Criminal Law – Spring 2003 Professor Podgor Page 1 Criminal Law I. General Foundations of Criminal Law A.

Actus Reus + Mens Rea + Causation + Attendant Circumstances = Crime B. Majority of Criminal Law is Codified/Statutory 1. If a statute cannot be read to prohibit a given action, it is usually not a crime. 2. Common law is not irrelevant – Common law is important in interpreting the meaning of the criminal statute. C. Statutory Interpretation 1. Methods of Interpretation i. Statute’s Words ii. Legislative History iii. Cases/Common Law iv. Public Policy 2. Rule of Lenity i. When the statute is ambiguous, the ambiguity is resolved in favor of the defendant. D. Ways of Charging Criminal Offenses 1. Grand Jury issues an indictment. 2. Prosecutor issues a criminal information. E. Burden of Proof in Criminal Cases 1. Typically, prosecution must prove every element (material or nonmaterial) of the offense beyond a reasonable doubt. i. Non-material element such as venue – some jurisdictions do not require prosecution to prove beyond a reasonable doubt. 2. There is no Constitutional requirement that affirmative defenses have to be proven by the prosecution. i. Typically, affirmative defenses must be proven by the defense. 3. MPC i. Elements a. Part of the definition of the crime. b. Essential facts which, if proven by the prosecution, justify conviction of the crime. ii. Defenses a. Must be raised by the defendant. b. Once raised by minimally sufficient evidence, the prosecution must disprove beyond a reasonable doubt. c. An example is self-defense. iii. Affirmative Defenses a. Depend on facts independent of the crime elements. b. Do not disprove the elements. c. Burden to prove affirmative defenses is on the defense. d. Standard is by a preponderance of the evidence. e. Example is emotional disturbance.

On appeal of a criminal case. 3. 3. Deference to legislative definition as opposed to judicial expansion. Crime definition should apply equally to individuals as opposed to being arbitrary. Modify the behavior of the wrongdoer. 2. Bill of Attainder i. 5. 4. ii. Sufficient clarity of definition so that the statute is not vague. v. Deterrence i. 2. At the end of prosecution’s case. Deter society from criminal activity through the punishment of individuals. Looks forward. court views the evidence in a light most favorable to the government. Rehabilitation i. 5. Denunciation/Shame i. iii. Looks forward. iv. ii. Insufficiency of Evidence 3. Vagueness means that men and women of common intelligence could disagree as to the true meaning. Incapacitation i. High burden of proof puts a premium on accurately defined criminal offenses. Jury Instructions Punishment Theories A. Prior to the commission of the crime.II. Retribution . Specific a. Reasons for Punishment of Wrongdoers 1. the ambiguity is resolved in favor of the defendant. Looks forward. Rule of Lenity – when the statute is ambiguous. iii. a. ii. Constitutionality 2. F. ii. Overbreadth of Statute 4. Deter specific defendant from future criminal activity. Must have trial. a. Evidence Admission 4. there must have been a prohibition on the conduct. General a. Ex post facto – cannot prosecute for crime that was not prohibited prior to its commission. Vehicles for Appeal 1. Criminal Law – Spring 2003 Professor Podgor Page 2 4. ALWAYS make a motion for directed verdict. G. Notice i. Prevention of Cruel and Unusual Punishment – 8th Amendment H. Constitutional Considerations 1. Incapacitate the wrongdoer so that they cannot commit the crime again.

there may be more required for liberty. due process. ii. i. Legal duty premised on a. i. 2. Actus Reus 1. A bodily movement during unconsciousness or sleep. under a state constitution and therefore the defense may use state law or the state constitution. Punishment may be a factor in determining whether a particular act should be a crime. Omission to perform an act can also satisfy the actus reus. Punishment should be in proportion to the harm to society. Supreme Court indicates that death penalty is looked at by how it is regarded by society and how it is in accord with the dignity of man. The physical element.S. A reflex or convulsion. In some instances. G. F. U. Comparison of punishments for more serious crimes outside the jurisdiction. there must be a legal duty to act. Legislature determines. Outside the U. 2. etc. Capital Punishment 1. B. 2. In most states. iii. Gravity of the offense ii. there must be aggravating and mitigating circumstances. In order for omission to satisfy actus reus. 6. Conduct during hypnosis or resulting from hypnotic suggestion.. 1.Criminal Law – Spring 2003 Professor Podgor Page 3 i. A bodily movement that otherwise is not part of the effort or determination of the actor. D. Looks back. . 1. 2. Some states allow compensation for crime victims. Three-prong test i. The “wrongful act. Punishment for sake of punishment. “Just Desserts” iii. either conscious or habitual. Statute III. Involuntary Acts under the MPC i. Mere thoughts cannot be a crime. E. Comparison of punishments for more serious crimes within the jurisdiction.” 3. Elements of The Crime A. Act must be voluntary or the omission to perform an act of which he is physically capable. C. Punishment may also factor into whether or not a particular defendant should be prosecuted given the limited funds available. iii. Victims impact statements. iv. 5. ii. Constitution is merely the minimum standard.S. 4. 3. Interest of Crime Victims 1. Proportionality 1. the death penalty is not widely accepted.

