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Criminal Attack PDF
Criminal Attack PDF
Criminal Attack
Judicial interpretation of ambiguous statutes should “be A law must be sufficiently explicit to inform those who
biased in favor of the accused,” The Rule of Lenity are subject to it what conduct on their part will render
them liable to its penalties, this is a well recognized
requirement
A person is not guilty of an offense unless his conduct A person must voluntarily commit the crime charged in
includes a voluntary act order to be guilty of the crime.
Section 2.01. Requirement of Voluntary Act; Omission as Basis of Liability (Actus Reus)
1. 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
2. The following are not voluntary acts within the meaning of the Section
a. The omission is expressly made sufficient by the law defining the offense; or
b. A duty to perform the omitted act is otherwise imposed by law
Mens rea refers to the mental state the D must have had Mens rea means “guilty mind, vicious will, immorality
with regard to the social harm, elements set out in the of motive, or simply morally culpable state of mind”
definitions meaning, a D is not guilty of an offense even A person is guilty of a crime if she commits the social
of she has a culpable frame of mind, if she lacks the harm of the offense with any morally blameworthy state
mental state specified in the definition of the crime of mind, it is not significant whether she caused the
social harm intentionally or, instead with some other
blameworthy mental state of mind
Intentionally or knowingly. Any mental state, whether expressed or Transferred intent is a legal doctrine
“With the intent to commit a implied, in the definition of the offense that holds that, when the intention to
felony therein” that relates solely to the conduct and/or harm one individual inadvertently
Have to have a future felony result that constitutes the social harm of causes a second person to be hurt
therein the criminal offenses instead, the perpetrator is still held
The intent to do the Actus Reus responsible.
Intent Examples
Regina v Cunningham Malice requires actual intention to do a particular kind of harm or recklessness as
Gas Meter to whether such harm should occur or not.
People v Conley Intent can be inferred from the surrounding circumstances, the offender’s words,
Wine Bottle the weapon used, and the force of the blow
Knowingly A person acts knowingly if he is aware that it is practically certain that his conduct will
cause a specific result
CAUSATION (213-232)
A person or event cannot be a proximate cause of harm unless she or it is an actual cause, but a person or event
can be an actual cause without being the proximate cause
To prove a proximate cause the victim’s injury must be a direct and natural result of the D’s actions
The law will generally not treat a very minor but for cause of harm legally responsible
De Minimis Causes for the result when there is a for more substantial cause of whom responsibility can be
attached
No matter how unforeseeable an omission may be, this “negative act” will not cut off
Omissions liability of an earlier “positive act”
“Nothing does not supersede something”
Even though the defendant has created a dangerous situation, she is not responsible for
Apparent Safety
the ensuing result if it can be determined that the dangerous siuation created by the
Doctrine
defendant is over—that the victim, once at risk, has reached apparent safety.
Free, Deliberate, In general, a defendant is not the proximate cause of a result if a free, deliberate, and
Informed Human informed act of another human being intervenes.
