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Criminal Law 2008 Fall – CHAVEZ Page 1 of 61

Elements Chart and Outline

INCHOATE CRIMES
- Specific Intent crimes
category solicitation conspiracy Attempt
common law

A 1. Encouraging, aiding, 1. Agreement b/w 2 or more people 1. Overt act in furtherance of


R abetting, or ordering another [4. Some jurisdictions require an overt that intent (beyond mere
person to commit a crime act – but not necessary for substantial preparation).
Elements step.]
of Crime M 2. W/ the specific intent that 2. An intent to enter into an agreement 2. Specific intent to commit
R the other person commit the 3. An intent to achieve the objective of the crime
targeted offense the agreement.

1. Impossibility no defense Wharton Rule Impossibility –


2. Withdrawal or renunciation no - If you have just the amount of people 1. Factual – not a defense
Defenses defense needed for crime, okay, but more 2. Legal – can be defense
3. Exemption from intended people – screwed
crime is defense
Withdrawal None available Can only stop tab – how much crime No renunciation or bail-out for
/Abandon has been committed yet attempt.
Merges – into conspiracy (once Does not merge: conspiracy + Merges into the crime once
Merger there is an agreement) completed.
N/A Pinkerton Doctrine N/A
Co-conspirator responsible for any crime
Vicarious
committed by other members if done in
Liability furtherance of the crime and is
reasonably foreseeable.
Elements 1. Asking another person to 1. Agreement (unilateral conspiracy) 1. Purposely engages in
mpc

Of Crime commit an offense 2. Engage in conduct that is crime, or conduct that would constitute
2. Or request other person to do attempt or solicitation to commit such the crime
some act that would establish the crime 2. Acts w/ a purpose to cause
other person’s complicity in the 3. Agrees to aid person(s) in planning or the criminal result
offense. commission of crime, or attempt or 3. Or purposely does an act
3. W/ purpose of promoting or solicitation to commit such crime. constituting a substantial step
facilitating commission of 4. Overt act is needed. towards the commission of the
solicited offense offense.
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Elements Chart and Outline

INCHOATE CRIMES
Test:
MPC – “Substantial Step Tests”

Common Law – Proximity


Test – how close you came to
completing the offense.
Test - Also:
Physical proximity
Dangerous proximity
Indispensable element test
Probably desistance
Abnormal Step
Unequivocality test
1. Uncommunicated solicitation 1. Complete and voluntary renunciation; Abandonment available if:
(person being solicitated never 2. D thwarts the success of the 1. Fully voluntary
Defense got it) conspiracy 2. Complete abandonment or
prevents from being
committed
1. Renunciation of criminal See Defenses See Defenses
purpose
Withdrawal
- Affirmative defense Must have also contacted all members
/Abandon - Must persuade person not to of conspiracy of renunciation and/or
do the crime commissioned. called cops
Merges – into conspiracy (once If crime is completed – conspiracy N/A – once crime is
there is an agreement) merges completed, crime is no longer
Conspirator may not be convicted of attempted.
Merger both conspiracy and target offenses,
unless the conspiracy has a continuing
code of conduct (no withdrawal and
crime has not been committed)
N/A Doesn’t buy into Pinkerton N/A
Vicarious Will hold you liable only for crimes
Liability you’ve participated in.
No vicarious liability
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Elements Chart and Outline

INCHOATE CRIMES
Notes Mere solicitation – not an attempt - Terminates when:
Notes

to commit the crime solicited 1. Withdrawal of crime


Both unilateral – doesn’t matter if 2. Completion of crime
person accepts or not - Legislative statute – can’t be a
conspirator if there is a law intended to
protect that person (17-year-old girl
can’t be convicted of statutory rape)
Criminal Law 2008 Fall – CHAVEZ Page 4 of 61
Elements Chart and Outline

THEFT

Crime Elements Method Title


Activity Intent
Larceny -Trespass -W/ intent to permanently -W/out consent -None
-Taking and carrying away deprive another of property
-Personal property of another - taking during the time they
needed it under CL is also
permanently deprived.
-specific intent crime- being
drunk can be a defense esp if
involuntary
Robbery -Felonious taking and carrying -W/ intent to permanently -W/out consent -None
away deprive another of property
-Personal property of another
-By force or threat of force
-From the person or in the
immediate presence of the victim
Larceny by -Taking and carrying away -With the intent to permanently -W/ consent -None
Trick -Possession of another deprive another of property obtained by fraud
-By trick or device
Embezzlement -Fraudulent Conversion -With the intent to defraud -Use of property in -None
-Of personal property of another - if servant master relationship a way inconsistent
-By one already in lawful you only get custody not w/ terms of trust
possession possession would be larceny
- do not have to have intent to
deprive forever
False -Misrepresentation of a -With the intent to defraud -W/intent to -Title passes
Pretenses present/past fact defraud
-Knowing it is false
-Which induces the Owner to part
with title
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Elements Chart and Outline

HOMICIDE
Mens Rea (MR)  Intent, state of mind Homicide  killing of a human being by another (AR)
Actus Reus (AR)  The act: homicide – voluntary affirmative Justifiable Homicide  Killing of someone that is sanctioned by
act of killing – or – failure to act (where there is a duty) that the law (Examples: war, executions, self-defense)
causes death. Excusable Homicide  Homicide that is not approved, but it is
Malam in se  A crime that is inherently wrong forgiven. (Example: infancy (?), involuntary intoxication (s/o
Malam prohibitum  A crime that is wrong b/c the law said slipped a drug into your drink, insanity)
so.
Crime Common Law California - § 189 MPC

Murder

 Unlawful killing of another human  Homicide committed w/ malice.  No degrees in MPC!!!


being w/ Malice aforethought  Cool calculation, careful  Purposely, knowingly or
 Homicide committed w/ malice preparation recklessly
 No degrees in MPC!!!  Elements:  Reckless manifestation of
D - Willful extreme indifference to the
- Premeditated value of human life.
- Deliberate
- Calm, cold-blooded
- Intentional
MR  Malice aforethought  Intent to inflict death (See above description)
a) Intention to kill another human being
b) Intention to inflict grievous bodily  Premeditation: “Thought
injury before acting to the idea of taking
c) Extremely reckless disregard for a human life and reaching the
human life  “depraved heart” decision to kill”
d) Intention to commit a felony during - No time too short ** (Under this
the commission or attempted explanation: every murder would
commission of when a death be 1˚)
accidentally occurs. - U.S. v. Watson: “it’s not worth
 Deadly Weapon Rule: intentional use it”
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Elements Chart and Outline

HOMICIDE
of a deadly weapon authorizes a - No need for D to “maturely and
permissive inference of intent to kill. A meaningfully” reflect upon gravity
deadly weapon is any instrument – or in of act.
some limited circumstances, any part of - Anderson Factors:
the body – used in a manner calculated or 1. Planning
likely to produce death or serious bodily 2. Motive (prior relationship)
injury. 3. Manner (preconceived
Ex.: Firing bullet into crowed room; design)
champion boxer fighting beats up a tavern a. Weapon of Opportunity
owner, speedboat into crowd of swimmers. (usually not 1˚)
b. Suggests that there had
been no prior thought,
killer used what was
nearby
(If YES to a/b  not 1˚)

 Deliberation: “Consideration
and reflection upon the
preconceived design to kill; giving
it second thought.”
AR  Inflicting death upon another person  Inflicting death upon another Homicide.
person
 Also: homicide using one of the
following methods:
Poison
Explosive Device
Torture
Lying in Wait
Arson
Destructive Device
D (No degrees under common law!!) 2˚  Spontaneous, hot-blooded, (No degrees in the MPC!)
impulsive
 No Premeditation/deliberation
- “Abandoned/malignant heart
 All other murders not under
1˚; other un-enumerated felonies
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Elements Chart and Outline

HOMICIDE
that are inherently dangerous
MR  No premeditation/deliberation
 Four ways to prove malice
1. Intent to kill
2. Intent to commit s/b/h
3. Extreme recklessness
4. Felony murder
AR Anderson factors:
3) Was there a weapon of
opportunity present – shows that
person did not have time to plan
out murder w/ proper weapon
(ex. Golf club)
D - Homicide during the commission of an - Homicide during the commission - Homicide during the
enumerated crime: of an enumerated crime: commission of an enumerated
Mayhem Burglary crime:
Robbery Arson Burglary
Rape Rape/Sexual Assault Rape
Arson 1˚ Carjacking (§215) Robbery
Felony Murder

Burglary Murder Arson


Robbery Kidnapping
Kidnapping
Train-wrecking
Drive-By

2˚ - All other inherently dangerous


felonies not enumerated in 1˚
MR  MR for the homicide is replaced by the  (See common law)  (See common law)
specific intent to carry out the felony.
AR  Attempt or the commission of the  (See common law)  (See common law)
enumerated felony.
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Elements Chart and Outline

HOMICIDE
D RECKLESS MANSLAUGHTER
Voluntary Manslaughter

 An intentional killing distinguishable  Intent to kill w/o malice


from murder by the existence of adequate (comes on because of  When a homicide would
provocation; i.e. a killing in the heat of circumstances) otherwise be murder, but for
passion, w/o malice. the influence of EED or mental
 Sudden quarrel or heat of disturbance (MPC doesn’t tell
 While intentional killing – mitigated passion us what the triggering event
because it is justified to an extent. is), or,
 Is committed recklessly.
 Must view situation from
the D’s point of view.
MR - Intentional Killing w/o malice (see above) (See: P [Passion]) Recklessness (MPC)
 Actor must be aware that
he is taking a substantial and
unjustifiable risk to human
life.

AR  Homicide  Homicide  Homicide committed


recklessly
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Elements Chart and Outline

HOMICIDE
P Heat of Passion Doctrine Heat of Passion Doctrine Extreme Emotional
1) Must have been such that it would arose (See under common law) Disturbance (EED): MPC
sudden + intense passion in the mind of 210.3
an ordinary person such as to cause him to  Adequate provocation  as  Homicide that would
lose control seen by the reasonable person otherwise be murder is
2) D must have been provoked (Based on the MPC) – but instead committed under influence of
3) No sufficient cooling time of subjective, is objective – would extreme mental or emotional
4) D must have cooled off a reasonable person under the disturbance for which there is
5) Provocation must have acts commit the homicide under reasonable excuse.
caused the killing. the heat of passion?  Or, committed recklessly.

Provocation: mere words are not enough  Verbal provocation may be  Look at POV of the D’s
sufficient to cause extreme situation under the
Adequate provocation: distress circumstances as HE believes
- Finding one’s spouse in bed them to be.
- Mutual combat
- Assault and battery
- Injury to abuse to a relative
- Illegal arrest
- If words are accompanied w/ intent to
injure.

Imperfect Self-Defense:
- D has an honest but unreasonable belief
in the necessity to defend oneself against
imminent death.
 Becomes involuntary manslaughter if:
1. Honestly believed needed deadly force
2. Honestly believed reasonable force used
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Elements Chart and Outline

HOMICIDE
D  Unintentional killing w/o malice that  Unlawful act, not amounting to  MPC renames this as
results from failure to appreciate felony, or lawful act which might NEGLIGENT HOMICIDE
substantial and unjustifiable risk of harm. produce death in an unlawful  When it is committed
I. Criminal Negligence manner, w/out due caution or negligently.
- Criminally negligent or reckless crime circumstances.
(Objective awareness of the risk –
deviation from what reasonable person Vehicular Manslaughter
would do) Driving car in lawful act which
Involuntary Manslaughter

might produce death in an


- Ex. Nightclub: lock emergency door: is unlawful manner and w/ gross
cognizant of possible danger, ignores it. negligence.
People die!   W/o malice aforethought, in
- Ex. Guy leaves bay in car. violation of drunk driving laws,
- Ex. Skiing fast ploughs into person. and killing was proximate cause
II. Unlawful Act w/ gross negligence.
- Misdemeanor manslaughter – a killing
in the course of a misdemeanor Gross Negligence
- Malam prohibitum/in se: death must  Criminal negligence
be a foreseeable, natural consequence of
the actions.