Negligence vi. b. Intent iii. Specific intent crime is a crime that requires particular mens rea. Common law approach of looking at mens rea. Additional element of intent in the statute makes the crime a specific intent crime. 7. Specific and General Intent i. Knowledge iv. 3. b. Specific Intent a. No particular mental state is spelled out in the statute. Culpability – was there a “wrongful” mind? ii. iii. Willfulness vii. Scienter x. A particular mental state is spelled out in the statute. 5. A criminal state of mind. c. Malice aforethought ii. 8. Possession can be of two types a. Jury must be instructed as to legal duty and the basis for that duty in the particular case.” 2. Some mens rea terms i. i. Mens Rea 1. Elemental – looks at specific elements of the crime. Actual possession b. Willful blindness 4. Recklessness v. Two approaches to mens rea i.Criminal Law – Spring 2003 Professor Podgor Page 4 th 1) Example – must file taxes by April 15 – failure to act is a criminal violation. Possession can satisfy actus reus. i. Premeditation viii. Constructive possession – the ability to exercise dominion and control over the item. Voluntary assumption of care of another 1) Example – Caregiver/Child ii. B. Deliberation ix. . Status or condition CANNOT satisfy actus reus. General Intent a. Status relationship 1) Example – Mother/Child c. The “wrongful mind. Example – being addicted to narcotics is a status or condition and does not satisfy the actus reus element. Contractual duty 1) Example – Doctor/Patient d. ii.

b. it is his conscious object to engage in conduct of that nature or to cause such a result. Four kinds of culpability a. he is aware of the existence of such circumstances or he believes or hopes that they exist. c. if no mental state is provided by statute. Recklessly 1) A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. 3) Under MPC. he is aware that it is practically certain that his conduct will cause such a result. MPC Approach to Mens Rea i. Purposely 1) A person acts purposely with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or a result thereof. he is aware that his conduct is of that nature or that such circumstances exist. Substantial and unjustifiable risk ii). 6.Criminal Law – Spring 2003 Professor Podgor Page 5 b. 2) Key factors constituting recklessness include i). iii). d. and (ii) if the element involves the attendant circumstances. “willfully” means knowingly. Negligently . the mental state is presumed to be “recklessly”. Knowingly 1) A person acts knowingly with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or the attendant circumstances. its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation. The risk must be of such a nature and degree that. Conscious disregard of risk. Gross deviation from standard of conduct. considering the nature and purpose of the actor's conduct and the circumstances known to him. 3) Circumstantial evidence can be used to determine knowledge. All crimes that are not specific intent crimes or strict liability crimes would be general intent crimes. and (ii) if the element involves a result of his conduct. 2) In jurisdictions adopting MPC.

Gross deviation from the standard of care. Willful Blindness i. jury can still convict of crime. iii). Misidentification b. (if yes = strict liability) d. Whether legislative policy would by undermined by a mens rea. Factors to determine if offense is strict liability a. Severity of punishment prescribed (low = strict liability) 1) If there is any prison time. 7. Expanded intent c. ii. iii. Creation of common law. 2) Criminal negligence aspects i). ii. could be strict liability) e. iv. Result of the criminal activity is the same. Should have. Prototypical example is the shooting of one person while trying to shoot another. if evidence establishes a higher mental state than required by the actual elements of the crime (ex. but failed to perceive risk. Stigma (low stigma = strict liability) f. considering the nature and purpose of his conduct and the circumstances known to him. 8. D acted purposely when statute requires knowingly). Exceptions to Doctrine of Transferred Intent a. 3) Difference between criminal and civil negligence is that a “gross deviation” from the standard of care is required for criminal negligence. Offenses that do not have any mens rea requirement are strict liability crimes. General provision on mens rea in statute b. Transferred Intent i. Common law derived is typically not strict liability. d. Substantial and unjustifiable risk. c. Strict Liability i. Different harm/different crime. Occurs when the defendant claims to not have knowledge of the criminal offense but facts indicate that he should have known. under the MPC it cannot be a strict liability offense. 9. Public welfare offense (if yes. involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation. The risk must be of such a nature and degree that the actor's failure to perceive it.Criminal Law – Spring 2003 Professor Podgor Page 6 1) A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. . ii. Under MPC. ii). Explicit statement in statute with no transferred intent. Punishment would still be the same if crime had been committed.

