Criminal Law

Fall 2012
Gomez
Crime: any combination of conduct and intent that violates a criminal statute, as enforced by a prosecutor and
interpreted by a court
Elements:
i. Voluntary Acts (Acteus Reus): determined by state/federal criminal statutes, not by federal
constitutional law
ii. Causing Harm (Causation)
majority of crimes do not require proof of causation (except homicide)
iii. Culpable Intent (Mens Rea)
Criminal punishment is usually justified in one of three ways:
Retribution (moral justification)
Deterrence (social costs and benefits)
o likelihood of punishment better deterrent than the amount of punishment
Rehabilitation (reform criminals)
Notes on Crimes:
proportionality doctrine: severity of crime should match severity of punishment
void-for-vagueness doctrine: Requires crimes to be defined with enough precision to inform potential
offenders how to avoid criminal punishment and that does not invite arbitrary/discriminatory enforcement
Nash: companies accused of conspiring to monopolize industry alleged Sherman Act too vague to
be operative
Gray v. Kohl: church group arrested for passing out bibles. Court held statute was too vague b/c a
reasonable person could not determine meaning
The degree of punishment does not depend on the measure of the harm actually caused (many crimes
cause no harm); the measure of punishment depends on the seriousness of crime
o In Re Joseph G: D and friend entered suicide pact; D survived and court ruled D did not commit
murder b/c he intended to kill himself and method of suicide gave both equal chance of death
Matlock Test: if actively participates or encourages victim than guilty of aiding suicide
o Cleaves: D guilty of murder for actively assisting partner in suicide attempt
o Actual harm in both cases was death, but mutual suicide is less serious than aiding suicide
Notes on Statutory Interpretation:
o Generally, we dont have a question of legislative intent unless the language is ambiguous
o Goal is to determine the intent of the legislature that enacted the particular statute in question
1. Look at language in the statute itself
2. Look for something authoritative in the legislative history
3. Examine the overall statutory framework for clues (structural evidence)
4. Apply the "rules of construction" that have been developed by judges
i. Expressio unius est esclusio alterius: items in statutory lists are exclusive and items not
mentioned are assumed not to be covered
ii. Ejusdem generis: vague terms listed in a statute should be interpreted in light of the
statute's specific terms (Ex. If a statute talks about trucks and later mentions "vehicles",
vehicles = automobiles not tricycles)
iii. Rule of Lenity: ambiguities in criminal statutes are resolved in defendant's favor (rare)
Brogan: D argues his simple denial did not violate statute. Court ruled witness
could remain silent, but not to swear falsely
5. Some judges believe they are authorized to interpret statutes based on public policy

Criminal Law vs. Civil Law:

Similarities
o Goal is to resolve disputes
o Plaintiff/Prosecutor has the burden of proof
o Agreements/settlements popular
o Common law origin
Differences
o P = prosecutors (government) whom are paid by salary (no monetary incentive to win/political incentives)
o Standard of proof (civil cases = preponderance of the evidence ; criminal = beyond a reasonable doubt)
o Nature of settlement (plea bargains)
o Civil remedies = money; Criminal remedies = loss of liberty (incarceration/death)
o Criminal Law is primarily statutory law (created by legislature)
o In criminal cases, parties involved have a lot of latitude to decide how to proceed with case

CHAPTER 3: DEFINING CRIMINAL INTENT (Mens Rea)

I.

Common Law Culpability Standards

a. General Intent: intent to do the forbidden act
focuses entirely on conduct element (defendant need not have intended the result)
default standard
"General Intent Plus": GI crimes where courts want some other "plus factor" that prosecution
must prove in addition to the ordinary GI standard
typically negligence or malice
Note: in tort law, negligence is satisfied by valuing others' interests too lightly; in
criminal law, negligence is complete disregard of interest, or close to it
b. Specific Intent: intent to do the forbidden act + intent to achieve some specified result
higher burden of proof for prosecution
Stark: willful diversion of funds (prosecution wants GI b/c it is easier standard)
generally
punished more harshly than GI version

Ex. Larceny
Morris: D left car too early in crime that inference of intent to permanently deprive
could not be made
c. Strict Liability: liability imposed for AR w/o any demonstrated culpability or negligence (MR)
1. Crime didnt exist at common law
2. MR would undermine legislative purpose
3. Small penalty
4. Conviction is not stigmatizing
5. Commission of crime could harm many people
TRD: failure to register as a sex offender (strict liability used to promote public welfare)

II.

Model Penal Code Culpability Structure

a. MPC vs. Common Law
model penal code and common law are both active in the U.S. and are intertwined (courts that
have not adopted MPC, can use MPC as persuasive authority)
Use of purely cognitive fault standards (MPC) increase number of people incarcerated

b.

