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Greenawalt’s Characteristics of Punishment - performed by, and directed at, agents who are responsible in some sense - involves harmful or unpleasant

consequences - unpleasant consequences are preceded by a judgment of condemnation - imposed by someone who has the authority to do so - imposed for a breach of an established rule of behavior - imposed upon an actual or supposed violation of this rule of behavior Retributivism – backward-looking, finds justification for punishment in the past; grounded in notions of moral decency, based on the harm and culpability (greater harm and intentional decision-making = greater punishment) Utilitarianism – forward-looking, looks for the future benefits that will derive from punishing a person - deterrence - incapacitation - rehabilitation punishment itself is an evil according to utilitarians, because it deliberately inflicts harm on a human being; therefore we should punish criminal only if some “good” is achieved by this act Theories of Punishment Incapacitation (restraint) – while imprisoned, a criminal has fewer opportunities to commit acts causing harm to society Special Deterrence – punishment may deter the criminal from committing future crimes General Deterrence – punishment may deters others from committing similar crimes Retribution – punishment imposed to vent society’s sense of outrage and need for revenge Rehabilitation – imprisonment provides the opportunity to mold or reform the criminal into a person who, upon return to society, will conform her behavior to societal norms Education – the publicity attending the trial, conviction, and punishment of some criminals serves to educate the public to distinguish good and bad conduct and to develop respect for the law. Proportionality (Ewing v. California) 8th Amendment only prohibits extremely disproportionate sentences (i.e. three strikes is fine as long as you justify it with policy – states can do whatever policy they want)

Process and Prohibitions
Criminal Process - begins when the legislature criminalizes something in the statute - report, detection of, or suspicion that a crime has occurred - investigation - arrest - bail determination - charging decision (indictment by grand jury, or information (complaint in minor

cases) - preliminary hearing – judge determines if there’s enough probable cause to proceed - discovery - motions (suppression, dismissal) - trial - sentencing Jury Nullification Double Jeopardy clause – no person shall … be subject for the same offense to be twice put in jeopardy Jury may shield someone forever for some conduct – state cannot appeal, and defendant cannot be retried - defendant admits charge (i.e. civil disobedience and jury acquits anyway) - jury can nullify in favor of the government, but judge can still order acquittal and the defendant still has access to appeals Legality No crime without law, no punishment without law Statutory claims/vagueness - legislative intent is to be ascertained by appropriate means and indicia, such as the purposes appearing from the statute taken as a whole, the phraseology, the words (ordinary or technical), the law as it prevailed before the statute, the mischief to be remedied, the remedy, the ends to be accomplished, statutes in pari material, the preamble, the title and other like means - a criminal statute must be sufficiently definite to give notice of the required conduct to one who would avoid its penalties, and to guide the judge in its application and the lawyer in defending (In Re Banks, N.C. 1978) Lenity/strict construction – if after all attempts, the statute is still vague, and we have two equally plausible interpretations, we should decide for the defendant and against the government Legality/no judicial crime creation (Keeler v. Superior Court, Cal. 1970) Constitutional Limitations on Crime Creation - No Ex Post Facto Laws, which operate retroactively to: o Make criminal an act that when done was not criminal o Aggravate a crime or increase the punishment therefore o Change the rules of evidence to the detriment of criminal defendants as a class; or o Alter the law of criminal procedure to deprive criminal defendants of a substantive right - No Bills of Attainder, which are legislative acts that inflict punishment or denies a privilege without a judicial trial Effect of Repeal – at common law, in the absence of a savings provision, the repeal or invalidation of a statute operates to bar prosecution for earlier violations, providing the prosecution is not yet underway at the time of repeal; repeal will not operate to set free a person who has been prosecuted and whose conviction is res judicata.

2) Mens Rea (guilty mind): the state of mind or intent of the defendant at the time of his act 3) Concurrence: the physical act and the mental state existed at the same time.relationship between defendant and victim (parent/child. or 2) defendant has a duty to act imposed by civil law.01 Requirement of Voluntary Act.voluntary assumption of care .e. spouse) . and 4) Harmful Result and Causation: a harmful result caused (both factually and proximately) Actus Reus Without an act. §2.e. (c) conduct during hypnosis.the creation of peril by defendant . reporting an accident) . Acts which are not voluntary include: (a) reflex or convulsion. . (b) bodily movement during unconsciousness or sleep. nurse) .Elements of a Crime 1) Actus Reus (guilty act): a physical act or omission by the defendant.a thought is not an act . Omissions. Omission as Basis of Liability. or an omission where there is a legal duty § 2.01(3)(a)-(b) Omission satisfies actus reus: 1) when statute defining the offense expressly states that failure to act is a crime.speech. Possession as an Act (1) A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or omission to perform an act of which he is physically capable.contract (lifeguard. . he may be criminally responsible ( long as there is at least ONE voluntary act in the defendant’s course of conduct. driving w/epilepsy) Unvoluntary Acts: 1) conduct that is not the product of the actor’s determination 2) reflexive or convulsive acts 3) acts performed while the defendant was either unconscious or asleep unless the defendant knew they might become engaged in the dangerous behavior Omissions A legal duty to act can arise from: .e. (d) bodily movement that otherwise is not the product of the effort or determination of the actor. however. there is no crime Common Law The defendant must have either performed a voluntary physical act (bodily movement) or failed to act under circumstances imposing a legal duty to act.statute (i. employee) MPC MPC also requires a voluntary act.duty to control the conduct of another (i. either conscious or habitual. is an act that can result in criminal liability Voluntariness – the act must be a conscious exercise of the will .