 If someone killed during a felony that is


no enumerated, it is involuntary
manslaughter under common law.
MR  Subjective awareness of the risk  W/o malice  Negligently

AR  Criminally negligent act that deviates  Partaking in act that


from the reasonable person standard. constitutes gross negligence and
results in death.
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Elements Chart and Outline

CAUSATION
 Actus reus of a crime is composed of 1) a voluntary at 2) that causes 3) social harm. Causation is an implicit
element of all crimes. Causation may be proximate or actual.
Theory Definition Example
But-For Causation D’s conduct must be the cause-in-fact of the Regina v. Martin Dyos (scuffle at party, dude gets rock
result; i.e. the result would not have occurred to the head)
“but-for” D’s conduct
R. v. Benge (prisoner as foreman working on R.R.)
 But for D’s reading the timechart wrong, RR tracks
would have been laid down despite everyone else’s
contributory negligence.
 If an actor’s negligence is the primary cause of a
wrong, then it would not be material that others, also
by their negligence, contributed to cause it.
Violent Acts Where the death was not due to a corporal blow Hubbard v. Commonwealth (jailer’s heart attack)
or injury to some hostile demonstration or overt
act directed toward the person of the decedent,
there is no criminal liability unless death or
serious bodily harm was the probable and
natural consequence of an indirect, unlawful act
of the accused.

Common Law: sufficient for a blow or strike


against the V by D  b/c back then, no
scientific background to help figure it out.
Foreseeability When the natural and continuous result could Commonweath v. Rhoades – arson causing death,
have been foreseen by the actor, and which w/o foreseeable result.
the original act, the result and the death would
have never occurred.

 “Natural and probable” result – proximately


caused.
Intervening Acts  An intervening act will shield the D from Commonwealth v. Root (Drag Racing)
liability if the act is a mere coincidence or is  Conduct of the D was not the proximate cause – the
outside the foreseeable sphere off risk created V had swerved and caused his own death.
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Elements Chart and Outline

CAUSATION
by the D’s act.
Duties  The law recognizes that some other some
circumstances, the omission of a duty owed by
one individual to another, where such omission
results in the death of the one to whom the duty
is owning, will make the other chargeable w/
manslaughter.
 Must be a duty imposed by law
(relationships) or by contract.
 Duties of mere moral obligation are not
binding by law.
 If a person who has a relationship w/
another, and knows the person to be in peril,
willfully and negligently fails to make such
reasonable and proper efforts to rescue him as
he might have done, w/o jeopardizing his own
life, or the lives of others, he is guilty of
manslaughter by the reason of his omission of
duty, the other person dies.
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Elements Chart and Outline

DEFENSES
Defense Common Law California MPC
D Mental disease/defect recognized by the DSM
Insanity

McNaghten Test ALI (MPC) Test


(The cognitive/knowing test) 1. Lacks capacity to appreciate
Test  Person is legally responsible if they know: the criminality of conduct
1. The nature and the quality of the act; understand the consequence 2. Conform his conduct to
2. The act was (morally) wrong requirement of the law.
(See below) Apparent urgency, inherently Can use of force when reason to
D
dangerous think that force used against you
(perfect) is unlawful.
Self-defense can be used: Deadly force: 1) Reasonable belief by the self-
1. Imminent threat 1. Threat must be realistic – defender
2. Reasonable Response imminent threat 2) Immediately necessary to
3. Proportionate 2. Response must be protect himself
4. No alternative force proportionate 3) No retreat if at home/work
3. Retreat 4) Estimable response – actor
Self-Defense

- Castle Doctrine: makes the estimate of force to


- Must retreat if not home be used.
Elements - Don’t have to retreat if
attacked in home
4. Aggressor using self-defense
- If they withdraw from fight,
regains right to use self-
defense
- Sudden escalation from
minor to one using deadly
force.
Im- Imperfect self-defense:
- Honest belief that self-defense was necessary, but it was unreasonable
perfect - More force than reasonably necessary
Defense
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Elements Chart and Outline

Used by law enforcement –


ForceDefensive
deadly force can be used (by law
enforcers)
- To prevent a threat of death
s/b/h to innocent people
- When person is escaping from
prison/jail/other institution
D - Suppress mutiny after warning
deadly force w/b used
- Arrest for a felony where
there’s s/b/h or death risk.
- Response must be proportional.
- Exception: when others
are at risk.
D - A justification defense Necessity/Choice of Evils
Choice of Evils

- Choice of evils §3.02


- Seen as more noble than - The harm or evil sought to be
duress: person is making a avoided by such conduct is
decision and evaluated the lessor greater than sought to be
of two evils – argue that you prevented by the law defining
avoid a great consequence and the offense charge.
society agrees with you. - When the actor was reckless or
negligent in the act bringing
about the of this defense, this
defense is unavailable.
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Elements Chart and Outline

Need: Need:
(Justification)
1. Choice of evils 1) Can use for homicide if fewer
2. No alternatives people would die.
3. Immediate threat 2) Harm avoided is greater than
4. Defendant chooses the lesser the harm done.
evil 3) No specific prohibition by
5. Can’t have created the laws.
necessity. 4) Causal connection to the
Elements [6. Civil disobedience] prevention of the greater harm
[5) Can’t have acted recklessly
or negligently – D must not have
contributed to the necessity]

Differences b/w CL:


- Can use for homicide
- No imminence requirement

Where the D performs an act Where a person of reasonable


Duress (Excuse)

under the imminent threat of firmness could not have resisted.


serious bodily harm or death by  Duress can be a defense for
another. homicide.
- Human
D - Genuine – imminent
- Self-Preservation (must do act
for fear of s/b/h or life)
- Escape is not possible (retreat)
- No guilt – cannot be reckless or
negligent
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Elements Chart and Outline

COMPLICITY
Aiding: Physical assistance, Information Abetting: As simple as verbal encouragement,
causing a person to act
Common Law Modern Law/California MPC
Definition Designed around an analysis of Focus is on who is participating A person is an accomplice of another
where you are at the time of the to assist the crime. person in the commission of an offense
crime (where is everyone at the if, w/ the purpose of promoting or
time of the crime)? Knowledge + Act + Criminal facilitating the commission of the
Intent offense, (see: AR)

Actus Reus - Aid or encouragement to the Act - He solicits the other person to commit
person(s) committing the crime. it;
- Inaction in an activity can be - Or aids or agrees or attempts to aid
part of the crime the other person in planning or
(Ostrich rule  if a person committing it,
willfully tries to avoid gaining - Or (having a legal duty to prevent the
knowledge of a crime – then crime) fails to make the proper effort to
almost the same as knowing prevent it.
something is going to happen.)
Mens Rea Share the specific intent or Criminal Intent + Knowledge Intent to commit the crime
purpose of the principal for the
crime to occur.
Classifications Principal 1˚ Everyone is classified as a Depends: see who is doing what.
Principal 2˚ principal
Accessory-before-the-fact Person is not an accomplice if they are:
Accessory-after-the-fact a) Victim of offense
b) Offense is so defined that his
conduct is incident to the commission
c) Terminates his complicity prior to the
offense occurring
Vicarious  If the accomplice aids in the
Liability commission of an offense, he is liable –
see how far the person has aided in
that particular aspect of the crime.
Miscellaneous  Dupes: person who gets  Perpetrator by the means of using an
talked into committing the crime innocent person – MPC looks to see
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Elements Chart and Outline

COMPLICITY
– true dupe doesn’t know he’s what one has done and holds them
committing a crime – he does accountable.
the act, but there is no mens
rea.
- Evaluate: do they know?!

 Common law: using a person


that is too young to be
accountable, person setting them
up can still be liable.
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Elements Chart and Outline

I. Sources of Criminal Law


A. Statutes
1. modern approach
a. criminal prohibition must have some form of legislative mandate
2. evolution of common law
a. common law may provide grounds for civil action, but crimes must fit under specific legislative statutes
3. PRINCIPLE OF LEGALITY
a. if prosecution is viable, give defendant a chance to find out what they did wrong (i.e. trial)
b. informs people of punishable/forbidden behaviors
4. gives constituents venue to fill in gaps and responds to things they view as lacking in some certain of the law
5. MODEL PENAL CODE (formulated by American Law Institute in 1962)
a. Drawn in response to the lack of uniformity of state level penal codes
b. Substantially adopted by many states
c. Preeminent source of guidance in revision and reform of substantive criminal law
6. often vague or ambiguous
a. gives court broad discretion in interpreting statutes
i. courts may not overrule statutes except on constitutional grounds
B. Precedent
1. includes judicial decisions at all levels, state and/or federal
a. courts interpret what seems to be present in statutes/laws
2. stare decisis
a. courts tries decide cases that is consistent to established law
i. try to uphold a consistent interpretation of the law
ii. seek to provide a rule or standard of decision binding in future cases
3. judges only concerned with relevant similarity (rules, justifications of rules, key facts)
a. try to adhere to the rationale of previous cases
4. may be overruled based on changing times/societal norms
C. Constitutions
1. both federal and state usually have similar civil right provisions that may be thought to set boundary conditions for just
punishment (due process clauses). CB 14
a. may invoke arguments that conduct cannot be punished unless defendant had noticed it was criminal
i. must be based on conduct, not characteristics, desires, thoughts, etc.
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Elements Chart and Outline

ii. punishment must be pursuant to precisely drafted statutes


2. requires prosecution take on the burden of proof beyond a reasonable doubt.

II. The Criminal Act


A. Actus reas: crimes require an act
1. Proctor: Δ cannot be punished for an “unexecuted thought”
B. criminal acts must be done voluntarily (MPC § 2.01)
1. unlike torts where one can be held liable for accidents/nonvoluntary acts that result in harm to someone else, criminal acts
must be proven to be done voluntarily because the punishment may be the loss of liberty because of the actor’s choice to
partake in the behavior.
2. by requiring a specific act, the law allows a discussion of unlawful ideas, thoughts, etc.
C. Requirement of Voluntary Act
1. criminal act must be done voluntarily to hold one criminally liable
2. punishing involuntary acts contradicts the purposes of criminal liability
a. deterrence: involuntary acts cannot be deterred with the threat of punishment under the law
b. retribution: it would be wrong to punish one for actions that he had no control over.
3. mens rea vs. actus rea
a. mens rea: able to distinguish the criminality of action(s); actus rea: capable of making the distinction, but unable to
control or unconscious of his body (e.g. automatism, seizures, convulsion; non-volitional)
i. People v. Grant: insanity (unable to distinguish wrongfulness of acts) is not same as automatism (able to
distinguish between right and wrong, but unable to control body movements) CB 131
(a) Could be held responsible for drinking while knowing of his medical condition similar to Decina
(i) Made a conscious decision to drink; was a voluntary act
(b) his condition does not preclude his ability to commit the act
ii. People v. Decina: choosing to drive while aware of that he was subject to epileptic attacks and seizures was
a voluntary act. He knowingly disregarded the risk.
(a) Dissenting opinion: should only look at specific point, not earlier in the timeline.
4. MPC § 2.01(2) – A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act
or the omission to perform an act of which he is physically capable
D. Possession (what is the “act” in this crime?)
1. Defined: MPC § 2.01(4), CB 1170
a. MPC allows one in possession to relinquish the thing if done within a reasonable time
2. most statutes require some degree of knowledge, but not knowledge of the law (ignorance of the law is no excuse)
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Elements Chart and Outline

a. pertaining to possession, “possessor knowingly procured/received the thing…or was aware of his control
thereof…”
b. “willful blindness” – overlooking some things that would reasonably lead to the questioning of the legality of an
act
i. can substitute for knowledge – Valot (1971)
3. requires dominion and control, not ownership
4. falls under a branch of “intent” (general intent)
a. accepted way to prosecute one’s control of an illegal object/substance
E. Omission (Failure to Act) – failure to act or omission of duty
1. may prosecute in absence of an act
2. policy and culture play a big role in this area
a. usually doesn’t play a big role in criminal law as it does in torts
3. Traditional status of relationship can raise an obligation to duty (can qualify for prosecution for failure to act); MPC §
2.01(3)
a. Status/relationship (e.g. parent/child, spouse, etc.)
i. Jones v. U.S.: baby’s care was not Jones’ responsibility; she was not natural mother nor did she have
contract to render care – had no duty
(a) Ct reversed her trial court conviction
(i) duty must be a legal duty, not just moral obligation. CB 122
b. by contract (agreeing to take on some responsibility)
c. statute – duty imposed by legislature
d. peril rescue/ “seclusion”: running off others’s help; failure to complete the task can question if actor’s omission is
actionable because the partial action could have convinced other potential caregivers that help was already being
administered.