MPC more statutory (shifts power from judges to legislature)

MPC hoped to be clearer and more certain
MPC in theory is more narrow (CL is ambiguous/more flexible)
GI/SI vs. Section 2.02 (Purpose, Knowledge, Recklessness, Negligence)

Section 2.02: Person is not guilty unless he acted purposely, knowingly, recklessly, or
negligently; except in Section 2.05 (strict liability)
i. Purposely
1. Conduct: aware of ones conduct
2. Attendant Circumstances: aware of the circumstances or hopes they exist
3. Result: conscious object to achieve result
ii. Knowingly: (awareness of result is practically certain = lower hurdle for prosecution)
1. Conduct: aware of ones conduct
2. Attendant Circumstances: aware of the circumstances or hopes they exist
2. Result: practically certain (or high probability)
***Ex. D consciously desires to kill A, and does so by putting a bomb on board a plane that
contains both A and B. D purposely killed A; D knowingly killed B.
iii.

iv.

Recklessly
Consciously disregards a substantial and unjustifiable risk (SUBJECTIVE)
1.
Disregard is a gross deviation from reasonable person standard of care (OBJECTIVE)
2.
Negligently
Failure to perceive risk is a gross deviation from the reasonable person standard of care
1.
(OBJECTIVE only)

Notes on Section 2.02:

Section 2.02(3): recklessness is the default standard
Section 2.02(4): If there are multiple elements, the MR applies to each of the elements (unless a
otherwise specified)
element analysis
Section 2.02(5): Higher MR satisfies lower MR (purposeknowledgerecklessnegligence)
Ducker: Instructions that did not define intent as to each element was harmless error
because a detailed instruction on the word knowingly increased the prosecution's
burden of proof
Section 2.02 (8): "willfulness" satisfied by knowledge (or above)

CHAPTER 4: FEDERAL CRIMINAL LAW

More accountability in state system because actors are elected (federal actors are appointed)
Federal system covers less ground than state (much more selective that state courts)
Federal crimes limited to those in constitution (no plenary power)
o States have plenary power; may punish all crimes within their borders

A. FEDERAL JURISDICTION
Congress can only enact statutes that fall within the scope of some power specifically granted by the
constitution (see Article I, Section 8 on p. 205)

o Jurisdictional element: the portion of the crime that establishes the federal government's

constitutional power to prosecute (essentially define the legal boundary between federal and
state criminal law enforcement)
o federal jurisdictional element must be proved without a reasonable doubt by the
prosecution in federal crime cases on top of the regular arguments
Jimenez-Torres: D's conduct affected interstate commerce and business was forced to close
(interstate commerce meets federal jurisdiction)
Peterson: money printed out of state does not constitute "interstate" commerce (limits federal
jurisdiction)

**Traditionally, to constitute interstate commerce one had to physically move things across state lines -->
more modern approach is to simply affect commerce out of state -->this led to too much jurisdiction and
courts have started to pull back (afraid of unprecedented federal power)
A. FEDERAL MENS REA DOCTRINE
Federal crimes tend to offer more generous MR standards than state crimes
Initially, goal was that federal crimes would be a strict liability (did not turn out this way)
o Dotterweich: law required CEO D knew drugs were adultered, or D would be unconvictable.
If no proof of MR needed, criminal punishment might be imposed even with no evidence of
personal guilt-->answer: use civil regulations not criminal
o Morissette: D "stole" used bomb casing from government property. The Court ruled omission
of any mention of intent in statute was not to be construed as the elimination of intent from
the crime
**Morissette is the template for federal law of MR (not Dotterweich)

CHAPTER 6: DRUG CRIMES (NO MPC)

Arrests, prosecutions, and convictions for drug offenses are distributed unevenly across racial lines
Law's real target is the manufacture (possession with intent to distribute excessive quantity), purchase
(punished by possession), and sale of relevant substances
Tension between Drug Crimes and Standard Crime Definition
1. Relevant transactions are hidden (crimes are consensual)
2. Drug cases present serious problems of grading: difficult to come up with standard that
distinguishes more culpable actors from less culpable ones
Long sentences not b/c of culpability but usually b/c D refused or couldn't give prosecution the
information it needed (sentence used to set an example)
The way that drug crimes occur/and prosecuted lead to a very specific pattern
Vertically organized (top-->distributors-->more distributors-->bottom [the lowest rung is the
typically the ones who get arrested and prosecuted])
o Big fish rely on small time dealers/mules
o Prosecute small fish (with over harsh penalties to get them to turn on big fish)

A. POSSESSION
1. Actual Possession (general intent unless there is also intent to distribute)
i.
Possession on the person
ii.
OR under D's direct control (does not mean exclusive control)
2. Constructive Possession (general intent unless there is also intent to distribute)
i.
Judge made rule that broadens possession
**p. 350 lists ways prosecution can show "control" (Circumstantial Evidence)

Attempt to flee police

Inconsistent explanations
Presence of drug paraphernalia
Evidence of being under the influence
Drug residue found on D

