/Threats Necessary
Notes:
• MD Code Revisions - MAJORITY
• No asportation needed
• Presence – broad interpretation
• May be allowed even without full taking because V fights off D
• Victim Aware of the Taking
• Res Gestae Approach v
• Unconsciousness or Death
• Force used by D to retain can be said to be same transaction as robbery
• Split – depends if D did it
• Claim of Right SPLIT
• Force/Intimidation
• Some – allow
• Out of Possession
• Others – Jupiter case, no defense since violence used
• Aggravated Robbery
• Snatching – resistence = robbery/
 Crimes Against Property:
C.L. Extortion (c.l. misdemeanor)
Elements: Actus Reus: Mens Rea (min suf.):
1. Corrupt collection of an unlawful fee • Taking of money unlawfully Common Law:
2. By an officer under the color of office
• By a public official • General Intent
3. Where:
a. No fee is due, OR
Model Penal Code:
b. Not so large a fee due OR
c. The fee is not yet due (not
voluntary on Vs part) • Purpose/Knowledge

Notes:

• Only committed by public official

 Crimes Against Property:
Statutory Extortion (usu. felony)
Elements: Actus Reus: Mens Rea (min suf.):
1. Obtaining money or other • Obtaining money/property Common Law:
property by means of by threat
unlawful threat, OR • Unlawful threat to obtain • Specific Intent
even if not obtained
2. An unlawful threat made for Model Penal Code:
the purpose of obtaining
money or other property • Purpose/Knowledge
(even if none in fact is
obtained)

• Threat in Extortion (statutory extortion) – same as robbery (generally), but

Notes: threat can be immediate OR it can be in the future, can be threat to crime, economic
Property Possible: harm, personal harm, accuse V of crime, expose secret, or defect exposure
1. Money • Some Juris will have blackmail statute -
2. Money or Property • When something looks like robbery but fails, look for STATUTORY EXTORTION,
3. Anything of Value created for robbery without satisfaction of common law larceny
4. Anything to make V act against will • Claim of Right
• Majority – NOT a defense
• Minority – may be a defense
 Crimes Against Property:
C.L. Bribery (c.l. misdemeanor)
Elements: Actus Reus: Mens Rea (min suf.):
1. Giving or taking • Give Common Law:
• Take
• Bribe • General Intent
2. Of a bribe
Model Penal Code:

• Purpose/Knowledge

Notes:

• Bribe = something given for purpose of

improperly influencing official action
 Crimes Against Property:
Forgery (c.l. misd.; today usu. stat felony)
Elements: Actus Reus: Mens Rea (min suf.):
1. Fraudulent making (or altering) • Obtaining money/property Common Law:
by threat
2. Of a false writing, AND • Unlawful threat to obtain • Intent to defraud – BUT in c.l. no
one actually needs to be
even if not obtained
3. Writing is one that has apparent defrauded
legal significance
Model Penal Code:
4. With intent to defraud
• Intent to defraud
• Purpose/Knowledge

Notes:
• Uttering - using a false writing
Apparent Legal Significance (liability,
• Offering as genuine
wills, deeds, etc)
• An instrument that may be subject of forgery and is fake
False Writing Offense (not just tell a lie
• With intent to defraud
must be a lie)
 Crimes Against Property:
Consolidation of Theft Offenses
Modifications:
1. MD – removes asportation of element of larceny

2. Specific provision of larceny by finders and

misdeliverers

3. MD provides that cl crimes still exist, if not covered

by consolidated theft statute
 Offenses Against the Habitation:
C.L. Arson (c.l. felony)
Elements: Actus Reus: Mens Rea (min suf.):
1. Malicious • Burning Common Law:
2. Burning • Necessity of fire
• Damage required –
3. Of the dwelling house • Malicious = particular intent to
scorching (insufficient) v.
4. Of another charring (1) burn dwelling or (2) under
Exceptions to Maliciousness: • Dwelling House of Another circumstance that danger is plain
Omission commission of arson:
1. D unintentionally or accidently sets or causes
• Must be the dwelling by and obvious of burning dwelling
the fire, if D does not realize he did it – not another (c.l.) – place of another
liable where a human being
2. BUT if after starting, D realizes he was cause, if regularly or usually sleeps
D fails to do anything to prevent the spread at night (but nighttime is Model Penal Code:
either with INTENT that building burn OR with not really a requirement);
KNOWLEDGE that there is a plain and obvious presence is not necessary • Malicious
danger that dwelling burn – can be criminally so long as there is an
liable • Purpose/Knowledge
intent to return
3. If after he sets fire accidently and is simply • Possession, not ownership
reckless or negligent in failing to do anything
– possessed by another in
about it then he is not guilty of c.l. arson (maybe
arson
statutory)

Notes:
• Wall Sharing: Part of the building is being used as a dwelling then dwelling as a whole for
MD Statutes – get rid of recklessness
arson, OR If not home building but have a room where owner or employee sleeps
Modern Statues:
• Curtilage
• Remove “of self” requirement so other
• Buildings that are set apart on the same property but connected by property (not
person’s house could work
separated by a public road or fence)
• Remove qualifications, fraudulent burning
• Typically area with the “fence” around a property – actual fence not required it
• Include vehicles and other not covered
can be imagined
• Extension of property
• Buildings other than structures that constitute the dwelling must be within a
• MD mens rea is more limited
reasonable distance from dwelling house to be in curtilage
• Law of Fixtures
 Offenses Against the Habitation:
Malicious Mischief (c.l. misdemeanor)
Elements: Actus Reus: Mens Rea (min suf.):
1. Malicious • Destruction Common Law:
• Of property not c.l. arson
2. Destruction of, or damage to • Malice