III. Mens Rea (The Guilty Mind) should have known.


A. Crimes usually made up of two components
1. actus reas: actual act or commission of
2. most crimes also require some sort of mental state while executing the act; mens rea
B. trying to identify the characteristics/qualities that constitutes mental states worthy of punishment when act is carried out.
1. linking punishment to moral blame by conditioning liability on bad thoughts
C. MPC has made attempt at implementing consistent vocabulary
1. many jurisdictions have not adopted MPC’s approach to mens rea
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Elements Chart and Outline

2. does not classify elements; instead actively attempts to determine material element of each offense into three categories
(i.e. does not classify into “general” or “specific” intent
a. conduct/act
b. Attendant circumstances – actions that can be taken within context, then might not have a crime
c. Results – if certain results are not achieved, then may not be a crime
D. “General intent” vs. “Specific intent”
1. distinction ambiguous; definition of the terms may change depending on situation
2. definition of a crime must serve as a constant
3. GENERAL INTENT
a. In general, only concerned with the act, not result
i. Having knowledge of awareness of the nature of the voluntary act
(a) Rape is a general intent crime
b. easier to convict for general intent crimes
4. SPECIFIC INTENT
a. Aiming to achieve some sort of purpose/result; working toward achieving some specific outcome
intoxication is a b. Addresses a more sophisticated intent to achieve a specific result
defense to specific i. Attempted crimes require the highest level of mens rea to be proven
intent crimes but not
to general intent (a) “attempted rape” is a specific intent crime
crimes 5. Four different interpretations of distinction between “specific” and “general” intent. CB 183-184
a. “specific intent”: refers to mental element of any crime; “general intent” refers to broader question of defendant’s
blameworthiness/guilt
b. “specific intent”: unexecuted intent to do some further act/ accomplish some further result; “general intent”: intent
to do the proscribed act (actual crime)
i. under this version, specific intent crimes often contain a “lesser included offense.”
c. “specific intent”: must prove the defendant intended a particular result, or intended that his action have a
particular legal consequence; “general result”: presumes that actor intends the “natural” and “probably” results and
the “legal consequences” of his conduct
d. “specific intent”: purpose/desire; “general intent”: knowledge/recklessness/negligence
E. MPC established a four word vocabulary to describe every mental state. CB 212; MPC § 2.02
1. generally falling under specific intent:
a. purposely: the actor’s purpose of taking action
i. conscious object to engage in conduct of that nature or to cause such result
ii. actor is aware of the existence of such circumstances or believes/hopes that they exist
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b. knowingly: an awareness of circumstances; practically certain that his conduct will produce a certain result.
“callousness” vs. “disregard for the results”
i. he is aware that the conduct is of that nature or that such circumstances exist
ii. if conduct involves a result, awareness that it is practically certain that the conduct will cause such a result.
2. falling under general intent:
a. recklessly: aware of the risk, but consciously reduces the risk; has rationalized taking the risk, disregarding
something analytically known
i. consciously disregards a substantial and unjustifiable risk
ii. the disregard of risk involves gross deviation from std of conduct of a reasonable person
b. negligently: should be aware of substantial unjustifiable risk; clueless but dangerous nonetheless
i. failure to perceive the risk must involve a gross deviation from reasonable std of care.
F. Strict Liability
1. liability imposed for faultless conduct
a. narrow distinction between negligence and strict liability focuses on whether the defendant’s awareness is a failure
to meet the objective standard of the reasonable person (CB 218)
2. by having consequences that are unpleasant, then people will try very hard to take necessary precautions (higher level of
responsibility)
a. largely regulatory in modern times
3. if society creates regulations, without mens rea then offense are not crimes but violations
4. does not let the mental state of the defendant to be applied – just show that the act was done
G. Mistake of Fact
1. general intent crime
a. has awareness of the nature of the voluntary act
i. People v. Bray: defendant knew the law, but didn’t think that it applied to him because of the ambiguity
surrounding his status as a felon
(a) A reasonable mistake of fact can be accredited (his status as a convicted felon)
(i) There was no information to contradict defendant’s conclusion that he was not a convicted
felon (was granted rights and privileges not afforded to felons; filled out official forms and
indicated he was not sure of his status for years.)
ii. Long v. State: defendant based his decision to remarry before his first was annulled based on erroneous
information given to him by his attorney.
(a) Actually checked with attorney to confirm that his first marriage was legally null.
(i) Complaint was that he was deprived of his right to present evidence that he had consulted
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his attorney.
b. Relevant defenses: MPC § 2.04 “Ignorance or Mistake”
H. Mistake of Law
1. specific intent crime
a. shows that actor had intent to commit the act, but was simply not aware of the specific crime
i. ignorance of the law is not accepted when the have the mental state to commit the crime but not of the
knowledge the degree of the offense
(a) ignorance can substitute the for the lack of mental state to commit the crime
b. People v. Baker: defendant Baker knew that his acts were wrong but did not know the degree of the offense (from
civil to criminal)
i. knew all the important elements of his actions; at least blameworthy.
c. State v. Cameron: though she may have been intoxicated when she committed aggravated assault, a “person acts
purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct
of that nature or to cause such a result” (N.J.S.A. 2C:2-2(b)(1)).
i. Cameron’s purposeful conduct was getting drunk  specific intent

IV. BURGLARY – specific intent crime, don’t need actus reus to comit
A. Defined: MPC § 221.1(1)
B. Defined: CA Penal Code § 459
C. Common Law: The trespassory breaking and entering of a dwelling house of another at night with the intent to commit a felony
therein.
1. aims to prevent a precondition of the crime (entering the dwelling in order to commit a crime inside)
2. a crime of habitation, not ownership (Peck)
3. a specific intent crime
a. breaking and entering with the specific intent to commit a felony
i. People v. Tackett: by throwing the coat over victim’s head while he attacked her sufficient to show that he
manifested the intent before entering the residence
ii. State v. Peck: though defendant might have had ownership of the house, restraining order issued by court
revoked his right to be on property. He violated the court order, entered property and committed assault on
nephew.
4. requires less action than many attempted crimes; focuses on the intent of gaining unlawful entry
a. focuses on mens rea, actus rea not necessary
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i. extrapolate from defendants’ conduct (Creasy and Tackett)


(a) based on their behavior and the logic of the circumstances, then legally sufficient to fulfill
necessary elements.
(b) even if actor leaves without taking anything, is still liable for burglary because at the time of
breaking and entering he had the necessary mens rea.
b. most “attempted crimes” require the actor to make a substantial step towards accomplishing the crime, burglary
does not
D. Elements of Burglary
1. “breaking”
a. any movement of barriers (e.g. unlocked doors, windows, etc.) is sufficient (Creasy v. State).
i. climbing through an opening does not constitute “breaking”
ii. opening must be created by Δ
b. “constructive breaking”: achieving entry by use of deception, or fraud, or violence
i. force is no longer required
2. “entering”
a. People v. Tragney: mere breaking does not constitute entering
i. tool used to gain entry must also be used to commit larceny to constitute entering
3. “with the intent to commit a felony therein”
a. see discussion under “specific intent” subsection (a)
E. Degrees of Burglary
1. CA Penal Code § 460
a. every burglary of an inhabited dwelling (house, vessel, etc.) which is inhabited and designed for habitation is
burglary of the first degree
i. all other kinds are burglary of the second degree
ii. doesn’t require breaking, at night, house isn’t dwelling house.
ii.
2. MPC § 221.1(2)
a. burglary is a felony in the third degree, unless:
i. it is committed in the dwelling of another at night, or
ii. In the course of committing the offense, the actor purposely, knowingly, inflicts/attempts to inflict bodily
injury on any one, or
iii. is armed with explosives or a deadly weapon
(a) “in the course of committing the offense” occurs in an attempt to commit the offense or in flight
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after the attempt/ commission


F. burglary by instrumentality
1. People v. Tragney
a. must prove that instrument was actually used to perform burglary
i. if not, then tool can only be used as proof for “breaking”

V. INTENTIONAL HOMICIDE
A. Definition: the unnatural death of a human being
B. originally all homicides were considered as murder, carrying capital punishment
1. manslaughter and lesser degrees of homicide are a modern development
a. all murders have “malice”
i. Malice defined: “an intention to cause, or a willingness to undertake, a serious risk of causing the death of
another…based on an immoral or unworthy aim” (CB 347)
ii. Malice Theory:
(a) an intent to kill/ cause death (formed the intent and took steps to complete it)
(b) an attempt to do serious bodily injury/harm where the victim dies.
(c) extreme recklessness w/respect to the risk of death – a callous indifference to the risk of possible
deadly consequences
(i) not necessarily intent to kill, but conduct was so callous/extremely reckless that occurrence
of death is no surprise
(1) attempt to show a mindset with a disregard for human life  engaging in conduct
that someone can spot a possibility of death without care
2. at common law, no distinction of degrees (MPC rejects degrees too)
3. murder and manslaughter have intent element
a. mens rea (intent)is what distinguishes between manslaughter and murder; actus reas look very similar
4. “transferred intent” – the attempt to kill A misses target and ends up killing B; the intention to kill A will transfer to B
when defendant never really intended to kill B
a. a legal fiction

C. Murder
* general def: an unjustified killing manifesting (1) purpose to cause death; or (2) intent to inflict serious bodily harm; or (3) extreme
recklessness with respect to a serious risk of harm to another’s life, where the risky action manifests so unworthy or immoral a
purpose as to suggest callous indifference to human life; or (4) (f-m rule) a willingness to undertake even a very small risk of death
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where the risky conduct is so unworthy as to establish guilt of a serious felony.


1. Model Penal Code
a. Murder (MPC § 210.2) – does not have varying degrees of murder; does not contain “malice”; places it under
“specific intent” mens rea
i. criminal homicide constitutes murder when “it is committed purposely or knowingly; or
ii. committed recklessly under circumstances extreme indifference to the value of human life…presumed if the
actor is engaged or an accomplice in the commission/attempted commission of/flight from after
committing/attempting to commit:
(a) robbery
(b) rape/deviate sexual intercourse by force/threat of force
(c) arson
(d) burglary
(e) kidnapping
(f) felonious escape
iii. murder is a felony of the first degree punishable by imprisonment or capital punishment
b. ** REMEMBER **: express the type of recklessness it is under the MPC

2. CA Penal Code: divides murder into differing degrees


a. murder defined: Cal. Penal Code § 187 – “murder is the unlawful killing of a human being…with malice
aforethought”
i. “unlawful killing”
(a) justifiable (lawful) homicide is not deemed unlawful
(i)some self-defense or police within scope of power
ii. “malice aforethought”
(a) “aforethought” has no technical meaning; interchangeable with concept of malice
(b) establishing “malice” element is sufficient to charge murder
(c) varying degrees of malice (CA Pen. Code § 188)
(i) EXPRESS MALICE
(1) when there is a manifested deliberate attempt to kill another human being – formed
an intent to kill and took steps to complete the intent or,
§ 188: Express malice (2) attempt to do serious bodily injury/harm where the victim dies
when there is manifested a
deliberate intention (a) defenses: extreme provocation (parallel with MPC’s concept of “extreme
unlawfully to take away the mental or emotional disturbance”)
life of a fellow creature
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(ii) IMPLIED MALICE (= extreme recklessness)


Implied Malice: when no provocation
(1) no considerable provocation, or when circumstances “attending the killing show an
appears, or when the circumstances abandoned and malignant heart” (i.e. extreme recklessness w/respect to the risk of
attending the killing show an abandoned death): see above under “Malice Theory”
and malignant heart (a.k.a. extreme (d) tends to divide murder1 into a mental state, a method of killing, or engaging in felonies/attempt
recklessness felonies that result in death
b. First-degree Murder: requires premeditation and deliberation
i. malice under CA murder1 tends to divide the commission into a mental state, a method of killing, or
engaging in felonies or attempted felonies that result in death (felony-murder)
ii. enumerated list:
(a) if perpetrated by means of a destructive device/explosive
(b) knowing use of armor-piercing ammunition
(c) poison
(d) lying in wait
(e) perpetrated by discharging a firearm from a motor vehicle intentionally at another person outside
the vehicle with the intent to inflict death (drive-by)
(e) or any other willful, deliberate and premeditated killing, or
(f) committed in the perpetration of: (felony-murder is equivalent to malice)
(i) arson
(ii) rape
(iii) carjacking
(iv) robbery
(v) burglary
(vi) mayhem
iii. for murder1, must have performed the killing or have necessary mens rea (intent to inflict sever bodily
injury/harm)
(a) premeditation/deliberation
(i) premeditation: planning: decision to kill with a chance to rethink it over – a form of specific
intent
(ii) deliberation: weighing the decision; turning over the thought in the mind; consecutive
thought (should I? should I not?); reflection.
(1) can go quickly
(2) law does not look to timeliness of decision; more looking for firmness and resolve to
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kill, however not determinative - U.S. v. Watson (1985)