Kier: While marijuana residue was found in the car, none was found near D, on her seat, or on her
person (spatial proximity not enough to establish constructive posession)
Hunte: spatial proximity + knowledge of conspiracy to transport drugs = constructive possession
- Liability gives GFs incentive to cooperate with authorities
Garcia: Knowledge element of a possession = knowledge of possession + knowledge of the nature of
the illegal substance
-Knowledge was in dispute (drugs wrapped in electrical tape/truck recently stolen/friends used it)
Pigford:
control (back of truck) + possessed $52k worth of marijuana (implies knowledge and intent to

distribute) = constructive possession

-Distribution is hard to prove; prosecutors typically charge "possession with intent to distribute"
= possession + knowledge + more than user friendly amount
In theory, Ds w/ the largest quantities are responsible for selling the largest quantities
Prosecution can usually prove knowledge by proving amount possessed and then asking jury
to infer that the D surely knew contents
B. MENS REA WITH RESPECT TO THE AMOUNT OF THE DRUG POSSESSED
Common Law = state does not list mens rea with regard to amount, we do not apply it
MPC = strict liability is prohibited in re any element of crime
o element analysis applies unless it would frustrate legislative intent
"willful blindness": D that consciously chose not to know are usually treated as if they did know
Ryan: D conviction reversed; found that MR was associated with weight of drug and that prosecution
failed to prove MR (D had 2 lbs. of shrooms but the weight of the psilocybin halucigen was unknown to
D)
***POLICY ARGUMENT: judges think we need to stop filling up prisons with low level
crimesincrease MR requirement to make it harder for prosecution

CHAPTER 7: INCHOATE CRIMES AND ACCOMPLICE LIABILITY

Inchoate Offenses: offenses that have not yet occurred
these theories allow us to stop crime before it occurs
allow us to get at multi-party crimes
o target group crime b/c they tend to be more effective (more social harm)
A Note on Grading:
traditional common law: inchoate crimes are less serious than the target crime (ex. attempted murder <
murder)
this view is shifting where attempt = target crime
o Acosta: rec'd 25 to life for attempted possession

Crime:

CL

MPC

Critique

Attempt
crimes

MR: SI

MR: P

AR: Substantial Step OR

Dangerous proximity
(minority)

AR: Substantial step (that strongly

corroborates MR)

Incomplete punishment
before AR
Not same basis to infer MR

MR: (1) SI re assistance

(2) MR for target crime

MR: (1) P re assistance (conduct

element)
(2) MR for crime/result element
(required for target)

Accomplice
Liability
(theory)

Conspiracy
crimes

AR: Assist perpetrator to

commit target crime

AR: *Assist/attempt to assist

MR: SI

MR: P

AR: (1) Agree to commit

target crime
(2) Overt act in
furtherance e of
agreement by at least 1
co-conspirator

AR: (1) Agree to commit target

crime
(2) Overt act in furtherance of
agreement by at least 1 coconspirator

Punishment should be
individualized; shouldnt be
liable for anothers actions

No limiting principle
Conduct is mental

*MPC allows for attempting to assist perpetrator to commit crimes under complicity theory, whereas CL
requires AR of assisting
I.

Attempt: punish individual before crime is fully realized (failure of circumstances, result never occurred,
incomplete conduct)
McElroy (failure of circumstance)
D argued that he could not be convicted of attempted possession of dangerous drugs b/c the

pills were not dangerous drugs

intent (although mistaken) + conduct toward completion = sufficient attempt

Per Arizona, neither legal/factual impossibility a valid defense

Acosta
Court held D came dangerously close (simply rejected drugs b/c of quality)

Kohlmeier v. State
D convicted of attempt to manufacture meth (existence of essential items for manufacturing +

further evidence = sufficient to draw inference)

INCOMPLETE ATTEMPTS

mere preparation-->substantial step-->dangerous

proximity-->commit
*mere preparation is NEVER enough to trigger
criminal liability
*MPC substantial step is usually enough to trigger
liability
D has mens rea but NOT the full acteus rea

COMPLETE ATTEMPTS
D does everything in power to complete the crime but for
some reason it does not go though
(ex. D shoots into bedroom intending to kill but for some
reason that individual was not there so crime never
committed)

D has BOTH mens rea and acteus rea

Note on Attempt Defenses:

failure of proof: challenge MR or AR
Abandonment: Under MPC, affirmative defense where D abandons or "renounces" the relevant crime
before fruition
Abandonment will not save accomplice that doesn't abandon
Impossibility: D cannot be liable for attempts that are legally impossible; D not excused for factual
impossibilities
MPC tries to eliminate impossibility doctrine (if, in D's mind, he was committing the crime, he is
guilty of an attempt to do so without regard to whether it was even possible)
Legal because 14 year old boy cant commit rape, obviously cant attempt
Factual not an excuse because AR and MR there (e.g. planting bomb to kill someone but
detonator is broken)
II.

