Linda Barrett.

Criminal Law Outline

Prof. Thomas, Fall 1999

1. INTRODUCTION: SETTING THE STAGE

A. Nature, Sources, and Limits of the Criminal Law
B. Criminal Law in a Procedural Context: Pre-Trial
C. Criminal Law in a Procedural Context: Trial by Jury
D. Proof of Guilt at Trial
1. “Proof Beyond a Reasonable Doubt”
In re Winship set out the reasonable doubt standard.
2. Enforcing the Presumption of Innocence

Owens v. State (1992)

Driver of a parked pickup truck found intoxicated while sitting in a driveway and convicted of driving while intoxicated.
Issue: Whether there was sufficient evidence to convict of driving while intoxicated.
Rule: There must be sufficient evidence for a jury to find the defendant guilty beyond a reasonable doubt.

E. Jury Nullification
When the jury ignores the facts and the judge’s instructions on the law and acquit the defendant (because they are
compassionate?).

State v. Ragland (1986)

Defendant was convicted of armed robbery and possession of a weapon by a convicted felon. The judge instructed the jury that
they must find him guilty of the possession charge.
Issue: Whether the judge’s instructions interfered with the jury’s nullification power.
Rule: Jury nullification is an unfortunate but unavoidable power that should not be advertised and to the extent constitutionally
permissible, limited.

2. PRINCIPLES OF PUNISHMENT
A Theories of Punishment
1. In General
Retributive – punishment is justified because people deserve it.
Utilitarian – justification lies in the useful purposes that punishment serves

2. Utilitarian Justifications
This is the principle, which approves or disapproves of every action whatsoever, according to the tendency which it
appears to promote or to oppose a party’s happiness.
1. General deterrence
2. Individual deterrence
3. Incapacitation
4. Reform

3. Retributive Justifications
Kant –
F. The Penal Theories in Action
1. Who Should be Punished

The Queen v. Dudley and Stephens (1884)

Four men were cast away on an open boat in the sea, Stephens, a teenage boy, was killed and eaten by the others in order for
their survival. They were rescued 4 days later.
Issue: Whether defendants should be found guilty of murder based on the circumstances.
Rule: The defendants were found guilty of murder b/c the court felt that this should be punished despite the circumstances.

3. MODERN ROLE OF CRIMINAL STATUTES

A. Principle of Legality
1. The Requirement of Previously Defined Conduct
 Commonwealth v. Mochan (1955)
Defendant was making obscene phone calls to married woman.
Issue: Whether this crime can be punished under the common law and do the courts have the authority to punish crimes under
the common law when the crime is proscribed by statute.
Rule: The common law is sufficiently broad to punish as a misdemeanor, even absent precedent, any act which directly injures
the public morality.

Keeler v. Superior Court (1970)

Estranged husband beat pregnant wife and caused death of unborn child.
Issue: Whether the intentional killing of a fetus with a 75-96% chance of survival if was born immediately, is murder under
California statute and does the court have the power to include fetus into the definition.
Rule: It is the policy of the state to construe a penal statute as favorably to the defendant as its language and the circumstances
of its application may reasonably permit. (Not murder here.)

2. The Values of Statutory Clarity

In re Banks (1978)
Defendant was charged with violating the peeping tom statute.
Issue: Whether this statute is unconstitutionally vague.
Rule: Criminal statutes must be strictly construed – the intent of the legislature controls the interpretation of the statute by the
courts.

B. Statutory Interpretation

United States v. Foster (1998)

Defendant was arrested on drug possession charges and police found a 9mm semi in back of pickup in bag.
Issue: Whether defendant was “carrying” a gun within the meaning of 18 U.S.C. § 924(c)(1) when he was pulled over. Gun
was not within his reach.
Rule: In order to convict defendant must have transported the gun on or about his person so that it would be immediately
available for use by the defendant.

4. ACTUS REUS
A. Voluntary Act

Martin v. State (1944)

Defendant was arrested in his home and the police dragged him outside and arrested him for public intoxication.
Issue: Whether defendant voluntarily left his home thus having the actus reus of the crime for which he was charged.
Rule: In order to be found guilty of a crime, one must have the actus reus. D did not voluntarily leave his home; the police
took him out.

State v. Utter (1971)

Defendant, a combat infantryman, killed his son after drinking an excessive amount of alcohol.
Issue: Whether defendant did not commit the act of homicide because he claims he involuntarily reacted b/c of a conditioned
response.
Rule: If a person is in fact unconscious at the time he commits an act, which would otherwise be criminal, he is not responsible
therefore. The absence of consciousness not only precludes the existence of any specific mental state, but also excludes the
possibility of a voluntary act without which there can be no criminal liability. However, when drugs or alcohol voluntarily
induces the state of unconsciousness, then it’s not a complete defense.

Attendant circumstance – part of the actus reus – a condition which must be present, in conjunction with the prohibited conduct
or result, in order to constitute the crime.

B. Omissions (“Negative Acts”)

1. General Principles

People v. Beardsley (1907)

Defendant was having an affair with morphine taking woman who overdosed in his presence and he did not take action to
prevent her death.
Issue: Whether defendant was under a legal duty to deceased to take all reasonable and proper efforts to save her life.
Rule: If a person who sustains to another the legal relation of protector, as husband to wife, parent to child, etc., knowing such
person to be in peril of life, willfully or negligently fails to make such reasonable and proper efforts to rescue him without
jeopardizing own life, he is guilty of manslaughter at least, if the person dies.

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 Four situations where a failure to act may breach a legal duty
• Where statute imposes duty
• Certain status relationships (parent – child, husband – wife)
• Contractual duties (lifeguard)
• Voluntarily assumed care of another that precludes them from getting help from someone else

2. Distinguishing Acts from Omissions

Barber v. Superior Court (1983)

Doctors were charged with murder for taking brain dead patient off life support and IV.
Issue: Whether the doctors committed murder by a failure to act (to continue life support and IV) b/c they owed patient a legal
duty to continue care.
Rule: The doctor’s omission to continue treatment under the circumstances, though intentional and with knowledge that the
patient would die, was not an unlawful failure to perform a legal duty.

5. MENS REA
A. Nature of “Mens Rea”

United States v. Cordoba-Hincapie (1993)

Mens rea is the morally culpable state of mind that is a necessary element of the crime.

Regina v. Cunningham (1957)

Defendant stole a gas tank from a home and failed to turn off the gas valve and the victim of the home died from toxic
poisoning.
Issue: Whether defendant acted maliciously with reference to the harm caused to the victim when he removed the gas tank and
failed to turn off the valve.
Rule: Malice must be taken not in the old vague sense of wickedness in general, but as requiring either (i) an actual intention to
do the particular kind of harm that in fact was done, or (ii) recklessness as to whether such harm should occur or not. It is
neither limited to, nor does it indeed require, any ill will towards the person injured.

B. General Issues in Proving Culpability

1. “Intent” – includes not only results that are the conscious object of the actor but also those that the actor knows are
virtually certain to occur.

People v. Conley (1989)

Drunken kids at a high school party. Defendant struck victim in the face w/ wine bottle causing permanent injury to victim’s
lip.
Issue: Whether the defendant caused, beyond a reasonable doubt, permanent disability to the victim and whether he intended to
cause the injury.
Rule: Aggravated battery is intentionally or knowingly causing great bodily harm or permanent disfigurement. As for
defendant’s intention – that the result of the action will be accomplished by doing the act and that d was sufficiently aware the
harm was practically certain to be caused.

Transferred intent – assigns criminal liability to a defendant who attempts to kill one person but accidentally kills another
instead. Thomas prefers that we argue the actual crime instead of transferred intent.

General intent – if no particular mental state is set out in the definition of the crime the prosecutor need only prove that the
actus reus of the offense was performed in a morally blameworthy manner.

Specific intent – is any offense in which a particular mental state is set out expressly in the definition of the crime.

2. The Model Penal Code Approach

Section 2.02 of the MPC sets our four levels of mens rea, purposely, knowingly, recklessly and negligently.

Purposely – a person acts purposely with respect to a material element of an offense when:
a. if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of
that nature or to cause such a result; and
b. if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes
or hopes that they exist.
Knowingly – A person acts knowingly with respect to a material element of an offense when:
c. if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that
nature or that such circumstances exist, and

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 d. if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such
a result.
Recklessly – a person acts recklessly with respect to a material element of an offense when he consciously disregards a
substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a
nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its
disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s
situation.

Negligently – A person acts negligently with respect to a material element of an offense when he should be aware of a
substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such
nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances
known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s
situation.

3. “Knowledge” of Attendant Circumstances

State v. Nations (1984)

D owns a disco where a scantily clad 16 year old was dancing in violation of the child endangering statute.
Issue: Whether the D had knowledge the female was under 17.
Rule: The Mo. Statute is violated if a person knowingly encourages a child…. The court held that the MPC definition of
knowledge requires a probability of existence. Mo’s statute does not. Knowingly in Mo. does not include willful blindness –
that would be reckless. Therefore, the state failed to prove that the D had the requisite intent to endanger the welfare of a child.