(iii) shows more than intent  indicates character of actor
(b) State v. Anderson, 742 P.2d 1306 (CA): set three things for determining culpability:
(i) planning
(ii) prior relationship between killer and victim
(iii) manner of killing
c. all other murders are Murder2 – Malice still required
i. if only have intent to kill (malice), then only have murder2
(a) intent to kill insufficient mens rea for murder1 but enough for murder2
(b) no serious provocation (extreme emotional disturbance/heat of passion)
ii. no premeditation/deliberation
iii. for felonies not enumerated under murder1

D. Voluntary Manslaughter – no “malice” mitigating circumstances


1. manslaughter was created in response by legislature to avoid having to kill everyone who committed murder
a. punishment’s purpose of deterrence not served
i. a recognition o the fact that one who kills in response to great provocation should be regarded as someone of
significantly different character deficiency than one who kills without provocation (MPC commentaries on §
210.3 – CB 383); rage is less deterrable
(a) circumstance of situation looked at more than the moral depravity of the Δ
2. manslaughter does not have “malice,” but mitigating circumstances
a. there was “adequate provocation” or honest belief that killing was necessary for self-defense
i. may sympathize with Δ on some level, but cannot exonerate because he still committed a crime
3. MODEL PENAL CODE (MPC § 210.3)
a. rejects “involuntary manslaughter”
b. basically defined as murder with mitigating circumstances (reasonable excuses):
MPC § 210.3 Manslaughter: i. if committed recklessly (negligent homicide) or,
(1) Criminal homicide ii. extreme mental or emotional disturbance
constitutes manslaughter (a) MPC § 210.3(1)(b) reasonableness of explanation/excuse to be determined from the actor’s
when… viewpoint of the situation under circumstances as he perceives them
(a) a homicide which (b) “extreme emotional disturbance” = “provocation” under Cal. Penal Code
would otherwise be murder is
(i) legally permissible provocation: adultery blow/mutual combat/battery if Δ did not initiate the
committed under the influence
of extreme mental or standoff; less clear: threat of physical attack (in extreme cases)/ unlawful arrest/violent or sexual
emotional disturbance for
which there is reasonable
explanation or excuse. The
reasonableness of such
explanation or excuse shall be
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assault on a close relative


(1) words alone not adequate provocation (common law)
(2) historical trend has been toward relaxing these categorical rules
(ii) ct must understand why the defendant felt/achieved the emotional disturbance “from the
viewpoint…he believes them to be.”
(1) very subjective approach
(2) “actor’s situation”: not only the fact but also takes into consideration what/who is
involved; People v. Berry
(iii) burden on prosecution to disprove provocation once Δ bears some plausible evidence of
provocation
(1) most states require Δ to prove EED as an affirmative defense, by a preponderance of
the evidence (CB 386)
(c) no cooling off time b/w provocation and reaction
(i) must be continuous action; an interval b/w assault/provocation may be sufficient for
rationale to kick back in  then shows deliberate revenge (murder); CB 381; U.S. v. Watson,
Ex Parte Fraley, People v. Walker

4. CALIFORNIA PENAL CODE (Cal. Penal Code § 192(a))


a. manslaughter def’d: unlawful killing without malice or negligence (3 categories: Voluntary, Involuntary, or
Vehicular)
i. Voluntary Manslaughter– intentional act in response to provocation
(a) Δ acts upon sudden quarrel or heat of passion
(i) People v. Walker, Rowland v. State, People v. Berry

Voluntary Manslaughter
- Provocation: specific categories Cal. Penal Code MPC
* mutual combat - sudden quarrel - doesn’t distinguish “voluntary”
* adultery - heat of passion manslaughter; only “manslaughter”
* battery distinction from murder
* words (w/o violence)  NO - EEM
- “cooling” time a big factor - personal situation  reasonable
reaction
** recklessly = negligent
homicide (with mens rea)

* MPC rejects involuntary


manslaughter
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VI. UNINTENTIONAL HOMICIDE


A. necessary intent to kill/mens rea not present to convict under murder1
1. but harm was caused by defendant (causation)
a. the Δ’s actus reas resulted in death
i. many defendants will respond that death was the result of an “accident.”
b. type of act the individual engages in is more relevant than the mens rea
i. affirmative conduct not necessary; Welansky – did not start fire himself; Williams: omission of act
2. may fall under involuntary manslaughter or murder2
a. how distinguish which crimes will fall under which category
i. involves inferences and implications from the facts to determine mens rea of the crime.
ii. type of act indiv. engages in more relevant than his mens rea
(a) manslaughter only requires “recklessness or gross negligence” not malice; Welansky; State v.
Williams; Mayes – husband threw heavy beer glass at wife with no provocation, hitting the oil lamp and
causing her to extensive burns which caused her death
(i) “extreme recklessness” = “abandoned and malignant heart” (Cal. Penal Code § 188) =
equivalent “malice” under murder charge necessary for MPC (doesn’t have involuntary
manslaughter)
B. MODEL PENAL CODE (CB 434 - 436) - § 210.3 Manslaughter
1. § 210.3(a) treats reckless homicide as manslaughter
a. demands proof of conscious disregard of perceived homicidal risk.
2. § 210.3(c) person acts recklessly with respect to the death of another when he consciously disregards a substantial and
unjustifiable risk that his conduct will cause that result
a. nature and degree of risk must be such that, considering all the circumstances, its disregard “involves a gross
deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation…”
3. does not have involuntary manslaughter – cannot deter the inadvertent actor from risk creation.
a. “liability for inadvertent risk creation is thus properly limited to cases where the actor is grossly insensitive to the
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interests and claims of other persons in society.”


i. liability for manslaughter cannot be premised on negligence
(a) MPC punishes negligent homicide as an offense of lesser grade than manslaughter
C. Cal. Penal Code § 192(b) – Involuntary Manslaughter
1. in the commission of an unlawful act, not amount to felony, or
2. commission of a lawful act which might produce death in an unlawful manner, or
3. without caution or due circumspection.
AVAILABLE  LOOK TO FULFILL MORE THAN ONE THEORY (ON THE EXAM)

4. Extreme recklessness vs. recklessness/gross negligence


LOOK FOR DIFFERENT WAYS TO CONVICT EVEN IF FELONY-MURDER IS

a. prior offense taken into ksn


i. might have raised consciousness of risk
ii. disregarding information might constitute extreme recklessness
** DO NOT COMBINE NEGLIGENCE AND RECKLESSNESS  IF SHOWING RECKLESNESS, MUST CONVEY CIRCUMSTANCES THAT THE
INDIVIDUAL WAS AWARE OF THE RISK AND CONTINUED TO PROCEED (RISK WAS MADE CONSCIOUS TO ACTOR BUT DISREGARDED)
D. Vehicular Homicide
1. most states treat vehicular homicide as involuntary manslaughter
2. Cal. is different
3. Cal. Penal Code § 191.5(a) “Gross Vehicular Manslaughter While Intoxicated”
a. the unlawful killing of a human being without malice aforethought
b. in the driving of the vehicle
i. while in violation of the [drunk-driving] laws
c. killing was proximate result of the commission of a lawful act which might produce death in an unlawful manner
and with gross negligence…
4. Cal. Penal Code § 192(c) “Vehicular Homicide” (except as provided in § 191.5)
a. driving a vehicle in the commission of an unlawful act, not amounting to a felony, and with gross negligence; or…
b. driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with
gross negligence
** “Gross negligence” shall not be construed as prohibiting or precluding a charge of murder…upon facts
exhibiting wantonness and a conscious disregard for life to support a finding of implied malice, or upon facts
showing malice, consistent with the holding of the Cal. SupCt. in People v. Watson, 30 Cal. 3d 290.
i. can constitute murder2 per Watson (implied malice) CB 461.
5. § 191.5 vs. § 192
a. § 191.5 requires intoxication
b. § 192 does not, but can
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c. “commission of a lawful act” = driving

E. First-Degree Felony Murder (rejected by MPC)


1. no intent to kill the victim; only intent to commit the crime – benefit of the doubt that the killing was unintended
(unintentional, or an accidental/negligent killing)
a. “extreme recklessness” qualifies for a form of malice: (reckless act + mens rea = intent)  implied malice
i. enumerated felonies (most common: robbery, rape, burglary, arson, carjacking, kidnapping, train-wrecking)
are all crimes against the individual that require personal confrontation
(a). victim’s reaction to the crime is unpredictable
(i) their reaction has great potential to escalate the situation
2. “Theory” behind 1st degree felony murder: puts felons on notice that certain activites have great probability of resulting in
death  felonies are enumerated
a. declares that the felony is sufficiently dangerous per se that a person committing it can be viewed as accepting the
risk of murder
i. may deter prospective criminals from committing the felony (deterrence element)
(a) strict liability: circumstances of the crime are ignored
(b) intent to do the crime transferred to intent for f-m
b. In CA, cannot be convicted of 1st-degree f-m unless one of enumerated felonies is being executed
3. does not do away with “causation”
a. cannot be convicted under f-m without proving causation (that the felony caused the death) – People v. Stamp (CB
463): robbery accelerated Mr. Honeyman’s (victim) condition.
4. no requirement that killing occur “while committing” or “while engaged” in the felony, or that the killing be “a part of” the
felony, other than the few acts be a part of one continuous transaction (CB 465)
5. Without 1st-degree f-m, murder1 conviction would be near impossible (as applied to Stamp)
a. “abandoned and malignant heart” – Murder2 (for conscious disregard of Honeyman’s overweight and out of shape
condition)
b. “without due caution of circumspection..” – Involuntary Manslaughter under Cal. Penal Code § 192
F. Misdemeanor manslaughter (2nd-degree f-m) (adopted by CA)
1. rejected by MPC and majority of states
a. contention: “dispense with proof of culpability and imposes liability for a serious crime without reference to the
actor’s state of mind” (CB 476-477)
2. available for any unlawful act, not only misdemeanors; misdemeanors mala in se (an act that is inherently immoral) rather
than mala prohibita (act is criminal merely by statute, although not necessarily immoral)
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3. parallels f-m
a. if actor unintentionally causes death while performing unlawful act (not enumerate felony), state can prosecute
under involuntary manslaughter – U.S. v. Walker (CB 475): Δ didn’t have license to carry gun, dropped it when
loaded, gun discharged and killed a bystander.
i. “presumption…of recklessness” (CB 466 n.2) kind of substitutes f-m  no surprise that a death resulted
from reckless conduct (high probability of the conduct going awry)
4. characterization of crime depends on jdx
a. Majority: considers the felony in the abstract, including CA (CB 483)
i. must not be an enumerated felony and “inherently dangerous” in the abstract – People v. Patterson:
furnishing cocaine (possibility of overdosing inherent in cocaine use) CB 483.
(a) forget the facts, only important that the action carries a high probability of death (Patterson) (in the
abstract)
(i) considering facts may lead to ‘inexorably to the conclusion that the underlying felony is
exceptionally hazardous’ (CB 484) [CA law]
(b) CA measure “inherently dangerous” in the abstract by judging the probability of death
ii. inherently more complex b/c must develop notion that the felony is inherently dangerous in the abstract
(a) trad’l murder1 is easier to determine (has est’d elements)
b. Minority: some look at the way crime’s commission (CB 485)
i. circumstances of the commission and the offense’s abstract definition used to determine dangerousness –
State v. Chambers: drunks stole a car and killed 4 people; ct said: following “common law felony murder
rule,” a felony can be the basis for 2nd-degree felony murder if done in a sufficiently dangerous way
(a) gives evidence of Δ’s mens rea
G. Two Approaches to Felony-Murder (depending on jdx)
1. Proximate Cause Theory: must establish that the felony was over to avoid f-m
rule, that the death did not occur during the commission of the felony
a. as long as felony in progress, any death that occur will be assigned to the felon (including death of victim/bystander
killed by criminal/police) – People v. Hickman
i. includes “immediate flight” – People v. Gladman (CB 489): ct said that boundaries of “immediate flight” is
unique to each indiv. crime and thus to be determined by the jury
(a) not settled – Franks v. State (CB 490): f-m reversed for want of a causal ‘nexus’ b/w grocery store
robbery, attack on the officer and the child’s death; State v. Colenurg: f-m upheld when Δ killed child
months after he received a stolen car and messed wit the VIN. (CB 491)
b. “Protected Persons” Doctrine – applies to both jdx (proximate and agency)
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i. any innocent third party, doesn’t matter who the shooters was as long as innocent
third party is killed will be assigned to felons
ii. victims by police shots assigned to felon
iii. if co-felons die, no one cares.
2. Agency Jurisdiction (CA): death can only be assigned to felons or their agents
– People v. Washington (CB 496), Justice Traynor: “to impose an add’l penalty
for the killing [of co-felon] would discriminate between robbers, not on the basis
of any difference in their own conduct, but solely on the basis of the response by
other that the robber’s conduct happened to induce.”
i. “Provocative Act” Exception for Felony-murder: look for behavior on Δ(s)’s part that would lead victim to
believe that it is “now or never” to resist and make an effort to save life (to use force) – Taylor v. Superior
Court (CB 500)
(a) ‘provocative act’ will get the f-m charge (even if death was caused by non-agent of the crime or for
death of co-felon); negates “Protected Persons Doctrine”
(i) will make co-felons responsible for the acts of other agents (those who make ‘provocative
acts”)
(ii) ‘provocative act’ = implied malice that triggers victim’s survival mode.
(1) in theory, then implied malice murder = murder2, but under Cal. Penal Code § 189,
f-m constitutes 1st-deg. f-m (murder1)
(iii) if f-m unavailable, analyze “provocative act” under a malice theory
H. Limitations on the Use of Felony-murder
1. Δ must be guilty of the predicate felony
2. in CA, only enumerated felonies get murder1
a. MPC: there is a presumption of recklessness necessary for murder when committing on of the enumerated felonies
3. predicate felony must be independent of the homicidal act or collateral to homicide (e.g. cannot have continuous action
toward homicide) – People v. Moran (CB 501)
a. underlying felony must be independent of the killing or else merges with the homicide (CB 504)
i. if have continuous action toward the homicide, then have either murder2 or voluntary manslaughter, not f-m
(a) predicate felony’s objective cannot be to produce death
b. CA’s expressed “merger” rule: from People v. Ireland (CB 504): felonious assault could not be the basis for felony
murder b/c it is ‘included in fact’ within the homicide.
4. “inherently dangerous” analysis for 2nd degree felony murder (manslaughter-murder) – (equivalent to “foreseeability of
death” for f-m)
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a. CA looks at the crime itself (e.g. furnishing cocaine)