2) Mistake of fact must be reasonable. . Standard reasonable properly expected of person. If the criminal statute. 3) There is no mens rea to negate in strict liability offenses. Even if statute is silent. 3) Mistake of fact will exculpate defendant if it negates mens rea described in the statute. 10.Ignorance or mistake of the law is not an excuse. Must negate state of mind required for crime. General intent crimes 1) Good faith belief that act was lawful. Specific intent crimes 1) Good faith belief that act was lawful. ii). 2) Mistake is irrelevant. d. MPC attaches mental state requirement to all crimes. 2) Mistake of fact can be reasonable or unreasonable. Starting Point . Reasonable reliance on a statement of the law by a public official who has authority to interpret or enforce the law. Mistake of Law i. Strict liability crimes 1) Mistake of fact CANNOT be a defense in strict liability crimes. b. Common Law a. Not available in negligent or reckless use of force. c. 3) Generally. on its own. malem prohibidim h. ii. the mental state is recklessness. whether reasonable or unreasonable.Criminal Law – Spring 2003 Professor Podgor Page 7 g. c. 11. Mistake of Fact i. Question is does the defendant have the specific mens rea as defined by the statute and does the mistake negate the specific mens rea. 1) Exceptions i). e. Common Law a. Not available if guilty of another offense 1) Reduces grade and degree of offense or complete defense if specific intent crime. b. thus there is no strict liability. iii. Rule is the same regardless of whether it would be characterized as specific or general intent under common law. requires defendant be aware of the law. a reasonable mistake of fact is a nonculpable mistake of fact that will negate the mens rea. MPC a. Malem in se v.

vi. the court will follow it no act that occurs in reaction or response to the defendant’s prior wrongful conduct. There are very few bright lines to determining proximate cause. iii. v. Broader than actual causation. Responsive Intervening Cause . 2. iii. b. 2) Intended Consequences Rule – jury will look backwards from the social harm until they find an intent to cause that harm. then look for proximate cause. that person has caused the death. iv. 1) De Minimus – when a defendant’s causal responsibility for ensuing harm is insubstantial in comparison to that of an intervening cause. Obstructed keeps actor from being charged. 3) Apparent Safety Doctrine – when a defendant’s active force has come to rest in a position of apparent safety. vi. ii. Legal Cause (Proximate Cause) i. does not relieve the initial wrongdoer. If someone accelerates the death. Intervening Causes – something coming between voluntary act and social harm. Actor who causes injury but is not actual cause of offense. Causation A. they must deserve to be held accountable. If we are going to hold one person responsible for the harm. Both actors are liable for harm. Factors to evaluate whether defendant was the proximate cause. . B.Criminal Law – Spring 2003 Professor Podgor Page 8 IV. 4) Voluntary Human Intervening Cause – free will intervention of human being is a superseding cause of harm 5) Foreseeability of the Intervening Cause i). would the social harm have occurred when it did? ii. In the real world. a. This is a policy decision. Two Elements of Causation 1. Multiple Actual Causes iv. Concurrent Sufficient Causes a. unless the response was highly abnormal or bizarre. Obstructed Cause a. Typically. v. After determining if actual cause is present. “But for” the defendant’s voluntary act or omission. Cause in Fact (Actual Causation) i. The link between the defendant’s conduct and the social harm that occurred. there is not only one cause of harm.

