Key

Criminal Law Outline Red: Rules

Professor Thomas Linninger Green: Test
Spring 2021 Purple: Public Policy

Rationales for Criminal Sanctions

1. Deterrence
 Utilitarian theory (based on improving aggregate societal happiness)
 Two types:
 (1) General deterrence: to deter future people who may commit similar crimes
o Bad premise: assumes criminals are making rational decisions at the time
o Uncertainty: most criminals assume they will not be caught anyway
 (2) Specific deterrence: to deter individual charged to not commit the same crime again
o High recidivism: nobody is rehabilitated anyway
 Affirmative justification
 An affirmative justification and…
 Limiting principle – it could eliminate the more extreme option and encourage those to do so.
2. Rehabilitation
 Utilitarian theory
 To “change” the criminals and be able to successfully put them back into civilized communities
 Assumes criminals want to change their values
 There is so little resources to implement any beneficial programs that would encourage rehabilitation
 Stigma: assumes society will accept ex-felons
3. Incapacitation
 Utilitarian principle
 Incarceration – not in the outside world where they are able to commit any crimes
 Assumes crimes don’t occur in prison, which is not true.
4. Retribution
 The only one not based on utilitarian doctrine
 Focuses on reduction of recidivism
 Focuses on desert and culpability (MPC favors this one)
 Issues: A limiting principle. It is over inclusive- punishment does not always fit the gravity of the offense
 Key issue is whether punishment is intrinsically just for particular offense, not whether it achieves societal goals
 Balancing the scales of behalf of the victim and collective social outrage
 Intrinsic value in punishment (an eye for an eye)
 Modern approach to the criminal justice system really depends on this theory and guides punishment today
5. Educative (signaling function)
 Education of offenders and incidental deterrence to educate society
 Could be either utilitarian or non-instrumental.
More on utilitarianism
 Maximizing good and social benefit. It is efficient but also deeply flawed. Majority wished will rule despite the
harm caused to minorities.
Proportionality Principle
th
 8 amendment proportionality  no cruel and unusual punishment
 The punishment fits the crime
 Constitutional limits to punishment – both bright line rules and flexible standards depending on punishment and
offense.
 Past criminal history taken into account.
 Two Approaches
o (1) Categorical: is this category of sentence appropriate for this category of offense? (juvenile cases)
(Graham).
  Better approach for the D: court gives a lot of deference to state legislature in setting up
sentencing guidelines
 Does not require strict proportionality between the crime/sentence but only forbids extreme
sentences that are grossly disproportionate to the crime. Gravity of the offense and severity of
the sentence.
 2-step test: (Kennedy)
 (1) Objective: court considers “objective indicia of societal standards”
o National consensus: look at different state’s practices to see if there is a national
consensus for or against this type of sentencing
 Look at state sentencing statutes
 Look at actual conviction rates and real sentences
 (2) Subjective: court then does its own analysis to determine if the penalty is cruel or
unusual in its own opinion
o Attempts to find justification for the punishment, usually using a theory of
punishment
 If no justification, cruel and unusual on its face.
o (2) Term of years: case specific inquiry is the sentence imposed grossly disproportionate to the
crime? (Ewing)
o Defendant almost never wins
o Takeaway
o SCOTUS is not consistent with proportionality outside of juvenile and homicide cases (Miller,
Graham, Kennedy)
o SCOTUS unlikely to hold that sentences imposed to adults who commit non-homicide crimes
unconstitutional.
• Rules:
o Offenders that cannot receive the death penalty:
 Juveniles (Roper)
 Adults with severe mental disabilities (Atkins)
 The inquiry is if they were a juveniles or had a mental disability at the time the crime was
committed, not at the time of sentencing.
o Crimes that cannot receive the death penalty:
 Any crime other than homicide or treason (Kennedy)
o What other categories of punishment can a juvenile not be sentenced to?
 Life without parole in a non-homicide case (Graham)
 Mandatory life without parole in a homicide case (Miller)
 Proportionality Cases
o Kansas v. Hendricks, 1997
 Kansas had passed a civil commitment act that authorized civil commitment for dangerous
sexual predators who had a mental abnormality.
 D was about to get out of jail and had a violent history. He attempted to try his case on double
jeopardy, due process, and ex post fact grounds (retroactive force of new law).
 The court said “pedophilia” constituted a mental abnormality satisfying the civil commitment
act. Court said the act was not based on criminal punishment and prior crim acts aren’t required
to be committed. Nothing was based off retribution or deterrence but about future danger. No
deterrence bc of the mental abnormality.