4. Problems in Statutory Interpretation

United States v. Morris (1991)

D sent a computer worm thru internet that damaged Federal interest computers in violation of 18 U.S.C. 1030.
Issue: Whether D intended to not only access federal interest computers but to prevent authorized use of info and thereby cause
loss.
Rule: In order to convict D of a crime, must prove mens rea. D claims that the State needed to prove that he intended the
access and the damage. However, the court reviewed the legislative history to read Congress’s intent that it only required that
the D intentionally accessed a federal interest computer. It need not be prove that D intended the prevention of use and
damage. When reviewing statutes for meaning look at punctuation, plain meaning and verb modifications.

G. STRICT LIABILTY OFFENSES

United States v. Cordoba-Hincapie (1993)

Mens rea remains a fundamental requirement in criminal law. However, it is not necessary to prove in strict liability offenses.
Public welfare offenses – the most common exception to mens rea attaches criminal liability without regard to fault involving
minor violations of liquor laws, pure food laws, drug laws, motor vehicle and traffic regulations, sanitary, building and factory
laws.
Mens rea is probably not required when a small fine violation is involved.
Example – statutory rape.
If an offense is strict liability there is no mens rea to negate and there is no basis for exculpation on the basis of mistake or
ignorance of fact or laws.

Staples v. United States (1994)

D was charged w/ violating 26 USC 5801-72, failure to register an automatic weapon. D claims that he thought the weapon
was a semi and that he didn’t make the modification.
Issue: Whether the statute requires proof D knew the characteristics of the weapon.
Rule: Generally, mens rea must be present even when it’s silent in the statute. However, in those cases, it cannot be said that
mens rea need not be present unless the statutory intent is known. These offenses generally involve that D knew he was dealing
with a dangerous device related to public welfare. And in this case, the harsh penalty of 10yrs imprisonment could not have
meant that Congress eliminated the requirement of mens rea.

Garnett v. State (1993)

D was a 20yr old retarded man who had sex with 13 yr old female whom he believed was 16. He was charged with statutory
rape.
Issue: Whether mens rea is written in to the statutory rape statute.
Rule: The legislature intended that statutory rape be a strict liability offense – no mistake of age defense can apply.

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 H. MISTAKE AND MENS REA
1. Mistake of Fact

People v. Navarro (1979)

D was charged w/ grand theft for stealing beams that he claims he thought were abandoned.
Issue: Whether D should be acquitted based on his reasonable belief that the property was abandoned.
Rule: If no specific intent or other special mental element is required, a mistake of fact is not an excuse unless it is based on
reasonable grounds. The jury must determine whether it was plausible that the D thought his mistake of fact was reasonable.

A mistake of fact can be a defense to a specific but not general intent crime.

2. Mistake (or Ignorance) of Law

People v. Marrero (1987)

D was arrested in NY for possessing an unlicensed gun – he thought he was exempt under NY Penal Code b/c he’s a federal
prison guard. The statute exempts correction officers of “any penal correctional institution.”
Issue: Whether D’s personal misreading or misunderstanding of the statute is an excuse from criminal liability under the NYS
mistake of law statute.
Rule: Normally mistake of law is not a valid defense unless the D’s mistaken belief is founded upon an official statement of
law contained in statute or other official interpretation by a public servant agency. There is no mens rea requirement, liability
regardless of intent.

Cheek v. United States (1991)

D was charged w/ tax evasion. He claims that taxation of wages is unconstitutional b/c wages are not income and that is failure
to file was not willful but that he had no duty to file.
Issue: Whether D willfully violated the tax filing statute.
Rule: Willful is a voluntary, intentional violation of a known legal duty. The court found that D must have known of his duty
to file. If D truly believed (a subjective standard) that he did not have to file and it was proven, then the claim should have
been heard by the jury even if it was objectively unreasonable.

Note case: People v. Weiss – D thought he was given proper legal authority to assist with an arrest. The court held that he was
entitled to have the jury hear that he believed, even unreasonably, that he had legal authority to assist in the seizure.

6. CAUSATION
A. INTRODUCTION

Velazquez v. State (1990)

D participated in drag race with victim and after race ended, victim turned car around and drove at 123mph (D followed behind
at similar speed) and couldn’t stop and crashed into guardrail.
Issue: Whether D’s reckless operation of a motor vehicle was the cause in fact of victim’s death.
Rule: There can be no criminal liability for a result type offense unless it can be shown that D’s conduct was a cause in fact of
the prohibited result. Use but for test – D’s conduct is cause in fact if result would not have occurred but for D’s conduct.
Substantial factor test is sometimes substituted. This is when two defendants acting independently and not in concert, commit
two separate acts, each of which would be sufficient to cause the prohibited result. However, when D’s conduct is a cause in
fact of the result, the courts have declined to impose criminal liability where (1) the prohibited result of the D’s conduct is
beyond the scope of any fair assessment of the danger created by his conduct, or (2) where it would be unjust based on fairness
and policy considerations.

B. ACTUAL CAUSE (CAUSE-IN-FACT)

Oxendine v. State (1987)

D was convicted w/ manslaughter of the beating of his child. Girlfriend was a co-defendant and both beat the child prior to his
death.
Issue: Whether D’s beating was the cause of the death or if his beating accelerated the injury caused by girlfriend’s beating.
Rule: In order to convict of manslaughter, state had to prove the D hastened or accelerated the death. Medical testimony could
not prove that D accelerated the death even though he may have aggravated the injury. . The older injury alone could have
caused the death.

C. PROXIMATE CAUSE (“LEGAL” CAUSE)

The but-for test is too imprecise a standard for determining causal accountability for harm because it fails to exclude remote
candidates for legal responsibility.
The doctrine of “proximate” or “legal” causation serves the purpose of determining who or what events among those that
satisfy the but-for standard should be held accountable for the resulting harm. Thus, it should be noticed, a person or event

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 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.

Issues of proximate causation generally arise when an intervening force exists, i.e., when some but-for causal agent comes into
play after the defendant’s voluntary act or omission and before the social harm occurs.

An intervening cause will be

(1) an act of God;
(2) an act of an independent third party, which accelerates or aggravates the harm caused by the defendant, or which causes it
to occur in an unexpected manner; or
(3) an act or omission of the victim that assists in bringing about the outcome.

Kibbe v. Henderson (1976)

D was charged w/ murder of victim – and defendant and co. robbed very intoxicated victim, took his jacket and left him on
road on very cold night. Victim was hit by Blake’s truck.
Issue: Whether D was the proximate cause of victim’s death.
Rule: D must have evinced a depraved indifference to victim’s life, recklessly engaged in conduct that created a grave risk of
victim’s death and thereby caused victim’s death. If death is caused by intervening force the liability of one who put an
antecedent force into action will depend on the difficult determination of whether the intervening force was a sufficiently
independent or supervening cause of the death. Could Kibbe foresee that victim could have either frozen to death or get hit by
a car b/c he was so drunk and semi-naked on the side of the road? If so, he should be liable as a proximate cause of the death.

Notes: An omission can never function as a superceding intervening cause so as to relieve the wrongdoer of criminal
responsibility.

“Intended consequences” if the actor intended the consequences of his action then he is a proximate cause, even though it may
not have occurred precisely as he wanted.

D. CONCURRENCE OF THE ELEMENTS

State v. Rose (1973)

D was charged with leaving the scene of the accident, death resulting and negligent manslaughter b/c his car struck a pedestrian
who was dragged.
Issue: Whether D was guilty of culpable negligence.
Rule: D argues that to prove that he is guilty of manslaughter the evidence would have to show that the victim was alive after
the impact and the dragging caused the death. If the victim were alive after the impact, then the conduct of D would have
constituted culpable negligence. If he was dead upon impact, then he did not have the culpabability of manslaughter.

7. CRIMINAL HOMICIDE
A. OVERVIEW
1. Homicide Statistics
2. Common Law Origins and Statutory Reform
3. Variations on the Theme: Some Homicide Statutes
4. The Protected Interest: “Human Being”

People v. Eulo (1984)

D was convicted of manslaughter. He shot victim in head and victim was taken to hospital in unconscious state and placed of
respirator. The victim was taken off respirator by family request.
Issue: Whether D’s conduct caused the victim’s death.
Rule: First the court had to determine when the victim’s death occurred. Death occurs when there is irreversible cessation of
breathing and heartbeat or irreversible cessation of the entire brain’s functioning. If the doctor’s were correct in determining
the victim’s death, then there was sufficient evidence for a jury to determine if the D caused the death. If the death was
prematurely pronounced due to a doctor’s negligence, the subsequent procedures may have been a cause of death, but that
negligence would not constitute a superseding cause of death relieving D of liability. However, if the doctors were grossly
negligent or intended to prematurely pronounce death, the intervening medical procedure would interrupt the chain of causation
and D would not be liable.

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B. INTENTIONAL KILLINGS
1. Degrees of Murder: The Deliberation-Premeditation Formula

State v. Schrader (1982)

D went into gun shop to trade war souvenirs and got into argument with owner and stabbed him 51 times. D claims that he did
not have the requisite premeditation for murder one.
Issue: Whether the state must prove that D premeditated the murder.
Rule: Premeditated was essentially “knowing” and “intentional” and courts have consistently recognized that the mental
process necessary to constitute “willful, deliberate and premeditated” murder can be accomplished very quickly or even in the
“twinkling of an eye.” The mere existence of choice would justify an inference of premeditation.