3. Property of another real or

personal that is not c.l. arson

Model Penal Code:

• Malicious
• Purpose/Knowledge

Notes: • When arson won’t work, consider Malicious Mischief

 Offenses Against the Habitation:
Houseburning (c.l. misdemeanor)
Elements: Actus Reus: Mens Rea (min suf.):
1. Malicious • Destruction Common Law:
• Burning of own dwelling
• Near city or others = surround
2. Burning • Malice
circumstances

3. Of one’s own dwelling

4. If the structure is situated either

a. In a city or town; or
b. So near to other houses as Model Penal Code:
to create a danger to them
• Malicious
• Purpose/Knowledge

Notes:
 Offenses Against the Habitation:
Burglary (c.l. felony)
Elements: Actus Reus: Mens Rea (min suf.):
1. A breaking • Breaking – Minimal Force Sufficient Common Law:
• Define: making an opening in a
structure by trespass (without
2. And entry • Special Intent – intent of
permission or without consent)
• Can be on the interior committing felony therein (need
3. Of the dwelling • Built in furniture would be not know felony); need a mental
sufficient – could be breaking state HIGHER than just doing
4. Of another • Entry with Authority the crim
• Given access and authority –
no breaking
5. At nighttime
• If use of access when not Model Penal Code:
authorized – breaking
6. With the intent of committing a • Entering • Special Intent
felony therein • Dwelling of Another (same arson) 1. Intent to engage in fel. Therein
• In the Nighttime (hour before/after) 2. Objective: any felony (c.l. lar misd) is
still appropriate

Notes:
Mens Rea for Actus Reus =
KNOWINGLY for all elements
Statutory Modifications
• Add structures in curtiledge
• Criminalize daytime
• Some eliminate breaking element
Intent Issues – breaking/enter
concurrence – enter through break
• Entering : (1) must follow the breaking and must be made through the entry made by
the breaking and while it must follow it may not need to be on the same night (earlier
made opening will suffice (2) Any part of body crossing plane is sufficient (3) Distinction
in terms of entry – some part, person or tool if tool is used to break then not sufficient
but if tool will be used for the felony within then sufficient (4) does not have to occur,
must have intent to commit felony
• Degrees – one degree may be misdemeanor; daytime as misdemeanor
• Underlying crime as larceny
• Even if CL larceny would not be felony offense b/c of value, still works
 Crimes Against Persons:
Criminal Battery (c.l. misdemeanor)
Elements: Actus Reus: Mens Rea (min suf.):
1. Unprivileged touching of another Voluntary Conduct Common Law:
which is either: • Unprivileged touching
• General Intent & NEVER strict
a. Intentional, OR liability
Surrounding Circumstance
b. Unintentional but the • Touching actually occurs
result of Ds reckless • Human
conduct, OR
Model Penal Code:
c. Unintentional but one
result of Ds commission of • General Intent
an unlawful act which did • Knowledge, Purpose,
not involve recklessness Recklessness, or Negligence
on Ds part

• Common Law v. Statute

Notes:
• MD – common law crime but statutory penalty
 Crimes Against Persons:
Attempted Criminal Battery (c.l. misdemeanor)
Elements:
1. Must be an attempted
unprivileged touching of another
which comes near to achieving
its objective
2. D actually intends to commit a
battery AND (possibly)
3. D must have presentability to
commit a battery when the
touching is attempted
Notes:
PRESENTABILITY Issues
Apparent Ability Issues
Actus Reus: Mens Rea (min suf.):
Voluntary Act Common Law:
• Unprivileged touching attempted
• General Intent & NEVER strict
Surrounding Circumstances liability
• Touching doesn’t actually occur
• Presentability
• Some Districts –
presentability not needed,
MD is apparent ability Model Penal Code:
• Others - needed
• Human being • General Intent
• Knowledge, Purpose,
Recklessness, or Negligence
• Common Law v. Statute
• MD – common law crime but statutory penalty
• MD – apparent ability – if D believes presentability
• MUST come near to achieving objective
Crimes Against Persons:
Civil or Tort Assault (c.l. misdemeanor – if recognized)
Elements: Actus Reus: Mens Rea (min suf.):
1. Conduct by D which places V Voluntary Act Common Law:
in prospective reasonable • Conduct that threatens • General Intent & NEVER strict
apprehension of immediate prospective reasonable liability
apprehension of immediate harm • Must have intent to put V in
bodily harm, AND • Touching doesn’t actually occur prospective reasonable
apprehension of immediate
2. D intend his conduct to bodily harm
cause such apprehension or
such harm Model Penal Code:
• General Intent
• Knowledge, Purpose,
Recklessness, or Negligence

Notes:
No issues of Presentability or Apparent…
Consent generally not accepted
Statutory Misdemeanor unless
Statute – must impose tort assault
AGGRAVATED tort assault – must have
a statute
• Normally against police/fire
• But not our statute – deadly
weapon
• Common Law v. Statute
• MD – common law crime but statutory penalty
• Exceptions:
• Minor touching that is consented to, minor physical injury
• State sponsored activities (sports)
• Misdemeanor v. Felony
• Direct Touching – actually touching a person with your person or object
• Indirect Touching – causing another person to touch something else
• Words = actions
 Crimes Against Persons:
Homicide Offenses - General
Elements: Actus Reus: Mens Rea (min suf.):
• All homicides have the Common Law:
1. Justifiable Homicides • Common Law Criminal
same ACTUS REUS • Intent to Kill
• Death of human • Intent to Cause Serious
2. Excusable Homicides Bodily Injury
being by another
human being • Depraved Heart
3. Criminal Homicides • Felony Murder
• NOTE: killing an animal is
never homicide (maybe
cruelty, malicious Model Penal Code:
destruction, etc)
• Depends…