b. jdx other than CA look at how crime was committed

VII. CAUSATION – direct application to homicide


A. Describing the phenomenon of people’s participation in crime in terms of causing the result
1. harm/death may arise from Δ’s actions/omission
a. failure to act may fulfill both legal and factual cause of the result
2. when a crime requires conduct but also a specified result of that conduct, the Δ’s conduct must be both “cause-in-fact” and
the proximate cause of the specified result
B. seeking to establish “proximate cause” – the legal cause
1. trad’l view: identify any and all possible causes
2. usually limits causation to results expected by the actor (e.g. MPC § 2.03)
a. do not always link a probability std. to the Δ’s requisite culpable mental state
i. necessary condition for the result may be proximate cause if it results regularly, predictably, or commonly,
regardless of statutorily required culpable mental state
b. MPC attempts to condition liability on the determination that actor’s mens rea caused the proscribed result
3. also shares a relationship with “chain of causation”/causal remoteness
a. Rules of Causation
i. hastening inevitable result
(a) an act that hastens an inevitable result is nevertheless a legal cause of that result
ii. Simultaneous Acts
(a) simultaneous acts by two or more persons may be considered independently sufficient causes of a
single result
iii. Preexisting Condition (“Thin Skull” Rule)
(a) a victim’s preexisting condition that makes him more susceptible to death does not break the chain
of causation
C. first identify factual cause; four limitations:
1. cause-in-fact
a. “but for” Δ’s actions, the harm would not resulted (a.k.a. “factual cause, de facto cause, or scientific cause)
i. how a person’s action someway contributed to the outcome
(a) must be the ‘imputable’ cause
ii. exception: simultaneous, sufficient conditions (“concurrent causes”)
b. only the first step, not ultimate inquiry
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2. Foreseeability
a. requires a connection b/w actor’s culpable mental state and the result
i. injury resulting from reckless action must be one he “foresaw”
ii. often referred to as “proximate causation”
(a) victim’s death occurs in a manner not intended or anticipated by the Δ
(1) “All Natural and Probable Results” are proximately caused – Stephenson v. State: Δ
kidnapping of a girl led her to commit suicide
3. Intervening Events
a. Intervening actions
i. premised on free will  individuals were the exclusive cause of their actions – Commonwealth v. Root (CB
308): deceased drove into oncoming traffic in an effort to beat Δ in a race on the highway (ct. rejects tort law
approach to “proximate cause” (CB 309)
(a) Cal. Penal Code § 408 Causation: Responsibility for Causing a Result: puts on notice that one may
be held responsible for the reaction of another if the reaction is predictable
ii. most cts view a lvl of medical malpractice as foreseeable with a likely-fatal injury (causation still valid)
(a) no causation if gross negligence or intentional mistreatment (e.g. superficial wound worsened by
lvl of negligence
(i) supervening cause
b. scope of time
i. Common Law: “year and a day” rule – if victim dies within the time limit, death can be traced back to Δ’s
actions
(a) CA has limitation of causation of 3 yrs.
iii. most jdx look to whether patient/person under care was under life-threatening situation anyways
c. CL trad’ly absolved Δ of causal responsibility if an “intervening” event “broke the chain of causation”
i. must be necessary for the harmful result
ii. subsequent to Δ’s act, and…
iii. not caused by Δ’s act
d. inconsistent with “foreseeability” standard  foreseeable intervening events do not break the chain of causation
e. intervening acts do not necessarily sever the result from the actor and excuse responsibility – U.S. v. Hamilton (CB
317): ct ruled insufficient evidence that deceased would’ve survived if the tubes had remained (deceased had pulled
them out) therefore Δ guilty of homicide (manslaughter).
4. Duties
a. causal responsibility limited to those who have a duty to act resulting from:
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i. statute
ii. status
iii. contract
iv. undertaking

VIII. CAPITAL PUNISHMENT/DEATH PENALTY


A. execution of accomplices requirements – Tison v. Arizona
1. accomplice must be a major participant in the crime AND…
a. S.Ct ruled that execution of accomplices “with no intent to kill” is unconstitutional
i. punishment is disproportional to the action
2. show a reckless indifference to human life (substitute for serious mens rea/ ”malice”)
a. per Tison, brother’s must show that they did something for the victims or attempt to stop their father
B. Mentally retarded indiv. cannot have same lvl of mens rea as typical criminal – Atkins v. VA
1. connection b/w decency and 8th Amendment
a. evolving stds. of decency ties with society’s perspective
2. if an otherwise properly convicted and sentenced Δ suffers mental illness before execution, cannot be executed
a. mental illness disables him from appreciating the connection b/w his immediate punishment and his crime

IX. ACCOMPLICE LIABILITY – parties to crime; requires @ min. proof that another person committed an offense
A. accomplices held liable for aiding or encouraging the offense of another
1. complicity depends on the occurrence of another offense, whether or not another is punished for that offense
a. is a doctrine, not crime  no “crime” of being an accessory
focus on mens b. a theory of how indiv. may be charged for a crime that may have been committed by someone else
rea/intention of i. liability for offense flows from accomplice’s relationship to the perpetrator (CB 822)
rendering aid; (a) common law view: one became responsible for another’s crime by joining in it rather than causing
NOT the it. (consents to a crime by aiding or encouraging the principal)
magnitude of
participation
c. aider&abettor share the principal’s criminal intent (mens rea) State v. Ochoa (CB 830) – intent and purpose to
commit the crime (MPC); U.S. v. Giovanetti (CB 857): aider and abettor must know that he is assisting an illegal
activity; State v. Etzweiler (CB 866): no criminal intent to cause accident, though knows that his friend was drunk
i. common defense is to challenge the requisite mens rea (“ I didn’t do anything…I didn’t practice the
necessary mens rea of the acts.”)
(a) can still be held vicariously liable
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2. level of participation does not relieve criminal responsibility


B. Common Law – focuses on “presence” (where was the actor at the time of the crime?)
1. Principals
a. principals in the first-degree: person who committed the actual crime/the offender
b. principals in the second-degree: in the proximity of the “principal in the 1st-deg.”; in the proximity of the
commission of the offense
i. ex) the lookout, getaway driver
(a) close enough to the action, but not necessarily next to the principal  present at the scene of the
crime
(i) presence could be constructive instead of actual
2. Accessories – could not be tried or convicted before the conviction of the principal in the 1st-degree
a. accessory before the fact: classic “mastermind”
i. gave aid and support
(a) aid must be successful (only CL)
ii. fate of “accessory before the fact” depended on the fate of the principal
b. accessory after the fact: indiv. did not know or in any way participate in the commission of the actual crime; not a
participant in the substantive crime
i. is not aware of the committed the crime until after it is committed, but renders aid
(a) establishes the connection to the crime
(b) rendering aid subject him to punishment
(i) usually a lesser degree
c. principals and accessories could only be convicted of the same degree of offense
3. considered an accomplice if join a crime-in-progress; not accessory after the
fact
4. all participants in treason considered principals (under CL)
5. accomplice liability for Misdemeanors
a. all participants considered principals except for “accessory after the fact”
i. no punishment for misdemeanors
C. Modern Approach (including MPC § 2.06) – disregards “presence”
1. modern statutes have largely eliminated common law procedural rules and distinctions
a. all parties to the crime face prosecution for substantive crime except for accessory after the fact
i. only break accomplices might get will be in sentencing
b. principals need not be convicted, tried, or apprehended for accessory to be tried/convicted
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i. state must only prove that criminal acts occurred


c. principals and accessories could be convicted of different degrees of offense – Pendry v. State (CB 878): two
brothers both present during murder, but Tim got manslaughter (evidence of emotional distress), brother Kenneth got
murder1.
2. evaluates the nature of aid offered: verbal, physical, psychological – State v. Ochoa
3. omission to act may support the criminal objective
a. at CL: “misprision of felony,” nondisclosure or concealment of a known felony (a federal crime in U.S.)
i. affirmative act not required by Δ to aid the principal
(a) jdx differed in its requirement whether affirmative concealment or passive concealment needed to
be proven
b. modernly, most cts punish only affirmative conduct to conceal crime or principal from gov’t – MPC § 242.3 - .5
(CB 834)
i. MPC does not have a formal “accessory after the fact”
c. omission of a duty to act may impart criminal responsibility
4. necessary to have knowledge of the criminal act
a. an “innocent” 3rd party, a.k.a. “the dupe”
i. have no idea that their actions are aiding & abetting a criminal act; truly did not achieve knowledge
focus on the
(a) then not considered an accomplice despite they may be lending considerable mount of physical
interpretation of
clues an indiv. is assistance (assistance is immaterial)
contronted with in (i) no knowledge of the nature of aid negates the required sharing of “specific intent” w/ the
the fact pattern. principal  does not have the required mens rea
DO NOT implement ii. possible for principal1st to take adv. of a person’s “dupe” status
the “should have
(a) then becomes “crime by instrumentality”
b. “mere presence”: insufficient to est. someone as an accomplice
i. must determine the actor achieved state of knowledge of the criminal act and continues to aid the indiv. in
light of the known info – Gains v. State (CB 834): ct ruled “wheelman” lacked knowledge/ info to infer that he
knew his passengers had committed a bank robbery.
c. knowledge of crime in and of itself insufficient for accomplice liability
i. modern increasingly common approach is to required special mens rea for aider/abettor – knowledge or
purpose that one’s conduct will have the effect of facilitating or encouraging the crime in question.
Determined by three factors (CB 850):
(a) conduct, attendant circumstance, and result elements of the principal’s offense
(b) likelihood that accomplices’ actions will encourage or assist principal
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(c) principal’s culpable mental state


ii. need knowledge and intent/purpose to help – People v. Beeman (CB 851): Beeman had knowledge, but no
intent to help? (must have had a good attny)
5. MPC § 2.06
a. must have intention to accomplish something for accomplice liability
b. allows actor to terminate potential exposure as an accomplice
i. by withdrawal before commission and deprives the effectiveness of his aid in the commission of the crime or
ii. give timely warning to law enforcement or otherwise makes an effort to prevent commission of the offense
(a) to be effective, may not be done anonymously
(b) must communicate the termination for the withdrawal to be effective
iii. most jdx do not allow such leeway
(a) no formal provision for withdrawal
(i) once shown to have involved in crime/planning, may be held as an accomplice
D. the “feigned” accomplice – not interested in successful completion of the crime; wants the crime to fail
1. appears to assist in the crime, but actually the one who alerted the authorities.
2. can be charged as an accomplice for acts
a. but fails b/c of the necessary mens rea
3. wanted successful prosecution of the perpetrators
E. accomplice may be charged even if principal is dead, immune from prosecution, not charged, or not identified (CB 877-888)
1. accomplice liability exists even if principal is excused
a. defenses, if applicable, also available to the accomplice
i. perpetrator is excused (insanity)
a. Penry v. State – brothers accused of same crime; one gets manslaughter for showing extreme
emotional distress while his brothe did not (brother got murder1)
ii. perpetrator is justified (self-defense)
a. many American jdx condition defense of “justification” on the Δ’s reasonable beliefs rather than the
actual results of Δ’s conduct
iii. principal lacks mens rea
a. perpetrator actions excused (done under duress)
(i) accomplice might not
(a) discrepant mens rea
iv. principal has not committed or could not commit the criminal act
a. resembles a legal impossibility
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(i) General Rule: if a perpetrator’s conduct does not fulfill the act element of the offense, there
is no offense and so no complicity