and possession with intent to distribute is specific intent) (more required) . he does not terminate within a true nature sufficient period . after becoming aware of an illegal but he need not be aware of its illegality or possession. conspiracy (intent to have the crime completed).Arizona: specific intent means purposely or knowingly. and general intent is the baseline intent of the actus reus ( an act is defendant has Possession – a person’s possession is control of the object long enough to have sufficient for criminal responsibility if. only person to person Motive – the reason or explanation underlying the offense is generally immaterial to the substantive criminal act. and general intent is the lower mental states (higher/lower levels) .New Jersey: specific intent is a mental state requirement over and above the mental state required of the actus reus. assault (intent to commit a battery). assumption is you just need a morally blameworthy or guilty mind Specific Intent – Delaware: there is a specific mental state set out in the statute (statute specificity) . an opportunity to terminate his possession. and it must be reasonably possible for defendant to perform the duty or obtain the help of others in performing it.intent does not transfer from crime to crime.act must be completed for intent to transfer. burglary (intent at the time of entry to commit a felony in the dwelling of another) Transferred Intent – when a defendant intends to harm one. the intent is transferred to the victim . distinct from the intent to commit a crime Common Law “intent” under the common law includes MPC’s purposely and recklessly . can’t have transferred intent for attempt . first-degree murder (premeditated intent to kill). simple possession is general intent.Criminal liability for an omission only attaches when there’s a legal duty Mens Rea Intent and Willful Blindness General Intent – there’s no mental state set out in the statute.includes acts the actor wanted to occur. and acts the actor knew were substantially MPC § 2. Possession . attempt (intent to complete the crime). and accidentally harms another..landowner Duty arises when defendant is aware of the facts creating the duty to act.02 General Requirements of Culpability (3) When the culpability sufficient to establish a material element of an offense is . larceny and robbery (intent to permanently deprive another of his interest in the property taken.Major Specific Intent Crimes: solicitation (intent to have the person solicited commit the crime).

a higher level of culpability. such element is established if the person acts purposely. and (ii) if the element involves the attendant circumstances. unless he actually believes that it does not exist. considering the nature and purpose of the actor’s conduct and the circumstances known to him. can substitute for any lower level Purposely. .some courts MPC § 2. Jewell) .certain to occur (but didn’t necessarily want) not prescribed by law. Recklessly. The risk must be of such a nature and degree that the actor’s failure to perceive it. such knowledge is established if a person is aware of a high probability of its existence. A person negligently with respect to a material element of the offense when he should be aware of a substantial risk that the material element exists or will result from his conduct. he is aware that his conduct is of that nature or that such circumstances exist.“deliberate ignorance” and “positive knowledge” are equally culpable (U. or recklessly.under MPC. involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation. it is his conscious object to engage in the conduct of that nature or to cause such a result. Knowingly.02(7) Requirement of Knowledge Satisfied by Knowledge of High Probability When knowledge of the existence of a particular fact is an element of an offense. v. Negligently. . A person acts knowingly with respect to a material element of the offense when: (i) if the element involves the nature of his conduct or the attendant circumstances. and (ii) if the element involves a result of his conduct. considering the nature and purpose of his conduct and the circumstances known to him. Willful Blindness Common Law the establishment of knowledge is allowed under willfull blindness . its disregard involves a gross deviation from the standard of conduct that a lawabiding person would observe in the actor’s situation. he is aware that it is practically certain that his conduct will cause such a result. he is aware of the existence of such circumstances or he believes or hopes that they exist. The risk must be of such a nature and degree that.S. A person acts recklessly 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. 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. knowingly. if proven.

such as mistake of fact. properties or disability or jail. may defeat mistake defense (i.heighten the duties of those in control of crime to a violation (no legal particular industries.Blameworthiness is the standard for intent.05 rejects strict liability for crimes . are not available because there is no mens rea for them to negate Common Law MPC public welfare offenses § 2. which should obviously be wrong to the individual) statutory rape and similar offenses (where the element not requiring mens rea will be an attendant circumstance) Mistake of Law and Fact Mistake of Fact Common Law General Intent Offenses .Strict Liability A strict liability offense does not require awareness of all the factors constituting a crime.if a criminal statute imposes strict or products. an welfare absolute liability offense can .Perkins rule: if no specific intent or other special mental element is required for guilty of the offense charged.if you can prove a mens rea. § 2. or (b) the law provides that the state of mind established by such ignorance or mistake constitutes a defense.regulate dangerous of deleterious devices .e.typically carry minor penalties .depend on no mental element. knowledge. trades. only fines) activities that affect public health. and a reasonable mistake is not blameworthy – only an unreasonable mistake is sufficiently blameworthy to prove general intent Exceptions: . it is transformed from a . (2) Although ignorance or mistake would otherwise afford a defense to the offense charged.04 Ignorance or Mistake (1) Ignorance or mistake as to a matter of fact or law is a defense if: (a) the ignorance or mistake negatives the purpose. a mistake of fact will not be recognized as an excuse unless it was based upon reasonable grounds . belief.Moral Wrong Doctrine – even if mistake of fact was reasonable. but consist become a crime only of forbidden acts or omissions . obnoxious waste materials liability.malum prohibitum – conduct is only wrong because the legislature says it’s wrong (vs. safety or . the defense is not available if the defendant would be guilty of another . act was MPC Since MPC is obsessed with mens rea. malum in se crimes. The major significance is that certain defenses. proving mistake of fact make you likely to get off. recklessness or negligence required to established a material element of the offense.

defendant may be convicted of the more serious offense that his conduct establishes (i. Navarro) Strict Liability Crimes . or an unreasonable mistake of fact. Marrero. defendant is not morally blameworthy (and therefore.when your mistake of law negates the mens rea element . N. if it negates the special mental element of the offense. so long as it is genuine.without a mens rea requirement. regardless of mistake. OR o Legal wrong doctrine applies o If strict liability. was still illegal) Specific Intent Offenses . mistake is NOT a defense Mistake of Law Common Law Mistake or ignorance of the law is no excuse (People v.e. do culpability analysis:  Did the defendant act in a morally blameworthy way? • IF mistake was unreasonable. determine whether the mistake negates the specific intent elements (if so.Y.still morally wrong) . (Ignorance or mistake mitigates to the alternate offense) Mistake of Fact Flowchart (Common Law) . treat the offense as a general intent offense o If general intent. UNLESS o Moral wrong doctrine applies. is not culpable.a reasonable mistake of fact. 1987) Exceptions: . allows a mistake of fact defense (People v. not guilty)  If NO.Legal Wrong Doctrine – if mistake of fact was still a legal wrong. there is nothing (no mental element) that a mistake of fact can negate offense had the situation been as he supposed. does the mistake relate to the specific intent element?  If YES. defendant is morally blameworthy (and therefore culpable) • IF mistake was reasonable. the offense general intent. meaning or application of the law .“same law” mistake – generally not a defense MPC Negation of mens rea § 2. specific intent or strict liability? o If specific intent.02(9) Culpability as to Illegality of Conduct Neither knowledge nor recklessness or negligence as to whether conduct constitutes an offense or as to the existence.