Midgett v. State (1987)

D was convicted of murder one for the death of his son resulting from repeated abuse. Medical evidence determined child died
of intra-abdominal hemorrhage.
Issue: Whether the evidence was sufficient to show D’s premeditated and deliberated purpose to cause his son’s death.
Rule: Conviction of murder one requires premeditation and deliberation. Here, the evidence only supports that D intended not
to kill his son but to further abuse him or that if he did intend to kill the child, the intent was developed in a drunken rage while
disciplining the child. Neither supports a finding of premeditation or deliberation.

State v. Forrest (1987)

D was convicted of murder one after shooting his dying father in the head 4 times while in hospital.
Issue: Whether the evidence was sufficient to show premeditation and deliberation for murder one.
Rule: First-degree murder is the intentional and unlawful killing of a human being with malice and premeditation and
deliberation. Things to consider to determine whether the killing was with premeditation and deliberation are (1) want of
provocation on part of the deceased; (2) the conduct and statements of D before and after killing; (3) threats and declarations of
the D before and during the course of the occurrence giving rise to the death of the deceased; (4) ill-will or previous difficulty
b/w parties; (5) the dealing of lethal blows after deceased has been felled and rendered helpless; and (6) evidence that the
killing was done in a brutal manner.

2. Manslaughter: “Heat of Passions” Killings

b. Common Law Principles

Girouard v. State (1991)

D was convicted of second-degree murder of wife after an argument in which she taunted and provoked him.
Issue: Whether D could mitigate the murder charge down to manslaughter based on wife’s provocation.
Rule: The rule of provocation: (1) there must have been adequate provocation; (2) the killing must have been in the heat of
passion; (3) it must have been a sudden heat of passion – that is, the killing must have followed the provocation before there
had been a reasonable opportunity for the passion to cool; and (4) there must have been a causal connection b/w the
provocation, the passion, and the fatal act. Words alone can never be provocation. Words must accompanied by conduct
indicating a present intention and ability to cause the defendant bodily harm.

c. The Objective Standard: Who is the “Reasonable Man”?

In order of an intentional homicide to constitute manslaughter rather than murder, a defendant must have killed in
response to provocation “calculated to inflame the passion of a reasonable man” or which “might render ordinary
men, of fair average disposition, liable act rashly or without due deliberation or reflection, and from passion, rather
than judgment.”

Director of Public Prosecutions v. Camplin (1978)

D, a 15-year old boy killed victim after D claimed he was sodomized and taunted.
Issue: Whether the provocation relied upon by D was enough to make a reasonable man do what D did, or whether we should
look at the reaction of a boy D’s age.
Rule: The provocation must not only have caused D to lose self control but also be such as might cause a reasonable man to
react the same way. The standard is not adjusted or subjective. The danger of allowing the reasonable person standard to be
subjective would cause any defendant to claim this is reasonable for him/her.

Should physical characteristics that are relevant to the accused and part of the provocation be admissible? If the characteristics
go to the gravity of the provocation then they are admissible.

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 8. Model Penal Code and Beyond

People v. Casassa (1980)

D was dating victim briefly and when she broke up w/ D, he became obsessed months later and broke into her apartment and
stabbed her several times in the throat and drowned her.
Issue: Whether the D established the affirmative defense of “extreme emotional disturbance” which would have reduced the
crime to manslaughter in the first degree.
Rule: The defendant (1) must have acted under the influence of extreme emotional disturbance and (2) there must have been a
reasonable explanation or excuse for such extreme emotional disturbance. The first part of the test is subjective and the court
found that D was EED. The second part is more objective – a reasonable explanation for D’s conduct.

1. Murder vs. Manslaughter: A Literary Problem

The story of the man who came upon his wife and her lover in the meadow.

B. UNINTENTIONAL KILLINGS: UNJUSTIFIED RISK-TAKING

Berry v. Superior Court (1989)

D owned a pit bull that attacked and killed 2-½ year old boy. D knew the dog was bred to attack and there was evidence that
the dog fought other dogs. D was charged w/ murder.
Issue: Whether the evidence is sufficient to try the D on the murder charge.
Rule: Second degree murder of an unintentional killing requires (1) D’s extreme indifference to human life by showing the
conduct involved will cause death and (2) awareness of a) risk of conduct or b) conduct is contrary to law. D knew that the dog
was a threat to humans so the jury should hear the evidence.

State v. Hernandez (1991)

D was charged w/ involuntary manslaughter when while drinking and driving, struck the truck the victim was riding in.
Issue: Whether the drinking slogans should have been admissible as evidence to support the conviction of involuntary
manslaughter.
Rule: Involuntary manslaughter – must prove (1) D acted w/ criminal negligence and (2) in doing so caused victim’s death.
Criminal negligence refers to the degree of culpability of D’s mental state. The state agrees that the slogans prove D’s mental
state that he knew drinking would impair his ability to drive. The court disagreed and held that the slogans were inadmissible.

State v. Williams (1971)

D was charged w/ manslaughter for negligently failing to give medical care to their 17-month child.
Issue: Whether D’s negligence (failure to exercise ordinary caution) was the proximate cause of child’s death.
Rule: For the conviction to stand, the death of the victim must be the proximate result of only simple or ordinary negligence.
Actus reus – omission – the failure to give medical attention is a failure of parental duty. Mens rea – were they negligent?
Simple negligence is sufficient to support a conviction of manslaughter under the Wash. Statute. Homicide is excusable when
acting w/ ordinary caution. Causation – period of time during which the duty existed before it was too late – before medical
treatment could not save child.

9. RAPE
A. SOCIAL CONTEXT
B. ACTUS REUS
1. Forcible Rape
b. General Principles

Rusk v. State (1979)

Victim met D in a bar and drove him home – he took her keys and she felt she had to go up to get them. She stated she felt
threatened and did not consent to performing oral sex and intercourse.
Issue: Whether there is evidence of force for a finder of fact to conclude that accused was guilty beyond a reasonable doubt.
Rule: Force is an essential element of the crime and to justify the conviction, the evidence must warrant a conclusion either
that victim resisted and her resistance was overcome by force or that she was prevented from resisting by threats to her safety.

State v. Alston (1984)

Victim dated D for several months during which they had a consensual sexual relationship. He did beat her several times and
she moved out. D had nonconsented w/ victim sex twice.
Issue: Whether D used “force” in getting victim to have sex with him.
Rule: D must use force or threaten force. There was not sufficient evidence to find force or threaten force. Actual physical
force need not be shown in order to establish force sufficient to constitute an element of the crime of rape. Threats of serious
bodily harm which reasonably induce fear thereof are sufficient.

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 Commonwealth v. Berkowitz (1992)
Victim went to D’s dorm room they talked and he began to make advances, which she verbally protested. He placed her on the
bed and penetrated her while she repeated her verbal protests.
Issue: Whether D is guilty of all elements of rape.
Rule: Pa. Law rape is intercourse w/ another (1) by forcible compulsion; (2) threat of forcible compulsion that would prevent
resistance by a person of reasonable resolution; (3) who is unconscious; or (4) incapable of giving consent. Forcible
compulsion includes not only physical force or violence but also moral, psychological or intellectual force to compel a person
to have intercourse against their will. Subjective test based on circumstances.

State of NJ in Interest of MTS (1992)

Victim was 15-year-old female who was allegedly raped by 17-year-old male who was staying at her home. She states that she
woke up to him inside her, she slapped him and he went away. D claims foreplay and consent.
Issue: What is physical force under the NJ statute of sexual assault.
Rule: Sexual assault is the commission of sexual penetration w/ another w/ use of physical force or coercion. The court held
that to require physical force in addition to that entailed in unwanted sexual penetration is inconsistent w/ the legislature’s
intent to eliminate any consideration of whether the victim resisted or expressed non-consent. The fact finder must decide
whether D’s act of penetration was undertaken w/o freely given permission.

1. Deceptions and Non-Physical Threats

Boro v. Superior Court (1985)

D posed as a doctor to get victim to agree to intercourse on theory that she had a disease that could only be cured by D’s semen.
Issue: Whether victim consented to the sex.
Rule: The CA. Statute states that rape is an act of sexual intercourse accomplished w/ a person not the spouse of perpetrator,
under any of the following…(4) where the person is unconscious of nature of act and this is known to the accused. The state
contends the victim was unconscious of nature of act b/c she believed it was medical treatment on which her life depended.
The court held that while there is authority that fraud negates consent the CA. statute did not intend it here.