Intervention
A D may not be held guilty of a crime in which his conduct is the cause-in-fact of injury
People v Rideout
to the victim but is not the proximate cause, since a superseding cause intervened to
(Apparent Safety
cause the victim’s injury, a cause which may even be the victim’s own choice to risk his
Doctrine)
safety
Velazquez v State The D’s participation in the race was not a proximate cause of the victim’s death because
(Free and Deliberate in effect he killed himself by his own volitional reckless driving, and consequently it
Human Intervention) would be unjust to hold the D criminally responsible for this death
Dwelling House
Wood v State (1939) A house that no one lives in, or ever lived in, in this case, is not a dwelling
State v Neff (1940) Burglary could be committed on uninhabited structures, provided they were “parcel of”
land within the same common fence as the mansion house, though not contiguous to it
This requires the place be someones place of habitation
Breaking
Davis v Common The entrance must have been contrary to the will of the occupier of the house
Wealth (1922)
Nichols v State (1887) Any unlawful entry of a dwelling house or other building with intent to commit felony,
shall be deemed a breaking and entering of such dwelling house or other building,
within the meaning of the last fourth section
Daniels v State (1886) If dwelling can extend to an outhouse, it can surely extend to apartments within a house
Of Another
People v Gauze (1975) The cases have preserved the common law principle that in order for burglary to occur,
the entry must be without consent
Stowell v People There is no burglary if a person has right to enter, although he may intend to commit a
(1939) felony
This requires that the criminal cannot have habitation or occupancy rights
Entering
US v Phillips (1979) In this case the receptacle is attached to the outside wall of the hotel building, which is
connected by conveyor to inside the bank, consituting an entering
Walker v State (1879) When the instrument is employed not only to break, but to effect the only entry
contemplated, and necessary to the consummation of the criminal intent, whit it is
intruded within the house, breaking it, effecting an entry
Body Any part of the human body coming inside the plane of the dwelling house
Instrument If the instrument is capable of completing the felonious intent of the criminal actor, the
its intrusion would constitute “entering”
Nighttime
Gary v State (1943) Nighttime means one hour after the sun sets and one hour before it rises
A period between sunset and sunrise during which there is not enough daylight to
discern a man’s face
Common Law After Sunset, Before Sunrise, when its too dark to see a persons face
1. A person is guilty of criminal homicide if he purposely, knowingly, recklessly or negligently causes the death of
another human being
2. Criminal homicide is murder, manslaughter or negligent homicide
(1) Except as provided in Section 210.3(l)(b), criminal homicide constitutes murder when:
(b) it is committed recklessly under circumstances manifesting extreme indifference to the value of human
life. Such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the
commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape
or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape
INTENTIONAL KILLINGS
Intentional Killing (First Degree Murder) Second Degree Murder (Depraved Heart)
Any intentional murder that is willful and Any intentional murder with malice aforethought, but is not
premeditated with malice aforethought, or during premeditated or planned.
commission of a BAARK crime
Cooling Off Time The provocation defense is unavailable to a D who kills the victim after he has
a reasonable opportunity for the passion to cool
Joshua Dressler- Lawful conduct, no matter how provocative, is never adequate provocation
Rethinking Heat of Passion
a. It is committed recklessly; or
b. A homicide which would otherwise be murder is committed under the influence of extreme mental or
emotional disturbance for which there is a reasonable explanation or excuse. The reasonableness of such
shall be determined from the viewpoint of a person in the actor’s situation under the circumstances as he
believes them to be
People v Casassa (1980)
1. The court found that D killed the victim under extreme emotional disturbance
2. The court found the reasonableness of the disturbance, as peculiar to the D, and therefore unworthy of
mitigation
Extreme Recklessness
Implied Malice No considerable provocation appears and where all the circumstances of the killing show
an abandoned and malignant heart
The homicide of a human being without intent, either expressed or implied, but where the person's death occurs as
a result of the negligent or reckless actions of the defendant. (Negligent Homicide)
Negligennce Recklessness
(1) Except as provided in Section 210.3(l)(b), criminal homicide constitutes murder when:
(b) it is committed recklessly under circumstances manifesting extreme indifference to the value of human
life. Such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the
commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape
or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape.
An unintended homicide that occurs during the commission of an unlawful act not amounting to a felony
constitutes common law involuntary manslaughter
In effect the D’s intentional commission of a misdemeanor supplies the culpability required to impose liability
Rape
Common Law
1. Sexual Intercourse
2. With a woman, not the D’s wife
3. Without Consent
4. By Force or Threat of Force
(1) Rape. A male who has sexual intercourse with a female not his wife is guilty of rape if:
(a) he compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain
or kidnapping, to be inflicted on anyone; or
(b) he has substantially impaired her power to appraise or control her conduct by administering or
employing without her knowledge drugs, intoxicants or other means for the purpose of preventing
resistance; or (or by rendering her unable to consent.)
(c) the female is unconscious; or
(d) the female is less than 10 years old.
Rape Cases
State v Alston Consent by the victim is a complete defense, Generalized fear of the D is not enough to
The D and the victim but consent which is induced by fear of render consent to sexual intercourse
had been involved in violence is void and is no legal consent alleged void, but rather, the D must use
a consensual sexual force or threats to overcome the will of
relationship. the victim to resist the sexual intercourse.