Territorial – where the crime occurred. genocide. Jurisdiction over the accused 1. the original wrongdoer is relieved of responsibility. prosecution must prove crime was committed in the venue in which the case is brought. Universality – custody of the offender is sufficient for certain crimes (war crimes.S. etc. Passive Personality – nationality of the victim. MPC a. Homicide 1. In some cases. v. 3. Corporations as defendants. Coincidental Intervening Cause – an act that does not occur in response to the original wrongdoer’s conduct. In some jurisdictions. Venue 1. Homicide Requires a Dead Body i. Objective Territorial Jurisdiction – allows prosecution to reach acts committed outside of U. Specific Crimes A.) B. 2. i. 2. iv. C. Five principles upon which criminal jurisdiction over an act outside of U. iii. intervening cause. Concurrence of the Elements 1. Protective Principle – protection of national interests. 6) Omission – a failure to act will rarely. Unless cause was foreseeable. If no intervening causes there is a direct causal connection. the body (corpus delecti) is not necessary and can be shown by circumstantial evidence. serve as a superseding. human rights violations. a.S. . if ever. Purposely and knowingly – Result must be within contemplation of actor b. Cannot form intent to kill a week after the act occurs – accidentally kill someone and then a week later decide that it was a good thing person was killed.V. The elements of the offense must all concur. viii. i. ii. Corporations are routinely found to be “persons” for the purposes of the criminal charge.S. Recklessly or negligently – Actor is aware or should be aware of the risk Attendant Circumstances A. Proof that defendant was the perpetrator of the crime. D. Acts of the Defendant 1. Who may be a defendant under the statute. vii. Criminal Law – Spring 2003 Professor Podgor Page 9 ii). but intended to have consequences inside the U. VI. Nationality – nationality of the offender.

a defendant could not be prosecuted for homicide unless the victim dies within a year and a day of the act inflicting the injury. Most jurisdictions prescribe time limits by statute. Common law elements a. Depends on the statute. Most jurisdictions do not require an intentional killing. premeditated. Dead body or evidence of a killing. unless they are informational words (words that express that someone has been killed. Other common law mens rea terms include willful. utilized heart death. Some do not include fetuses. Evidence of premeditation and deliberation can be shown by a. Voluntary Manslaughter i. Criminal Law – Spring 2003 Professor Podgor Page 10 ii. c. Premeditation and Deliberation are terms used to distinguish first and second-degree murder. 5. b. some jurisdictions require an intentional killing. ii. Criminal homicide constitutes murder when it is committed purposely or knowingly. What constitutes death? a. Express 1) Deliberate intention to unlawfully take the life of another. Malice aforethought a. Planning activities b. Adequate provocation. 3. b.). ii. iii. At common law. etc. 2) Circumstances of the killing shown an abandoned and malignant heart. Many jurisdictions have incorporated brain death as a measure of death. iv. Jurisdictions may use different degrees to define murder. Some separate the two. 4. deliberate. 1) Mere words do not constitute adequate provocation.2. v. etc. 2) Categories of provocation include substantial physical injury or substantial physical assault. at common law. . Some states include fetuses and human beings together. Degrees of Murder i. Implied 1) Act with a conscious disregard for human life. Motive as a way of showing mens rea c. Year and a Day Rule a. Pre-conceived design Murder under the MPC i. iii. b. Common Law Mens Rea i. Most jurisdictions.

ii. Causation – there must be a causal link between the felony committed and the murder. b. d. and killing. 6. MPC abolishes felony murder. Unintentional Killings . e. Felony Murder i.Criminal Law – Spring 2003 Professor Podgor Page 11 mutual quarrel or combat. passion. b. illegal arrest. Common law indicated that if killing happened during commission of a felony. or b. c. No cooling time. Dangerous Act – requires proof that the defendant performed some act during the commission of the felony that was clearly dangerous to human life. 7. f. iii. 2) Some courts look at dangerousness based on specific facts and circumstances of the case. Reasonableness is viewed subjectively as actor believes the situation to be. MPC – Negligent Homicide a. It is committed recklessly. Merger – Most states exclude lesser degrees of homicide (voluntary and involuntary manslaughter) and some even exclude assaults. Common Law – Involuntary Manslaughter a. Killing is committed during commission of an unlawful act other than a felony. Inherently Dangerous Felony – some states require that the underlying felony be inherently dangerous. Co-felons – some states refuse to elevate the death of a cofelon by third party to a murder charge against the remaining felons. Sudden quarrel or heat of passion. ii. . Killing is committed during commission of a lawful act done in an unlawful manner likely to cause death or great bodily harm. 1) Some courts look at dangerousness in abstract. A homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse. e. c.Involuntary Manslaughter & Negligent Homicide i. malice was implied and the defendant could be charged with the murder. or adultery with the offender’s spouse. d. MPC .Criminal homicide constitutes manslaughter when a. iv. Limitations to the Felony Murder Rule a. Criminal homicide constitutes negligent homicide when it is committed negligently. Most states have retained the felony murder rule. ii. Causal link between provocation.