• Common Law Homicide:

• Criminal Homicide
• Manslaughter
• Voluntary
Notes: • Involuntary
• Criminal Negligence
• Unlawful Act Rule – (1) misdemeanor manslaughter or (2) felonies
not included in felony murder manslaughter
• Statutory
• Willful, Deliberate, Premeditaded
• First Degree Felony Murder
 Crimes Against Persons:
Common Law Criminal Homicide (2nd Degree)
Elements: Actus Reus: Mens Rea (min suf.):
1. Murder – homicide committed with
malice (express or implied)
• Killing of a human being Common Law:
• Common Law Criminal
aforethough without justification, by another human being • Intent to Kill
excuse, or mitigation under one of four
circumstances: • Intent to Cause Serious
Bodily Injury
• Intent to Kill - D had the intent to kill
• Depraved Heart
• Intent to Cause Serious Bodily Injury • Felony Murder
- D had an intent to cause serious bodily
injury, OR

• Depraved Heart – Ds act which caused Model Penal Code:

Vs death involved a willful and wanton • General Intent
disregard of an unreasonable human risk
(depraved heart)
• Knowledge, Purpose,
Recklessness, or Negligence
• Felony Murder – Vs death occurred
during Ds commission of or attempt to
commit a felony to which the felony
murder rule applies at common law

• Rebuttable Presumption: D causes death of another human being, start with

Notes: presumption that there is no justification, excuse, or mitigation IF there are elements of
malice
• MPC 3.02 (Necessity Justification) – avoiding evils, count noses, no need for natural
consequence to justify criminal homicide
 Crimes Against Persons:
Manslaughter (c.l. felony) – Vol/Invol.
Elements: Actus Reus: Mens Rea (min suf.):
1. It is committed …
• Killing of human being by Common Law:
i. With intent to inflict bodily injury a human being • Intent to inflict bodily harm
other than serious bodily injury OR
OTHER than serious bodily harm
ii. Through recklessness OR • Recklessness
iii. In the commission of or attempt
• Transferred Intent from
to commit certain crime other commission of felony
than felonies subject to felony
murder rule (misd. mans)

2. Committed with intent to kill or inflict Model Penal Code:

serious bodily injury (normally would be • Purpose – inflict injury not
M2) but there is a mitigation sufficient to
negative malice:
serious
• Knowledge, Recklessness
1. Imperfect claim of justification or • Criminal Negligence
excuse, OR

2. Provocation

Notes:
 Crimes Against Persons:
Voluntary Manslaughter
Elements:
1. Provocation must have been one that
would arouse sudden and intense passion
in the mind of an ordinary person such as
to cause him to lose his self control
2. D must have in fact been provoked
3. There must not have been sufficient time
between the provocation and the killing
for the passions of a reasonable person to
cool off
4. D in fact did not cool off between the
provocation and killing
Actus Reus:
• Killing of human being by a
human being
• Provocation Adequate:
• D being subjected to
serious battery or a threat
of deadly force; AND/OR
• Discovering one’s spouse
in bed with another
person
• Provocation Inadequate
• Mere Words – may
mitigate from M1, to M2
• Imperfect Self-Defense
Mens Rea (min suf.):
Common Law:
• Intent to kill w/ sufficient
provocation and no time for
reasonable person to do
otherwise
Model Penal Code:
• Purpose – inflict injury not
serious
• Knowledge, Recklessness
• Criminal Negligence

• Cooling Off Time = factual question up to jury under common law

• Imperfect Self Defense (expansion)
Notes:  Murder may be reduced to manslaughter when:
o D was at fault in starting the altercation, OR
o D unreasonably but honestly believed in the necessity of responding with
deadly force
 Crimes Against Persons:
Criminal Negligence - Involuntary Manslaughter
Elements: Actus Reus: Mens Rea (min suf.):
1. Death caused by criminal • Killing of human being by a Common Law:
negligence OR intent to human being
cause non-serious bodily • Intent to cause non-serious
bodily harm
harm • Great deviation from
• Criminal Negligence
standard of care
2. Requires greater deviation
from “reasonable person
standard than is required for Model Penal Code:
civil liability
• Criminal Negligence & above