State v Rusk Force is an essential element of the crime and The reasonableness of a rape victim’s
to justify a conviction, the evidence must apprehension is a question of fact for the
warrant a conclusion either that the victim jury to determine.
resisted and her resistance was overcome by
force or that she was prevented from resisting
by threats to her safety
Commonwealth v The victim never physically resisted the The “forcible compulsion” required to
Berkowitz Defendant, but she did repeatedly verbally sustain a conviction for rape in
College Case protest. Pennsylvania must be more than verbal
resistance, i.e. threat or actual force.
State of New Jersey Physical force is satisfied when a D applies Essentially replaced “force” with “freely
in the Interest of any amount of force against another person in given permission,” completely changing
M.T.S. the absence of what a reasonable person the statute
would believe to be affirmative freely given
permission to the act of sexual penetration
Larceny
1. Movable Property. A person is guilty of theft if he unlawfully takes, or exercises unlawful control over,
movable property of another with purpose to deprive him thereof
2. Immovable Property. A person is guilty of theft if he unlawfully transfers immovable property of another or any
interest therein with purpose to benefit himself or another not entitled thereto
Larceny Examples
Tresspassory Rex v Chisser Physical possession of a good obtained through larceny does not vest in the
possessor a legal right to that good.
Although D had physical possession through his taking and carrying away of
the goods, he never had constructive possession.
US v Mafnas “A bailment situation is said to arise where an owner, while retaining title,
delivers personality to another for some particular purpose upon an express or
implied contract.”
Under common law, larceny is committed when the bailee carrier “breaks
bulk,” when the bale is broken the contents taken
Topolewski v Where the owner of property, by himself or his agent, actually or
State constructively, aids in the commission of the offense, as intended by the
wrongdoer, by performing or rendering unnecessary some act in the
transaction essential to the offense, the would-be criminal is not guilty of all of
the elements of the offense.
Rex v Pear If the intention at the time of bargaining and communication with the legal
owner is not the true use to which the property will be made once in the hands
of the D, that D must be found guilty of the crime.
Movable Lund v At common law, labor or services could be be the subject of the crime of false
Property Commonwealt pretense because neither time nor services may be taken and carried away
h
Mens Rea
People v In order to be found guilty of larceny, an accused must have intended to
Brown permanently deprive the owner of his property.
People v Davis larceny may still be found, absent intent to permanently deprive, when:
1.The D intends to sell the property back to its owner;
2.The D intends to claim a reward for finding the property and
3.The D intends to return the property to its owner for a refund.
Common Law
1.Intent to steal
2.Knowledge of the owner, or reason to believe owner could be found
(Due Diligence is not Required)
Brooks v State
A person who comes into control of property of another that he knows to have been lost, mislaid, or delivered
under a mistake as to the nature or amount of the property or the identity of the recipient is guilty of theft if, with
purpose to deprive the owner thereof, he fails to take reasonable measures to restore the property to a person
entitled to have it.
Embezzlement
Common Law
False Pretenses
Common Law
Allow punishment of an actor even The basis of the attempt crimes is not to deter but to allow for police
though he has not consumated the officers to intervene before the crime is consummated
crime that is the object of his efforts
MPC approach prohibits an act that constitutes a Attempt is treated as a lesser offense than the
substantial step by listing several non exclusive examples intended crime
that have application to numerous completed crimes
Attempt
Common Law
Merger The law of merger prevents the actor from being convicted of both and attempted and a completed
offense
Attempt Examples
People v Gentry Must the Defendant • The crime of attempt requires intent to do an act
specifically intend to constituting a substantial step toward committing a crime
commit the crime and a specific intent to commit the crime attempted.
attempted • Intent to kill is the only intent acceptable to convict for
attempted murder
Bruce v State Whether attempted felony Because a conviction for felony murder requires no
murder is a crime in this specific intent to kill, it follows that because a criminal
state attempt is a specific attempt intent crime, attempted felony
murder is not a crime
Attempt Examples
Complete When the actor does every action necessary to bring about the prohibited result but
does not succeed in doing so
Incomplete When the actor does some action toward the commission of the crime, but does not
do every action necessary
US v Coplon “A neat doctrine by which to test when a person, intending to commit a crim which he
fails to carry out, has “attempted” to commit it, would be that he has done all that it is
within his power to do, but has been prevented by intervention from outside; in short,
that he has passed beyond any locus poenitentiae.”