or (iv) an official interpretation of the public officer or body charged by law with responsibility for the interpretation. Defense under § 2. (ii) a judicial decision. each of which is sufficient to bring about the prohibited result Proximate Cause (Legal Cause) . above) . 1957) – only applies to passive conduct. (iii) an administrative order or grant of permission. administration or enforcement of the law defining the offense.involves intervening but-for occurrence after actor’s conduct. is an element of such offense. California.“substantial factor” causation – two or more independent actors commit separate acts.fair notice (Lambert v.includes “but-for” causation – a prohibited result would not have happened in absence of the actor’s conduct .only if it negates mens rea § 2. unless the definition of the offense so provides.04(1) (Mistake of fact.“different law” mistake – can be a defense only for specific intent crimes General Intent + Specific Intent . not overt acts determining the elements of an offense.reasonable reliance – relying on a reasonable statement of law from a responsible public official charged with interpretation or enforcement of the law .04(3) must be proven by preponderance of the evidence Causation Causation is only applicable for “result” Actual Cause (Cause-in-fact) . afterward determined to be invalid or erroneous. and prior to the . contained in (i) a statute or other enactment. opinion or judgment.04(3) A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when: Fair Notice (a) the statute or other enactment defining the offense is not known to the actor and has not been published or otherwise reasonably made available prior to the conduct alleged. or Reasonable Reliance (b)he acts in reasonable reliance upon an official statement of the law.Specific Intent . See also § 2.

and (b) the relationship between the conduct and the result satisfies any additional causal requirements imposed by the Code or by the law defining the offense (2) When purposely or knowingly causing a particular result is an element of an offense. and include: act of God. as the case may be. Homicide Hierarchy Common Law First-Degree Murder . of which he should be aware.03 Causal Relationship Between Conduct and Result.premeditated and deliberate Second-Degree Murder MPC Murder .Negligence in medical treatment is not a superceding cause. or (b) the actual result involves the same kind of injury or harm as that designed or contemplated and is not too remote or accidental in its occurrence to have a just hearing on the actor’s liability or on the gravity of the offense. only in respect that a different person or different property is injured or affected or that the injury or harm designed or contemplated would have been more serious or more extensive that that caused. (3) When recklessly or negligently causing a particular result is an element of the offense.purposely or knowingly. OR recklessly under circumstances . or (b) the actual result involves the same kind of injury or harm as the probable result and is not too remote or accidental in its occurrence to have a just bearing on the actor’s liability or on the gravity of the offense (4) When causing a particular result is a material element of an offense for which absolute liability is imposed by law. act or omission of victim or a third-party . the element is not established if the actual result is not within the risk of which the aware or. Divergence Between Result Designed or Contemplated and Actual Result or Between Probable and Actual Result (1) Conduct is the cause of a result when: (a) it is an antecedent but for which the result in question would not have occurred. in the case of negligence.- prohibited result unforeseen intervening acts can cut off causation. the element is not established unless the actual result is a probable consequence of the actor’s conduct. it is a dependent intervening force which is foreseeable response to defendant’s conduct (most courts hold same result for victim’s refusal of medical care/treatment) § 2. the element is not established if the actual result is not within the purpose or the contemplation of the actor unless: (a) the actual result differs from that designed or contemplated. unless: (a) the actual result differs from the probable result only in the respect that a different person or different property is injured or affected or that the probable injury or harm would have been more serious or more extensive than that caused.

evidence that the killing was done in a brutal manner Voluntary Killings Between intentional and unintentional homicide.want of provocation on the part of the deceased . 1995) – any interval of time between the forming of the intent to kill and the execution of that intent. State (Ark.premeditation and deliberation is a process undisturbed by hot blood Midgett v. is sufficient to support a conviction for firstdegree murder People v.recklessly or murder under extreme mental/emotional distress Negligent Homicide . Forrest Among the factors to be considered in determining whether a killing was with premeditation and deliberation are: .malice aforethought. which is of sufficient duration for the accused to be fully conscious of what he intended. to the Morrin standard requiring the time be long enough to subject your response to a “second look” . assume an intentional killing will be murder Common Law First-degree murder MPC § 210. 1982) . “regular” recklessness - representing an extreme indifference to the value of human life Manslaughter . Schrader (W. Morrin (Mich. Guthrie (W.App.criminal negligence.Va. or extreme recklessness (“depraved heart”) Voluntary Manslaughter .premeditation can be established in an instant. 1987) – if premeditation and deliberation was for a lesserincluded offense and not the eventual death.Va.heat of passion/provocation Involuntary Manslaughter .1 Criminal Homicide . defendant can only be found guilty of the lesser-included offense State v. or “twinkling of an eye” State v.ill-will or previous difficulty between the parties .the conduct and statements of the defendant before and after the killing . 1971) – the interval of time between formation of intent and the actual killing.homicide committed negligently Pre-Meditation State v.threats and declarations of the defendant before and during the course of the occurrence giving rise to the death of the deceased .the dealing of lethal blows after the deceased had been felled and rendered helpless .

