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Criminal Law

Dudley v. Stevens Led to questions of why punish? 1) Retribution

Necessity (extreme hunger) does not 2)Deterrence 3) Rehabilitation 4) Incapacitation
justify murder. Starving sailors eat the • 2+3+4 = utilitarian, forward looking, 3 =
flesh of one of their own. humanitarian, 1 = back looking
Lawrence v. Texas -Morals have changed, justices said in the past they
A law classifying homosexual intercourse got it wrong, not always simple what morality is
as illegal sodomy violated the privacy and -The defendants in the case had an interracial
liberty of adults to engage in private relationship
intimate conduct under the 14th -Over criminalization: If laws are too broad, then
amendment. Two men arrested after found there is potential for discriminatory enforcement
to be engaged in sodomy. -People can engender disrespect for the law
-Resources are diverted
Commonwealth v. Mochan Legality: vague/ambiguous common law crimes
Court can uphold a conviction for transfer law making ability from legislature to
misdemeanor based only in common law. judiciary, separation of powers issue
An act that outrageous decency and -Nowadays, we followed the dissent, only legislature
injurious to public morals is a makes criminal law
misdemeanor under common law. An -Need concepts of notice, consistency, and fairness
arrest made for making very indecent
phone calls.
United States v. Bergman
Reputation and age may be taken into
account, but court will still punish for
general deterrence and to not depreciate
the seriousness of crime. A good man in
his old age committed Medicare fraud.
Martin v. State Voluntary is required because that is part of the
Convictions require a voluntary act. purpose of punishment
Drunken man arrested and taken by police
to a highway where he was arrested for
public drunkenness.
People v. Newton Main issue was that jury did not get to decide the
Unconsciousness is an allowed defense to unconsciousness issue.
homicide. Newton’s shot in stomach and Cogdon case – woman acquitted after axing her
supposedly became unconscious and then daughter to death when asleep.
killed a police officer. Decina case – woman liable for knowing and not
taking epilepsy pills, leading to an epileptic attack
and crashing
Jones v. United States -Policy: We have a right to personal freedom, but
Omission of a duty owed to another may also the freedom to waive that freedom and assume a
be liable for homicide. Critical issues of duty.
fact must be passed on to the jury.
Defendant failed to take care of a 10
month illegitimate baby who died.
Pope v. State Misprison of felony is an old common law statute,
Moral duty w/o legal duty to act precludes and that criminal law should be made by the
liability. Pope watched as a mother abused legislature.
the mother’s child (both living with her), People v. Beardsley – No legal duty to help a
leading to their death. mistress who overdosed on pills.
Barber v. Superior Court
Euthanasia is an omission (of treatment)
and not liable for murder. A doctor has no
legal duty to continue futile life support.
Family asked doctors to take patient in
vegetative state off life support.
Regina v. Cunningham -malicious = reckless
Redefining, malice requires 1) intent to do -unlawful = there’s no defense
the particular kind of harm or 2) Regina v. Faulkner – Conviction quashed; a sailor
recklessness despite forseeability of harm. stealing run from ship but burned the entire ship. He
Appellant stole a gas meter, releasing could not be guilty of acting maliciously (recklessly)
noxious gas and endangering his future unless he considered the risk of a fire and
mother-in-law. disregarded it.
-culpability – how criminally responsible, is tied to
your mental state
State v. Hazelwood -Applied only ordinary negligence (not criminal),
Negligence is when one fails to perceive since criminal punishment should be imposed only
an unjustifiable risk that a result will when conduct is something society can deter
occur. Criminal negligence requires Santillanes v. New Mexico – defendant cut 7 year
greater risk, and you don’t need to be old nephew’s neck. Applied criminal negligence.
aware of the risk. Conviction reinstated;
captain (was drunk) ran ship into reef and
spilled oil.
United States v. Jewell -Willful blindness – ostrich defense
Willful blindness is not an excuse (for not -High suspicion + intentionally avoid = knowingly (a
looking in a known compartment legal fiction)
regarding possession). Knowledge
established if aware of a high probability Purposely – w/ intent to
of existence. Defendant was convicted of Purposely/Knowingly – Specific Intent
knowingly transporting marijuana in a car Recklessly – General Intent
from Mexico to the US. Motive – the why
Regina v. Prince AR (taking) + MR (knowingly) + Circumstance [1)
No statement of mens rea in a statute can unmarried, 2) w/o dad’s consent, and 3) under age
be strict liability (instead of recklessly). 16]
Some acts are wrong and forbidden in -Did not know 3), but knew 1) + 2), but 1) + 2)
itself. Defendant a girl under 16 from her argued not inherently wrong (in 1875)
father and claimed he didn’t know the -1) + 2) = material, 3) = jurisdictional
age. -Case is mistake of fact, if it’s a material element
(something you need to know) and you don’t know
it, you are not guilty
-What you need to know is what makes your conduct
-If it’s jurisdictional element, we don’t care
United States v. Feola AR (assault) + MR (knowledge) + Circumstance [1)
Knowledge of victim’s official identity person 2) federal officer], crime to knowingly assault
must be proved to convict on conspiracy fed. officer
to assault officers. Defendants tried a -To see if it is a material element, in this order, look
narcotics rip off and charged with at 1) language of statute 2) legislature intent 3)
conspiring to assault and assaulting policy (to provide maximum protection, or conduct
federal officers. was wrong)
-Policy (from dissent) – different crimes should have
different punishments, if they are punished different
then they should know of it and can be deterred
-Jurisdictional = prosecutor does not have to prove
defendant knew it
Morissette v. United States Jurisdictional vs. Strict liability
Defendant must have knowledge of the -Argued didn’t need to know it was government
facts that made conversion wrongful. property – strict liability part
Strict liability does not apply where the -General rule – crimes require mens rea
offense is not a public welfare offense. -Exceptions – strict liability (S/L)
Mere mission of mens rea from statute -For S/L, you look at 1) statutory language 2) legal
does not make it strict liability (general history
presumption is against it), it doesn’t mean -S/L crime indicia – public welfare (health &
anything. Junk convicted of taking bomb welfare, highly regulated areas, small penalties, not
casing and argued he did not know it like common law crimes (mala prohibitum), high
belonged to government. volume
-Criticism – making criminals out of regulatory
Staples v. United States -charged with possession of unregistered firearm
If a statute doesn't mention a mens rea -government argued it was a strict liability crime for
requirement, the Court must infer intent of “unregistered”
legislature and can impute a mens rea. -argued S/L here can overdeter
Strict liability is generally reserved for -defense to S/L, S/L can knock out mens rea, but you
crimes with light punishments (not the 10 can argue actus reas
years imprisonment here). Defendant -MPC rejects S/L because it’s all about culpability
possessed unregistered firearm, claimed and mens rea
he did not know it was automatic.
State v. Guminga
Criminal penalties of imprisonment under
vicariously liability violate due process,
but may be liable to fines/suspensions.
Strict liability carried too heavy of a
penalty for this conviction. Waitress
delivered alcoholic beverages to minors
and employer was charged.
State v. Baker
Defendant argues despite strict liability
(no mens rea needed) on speeding he had
no actus reus due to cruise control
malfunction. In placing the cruise control
to the "on" position, defendant had an
actus reus. Defendant was convicted of
speeding, but his cruise control was stuck
in the accelerate position.
US v. Central District of CA (Kantor) -Court finds middle ground here
Reasonable mistake of fact should be -Defendants argue S/L here would violate 1st
allowed as a defense in strict liability due
amendment rights
to 1st amendment and policy reasons. -Prosecutors said statute language + legislature intent
Congress is analyzed to have preferred the said it should be S/L
law of no minors in sexually explicit -Based on statute language, legis. Intent, and policy
visuals to allow a reasonable mistake it is S/L, but result seems unfair, called it counter
defense. Three people are convicted of intuitive
making a porno with a minor (Traci -Defense has burden of good faith, but still S/L
Lords). -court was bothered by how statute disturbed 1st
amendment, and 10 year punishment
People v. Marrero -general rule: mistake of law = not defense, policy
Mistake of law is not a defense even if reason (would open floodgates, legal chaos,
one acts in reasonable reliance upon an exceptions swallow rule, laws based on society’s
official statement of the law. A federal morals)
correction officer was arrested at a club -cultural defense – Generally are no defense, may be
for carrying an unregistered weapon given sympathy in sentencing, mercy when
which he thought was allowed. prosecutors decide who to prosecute
-in Gardner, misreading and found guilty
-in Weiss, negates material element of crime = not
-in Liparota, food stamp crime, knowing using it in
unauthorized manner, he needs to know it is
unauthorized by law, if not the mens rea is negated
-“knowing transporting versus “knowing
transporting…the defendant identifies, adds mens
rea to 2nd part
Cheek v. United States Exceptions to mistake of law: 1) negates material
A mistake in law may be a valid defense if element 2) estoppel theories - no fair theories, right
it is reasonable and in good faith. to rely on law established at the time, sort of ex post
Defendant convicted of not filing taxes facto a) “official” mistake of law, b) judicial
and claimed he honestly believed he decision, c) admin order, or d) official interpretation
didn’t have to. 3) Lambert exception w/ a) no notice, b) for a
regulatory offense c) omission
-purposes of punishment don’t work w/o notice
-an unreasonable but good faith belief can negate the
mens rea, just have to be honest, unreasonable may
affect credibility but prosecutors must prove mens
-if you know the law but disagree with it, does not
negate exception 1) negates mens rea
-“willfully” means “knowingly” in this case
Lambert v. California -without authority/unauthorized, key indicator of
Knowledge of a statute is generally mistake of law exception 1) negating element of the
required to convict someone of a notice defense
offense (a passive act). Defendant, a felon,
was convicted of failing to register
pursuant to a California statute requiring
Homicide -homicide is in common law (C/L) is “unlawful
Commonwealth v. Carroll killing of another human being”
A brief space of time is immaterial if the -A.R. = kill, M.R. = ??? (it depends), Circum –
killing was in fact intentional, willful, Another human being
deliberate and premeditated. -Fetus = may be a human being, it depends,
Premeditation only requires defendant legislatures decide
acted deliberately or purposely. Defendant -in C/L:
pleaded guilty to the murder but he argued -1st degree murder: premeditation (Carrol –
he suffered a psychiatric disorder and purposely, Guthrie – prior calc. or design, pre-
killed impulsively. existing reflection, preconceived design)
-2nd degree murder: catch all - malice
-Voluntary manslaughter (VM) – heat of passion,
provocation doctrine
-Involuntary manslaughter (IM) – negligence