Mims v US “Preparation alone is not enough, there must be some appreciable fragment of the
crime committed, it must be in such progress that it will be consummated unless
interrupted by circumstances independent of the will of the attempter, and the act
must not be equivocal in nature”
The overt act required for an attempt must be proximate to the completed crime, or directly tending toward the
completion of the crime, or must amount to the commencement of the consummation
A variation of the proximity tests which emphasizes any indispensable aspect of the criminal endeavor over which
the actor has not yet acquired control
The conduct constitutes an attempt if, in the ordinary and natural course of events, without interruption from an
outside source, it will result in the crime intended
If he’s gone so far that it is unlikely that he will voluntarily abandon the endeavor
An attempt is committed when the actor’s conduct manifests an intent to commit a crime
If there is only one explanation for his actions
1. Definition fo Attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability
otherwise required for commission of the crime he;
a. Purposely engages in conduct that would constitute the crime if the attendant circumstances were as he
believes them to be; or
b. When causing a particular result is an element of the crime, does or omits to do anything with the purpose
of causing or with the belief that it will cause such result without further conduct on his part; or
c. Purposely does or omits to do anything which, under the circumstances as he believes them to be, is an
act or omission constituting a substantial step in a course of conduct planned to culminate in his
commission of the crime
2. Conduct That May Be Held Substantial Step Under Subsection (1)(c)
a. Lying in wait, searching for or following the contemplated victim of the crime
b. Enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its
commission
c. Reconnoitering the place contemplated for the commission of the crime
d. Unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be
committed
e. Possession of materials to be employed in the commission of the crime, which are specially designed for
such unlawful use or which can serve no lawful purpose of the actor under the circumstances
f. Possession, collection or fabrication of materials to be employed in the commission of the crime, at or
near the place contemplated for its commission, where such possession serves no lawful purpose of the
actor under the circumstances
g. Soliciting an innocent agent to engage in conduct constituting an element of the crime
Commonwealth v Whether the D’s acts An overt act, although coupled with intent, • Mims v US
Peaslee come near enough to the commonly is not punishable if further acts • Dangerous
D rigged a accomplishment of the acts are contemplated as needful, is expressed Proximity
building with substantive offense to in the familiar rule that preparation is not an
combustibles be punishable attempt
People v Rizzo Does this constitute the Only the acts so near the accomplishment of a Dangerous
The person they crime of an attempt to crime that in all reasonable probability the Proximity
were seeking to commit robbery in the crime itself would have been committed but
rob was never first degree for timely interference.
spotted, nor in
their vicinity
People v Miller Do the Defendant’s Where the defendant’s actions are equivocal, The Res Ipsa
D, under the actions constitute the defendant cannot be guilty of attempt. Loquitur or
influence of attempted murder Unequivocality
alcohol, Test
threatened to kill Equivocal: open to more than one
the victim at a hop interpretation; ambiguous
ranch
State v Reeves Whether the D’s actions When an actor possesses materials to be used Tenn. Version of
Two 12 year old in the case constitute a in the commission of a crime, at or near the MPC Attempt
girls decided to “substantial step” scene of the crime, and where the possession § 5.01(2)(f)
kill their toward the commission of those materials can serve no lawful “Substantial Step”
homeroom teacher of second degree purpose of the actor under the circumstances,
murder under the new the jury is entitled, but not required, to find
statute that the actor has taken a “substantial step”
toward the commission of the crime is such
actions is strongly corroborative of the actor’s
overall criminal purpose
Special Defenses
Legal Impossibility
• Pure
1. When a D behaves in what he believes is criminal, but Buying alcohol when your of age,
Yes, always
it is actually not illegal but don’t think you are in that state
2. Mistake about the Law
• Hybrid
People v Thousands Possibly at
1. Mistake about a fact- legal status or an attendant
Defense not Allowed Common Law
circumstance
The impossibility defense is rejected, liability being focused upon the circumstances
MPC 5.01 as the actor “believes them to be” rather than as they actually exist
Special Defenses
Voluntary Abandonment Not a defense in most jurisdictions (Modern Trend is shifting to include it as a
of Intended Crime defense)
Renunciation of Criminal Purpose. When the actor's conduct would otherwise constitute an attempt under
Subsection (1)(b) or (1)(c) of this Section, it is an affirmative defense that he abandoned his effort to commit the
crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary
renunciation of his criminal purpose. The establishment of such defense does not, however, affect the liability of
an accomplice who did not join in such abandonment or prevention.