Premeditated and deliberate Lying in must be a sudden heat of passion – the killing must have followed the provocation before there has been a reasonable opportunity for the passion to cool . classic murder is almost always classified as second-degree murder Malice Aforethought . § 210. spouse) . knowingly. burglary. robbery or burglary) Second-degree murder Plain old.discovering one’s spouse in the act of sexual intercourse with another . caused by adequate provocation. or (b) it is committed recklessly under circumstances manifesting extreme indifference to the value of human life. recklessly or negligently causes the death of another human being. done in the heat of passion. or negligent homicide. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be. or flight after committing or attempting to commit robbery. arson.there must have been adequate provocation .sudden discovery of a spouse’s (1) A person is guilty of criminal homicide is he purposely. manslaughter. Words alone are sufficient provocation under the MPC to get a jury instruction for manslaughter . (2) Criminal homicide is murder. or attempt to commit.intent to commit a felony (felony murder doctrine) Voluntary Manslaughter An intentional homicide.intent to kill (purposely or knowingly) . killing someone in the process of committing another felony (felony murder). Such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of.resisting an illegal arrest . rape or deviate sexual intercourse by force or threat of force.injury or grievous abuse of a close relation (child. rape. before there has been reasonable opportunity for the passion to cool Rule of Provocation . or (b) a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse.3 Manslaughter (1) Criminal homicide constitutes manslaughter when: (a) it is committed recklessly. kidnapping or felonious escape.the killing must have been in the heat of passion .intent to cause serious bodily harm (purposely or knowingly) . § 210.depraved heart murder (an unintentional killing) .2 Murder (1) Criminal homicide constitutes murder when: (a) it is committed purposely or combat .must be a causal connection between the provocation. poisoning. the passion and the fatal act Traditional Categories of Adequate Provocation . specific offense triggers (arson.extreme assault and battery upon the defendant .

or in the absence of provocation Depraved heart murder.exception: informational words accompanied by conduct indicating a present intention and ability to cause the defendant bodily harm Involuntary Killings Common Law Depraved Heart Murder (Second-Degree Murder) Express malice – deliberate intention unlawfully to kill (or cause grievous bodily injury) Implied malice – killing with abandoned and malignant heart. has nothing to do with good or evil – just conscious disregard of a risk representing an extreme indifference to the value of human life (aka extreme recklessness) . rape or deviate sexual intercourse by force or threat of force. However.4 Negligent Homicide (1) Criminal homicide constitutes negligent homicide when it is committed negligently. or attempt to commit. Felony Murder . it can show that you’re not indifferent to human life. no matter how abusive or taunting. Involuntary Manslaughter Criminally negligent or reckless acts leading to death . burglary. § 210. kidnapping or felonious escape.adultery Movement in the law is away from traditional categories of provocation. arson. in the end.2 Murder (1) Criminal homicide constitutes murder when: (b) it is committed recklessly under circumstances manifesting extreme indifference to the value of human life. in addition to damages in the civil context of negligence MPC § 210. even a small risk can be depraved heart if there’s no justification. Such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of. and toward leaving it to the jury under a “reasonable man” standard Words.Criminal/Gross Negligence – so gross that a jury would find punishment appropriate. do not constitute adequate provocation for mitigation of murder to manslaughter .even a small risk of death can be depraved heart murder if there is no justification for the risk If you have justification. or flight after committing or attempting to commit robbery.

you can’t be held liable for actions of an innocent party (such as law enforcement). extreme pain or kidnapping. as you can with accomplices or co-felons (State charging felony murder. is murder of statutory enaction the second-degree §210.Common Law MPC All murder committed in the perpetration MPC rejects the felony murder rule. but it of.inherently dangerous felony . State. rape.combining administering or employing without her force and consent elements into a single knowledge drugs. you sexual intercourse (by force or threat of don’t have to prove mens rea with force). burglarly. arson. to be victim inflicted on anyone. Sophophone) Res Gestae doctrine . the merger bar to the felony murder rule doesn’t apply . felony murder can be charged if death occurred in escape and it’s one continuous sequence of events (Foller v. or (b) he has substantially impaired her power Modern legislative trend is to use the to appraise or control her conduct by phrase “forcible compulsion” . kidnapping.Force.even if the felony is over.2(1)(b) – MUST be guilty of the underlying felony Can be made first-degree murder by statute . A male who has sexual intercourse with a female not his wife is Actus Reus guilty of rape if: . intoxicants or other phrase means for the purpose of preventing . you can’t use the underlying assaultive conduct to get felony murder – underlying felony is unquestionably an integral part and included in the face of the homicide o if there is a separate purpose over and above the assaultive conduct.Intercourse (a) he compels her to submit by force or by .Nonconsent and/or against the will of the injury. or regard to the killing (just intent to felonious escape commit the felony) .1 Rape and Related Offenses woman forcibly and against her will (1) Rape. serious bodily .independent felony (merger) o if the triggering charge is an assault. deviate . not the associated crimes in and of themselves Limitations on the Felony Murder Rule . State v. Sophophone) Rape and Sexual Assault Force and nonconsent are the key concepts of law in rape Common Law MPC Blackstone – the carnal knowledge of a § 213. or attempt to perpetrate a felony (or still exists in the common law or by enumerated felonious acts).Deterrence as a rationale for the felony murder rule – want to deter unintentional killings. either actual or constructive threat of imminent death.

not to prior acts (State v.position of authority of accused . State) victim consented Has been diluted and is falling into disfavor . Resistance Requirement MPC doesn’t have a resistance requirement. with some jurisdictions moving away from accepting a reasonable mistake defense with regard to consent Force Either physical force. or threats of serious bodily harm which would reasonably construe fear (aka constructive force) Nonconsent itself is not force (Commonwealth v. Resistance Requirement Mistake as to Consent Originally anything less than deadly force .defendant must be at least reckless had to be met with extreme resistance as to the question of whether the (Rusk v.whether victim was under duress Consent and Withdrawal Consent Consent is a complete defense to rape Consent induced by violence or is not consent Prior consent is not in effect for the instant act of intercourse’ Withdrawal of Consent . you can’t get a rape Mistake of Fact conviction under MPC (see § 213.domination or custodial control of victim .02(3)) may negate mens rea . or (d) the female is less than 10 years old.ages of victim and accused .common law rules are beginning to erode. Berkowitz) Threats of force must be specific to the rape.specific intent – reasonable or but nonconsent is implied in unreasonable mistake of fact may negate compulsion mens rea .general intent – reasonable mistake of fact § 2.mental and physical conditions of the victim and accused . Allston) Determination of forcible compulsion factors: . . or (c) the female is unconscious. .1.Mens Rea Generally a general intent crime – need moral culpability or blameworthiness .if you can only prove negligence as to consent.some jurisdictions require purposefulness of nonconsensual sex or recklessness with regard to consent resistance.not specifically addressed in MPC.atmosphere and physical physical setting of an alleged incident .