Premedication/preconceived evidence (California

standard): 1) planning, facts what was done prior to
killing, 2) motive, prior relationship and conduct w/
victim, and 3) manner of the killing
State v. Guthrie -in MPC:
There must be some length of time that Murder, Manslaughter, and Negligence Homicide
lapses between the intent to kill and the
actual murder. Defendant had psychiatric
problems and stabbed coworker after
coworker hit him in the nose (a sensitive
body part).
People v. Anderson
Premeditation and deliberation is required
for first degree murder, despite shocking
nature of the crime. A preconceived
design is required instead of an explosion
of violence for 1st degree murder.
Defendant stabbed (60 times) and killed a
10 year old girl many times as he chased
her around the house.
Girouard v. State Provocation/Heat of Passion (HOP) requires
Verbal provocation alone is not enough to 1) actual HOP (subjective)
mitigate a charge of murder to 2) legally adequate provocation (objective),
manslaughter. Defendant stabbed his wife categories – extreme assault/adultury
19 times after his wife taunted him. 3) inadequate cooling time, this is related to 1)

Maher v. People -Here HOP defines 2) as whether reasonable person

It is a question of fact (for the jury) (RP) would have been provoked, contrary to the
whether the defendant was provoked by categorical approach
knowledge of an adulterous relationship -this gives jury discretionary power
between his spouse and the victim. This
provocation may include anything that Categorical (more objective)  RP (middle),
causes ordinary men to act rashly. Camplin  EED (more subjective), Cassassa
Defendant, after learning that his wife was -more subjective = greater chance defendant wins
having sexual intercourse with the victim, -EED gives reasonable person emotional qualities
walked into a saloon and non-fatally shot -RP gives them physical characteristics
the victim in the ear. (age/gender/size)
-defense wants subjective, prosecutor wants

-Gounagias case – instead of cooling, time can do

the opposite
-Approaches regarding non-provoking victims
-Mauricio – you get to use HOP regarding non-
provoking victims, other jurisdictions get to say no,
and that person who provoked had it coming