2. Spousal defense? Robbery 1. Against will v. Carnal knowledge ii.B. Forcibly iii. Breaking and entering ii. Common Law Elements i. However. Dwelling house of another iii. Embezzlement . Burglary 1. Under 10 years old 3. At nighttime iv. With intent to commit a felony therein. Sexual intercourse ii. Marital immunity rule 2. Degrees ii. Forms of Theft/Larceny i. Forcibly or without consent (on whom to place the focus) iv. Most jurisdictions have removed the requirement of the act occurring at nighttime. Commission of a misdemeanor that results in a killing allows a charge of misdemeanor manslaughter. Age of victim iii. Vaginal penetration required v. Rape/Sexual Assault 1. felony murder approaches strict liability. D. Gender of victim or neutral? vi. Unconscious female OR c. Against her will iv. Felony murder dispenses with mens rea requirement for murder. Includes a taking of the property of another by force or intimidation. Some jurisdictions follow. Thus. Specific intent crime because of the additional intent of intent to use force or intimidation. Common Law Elements i. Statutes vary with regard to the following elements: i. Compulsion to submit using force. not his wife iii. threat of death or injury or pain to be inflicted on anyone OR a. With female. MPC Elements i. Impaired her power to appraise or control her conduct (drugs/intox) OR b. Theft/Larceny 1. it is not truly strict liability because there is a necessary mens rea for the underlying felony. 2. ii. Criminal Law – Spring 2003 Professor Podgor Page 12 v. E. Misdemeanor Manslaughter i. C. 8.

When one receives the possession of property lawfully because it is entrusted to him and then converts the property to a use not authorized by the owner. No person shall receive. Personal property of another iv. . Obtaining property by false pretenses a. Tests for determining whether act has surpassed mere preparation sufficient to be an attempt i. iii. 2. Factors 1) Nearness of danger 2) Greatness of harm 3) Degree of Apprehension iv. b. or dispose of property of another knowing or having reasonable cause to believe that the property has been obtained through commission of a theft offense. Common Law Elements i. Criminal Law – Spring 2003 Professor Podgor Page 13 a. Signified by entrustment situation. Physical Proximity a. Knowingly and with design uses fraudulent representation to obtain property from another who intends to part with possession and title. The key is determining at what point the attempt becomes a criminal act. Most states have adopted a consolidated theft statute that covers all. 3. Last Act a. 3. Indispensible Element a. Receiving Stolen Property 1. Taking ii. Probable Desistence a. Typical statute i. Must have tool necessary to complete the crime. When one obtains possession of the property of another by some trick or device and the other person does not intend to transfer title to the property. Asportation (taking away) iii. retain. ii. Attempt 1. 2. ii. Attempt is somewhere between mere preparation (not a crime) and the act itself (a crime). Dangerous Proximity a. v. Inchoate Crimes A.VII. iii. Must have performed last possible act prior to completion of the crime. With intent to permanently deprive F. Larceny by trick and device a. Act which in ordinary course would result in the intended crime without extraneous factors. How close in physical proximity is the actor to committing the crime.

Deterrence ii. inducing. MPC i. With that purpose.Impossibility i. legal impossibility WAS a defense. c. The act has no other purpose but the commission of the crime. MPC a. vii. Under MPC. Pickpocket stealing from an empty pocket. Factual Impossibility – the defendant misperceives the facts. Rehabilitation iii. but if the facts were as the defendant believes them to be. b. the defendant could accomplish the object crime. requesting. Under common law. Actor’s purpose is to promote or facilitate the commission of a substantive offense ii. factual impossibility was NOT a defense. enticing. there is no solicitation. To commit a crime 2.Criminal Law – Spring 2003 Professor Podgor Page 14 vi. ii. iii. Res Ipsa Loquitur a. Abandonment must be a. commanding. he commands. but commission of the crime is impossible due to a factual mistake regarding the legal status of some attendant circumstance that constitutes an element of the offense. Policy reasons behind attempt as a crime i. Defenses to Attempt . Mens rea for attempt is the specific intent to commit the underlying crime. Common Law Elements i. encourages or requests another person to engage in conduct that would constitute the crime 4. 7. Asking. hiring of another ii. 5. some jurisdictions indicate that if communication is not received. Substantial step in committing the crime. Defenses to Attempt – Abandonment i. 1) Offering a bribe to a juror who is not a juror. Hybrid – If the actor’s goal is illegal. Pure . inviting. Under common law. Complete B. i. 3. . Under common law. Leaving a message that does not get received constitutes solicitation. Solicitation 1.Person believes they are committing a crime when they really are not. Voluntary b. a. 4. Modern trend is away from either form of impossibility as a defense. Retribution 6. b. Legal Impossibility – when the law does not prevent the goal that the defendant sought to achieve. a. uncommunicated solicitation is irrelevant.