Notes:
• Cooling Off Time = factual question up to jury under common law
Criminal Negligence v. Recklessness
• Imperfect Self Defense (expansion)
Some states require that D have
 Murder may be reduced to manslaughter when:
known the risk
o D was at fault in starting the altercation, OR
Factors to Determine:
o D unreasonably but honestly believed in the necessity of responding with
• Social utility of Ds knowledge
deadly force
• Ds knowledge of facts bearing on risk
o Recklessness: requires substantial and unjustifiable risk assumed and CONSCIOUS risk
• Nature and extent of harm that may be
assumption
caused
o Criminal Negligence – no conscious risk assumption; still sub. and unjustifiable risk
• Any precautions taken by D to minimize
risk
 Crimes Against Persons:
“Unlawful Act”- Involuntary Manslaughter
Elements: Actus Reus: Mens Rea (min suf.):
Misdemeanor Manslaughter • Killing of human being by a Common Law:
• Killing in the course of human being
commission of a misdemeanor • Intent to cause non-serious
without intent to injure bodily harm
• Killing caused by an
• Normally misdemeanor must be • Criminal Negligence
malum in se or malum prohibitum unlawful act
that the death be the foreseeable
or natural consequence of the
unlawful conduct (norm. assault) Model Penal Code:
Felonies not Included in FM
• Killing caused during commission • Criminal Negligence & above
of a felony but does not qualify as
a felony murder case
Notes:
• Cooling Off Time = factual question up to jury under common law
Criminal Negligence v. Recklessness
• Imperfect Self Defense (expansion)
Some states require that D have
 Murder may be reduced to manslaughter when:
known the risk
o D was at fault in starting the altercation, OR
Factors to Determine:
o D unreasonably but honestly believed in the necessity of responding with
• Social utility of Ds knowledge
deadly force
• Ds knowledge of facts bearing on risk
o Recklessness: requires substantial and unjustifiable risk assumed and CONSCIOUS risk
• Nature and extent of harm that may be
assumption
caused
o Criminal Negligence – no conscious risk assumption; still sub. and unjustifiable risk
• Any precautions taken by D to minimize
risk
 Crimes Against Persons:
Standard Statute for Murder in the First Degree
General Statutory Interpretations
Statutory Interpretations Mens Rea (min suf.):
1. “All murder which shall be perpetrated by means of poison, or Common Law:
by lying in wait, or by any other kind of willful, deliberative and
premeditated killing, or in the perpetration of or attempt to • n/a
perpetrate (stated felonies)” Model Penal Code:
2. Alternative Pattern (in MD until statute) of 1st degree
murder: "all murder which shall be perpetrated by means of • Willful, Deliberate AND
poison, or lying in wait, or which is willful, deliberate and Premeditated
premeditated, or which is committed in the per petration of or
attempt to perpetrate (stated felonies)"

Willful: intent to kill and purpose (MPC)

Varying Views by States
Presumptions & Burdens of Persuasion
• Majority View – Jury looks at intent of
a reasonable person
• Minority View – in Ds circumstances
was it willful, et al.
• Intent to kill = malice for M2
• Willful, “not intentional” – requires MPC purpose to kill, has to be objective to cause death
Deliberate: weighing reasons for and against, made decision to kill in cool and dispassionate
manner
• Offensive Language – likely not sufficient as mitigation for provocation, BUT may be
sufficient to prevent acting with a cool state of mind, and since he/she was not able to
deliberate – would be murder 1
• Intoxication – normally not an excuse, but maybe enough to bring down
Premeditation – design and determination to kill
• “Appreciable” time for deliberation
• Must have time to deliberate and D must have in fact deliberated – must have reflected and
weighed in time (however small) that had MPC purpose to kill
 Crimes Against Persons:
First & 2nd Degree Felony Murder (Statutory)
Elements:
Common Law Rule:
• Death resulting from the perpetration or
attempted perpetration of a felony is murder
without any regard to whether the felony was
dangerous or whether there was any likelihood
that death would result from D attempting or
committing the felony
Statutory Elements (construction norm. issue)
• Statute lists a specific set of felonies that
provide that if felony murder is committed
during the perpetration of an enumerated
felony – killing is 1st degree (stated felonies =
murder 1) [added to willful/deliberate
/premed]
• MD – long list for M1 & recognize M2 FM
Notes:
Causation Problems
Likely Defenses
Not felony in state, time, merger,
foreseeability of death
MD Inherently Dangerous Test
• Inherently dangerous to human life for
purposes of felony murder rule if it is
inherently dangerous to human life in the
abstract OR if dangerous to human life
based on the manner in which the felony
is committed
Actus Reus: Mens Rea (min suf.):
• Killing of human being by a human being Common Law:
during the commission of a qualifying
felony
• Limits through Causation • Intent to commit felony (and
• Few States – all felonies, whether death is result)
dangerous/not dangerous and whether
common law felony/statutory
• Other states – only felonies at common
law
• Problem – looking at felony in the
abstract or in circumstances
• Other States: only felonies malum in se Model Penal Code:
(wrong in themselves), true when
murders are common law or statatory • Intent to commit qualified felony
for 1st degree/all else 2nd
• Causation Limits:
• Scope of Time when Murder Occurs – before/during/after commission
• i.e. Burglary – normally when death occurs while D on premises
• Issues: Escape, Temporary Safety, Res Gestae
• Most states – won’t allow aggravated assault to push fel. murder
• Fired Fatal Shot
• Causation Views:
• Majority View – Agency: Death must be natural and probably consequence of
Ds commission of the felony
• Minority – Lowry – Proximate Cause Theory: Does not require that death
in question be the natural and probable result of D committing the felony &
requires death to be proximately caused by Ds felony
• Issues when 3rd Party Causes Death to another 3rd Party – normally not guilty
Homicide: Determining…

Then Here:
Start Here:

1st Degree Murder, Causation Issues?

distinguish between
willful, lying in wait,
felony. States of Mind for “Malice
Aforethought?”

Any facts to make

willful, deliberate, Proximate Cause
premeditated or with
another felony? Yes No But For

Involuntary
manslaughter – any Simple Theory Complex Theory
criminal negligence?
Any provocation to
reduce the murder?
Yes = Voluntary
No= Accompanying
Manslaughter UNLESS
Misdemeanor or
depraved heart –
felony not qualified?
extreme recklessness?