Also doesn’t allow a defense for involuntary abandonment
Solicitation
Common Law
Merger The offense of solicitation merges into the crime solicited if the latter offense is committed
or attempted by the solicited party
(1) Definition of Solicitation. A person is guilty of solicitation to commit a crime if with the purpose of promoting
or facilitating its commission he commands, encourages or requests another person to engage in specific conduct
that would constitute such crime or an attempt to commit such crime or would establish his complicity in its
commission or attempted commission.
(2) Uncommunicated Solicitation. It is immaterial under Subsection (1) of this Section that the actor fails to
communicate with the person he solicits to commit a crime if his conduct was designed to effect such
communication.
Conspiracy
Common Law
The crime is complete upon formation of the agreement, it is not necessary to establish any overt act in
furtherance of the conspiracy as a component of the crime
Conspiracy is a specific intent crime requiring an intent to agree or conspire, and a further intent to commit the
target crime
Pinkerton Makes a conspirator criminally liable for the substantive offenses committed by a co-
Liability conspirator when they are in
• Furtherance
• Within scope
• Reasonably foreseeable
(1) Definition of Conspiracy. A person is guilty of conspiracy with another person or persons to commit a crime if
with the purpose of promoting or facilitating its commission he:
(a) agrees with such other person or persons that they or one or more of them will engage in conduct that
constitutes such crime or an attempt or solicitation to commit such crime; or
(5) Overt Act. No person may be convicted of conspiracy to commit a crime, other than a felony of the first or
second degree, unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by
him or by a person with whom he conspired.
Conspiracy Examples
People v Carter Twofold specific intent is required The crime is complete upon
• Intent to combine with others formation of the agreement, it is
• Intent to accomplish the illegal objective not necessary to establish any
overt act in furtherance of the
conspiracy as a component of the
crime
Pinkerton v US So long as the partnership in crime continues, the The “overt act of one partner may
Indicted for violations of partners act for each other in carrying it forward be the act of all without any new
the Internal Revenue agreement specially directed to
Code that act”
In furtherance, within scope,
reasonably foreseeable
People v Swain A conviction of conspiracy to commit murder Conspiracy is a specific intent
The Defendants were requires a finding of intent to kill, and cannot be crime requiring an intent to agree
each convicted of based on a theory of implied malice or conspire, and a further intent to
conspiracy to commit Mens Rea not satisfied commit the target crime
murder and other crimes,
stemming from the drive-
by shooting death of a
15-year-old boy.
Commonwealth v Azim Relevant circumstances A rational factfinder could find,
D was the driver, with Knowledge of the commission of the crime beyond a reasonable doubt, that
two other person in the Presence at the scene of the crime appellant conspired with James
car, who committed Participation in the object of the conspiracy and Robinson to commit assault
robbery, as he sat in the Actus Reus satisfied and battery
car Once conspiracy is established
and upheld, a member of the
conspiracy is also guilty of the
criminal acts of his co
conspirators
Commonwealth v Cook Proof of a conspiracy may rest entirely on Furthermore, neither association
The victim, a 17 year old circumstantial evidence with a criminal nor knowledge of
girl went to visit some The fact that a defendant may have aided and an illegal activity constitute proof
friends and was abetted a crime does not establish conspiracy, of participation in a conspiracy
subsequently raped particularly where the evidence shows that prior
planning was not an inherent facet of the crime.