 Holding/NMR: civil commitment of potential released inmates based on sex offenses is not
criminal punishment and does not get the criminal constitutional protections.
o Graham v. Florida, 2010
 16 year old kid and three others were involved in a burglary and did time, and later were arrested
on more robbery charges. FL gave him life without parole (FL did not have parole at the time)
 D challenges the sentence under 8 th amendment c&u clause.
 Proportionality cases can fall into two categories:
 o (1) Challenges to the terms of year sentences given all the circumstances in a particular case
[The court considers all circumstances of a case to determine if it is unconstitutionally
excessive.  Doesn’t restrict strict proportionality between the crime/sentence but
only forbids extreme sentences that are grossly disproportionate to the crime. Gravity of
the offense and severity of the sentence.]
o or
o (2) Cases in which the court implements the proportionality standard by certain categorical
restrictions on the death penalty.
[Death penalty is impermissible for nonhomicidal crimes and prohibited death penalty
under age 18.}
Two step process  1) the court considers “objective indicia of societal standards” and
2) using independent discretion, whether the punishment in question violates the
constitution.
 Holding/NMR: Offenders under 18 for nonhomicidal crimes cannot get life without parole (violates
the 8th amendment). The state doesn’t have to guarantee freedom but must give a meaningful
opportunity to obtain release based on rehabilitation.
o Kennedy v. Louisiana, 2008
 Kennedy charged and convicted of aggravated rape of his 8y.o stepdaughter. Issue is whether he can
get the death penalty or not since his crime did not result in death. The state has a statute
authorizing capital punishment for rapists with victims 12 years or younger.
 Court distinguishes child rape from murder (severe + irrevocable) because risk of over punishment.
Court also says it may remove incentive or rapists not to kill their victims if the punishment is the
same anyway. It would deter victims from coming forward if family members were involved.
 The purpose of capital punishment is retribution and deterrence, neither of which are met here.
 Holding/NMR: Rape is a category of crime that is NOT eligible for the death penalty. Violates the 8 th
amendment, Louisiana statute is unconstitutional.
o Ewing v. California, 2003
 D was sentenced under CA three-strike law and sentenced to 25-to -life after he stole some golf
club’s worth about $1200. D had history of felonies and tried his case based on 8 th amendment
grounds of proportionality.
 The court considers three factors to determine if a sentence is so disproportionate that it violates
the 8th amendment:
o (1) The gravity of the offense and the harshness of the penalty.
o (2) The sentences imposed on other criminals in the same jurisdiction
o (3) The sentences imposed for commission of the same crime in other jurisdictions.
 Non-capital cases the state get a LOT of deference in sentencing.
 Holding/NMR: The sentence under the three strikes law is not grossly disproportionate and does
not violate the 8th amendment. CA made a public policy decision that public safety was important
enough to lock up repeat offenders.
 amendment, Louisiana statute is unconstitutional.
o Miller v. Alabama, 2012
 Two fourteen-year old’s convicted of murder and sentenced to LWOP. The sentencing authority
couldn’t exercise any discretionary authority, the state law mandated the LWOP.
 Precedent demands individualized sentencing when it comes to the death penalty so no mandated
sentences.
 Age is relevant to the 8th amendment and any crim procedure rules that fail to take it into account
are flawed.
 Disregards the idea of rehabilitation even though the factors of being a minor strongly suggest it is
possible. Graham’s most fundamental principle: the court cannot proceed to sentence children as if
they are not children.
 Holding/NMR: Mandatory LWOP for those under 18 violates the 8 th amendment. The holding only
forbids statute MANDATING the sentence, judge can still choose LWOP.
• Limits on Sentencing
o Mandatory minimum sentencing: statutory limit to the smallest possible sentence a judge
can give a convicted D for an offense.
o Sentencing guideline: a set of conditions that either lower of increase the sentence of a
convicted D based on a set of criteria
o Are sentencing guidelines mandatory for judges? No, they must be advisory. (Booker)
 Why? They rely on facts not proven at trial, if they were mandatory that would be a
violation of not allowing new facts being introduced at sentencing.
o Can new facts be proven at the sentencing hearing that were not proven at trial, that
increase the statutory sentencing range?
 No, all facts that affect the sentencing must be proven at trial beyond a reasonable
doubt.
(Blakely/Aprendi)
o Sentencing sentences are determined by the legislature, they are super broad, and the
boundaries are strict.
o Sentencing guidelines written by judges, lawyers, academics, etc., not that strict and more
of a starting point. Legislature does not approve them the power is delegated to the
commission, narrow/fine-tunes, “advisory”, not mandated.