Complicity/Accomplice: punish D for a crime that someone else did but D helped them (charge isn't for
complicity it is for target crime X Crime via Complicity)
Peoni
o Peoni sold counterfeit bills to Regno, who passed bills to Dorsey
o Peoni's conscious object was not to facilitate Dorsey's crime (that is, Peoni could be tied to
Regno but not Dorsey)
Romero-Garcia
o Romero assisted X in distributing cocaine
Clear that Romero purposely aided and abetted x in crime
o But did Romero assist X in failing to affix tax stamps?
Not immediately obvious that Romero was complicit in this crime (did not have
possession)
However, failing to affix tax stamps = strict liability crime

Note on Complicity Defenses:

Failure of Proof
Termination: wholly deprives effectiveness of commission OR gives timely warning to law
enforcement (MPC)
III.

Conspiracy: agreement (cannot conspire to commit an accidental crime)

Direct Sales
o Co. distributed more morphine to a doctor than could reasonably be used for legitimate
purposes
o D had a stake in the venture, thus is evidence of conspiracy
Colon
o D argues he was not an co-conspirator but simply purchasing from a conspirator
o Court agrees; ruled that regular purchases on standard terms not enough to transform a customer
into a co-conspirator
Lack of evidence in re informed and interested co-operation
Standard buying/mere mutual trust not enough for conspiracy

Note on MPC Approach

MR = P
We can infer purpose from the agreement itself
If the agreement itself is tenuous, then the MR is tenuous as well
Note on Conspiracy Defenses
must prevent other conspirators from committing intended crime
o Pinkerton (brother in jail liable for his brothers acts)

CHAPTER 8: SEX CRIMES

I.

Rape (General Intent)

Common Law Definition: sexual intercourse w. victim w./ force or threat of force against her will
AR: penetration
MR: general intent
Attendant Circumstance: 1. force/threat of force 2. Non-consent 3. Capable of consent
(intoxication, age, mental capacity)
Defense: Mistake of fact (honest + reasonable)

M.T.S. (Minority Jurisdiction)

Court held that D guilty b/c any act of sexual penetration w/o the affirmative and freely given
permission of the victim constituted the offense of sexual assault
permission could be inferred either from acts or statements
Only force needed is the force needed to accomplish penetration (most states do not adopt this)
Berkowitz
College student wandered into D's dorm; never physically resisted
Court reversed D's rape conviction b/c it found that the victim's testimony did not prove "forcible
compulsion"
no force/TOF (kind of pushed, leaning type of thing)
V must physically resist or D must threaten force to cause reasonable fear of injury
In Re John Z (Withdrawn Consent)
withdrawal of consent nullifies any earlier consent and subjected the male to forcible rape charges
when he persists
Bunyard: there should be a reasonable time (5-10 min in John Z was unreasonable) but jury should
define this reasonable time
II.

Statutory Rape (Strict Liability)

o
o

statutory rape assumes sex cannot be consensual b/c children under a certain age don't have capacity to
make decision
statutory rape doesn't fit comfortably with other strict liability crimes (see strict liability factors)
minority view gaining more momentum
MPC

Majority Common Law

Minority Common Law

Assume recklessness (no MR

listed)

Statutory rape = strict liability

Statutory rape = GI Crime

A mistake of fact has to be

honest and reasonable

No mistake of fact in re
victims age defense

Strict liability is treated like

recklessness in re age
Mistake of Fact has to be
honest and reasonable

Note on Rape Defenses

Mistake of Fact:
o MR = General Intent
1.
Honest (did the jury believe that the D thought there was consent)
2.
Reasonable (would a reasonable person have thought there was consent)

If rape were SI, then you would have to prove D intended to have unconsented sex (hard)
In general we dont think force and consent as compatible
In CA & MA there is a higher burden for defendant (minority rule: where victim clearly says no
verbally or physically)
Lopez (MA)
Mistake defense is limited to situations where Vs conduct was equivocal
D didnt get defense b/c court found Vs conduct unequivocal
If D argues Vs conduct was equivocal, he essentially concedes that point and is almost
certainly convicted
Also, proof of use of force is enough to negate mistake
Williams (CA)
Need substantial evidence of equivocal conduct on the females part that would have led
D to reasonably and in good faith believe consent existed where it did not
Intoxication of D
Intoxication (D too drunk to know if victim properly consented)
o Typically not a defense (Intoxication is not a defense to general intent crimes)
o If victim is intoxicated sex + intoxicated victim = rape
Majority rule
This equation does not have force element (presume victim does not have capacity to consent)
o Giardino (CA)
Sex prohibited w/ a person who was not capable of giving consent b/c of intoxication
o Smith
Statute bars sex with an intoxicated partner, which condition was known by or was reasonably
apparent to the offender
Knowledge element makes this a SI crime
Defense of voluntary intoxication is allowed, but evidence against D is so strong was clearly
aware of Vs condition
o
o

***Not responsible for MPC approach to Rape

***Rape Shield Laws: exclude sexually past and history of victim (driven by feminist movement)

CHAPTER 9: HOMICIDE
Homicide = Result Crime (must prove duty + causation)
MR exception = strict liability crimes
AR exception = omission (failure to act)
I.