reasonable mistake is not a defense because there’s no mens rea for it to negate Most jurisdictions have an age range for the statutory trigger at around 16 years old Theft . and that doesn’t exist if consent is withdrawn and THEN force is used People v.withdrawal of consent effectively nullifies any earlier consent and subjects the male to forcible rape charges if he persists in what has become nonconsensual intercourse Common Law Rule .person can be and often is guilty of another sexual assault offense or a battery Social Context and Law Reform Rape Shield Laws . has no separate legal identity . Superior Court) Fraud in the Inducement Does not vitiate consent – deception relates not to the act done.policy-wise.People v. it’s not rape .woman is property of her husband. no mens rea required .situations where the victim thought they were consenting to marital sex are fraud in the factum rather than fraud in the inducement (Boro v.deters divorce .protects against government intrusion into the realm of marriage .Prior sexual history of the claimant with someone other than the defendant may not be admitted. Vela (1985) – it’s not rape if the initial penetration is consensual . just isn’t as big of a deal as stranger rape Rape by Fraud and Statutory Rape Fraud in the Factum Vitiates consent . pregnancy or disease Force Requirement Abandonment .nonconsensual sex is forced sex. other than to show the source of semen. danger of false accusations .essence of rape is the outrage of a nonconsensual violation of her womanhood. but the reason or circumstances (Minkowski. but today that has changed dramatically Strict liability crime.difficult to prove.if consent is withdrawn after penetration. regardless of whether there is resistance Marital Immunity Marriage is implied consent to intercourse (a husband can’t rape his wife) . Boro) Statutory Rape Historically not gender-neutral – most originally only outlawed sex with an underage female. Roundtree (2000) .

if mistake of fact negates mens rea.we want criminal matters to end.resource constraints. evidence degrades. or that they have a legal right to claim it . even though each element could have been sufficiently proving . can’t continue to litigate forever . you have a failure of proof defense Offense Modification Background rules exculpate defendant. . paying ransom in a kidnapping is aiding and abeting Public Policy Statutes of limitations.each and every element must be proven beyond a reasonable doubt .e. etc.typically a breach of trust False Pretenses Obtaining possession and title to property by false representation or fraud MPC Defenses Failure of Proof An element of the crime is negated .i.the slightest carrying away will suffice Claim-of-Right Doctrine A person is not guilty of larceny if they reasonably believe the property belongs to them. incompetency.breaking down in terms of robbery for debt collection Robbery Larceny from a person by means of violence or intimidation Embezzlement Unlawful conversion of property in a nontrespassory manner . witnesses memories’ fade Finality . immunity.Common Law Larceny Trespassory taking and carrying away of personal property of another with intent to steal .

social harm not only present but not outweighed or negated. … the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion. we decline to impose criminal liability because we think they’re not blameworthy in the moral sense . however. Self-Defense Common Law Threat . . does not shift.the aggressor has already withdrawn in good faith and communicated that desire to the other party . defendant must establish a prima facie case that the requirements of the defense exist.Justification All elements are proven. however. but the timing of the necessity to act (2) Limitations on Justifying Necessity for the Use of Force (a) The use of force is not justifiable under this Section: (i) to resist an arrest that the actor knows is being made by a peace officer. However. for affirmative defenses.insanity Affirmative Defenses Prosecution has the sole burden of proof in criminal cases. but did nothing wrong Excuse All elements are established. or (ii) to resist force used by the occupier or possessor of property or by another person on his behalf. although the arrest is unlawful. Burden of proof for the elements of the crime. including the social harm.04 Use of Force in Self-Protection (1) Use of Force for Protection of the Person.unlawful Unlawful use of deadly force Imminent peril of death or bodily harm respond to the threat Necessity Objectively reasonable belief of necessity Necessity Right of self-defense arises when necessity begins and disappears when it ends Clean Hands Doctrine Generally must be fault-free to benefit from self-defense Exceptions An aggressor can regain their right to use self-defense if: .self-defense – they committed the crime.if the victim of a minor fight escalates into deadly force without giving the aggressor a chance to withdraw MPC § 3.actual or apparent .imminency is not the timing of the threat itself. but the social harm is somehow outweighed by either a greater social interest or avoidance of a greater social harm . where the actor knows that the person using the force is doing so under a claim of right to protect the property … (b) The use of deadly force is not justifiable under this Section unless the actor believes that such force is necessary to protect .

provoked the use of force against himself in the same encounter. even if retreat would result in no further harm to either party.Avenue of retreat is/appears unsafe .Doctrine concerned more with homeowner’s ability to ascertain the risk. kidnapping or sexual intercourse compelled by force or threat. one is able to use deadly force to repel an intruder or invader . unless he was the initial aggressor or is assailed in his place of work by another person whose place of work he knows it to be. or (ii) the actor know that he can avoid the necessity of using such force with complete safety by retreating or surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action that he has no duty to take. At the time of entry. and (c) … A person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is used. surrendering possession.Once they’re in. without retreating. except that: (1) the actor is not obliged to retreat from his dwelling or place of work. we revert to a self-defense analysis.Castle doctrine/stand your ground laws There is no rule of retreat for nondeadly force. serious bodily harm. distinct from castle doctrine. others require that the intruder be a threat to the actor or other occupants of the home Once the intruder is in the house. Proportionality Deadly force may not be used to repel a non-deadly attack himself against death. with the purpose of causing death or serious bodily injury. nor is it justifiable if: (i) the actor. . doing any other act which he has no legal duty to do or abstaining from any lawful action.some jurisidictions limit defense of habitation to cases where the intruder is intending to commit certain felonies. Defense of Property You may not use deadly force to protect personal property.Rule of Retreat You must retreat “to the wall” – no defense is available if you have a safe attempt to retreat and did not attempt it before striking back with deadly force Exceptions . rather than halting a continuing invasion of privacy . Defense of Habitation Deals largely with the time of entry into the home. you have the ability to ascertain their level of threat to you and react accordingly – restrictions on self-defense now apply Defense of Others .