B. MENS REA

Commonwealth v. Sherry (1982)

Victim, an RN went to a party where 2 Drs. made advances on her. She claims that they took her to Rockport where they
disrobed and forced her to have intercourse w/ all three. Ds claim she consented.
Issue: Whether Ds had actual knowledge of the victim’s lack of consent.
Rule: Intercourse must be accomplished with force such as to overcome the woman’s will sufficient for a D to have intercourse
against her will or by bodily threats of harm, inferred or expressed, which engendered fear…so that it was unreasonable for her
not to resist. Ds argued that mistake of fact negating criminal intent is a defense to the crime of rape. However, this defense
requires the accused acted in good faith and with reasonableness – this has never been decided in Ma. Ds wanted a knowingly
mens rea standard with respect to the lack of consent – but courts often use negligence (lower burden of proof).

The only significant mens rea issue in forcible rape prosecutions occurs when M claims that he had intercourse with the
mistaken belief that F was consenting. Rape is a general-intent crime. Therefore, most jurisdictions provide that a person is
not guilty of rape if at the time of intercourse, he entertained a genuine and reasonable belief that F was voluntarily
consenting. Cannot be unjustifiable or egregious conduct.

C. PROVING RAPE
1. Rape Shield Laws

State v. Herndon (1988)

These laws deny a D in a sexual assault case the opportunity to examine the complainant concerning her prior sexual conduct
or reputation, and deny D the opportunity to offer extrinsic evidence of the prior sexual conduct or reputation of the
complainant. These laws contradict the Sixth Amendment, which guarantees D the right to cross-examine the complainant.
(!!!) Permissible evidence is any relating to the present or past relationship between the parties.

People v. Wilhelm (1991)

D observed victim in a bar lift her shirt in front of two men while one man fondled her. D contends that rape shield law should
have been lifted to enter this evidence to imply consent.
Issue: Whether victim’s conduct in a bar could be admissible.
Rule: Rape shield laws generally prohibit testimony about victim’s prior sexual conduct that is irrelevant to the current case.
The court held that victim’s sexual conduct with a third party was not admissible by virtue of rape shield law and it did not
deny D’s right of confrontation. Evidence of sexual conduct directed toward the D, however, would have been admissible.

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 2. Cautionary Jury Instructions (and Other Procedural Matters)

State v. Banshaw (1983)

The D requested the following jury instruction “…the law requires that you examine the testimony of the female victim with
caution.”
Issue: Whether this was erroneous.
Rule: The Supreme Court held that this instruction should never be given b/c it implies that the court is expressing
reservations about the credibility of the victim. The instructions were first given in a 1912 case and are clearly not suitable for
today.

D. STATUTORY RAPE

Garnett v. State (1993)

D was a 20yr old retarded man who had sex with 13 yr old female whom he believed was 16. He was charged with statutory
rape.
Issue: Whether mens rea is written in to the statutory rape statute.
Rule: Statutory rape laws were enacted to protect a class of victims that were presumed not mature enough to make decisions
about sex.

10. GENERAL DEFENSES TO CRIMES

A. Categories of Defenses

1. Failure of Proof Defenses: A defense in which D introduces evidence at trial that demonstrates that the prosecution failed
to prove an essential element of the offense.

Not a True Defense—Only a defense in the sense that D may have introduced the evidence in Q and its proof will prevent
D’s conviction. However, b/c the defense negates an essential element of the crime, prosecutor must carry the burden of
proof regarding failure of proof.

2. Offense Modifications: when all elements of the crime have been satisfied but the harm or evil sought to be prevented
was not committed. Example: a businessman pays monthly extortion payments to a racketeer.

3. Justifications: the conduct is still a legally recognized harm that is to be avoided whenever possible – but this harm is
outweighed by avoiding greater harm. Example: A forest fire rages toward a town of 10,000 unsuspecting habitants and
the actor burns a cornfield to save the town. Although he committed arson, he was justified b/c his conduct prevented a
greater harm.

4. Excuses: admit that the deed may be wrong but excuse the actor b/c conditions suggest the actor is not responsible for his
deed.

5. Nonexculpatory Public Policy Defenses: although the D’s conduct if harmful, and it creates no societal benefits and he is
blameworthy, the conviction is no longer useful. Examples: statute of limitations runs out; diplomatic immunity.

B. BURDEN OF PROOF

Patterson v. New York (1977)

D was charged with second-degree murder of his estranged wife’s lover.
Issue: Whether it was constitutional under the 14th Amendment Due Process Clause to burden D with proving the affirmative
defense of extreme emotional disturbance.
Rule: Under the NY statute, D must prove the affirmative defense of extreme emotional disturbance. D claims this is
unconstitutional b/c it shifts burden from state to D. In Mullaney v. Wilbur, the Supreme Court held the Maine statute was
unconstitutional b/c a person accused of murder could rebut by proving provocation or heat of passion (and this language was
included in the murder statute). The NY statute defines murder as “with intent to cause the death of another person, he causes
the death of such person.” The manslaughter provision states, “the fact that a homicide was committed under the influence of
extreme emotional disturbance constitutes a mitigating circumstance (that must be proven by D by a preponderance of the
evidence) reducing murder to manslaughter. On the basis of this homicide statute, the prosecutor must prove beyond a
reasonable doubt that D intentionally caused another person’s death. However, because “extreme emotional disturbance” is not
an element of murder, the prosecutor is not required to prove the absence of such disturbance to convict D of the offense.
Instead, if D wished to be convicted of the lesser offense of manslaughter, he must prove that he acted as the result of extreme
emotional disturbance.

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C. PRINCIPLES OF JUSTIFICATION
1. Structure of Justification Defenses

All justification defenses have the same internal structure: triggering conditions permit a necessary and proportional response.

Triggering conditions are the circumstances that must exist before an actor will be eligible to act under a justification.
Example: someone is trying to burn D’s chicken coop.

The triggering conditions of a justification defense do not give an actor the privilege to act without restriction. To be justified,
the responsive conduct must satisfy two requirements:
(1) it must be necessary to protect or further the interest at stake, and
(2) it must cause only harm that is proportional or reasonable in relation to the harm threatened or the interest to be
furthered.

2. Self-Defense
a. General Principles

United States v. Peterson (1973)

Victim was attempting to steal wiper from D’s wrecked car when D came upon them and took out a pistol. Victim came back
w/ lug wrench and D threatened “take one step closer and I will kill you.” Victim did and D shot him.
Issue: Whether D reasonably acted in self-defense.
Rule: For a self-defense claim there must be an actual or apparent threat, which is unlawful and immediate, of deadly force.
Defender must believe he’s in imminent harm and that his response was necessary to save himself. The belief must be
reasonably objective. The D was not justified in using this amount of force. Victim was only stealing wiper. However, did the
roles of aggressor change during the altercation?

b. “Reasonable Belief” Requirement

i. In General

People v. Goetz (1986)

D shot and wounded four black youths on NYC subway b/c they asked for $5. D was mugged and injured before.
Issue: Whether D reasonably believed he needed to use such force to defend himself.
Rule: A person may not use deadly physical force upon another person unless he reasonably believes that such other person is
about to use deadly physical force. The court held the legislature intended the D’s reasonable belief be objective but would still
include circumstances (including previous experiences which could provide a reasonable basis) facing the D that the jury could
find reasonable to the D.

ii. The Debate Continues: Objective, Subjective, or a Mixed Standard?

State v. Wanrow (1977)

D was convicted of second-degree murder. Decedent molested her friend’s son and they had come to their house, he surprised
D and she shot him. He’s a 6’2” man and D is 5’4” woman.
Issue: Whether D was justified in using self-defense claim.
Rule: The jury may consider all facts and circumstances leading up to the incident (even those that took place substantially
before the killing) and the reasonable belief should take into consideration the difference in physical characteristics of the D
and the decedent. D’s belief of harm must be imminent and reasonable under the circumstances.

iii. Battered Woman Syndrome and Beyond

State v. Norman (1988)

D, after years of sever abuse, degradation and torture, killed her husband while he slept. She raised the defense of battered wife
syndrome.
Issue: Whether D could raise the self-defense claim of battered wife syndrome b/c victim may not have been in imminent harm
when she killed her husband.
Rule: It must appear to the D that it is necessary to kill the deceased in order to save her own life (subjective test) – what she
perceived at the time of the killing. The D’s belief must be reasonably objective. On appeal: The S.Ct. did not find that her
danger was imminent and refused instructions on battered wife syndrome.

Battered-Woman Syndrome Testimony—Testimony stating that the woman suffers from “battered-woman syndrome,” a
condition that causes her “to sink into a state of psychological paralysis and becomes unable to take any action at all to
improve or alter her situation.”
Purpose of the syndrome evidence
Subjective belief—The evidence may be used to show that the abused woman subjectively believed that she had to
kill the abuser at that moment.

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 Reasonableness of the belief—The purpose is to have the jury analyze her actions on the basis of a “reasonable
battered-woman standard.
Legal Trends—Increasingly, jurisdictions permit introduction of battered-woman syndrome evidence in
appropriate self-defense cases.
Appropriate cases—Some courts flatly prohibit an instruction on self-defense if the homicide occurred in a
non-confrontational situation, e.g., when the abuser was asleep or otherwise passive (State v. Norman). Other
jurisdictions will allow a jury instruction in such circumstances.
How syndrome evidence is used
Limited use—A few courts permit evidence on the syndrome, but do not allow the expert to testify as to
whether D suffers from the syndrome.
Less limited use—Other courts allow an expert to state an opinion as to whether D subjectively believed that
deadly force was necessary under the circumstances, but will not allow the evidence to be used to show that her
conduct was objectively reasonable.
Broadest use—Some courts permit an expert to assist the jury in determining whether D’s beliefs were
reasonable from the perspective of a person suffering from battered-woman syndrome.
Controversy—Some critics argue that the syndrome evidence is being used in battered-woman cases to justify
vengeance killings rather than self-defense. These critics would permit the woman to raise the claim in terms of
an excuse.