Omissions (inactivity leads to homicide)

omission is hard, b/c we don't have conduct to help identify MR

When can omission be basis for criminal liability?

i.
Duty from statute
Ex. Good Samaritan Laws that require you to help if it is reasonably safe

ii.
Duty created by contract
iii.
Duty stemming from a special relationship
Model relationship is husband/wife

Parent/child

Inn keeper/guest

iv.
Duty from failure to assist when D secluded victim
Nobody else can help victim

v.
Failure to assist when D caused the peril
Kuntz v. Thirteenth Judicial District Court: omission creating liability

II.

evidence of D's right to seek and secure safety could not be used as evidence demonstrating
her failure or delay in summoning aid
Kuntz case lists 7 (USE GOMEZ'S 5 Points)

Common Law Causation

1.
Is D's conduct (AR) the but-for cause of result? (necessary but not sufficient condition)
2.
If yes, then is D's conduct the proximate cause of result? (satisfies liability)
i.
Was there an intervening but-for cause associated with a 3rd party with agency (acted
voluntarily)
has to be intervening AFTER D's conduct

Excuses D

ii.
Foreseeability
Robertston: "but for cause" = resisting arrest ; "proximate cause" = it was reasonably

foreseeable that officer would get hurt in chase

iii.
De Minimis vs. Substantial But-For Cause
Is D's but-for cause the substantial one in pool of all but-for causes?

*all three considerations need not be met

*use this method for the exam (this is different than MPC)
Ex. Commonwealth v. Carlson: victim hospitalized after car crash caused by D. Victim decides to stop life
support-->death
-P's ultimate decision to be removed from life support was not an independent occurrence but the final
step in the continuous sequence of events that began with D's negligence (guilty)

III.

MPC Causation
1.
Is D's conduct but-for cause? (NO PROXIMATE CAUSE PRONG)
2.
What was D's MR with respect to result?
Once we learn D's mental state, we can understand culpability, etc.

define "wantonly" similarly to "recklessly"

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CL (MR)

MPC (MR)

1st Degree ("cold blooded"):

1. Intent + Premeditation
2. Felony Murder Rule (strict liability for
violating statute)

Murder:
1. P or K
2. Extreme Recklessness
(objective/subjective)
3. Felony Murder Rule (under ER)

2nd Degree ("malice aforethought"):

1. Express Malice: intent to kill - premeditation
- heat of passion
2. Implied Malice: intent to commit serious
bodily injury
3. Implied Malice: extreme recklessness
(abandon & malignant heart)
Voluntary Manslaughter:
1. Intent + Provocation/Heat of Passion

Manslaughter:
1. Extreme Mental or Emotional
Disturbance
2. Recklessness (objective/subjective
)

Involuntary Manslaughter:
1. Recklessness/criminal negligence/gross
negligence/culpable negligence

Negligent Homicide
1. Negligence (objective)

Vehicular Homicide (less blameworthy than IM):

1. Criminal Negligence + Car
**1st, 2nd, and Voluntary Manslaughter = Intentional Killings

I.

ER (could be specific intent )

1. Subjective (awareness)
2. Objective (of extreme risk)

1. Subjective (awareness)
2. Objective (of risk)

Negligence

1. Objective

1st Degree
"Willful, deliberate & premeditated"

i.
Traditional: merge into "premeditation"
Willful simply means intent

And deliberation and premeditated merged into one

ii.
Nevada: Nika case n. 5, p. 616-18
Willful: intent

Deliberation: weighing the reasons for and against

Premeditation: a design, a determination to kill, distinctly formed in the mind by the

time of killing

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iii.

TAKEAWAYS
Pre-mediation does not require planning, amount of time, or motive (Coleman -
nightclub altercation)
Felony Murder Rule
o Felonies: arson, rape, robbery, burglary, kidnapping, and escape
Policy Cons

Policy Pros

basis for criminal liability is culpable MR (MR deterrence to felonies in general (or to
in FMR is intent to commit the felony--no MR commit felonies more safely)
for homicide)
particular circumstances may not be as
dangerous --> could punish homicide too
harshly

FMR helps us determine culpability of D

(homicide occurring during felony likely not
virtuous)

crim law system is designed to make it harder

for prosecution (FMR makes it really easy for
prosecution)
o

Judges always look for ways to limit rule

i.
Innocent Agent Rule
FMR does not apply when an innocent agent does the killing (ie. Victim or police

officer)
anyone other than co-felon

this was created by judges b/c they are uncomfortable with the broad reach of

FMR
ii.
Innocent Victim Rule
FMR does not apply when the homicide is of a co-felon

only death of innocent victim can trigger FMR

iii.
Merger Rule
certain kind of felonies that are so close to the homicide that it doesn't make sense

to look at them separately

D prosecuted based on standard MR analysis not F-M Rule

iv.
Mitchell: Abstract (CA) v. Fact Approach (if felony is inherently dangerous it should
support FMR)
Abstract Approach (minority view)

o Decision by Judges
o If felony can be committed in a non dangerous way, it is not inherently
dangerous
Fact Approach (majority)

o Decision by jury
o Look at facts and circumstances to determine if particular situation was
dangerous

***In a group crime, FMR can hold all accomplices liable under 1st degree
Billa (arson car insurance): purpose of FMR was to deter felons from negligently/accidentally killing by
holding them strictly responsible for killings they commit in the course of their crimes
II.