• Sentencing Cases
o Apprendi v. New Jersey, 2000
 Drunk white man shot into home of black family. Conflicting evidence on motive.
 A separate statute authorizes an increased punishment if found to be “racially motivated”
 The judge found it was by a preponderance of the evidence and extended the max
sentence.
 The issue is whether or not the due process clause of the 14 th amendment requires a fact
determination to increase max sentence be by a jury with proof beyond a reasonable doubt.
 Holding/NMR: Government has to indict the enhancement. Any fact that increases the penalty
for a crime beyond the statutory max must be for the jury and proved beyond a reasonable
doubt.
o Atkins v. Virginia, 2002
 Prohibits the mentally retarded from the death penalty.
 No moral culpability not as deterrable.
 No execution of offenders who IQ is in low range
o Roper v. Simmons, 2005
 Prohibits the death penalty to those who were under 18 when they committed their crimes.
o Blakely-Booker,
 Blakely kidnapped his wife with no prior history.
 Judge introduced deliberate cruelty to up his sentence.
 Issue: Did the decision effectively undermine the US sentencing guideline system as it
was designed to operate?
 Blakely applied the Apprendi case- no, you cannot bring up additional charges to up his
sentence.
 Sentencing reform act: laid out a new mandate for more rigorous sentencing and established
the US Sentencing Commission, giving it a mandate to generate guidelines to fine tune the
broad statutory criteria.
 Booker: had a lot of cocaine and was sentenced to an absurd number of years.
 The court held that this outcome violated Blakely.
 The solution- Trial Judges should view the guidelines as merely advisory and in no way
binding.
o However, judges have been cautious in diverging too far from what would have
been guidelines anyway.
 Actus Reus
• Always needed in any crime. You have to commit a bad act. Actual, volition, conscious conduct. Can also apply to
a failure to act (omissions – if there is a duty).
• “Act requirement” which really has two distinctions
o (1) the conditioning of just punishment of the proscription, charging, and proof of an actus reus
o (2) the particular actus reus of many particular offenses. (a material element)
• Punishable crime should be confined to failures of self-control.
• Needed
o (1) past
o (2) voluntary
o (3) wrongful or potentially harmful
o (4) conduct
o (5) specified
o (6) in advance
o (7) by statute
• Prosecutors bear the burden of proof beyond a reasonable doubt.
o Action or omission by the D—need an outward manifestation: an overt act.
• Involuntary
o (1) coercion
o (2) duress
o (3) reflexive actions
• We do not punish bad thoughts alone because…
o (1) autonomy: people have involuntary thoughts.
o (2) there would be no incentive to restrain people from acting out on their thoughts if they were going
to be punished anyways
o (3) bad thoughts alone are not harmful to society
o (4) might even be difficult to discern what bad thoughts are
• Criminal act requirement confirms bad intent
• There are two types of Actus Reus:
o General: requirement of an act as a condition for criminal liability
o Particular: the specific act required for a particular offense
• Actus Reus Cases
o Proctor v. State – The Need for an Actual Actus Reus
 Consistent with NMR
 Criminalized owning prop with the intent to illegally sell liquor.
 D argued future intent could not count as an “overt” act.
 Holding: Unexecuted criminal intent is not punishable as a crime. It is impossible to enforce and
prove when there has not been an act.
• Omissions
o Not acting + a duty
o Statute must say omission can be the basis for liability
o Whenever there is a question of omission, the D is entitled to a jury instruction to see if they were
legally obligated to act in the first place.
o Must have a legal duty to act or assume a duty to act. (Jones)
 Statute imposes a duty to care for another
 Status relation to another
 Assumed a contractual duty
 Voluntarily assumed care of another so secluded as to prevent others from rendering aid
o There is generally no duty to act unless specified in statute or created by some legal relationship
creating a duty of care.
• Omissions cases
o Jones v. United States
  Involuntary manslaughter charge – Jones was the woman taking care of another lady’s 2 kids,
found in the basement in horrible health conditions and one of them died from malnutrition.
 Jones tried to argue she had no duty. Legal duty was critical element of the crime.
 (1) statute imposed
 (2) special relationship
 (3) contractual duty
 (4) voluntarily assumed duty
 NMR: omissions are a failure to act when you have a legal duty. Omissions are hard to be the
basis for crim punishment.
• Possession
o Types:
 Actual: physical possession
 Constructive: (Maldonado)
 Effective power over the thing capable of reducing it to actual possession
 Intent to actually use the power over the object must be specific to the item possessed.