People v. Cassassa -RP – look at physical characteristics

Extreme emotional distress (EED) -EED (from MPC) – allows to look at emotional
requires 1) act under the influence of EED characteristics
(subjective), and 2) a reasonable -Many jurisdictions only prefer to keep physical
explanation or excuse for the defendant's characteristics
EED (objective). Defendant stalked then -Much gray area regarding emotional/physical
killed his ex-girlfriend and claimed (alcoholism, battered women syndrome, senility,
extreme emotional disturbance. homosexuality, race)
Commonwealth v. Welansky -court says gross negligence and reckless is the same
A criminal (instead of civil) liability exists -Court was bothered by: -easy prevention, owner’s
for unintended homicide depends on 1) a interest first, high chance of harm, type of danger
higher likelihood of harm, 2) risk of a -Social utility of conduct vs. Magnitude of risk (not a
particularly serious harm, and 3) actual formula, an approach)
awareness, or greater likelihood of -Social utility – benefit, cost of alternatives
awareness, of that harm. A fire broke out -Magnitude – high likelihood of harm, type of
in the night club due to the lack of danger was serious
available exits, a great number of people Social Utility Magnitude of Risk
died and owner found guilty of -Benefit to society -type of danger of harm
involuntary manslaughter. -Cost of alternatives -likelihood of harm
-these factors use to help determine gross negligence
People v. Hall -ask if it was substantial and unjustifiable risk
Reckless manslaughter requires one to -ask if it is gross (ask the same question again)
recklessly cause death of another. One
must disregard a substantial and -both criminal negligence and recklessness require
unjustifiable risk. Specific facts of case gross negligence
hold he was skiing too fast, creating a -if you use reckless, you still have to use substantial
substantial and unjustifiable risk. and unjustifiable risk
Defendant flew off a knoll while skiing.
He collided with victim who died. -dangerous instrumentality doctrine – use
dangerous instrument in negligent manner, it is
automatically involuntary manslaughter (car, knife,
fireworks, gun), does not apply to murder 2, only ti
involuntary manslaughter

-contributory negligence is not a defense, crime is

against society
-see that there are a lot of risky activities we do, but
is it an substantial and unjustifiable risk, and any
good reason (unjustifiable risk)
State v. Williams -didn’t get to argue social utility, where there was a
Under Washington statute, crime reason for what they did
committed if death if proximate result of -pushing negligence to the limit
only simple or ordinary negligence.
Ordinary negligence requires caution -this case is the exception, it shows dangerous of
exercised by a man of reasonable purely objective standard
prudence under similar conditions. Child -he didn’t realize the risk and he should have (step 1)
died after parents did not supply necessary -substantial and unjustifiable risk (step 2)
medical attention.
Commonwealth v. Malone Malice – not wickedness or evil
Malice there is an act intentionally done -Intent to kill (not premeditated)
by the defendant, in reckless and wanton -Intent to cause GBH (grievous bodily harm)
disregard of the consequences. So long as -Gross recklessness (implied malice)
the act itself was intentional, it is
irrelevant that the death of the victim was -magnitude of risk outweighs the social utility for
unintended. If there is malice, one is liable this game
for murder. Defendant kills his friend
while playing russian roulette.
United States v. Fleming -Are drunk driving cases murder 2 or involuntary
A drunk driver can be convicted of manslaughter
murder, even where there is a separate -defense argues he’s so drunk he didn’t realize the
vehicular manslaughter statute. Malice risk, prosecution counters that he drove so crazily for
may be established by reckless and so long he must have realized the risk
wonton conduct that is a gross deviation -the driver’s state of mind at the time of the crash is
from a reasonable standard of care. argued, or stretch that mens rea has already been
Defendant was speeding and driving formed
recklessly while drunk when he crashed. -regarding being stoned/intoxicated, prior notice –
whether defendant realized the risk
Regina v. Serné People v. Stamp – Robber found strictly liable via
In common law, malice aforethought can felony murder when the shopkeeper he robbed died
be defined as killing of another by an act of a heart attack.
done with an intent to commit a felony, or -Can argue felony murder is a bad luck doctrine
done with knowledge that act will -MPC creates a presumption regarding felony
probably cause the death of some person. murder
Defendant burned down his house for -judge here wants to narrow the doctrine of felony
money, and his two sons died in the fire. murder
-felony murder parallels misdemeanor-manslaughter
People v. Phillips Limitations: 1) inherently dangerous, since in those
Only felonies as are in themselves the person did realize the risk
inherently dangerous to human life can -prosecutor tries to name it cleverly as grand theft
support the application of the felony- medical fraud
murder rule. Grand Theft (theft by -look at the inherently dangerous in the abstract or as
deception) is not inherently dangerous to committed
human life. An 8 year old child died after -defense wants abstract that a felony can be
a chiropractor failed to cure her eye committed without anyone getting hurt, if you look
cancer since he deceived them to not go at it as committed since someone died
through surgery and use his method -all BARKRM are inherently dangerous even in the
instead. abstract

Another limitation: What is the predicate felony?

People v. Stewart -this court believes that a better approach is to
Whether a felony is inherently dangerous consider the facts and circumstances of the case
to human life is a question of fact for the -in the abstract you need high likelihood it is
jury. Defendant goes on a 2 to 3 day inherently dangerous
cocaine binge, during which time her -felony as committed approach, this is really no
child dies of dehydration due to negligent limitation at all
Hines v. State -Uses either in the abstract or as committed, either
A felony is inherently dangerous when it standard can be applied, an objective view
is dangerous per se or by its circumstances -Lots of ways a felon can possess a firearm or hunt,
creates a foreseeable risk of death. A guy but court looks at this circumstances
mistook his friend for a turkey and shot
him dead.
People v. Burton -if you commit a manslaughter is that automatically
Felony murder can apply to crimes even if a murder, no we can’t do that, cannot use
the rule itself already requires a deadly bootstrapping
weapon. The felonious purpose is the key -ex: underlying felony (conscious disregard of
factor to felony murder. Defendant killed child’s life), already had to prove malice
a person in the course of committing an -if felony is just part of the action of killing, it is not
armed robbery. an independent felony, just prove what the person
-felony was never meant for people who kill, but to
deter people from killing negligently
-does it merge? Depends on if there’s another
purpose other than the killing
State v. Canola -FM limited to deaths during the course of the felony
A felon cannot be charged with felony and in furtherance of the felony (limits scope)
murder for the death of a co-felon, caused -During felony (time), planning or escape
by the act of one other than the felon -Whose acts is felony responsible for?
himself or those associated with him. -Agency theory – death caused by co-felons (not
Defendant is charged with felony murder guilty)
when a co-felon was shot and killed by a -Shield cases (proximate cause of felons’ acts), this
jewelry store owner during an armed is the proximate cause theory, however this makes it
robbery okay for non-felons to shoot
-court adopt the agency theory