Yes= Unlawful
Involuntary
Yes = Misdemeanor
Manslaughter
Yes Depraved Heart =
2nd Degree Murder
 Crimes Against Persons:
False Imprisonment (ask if we need to know this)
Elements: Actus Reus: Mens Rea (min suf.):
• Unlawful Confinement Common Law:

• Confinement of a person • V compelled to go where he • General Intent

does not wish to go or to remain
• Without his valid consent where he does not wish to
remain
Model Penal Code:
• Not confinement to simply
• Recklessness & above
prevent a person from going
where he desires to go, as long as
alternative routes are available

• May be accomplished by actual

force, threats, or show of force
 Crimes Against Persons:
Kidnapping (ask if we need to know this)
Elements: Actus Reus: Mens Rea (min suf.):
Common Law: • Hiding/stealing person Common Law:
• Forcible abduction or stealing
away a person • Specific Intent

• From his own country and

• Sending back to another

Statutory Elements Model Penal Code:

• General Pattern:
• Some movement • Purpose/Knowledge
(asportation) of the V OR
• Concealment of V in
“secret place”

• Statutory Modifications
• Aggravated Kidnapping
• For Ransom; Purpose of Commission of Other Crime; Offensive attack;
Child Stealing
• Requiring Movement
• Secrecy
• Consent
• Relationship to Other Offenses
 Justification:
Reasonableness Actus Reus: Mens Rea (min suf.):
Elements:
Reasonableness: • Action in prevention Common Law:

• D must have honestly & • Honest and reasonable, no room

reasonable acted for anything less

• In prevention Model Penal Code:

• Ds actions causing Vs death • Honest and reasonable

(must be reasonable, cannot
just be honest)

NOTES:
Law says that the act was the RIGHT
thing to do – works for the accomplice
• Statutory Modifications
• Instead of heat of passion = extremely mental or emotional disturbance
for which there is reasonable justification or excuse
Common Law
• Either have COMPLETE justification/excuse or not
• If D acted in any unjustifiable way, then defense is not an option
 Justification:
Self-Defense: Nondeadly Force
Elements: Actus Reus: Mens Rea (min suf.):
• May use such force as reasonably • Action in prevention Common Law:
appears necessary
• Honest and reasonable, no room
• That D is in immediate for anything less
danger of unlawful bodily
harm from that other V, Model Penal Code:
AND
• Honest and reasonable
• That the use of such force
is necessary to avoid the
danger

• No duty to retreat

• Unlawful Bodily Harm

• Criminal or tortuous – touching that occurs b/c of recklessness or negligence;
negligent must be extremely negligent to be criminal
NOTES: • Battered Women/Child Syndrome
• Frequently comes up with battered wife - long period, frequently years, when
spouse has been beaten on regular basis or whenever V is in bad mood
• Immediacy Issue - will normally be a mitigation from murder to manslaughter
because it is difficult to show that immediate unlawful bodily harm was imminent
 Justification:
Self-Defense: Deadly Force
Elements: Actus Reus: Mens Rea (min suf.):
i. D is without fault • Action in prevention Common Law:
• Duty to Retreat
ii. Confronted with • Majority Rule – • Honest and reasonable, no room
unlawful force • No duty to retreat for anything less
• Minority –
iii. D is threatened with • D, prior to using deadly force, must Model Penal Code:
imminent death or retreat ONLY if he knows that he
great bodily harm, can do so in complete safety • Honest and reasonable
AND (possibly) • Exceptions to Minority Rule
• No duty to retreat from home
iv. Duty to Retreat • No duty to retreat if victim of rape
or robbery
• Police officers in retreat jurisdiction
have no duty to retreat
• Without Fault
• A person who has initiated an assault or provoked the other party will be considered the
aggressor
• Unlawful Force
NOTES: • Attack must be force that constitutes a crime or a tort
• Threat of Imminent Death or Great Bodily Harm
• D must reasonably believe that he is faced with imminent death or great bodily harm
• Harm must be present
• NO RIGHT to use deadly force if the harm is a future harm or V has no reasonable means
of carrying out the threat
 Justification:
Self-Defense: Right of Aggressor to Use Self-Def.
Elements: Actus Reus: Mens Rea (min suf.):
i. Generally, one who begins a fight • Action in prevention Common Law:
has no right to use force in her own • Plus:
defense during that fight, BUT can • Withdrawal, or • Honest and reasonable
regain in 2 ways • Sudden Escalation

ii. Withdrawal
i. If remove from fight in good Model Penal Code:
faith, AND
ii. COMMUNICATES to the • Honest and reasonable
other person the desire to
remove
iii. May regain right

iii. Sudden Escalation

i. If D started “minor” fight and
escalates to one in which
deadly force is necessary
then aggressor may use force
in his own defense

NOTES:
 Justification:
Defense of Others
Elements: Mens Rea (min suf.):
Relationship with Person Aided Common Law:

• Majority Rule: one may use force in defense of any • Honest and reasonable
other person if the other requirements of the • Minority/Majority Split
defense are met

• Minority Rule: require that the person whom the D Model Penal Code:
aided must either have been a member of family or
significant relationship • Honest and reasonable

Status of Person Aided

• Majority – Up to D - D has defense ONLY IF

reasonably believe that the person she assisted had
the legal right to use force in his own defense

• Minority: “Step into the shoes of the person needing

defense”

NOTES:
 Justification:
Defense of Dwelling (deadly & nondeadly)
Elements: Mens Rea (min suf.):
Nondeadly Force Common Law:

• May use nondeadly force when D reasonably believes • Reasonable

that such conduct is necessary to prevent or terminate
another’s unlawful entry into or attack upon dwelling

Deadly Force (2 Situations) Model Penal Code:

• Tumultuous Entry – when attempt is made in a riotous, • Reasonable

violent, or tumultuous manner AND person reasonably
believes that the use of force is necessary to prevent a
personal attack upon herself or another in the dwelling

• Felony: reasonable belief that such force is necessary to

prevent the entry into the dwelling by a person who
intends to commit a felony in the dwelling

NOTES:
 Justification:
Defense of Other Property (deadly & nondeadly)
Elements: Mens Rea (min suf.):
Nondeadly Force Common Law:

• May be used to defend property in one’s • Reasonable

possession from unlawful interference
• Real Property – entry or trespass (NDF
allowed)
• Need to use must be reasonably imminent Model Penal Code:
• Force may not be used to regain property
believed to be owned by D • Reasonable

Deadly Force

• Defense of property alone can NEVER

justify the use of deadly force
• Must be used with another source of
defense

NOTES:
 Justification:
Crime Prevention (deadly & nondeadly)
Elements: Mens Rea (min suf.):
Nondeadly Force Common Law:

• Privileged to use force to the extent that it reasonably • Reasonable

appears necessary to prevent a felony, riot, or other serious
breach of the peace

• CA – prevention of any crime allowed Model Penal Code:

Deadly Force • Reasonable

• Old View
• DF allowed to prevent commission of any felony

• Modern View
• DF only if the crime is a “dangerous felony” involving
risk to human life
• Includes robbery, arson, burglary of a dwelling, etc…

NOTES:
 Justification:
Use to Effectuate Arrest (police & private)
Elements:
Police Officer
• Force to apprehend a felon is a type of “seizure” – and
must be reasonable
• DF reasonable only when the felon threatens death or
serious bodily harm and deadly force is necessary to
prevent escape
Private Person
• Same as a police officer BUT DF is only allowed if the
person IS ACTUALLY guilty of the offense for which the
arrest was made
• NDF – acceptable to make arrest if a crime was in fact
committed an the private person has reasonable
grounds to believe person being arrested actually
committed the crime
NOTES:
Mens Rea (min suf.):
Common Law:
• Reasonable
• Private DF – crime must actually have taken
place
Model Penal Code:
• MPC 3.07
• Use of deadly force to make arrest or prevent
escape is justified ONLY IF;
• Crime being committed is a felony
• Arresting person is a police officer or the
person helping must think he is doing it for a
police officer, AND
• D must honestly and reasonably believe that
force used causes NO risk to any other
innocent third party
• Crime for which the arrest is being made is
imminent force OR deadly force OR
• D believes that the peron he is trying to
arrest – deadly force is justified when the
actor believes that there is a substantial risk
that the offender will cause death or serious
bodily injury if his apprehension is delayed
 Justification:
Resisting Arrest (not known police/known pol.)
Elements: Mens Rea (min suf.):
Person NOT Known to be Police Common Law:

• Individual may repel with deadly force if necessary an attack • Reasonable

made by a police officer trying to arrest D is honestly and • Private DF – crime must actually
reasonably does not know that person is a police officer have taken place

Known Police Officer Model Penal Code:

• Majority Rule • Reasonable

• NDF may be used to resist and improper arrest

• Minority & MPC

• Force may not be used to resist one known to be a
police officer

NOTES:
 Justification:
Necessity – Common Law
Elements: Actus Reus: Mens Rea (min suf.):
a) There must be an emergency brought Natural Emergency (split) Common Law:
about by natural forces
b) Emergency was not the fault of D • Emergency in Fact • Imminet to reasonable
c) Harm is so imminent and compelling as expectation of harm
to raise a reasonable expectation of harm • Reasonable and • No reaonable opportunity to
to D or to another or others who D is Honest Belief in the avoid
protecting Emergency • Honest and reasonable belief
d) Situation presents no reasonable that the harm avoided would be
opportunity to avoid the expected harm greater than harm done by D in
without D doing the criminal act violating
e) D must have acted with an honest and • INTENT TO AVOID THE
reasonable belief that the harm avoided by GEATER HARM!
Ds violation of the law would be greater
than the harm down by D violating the
law Model Penal Code:
f) Act must be committed with intent to
avoid the greater harm • n/a

• Criminal Homicide – necessity is NOT acceptable

• If caused by Ds Recklessness or Negligence
NOTES: • When the actor was reckless or negligent in bringing about the situation
requiring a choice of harms or evils or in appraising the necessity for his
conduct, the justification afforded by the Section is unavailable in a
prosecution for any offense for which recklessness or negligence, as the
case may be, suffices to establish culpability
 Justification:
Necessity – Model Penal Code 3.02
Elements: Actus Reus: Mens Rea (min suf.):
a) Conduct which the actor believes to be Natural Emergency (split) Common Law:
necessary to avoid a harm or evil to
himself or to another is justifiable • Harm avoided was • n/a
provided that: greater than harm that
i. The harm or evil sought to be occurred “counting
avoided by such conduct is greater noses” Model Penal Code:
than that sought to be prevented by
the law defining the offense and Surrounding Circumstances • Honest belief of the actor
charge • No legislative intent
ii. Neither the Code nor the other • No other defenses
law defining the offense provides dealing with situation
exceptions or defenses dealing with
the specific situation involved, AND
iii. A legislative purpose to exclude the
justification claimed does not
otherwise plainly appear