Actus Reus not satisfied
Principle in the First Degree Actually commits a crime, either by his own hand, or by an innocent
human agent
Principle in the Second Degree Aided, counseled, commanded or encouraged the commission thereof in
his presence, either actual or constructive
Accessory Before the Fact Aided, counseled, commanded or encouraged, the commission thereof,
without having been present either actually or constructively at the moment
of the perpetration
All guilty of the underlying crime
Accessory After the Fact With knowledge of the other’s guilt, renders assistance to a felon in the
effort to hinder his detection, arrest, trial or punishment
Guilty of Obstruction of Justice MPC §242.3 Hindering Apprehension or Prosecution
Aiding a Felon The MPC Equivalent
1. A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for
which he is legally accountable, or both
2. A person is legally accountable for the conduct of another person when:
a. Acting with the kind of culpability that is sufficient for the commission of the offense, he causes an
innocent or irresponsible person to engage in such conduct, or
b. He is made accountable for the conduct of such other person by the Code or by the law defining the
offense
c. He is an accomplice of such other person in the commission of the offense
3. A person is an accomplice of another person in the commission of an offense if
State v Hoselton A lookout is one who is by An aider and abettor, or principal in the
The D stood “look out” prearrangement, keeping watch to avoid second degree, must in some sort
interception or detection or to provide associate himself with the venture, that
warning during the perpetration of the he participate in it as something that he
crimes and thereby participating in the wishes to bring about
offenses charged
Actus Reus Mere presence, or even prior knowledge, Remaining passive while a crime is
State v V.T does not make one an accomplice, to a being committed, and being friends with
D was charged with two counts of crime absent evidence showing the D the wrongdoer, is not sufficient evidence
theft of a firearm and one count of advised, instigated, encouraged, or assisted of being an accomplice and does not
theft, relating to the camcorder in perpetration of the crime incur liability
Actus Reus His payment and presence acts as Aiding and abetting can be found
Wilcox v Jeffery encouragement for Hawkins through the mere encouragement of
Charged with aiding and abetting criminal activity.
Hawkins in contravention of the Alien
Actus Reus Because the D helped come up with the Because D corroborated in the story he’s
State v Helmenstein story to tell police he could be an helping/aiding in the success of the
They broke into the store and returned accomplice crime
to the car with the stolen goods
Actus Reus The statute in this state requires that the The cop never intended on committing
People v Genoa crime be committed in order to convict a the crime so the D couldn’t be convicted
Giving money to a cop to buy and sell person as an accomplice This wouldn’t fly under the MPC
cocaine
Distinguishing Direct From Mens Rea One who affects a criminal act through
Accomplice Liability • Satisfied; he intended to for the result an innocent or unwitting agent is a
Bailey v Commonwealth Actus reus principal in the first degree.
Radio Argument • Satisfied through the innocent agent MPC 2.06(2)(a)
Causation
• Actual; satisfied
• Proximate; an intervening act which is
reasonably foreseeable cannot be relied
upon as breaking the chain of causal
connection between an original act of
negligence and subsequent injury
Distinguishing Liabilities
Accomplice A person is guilty of a crime through accomplice liability when she performs some act
Liability that aids in the criminal act
Direct Liability Use of an innocent agent to accomplish the criminal objective is a method of establishing
direct liability not accomplice liability
Vicarious Liability A person is vicariously liable based on statute or relationship- No act is required
Consist of instances in which, because of the conditions that are the basis for the “defense,” all elements of the
offense charged cannot be proven
The negation of an element by the definition of the offense
Offense Modification
While the actor has apparently satisfied all elements of the offense charged, he has not in fact caused the harm or
evil sought to be prevented by the statute defining the offense
Justifications
The harm caused by the justified behavior remains a legally recognized harm which is to be avoided whenever
possible
Under special justifying circumstances, that harm is outweighed by the need to avoid and even greater harm or to
further a greater societal interest
Self Defense
“A justifications negates the social harm of an offense”
Excuses
Admit that the deed may be wrong, but excuse the actor because conditions suggest that the actor is not
responsible for his deed
An excuse negates the moral blameworthiness of the actor for causing harm
Non-Exculpatory Public Policy Defenses
Statute of limitations, diplomatic immunity, judicial, legislative and executive immunities, and incompetence
Not based on culpability, but public policy
Triggering Conditions
1. Use of Force Justifiable for Protection of the Person. Subject to the provisions of this Section and of Section
3.09, the use of force upon or toward another person is justifiable when the actor believes that such force is
immediately necessary for the purpose of protecting himself against the use of unlawful force by such other
person on the present occasion.