-Won’t apply FM to death of co-felon, his death was

justified, we want to protect the innocent, but life
matters even if he’s a felon
Tison v. Arizona -can get death penalty for felony murder if they have
Major participation in the felony a major participation in the felony committed and
committed along with reckless reckless indifference to human life
indifference to human like satisfies the
Emmund culpability requirement (for the
death penalty). While trying to break a
relative in jail, defendants’ partners shot
down an innocent family that stopped to
help them when their car broke down.
People v. Acosta Causation - Who do we want to hold responsible?
Proximate cause looks at whether the -transferred intent, if you have bad aim you are still
result highly extraordinary and responsible
foreseeable. Defendant stole a car and -MPC focuses on culpability, hold for lesser crime,
police chased him for over 40 miles. He common law would hold for greater crime
was accused of murder resulting from two
helicopters that collided during the chase.
People v. Arzon Superseding intervening cause breaks chain,
Conduct doesn’t have to be sole and dependant intervening cause does not
exclusive factor in the victim's death. One
is criminally liable if his conduct was a People v. Warner-Lambert – gum company w/ dust
sufficiently direct cause of the death. not held liable for explosion because lacking
Defendant set fire a building to prevent sufficiently direct cause and for policy reasons, also
druggies from using it. Fireman who tried did not know what caused the explosion
to rescue died but from a second fire that
appeared independently.
People v. Campbell -the deceased had free will and choice to kill himself
Suicide excludes homicide; giving a or not
person a gun to kill himself is not murder.
The defendant must have the present
intention to kill to commit murder (hope
that another will suicide insufficient).
Defendant helped a man who slept with
his wife suicide by giving him guns and
People v. Kevorkian -No proximate cause here due to the acts of the
Merely providing the means with which a victims
person kills themselves is not enough. -victim had the free choice to kill himself
Death must be a direct and natural result
of a defendant's act to hold him liable.
Doctor assisted two women in committing
suicide by providing the apparatus for
Stephenson v. State -victim was rendered irresponsible by the wound,
Defendant’s acts and conduct that and lacked the will to choose, then defendant liable
rendered deceased distracted and mentally
irresponsible combined with criminal
treatment, he may be found guilty of
murder for the suicide. Defendant
sexually assaulted a girl and took her back
to his home. She tried to suicide when
captured and died later from many causes.
Commonwealth v. Root Related additional perpetrators – more than one
A conviction for manslaughter requires person can be the cause, who is guilty (if one person
conduct to be both reckless and a stabs then second shoots in the head) depends on the
sufficiently direct cause of the death of jurisdiction and how argued
another. Competitor died in the course of
a drag race. - this case considered “complimentary human
-rejected tort concept of proximate cause
State v. McFadden -Difference between this case and Root, a 6 year old
Reckless and voluntary participation in a died and someone has to be responsible
drag race does not itself bar one from
being convicted of involuntary
manslaughter. Ordinary proximate cause
principles should be used to determine
causation in a criminal prosecution.
Defendant’s competitor crashed in a drag
race and killed third parties.
Commonwealth v. Atencio -could be found to be mutual encouragement in a
Persons who participate in a game of joint enterprise
Russian roulette can be convicted of -policy – blame the defendants, they are playing
manslaughter for the death of one of them. deadly games and need rehabilitation
Defendants played Russian roulette and
someone died.
Smallwood v. State Attempt: AR + MR ≠ No Result, an inchoate crime
Attempted murder requires a specific -purposes of punishment apply to punishing attempt
attempt to kill. Additional evidence is -some jurisdictions punish the same attempt as the
required to support an intent to kill, crime, and some jurisdictions punish less (1/2 as the
exposing rape victims to a risk of HIV crime), there are arguments for and against how to
alone is insufficient. Defendant raped punish attempt
several women. He was aware that he was -court says he required a mens rea of purposely, set
HIV positive and did not use a condom. this high mens rea since no harm caused, want to be
sure there’s culpability
-MPC 5.01(1)(b) – adds a “knowing plus,” if you
believe people will die, it is close enough for attempt
-for jurisdictions that doesn’t use the “year and a
day” rule, the attempts are punished the same as the
crime so it doesn’t matter
-Though we can’t get him for attempted murder, still
liable for rape, assault
-if you don’t need to know it for the completed
crime, you don’t need to know it for attempt
-there is generally no attempted felony
murder/misdeamnor manslaughter
People v. Rizzo Actus reus, how much do you have to do?
In determining what acts constitute -difference between mere preparation and attempt
attempt, the law considers acts so -approaches: 1st step (not used), last step (not used),
immediately near to its accomplishment dangerous proximity (what have they done, and
that in all reasonable probability would what’s still left), unequivocality test (res ispa
have led to the crime itself without loquitur, merging intent and act), MPC 5.01(1),(2) –
interference. Defendant was driving with substantial step strongly corroborative of intent,
three accomplices looking for a guy with combining unequivocality and dangerous proximity
$1,200 but didn’t and was arrested for test,
attempted robbery. -argue all 5 steps on exam
-MPC and dangerous proximity is the most prevalent
(and important) steps

-abandonment/renunciation not recognized in

common law (attempt didn’t happen until the last
step, and if you’ve taken the last step there was no
turning back)
-but as actus reus is pushed back, MPC allows an
affirmative defense 1) voluntary (true change of
heart, not of fear or looking for better opportunity)
and 2) complete renunciation

McQuirter v. State
The jury must be satisfied beyond a
reasonable doubt that defendant intended
to have sexual intercourse. Social customs
and racial differences were allowed here.
A black man was convicted of an attempt
to commit an assault with intent to rape. A
white woman testified he was following
her but stopped once she went in a house.
United States v. Jackson
Attempt requires 1) act with same
culpability as the crime charged with
attempting, and 2) conduct that constitutes
a substantial step towards commission.
Defendants conspired to rob a bank and
one conspirator was captured and ratted
them out. Defendants were arrested on
their way to the bank.
People v. Jaffe -Factual impossibility is not a defense, still guilty of
If a person intends to commit an act that attempt
would not be a crime if complete, the -Legal impossibility is a defense, and not guilty
person cannot be convicted of an attempt
(impossibility doctrine). Defendant is -Called this case legal impossibility by the court, but
charged with attempting to receive stolen other courts have gone the other way, legally
goods but the goods were not stolen. impossible to complete the crime, not illegal to take
the goods
-Or fact is that the goods are not stolen
People v. Dlugash -This court calls it factual impossibility, this case
One is guilty of attempt when engaging in was a lot more dangerous than Jaffe
conduct to effect the commission of a -Under MPC, impossibility is not a defense, if
crime. Factual or legal impossibility is not circumstances as D believed them to be, you would
a defense if crime if the crime was have crime, with an exception of mitigation, when
committed as such person believed them there’s no danger the court can mitigate the crime
to be. Defendant shot the victim in the using impossibility
head. The victim was shot earlier in the -if you believe something will happen but don’t have
chest and might have been alive. the purpose you don’t have attempt
People v. Luparello Aiding and abetting, complicity, accomplice,
Intent to encourage or facilitate an offense solicitation are all the same thing, they help people
committed is not required for an commit crimes, guilty of the same crime (accomplice
aider/abettor. Defendant not only guilty of liability is a theory of liability)
crimes encouraged, but those that may -helping someone to do it, or causing someone to do
foreseeably result. Defendant got a it results in liability
married woman pregnant who left with -court here says it does not have to be the exact
her husband. Defendant and his friends crime you had purpose for, it could be reasonably
planned to beat the husband up but his foreseeable (this is majority)
friends killed the husband.
Wilcox v. Jeffery -encouragement is enough for actus reus
When someone encourages another in the -help does not actually have to make a difference
commission of an illegal act, they satisfy -principals don’t need to know you’re helping
the actus reus of accomplice liability. -guilty of what the principals are guilty of (analyze
Defendant was convicted of unlawfully principals first, so you know what accomplice are
aiding a jazz musician get employment in liable for)
the UK, because he went to the concert -if principals is not guilty, accomplice may be guilty,
and paid for a ticket. depending on why principals are not guilty
(diplomatic immunity, not found, dead)
-if you have a duty to act, omission suffice for actus
Hicks v. United States -do not have to convict the principal to convict the
An accomplice must intentionally aid, accomplice
abet, or encourage the principal in order to -but if the principal is found not guilty, the
be found guilty. Defendant was present accomplice can be found guilty, we allow for
when shooter killed. Witnesses said he inconsistent juries (if the same jury then not
encouraged the shooting while defendant allowed), you still look at the elements for
claims he didn’t. accomplice