X. INCHOATE OFFENSES – all require a demonstration of the individual’s attempt


A. requires highest form of mens rea (specific intent  MPC’s “purposely”)
1. an absolute commitment to accomplishing some act
B. ATTEMPT – law punishes attempt not for the mere desire to commit crime (mens rea), but because there is substantial act
toward the completion of the crime (actus reas)
1. requires specific intent
2. gives prosecution something to charge if causation fails
a. when clear indication actor had intent to kill (through facts or conduct) and give info despite his effort, victim does
not die from actor’s particular means
i. causation shows that focused actor is not the cause of person’s death
ii. when legal/proximate cause unavailable, look at actions and specific intent to infer attempt
(a) connection b/w attempt and causation
2. “legal impossibility” (no attempt) – Booth v. State (CB 793): Δ could not be guilty of attempt to receive stolen property
when the property in question had already be recovered (lost its “stolen” characteristic)
a. the act, even completed, would not be criminal
i. an affirmative defense
3. “factual impossibility” (attempt) – State v. Haines (CB 803): attempted murder convictions upheld for two HIV-positive
inmates, tried to transmit the virus by biting guards, even though HIV cannot be transmitted by biting.
a. substantive crime impossible to complete b/c of some physical or factual condition unknown to Δ
4. still allows “mere preparation”
a. a substantial step taken toward the completion of the crime will carry the act from “mere preparation” to attempt
mere
attempt (crossing the line)
preparation i. preparation + overt act
b. determining when act is more than “mere preparation”
i most jdx adopt some form of “proximity test” (CB 767 – rejected by the MPC)
(a) Proximity test: how close does actor get to actually completing the crime?
(i) not how far actor has come from preparation
(b) Indispensable element: gauging whether actor(s) has gained control of elements/factors necessary
to accomplish the crime.
(c) “but for interruption”: unless an unexpected event occurs, action flows toward the execution of the
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crime
(d) abnormal step: crosses a pt. where a normal person, who could have been playing with the idea,
would not have crossed
(i) crossing the point indicates actor’s intention to commit the crime
(e) res ipsa (unequivocality test): the acts are unambiguous; nothing equivocal, the intent is apparent
Smith likes MPC approach ii. MPC test – doesn’t gauge how far actor has come to completing crime
to Attempt; need to know (a) examines a “substantial step”
for the essay portion
(i) distance actor has traveled whether or not is a substantial step in direction of
accomplishment of the target crime
(1) no requirement for the Δ to come close to completion
(b) does not recognize “legal” and “factual” impossibility
(i) the distinction is a fallacy
(ii) whole point of attempt is culpable mens rea
(1) punish those who are willing to break the law/have the will to engage in behavior
and try accomplish something that is dangerous to society
(b) MPC § 5.01 Criminal Attempt
(i) allows prosecution to charge attempt earlier, before an actual material attempt takes place
(ii) allows renunciation of the decision to do the crime; abandon the attempt even after attempt
has been completed - § 5.01(4)
(1) under modern law, trad’l approach does not allow abandonment of attempt
5. attempted crimes merge into complete crimes
a. Burglary does not merge
i. if successful, get burglary + (felony)
b. once crime completed, cannot renounce (can’t go back and return something you stole)
C. SOLICITATION
1. actor with specific intent acted on trying to induce somebody to join in the crime
a. no requirement that the person solicited agrees or accepts
i. crime is complete once solicitation is made
2. solicitation merges with the actual crime
a. may become conspirator or accomplice to the substantive crime
3. many jdx do not have a universal solicitation statute
a. usually very specific crimes are restricted under a solicitation statute (e.g. murder, treason most common)
4. usually solicitation cannot be abandoned
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a. MPC allows renunciation of solicitation (§ 5.02(3))


i. immaterial if the solicitation is passed along and actor fails to communicate with the person he solicits to
commit the crime (§ 5.02(2))
(a) reception of solicitation not important; the fact that it was sent out is reprehensible enough
5. common defense: trying to negate the mens rea (specific intent)
a. the “just kidding” defense, or “ I was just venting steam”
D. CONSPIRACY – a tool of inference in absence of hard evidence
1. modernly, does not merge into the substantive crime (offense + conspiracy)
2. Common law: Agreement of at least 2 or more people able to and intending to agree to intend to accomplish a
criminal or unlawful purpose. (carry out the purpose which is the stated object of their combination) CB 944  bilateral
view
a. at common law, husband and wife COULD NOT be charged as conspirators with each other
i. reasoning: husband and wife seen as one person in law, having one will
(a) conspiracy required at least two people
b. not necessary to know all conspirators; knowing indv. roles sufficient
c. measured within the terms of specific intent to carry out the crime
i. the agreement makes the commission of the crime more likely to be carried out  conspiracy committed
absent actual criminal act – State v. Verive (CB 896) “Primary focus of the crime…”
(a) agreement with specific intent sufficient to est. conspiracy (required mens rea)
(i) must have evidence of actual agreement
(1) usually not blatant agreement (tacit)
(ii) Δ’s best defense: he did not have specific intent to do the criminal act – People v. Lauria:
having knowledge of his customer’s occupation (prostitutes) and continuing to provide them
with messaging service
(1) intent may be inferred from knowledge when:
a. purveyor of legal goods for illegal use has acquired a stake in the venture
(motel mgr. charging more for prostitutes)
b. when no legitimate use for the goods or services exists
c. when the volume of business with the buyer is disproportionate to any
legitimate demand, or when sales for illegal use amount to high proportion of
seller’s total business – Direct Sales (CB 916)
(b) requires no actual step toward the commission of the crime
(i) only need to prove the agreement
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(1) requires less to convict than “Attempt”


d. some actors, for some reason, may be ineligible as a conspirator
i. insane person (+ all affirmative defenses if available)
ii. undercover police
iii. the proverbial “dupe” – not acting in furtherance of the conspiracy
e. does not have to be agreement to a criminal act (e.g. “substantial step” under attempt) (CB 902-903)
i. could agree to do a lawful act in an unlawful manner – North example: Lt. Col. North charged with
conspiring to violate intent of Congress (by assisting Contras, Nicaraguan rebels), but Boland Amendment did
not carry any criminal sanctions
f. some jdx only require the agreement – S.Ct. said that “criminal agreement itself is the actus reas”; U.S. v. Rahman
(CB 909): Δ contended that his blindness incapable of participating in aspects of crime but ct ruled that it was
sufficient for the Δ to join in the illegal agreement
i. most jdx require “agreement” + “overt act”
(a) “overt act” can be almost anything, not necessarily criminal – in Verive, driving to Galvin’s (the
witness/victim) home
(i) adds to proof
(ii) if “overt act” can be shown, harder for Δ to contend that agreement was merely talk
(iii) same action cannot be used for different crimes (attempt, conspiracy)  double jeopardy
(1) determine possible double jeopardy violation with Blockburger test (examine the
elements of the crime): each charge must have at least one element of the crimes that
are not shared (CB 896)
(iv) any overt act attributed to all co-conspirators (the whole group) so long as it is done in
furtherance of the crime  vicarious liability
g. relative contribution irrelevant as long as Δ was in agreement and rendered some sort of aid
(i) by joining conspiracy, Δ inherits all previous crime the group committed previous to Δ’s agreement
3. MPC § 5.03
a. under MPC, attempt and conspiracy cannot be charged concurrently (CB 898)
i. must choose either, but not both
b. many jdx let prosecutor to charge both attempt and conspiracy
i. if separate crimes, can be separately punished
(a) “stacking” the sentences
c. rejects Pinkerton
(a) no special complicity rules for conspirators
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(i) conspirator should be measured by same std. of legal accountability for conduct applicable
remember this to any other indiv (CB 939)
for the test d. adopts unilateral approach: intent to commit crime is enough mens rea to hold actor accountable regarless of the
(MPC jdx) intent of co-conspirators
4. Withdrawal from conspiracy
a. Majority Rule
i. requirements:
(a) withdrawal must be notified to co-conspirators
(i) not req’d to notify all, but at least some
(b) by engaging in acts inconsistent with the objects of the conspiracy
(c) no req’ment to convince other co-conspirators to abandon the conspiracy
(d) no req’ment that he expose conspiracy to public authorities or expose conspiracy to prevent the
carrying out of the act involved in the conspiracy
(e) reqs. that a Δ completely abandon the conspiracy
(i) must be done in good faith
ii. still liable for previous agreement and for previous acts of co-conspirators in pursuit of conspiracy
(a) stops ability for subsequent additional crimes to be assigned
b. MPC § 5.03(6)
i. “complete and voluntary renunciation of the criminal purpose”
(a) cannot withdraw when pos are approaching
ii. withdrawal is an affirmative defense only when Δ has “thwarted the success of the conspiracy”
5. Pinkerton rule: a party to a continuing conspiracy may be responsible “when the substantive offense is committed by one
of the conspirators in furtherance of the conspiracy even though he does not participate in the substantive offense or have
any knowledge of it. (a form of vicarious liability)
a. conspirator may be found guilty of substantive crime unless that crime “could not be reasonable foreseen as a
necessary or natural consequence of the unlawful agreement”; not foreseeable, not in furtherance of the conspiratorial
objective
i. a theoretically viable defense against acts of co-conspirators being added to Δ
b. applies to corporations
i. doctrine of respondeat superior: holds an employer or principal liable for the employee’s or agent’s
wrongful acts committed within the scope of the employment or agency (CB 975-983)
(a) vicarious liability under conspiracy (acts of one are attributed to the whole)
6. Hearsay rule – forbids the admission of evidence given by a witness as to what someone said off the stand when the
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probative value of that evidence depends on the credibility of the out-of-court declarant (CB 939)
a. Exception: statements made by a conspirator in the course of/furtherance of the conspiracy are authorized by all
his/her co-conspirators, therefore admissible against them as admissions, so long as trial judge satisfied by a
preponderance of the evidence that a conspiracy does exist
7. Wharton’s rule: If the definition of the substantive crime assumes that at least two people will agree to commit it (e.g.
adultery, incest, bigamy, dueling), it would be unfair “double-counting” for the state to charge conspiracy as well.
a. possible to have more than one conspiracy arising from one act
8. Policy
a. presence of more than one actor makes the attempt less likely to be abandoned and the division of labor among
conspirators makes it more likely that the attempt will succeed (CB 899)
i. conspiracy may be aggravating factor in substantive crime
(a) criminal law assumes that a grp planning to commit a crime poses a special danger to the public
welfare – Callanan v. U.S. (CB 901): “the danger conspiracy generates is not confined to the
substantive offense which is the immediate aim of the enterprise.”
(i) support and cooperation of co-conspirators increases probability of criminal conduct for
each participant
(ii) increase social damage members can do
(iii) hard for police to apprehend them