Second Degree
Accidental (unintended killings) can constitute 2nd degree murder under "implied malice"

MPC not successful getting most states to drop distinction between first and 2nd degree

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III.

statutes did adopt idea of extreme reckless over defining depraved heart, abandon &
malignant
-extreme recklessness = depraved heart = abandon & malignant
Porter (CL Majority): nightclub altercation did not rise to the level of premeditation (intent to kill)
but there was malice
Robinson (MPC): D recklessly killed the victim while manifesting an extreme indifference to the
value of the victim's life (golf club stuck in head)

Voluntary Manslaughter
Heat of Passion is almost a defense or offsetting term to lower crime from 2nd Degree -->

Voluntary Manslaughter
Won't ever be charged with voluntary manslaughter, will be charged with higher grade and

defense will use voluntary manslaughter as a defense

Provocation or Heat of Passion (common law) = EMED (MPC)

Common Law Heat of Passion Categories

Catching adulterous wife

Mutual combat

Courts in disagreement whether voluntary manslaughter is a affirmative or failure of proof defense

Affirmative Defense: D's job isn't to poke holes in prosecution but rather to prove by a

preponderance there was Heat of Passion/EMED

Failure of proof = D raises challenges to prosecution's case and chief (poke holes in

argument)
requires prosecution to prove malice + w/o provocation or sudden heat of passion

Proving Provocation/HofP/EMED

Subjective: actual provocation in D's mind

Did D have time to cool off?

Objective: adequate provocation to a reasonable person (would a reasonable person be tested;

we dont assume a reasonable person will kill)

Who is the reasonable person?

Are there some features of D that we import to the reasonable person?

Trend is to bar mental features but to include physical features

**BOTH have to be proven

Rowland v. State: doesnt matter if he shot wife or paramour, voluntary manslaughter extends to
both
Majority CL approach (CA)
Minority CL approach
MPC Approach

IV.

Affirmative Defense
Failure of Proof
Affirmative Defense

Inchoate/Accomplice Homicides
You cannot be charged with attempting an accidental homicide crime (involuntary

manslaughter/negligent homicide)
attempt is a specific intent offense

you can be charge with attempt of a general intent crime (as well as specific intent)

1st Degree Murder via Complicity = a person is liable for aiding and abetting a crime if he

"intentionally aids the other to commit the crime"

D had knowledge of the crime + D intended his presence/action to further the crimes

commission (Minnesota application)

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V.

VI.

Conspiracy to commit 1st Degree murder = a person is guilty of conspiracy if he "conspires

[agrees] with another to commit a crime and in furtherance of the conspiracy one member does
some overt act in furtherance of such conspiracy"
Evidence must "objectively [reasonable person] indicate agreement" between D and party to

commit the crime

Proof of conspiracy relies heavily on inference

Attempted Murder
Decker: "SLIGHT ACTS" doctrine: if preparation is clear, slight acts to further plan =

attempt
those pretending to be a co-conspirator are not co-conspirators (undercover cop)

D's 1st Step-->mere preparation-->substantial step-->direct/ineffectual act (CA

STANDARD)-->dangerous prox.-->completed crime

solicitation occurs early in the timeline

attempt occurs later in the timeline

Defenses
intoxication evidence can be used as a defense b/c these are specific intent cases (1st Degree, 2nd

Degree, Voluntary Manslaughter)

Common Law: the rule is that D may make this line of argument for SI (specific intent)

crimes but not for GI (general intent crimes).

MPC: the rule is that D may argue intoxication when it negatives an element of the crime

(when it challenges MR), but NOT when the MR is RECKLESSNESS and intoxication would
tend to show D was unaware of the risk she was taking (b/c objective standard is that of a
reasonably non-intoxicated person)
Technically, D charged with ER-based murder could not argue intoxication; this seems

fundamentally unfair given the seriousness of the crime and the seriousness of the
potential penalty for murder
The common law rule is more generous than the MPC rule.