State v. Gladstone -defendant can argue he was indifferent and didn’t

There must be a nexus between the care about the weed being sold
individual accused and the party whom he -some courts hold that purpose required for lesser
is charged with aiding and abetting. crimes and knowledge suffices for major crimes
Defendant did not have any marijuana, but (minority)
offered the name of someone who did
have marijuana to an undercover agent. -Regarding negligence crime, as long as you have
the same mens rea as the principal, then the
accomplice only needs negligence if principal only
need negligence
-MPC, for accomplice liability, you need to have
only the same culpability as the principal
-Regarding strict liability – to be an accomplice, only
need the purpose to do the acts that lead to the strict
liability, if the principal didn’t need to know, neither
did the accomplice

-can be an accomplice to an attempt, analyze the

primary actor first
-when accomplice liability is a separate crime, it is a
United States v. Alvarez -conspiracy is an inchoate crime
Mere participation or association in an -defense using 1st amendment, right of association
offense can be conspiracy. Knowledge of -conspiracy requires an agreement between 2 or
all details of conspiracy or joining the more qualified people
conspiracy at its inception is not required -concerted action – agreeing to a conspiracy by
for liability. Alvarez was going to be at the action or performance
unloading site in the US when others
conspired to smuggle 100,000 pounds of
marijuana from Colombia by air.
Gebardi v. United States Bilateral rule – both can be prosecuted
Acquiescence by the woman transported Unilateral rule – only one can be prosecuted (MPC
was not intended to be punished for -minority)
conspiracy. No liability for conspiracy
when there’s a recognized rule of justice
or policy exemption. Defendants indicted
for conspiring together to transport a
woman from one state to another to
engage in sexual intercourse.
Garcia v. State
It is no defense that person the accused
conspired with was a police informant. A
unilateral approach to conspiracy was
taken, where culpability of the actor
determined liability. Defendant convicted
of conspiracy of murder when the only
person defendant conspired with was a
police informant.
People v. Lauria -Intent can be established by 1) direct evidence of
Conspiracy requires both knowledge of intent to participate or 2) by inference through his
illegal use and intent to further that use. special interest in the activity or aggravated nature of
Intent can be inferred from knowledge 1) the crime
when purveyor has a stake in the venture, -knowledge + more = inference of purpose
2) when no legitimate use for the
goods/services exists, 3) when volume of Conspiracy gives prosecutor benefits of evidence,
business is disproportionate, or 4) when venue (forum shop), easier to prove, point fingers,
supplier knows the equipment supplied extends statute of limitations just for the conspiracy
will be used for felonies. Lauria ran an
answering service that prostitutes used. -Conspiracy to cover up usually seen as a separate
conspiracy, a cover up can also show purpose of a
Pinkerton v. United States
When a defendant joins a conspiracy, all
defendants still part of the conspiracy are
liable for substantive crimes committed to
advance that conspiracy. Defendant
convicted for violating the tax code and
claimed his brother who lived with him
committed substantive acts.
Kotteakos v. United States -Wheel conspiracy, the rims were missing here
Though defendants may all be engaged in (interest in others to succeed creates rims)
a similar criminal enterprise, they are not -To connect the rims, for the guy in the middle to
necessarily involved in the same criminal stay in business, everyone has to participate
conspiracy. Defendants are guilty only of
separate conspiracies they participated in.
Defendants are convicted as part of a
conspiracy to fraudulently procure
government loans, where government
argued there were 8 separate conspiracies
with one common person.
United States v. Bruno -Chain conspiracy
When each link knew that the other links
were necessary components in the scheme -United States v. Borelli – a wheel and chain
of distribution and were all parts of a conspiracy
single undertaking, there is one -again can argue that even the local drug dealers are
conspiracy. Defendants were indicted competitors, they are tied to each other’s success
along with 86 others for a conspiracy to since the importer needs all of them to stay in
import, sell, and possess narcotics and business
argued it was a series of conspiracies
rather than one.
People v. Goetz United States v. Peterson – defines self defense 1)
Self defense is not purely subjective. The when necessity begins and before it ends, 2)
actor must not only have the subjective necessity appears necessary, 3) must exist a threat of
belief that deadly physical force is unlawful and immediate deadly force 4) believed by
necessary, but those beliefs must also be the defendant
objectively reasonable. Goetz shot 4
young men on a train (who had
screwdrivers for theft on them) after they
asked him for money.
State v. Kelly -standard for imminence should not be here and now,
Evidence relating to battered spouse but reasonable person who lives life of battered
syndrome was relevant in determining woman would believe it is imminent
whether a reasonable fear of danger
existed for a self-defense claim. Kelly
(who had battered woman syndrome)
killed her husband with scissors.
State v. Norman
Self defense requires imminent danger of
death of great bodily harm. Defendant did
not have a reasonable belief the husband
would kill her in the near future. Wife
suffered years of abuse and shot husband
while sleeping.
State v. Abbott
One cannot use deadly force in self
defense if the actor knows that he can
avoid the necessity of using such force by
retreating to safety. Neighbors get into a
fight, in which their families joined in
with hatchets, knives, and pitchforks.
United States v. Peterson
When a person provokes or is the initial
aggressor, he can not later claim self
defense. Deceased was stealing
windshield wipers from defendant.
Defendant went inside to get a gun,
approached the deceased as he was about
to leave, and shot the deceased who
charged at him with a wrench.
People v. Ceballos Life > Property
Deadly force could not be used solely for
the protection of property. The character
and manner of the alleged burglary did not
reasonably create a fear of great bodily
harm and therefore there was no cause for
the use of deadly force. Defendant set up a
trap gun to prevent burglaries in his
garage, and a burglar was killed.
Tennessee v. Garner
A cop chasing a suspect may use deadly
force only to prevent escape if the officer
has probable cause to believe that the
suspect poses a significant threat of death
or serious physical injury to the officer or
others. Cop shot the suspect as he was
climbing a fence to escape. The cop could
see the suspect was unarmed. The suspect
only took 10 dollars and a purse.
People v. Unger
Necessity can be an affirmative defense to
the crime of escape. Relevant factors
include 1) threat of death, rape, or serious
bodily injury, 2) no possibility of a