2. Limitations on Justifying Necessity for Use of Force
b.The use of deadly force is not justifiable under this Section unless the actor believes that such force is
necessary to protect himself against death, serious bodily harm, kidnapping or sexual intercourse
compelled by force or threatnor is it justifiable if
I. the actor, with the purpose of causing death or serious bodily harm, provoked the use of force against
himself in the same encounter; or
II. the actor knows that he can avoid the necessity of using such force with complete safety by retreating
If the actor was reckless in his belief that deadly force If the actor was negligent in her belief that deadly force
was needed, then he may be prosecuted for was needed then she may be prosecuted for negligent
manslaughter homicide
Clean Hands- Not If the actor is responsible for starting the deadly encounter or for escalating a non-deadly
the Initial encounter into a deadly one, then the perfect right of self defense is not available
Aggressor However, an actor who was the initial aggressor, but withdraws in good faith and clearly
communicates that to the other person may re-acquire the perfect right of self defense
United States v The defender must have believed that he was An affirmative unlawful act reasonably
Peterson in imminent peril of death or serious bodily calculated to produce an affray
Wipers harm, and that his response was necessary to foreboding injurious or fatal
save himself therefrom consequences is an aggression which,
unless renounced, nullifies the right of
homicidal self defense
Good Faith First the D must hold the belief in the need to use deadly force in good fiath
Reasonable Belief -The subjective standard
Requirement Second, a reasonable person in D’s situation would also entertain that belief
- the objective standard
People v Goetz New york adopted the MPC but inserted the The test for self defense in new york
Subway word “reasonably” before “believes” needs to be considered objectively by a
jury
Subjectivization of Some Courts have moved in the direction of subjectivizing the normally objective
the Reasonable reasonable person standard by considering such characteristics as gender or age
Person
State v Wanrow The court asserts that other considerations need The trial court asserted an objective
Child Molester killed to be posited standard of reasonableness, which
• Circumstances/situation precluded the defense, relying on an
• Physical Attributes masculine standard, violating D’s Equal
• Prior Experiences Protection rights
• Relevant Knowledge The reasonableness of a person’s
actions in self-defense must be
considered in the light of her own
perceptions of the situation
Subjective Standard
“Battered Women” “The right to kill in self-defense is based on the A killing by a woman suffering from
State v Norman [II] necessity, real or reasonably apparent, of “battered wife syndrome” cannot be
killing an unlawful aggressor to save oneself done in self-defense unless death or
from imminent death or great bodily injury at serious bodily harm is imminent.
his hands.” Objective Standard
Defense of Others Under the defense of others concept, a person A person may kill a person threatening
People v Kurr can essentially step into the shoes of one being another if he reasonably believes that
Coke head/pregnant D threatened with death or serious bodily injury that person is in imminent danger of
and take the same action that that person is death or serious bodily harm
entitled to take under the law
The actor’s belief in the need to use The actor was the initial aggressor The Actor used excessive force
deadly force was unreasonable in the deal confrontation
Therefore, the criminal actor would be guilty of manslaughter rather than murder under the common law
State v Boyett Defense of habitation applies where the D uses reasonable No evidence of a forced entry to
Shoots fiancé’s force to exclude someone he or she reasonably believes is support the defense of habitation
ex girls friend trespassing in, or about to trespass in, his or her home defense
Protecting a defendant's right to prevent forced entry D had opened the door for the V
necessitates that the defense apply when an intruder is
outside the home but endeavoring to enter it.
Duress
Common Law
1.It is an affirmative defense that the actor engaged in the conduct charged to constitute an offense because he was
coerced to do so by the use of, or a threat to use
1.Unlawful force against his person or the person of another
2.That a person of reasonable firmness in his situation would have been unable to resist
2. Defense unavailable if actor recklessly or negligently placed himself in the situation
Intoxication (584-592)
Involuntary Intoxication
Pathological Intoxication grossly excessive in degree, given the amount of the intoxicant, to which
Intoxication the actor does not know he is susceptible
Involuntary When intoxication results from an innocent mistake by the D about the character of the
Intoxication substance taken, as when another person has tricked him into taking the liquor or drugs
Unexpected When the D is unexpectantly intoxicated due to the ingestion of a medically prescribed
Intoxication drug
Examples US v Veach
Threatened a Cop
Holding Intoxication, whether voluntary or involuntary, may preclude the formation of specific
intent and thus serve to negate an essential element of certain crimes
This Rationale is being abandoned by most states, not allowing a defense for voluntary
intoxication
(1) Except as provided in Subsection (4) of this Section, intoxication of the actor is not a defense unless it
negatives an element of the offense. (General/Specific)
(2) When recklessness establishes an element of the offense, if the actor, due to self-induced intoxication, is
unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial.