XI. RAPE – general intent crime


A. Common Law
1. def: sexual intercourse “by means of force, against the will of the woman and
without her consent.”
a. state had to prove very overt force
i. easier to establish involving rape b/w strangers
(a) Δ often used weapon or assaulting violence
ii. b/w nonstranger rapes, cts use victims’ resistance as indicator of assailant’s force and victim’s nonconsent
(a) “utmost resistance” requirement – Brown v. State: ct suggests if victims does not fight, then the
rape was not against her will. (CB 1082, 1083)
2. rarely specified required mens rea beyond awareness of the act
3. highly regulated and restrained sexual intercourse
a. could be prosecuted of “fornication” for sex out of marriage
i. women would have to show that they lacked mens rea
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(a) sex = rape when induced by fraud in the factum


(b) or mistake of fact
(i) believing she was having sex with husband
(c) committed unlawful intercourse under duress
(i) resistance standard element
4. CL: NO spousal rape
5. statutory rape dealt with as strict liability
a. age a sentence enhancer (CB 1126)
B. Traditional Statutory
1. force or threat of force
a. gives victim a chance to explain why she didn’t struggle
2. non-consent
a. under intoxication
i. consent given under voluntary intoxication ≠ rape
ii. consent given under involuntary intoxication = rape
3. reasonable resistance
4. NO spousal rape
C. Cal. Penal Code
1. does not have degrees of rape (minority jdx)
2. “consent” (Cal. Penal Code § 261.6): positive cooperation in act or attitude
a. Rape (Cal. Penal Code § 261): subsections (1) – (3) says that Δ accepted consent they should not have b/c of the
victim’s inability to give real consent
i. subsection (1): person is incapable, b/c of mental disorder or developmental or physical disability, of giving
legal consent
ii. subsection (2): where consent is acquired against person’s will by means of force, violence, duress, menace,
or fear of immediate and unlawful bodily injury on the person or another
(a) “duress”: direct or implied threat of force, violence, danger, or retribution sufficient to coerce a
reasonable person to perform an act which otherwise would not have been performed
iii. subsection (3): person prevented from resisting by any intoxicating or anesthetic/controlled substance, and
this should have been known by accused
(a) Δ may have received consent, but it should not have been accepted b/c of victim’s inability to give
real consent
(b) voluntary intoxication by the victim voids her consent
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(c) a minority approach


iv. subsection (4): accused knows that the person is unconscious
b. at the point of consent is withdrawn, continuing with sex constitutes rape
i. could have consented to initial penetration
3. Statutory Rape (Cal Penal Code § 261.5)
a. CA allows a reasonable mistake of fact as a defense
b. may have consent, but the consent is void
4. CA has spousal rape
D. Model Penal Code
1. No spousal rape
2. incapacity to consent may expose one to rape
a. mental disability (Gross sexual imposition – MPC § 213.1(2))
i. imposing sexual intercourse by means of fraud/coercion, or with knowledge of victim’s mental disease or
defect which “renders her incapable of appraising the nature of her conduct” (CB 1125)
b. unconscious at the time of the act
i. MPC § 213.1(c)
c. youth – Statutory Rape
d. intoxication
i. MPC § 213.1(b) – traditional view is that the victim was made intoxicated unbeknownst to her, then rape
(a) voluntary intoxication is not a defense (CB 1125)
3. MPC has differing degrees of rape (1st-3rd)

XII. ARSON
A. general intent crime
B. at common law, required that the burning be of a structure/dwelling house (similar to burglary statute)
1. must be a willful and malicious burning
a. malicious = extreme recklessness (sufficient to establish malice)
i. similar to malice under homicide
2. modern jdx do not require the structure to be a dwelling
a. CA includes any structure, forest land or property
i. becomes important for felony-murder

XIII. THEFT
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A. Robbery – combination of larceny with force/threat of force [force / (fear element) + larceny]
1. requires the thief take the personal property of the victim from his presence or person
a. different with burglary where the person need not be around
2. falls under “crimes against the person”
3. Common Law
a. felonious taking and carrying away
b. personal property of another
i. the person robbed doesn’t necessarily have to be the owner of the item
c. by force or threat of force
i. force/threat of force induces owner to relinquish possession
d. from the person or in the immediate presence of the victim
i. no robbery if item not removed from the presence of the victim 4. under MPC,
robbery possible even if person fails to take property of the victim
B. Larceny – formed after robbery (Specific Intent)
1. crime against “possession” not necessarily ownership
a. owner of property can be guilty of theft of own property
i. someone may have superior right to possession (e.g. taking a car from the mechanics without paying)
(a) taking of possession
b. usually not taken by force
i. more likely that stealth employed
2. requisite mens rea: actor must believe he is taking the property of another
a. if actor believes that he is taking property that is his with some claim of right, negates mens rea
i. specific intent necessary for larceny
3. at common law, prosecutor had to get the specific type of larceny and its elements correctly to get conviction.
a. modernly, “theft” serves as an umbrella (consolidated theft schemes
i. if any crime committed under theft umbrella, then guilty – larceny, embezzlement, false pretense, and
perhaps extortion as single offense of “theft”
(a) modern approach adopted by MPC and CA
4. Common Law – timing is of crucial importance
a. a “trespassory” taking and carrying away of property;
i. “trespassory”: at the very least a taking possession without the owner’s consent
(a) could be either force or stealth
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ii. violated victim’s rights


(a) Δ’s actions against consent/knowledge of the holder of
property
(i) anything that detracts from trespass element ruins larceny charge
iii. “taking” requires that thief acquire total dominion and control over the item
iv. “carrying away”/asportation element – requires movement of the object
(a) any slight movement sufficient
b. from the possession of another;
i. implies once thief acquired possession, he could forcibly defend the goods with the intent to retain them
ii. the moment possession passed to thief crucial in determining thief’s criminal liability
iii. must be “personal” property – something moveable
(a) larceny cannot be committed over “services”
(i) “taking of services” different crime under common law
(1) MPC criminalizes theft of services
(b) real estate, anything in soil also not personal property
(i) exception: if plant has been uprooted and left on property for an appreciable length of time,
then converts into personal property
c. with the intent to permanently deprive the owner of that property
i. specific intent to take it / keep it / destroy it  any form of permanent deprivation
(a) b/c specific intent requirement, mental impairment valid defense
ii. purpose can be to prevent owner from deriving benefit from his property
(a) destroys it value of use to the owner
(b) getting reward / refund actor not entitled to – People v. Davis: Δ went to Mervyn’s and tried to
receive refund for a shirt he never took from the store
5. modern larceny statutes focus on misrepresentation of material facts to induce the owner to hand over property
a. misrepresentation substitutes for the traditional trespass requirement under larceny
i. “trespassory taking” includes (CB 1029)
(a) a physical movement of the object
(b) a taking from the possession of another, and
(i) possession vs. custody
(1) when someone looks as if he has possession but does not, the law says he has mere
custody of the object (CB 1029)
(2) employer temporarily entrusting goods to an employee or customer still retained
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“possession” until sale was complete (CB 1024)


(c) an act contrary to the will of the owner
b. criminal liability had increasing emphasis on actor’s subjective intent
c. “Larceny By Trick” – thief acquires possession only
i. taking and carrying away
ii. possession of another
iii. by trick or device (misrepresentation of a fact)
iv. with the intent to permanently deprive owner or possessor
(a) the intent to steal overcomes the immunity provided by rightfully acquiring possession
d. “Larceny By False Pretenses” - thief obtains title and possession
i. Common Law
(a)misrepresentation of a present/past fact
(i) “false pretense” two possible meanings
(1) deception of the external rule (objective misrepresentation) – e.g. Δ’s credit status or
quality of goods for sale
(2) misrepresentation about one’s intention
a. in some states, borrowing money with intent not to repay sufficient
b. receipt of money satisfies element of acquiring title
(b) knowing the misrepresentation is false
(i) possible for “attempted larceny by misrepresentation): crime not completed because of
technical reason that victim did not rely on false misrepresentation
(c) which induces the Owner to part with title
(i) victim must rely on / believe the false pretense – People v. Whight (HO); People v.
Sattlekau (1041)
(1) insufficient that thief made misrepresentation
(2) no requirement that victim investigate thief’s statements / representations
a. need only factually demonstrate that victim did rely on misrepresentation
(ii) does not require dialogue – People v. Whight
(d) with the intent to defraud (to cause injury or loss by deceit)
e. “Embezzlement” – a later statutory refinement of the common law crime of larceny; differs from jdx to jdx
i. is different, because at the point of acquisition of the property, the actor did not induce the other to give over
the property
(a) actor is usually entrusted with the property (legal acquisition)
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(b) does not concentrate on the point of acquisition


(i) when actor breaches the trust and goes against the wishes / expectation / understanding of
the possessor
(1) converts property to uses not allowed by the owner (must go against the rules /
regulation / agreement)
(c) does not require an intent to permanently deprive
ii. legislative scheme typically require
(a) offender has been entrusted with the object by the owner, or at least have possession at the time of
the offense
(b) a subsequent act of deprivation
(i) usually termed conversion or fraudulent appropriation
iii. Common Law
(a) fraudulent conversion
(i) if thief knows of unilateral mistake and takes advantage of it, then equivalent to reaching in
pocket and stealing – People v. Whight
(b) of personal property of another
(c) by one already in lawful possession
f. “Extortion”
i. does not have to be theft of personal property
(a) can take service the victim normally would not give
(b) can be any benefit conveyed upon the extortionist
ii. involves benefits other than personal property and expands the nature of threats
(a) threats for the future included
(1) innuendo is sufficient
(b) blackmail
(i) unfair bargain where you know the type of threat would induce someone to prevent it from
happening
(1) act threatened does not necessarily need to be illegal
iii. requisite mens rea: intent to threaten injury/disgrace/dishonor in exchange for compensation (not
necessarily money)
(a) not bargaining in the usual way
(i) comes from more fear of threat than consideration
(1) concentrate on the use of fear, not causing fear
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iv. extortion vs. robbery


(a) extortion: threats of future harm intended to induce the victim to relinquish
property
(b) robbery: threat of force must be “immediate” or “imminent” in relation to
completed or attempted larceny
5. completed larceny even if actor replaces item

XIV. Defensive Force


A. Prosecutor: case-in-chief at trial  brings charges
B. an affirmative defense and its requirements imposes burden on Δ and their counsel
(** better to build prosecutor’s case and then knock it down)

1. Δ most likely have to testify


2. no requirement for Δ to put on a full formal defense
a. cross-examination of prosecutor’s witnesses may create enough doubt
b. “Elemental Defense”: Δ tries to show that a required element is missing
i. challenge identity
(a) not an affirmative defense
non-affirmative defenses, but
popular general defenses