complaint to authorities, 3) no time for
courts, 4) no evidence of violence used in
escaping, 5) prisoner immediately reports
to authorities after escape to a safe
position. Defendant tried to escape after
he walked off of an "honor farm" while
serving a sentence for auto theft and
claimed necessity since other inmates
threatened to kill and rape him.
United States v. Schoon -distinction between direct and indirect civil
The necessity defense is inapplicable to disobedience is a red herring
cases involving indirect civil -MPC – More lives > fewer lives
disobedience. Defendants appeal their
conviction (stemming from a protest) for
obstructing the activities of the IRS office
and failing to comply with the order of a
federal officer.
Public Committee Against Torture v. State Necessity for torture cannot be pre-authorized, you
of Israel cannot say you should torture in advance
The General Security Service (GSS) does
not have the authority to torture in certain
ways, and that judgment for this will be
suspended for a year.
State v. Toscano -No economic defense of duress
We hold that duress is an affirmative
defense to a crime other than murder, and
that it need not be based upon an alleged
threat of immediate bodily injury.
Defendant was convicted of conspiring to
defraud insurance companies and argued
duress for the safety of his family.
M’Naghten’s Case -know the name of this case
The M’Naghten Test is an insanity test. A
defendant is not culpable if at the time of
the criminal act if as a result of a mental
diseases, he did not know the nature of the
act he was doing or did not know what he
was doing was wrong. Defendant believed
he was the victim of an international
conspiracy and shot a guy.
Blake v. United States
MPC adapted, where a substantial (rather
than complete) lack of capacity was
required for the insanity defense either to
appreciate the criminality or to conform
his conduct to the requirements of law.
Defendant robbed a bank and pleaded
United States v. Lyons -abandoned the volitional prong (irresistible impulse)
A person is not responsible for criminal part of the MPC
conduct on grounds of insanity only if at
the time of that conduct, as a result of a
mental disease or defect, he is unable to
appreciate the wrongfulness of that
conduct. Defendant was convicted of
several narcotics violations and claimed
that he was unable to conform to the law
due to a drug addictions.
State v. Crenshaw Insanity doesn’t mean there was no mens rea, there
The court concluded that the defendant was just no culpable mens rea
knew his acts were morally wrong and
illegal and thus his personal belief cannot
exculpate him. It is society’s morals and
not the individual’s morals that are the
standard for judging moral wrong.
Defendant brutally murdered his wife
after he suspected that she had been
unfaithful. He claimed he did it because
he followed the Moscovite faith.
State v. Guido
The court would not fault defense counsel,
defendant, or defendant's witnesses
because the psychiatrists changed what
their understanding of what the law means
by disease. Defendant was so distraught in
her marriage that she decided to end her
life but at the last second shot her
husband. Psychiatrists first said defendant
was sane but after meeting the defendant
said she was insane.
State v. Cameron
What is right and wrong refers to
knowledge of a person at the time of
committing an act that he was acting
contrary to the law. A narrow exception is
made when a party performs an act he
knows is legally and morally wrong but
believed the act is ordained by God
because of a mental defect. Defendant
stabbed his stepmother over 70 times and
used the insanity defense.
United States v. Brawner Spot insanity issue – someone drooling, taking
The court found a rule that permits the medication, seeing a doctor, acting weird
introduction of expert testimony as to -does he have a disease or defect, assuming he has a
abnormal conditions if it is relevant to disease or defect
negate, or establish the mens rea. After -M’Naghten standard, common law additions, MPC
examining the test of legal insanity as a standard
complete defense, the court considered -voluntary intoxication – can be used to specific
whether mental health evidence should be intent crimes, and drops from higher intent crimes to
admissible apart from its bearing on the lower ones
insanity issue.
Clark v. Arizona -this case – why fearful of diminished capacity,
Due process does not prohibit Arizona's worried about battle of the experts
use of an insanity test stated solely in -Brawner – why they want to use diminished
terms of the capacity to tell whether an act capacity
charged as a crime was right or wrong.
The state could also constitutionally limit
a defendant's evidence of mental defect to
only what is relevant to that insanity test.
A man with paranoid schizophrenia killed
a police officer who pulled him over.
People v. Hood
The court held that on re-trial the court
should not instruct the jury to consider
evidence of defendant's voluntary
intoxication. Voluntary intoxication can be
a factor for specific intent crimes but not
general intent crimes. Defendant, while
resisting arrest, grabbed the officer's gun
and shot the officer twice in the leg.
Regina v. Kingston
If a defendant is secretly drugged causing
loss of self control and forms an intent he
wouldn’t have formed, the defendant
should be exculpated. Penn lured
defendant over to his place and drugged
him, causing defendant to abuse a boy
United States v. Russell -stayed with predisposition standard here
Government agent's active participation in -prosecutors loved entrapment, since it is a loaded
criminal conspiracy was not entrapment. standard and allows them to bring in extra evidence
Law enforcement officers may participate
in the procedural commission of certain
crimes such as drug manufacturing, so
long as they do not implant criminal
designs in the minds of the accused. A
federal agent locating a meth lab helped
supply lab proprietors an ingredient.
People v. Barraza
California’s objective test for entrapment
(unlike the Supreme Court) seeks to deter
overreaching police conduct and looks to
see if officer’s actions would induce a
normally law-abiding person to commit
the crime. Defendant’s character and
predisposition is irrelevant.
Police kept calling a man and got him to
give her a note about getting heroin.
Gregg v. Georgia Death penalty – bifurcated trial
The imposition of the death penalty does -arbitrary: race, location of killing (death penalty for
not, automatically, violate the Eighth and rural killing, unlikely for urban killing),
Fourteenth Amendment. If the jury is -does not apply to mentally retarded, minors
given standards, the death sentence may -whether it applies to child rape is open
be constitutional. If the death penalty is
mandatory with no provision for mercy, -syndromes can be used to motivate or as an
then it is unconstitutional. A jury found additional aggressor and used offensively rather than
Gregg guilty of armed robbery and defensively
murder and sentenced him to death.
Thursday – 12-5pm, Friday 10:30 to 11:30 am,
Part 1 - 70 minutes MC, 50 questions, 5 min break,
Part 2 – Question 1, 90 minutes, Question 2, 60
minutes, Question 3 – 45 minutes (Part A more time,
B less time)