 Joint constructive – two drug dealers who have cocaine in the trunk
 Elements of Possession:
o (1) Knowledge: effective power over the thing controlled
o (2) Control: intent to control that thing
 Voluntariness: possessor must have knowingly procured or received the thing
 If you did not know you had it, and you learn that you do, you get enough time to get rid
of it.
 Guests in your home maintain possession over items they bring unless they intend to give them
to share with you
• Possession cases
o United States v. Maldonado (constructive possession)
 Convicted of possessing cocaine with intent to distribute
 The case was the botched sting operation in the hotel where the guy never touched the bag of
drugs. Left it in the room and charged the one with key access.
 Challenged the sufficiency of evidence
 Possession can be (1) actual and (2) constructive (power to control AND intent to
exercise that control) (3) joint or exclusive
o State v. Barger
 Whether searching for child porn online was enough to convict someone of “possessing” and
“controlling”. The charge was encouraging child abuse in the second degree.
 The evidence was stored in his computer cache, and there was no way to tell if it was
intentional or not. Legislature does not intend to criminalize just viewing. The mere
ability to manipulate a thing is not sufficient for possession.
 Holding: having something in your computer cache is not possession.
o Limited degree of possession based on amount of control – no degree of control
has been exercised
• Voluntariness
o All acts prohibited by statute must be voluntary, involuntary acts cannot be crimes
o Examples: something/someone else moved you, seizure, sleepwalking, hypnosis
o If an act appears on its face to be involuntary, is there anyway a prosecutor could establish
voluntariness?
 Yes, they would have to prove that the D put themselves in a situation and they knew they were
making those involuntary acts could happen.
 NOTE: a lot of the time you can argue that a seemingly involuntary action voluntary by going
back in time and finding a point where the involuntary act was foreseeable (think proximate
cause from torts)
• Voluntariness cases
 o People v. Newton
 Defendant had a gun on a plane from the Bahamas that was going to somewhere in Europe
(legal in those countries) there was an issue and they emergency landed in NY. It is illegal to
carry a gun on a plane in the US.
 Defense was involuntary conduct.
 One must act in the state the conduct is illegal voluntarily.
 Did not voluntarily submit himself to criminal liability - it was not foreseeable he would end up
there.
o Martin v. State
 D was drunk in his own home, cops brought him to public place and charged him with being
drunk in public.
 Held: involuntary removal – no case.
o People v. Grant
 D had a psychomotor epilepsy and attacked a cop after a bar fight. He pleaded insanity for his
defense and the trial court did not instruct the jury on his condition.
 It was not a mental defect; it was an involuntary act.
 The court mentioned that the jury could find that because he knew of his condition and
had prior notice of his susceptibility to engage in violent involuntary conduct.
 Held: when a D raises facts about involuntariness, the court must instruct the jury on it.
• Harm
• Requirement for harm – wrongful or potentially harmful
o Three ways to be harmful:
 (1) Harm principles: to others
 (2) Personal harm: paternalism
 (3) Morality: things we just don’t like as a society
• Harm cases
o Lawrence v. Texas
 Criminalized sexual intercourse with those members of the same sex. Convicted two men when
they were engaging in sexual intercourse in the privacy of their own home.
 Nolo contendre: no contest – not saying you are guilty or not. Just taking the
punishment not admitting to the crime.
 Violated the equal protection clause and due process – can only restrain someone’s liberty when
there is actual harm. There is no justification in overriding a liberty interest.
 CANNOT criminalize consensual sexual acts in the privacy of one’s home
 SCOTUS held that for an action to be criminalized there must be a defined harm.
 States have some deference to define this harm especially when it comes to morality,
but in general actions made by consenting adults in private will not cause harm and not
be criminal.
• Conduct/ Status Crimes
o Can statuses be criminalized?
 No, not voluntary, past actions, might not always be “harmful”
 How can you frame a law that criminalized these types of behaviors without criminalizing the
status itself?
 Criminalizes… being intoxicated or high, paraphernalia, the action itself (trespassing, city
camping)
• Conduct/ Status Crimes Cases
o Robinson v. California
 Convicted of being a drug addict.
 Court categorizes addiction as a mental illness, and you can’t criminalize mental illness.
 Two rationales for this ruling:
 (1) involuntary conduct cannot be punished.
 (2) punishment must be for past, not future conduct. Being an addict implies the desire
or propensity to commit punishable acts in the future.