• Criminal Homicide – necessity is NOT acceptable

• If caused by Ds Recklessness or Negligence
NOTES: • When the actor was reckless or negligent in bringing about the situation
requiring a choice of harms or evils or in appraising the necessity for his
conduct, the justification afforded by the Section is unavailable in a
prosecution for any offense for which recklessness or negligence, as the
case may be, suffices to establish culpability
 Excuse:
Duress – Affirmative Defense
C.L. Elements: MPC 2.09 Mens Rea (min suf.):
a) Situation must be brought about by “Choice of Evils” – avoid greater evil Common Law:
mental pressure exerted on D by
another person with Ds fault, AND
2.09 – does not require death or • Reasonable belief of unlawful
b) D must be under unlawful present
imminent use of threat of harm to immediate threat of extreme threat
himself or one of his family or perhaps bodily harm • Reasonable apprehension
another, AND • Must in fact believe
c) Threat is of such nature as to induce REQUIRES – threat of unlawful force • No reasonable alternative
in D a reasonable apprehension of
immediate unlawful death or serious Model Penal Code:
bodily harm if D fails to do the
criminal act, AND
d) D must in fact believe that he will
suffer death or immediate serious
bodily harm if he fails to do the act,
AND
e) D must have no reasonable alternative
for violating the law

NOTES:
Exceptions for when 2.09 & 3.02 are • Future Harm - does not do for duress, is it's in the future then there is a reasonable
insufficient alternative that can be sought
• Prison Escape • Harm - must be such that a person of reasonable firmness in Ds situation would be unable to
• Medical Exception – D does not get resist
medicine he needs to survive • Duress - at COMMON LAW - can excuse any crime other than intentional homicide
• Weapon Possession by D when illegal for • At MPC it can excuse any crime including criminal homicide
D to possess
 Excuse:
Intoxication
C.L. Elements:

a) When intoxication leads to permanent mental incompetence or mental disease

i. Does not matter if voluntary or involuntary – if disease causes D to engage in criminal
conduct then going to insanity defence

b) Temporary Insanity (3 Approaches)

1. Some – defense if voluntary ingestion alone

2. Others – if caused by involuntary where D did not know that ingesting substance would cause
temporary insanity (If known then doesn’t work

3. Others – temporary insanity is not available UNLESS taking medicine on doctor’s instruction
AND doctor failed to give notice

NOTES:
 Excuse:
Intoxication – Voluntary
C.L. Elements: Mens Rea (min suf.):
a. Intentionally taking For Voluntary Intoxication as Defense:

b. Without duress • If PURPOSE/KNOWLEDGE

c. A substance known to be
intoxicating – D need not have
intended
• May mitigate
• Specific Intent – possible
• General Intent – not possible
• Purposely Become Intoxicated
• Defense is not available
• NO defense for crimes requiring MALICE,
RECKLESSNESS or NEGLIGENCE or crimes
of STRICT LIABILTY

NOTES:
 Excuse:
Intoxication – Involuntary
C.L. Elements: Mens Rea (min suf.):
a. Taking of intoxicating substance
either: • For Mens Rea Purposes:
• Will be treated like any other
1) Without knowledge of its mental illness – will depend on
which jurisdictional test is used
nature

2) Under direct duress imposed by

another

3) Pursuant to medical advice

while unaware of substance’s
intoxicating effect

NOTES:
 Excuse:
Mistake
C.L. Elements: Mens Rea (min suf.):
• Mistake of Fact Mental State of Crime As It Relates to Mistake of
FACT:
• See mens rea
• Specific Intent = ANY mistake
• Mistake of (Collateral) Law
• Must be a law that D is not being • Malice & General = REASONABLE mistake only
charged with • Strict Liability = NEVER

• Mistakes as to Law Proscribing Ds Common Law – Any Mistake:

1. Only when negates intention
Conduct 2. Is NOT a defense for strict liability
• Will not work 3. Application of defense only when reasonable

• Mistake to NEGATIVE Mens Rea

• Must be HONEST & REASONABLE
• Recklessness – the conduct is automatically
unreasonable

NOTES:
• Normally will apply to Ds conduct not
the result
• If law – must be OTHER than law
with which D is being charged
• Mistake: applies to criminal liability as a defense if it negates a mental state – mens rea
required to establish an element of the actus reus of the crime, may apply to lowering the
guild to a lesser crime
 Provocation (excuse/mitigation)
Elements:
Common Law Elements:
• Legally adequate provocation
(objective standard to jury)
• Killing must have been in the
heat of passion (subjective
standard)
• Heat of passion must have been
sudden (objective)
• Causal relationship between
provocation, passion and fatal act
MPC 210.3(1)(b)
• Not all heats of passion are
sudden so MPC allows for
smoldering anger
NOTES:
Law says that the act was the RIGHT
thing to do – works for the accomplice
Actus Reus: Mens Rea (min suf.):
• Action resulting from heat of Common Law:
passion
• Honest and reasonable, no room
• MD Rule – Catching spouse will for anything less
no longer count as provocation
• May mitigate from M1 to Model Penal Code:
M2 but will not go from
M2 -> manslaughter • Honest and reasonable
Statutory Modifications
• Instead of heat of passion = extremely mental or emotional disturbance for
which there is reasonable justification or excuse
Common Law Provocation
• Either have COMPLETE justification/excuse or not
• If D acted in any unjustifiable way, then defense is not an option
 Causation:
Cause In Fact – “But For”

C.L. Elements:
a. Ds conduct must be the cause-in-fact
of the result “but for”

• i.e. Common Law Year and Day

• death must occur within
one year and one day from
infliction of injury or wound

NOTES:
 Causation:
Proximate Cause
C.L. Elements:
Whether the difference in the way the death was intended or anticipated and the way in which it actually occurred breaks the
chain of “proximate causation”