Actually or constructively at the scene of the crime and aided or abetted its commission . Distinctions i. Conspiracy 1. C. the offense must be part of the conspiracy and in furtherance of it. In order to be liable for substantive offenses committed by a coconspirator. 4. Entered into agreement with at least one other person v. 9. 6. Agreement a. Conspiracy to commit adultery would not be chargeable because it requires two people by its very nature. Factors to determine if it is a single conspiracy i. Conspiracy with an illegal purpose ii. conspiracy cannot be charged. Mere knowledge is not sufficient for conspiracy. Policy Rationale i. Defendant was aware of the conspiracy iii. Offense of conspiracy protects the public from concerted criminal activity. Over act – some statutes require an overt act 2. Whether the participants of the alleged multiple schemes overlapped 8. 3. Complete and voluntary renunciation is an affirmative defense for solicitation under the MPC. Criminal Law – Spring 2003 Professor Podgor Page 15 5. Common Law 1. 6. Unlawful act iii. Accomplice Liability A. Principals in First Degree a. i. Agreement b. Government must prove i. Plurality – more than one person b. Defendant knowingly became a part of it iv. Commitment to essential plan iv. The nature of the underlying scheme iii. just essential plan ii. Objective was violation of the law 5. Knowledge of a.VIII. Principals in Second Degree a. Actually perpetrated the offense ii. Conspiracy may be implied by circumstances and actions of parties. Conspiracy can be proven by circumstantial evidence. Elements of conspiracy i. Essential plan – do not have to know all details. Whether a common goal exists ii. Innocent instrumentality – person who acts at behest of another without mens rea for crime is not guilty of the crime. 7. Wharton’s Rule – when the conspiracy by its very nature requires a plurality.

Must be complete and voluntary 2. Affirmative obligation to retreat when participating in voluntary mutual combat before using deadly force. use of force is usually not considered necessary. 2. When attacked in dwelling one does not have to retreat prior to using deadly force. does not extend outside of dwelling. ii. Abandonment of Accomplice Liability 1. Two Intents for Aiding and Abetting 1. . accessory may be prosecuted.Criminal Law – Spring 2003 Professor Podgor Page 16 iii. Intent to commit underlying crime. Three possible exceptions i. E. Not followed in all jurisdictions. Proportionality iii. Might need to communicate to law enforcement 3. 1. C. Possible Standards i. Might have to stop crime from being committed Defenses A. Self-Defense 1. Rendered assistance after the crime was complete 2. People who facilitate or encourage the commission of a crime may find themselves liable for the crime through the natural and probable consequences doctrine. iii. IX. b. MPC uses strictly subjective standard iii. Never required to retreat from sudden attack or if there is belief that attacker is going to use a deadly weapon. MPC indicates do not have to retreat in place of employment. ii. Accessories Before the Fact a. B. Some courts require that victim retreat if possible. Aided or abetted the crime but were not present at its commission iv. a. Mixed – “a reasonable person in the actor’s situation” a. Intent to aid and abet. Common law rule was that accessories could not be convicted without prior conviction of the principal. Natural and Probable Consequences Doctrine 1. Even if principal is not convicted or even charged. Necessity a. Accessories After the Fact a. Typically. Reasonable belief 3. Majority rule 2. Subjective – what the defendant would do a. Objective – what a reasonable person would do ii. If threat is not immediate. General principles for using self-defense i. D.