3. Defense of Others

Commonwealth v. Martin (1976)

D, a prison inmate, came to the aid of a fellow inmate when the guards were beating him. D claims privileged use of force to
protect another.
Issue: Whether D was justified in using physical force to aid another.
Rule: An actor is justified in using force to protect a third person when (a) a reasonable person in the actor’s position believes
his intervention is necessary to protect the third person and (b) that the third person would be justified in using the same force
to protect himself (called the alter ego rule). However, the court refused to apply the defense of others justification to prison
situations for fear that it would undermine the guards ability to maintain order.

MPC Rule--§3.05(1)-(2). D is justified in using deadly force to protect X if FOUR conditions are met. Subjective.
1. D’s right to self-protection—D would be justified in using such force to protect him, if the facts were as he
believed them to be.
2. X’s right of self-protection—Under the facts as D believes them to be, X is justified in using such force in self-
protection.
3. Necessity—D believes the intervention is necessary for the protection of X.
4. Retreat—If X would be required to retreat under the Code’s self-protection rules, D must try to cause him to do
so before using deadly force.

4. Defense of Property/Habitation and Law Enforcement Defenses

People v. Ceballos (1974)

D set up a trap gun over his garage door to prevent break-in. Two teenage boys attempted to do so and one was shot in the
face.
Issue: Whether D was justified in using deadly force to protect his property.
Rule: Generally, deadly force can only be applied to protect one’s person against death or serious bodily harm or to protect
one’s dwelling. The court rejected the D’s argument that had he been present he would have been justified in using such force.
D would not be allowed to use deadly force to prevent a burglary of a non-dwelling. The trap gun was also unlawful. Deadly
force may be used to prevent a nighttime burglary of a dwelling.

Tennessee v. Garner (1985)

D is a police officer that shot victim while victim was fleeing scene of burglary. D was reasonably sure that the victim was
unarmed but shot him to prevent escape.
Issue: Whether D was justified in using deadly force to apprehend a suspect of burglary.
Rule: While Tenn. Statue and police dept. policy allowed use of deadly force to apprehend it must be reasonable under the
Fourth Amendment seizure clause. The majority held the Tn. Statute was unconstitutional with respect to its interpretation in
this case. Victim was a non-dangerous, unarmed felon. It is only justified when the officer believes the suspect poses a threat
to himself or others.

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 5. Necessity (“Choice of Evils”)
a. General Principles

Commonwealth v. Leno (1993)

D operated a needle exchange program in violation of Mass. Statute. D claims that he did so out of necessity.
Issue: Whether Ds were justified in raising a claim of necessity.
Rule: Application of defense of necessity is limited to the following:
• When D is faced w/ clear and imminent danger (not debatable or speculative)
• D can expect to abate the danger
• There is not legal alternative
• Legislature has not precluded the defense by clear and deliberate choice re: the value at issue.
The court held that in this case, necessity was not a valid defense. Ds were not faced with clear and imminent danger. The
danger was debatable and speculative. They did not meet the no legal alternative test and it’s the legislature’s duty to deal with
this issue.

b. Civil Disobedience

United States v. Schoon (1991)

D’s were arrested for protested at an IRS office against conditions in El Salvador. They claim their actions were “necessary.”
Issue: Whether the necessity defense can be claimed in acts of indirect civil disobedience.
Rule: In order to claim necessity, D must show:
• Faced with choice of evils and the chose the lesser evil
• They acted to prevent imminent harm
• They reasonably anticipated a direct causal relationship b/w their conduct and the harm to be averted; and
• They had no legal alternatives to violating the law.
The court held that necessity is inapplicable to indirect civil disobedience cases. There is no imminent harm to be prevented;
no direct causal relationship and there are legal alternatives. If Congress enacts a law then it’s never considered a harm and Ds
could lobby Congress to mitigate the harm.

c. Defense to Murder?

The Queen v. Dudley and Stephens (1884)

There was evidence in the case that although the conditions in the lifeboat were very difficult, death was not imminent.
Therefore, D’s may have acted prematurely. Moreover, the court may have believed that the technique used to determine who
would die was morally objectionable. Although the sick youth was the person most likely to die naturally, his death was not
inevitable.

A. PRINCIPLES OF EXCUSE
1. Why Do We Excuse Wrongdoers?

Causation theory: Perhaps the broadest non-utilitarian theory of excuse states that a person should not be blamed for her
conduct if it was caused by factors outside her control.

Character theory: punishment should be proportional to a wrongdoer’s moral desert, and that desert should be measured by the
actor’s character. However, what if D robbed a bank b/c terrorists threatened to kill her child.

“Free Choice” (or Personhood) Theory: a person may be properly blamed for her conduct “if, but only if, she had the capacity
and fair opportunity to function in a uniquely human way, i.e., freely to choose whether to violated the moral/legal norms of
society. Insane people and children may lack free choice.

2. Duress
a. General Principles

United States v. Contento-Pachon (1984)

D was coerced by drug dealer into swallowing 129 balloons of cocaine to transport into US. When he refused, dealer
threatened to kill wife and child. D claims duress.
Issue: Whether D can be excused due to duress.
Rule: There are three elements to a duress defense:
1. an immediate threat of death or serious bodily injury
2. a well grounded fear the will be carried out; and
3. no reasonable opportunity to escape the threatened harm.
The court held the D’s harm was imminent and not a veiled threat of future unspecified harm. If he failed to cooperate, there
was imminent harm to wife and child and he also felt that there was no opportunity to escape b/c he believed the police were
corrupt.

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 b. Necessity versus Duress
People v. Unger (1977)
D, prison inmate, was being threatened w/ homosexual attacks and death and bodily harm, so he escaped from prison.
Issue: Whether jury should have been instructed on defense of necessity or duress.
Rule: Traditionally, courts have been reluctant to apply these defenses to prison escapees. However, recently duress and
necessity have been applied. Duress is usually coercive power from others while in a necessity defense, the pressure comes
from forces of nature. The court ruled that D should be able to instruct the jury on necessity. D had to choose b/w the lesser of
two evils to avoid imminent harm.

c. Defense to Murder?

Regina v. Howe (Eng. 1987)

D claims that if he did not strangle victim he would have been beaten to death.
Issue: Whether duress is a defense to murder.
Rule: Duress arises from wrongful threats or violence of another while necessity arises from any other objective dangers
threatening the accused. The English court refused to allow the defense of duress to murder b/c there is still a conscious
decision to sacrifice another life rather than risk one’s own.

3. Intoxication
a. Voluntary (Self-Induced) Intoxication

Commonwealth v. Graves (1975)

D was convicted of first degree murder, robbery and burglary. D admits to drinking a quart of wine and taking LSD and claims
that he does not remember the events.
Issue: Whether voluntary intoxication prevented the D from forming the requisite intent to commit burglary and robbery.
Rule: In Commonwealth v. Tarver, the court held that voluntary intoxication could mitigate murder one to murder two in
felonious homicide only. The court refused to apply the rule here. Instead, they applied the defense of voluntary intoxication
to any mens rea crime. A D can bring in evidence to show that his voluntary intoxication prevented him from having the
requisite intent to commit the crime.

b. Involuntary Intoxication

City of Minneapolis v. Altimus (1976)

D was found guilty of careless driving after he hit a garbage truck and fled the scene. D claims that he didn’t remember the
acts b/c he was taking prescribed Valium.
Issue: Whether D can raise the defense of involuntary intoxication.
Rule: A defense of involuntary intoxication is available if:
• the D did not know or have reason to know the prescribed drug is likely to have an intoxicating effect (if he knows
then its voluntary);
• the prescribed drug is the cause of the intoxication and not something else;
• and the drug caused him to be temporarily insane.
Involuntary intoxication is a defense to a criminal offense in TWO circumstances:
1. Lack of mens rea—Actor lacked the requisite mental state of the offense. This is the c/l and MPC §2.08(1) rule.
Intoxication is not a true defense. It is a Failure of Proof defense in that an essential element of the crime, mens rea
has not been proven.
2. Temporary Insanity—Due to the involuntary intoxication, actor was temporarily insane at the time of the offense.
This is both the common law and the MPC §2.08(4) rule.

B. NEW DEFENSES?
1. Addiction/Alcoholism Defense

Robinson v. California (1962)

D was convicted of violating a Cal. statute that makes it a criminal offense to be addicted to narcotics. D had track marks and
testified to using drugs in past.
Issue: Whether this statute is constitutional.
Rule: While the state has a right to control drug trafficking it cannot make addiction a punishable crime. Criminal punishment
for a disease is cruel and unusual punishment.