(i) trying to show that prosecution cannot make necessary connections of crime to the Δ
ii. actus reas
(a) try to show that act was not voluntary
iii. mens rea
(a) absence of requisite mens rea is a defense to the crime
iv. causation
(a) if or when proof of causation is required
C. Defense case: defense has burden of proving the elements of its affirmative defense to prevail
1. prosecutors usually likes these because the mechanics (actus reas, causation) are all conceded
a. Δ wants to explain his actions
2. virtually all affirmative defenses addresses answering the question: Why?
a. defense still takes on the burden of proof
3. if defense fails in establishing affirmative defense, then Δ not given jury instruction
a. assumed as an intentional killing if the full affirmative defense is not achieved
i. Δ may have misjudged reaction/situation
4. justified vs. excuse CB 583
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a. justified killings more noble than excuse


b. both have same result

D. DEFENSIVE FORCE: SELF-DEFENSE


1. directly related to homicide
a. doctrine of balance and proportion (reaction to perceived threat)
in a fact pattern, i. cts allow Δ’s possible mistake
evaluate
reasonableness of (a) must be reasonable
actor’s response (b) also depends on what type of mistake
to the perceived
threat and his 2. Inmates not afforded the defense
calculation of 3. defenses allowed when indiv. is faced with direct force
danger
a. Perfect Self-Defense: acquittal, defeat the charges (fully justified)
i. use of deadly force MUST involve a perception of a threat of deadly force being inflicted or threatened –
People v. La Voie (n.3 CB 579)
(a) may not be used in defense of property
(1) mechanical devices cannot be used because they cannot discriminate the culpability of the
intruder (intruder may be law enforcement, firefighter, etc.) – People v. Ceballos (CB 632)
(2) “Where the charater and manner of the burglary do not reasonably create a fear of great
bodily harm, there is no cause for exaction of human life or for the use of deadly force” (CB
634)
b. Imperfect Self-Defense: a failure of one of the elements on some level
i. in CA, then get voluntary manslaughter
(a) regular voluntary manslaughter: highly emotional, flawed, but surrounding circumstances
understood by the court
(1) usually deceased had pissed off Δ
(b) a conviction arising from the defense usually indicates that the circumstances may have justified Δ
to act, but something about the reasoning was flawed
(1) response is unreasonable
(c) under MPC person who misconstrued facts may be found guilty of some level of homicide.
(1) Δ could be prosecuted of manslaughter (reckless in construing the facts)
(2) negligent homicide rather than purposeful murder
(d) majority of jdx adopt all or nothing: either achieve perfect affirmative self-defense or nothing (then
some level of homicide)
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ii. Δ’s judgment of situation and his response come under scrutiny
4. Elements
a. threat
i. reasonable mistake allowed
(a) assessing reasonableness requires going to the facts and supporting the actor’s perception
ii. Δ cannot create a condition for own defense (CB 621) – “Where the actor is not only culpable as to causing
the defense conditions, but also has a culpable state of mind as to causing himself to engage in the conduct
constituting the offense, the state should punish him for causing the ultimate justified or excused conduct.”
(CB 622); U.S. v. Peterson: ct found Δ formed intent when he went back inside to get a gun and telling the
deceased to stop as deceased was retreating (CB 619)
(a) Aggressor Doctrine: aggressor can defend himself if the responding party escalates the situation or
if aggressor has tried to withdraw
(1) contradicts trad’l view that aggressors are not afforded privilege of self-defense for
something they instigate
b. imminence
i. reasonable mistake allowed
ii. Issue: what constitutes imminence? – e.g. BWS, People v. Goetz: prosecution questioned if it was
absolutely necessary for Δ to shoot (had testified that just flashing the weapon had a deterrence effect on
would-be muggers)
c. response must be proportional to the perceived threat
i. Issue: was the actor’s response reasonable?
5. must know whether jdx adopts a subjective or objective analysis (CB 585)
a. subjective: thru the eyes of the actor – People v. Goetz: Δ’s actions were based on his past experiences of being
mugged
i. circumstances sufficient to induce the accused to from an honest and reasonable belief that force was
necessary to defend himself against imminent harm – State v. Leidholm: Δ needed to introduce Battered
Woman Syndrome to address the lacking element of “imminence”
b. objective: factfinder views circumstances surrounding the accused from the standpoint of a hypothetical reasonable
and prudent person
6. Retreat – duty to retreat if there safe possible way of doing so?
a. Elements where retreat not necessary.
1. In Home
2. Making a lawful arrest
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3. Robbery
b. traditional retreat rule: a person assaulted in his dwelling need not retreat before using deadly force even if a safe
opportunity exists
i. majority of courts have expanded “castle” exception to cover business premises
c. minority of American jdx adopt a retreat doctrine
d. Model Penal Code adopts a retreat rule
i. not when defending against death or great bodily harm from a co-occupant of the dwelling (MPC § 3.04(2)
(b)(ii); CB 609)
7. Common Law allows one to repel an unlawful arrest
a. MPC does not
8. Defense of 3rd parties
a. can use defensive for if it is a self-defense situation (3rd party or law enforcement)
b. Common Law: can choose to help at actor’s peril (reasonable mistake was not allowed)
i. most modern law jdx allow reasonable mistake
re: choice of evils, must be able to i.d. the specific potential harm if the Δ faced

c. no requirement for the actor to share a relationship with the person he is aiding
i. still obligated to keep response proportional
d. MPC allows defense of 3rd parties

E. DEFENSIVE FORCE
1. Elements
a. Without fault
b. Unlawful force
c. Threat of Imminent Death or Great Bodily Harm
2. Battered Wife
3. Law Enforcement/Private Citizens for Escape
a. Force must be reasonable.
if he did not act the way he did .

b. Reasonable only if threat of death or serious bodily harm and deadly force is necessary to prevent escape.
c. Ex: Garner: Officer cannot use force for an unarmed, non-dangerous felon that poses no threat to officer.
d. Same limits for private citizens except escapee must be actually guilty of offense.
4. f
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F. DOCTRINE OF NECESSITY (choosing the lesser of two evils)


1. Justification of Necessity: society acknowledges that the threat of danger the actor faced forced him to choose to break
some other law which was less onerous than the act he confronted  a choice of a “lesser evil”
a. society must endorse that the actor break a law to avoid a greater harm
b. the harm or evil
2. a more objective view
a. must be acceptable by society
b. weighs the reasonable choice of conduct actor had rather than breaking the law
i. whether actor’s identification of the threat or reason for having done the act justifies the response he chooses
(a) essential for actor to truly believe that his choice was the lesser of two evils
(1) situation forces the Δ to make a choice – People v. Unger: Δ was forced to choose between
two admitted evils by the situation arising from actual and threatened homosexual assaults and
fears of reprisal

3. threat not necessarily posed by other individuals


a. could be brought about by nature/situations – State v. Warshow: Δ’s argued that inherent danger of nuclear power
plant (ct ruled that defense failed)
i. in many political situations, Δ will use defense of necessity to gain media attention
(a) prosecutor makes argument to ct that the Δ’s argument will not sustain the necessity defense
(1) judge can then ask to see what Δ has to determine whether Δ has a valid defense of
necessity
4. Basic elements of necessity (per State v. Warshow ct.) (CB 656)
a. must be a situation of emergency arising without fault on the part of the actor concerned
b. this emergency must be so imminent and compelling as to raise a reasonable expectation of harm, either directly to
the actor or upon those he was protecting; Necessity will only justify criminal behavior if the danger intended to
be prevented is imminent.
c. this emergency must present no reasonable opportunity to avoid the injury without doing the criminal act; and
d. the injury impending from the emergency must be of sufficient seriousness to outmeasure the criminal wrong
5. Warshow: CONCURRENCE: (Hill, J.) Each evil must be evaluated to reach an appropriate
conclusion. DISSENT: (Billings, J.) The danger was sufficiently imminent to justify the trespass
of D.

6 Except in self-defense cases, one person cannot kill another to save himself. There is no unqualified justification for self-
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preservation. Queen v Dudley: Cannibal Life boat case.

G. DURESS
1. differs from defensive force because the offense is committed to further rather than to resist the criminal project of the
aggressor (CB 663)
a. duress is an excuse, not justification
i. deflects responsibility for a coerced wrongful act from the perpetrator onto the person who coerced it
even if affirmative defense not available, still can use the different level of mens rea arguments

(a) argument is that fear rendered the actor blameless/undeterrable


(1) duress negates requisite mens rea
ii. available only when no other reasonable opportunity to escape or withdraw from the threatened danger.
(a) Ex. Crawford: D was addicted to cocaine and threatened to commit robberies, burglaries, etc for
drug dealer. D attempted to use duress defense but couldn’t b/c he had opp to escape.
b. traditionally limited by some consideration of proportionality
i. usually fails if Δ’s offense was too great or the threat was insufficient
(a) murder never excused by duress defense
ii. However the defense of compulsion is available for a charge of felony murder
(a) Ex: Hunter- Hitchhiker D was picked up by wild men, they shot a cop then
later kidnapped a person, it was held that D Any limitation to the defense of
duress should be confined to crimes of intentional killings done by another
during the commission of some lesser felony. If D was forced to kidnap under
threat of bodily harm, then he has a defense to the underlying felony murder if
one of the party kills another in the commission of that inherently dangerous
felony.

c. if duress defense successful, then acquitted


i. not guilty of any lesser crime
2. Common Law
a. duress defense required the alleged coercion involve an imminent threat of death or serious bodily harm
i. threat to property or financial well being not excused
b. killing of an innocent never excused even if accused acted in response to immediate threats
3. Model Penal Code § 2.09
a. does not afford duress defense if actor negligently or recklessly placed himself in the situation
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b requires at least a threat to personal safety, not to property


i. no demand that threat be of death or great bodily harm
ii. actor does not have to be the directly imperiled victim
iii. no demand for immediate threat of injury
c. no requirement for immediacy of threat

Look at affirmative defense, lapse of time, change of circumstances can take away or grant an affirmative defense.

H. MENTAL ILLNESS
1. INSANITY – an affirmative defense; necessarily need a mental disease or defect
a. “competence”: legal std. that requires the Δ be able to reason and understand what is going on
i. Δ must be able to assist his counsel at the present
b. “insanity”: refers to mental state exclusively at the commission of the crime
c. insanity defense places preponderance burden on Δ
i. if found insane, then Δ excused from the punishment of the crime
(a) may violate notions of retributive justice to punish those who cannot be held morally blameworthy
(b) whether punishment serves as a deterrence depends on what other persons the one is trying to
influence
d. defense of insanity rests on an internal cause, not external factors (e.g self-defense, necessity, duress)
e. M’Naghten Test (The “Cognition” Test) [lecture notes 11/20/2003]: “it must be proved that, at the time of the
committing of the act, the party accused was labouring under such a defect of reason from disease of the mind, as not
to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what
was wrong.” (CB 698)
i. “incapable of distinguishing right from wrong” refers to a person’s cognitive inability, due to a mental
disease or defect, to distinguish right from wrong as measured by a societal standard of morality, even though
the person may be aware that the conduct in question is criminal” – People v. Serravo (CB699)
ii. requirements:
(a) proof of a disease of the mind
(b) caused a defect of reason (does not KNOW nature and quality of act), or…
(c) such that the Δ lacked the ability at the time of his actions to either:
(1) know the (legal) wrongfulness of his actions; or
(2) understand the (moral) nature and quality of his actions
iii. might be that Δ does not know the nature of his act or not aware that he is doing the act
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(a) premised on idea that if Δ knows nature of his act, then can stop himself
(b) “A person in an extremely psychotic state might be aware that an act is prohibited by law, but due
to the overbearing effect of the psychosis may be utterly without the capacity to comprehend that the
act is inherently immoral.” – People v. Serravo (CB 696)
(1) “Conversely, a person, although mentally ill, has the cognitive capacity to distinguish right
from wrong and is aware that an act is morally wrong, but does not realize that it is illegal,
should nonetheless be held responsible for the act, as ignorance for the law is no excuse” (CB
696)
iii. does not ask whether Δ could control his behavior
§ 4.01(1): Mental disease or f. ALI/MPC Test
Defect Excluding i. broadened question of “knowledge” to whether Δ had “substantial capacity to appreciate the criminality of
Responsibility: his conduct”
ii. added the alternative “volitional question”: whether Δ, even if he could appreciate the criminality of his act,
A person is not responsible for
criminal conduct if at the time of
nevertheless lacked “substantial capacity to conform his conduct to the law”
such conduct as a result of (a) “appreciate” substituted for “know” holds that a sane offender must be emotionally and
mental disease or defect he intellectually aware of the significance of his conduct
lacks substantial capacity either
to appreciate the criminality
(i) demands more from prosecution
[wrongfulness] of his conduct or ii. specifically mentions conduct
to conform his conduct to the (a) conduct is presumed under M’Naghten test.
requirements of law.
g. Quasi-Insanity defenses rely on some mental element/reaction to an outside factor
i. alcohol & other drugs (drugs interact with mental illness)
(a) General Rule: any mental condition that derives from voluntary intoxication, including permanent
psychological damage that mimics the symptoms of insanity, is treated like the short-term effects of
intoxication
(1) does not exonerate Δ except in certain cases where it might negate “specific intent”
ii. Specific disorders (CB 737-744)
(a) Post-Traumatic Stress Disorder
(b) Postpartum Psychosis – women murdering/attempted murder of their infant children
(c) Premenstrual Syndrome
(d) Gambling
(e) Multiple Personality Disorder
h. “Diminished Capacity”
i. refers to cases where a Δ who cannot win on pure NGI claim, benefits through acquittal or mitigation of the
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charge from evidence of mental illness or disorder


ii. merely a rule of evidence
(a) the admission of evidence of mental abnormality to negate mens rea
iii. also seeks to show that he lacked the capacity to form mens rea
iv. mostly used to mitigate crime down to a lower level