Act (b) neither the Code nor other law defining of God) the offense provides exceptions or defenses dealing with the specific situation involved. deadly force in response to a nondeadly assault. Crime Prevention Usually claimed by police.Right parallels the right a person would’ve had for themselves One may use force in defense of any other person (without any special relationship requirement) if the defendant reasonably believed that the other party had the legal right to use force in their own defense. provided that: disproportionate to the harm (a) the harm or evil sought to be avoided by avoided such conduct is greater than that sought to be prevented by the law defining the Common law only recognizes necessity offense charged. Majority limit deadly force to very serious felonies.02 Justification Generally: Choice of .the harm caused is not or another is justifiable. .no adequate alternative necessary to avoid a harm or evil to himself . defendant was aggressor or provoker Transferred Intent and Innocent Bystanders If you miss the aggressor and kill an innocent bystander. transferred intent typically keeps self-defense available Necessity and Duress Necessity Necessity is a justification defense – all elements of the crime are established.BWS. and where there is a non-human cause (i. or private persons working with police Deadly force cannot be used to prevent a misdemeanor. but it’s outweighed by a greater social benefit Common Law MPC Rationale: § 3. and there is social harm.e.act must’ve been done to prevent a Evils significant evil (1) Conduct that the actor believes is . Test is objective – a good faith belief in the and necessity of one’s conduct is insufficient (c) a legislative purpose to exclude the justification claimed does not otherwise Defense is not available if defendant is at plainly appear. minority allow it for any felony Battered Women’s Syndrome Confrontational Homicides – self-defense is generally available Nonconfrontational Homicides – jurisdictions are split on whether self-defense is available Hired-Gun Homicides – generally not available Imperfect Self-Defense You don’t get a complete acquittal. but you do get some mitigation or relief .

no reasonable opportunity to escape use. but we do not believe they are morally culpable . under either scheme . or use of force. must be a threat to a person.Clean Hands doctrine applies duress.the distinction is that criminal acts performed under duress are only condoned by society. Duress Duress is an excuse defense – all elements are proven. specifically a (2) The defense provided by this Section is threat of death or serious bodily injury.09 Duress .immediate threat of death or serious (1) It is an affirmative defense that the bodily injury actor engaged in the conduct charged to . Test under necessity is a subjective test – if you had a genuine belief you were outweighing the harm. agent is a human (not an act of God – that’s necessity) . the justification afforded by this Section is unavailable in a prosecution for any offense for which recklessness or negligence. not at property. the jury find you not guilty (2) 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. must be directed at a person. unlawful force against his person or the threat of harm the person of another. and the threat need be neither deadly nor imminent .a well-grounded fear that the threat constitute an offense because he was will be carried out coerced to do so by the use of. there is no limitation to non-homicide context.the threat.Duress is not a defense to murder or he was negligent in placing himself in such any intentional killing a situation. whenever negligence suffices to establish culpability for the offense Duress is only a defense if the coercive charged. as the case may be. unavailable if the actor recklessly placed himself in a situation in which it was Exceptions probable that he would be subjected to . that a person of reasonable firmness in his situation would A threat to property will not suffice – it have been unable to resist. or a threat to . rather than encouraged as under necessity Common Law MPC Elements § 2. and social harm is not outweighed. The defense is also unavailable if .fault in creating the situation which requires choice between evils. suffices to establish culpability.under the MPC.

) M’Naghten Rule A defendant is entitled to an acquittal if the proof establishes that: a) a disease of mind b) caused a defect of reason c) such that defendant lacked the ability at the time of his actions to either i.- the coercion must come from a human.S. understand the nature and quality of his actions It is irrelevant that the defendant may have been unable to control himself and avoid committing the crime – loss of control because of mental illness is no defense in M’Naghten jurisdictions if the defendant still knew of the wrongfulness of his act .M’Naghten test focuses on cognitive (intellectual) capacity. such as in situations where the social harm is not outweighed o also can be applied where equal harm results. under common law and the MPC Duress can be deployed can be deployed in situations where necessity is unavailable.Pretrial notice of the insanity defense o Must give notice prior to trial o Insanity is treated as an affirmative defense o Verdict of not guilty by reason of insanity often triggers civil commitment proceedings Why do we excuse for insanity? .lack of requisite mens rea Insanity Tests (M’Naghten/MPC rules are dominant in the U. know the wrongfulness of his actions ii. and not from nature.Pretrial determination – is the defendant competent to stand trial? o Not an insanity determination re: the actual offense o Due process interests in the defendant meaningfully participating in their own defense . your mind cannot control your actions Durham “Product Test” Excuses criminal conduct that is the product of mental illness or defect A crime is a product of the disease if it wouldn’t have been committed but for the disease Intended primarily to give psychiatrists greater liberty to testify concerning the defendant’s mental condition . not emotional maturity. or for harms whose balance is incalculable Insanity and Diminished Capacity Insanity Insanity is an excuse defense Procedural Overview Competency Hearing . Irresistible Impulse/Control Test Because of mental illness the defendant was unable to control his actions or to conform his conduct to the law.