-FM – analyze the felony (AR + MR +

Circumstances), assuming they are, analyze the
limitations, merger, does the felony require malice,
discuss malice, during the course of, in furtherance,
who caused the death, agency theory, proximate
cause, provocative act doctrine, who dies

-Insanity – must mention the disease or defect is a

legal term
-Regarding M’Naghten – talk about hallucinating
versus wrong
-Regarding MPC – “conform” part, can refer to
irresistible impulse part
-If there is a mental illness, you have to talk about
insanity, diminished capacity, and maybe

Outline to Hypo 2
1) disease or defect, symptoms, history,
medication versus unclear diagnosis, number
of odd people, easily faked, can be brought
upon himself since he can drink to reduce
medication effectiveness
2) M’Naghten, D is presumed sane at time of
the crime, did not know nature or quality of
acts or act is wrong, Buford goes to work,
does immigration work (whether one is
normally insane can be used as an
argument, did not know nature because “he
thinks he’s in a different
universe/hallucinating), for not know his act
was wrong – thought he was better than
3) Lacks substantial capacity, does not simply
have to be insane al the time
4) Diminished capacity, attempt = specific
intent, but nothing to drop to
5) Voluntary – drinking it, not involuntary

Accomplice liability, conspiracy, and think about

felony murder

1. Sue twice in criminal/tort law?

2. State v. Hazelwood (oil spill) – ordinary negligence applied, is that crim/civil?
3. Criminal negligence, super negligence = more than reasonable person?
4. No mens rea listed = no possibility for mistake of fact, law?
5. You can transfer intent (purpose), can you transfer knowingly/recklessly?
6. People v. Marrero (calling a girl) overrule MPC2.04 regarding mistake of law, law is
vague? A federal correction officer was arrested at a club for carrying an unregistered
weapon which he thought was allowed.
a. Why do we even have to look at legislature intent, if they don’t make the laws
clear, how can people follow them?
8. Note…physician removes heart when patient is brain dead, but law defines death as
cessation of heart function, conviction for intentionally killing patient?
9. Punishment for strict liability = cruel and unusual punishment? You’ve done nothing
10. Jurisdictional vs. Strict liability? Morsette case, knowing taking casing of air force, or
staples case, proving “unregistered” firearm is jurisdictional or strict liability.
11. Strict liability, not like common law crimes, must be mala prohibitum? Common law
crimes are… mala in se?
12. Knowingly when strong suspicion and avoids learning the truth, reckless or knowledge?
13. Mens rea – multiple personality disorder

14. When do we use MPC vs. common law, strict liability or something since there’s two
opinions for everything
15. Where does the reasonable person play into criminal law, mental physical disabilities,
children, professionals, is it different from the reasonable person in tort law
16. What do you mean when you have us say “the law giveth, taketh away”
17. Causation?
18. Can lawyers and law students sit on the jury?
19. Every injury caused that does not lead to a instantaneous death = omission?
20. Omission requires physical capability? Use impossibility/insanity as defense? Fear
21. Try your best to do duty and fail?
22. Does every crime require social harm (actual dmg not needed)?
23. Technical defense, when waiving jury = issue of law instead of issue of fact?
24. Can mistake of fact apply to negligence (or reckless), since mistake of fact works even if
belief is unreasonable, while negligence…is based on a reasonably care, also negligence
requires no intent
25. What you need to know is what makes your conduct wrong, does that include morally
wrong conduct, or… also legally?
26. Marrero case, don’t all personal misreadings of material element statute negate the mens
rea (unless strict liability, or you misread jurisdictional element),
27. Ignorance of the law is not a defense, but since it negates material element exception,
then ignorance of all material elements is a defense
28. Regarding jurisdictional elements, under common law you’re held for the greater crime
even w/o mens rea, but under MPC you’re held for the lesser crime (since it rejects
29. Regarding strict liability there is no mistake defense…at all
30. Killing non-provoking victims, is there mistake of fact defense? no
31. Welansky case, owner prosecuted for club fire, does it matter he was not really in charge
of everything. What if his employee’s blocked the exits, replaced the material with
flammable things over series of years and he didn’t really know?
a. Is he being held criminally vicariously liable?
b. Can you be criminally liable for the criminal acts of third parties, a patient of a
doctor tells the doctor he will call someone, doctor does nothing and someone
32. From today regarding involuntary manslaughter, you ask in step one if there’s a
substantial and unjustifiable risk, what is the same question? Step one you look at
negligence, then you look at if it’s gross
a. (magnitude of harm > social utility then it’s gross?)
33. Intent to kill (malice) vs. purpose (Carrol standard murder 1)
34. Mastery of the law?
35. Look at Alice hypo