(3) Intoxication does not, in itself, constitute mental disease within the meaning of Section 4.01.
Mistake of Fact
Common Law For specific intent crimes, a reasonable mistake of fact is a defense
People v Navarro “If no specific intent or other special mental element is If a person has a good faith
Wooden Beams required for guilt of the offense charged a mistake of fact belief that he has a right to
will not be recognized as an excuse unless it was based certain property, he is not
upon reasonable grounds” guilty of larceny, even if the
belief is unreasonable.
The Moral A Reasonable mistake of fact ordinarily exculpates a defendant prosecuted for a general
Wrong Doctrine intent crime
Works the same as the Moral Wrong Doctrine except the term legal wrong is substituted for
immoral
The Legal Wrong If a D’s conduct, based on the facts as he believes them to be, constitutes a crime, not
Doctrine simply an immorality, he may be convicted of the more serious offense that his conduct
establishes
2. The ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to
establish a material element of the offense
a. The law provides that the state of mind established by such ignorance or mistake constitutes a defense
3. A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based
upon such conduct when
a. The statute or other enactment defining the offense is not know to the actor and has not been published or
otherwise reasonably made available prior to the conduct alleged
b. The acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid,
erroneous , contained in
i. a statute or other enactment
ii. A judicial decision, opinion or judgement
iii. an administrative order or grant of permission
iv. An official interpretation of the public officer or body charged by law with responsibility for the
interpretation, administration or enforcement of the law defining the offense
4. The D must prove a defense arising under subsection (3) by a preponderance of the evidence
Specific Intent Good Faith Mistake Good Faith and Other Law
INSANITY (597-611)
Insanity Tests
Under the Irresistible Impulse Test, the M’Naghten standards are applied and 1.Mental Disease or Defect
then the relevant inquiry turns to: even if the defendant knew right from wrong, 2.Unable to control conduct
he is insane if (1) he is unable to control his behavior or (2) he has lost the • volitional
power to choose
Under this test, “an accused is not criminally responsible if his unlawful act was 1.Unlawful act was the product
the product of mental disease or mental defect” of Mental Disease or Defect
1.When as a result of mental disease or defect, the D lacked substantial capacity to appreciate the criminality of
his conduct
2.When, as a result of mental disease or defect, the D lacked substantial capacity to conform his conduct to the
requirement of the law
• volitional
Our instruction to the jury should provide that a D is not responsible if at the time of his unlawful conduct his
mental or emotional processes were impaired to such an extent that he cannot justly be held responsible for his act
Common Law
Battery
Assault
Elements Threat of bodily harm, with a present ability to cause the harm.
Actus Reus An unlawful attempt, coupled with a present ability, to commit a violent injury on the person of
another
a. attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or
recklessly under circumstances manifesting extreme indifference to the value of human life; or
b. attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon.
Aggravated assault under section (a) is categorized as a felony of the second degree whereas assault under (b)
qualifies as a felony of the third degree.
Assault Examples
State v Jimerson An assault or an assault and battery not D is entitled to instructions where evidence was
Off duty Cop and amounting to first, second, or third provided which would justify a reasonable person
a car degree shall be guilty of simple assault. in concluding that the lesser included offense had
been committed
United States v Since an attempted battery is an assault, Assault is an offer or attempt with force and
Bell it is irrelevant that the victim is violence, to do a corporal hurt to another, every
Elderly rape case incapable of forming a reasonable battery includes an assault.
apprehension
US v Jacobs Whether the evidence is sufficient to Another established rule is that when an actual
Eviction and butt support finding of assault resulting in battery is committed it includes assault
shooting serious bodily injury, when victim
wasn’t immediately aware of the battery
State v Capwell State statute requires “physical injury” Because D took a “substantial step” toward the
Gas can for conviction. While V was hit by D, he commission of the crime he can be charged with
didn’t experience what the court “attempted Assault.”
considers an “injury.”