Common Law = any crime that has a specified MR requirement is a SI crime

(intoxication is permitted defense for SI crimes)

Jury may not buy intoxication defense, but D may make the argument/introduce

the evidence
Since all homicide crimes have a specified MR (that is, the statutory definition

includes a MR term) intoxication can always come in under the common law rule
But keep in mind that such an argument wouldnt fly for D who is, for example,

charged with involuntary manslaughter in a state that defined the MR as criminal

negligenceunder a negligence standard, the Ds actual state of mind would be
irrelevant (its an entirely objective MR)
Above negligence, the lower the MR, the harder it would be for D to convince the jury

that he was so drunk that he couldnt have formed the MR for the crime; whereas, at the
top of the MR ladder, the easier it would be for D to argue that he was too drunk to
form the MR required for the crime
Rules of Evidence
no criminal defendant may be convicted on accomplice testimony alone; the testimony must be

corroborated by other evidence or it should receive no weight (accomplices have incentive to shift
blame to other party members)
when accomplices do testify, trial judges must give a cautionary instruction to the jurors telling

them that accomplices have good reason to lie, and that should consider that fact when judging
credibility
proof of conspiracy relies heavily on inference

the MR for conspiracy is specific intent (thus we can't have conspiracy for general intent crimes)

cannot have conspiracy or attempt if crime has a result element (specific intent)

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we dont have a problem with complicity for accidental results

dont need direct evidence to prove knowledge of crime (is there enough for jury to make an
inference)

CHAPTER 10: DEFENSES

Defense

Type (Affirmative/Failure of
Proof)

Notes

Self Defense

Affirmative

Complete Justification

Duress

Affirmative

DOES NOT APPLY TO HOMICIDE

Necessity

Affirmative

DOES NOT APPLY TO HOMICIDE

Insanity

Affirmative

Punish when culpable (aware of right/wrong)

Intoxication

Failure of Proof

Applies to SI crimes

Mistake of Fact

Failure of Proof

No MPC distinction between MofF/MofL

Mistake of Law

Failure of Proof

No MPC distinction between MofF/MofL

Involuntary Manslaughter

Affirmative (Majority CL/MPC) Used to lower homicide degree

Involuntary Manslaughter

Failure of Proof (Minority CL)

See above

No Causation

Failure of Proof

Applies to Homicides (didnt study other

applicable crimes)

Abandonment

Affirmative

Applies to Attempt crimes

Legal/Factual Impossibility

Failure of Proof

Applies to Attempt crimes

Termination

Affirmative

Applies to Complicity crimes

Prevention

Affirmative

Applies to Conspiracy crimes

Proportionality Doctrine

Failure of Proof

Likely not applicable on exam because deals

with sentencing

Void-for-Vagueness

Failure of Proof

Use this on exam if statute is ambiguous

Justification: What D did was a social good, and court wants people to act similarly
Ex. Self defense
Excuse: D is partially excused, but deserves some penalty
Ex. Insanity
Hybrid: elements of both justification and excuse
Ex. Voluntary manslaughter
Justification: victim deserves what they got
Excuse: D should be penalized but not as muc

I.

Self Defense: affirmative defense (Defendant's job to prove defense by a preponderance of the evidence)
A.
MAJORITY CL APPROACH

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1.

D's subjective belief that deadly force was necessary (this is only subjective prong; all others
are reasonable/objective)
2.
Necessity: reasonable belief in need to use deadly force
Biggs: preemptive killing in jail cell was not necessary because D had lawful

alternatives (alert security guards, etc.)

3.
Imminence: reasonable belief
4.
Proportionality: deadly force must be proportionate to threat
5.
Victim's force must be unlawful (V must be aggressor; that is, D cannot initiate conflict)
**Use these, not the casebook
B. MINORITY CL APPROACH
1. Retreat Requirement
Traditional: a "true man" would stand his ground, D would have no duty to retreat; that
is, duty was to use deadly force
Modern: duty to retreat if safe to do so EXCEPT when it was @ his own home
Garland: consider whether, armed with a weapon, D could have safely made her way
out of the bedroom door without threat of serious bodily injury to herself and whether a
reasonable woman who had been the victim of years of domestic violence would have
perceived that the use of deadly force was necessary
2. Imperfect/incomplete Self Defense
If Honest but Unreasonable, one can get reduction in sentence (this is an excuse NOT a
complete justification)
Imperfect affirmative defense
II.

III.

Duress (coercion)
D must have committed crime b/c she reasonably believes

1.
there's a.) imminent, b.) credible threat (to herself/others) of c.) death/serious bodily injury
i.
Subjective: Did D believe a, b, and c?
ii.
Objective: Would a reasonable person believe a, b, and c?
2.
no opportunity to escape (objective)
3.
D didnt cause threat (D was not reckless or negligent to cause situation)
Williams: duress is unavailable when D recklessly places himself in a situation where it
is probable that he would have been subjected to duress. D voluntarily became
involved with a drug trade of his own volition to pay off debt, and the attempted
robbery would not have occurred but for his association
Ex. D robs a bank b/c a perpetrator has kidnapped D's children and made threat

duress very rarely successful

Necessity (lesser evil)

D reasonably believed that she had commit crime

1.
to prevent a greater-evil
Subjective: Did D believe act was necessary?