Reasonable belief that intervention was lawful. Not prohibited by statutory law 2. Some courts allow deadly force to defend dwelling house. Amount of force used must be reasonable. Direct i. Common Law i. iii. Level of danger must be such that victim is in imminent danger of death or serious bodily injury Defense of property 1. Harm done is less serious than harm prevented v. Protest against a specific law by breaking other law(s). MPC i. Legislature has not precluded the defense as part of the statute Civil Disobedience 1. No legal alternative to abate iv. 2. Action would be effective in abating the harm iii. E. H. 2. G. C. However. this might be a justifiable defense. Can constitute adequate provocation and reduce murder to manslaughter. Indirect i. Entrapment . No reasonable opportunity to escape iv. General rule is that deadly force cannot be used to protect property. a. D. can assert self-defense. Aggressor does not have right to self-defense. Cannot use civil disobedience as a defense to indirect civil disobedience. Common Law i. Key elements of using deadly force in the defense of others i. 2. Battered Spouse Syndrome 1. No adequate alternative iv. Common Law i. if tables turn and initial aggressor become victim. Can be a separate defense. Clean hands vi. Reasonably expects that the action will be effective in abating danger iii. Immediate threat of death or serious bodily injury ii. 2. F. Protest against a specific law by breaking that specific law. Can be justification for self-defense. Well grounded fear that threat would be carried out iii. Defense of Others 1.B. iv. a. ii. Defendant has burden of proof because it is an affirmative defense. In some instances. Criminal Law – Spring 2003 Professor Podgor Page 17 4. Duress 1. A defendant faced with clear and imminent danger ii. 3. Required defense to be defending a family member. Clear and imminent danger ii. Did not put himself in harms way Necessity 1.

Must prove 1) Mental disease or defect AND 2) Unable to exercise control over actions. Tests for insanity a. c. I. thinking about the crime for a long time b) Blurry line between what is an irresistable impulse and what is simply an impulse not resisted . 2. Problems with this test a) Focus on cognition. Need to prove 1) Mental disease or defect AND 2) As not to know the nature and quality of the act he was doing OR 3) Did not know what he was doing was wrong. ii. Incompetence i. 3. Prosecution must show beyond a reasonable doubt that defendant was disposed to commit the crime PRIOR to being approached by government agents. b. M’Naghten Rule – Inability to distinguish right from wrong. Irresistible Impulse Test – broadens scope of M’Naghten Rule. Insanity and Diminished Capacity 1. b) restricts expert testimony to the point where it may be considered “professional perjury” b/c not allowed to provide all the facts. i). b. Looked at at time of trial. When competent. Insanity i. Elements 1) Must be able to consult with attorney to a reasonable degree of rational understanding. incompetent is placed in medical facility until such time as found competent. Defendant must be pre-disposed to commit a crime. If elements are not met. Overzealous law enforcement is premised on an objective standard and is related to misconduct creating due process concerns. Podgor leans toward subjective. defendant stands trial. 4.Criminal Law – Spring 2003 Professor Podgor Page 18 1. i). a. Different from overzealous law enforcement i. There are arguments both ways as to whether the test is objective or subjective. 2) Have to understand charges. Looked at at time of the crime. 2. Problems with this test a) Doesn’t include people who have been brooding.

Three Ways Courts Approach Diminished Capacity a. It is merely diminishing the specific intent of the crime. Problems with this test a) Experts allowed to usurp the role of the jury b) How do you define “product”? c) Morally blameworthy people could escape liability if b/c of minimal “defective mind” – found innocent d. Types 1) Coerced Intoxication 2) Pathological i). Rises to level of insanity J. Must determine if intoxication is voluntary or involuntary i. MPC-ALI Test – combines M’Naghten Rule and Irresistible Impulse Test. ii. . 1) Key distinction is that it does not require one to know the nature and quality of the act iii. b. 3. Must prove 1) Mental disease or defect AND 2) Action must be a product of mental disease or defect. Defense to specific and general intent crimes in most jurisdictions. Since insanity is an affirmative defense. Diminished Capacity i. Intoxication 1.Criminal Law – Spring 2003 Professor Podgor Page 19 c. Voluntary a. Intoxication is only a defense to specific intent crimes. Negate intent c. Grossly excessive intoxication given the amount to which actor does not believe he is susceptible 3) Intoxication by mistake 4) Intoxication unexpectedly by medicine b. Involuntary a. Separate defense b. most jurisdictions require defense to prove insanity. i). Durham Rule (Product Test) – not criminally responsible if unlawful act was a product of disease or mental defect.

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