1) All Natural and Probable Results Are Proximately Caused

o D is responsible for all results that occur as a “natural and probable” consequence of his conduct – even if he did not
anticipate the precise manner in which they would occur, he may still be liable for the result
o Chain may be broken by “SUPERSEDING FACTOR”

a) Intervening Force: comes about after Ds force is put in motion and brings about harm in a different way – look at
concurrence [i.e. 2 shooters hit one V, if dies from both bullets then both Ds are responsible for death even if
neither on own would have caused death]
 Take Victim as Found – if shot normally wouldn’t kill but does kill, still responsible for death

b) Independent – cause is dependent if it is in response to Ds conduct

• Intervening acts on part of V in response to Ds acts are dependent and do not break the causal chain –
can go pretty far
• Intervening acts of D himself will not break causal chain
• Intervening acts of 3rd party can or cannot be dependant – will be up to the judge
• Intervening Non-Human – generally independent
• If intend harm by raaaaatttttttlesnake then dependent, foreseeability

c) Unforeseeable - negligence by medical personnel is deemed to be COMPLETELY foreseeable (takes something

really outrageous)

2) Transferred Intent
NOTES:
 Causation:
Simple Theory (MPC 2.03) = “But For” +
MPC 2.03:
Result must be within:

1. Ds purpose or knowledge in case of crime of purpose or knowledge, OR

2. The risk which D foresaw (recklessness) or should have foreseen (negligence),

AND

3. Variation between actual result and that intended, contemplated, or risk involved
not so extraordinary that it would be unfair or unjust to hold responsibility

When Purpose/Knowledge – result must have been intended – within purpose/knowledge

When Reckless/Negligence – result must be within risk D foresaw (if reckless) and what D should have foreseen (negligence) – if
superseding event then not liable

Rules of Causation:
1. Hastening Inevitable Result - Act that hastens an inevitable result is still legal cause
2. Simultaneous Acts - Simultaneous acts by two or more may be considered independently sufficient causes of a single result
3. Preexisting Condition - “Take the victim as you find him”
 Causation:
Complex Theory (C.L. Approach) = “But For” +
Common Law Elements:
Result must be within:

1. D intended or contemplated (in crime of purpose or knowledge) or

2. D foresaw or should have foreseen (in crime of recklessness/negligence) and

3. If crime is one of recklessness/negligence there must be no supervening cause

When Purpose/Knowledge – result must have been intended – within purpose/knowledge

When Reckless/Negligence – result must be within risk D foresaw (if reckless) and what D should have foreseen (negligence) – if
superseding event then not liable

Rules of Causation:
1. Hastening Inevitable Result - Act that hastens an inevitable result is still legal cause
2. Simultaneous Acts - Simultaneous acts by two or more may be considered independently sufficient causes of a single result
3. Preexisting Condition - “Take the victim as you find him”
Notes:
• When “forces come to rest in a place of safety” it may be enough to break the causal chain
• If someone else uses Ds method to attack another V, i.e. D2 uses D1 poison coffee to poison V2, D1 not liable

Intervening Acts: 1) Act by Nature 2) Act by Third Party 3) Acts by the Victim
W-RV ARRBA LBC-PTMFT EAF
Warning Accomplice Larceny Embezzlement
Retroactive Crim. Rape Bulk After Trust (larceny)
Vagueness Rape Carriers False Pretenses
Bigamy Property (lost)
Abduction Trick (larceny by)
Misdelivery
Finders
Trespass

AMHB BAAA REEB-FU JSA-DDO

Arson Battery Robbery Justification
Malicious Mischief Attempted Battery Extortion Self Defense
Houseburning Assault (tort) Extortion Deadly
Burglary Aggravation Bribery Nondeadly
Forgery Aggressor
Uttering Defense of Others
Dwelling
Other Property
CUPSX EXDDIVIMP HM4-IS- DF-MCUFS C-PARNN
Causation Excuse Homicide Crime Prevention
But For Duress – CL Murder Deadly
Proximate Duress MPC 2.09 Intent to Kill Nondeadly
Simple Intoxication Serious Bod. Injur Arrest
Complex Voluntary Depraved Heart Resist Arrest
Involuntary Felony Murder Necessity CL
Mistake Manslaughter Necessity MPC 3.02
Provocation Voluntary
Involuntary
Crim. Negligence
Unlawful Act
First Degree
Second Degree
 Defendant

Fiduciary
Non-Fiduciary

Non-Servant Servant Bailee

Taker by
Trespass

From 3rd
From V
Party
Mistake
Intentional
From V (goat)
From 3rd for V By Count Package
St. Larceny
After Trust
No Crime
St. Embz. Break
The Package
Put in V Larceny by Package
Direct Bailee (st.)
No Crime Possession
Misapprop.
Lar. By
Bailee
CL Larceny
CL Larceny
CL Larceny Continuing No Crime Bulk Carriers Case
Trespass = CL CL Larceny
Stat.
Larceny
Embezzlement

By Count By Weight

Larc. By
Bailee

Finder Misdelivery
Some = CL.
Larceny – Carriers All = Lar. By Bailee

Find Owner V Intends Just

Possession
Cant Find Owner

V Intended
Possession and Title
Intent to Keep =
CL Larceny
Some Juris –
misappropriation
by finder statute
Keep = no
crime Identity of Identity of FINDERS Situation
Person Property
Intent to Return but
Don’t = Larceny by
Bailee
Return w/ Condition =
CL Larceny (give up
right)
No Crime, unless FINDER’S
misdelivery statute SITUTION