MPC § 4. but generally a good defense to all criminal liability Coerced Intoxication – duress. true coercion (very rare) Pathological Intoxication – special susceptibility to intoxication Intoxication by Innocent Mistake – unexpected Grounds for dismissal .failure of proof defense o evidence of mental abnormality negates the requisite mens rea (for specific intent offenses) o may not succeed for general intent and strict liability offenses.government has proven mens rea and all other elements of the crime Intoxication. because the act of drinking is sufficiently reckless Involuntary Intoxication Rare. unless it can negate specific intent (as a failure of proof defense) . the MPC would permit using voluntary intoxication to negate it.failure of proof/negation of mens rea .majority approach to diminished capacity Partial responsibility variant . Infancy and Background/Cultural Defenses Voluntary Intoxication Intoxication is voluntary (self-induced) if is it the result of the intentional taking without duress of a substance known to be intoxicating. but some jurisdictions allow the defense for any kind of offense .not available if defendant purposely became intoxicated in order to establish the defense Under MPC. if recklessness is an element of the crime.01 A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity (cognitive prong) either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law (volitional prong) .temporary insanity (doesn’t carry civil commitment weight of a general insanity plea) Infancy . defendant did not have the particular mental state required for the crime charged Mens rea variant . the person need not have intended to become intoxicated Generally not a defense to criminal liability.the defendant may know something is wrong without appreciating that it’s wrong – this is a looser standard than M’Naghten Diminished Capacity As a result of mental defect short of insanity.

over 14 – no infancy defense . acting with the kind of culpability otherwise required for the commission of the crime. but less serious. or (c) purposely does do or omits to do anything which. MPC treats attempt the same as the underlying offense. both in grade and degree There is no such thing as attempted manslaughter because §5. even though he does every act planned Common Law Mens Rea – Dual Intent 1) intent to perform the actus reus 2) the specific intent to commit the underlying crime Actus Reus – an overt act in furtherance of that intent Traditional proximity test – how close defendant came to completing the offense Majority/ MPC test – substantial step Attempt is typically punished under the same grade of crime. A person is guilty of attempt to commit a crime if.between 7-14 – rebuttable presumption that child does not have cognitive capacity to distinguish right from wrong Other available juvenile defenses: insanity. intoxication Rotten Social Background Doesn’t have freestanding validity.01 – Criminal Attempt (1) Definition of Attempt. or (b) when causing a particular result is an element of the crime.01 requires . he: (a) purposely engages in conduct that would constitute the crime if the attendant circumstances were as he believes them to be. does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part.Juvenile Adjudication . and does not get to everything he intended to do Complete Attempt – actor is somehow prevented from producing the intended result. than the offense attempted There is no such thing as attempted felony murder (except in Florida) MPC §5. is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. but sneaks in through other doctrines Inchoate and “Group” Crimes Attempt Incomplete Attempt – actor is somehow prevented from completing the desired act. mental retardation. under the circumstances as he believes them to be.under 7 – infancy defense bars conviction .

likelihood that the actor would’ve probably desisted on their own Abnormal Step Test – average citizen would think this step went too far Res Ipsa Loquitur/Unequivocality Test – person’s actions manifest their intent (past the point of deciding whether to do something. acts that would not constitute a crime under any circumstances (i. trying to bribe a juror. but they’re not) Factual Impossibility is no defense – it would have been factually impossible for defendant to complete her plan even if she did all the things she intended to do (i. is not against the law and does not constitute attempt Physical Proximity Test – close or immediate access to the completed crime Dangerous Proximity Test – nearness or the danger and the greatness of the harm Indispensable Element Test – something that is necessary to the commission of the crime has been obtained Probable Desistance Test .e. and an actor seeking to break the law. it’s a go) Factual Impossibility – not a defense to attempt. or to attempt at a better time) Defenses to Attempt Liability 1) Impossibility Pure Legal Impossibility is always a defense – arises only when the defendant did.e.04(1) – Renunciation of Criminal Purpose – you must have a complete and voluntary change of heart (not because you’re afraid of getting caught. but that person isn’t a juror) Abandonment Most jurisdictions have rejected the defense of abandonment MPC §5.e. it would’ve been a crime and it would’ve been possible for the actor to commit it.mere preparation itself. right turn on red) Hybrid Legal Impossibility – still have a crime society wants to punish. Gary Coleman/stabbing with a fake knife) Pure Legal Impossibility – is a defense to attempt no law prohibiting the conduct (even if you thought it was illegal) (i. but a factual mistake about an attendant circumstance made it not a crime (if facts were as the actor thought.e. motivated by a change in circumstances. shoots off fireworks believing they are illegal. attempts to rob someone with no money) Assault and Solicitation Assault . crime could’ve still been committed if you fix your mistake (i.- purpose or belief that a result will occur (can’t use recklessly or negligently) attempt to commit negligent crimes is logically impossible attempt to commit strict liability crimes is possible because defendant must act with the intent to bring about the proscribed result Distinction Between Preparation and Attempt . but theoretically it’s impossible (i. or intended to do.e. unless it violates the law on its own.

or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon.typically carries a lighter penalty than attempt . or (c) attempts by physical menace to put another in fear of imminent serious bodily injury. enticing or counseling or another to commit a crime Mens Rea – specific intent Actus Reus . You can be guilty of soliciting someone who has already decided to commit the crime (“promoting”) Uncommunicated Solicitation §5. or causes such injury purposely. knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life. (2) Aggravated Assault. MPC §5. A person is guilty of assault if he: (a) attempts to cause or purposely. or (b) negligently causes bodily injury to another with a deadly weapon. .1 Assault (1) Simple Assault.Common Law Intentionally subjecting another to reasonable apprehension of receiving a battery Proximity required for assault is even closer than that of attempt MPC §211. A person is guilty of aggravated assault if he: (a) attempts to cause serious bodily injury to another. encourages or requests another person to engage in specific conduct that would constitute such crime or an attempt to commit such crime or which would establish his complicity in its commission or attempted commission.02(2) – it is immaterial that the actor fails to communicate with the person he solicits to commit a crime if his conduct was designed to effect such communication Solicitation Common Law The asking. knowingly or recklessly causes bodily injury to another.merges into the completed crime (solicitor can be punished at the level of the act the solicitee committed) The crime must be a serious felony or involve a breach of the peace.completion .02(1) Criminal Solicitation A person is guilty of solicitation to commit a crime if with the purpose of promoting or facilitating its commission he commands.