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 Powell v. Texas (1968)
D was arrested and charged w/ being found intoxicated in a public place. He claims that he is afflicted w/ disease of chronic
alcoholism and that being drunk in public was not of his own volition. He further asserts that it would be cruel and unusual
punishment under the 8th and 14th Amends.
Issue: Whether punishing someone who suffers from chronic alcoholism for public drunkenness is a violation of the 8th and
14th amendments.
Rule: Chronic alcoholism is not a defense to public drunkenness and it does not violate the Constitution b/c D was charged for
his conduct and not his status as an alcoholic. Also, states retain the autonomy to decide what acts are volitional.

2. “Rotten Social Background” (RSB) Defense

There is an argument that a person who commits a crime because of social deprivation is entitled to be acquitted on the ground,
either, that he does not deserve to be condemned or that society lacks standing to judge the actor.

3. “Cultural Defense”

State v. Kargar (1996)

D was charged w/ violating the Maine statute of gross sexual assault for kissing his 18-month-old son’s genitals. D is from
Afghanistan and this is culturally acceptable there.
Issue: Whether D’s conduct can be dismissed based on the de minimis statute.
Rule: The court may dismiss a prosecution if it finds the D’s conduct was:
• within a customary license or tolerance
• did not actually cause or threaten the harm sought to be prevented by the law defining the crime
• presents such other extenuations that it cannot be reasonably regarded as envisaged by legislature in defining the
crime.
The court held D’s conduct was not criminal b/c of his cultural beliefs.

10. INCHOATE OFFENSES

A. OVERVIEW

Functions of the penal law:

First: When a person is seriously dedicated to commission of a crime, a firm legal basis is needed for the intervention of the
agencies of law enforcement to prevent its consummation.
Second: Conduct designed to cause or culminate in the commission of a crime obviously yields an indication that the actor is
disposed towards such activity, not alone on this occasion but on others.
Third: Finally, when the actor’s failure to commit the substantive offense is due to a fortuity, (such as a missed bullet), his
exculpation on that ground would involve inequality of treatment that would shock the common sense of justice.

B. ATTEMPT
1. General Principles

Incomplete attempts – the actor does some of the acts that she set out to do, but then desists or is prevented from continuing by
an extraneous factor, e.g., the intervention of the police.
Complete attempts – the does every act planned, but is unsuccessful in producing the intended result, e.g., she shoots and
misses the intended the victim.

2. Grading Criminal Attempts

Common Law—An attempt was a misdemeanor, regardless of the seriousness of the target offense.

Modern Statutes—Today, an attempt to commit a felony is a felony.

Comparison to completed offenses—Most states treat an attempt as a lesser offense than the target offense. An attempt is
punished about half as severely as the target offense.

Criticism of the traditional rule—Many scholars argue that a person who attempts to commit a crime is as dangerous and
morally culpable as the successful criminal and, therefore, should be punished as severely.

Defense of traditional rule—An unsuccessful criminal causes less social harm than a successful one. Therefore, he has a
lesser debt to pay for his wrongdoing. Also, from a utilitarian perspective, the law may wish to give a person an incentive to
desist from completing an offense, by mitigating the punishment for an attempt.

MPC §5.05(1)—With the exception of felonies of the 1st degree, MPC treats inchoate offenses of attempt, solicitation, and
conspiracy as offenses of the same degree. Thus, subject to the same punishment as the target offense.

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Merger Doctrine—An attempt merges with the target offense if it is successfully completed.

3. Mens Rea

People v. Gentry (1987)

D was charged w/ attempted murder of his girlfriend – he spilled gas on her and it ignited but he smothered the flames after she
was seriously burned. She testified that she ignited when she went near stove.
Issue: Whether D had the requisite intent to be charged w/ attempted murder.
Rule: State must prove that D had the specific intent to kill for attempted murder conviction. The Illinois state legislature
desired to treat intent and knowledge as distinct mental states. Accordingly, in a prosecution for attempted murder, where
alternative culpable mental states will satisfy the target crime of murder, but only one is compatible with the mental state
imposed by our attempt statute, the incompatible elements must be omitted from the jury instruction.

Bruce v. State (1989)

D was charged w/ attempted felony murder for the shooting of storeowner during the commission of a robbery. D appeals on
the contention that attempted felony murder is not a crime.
Issue: Whether attempted felony murder is a crime in Maryland.
Rule: Since criminal attempt is a specific intent crime, we held that an individual may be convicted of the crime of attempted
voluntary manslaughter since the substantive offense is “an intentional homicide, done in a sudden heat of passion, caused by
adequate provocation.” On the other hand, involuntary manslaughter is an “unintentional killing done without malice, by doing
some unlawful act endangering life, or in negligently doing some lawful act”; accordingly, it may not form the basis of a
criminal conviction for attempt. Because a conviction for felony murder requires no specific intent to kill, it follows that
because a criminal attempt is a specific intent crime, attempted felony murder is not a crime in Md.

4. Actus Reus
a. General Principles

United States v. Mandujano (1974)

Issue: What is the difference b/w mere preparation and attempt.
Rule: Preparation alone is not enough, there must be some appreciable fragment of the crime committed, it must be in such
progress that is will be consummated unless interrupted by someone/thing other than the attempter and the act must not be
equivocal in nature.

1) physical proximity doctrine – the overt act required for an attempt must be proximate to the completed crime, or directly
tending toward the completion or must amount to commencement of consummation.
2) Dangerous proximity doctrine – the greater the gravity and probability of the offense and nearer the act to the crime the
stronger for calling an act an attempt.
3) Indispensable element test – variation of proximity tests which emphasizes any indispensable aspect of the criminal
endeavor over which the actor has not yet acquired control.
4) Probable desistance test – 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.
5) Abnormal step approach – an attempt is a step toward the crime which goes beyond the point where normal citizen would
think better of his conduct and desist.
6) Res ipsa loquitur (or unequivocal test) – attempt is committed when actor’s conduct manifests an intent to commit a
crime.

b. Distinguishing Preparation from Perpetration: The Tests at Work

Commonwealth v. Peaslee (1901)

D constructed and arranged combustibles in a bldg to cause it to burn down. D offered to pay someone to light the triggering
candle but he refused. Within ¼ mile of bldg, D changed his mind.
Issue: Whether D’s act came near enough to the accomplishment of the substantive offense to be punishable.
Rule: While mere preparation is not enough, if the prep comes very near to the accomplishment of the act, the intent to
complete it renders the crime so probable that the act will be a misdemeanor, although there is still a locus poenitentiae (the
possibility of withdrawing from a contemplated course of action, esp. a wrong), in the need of a further will to complete the
crime. This case is an example of the dangerous proximity test.

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People v. Rizzo (1927)
Ds planned to rob a certain Mr. Rao of a bankroll and took steps to effect the crime; they drove around (while armed) NYC
looking for victim but were arrested before the found him.
Issue: Whether Ds’ acts were in preparation to commit the crime if the opportunity offered, or was it an attempt to commit
robbery in the first degree.
Rule: Applying Hyde and Peaslee, the act amounts to an attempt when it is so near to the result that the danger of success is
very great (dangerous proximity). Here the court held that while Ds did plan to commit the crime they were not dangerously
close. The opportunity never came.

People v. Miller (1935)

D was charged w/ attempt to commit murder. D under the influence of alcohol and in presence of others threatened to kill
Jeans. He later went to the field where Jeans works w/ .22 caliber rifle. Jean fled but D never took aim and the constable was
there and took the gun w/out resistance.
Issue: Whether D is guilty of attempted murder.
Rule: An attempt presupposes some direct act or movement in execution of the design, as distinguished from mere preparation,
that must be unequivocal in nature. While D made a threat, his actions were not enough b/c he never aimed the gun. He may
have only been trying to scare him.

State v. Reeves (1996)

Ds Reeves and Coffman, two 12-year-old girls, plotted to kill their teacher w/ rat poison. The teacher walked in on them while
they were leaning over her desk. The rat poison was in their bag next to the coffee.
Issue: Whether Ds’ actions were merely preparation or attempt to commit second-degree murder.
Rule: When an actor possesses materials to be used in the commission of a crime, at or near the scene, where such possession
can have no lawful purpose the actor may have taken a substantial step toward the commission of the crime if such action is
strongly corrobative of actor’s overall criminal purpose.

c. Punishing Pre-Attempt Conduct

United States v. Alkhabaz (1997)

D was arrested for violation of US statute that prohibits interstate communications containing threats to kidnap or injure
another person. D sent an email depicting the torture, rape and murder of a classmate to a friend in Canada.
Issue: Whether D’s email contained a threat.
Rule: The gov’t must prove that (1) the transmission was in interstate commerce; (2) a communication containing a threat; and
(3) the threat must be a threat to injure or kidnap the person of another. The court held that the communication b/w D and
friend was not a threat. Even if a reasonable person would take the communication as a serious expression of an intention to
inflict bodily harm, no reasonable person would perceive such communications as being conveyed to effect some change or to
achieve some goal through intimidation. Not a threat unless communicated to the person to whom the threat was made.