Objective: Would reasonable person believe had to make choice (objective)

2.
she had no reasonable alternative (objective)
Would have a reasonable person seen alternatives

3.
D's behavior didnt cause a greater harm (objective)
ex. When stranded in the woods during a blizzard, D broke into cabin and ate food

with necessity, there is no third party that we can find guilty

Applying Dudley & Stevens good illustration of why dont allow necessity defense for homicide

because can't make judgments about the value of ones life

Muller v. State (p. 730) necessity in civil disobedience cases rarely granted

1.
the harm that you're trying to avoid has to be illegal (but the Iraq war is legal)

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2.
3.

the crime you're choosing to commit has to have some chance of averting the other harm (not
reasonable that it would avert the war)
and there are no reasonable alternatives (congress could take action to mitigate the harm)

**BOTH duress and necessity have subjective/objective component = "reasonably (objective) belief (subjective)
**duress/necessity NOT APPLICABLE to homicide crimes
IV.

Insanity
A.
M'Naghten Test (mental test)
1.
D did not know what he was doing (nature)
2.
D did not know that what he was doing was wrong (wrongfulness)
B.
Irresistible Impulse Test (volition/conduct test)
1.
D could not control an "irresistible impulse" due to mental defect
C.
MPC/Majority CL [M'Naghten + IIT]
1.
"as a result of mental disease or defect"
2.
Substantial capacity to appreciate criminality OR
3.
Substantial capacity to conform his conduct to the law
**"substantial capacity" is more generous than M'Naghten Language
D. Federal Approach/Minority CL [M'Naghten but harsher]
1. D has to prove by "clear and convincing evidence" rather than a preponderance (higher burden
for D)
2. As a result of "severe mental disease/defect" (higher standard than MPC)
3. D not able to appreciate nature of act
4. D not able to appreciate wrongfulness of act
*very hard to successfully used insanity defense in litigation

V.
o

o
VI.

Intoxication
intoxication is never a complete defense to crime, but may be helpful to negate mens rea when crime
charged requires proof of specific intent
Schminkey: drunk auto theft conviction vacated (evidence of intoxication negates intent
element of larceny; no intent to permanently deprive)
not relevant to most general intent crimes

Mistakes
Mistakes of Fact: pure factual error
i. GI Mistake of Fact
valid defense if mistake was:
1. Honest (subjective criteria); AND
2. Reasonable (objective criteria; would a reasonable person make this mistake?)
Oglivie - bigamy (GI crime) may have been honest but it is unreasonable (guilty);
falsifying official statement (SI crime) was honest mistake (not guilty)
ii. SI Mistake of Fact
valid defense if mistake was:
1. Honest (subjective criteria)
Binegar - prosecution relied on unreasonableness to take contact lenses w/o paying but
AC determined crime was specific intent thus his mistake was honest (not guilty)
Mistakes of Law: pure legal error (ignorance of law is a rare excuse)
1. Typically, only valid when mistake is founded upon official statements of the law

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2. Mistake about the meaning of a criminal prohibition is not a defense

People v. Marrero: correction officer thought he was a peace officer--guilty b/c only
error was D's misunderstanding, not that statute was ambiguous
3. Belief that one's conduct was morally right is not a defense
Darab: mistaken belief that D had right to protest at mosque invalid
4. An honest claim of legal right to allegedly stolen property is a defense if crime requires proof of
specific intent
Varszegi: landlord not guilty for taking tenants computers as collateral (larceny)
** When "sophisticated actors" argue they misunderstood a governing law in their industry, they
typically lose (they have a higher burden to prove mistake)
Ex. Investors involved with white-collar crime
**Mistake of fact is more generous than mistake of law
D wants mistake of fact while prosecution wants mistake of law
Courts have flexibility in deciding if they want to hear case under mistake of fact (broad) or
mistake of law (narrow)
VII.
MPC Defenses
MPC MISTAKES
Section 2.04(1)(a): ignorance/mistake as to a matter of fact or law is a defense if the ignorance
or mistake negatives the P ,K, R, or N
Section 2.02(9): mistake of criminal law is not a defense [limits Section 2.04(1)(a)]
MPC INTOXICATION
i. Section 2.08(1): intoxication is a defense if it negatives P, K
ii. Sevtion 2.08(2): if it is recklessness or lower, no intoxication defense (if a sober person under
the same circumstances would have been consciously aware of risk a drunk person is held to
have the same awareness)
iii. Section 2.08(3): intoxication cannot be used to claim insanity
iv. Section 2.08(4): insanity is an excuse when D did not know what they were consuming or were
giving substances by others (very narrow exception)
in general, alcoholism is not a valid defense

MODEL ANWSER:
INTRO: This answer deals with x issue, y issue, z issue.
ISSUE: rape
RULE: black letter law
APPLICATION: applying facts to the law
-prosecution
-defense
DON'Ts
don't choose a side
dont have conclusion
Don't use insufficiency of evidence (this for the appellate level)

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