intent to agree . unless purpose may be inferred by knowledge Lauria) .it is an affirmative defense that.Does not merge with the substantive offense (you can be found guilty of both) generally complete upon formulation of the agreement. Conspiracy generally merges with the completed offense unless the conspiracy was broader than the completed offense Punished the same as the target offense Liability MPC rejects Pinkerton liability.03 – Criminal Conspiracy (1) Definition. the MPC §5. or (b)agrees to aid such other person or persons in the planning or commission of such crime. persuaded him not to do so or otherwise prevented commission of the crime Conspiracy Common Law Partnership in criminal purpose Elements 1) mutual agreement or understanding 2) express or implied 3) between two or more persons 4) to commit a criminal act Mens Rea – Dual Intent .intent to commit the target offense (intent meaning purpose under common law.Renunciation §5. some jurisdiction do require an overt act (though mere preparation will generally suffice) Treated much less seriously and punished lower than the target offense Pinkerton Liability An actor is liable for the acts of a coconspirator when the act is within the scope of conspiracy and a natural or probable consequence of the conspiracy Corrupt Motive Doctrine (minority) Parties to a conspiracy are not guilty of conspiracy unless they have a guilty mind or a corrupt/wrongful motive (limited to malum prohibtum offenses) Wharton’s Rule – when the definition of the crime requires two or more persons. A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he: (a) agrees with such other person or persons that they or one or more of them will engage in conduct that constitutes such crime or an attempt or solicitation to commit such crime. after soliciting another person to commit a crime. but a person may still be liable for the acts of others through accomplice liability or other means Corrupt Motive Doctrine – rejected by the MPC Wharton’s Rule – MPC rejects Wharton’s rule .02(3) .

including the target crime if he withdraws by an affirmative act giving notice to all members . even though they don’t all know each other Wheel Conspiracy – hub in the middle (central player).conspiracy cannot be charged separately (conspiracy is inherently included in its definition) . Defenses to Conspiracy . and common law isn’t there yet but is slowly gravitating away from the bilateral definition Types of Conspiracy People can be parties to the same conspiracy. with intent that an offense be committed.A person may limit his liability for subsequent acts of the conspiracy. Bilateral Conspiracy Unilateral Conspiracy – a person commits conspiracy when.03(3) At common law and under the MPC.chain conspiracies are much easier to prosecute than wheel conspiracies Multiplicity/MPC §5. because conspiracy is complete upon agreement o MPC recognizes voluntary withdrawal as a defense only if the defendant thwarts the success of the conspiracy . no longer lets you off the hook. spokes may not even know each other exist Chain Conspiracy – each link is necessary to the entire enterprise . if one person is acquitted the other cannot be guilty because each coconspirator must fulfill every element . one agreement equals one conspiracy. . contributing different skills/acts/supplies/functions). multiple objects can be part of one conspiracy.Withdrawal – no defense.breaking down. he agrees with another to the commission of that offense Bilateral Conspiracy – any two or more persons conspire or agree together to do any illegal act.MPC subscribes to unilateral approach.Factual Impossibility – no defense .key is the number of agreements Terminations of Conspiracy Evidence of overt acts of concealment is not sufficient to make the act of concealment part of the conspiracy The government’s defeat of the conspiracy’s ultimate objective does not automatically terminate the conspiracy. with spokes (supplying central player. just requires merger of an attempted or completed offense intent cannot be inferred from mere knowledge cannot have a conspiracy to commit a strict liability crime because there is no intent Unilateral vs.

or both. an accomplice in the conduct causing such result is an accomplice in the commission of that offense. but today accessories can be convicted w/ or w/o principals. or counseling or encouragement of the commission.members of protected class . but the crime does not take place in that person’s presence Accessory After the Fact – someone with knowledge of the crime provides assistance to hinder prosecution or apprehension Traditionally at common law. with respect to that result that is sufficient for the commission of the offense. (2) A person is legally accountable for the conduct of another person when: (a) acting with the kind of culpability that is sufficient for the commission of the offense. neutralizing assistance. Complicity Conspiracy – need proof of agreement.06 – Liability for Conduct of Another Complicity (1) A person is guilty of an offense if it is committed by his own conduct or by conduct of another person for which he is legally accountable. principal in the first degree had to be convicted before any other actors.withdrawal: repudiation of encouragement. even if through an innocent instrumentality Principal in the Second Degree – actual or constructive aid. he (a) with the purpose of promoting or facilitating the commission of the offense. but not proof of assistance Complicity – need proof of assistance. plus other crimes that are natural and probable consequences thereof Exclusions from Liability . . or (ii) aids or agrees or attempts to aid such other person in planning or committing it. fails to make a proper effort to do so (2) when causing a particular result is an element of an offense. if he acts with the kind of culpability. (3) A person is an accomplice of another person in the commission of the offense. or MPC §2. he cause an innocent or irresponsible person to engage in such conduct.of the conspiracy in time that they have the opportunity to abandon their plans Accomplice Liability Conspiracy v. if any. Mens Rea – Dual Intent 1) intent to assist the principal 2) intent that the offense actually be committed (most jurisdictions require purpose that the offense be committed – knowledge is not sufficient) Natural and Probable Consequences Doctrine – accomplice is liable for the target offense. notifying authorities. he (i) solicits such other person to commit it. or (iii) having a legal duty to prevent the commission of the offense. in its actual presence Accessory Before the Fact – same as the principal in the second degree. or (c) he is an accomplice of such other person in the commission of the offense. but not proof of agreement Common Law Principal in the First Degree – actor who commits the crime.

even if you didn’t have the opportunity to fulfill your intended function mere presence can be encouragement .otherwise preventing the target offense Mens Rea – purpose of promoting or facilitating the commission of the offense Natural and Probable Consequences Doctrine – rejected by MPC - mere presence can be enough of an actus reus for accomplice liability.