5. Special Defenses
a. Impossibility

United States v. Thomas (1962)

Ds Thomas and McClellan were found guilty of attempted rape. Met girl in bar who passed out and they put her in car and had
sex with her. Turns out she was dead!
Issue: Whether, since it was legally impossible for Ds to have committed the crime of rape, they should be found guilty of
attempted rape.
Rule: If the intended substantive crime is impossible of accomplishment b/c some physical impossibility unknown to the
accused, the elements of a criminal attempt are present. The court found that since Ds did not know victim was dead, they were
found guilty of attempted rape.

b. Abandonment

Commonwealth v. McCloskey (1975)

D planned to escape from prison, made preparations and abandoned plan before he did anything unequivocal. D confessed
plans to guard and was charged w/ attempted prison breach.
Issue: Whether abandonment is an affirmative defense to an attempt.
Rule: Abandonment is an affirmative and complete defense to attempt b/c it negates the conclusion that the accused continues
to be dangerous. It technically applies after the accused has crossed the substantial step line.

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 C. ASSAULT

State . Boutin (1975)

The D and Moore were involved in a scuffle and D picked up a bottle while Moore grabbed a rock, when the police arrived, D
was approaching M with bottle over his head.
Issue: Whether D was guilty of attempted assault.
Rule: In Vt., simple assault is when accused attempts to cause or purposely, knowingly, or recklessly causes bodily injury to
another. For an attempt it must go beyond sphere of mere intent. It must reach far enough towards the accomplishment of the
desired result to amount to the commencement of the consummation. The evidence was not sufficient to show that D intended
to strike M with the bottle.

D SOLICITATION

State v. Mann (1986)

Defines solicitation as the asking, enticing, inducing, or counseling of another to commit a crime. A solicitation may well be
more dangerous than attempt or conspiracy b/c the solicitor plans, schemes, encourages and incites. The solicitor is more
morally culpable b/c he keeps himself from being at risk, hiding behind the actor. Solicitation merges into the crime solicited if
committed or attempted.

State v. Cotton (1990)

D was arrested for criminal sexual penetration of a minor (his 14yr old stepdaughter). D wrote letters to wife to solicit her to
prevent stepdaughter from testifying against him. The two letters were never sent b/c cellmate intercepted.
Issue: Whether D was guilty of criminal solicitation.
Rule: N.M statutes states “a person is guilty if, with the intent that another person engage in conduct a felony, solicits,
commands, requests, induces, employs, or otherwise attempts…another to commit a felony. D was not convicted b/c the
communication was never communicated to wife. [what about attempt?]

E. CONSPIRACY
1. General Principles

People v. Carter (1982)

Defines conspiracy as a partnership in criminal purposes, a mutual agreement or understanding, express or implied, b/w two or
more persons to commit a criminal act or to accomplish a legal act by unlawful means. The crime is complete upon formation
of the agreement.

Pinkerton v. United States (1946)

Walter and Daniel P are brothers who were indicted for violation of the tax code and conspiracy.
Issue: Whether Daniel, who did not participate directly in the commission of the crime, should be found guilty of the crimes
committed by Walter b/c of the conspiracy b/w them.
Rule: Need an affirmative action to establish the withdrawal from the conspiracy and the committed offenses. Since Walter’s
crimes were done in furtherance of the conspiracy, Daniel could not be exonerated.

11. LIABILITY FOR THE CONDUCT OF ANOTHER

A. ACCOMPLICE LIABILITY
1. General Principles
a. Common Law Terminology and Its Significance

State v. Ward (1978)

There are FOUR common law categories to criminal offenses. Nearly every state has abolished these categories, although the
terminology continues in judicial opinions.

Principal in the First Degree: is one who actually commits a crime, either by his hand, or by an inanimate agency, or by an
innocent human agent.
• Innocent instrumentality doctrine—Coercing a human being to perform the acts that constitute an offense. No free
will.
Principle in the Second Degree: one who is guilty of felony by reason of having aided, counseled, commanded ore encouraged
the commission thereof in his presence, either actual or constructive.
• Constructively present—Close enough to assist the P in the 1st degree during the crime.
Accessory Before the fact: one who is guilty of felony by reason of having aided, counseled, commanded, or encouraged the
commission thereof, without having been present either actually or constructively at the moment of perpetration.

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Accessory After the fact: one who with the knowledge of the other’s guilt, renders assistance to a felon in the effort to hinder
his detection, arrest, trial, or punishment.
b. Theoretical Foundation: Derivative Liability

An accomplice is not guilty of the crime of “aiding and abetting,” but instead is guilty of the substantive offense committed by
the perpetrator. Accomplice liability is “derivative” in nature. A’s liability derives from the primary party whom he provided
assistance. Put another way, there is no c/l crime of “aiding and abetting.”

2. Elements of Accomplice Liability: In General

State v. Hoselton (1988)

D was convicted of entering w/o breaking into vessel. He was looking out while friends were stealing items from vessel. He
did not know what they were doing.
Issue: Whether D was guilty of aiding and abetting.
Rule: An aider or abettor, or principal in the second degree must “in some sort associate himself with the venture, that he
participates in it as something that he wishes to bring about, that he seeks by his action to make it succeed.” Since the D did
not share the criminal intent with the principals, he was found not guilty.

3. Mens Rea
a. Intent: “Purpose” or “Knowledge”?

People v. Lauria (1967)

D was charged w/ conspiracy to commit prostitution b/c he allowed call girls to use his phone answering service w/ the
knowledge that they were prostitutes.
Issue: Whether D is guilty of accomplice liability.
Rule: An accomplice must act intentionally. He must act with the intention of influencing or assisting the primary actor to
engage in the conduct constituting the crime. While D knew about the crimes it was not his purpose for them to commit the
crimes.

*Thomas case: Gladstone – undercover officer approaches D re: buying marijuana and D tells him he’s out of the biz but
knows who is selling and gives him a map. Charged w/ aiding & abetting but did he have the conscious object for the officer to
buy the weed?

b. When is “Intent” Not Required?

i. Offenses Not Requiring Intent

State v. Foster (1987)

D’s girlfriend was raped and he and friend found the rapist and beat him. D left to get girlfriend to make positive ID and left
friend w/ knife. Rapist attempted to attack friend and friend stabbed him.
Issue: Whether D was guilty as an accessory to criminally negligent homicide.
Rule: D contends the b/c accessorial liability requires an accused, in aiding a principal, to intend to commit the offense
charged, and b/c criminally negligent homicide requires that unintended death occur, its legally impossible for D to be an
accomplice to this crime. The court was not persuaded by his argument and found him guilty b/c when a crime requires that a
person act w/ criminal negligence, an accessory is liable if he fails to perceive a substantial and unjustifiable risk that such
result will occur or that such circumstances exists. Since D gave the knife to his friend to prevent rapists escape, he failed to
perceive the risk that friend would have to use the knife.

ii.Natural and Probable Consequences Doctrine

States that an accessory is liable for any criminal act which in the ordinary course of things was the natural or
probable consequence of the crime that he advised or commanded, although such consequence may not have been
intended by him.

State v. Linscott (1987)

D and his friends agreed to rob a drug dealer and the friend killed the dealer during the commission of the robbery. D did not
know that friend would kill dealer.
Issue: Whether D should be found guilty of accomplice liability for the murder of drug dealer.
Rule: Liability for a primary crime (here robbery) is established by proof the actor intended to promote or facilitate that crime.
Liability for any secondary crime (the murder of the dealer) that was committed by the principal is established upon a two-fold
showing: (a) that the actor intended to promote the primary crime and (b) that the commission of the secondary crime was a
“foreseeable consequence” of the actor’s participation in the primary crime.

*See also page 862, People v. Woods.

iii. Attendant Circumstances

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Page 863. Would Albert be guilty for encouraging Bob to have sex w/ Carla, an underage female? Bob is guilty whether he
knew Carla’s age or not. There is little authority on whether the intent requirement of accomplice liability applies to “attendant
circumstance” element of an offense.

4. Actus Reus

State v. Vaillancourt (1982)

D was charged w/ accomplice liability for attempted burglary. D and his friend were standing on porch and then friend tried to
pry open a basement window when cops arrived.
Issue: Whether there was sufficient evidence to hold D has an accomplice.
Rule: The crime of accomplice liability requires the actor to have solicited, aided, agreed to aid, or attempted to aid the
principal in planning or committing the offense. The crime thus necessitates some active participation by the accomplice.
Courts have held that knowledge and mere presence at the scene of a crime could not support a conviction for accomplice
liability b/c they did not constitute sufficient affirmative acts to satisfy the actus reus requirement of accomplice liability.

Wilcox v. Jeffery (1951)

D, proprietor of a jazz magazine, was charged with aiding and abetting Hawkins of illegally performing in the UK without a
proper visa.
Issue: Whether D should be found guilty of accomplice liability.
Rule: The English court that since the D met Hawkins at the airport, purchased a ticket to attend his concert and applauded at
the concert, he was guilty of aiding and abetting.

State v. Helmenstein (1968)

D was charged with burglary of grocery store w/ his friends.
Issue: Whether D can be found guilty of accomplice liability based on the testimony of the other accomplices without
corroboration by such other evidence.
Rule: Cannot be convicted by accomplice’s testimony without other evidence to corroborate defendant’s liability.