36. Set a trap, and I know it, and it’s murder?, take something from the left of the podium
37. What is your glannon guide? – in the library
38. Let’s say you were drunk driving, and you get home safely. The police for some reason,
was talking to the bartender or some other source who said you drank and then drove.
Can they go to your door and arrest you?
39. Clarify on what atmosphere of malice constitutes for the provocation act doctrine – create
the atmoshphere
40. When looking at homicide do we also have to separately look at mens rea, or is like
analysis of the varying levels of homicide already include mens rea
41. Mens rea of knowingly, is that murder 2?
42. For a state that punishes the same for the attempt and the crime, can you get a death
penalty for attempt?
43. Practice midterms…and sample student answers?, like 20 or well 19 years would be nice
44. When you’re provoked and you kill the wrong person, most courts do not recognize
manslaughter when you’ve killed the wrong person under heat of passion right?
a. Why don’t they use transferred intent under common law?
45. Why is illegal arrest a legally adequate provocation?
46. Oh and to double check, adultery as a legally adequate provocation applies to women too
right in theory even though always male?
47. Distinction between a manslaughter with a long smoldering (when talking about a
cooling time), if you’re long smoldering isn’t that sort of like first degree murder? You’ve
clearly premeditated the murder during this “smoldering time where anger built up?
a. I mean since a good number of murderers have a “motive” and therefore make an
argument they “provoked” whoever to kill
48. Under the extreme emotional disturbance standard, can’t that apply to a good number of
1st degree murders, since when you premeditate someone, you’re automatically are
considered under an emotional disturbance (otherwise you wouldn’t kill someone), isn’t
technically everyone who’s murdering (1st degree at least) someone under an emotional
disturbance and had a reason
a. Like in the Carroll case, when he shot his wife, he clearly had a reason and he was
obviously under extreme emotional disturbance
49. Generally, regarding felony murder, do we still look at causation? Is it simply no mens
rea needed or complete strict liability? I know courts look at proximate cause when
looking at who’s acts and the agency theory,
50. If you attempt to kill someone, and they’re injured and paralyzed or something and kill
themselves later, you’re generally liable? Or is that something arguable?
51. Regarding the arson hypo, fire breaks out from a spark, do you have a legal duty to put
out the fire?
52. Why is it a year and a day rule, why not just a year?
a. If you want to infect someone with HIV, then you’re not liable for murder? HIV
takes many years to kill
53. 2 ppl shoot, each bullet would have killed in an hour, but with 2 bullets they both die in 5
minutes, regarding actual causation, do we look at but for their death? Or but for their
death in 5 minutes?
54. 2 people shoot at a guy with an arrow, but only one arrow hits, and they use the same
type of arrow, are they both responsible?
55. So when death is obvious (A shoots B) what do you say about proximate cause?
56. Complimentary human action, does that break the link or does it just depends?, arguable
57. Diff between mistake of fact and factual impossibility? Try to shoot the deer, but turned
out to be a man versus trying to shoot the man but it was a deer
58. Voodoo is factual impossibility?
a. How do we analyze impossibility if technically all legal impossibility can be
factual impossibility?
59. If someone is guilty under the dangerous impossibility doctrine for simply being
negligent, what do we have to analyze, just that a reasonable person should have known
the risk?
60. 3344Regarding shield cases, can that be argued as kidnapping and thus an inherently
dangerous felony?
61. Attempt, it only merges with the actual crime when the crime is complete right?
a. If you try to rob and someone dies, you are still guilty of attempted robberty,
b. But if you kill someone are you liable for assault/battery?
c. How about if you’re guilty for 1st degree murder, can you be guilty of an
attempted second degree murder?
62. Attempted conspiracy?
a. IS the person making an offer to commit a crime guilty of conspiracy? What if the
other person joking says “I agree” but the offeror didn’t realize it, is he still guilty
of conspiracy
b. Every conspiracy would also be an accomplice, you have helped by agreeing, it
automatically helps the offeror since he’s reassured he has people helping him
c. Can you be guilty of a conspiracy under accomplice liability, you helped someone
commit conspiracy by say giving them a contact information to someone
63. If two people commit the crime, they’re both guilty because they actually did commit the
crime, but they would also each be guilty under accomplice liability for committing the
crime? So there is basically two ways for them to commit the crime?
a. Is it possible for the principal to be guilty for a crime under accomplice theory?
Isn’t he helping others?
b. Can’t you have two principals, and thus each principal is helping the other out?
64. Under conspiracy, and one of the co-conspirators is guilty of an attempt, can you be
guilty of that too?
65. Estoppel theories as an exception to mistake of law, what constitutes an administrative
a. How high enough does a government official have to be?
b. I know we can’t rely on the opinions of cops, but why not? But they’re the ones
that arrest you? You can violate plenty of laws but they ultimately decide whether
you’re in trouble or not and are at the beginning of the criminal justice system
66. Mistake of law can be used as a defense for strict liability crimes? –only for no notice
67. When talking about limitations of felony murder that must be in furtherance, it only
refers to acts of cofelons right? Use all approach
68. Lacking one element of self defense, what exactly is one element or two to mitigate to
manslaughter, can you mitigate from 1st to 2nd degree, or from VM to IM? What if ur
missing two elements of SD, generally only for honest but unreasonable
69. If you shoot someone, and accidentally kill someone else, transferred intent applies right?
Do you still get an attempt for the person you tried to kill?

70. If you ask us what crimes have we been committed, do we not mention defenses, and if
you ask us for what defenses can be asserted, that means only affirmative defenses of
justification/excuses, does it include like mistake of fact/law?
71. At common law, why wasn’t abandonment allowed as a defense for accomplice liability
72. What happens when there’s characteristics of both a wheel and chain conspiracy? Do
courts look at it as several conspiracies or is it a case by case basis on exactly how the
conspiracy works
73. the initial aggressor you’re still allowed to use nondeadly force right?, doesn’t mean give
you initiate a fight if you just wanted to hurt someone with nondeadly force and throw a
few punches
74. How does strict liability work for accomplice liability? And attempt? Courts split? MPC
75. For the merger doctrine, where the felony must have a purpose other than murder, there
can’t malice or it merges, does that include the gross recklessness definition of malice?
76. How do research assistants for professors work?
77. For felony murder inherently dangerous limitation, you look at the statute in the abstract
versus the act in the abstract?
78. Do you have sample student answers or at least grading rubrics for the sample exams on
the library? 1999, fall 2001, spring 2001, spring 2003, and any more since you’ve been
teaching like 20 years
79. Glannon guide, named after Joseph Glannon?
80. Does drunk driving generally (in real life) end up as murder 2 or involuntary
manslaughter or is that something that totally depends and is arguable
81. Choice of evils for necessity – does the evil basically limited to death or serious bodily
harm or serious property harm
82. Can you also bring in experts for battered woman syndrome cases when the duress
defense is used (we talked about it for self defense), but there’s like an
imminence/reasonableness factor for duress
83. Is intoxication a type of diminished capacity?
84. Under the MPC, diminished capacity can be a full defense? If it drops from a general
defense down to like nothing?
85. Is diminished capacity kind of like imperfect insanity defense, if you’re missing elements
for insanity it drops down to diminished capacity
86. Does every duress case lead to a colorable issue of necessity? Is there always necessity
when there is a duress, because under duress you are forced to choose between someone
dying and… you commiting a crime (someone dying), every duress situation gives you a
choice of evils
87. When choosing lesser evils, you have to choose the least most evil right? Like if you had
to choose between like destroying 5 houses, 4 houses, and 3 houses, you have to choose
the 3 houses right? You can’t be like I chose the 4 houses over the 3 because my house
was in the 3?, better yet choose between 5 and 3 and 3, and your house is one of 3
88. Does the federal approach to entrapment strongly favor the prosecution since if the
defendant commited the crime, then you automatically have a strong argument that he
was predisposed to commiting the crime?
a. Can entrapment be used for strict liability crimes? Or does it matter which
approach is taken?
89. Provocation Act doctrine where defendant creates an atmosphere of malice, that also
applies if one of your co-felons starts the shooting right?
90. In determining whether it is specific or general intent crime, one of the things we look at
was the historical name, what does that mean?
a. Is there is a jurisdictional element in the statute, does that generally mean it is
more of a general intent crime?
91. Where there’s an insanity problem, do we have to prove that the defendant is competent
to stand trial
92. If you know with virtual certainty that people will die, the only levels of murder that
suffice would be gross reckless for murder 2 and involuntary manslaughter right?
93. If you’ve taken the last step for attempt, that satisfies all the other tests as well.
94. Irresistible impulse test – do we look at whether the defendant had no control at all? Or
just that he had no control even with police there, since a police could be at his elbow, but
he wanted to shoot the guy regardless of whether he was going to get caught
95. Law enforcement defense, can only be used by police?
96. Can you argue you thwarted the crime by going to the police?
97. Can I get participation points for moving the podium?