People v. Genoa (1991)

D was convicted of attempted possession w/ intent to deliver cocaine. D was approached by undercover agent who proposed
that if D gave him $10K to buy cocaine, agent would sell and give him back $ money w/ a profit. D gave money and was
arrested.
Issue: Whether the D can be found guilty as an accomplice when the principal does not commit the crime or never intended to.
Rule: The following elements must be established to show someone aided and abetted the commission of the crime:
• The underlying crime was committed by either the D or some other person;
• The D performed acts or gave encouragement which aided and assisted the commission of the crime; and
• The D intended the commission of the crime or had knowledge that the principal intended its commission at the time
of giving aid or encouragement.
Since the principal in this case never intended the crime, the D could not be found guilty as an accomplice.

5. Distinguishing Direct from Accomplice Liability

There cannot be a secondary party to a crime in the absence of a principal in the first degree; but an apparent secondary
party may himself, on closer inspection, be the principal in the first degree.

Bailey v. Commonwealth (1985)

D and Murdock were enemies and both were intoxicated at time of incident. Murdock is also legally blind. D threatened to
come over in a blue and white car to kill him and told him to wait on the porch. Murdock did while armed and Bailey called
the police and told them Murdock was on his porch threatening to kill someone. When the police came Murdock thought it
was D so he shot at them and missed and they shot back and killed Murdock.
Issue: Whether Bailey should be charged as an accomplice or as a principal in the shooting of Murdock.
Rule: An intervening act that is reasonably foreseeable cannot be relied upon as breaking the chain of causal connection b/w an
original act of negligence and subsequent injury. D could reasonably foresee that Murdock would get shot and since the police
were not principles acting with D’s intent, D was held to be the principal.

See also note 3 and 4 at page 879 for hypos.

6. Relationship of the Liability of the Accomplice to the Principal

a. If the Principal is Acquitted or Not Prosecuted

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State v. Hayes (1891)
D Hayes proposed to Hill that they commit burglary. Hill was stepson of owner so he feigned agreement. D opened a window
and Hill went in and gave D a side of bacon, cops came and D was holding the bacon.
Issue: Whether D can be found guilty as an accomplice if the principal committed no crime.
Rule: In order to be found guilty of accomplice liability, the principal must have the requisite intent to commit the crime and
commit the crime (and be charged w/ the commission).

United States v. Lopez (1987)

D escaped from prison (accomplice boyfriend picked her up in helicopter) out of necessity and her accomplice wishes to raise
the same defense.
Issue: Whether accomplice can be found guilty if the principal is justified in escaping out of necessity.
Rule: A third party has the right to assist an actor in a justified act. Therefore, a third party could not be held liable for aiding
and abetting.

b. If the Principal is Convicted

Regina v. Richards (Eng. 1974)

D wife hired two thugs to beat her husband.
Issue: Whether D can be found guilty of a more serious offense than the principals.
Rule: An accomplice can never be convicted of a greater crime than the principal. Accomplice liability is whole derivative. In
this case, the fact that the accomplice was more morally culpable is not relevant.

7. Limits to Accomplice Liability

In re Megan R. (1996)
D appeals her conviction of burglary. Burglary is the unlawful entry of a dwelling to commit a felony. The felony here was her
own statutory rape.
Issue: Whether D can be convicted as an accomplice to statutory rape.
Rule: A victim of statutory rape cannot be prosecuted on that charge regardless whether her culpability be predicated upon
being a coconspirator, an aider and abettor or an accomplice given her legislatively protected status. She cannot consent to her
statutory rape. Therefore, no burglary.

People v. Brown (1980)

D and friend Schultz met up w/ guy named Babcock who proposed stealing a car from Hillside Motors. D and Schultz didn’t
really want to but they agreed to kick down the door while Babcock watched the front. D kicked twice but didn’t open but did
when Schultz kicked one more time. At this point, D decided not to go thru with crime and told Babcock.
Issue: Whether D’s abandonment of the criminal activity and purpose of burglary is sufficient to exonerate him on the attempt
charge b/c he was not the principal.
Rule: Under the Illinois statute, an accomplice may be held accountable for the principal’s actions and intent b/c of his aid
prior to and during the commission of the offense. However, accountability can be removed if before the commission of the
offense the person terminates his efforts to promote such commission and makes a proper effort to prevent the commission of
the crime. In this case, D did not withdraw prior to the offense of attempted burglary b/c he made a substantial step toward the
commission of the crime.

8. Special Problems: Aiding and Abetting a Suicide and Euthanasia

a. Drawing Lines: When Does Suicide Assistance Constitute Murder?

People v. Campbell (1983)

D was charged w/ murder in the connection w/ suicide of Basnaw. He gave Basnaw a loaded gun.
Issue: Whether D is guilty of murder.
Rule: Since D did not meet all the elements of murder he was found not guilty. Providing a weapon and hoping that the
decedent does kill himself is not murder. He could be found guilty of anything from negligent homicide to voluntary
manslaughter.

People v. Kevorkian (1994)

As a result of Dr. Kevorkian’s suicide assistances, Mich. enacted a statute criminalizing suicide assistance.
Issue: Whether he can be prosecuted for murder for his role in the deaths.
Rule: If a person merely furnishes the means to a suicide he is guilty of aiding a suicide; if he actively participates in the death
of the suicide victim, he is guilty of murder.

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 B. VICARIOUS LIABILITY

Commonwealth v. Koczwara (1959)

D is the licensee and operation of a pub and was charged w/ serving minors. The bartenders were the ones who did the serving
unknown to D.
Issue: Whether D should be held criminally liable for the acts committed by his employees.
Rule: It would be unthinkable to impose vicarious liability for true crime that required jail sentence rather than a reasonable
fine.

12. THEFT
A. LARCENY
1. Actus Reus
a. “Trespassory Taking (Caption) and Carrying Away (Assportation)

Lee v. State (1984)

The definition of larceny – at common law – as the trespassory taking and carrying away of personal property of another with
intent to steal gradually broadened to embrace misappropriation by a person who with consent of owner already had physical
control over property.

Rex v. Chisser (1678)

Developed the distinction b/w physical possession and constructive possession.

United States v. Mafnas (1983)

D employed by armored car service hired by bank to deliver $. On 3 occasions he opened bag and removed $.
Issue: Whether D had law possession of the bags and thus not guilty of larceny.
Rule: If a person receives property for a limited or temporary purpose, he only acquires custody – a subsequent decision to
keep the property is stealing. Trespassory taking with intent to permanently deprive.

Topolewski v. State (1906)

D consulted Dolan with respect to stealing meat and Dolan told company so they set up entrapment.
Issue: Whether D committed larceny.
Rule: There was no larceny since there was no trespass b/c the co. consented and assisted with the taking away of the barrels of
meat.

Rex v. Pear (1779)

D hired a horse and did not return it but sold it.
Issue: Whether D intended to steal the horse at the time he hired the horse.
Rule: If he did not have the intent to permanently deprive the owner at the time he hired the horse he did not have wrongful
possession. Wrongful possession if he had intent at time of hire would be larceny.

Brooks v. State (1878)

P found money on street that was lost by person who posted notice. P was convicted of larceny and appeals.
Issue: Whether the taking of lost property is larceny.
Rule: Larceny may be committed against lost property. Title to property as well as constructive possession remains w/ owner
and if finder takes it for own use and not for benefit of owner then guilty of trespass unless it can be shown that owner
abandoned property. D intended to steal the money b/c he concealed finding it.

b. “…Of the Personal Property of Another…”

Lund v. Commonwealth (1977)

D was convicted of grand larceny for unauthorized computer use, theft of keys and computer cards and printouts.
Issue: Whether it is larceny if the object in question is not good but services.
Rule: Larceny applies to goods not services [with no readily ascertainable value].

2. Mens Rea “…With the Intent to Steal the Property”

People v. Brown (1894)

D took bike but said he intended to return it.
Issue: Is it larceny if they intend to return it?
Rule: For larceny there must be the intent to wholly and permanently deprive the owner of his property. Continuing trespass -
if the intent to steal comes after the trespass, it can be argued that this was a continuous trespass and law would treat the
felonious state of mind as concurring with the trespassory taking.

People v. Davis (1998)

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 D entered dept store w/ empty store bag, took shirt off rack and attempted to get a refund.
Issue: Was this larceny?
Rule: Larceny is committed by every person who (1) takes possession (2) of personal property (3) owned or possessed by
another (4) by means of trespass and (5) with intent to steal the property, and (6) carry it away. Although the D did not intend
to steal the shirt and carry it away, he was going to permanently deprive the store of the value of the shirt and if they didn’t give
the refund he would have taken the shirt.

B. EMBEZZLEMENT

Rex v. Bazeley (1799)

Bank teller took money from a patron before depositing into account.
Issue: Whether this was larceny b/c the bank never had possession of the money D took.
Rule: Its not larceny if the bank never had possession of the money. This was embezzlement – the criminal conversion of
property rec’d by wrongdoer in a non-trespassory taking with an element of entrustment.

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