  Holding: cannot be arrested for status crimes.
o Johnson v. State
 Pregnant mother was a cocaine addict, and the prosecutor tried to charge her for “delivering”
narcotics to her baby for the 60-90 seconds after the baby was born and before the umbilical
cord was cut.
 The delivery statute says you cannot deliver drugs to another human being.
 No evidence that she purposefully discharged drugs at this time.
 Held: No, the statute doesn’t encompass delivery for these facts, way too broad of a reading.
 Policy: penalizing moms as drug users and then pregnant women won’t seek medical help.
Status of a mother and status as drug abuser – criminalizes both.
 Voluntary: She did not time her dosage to ensure the baby would have cocaine in their
system.
 If we criminalized this, where would the line be drawn as far as pregnancy behaviors?
 Punishing these mothers perversely disserves infant health by deterring mothers from
seeking out services in hear of detection or of intrusive discriminatory investigation.
o Powell v. Texas
 Convicted for being an alcoholic and tried to say it was basically a status charge because he had
a disease. But, he went voluntarily into public, and he was actually charged with being drunk in
public. He choose the setting.
• Legality and Specificity
o In order for a court to convict you of a crime it must be written into a criminal statute, courts cannot
exercise common law jurisdiction (Hudson)
o When determining if something is codified, we look at the language of the statute itself. If it is
ambiguous we look to legislative intent (Keeler)
 Why? Due process require notice.
o What is the limit of judicial interpretation of criminal common law? (Rogers)
 Is the interpretation a reasonable and foreseeable change?
o Why are we concerned about codified statutes that are vague? (Morales)
 Due process problem: there is no notice if we do not know what is being criminalized.
 Separation of powers problem: forces the court to deal with something that should be the
legislatures job.
 Opens door for discrimination
 No deterrence for undefined behavior
o Overbroad statutes are also a problem
 A law is not specific enough if it can potentially criminalize a wide range of otherwise legal
behavior.
• Legality Cases
o Keeler v. Superior Court
 Ex-husband bear his ex-wife and killed her 8 month fetus (preg/ with another mans baby)
 Holding NMR: The power to define crimes and affix penalties is vested in the leg. branch.
 When determining if something is codified, we look at the language of the statute itself.
If it is ambiguous we can look to legislative intent. (b/c DPC requires notice)
o United States v. Hudson Goodwin
 Holding NMR: In order for a court to convict you of a crime it must be written into a criminal
statute, courts cannot exercise common law jurisdiction.
▪ Courts have the power to put people in jail through contempt of court.
o Rogers v. Tennessee
 Defendant was charged with second degree murder for stabbing someone in the heart, but the
guy did not die until 15 moths later from coma complications.
 Holding NMR: Courts cannot retroactively criminalize conduct, but they can retroactively
eliminate common law defense.
• Specificity Cases
 o Chicago v. Morales
 City implemented a statute criminalizing being in a particular area with apparent purpose.
 The statute did not meet constitutional requirements of definiteness or clarity.
 Failed to provide notice and encouraged arbitrary and discriminatory enforcement.
Mens Rea
• Requisite state of mind – requirement of a guilty mind.
• Scienter/culpability – intent or knowledge of wrongdoing
• Gradations of Mens Rea – MPC 2.02
o Purposefully: a person acts purposefully with respect to a material element of an offense when 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 if the element involves the attended
circumstances or he believes or hopes that they exist.
o Knowingly: 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 if the element involves a
result of his conduct, he is aware that is practically certain that his conduct will cause such a result.
o Recklessly: when he consciously disregards a substantial and unjustifiable risk that the material
elements material elements will result from his conduct. The risk must be of such a nature and degree
that considering the nature and purpose of the actors 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. (aware of the risk and proceeds anyways)
o Negligently: when he should be aware of a substantial and unjustifiable risk that the material element
or exists or will result from his conduct. The risk must be of such a 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.
 Unaware of the risk, possible risks have not materialized to the point of recklessness.
• Felonies – greater than 1 year
• Misdemeanors – less than 1 year
• Violations – quasi criminal no jail time
• MPC says if legislative intent is not clear  it’s a violation for strict liability
• Strict liability – no mens rea, no culpability
• Strict liability: exception (no actual mens rea), courts are reluctant to get rid of a required mental state, so it’s
pretty rare.
o Substantive vs. Formal Strict Liability
 Substantive: strict liability for a thing that is not at all immoral
 (1) Pure SL: liability without a culpable mental state with respect to any element
o Ex: speeding
 (2) Impure SL: there are multiple elements, some of them require mens rea some do
not.
o Malum prohibitum: forbitten by statute but not obviously wrong, more common for SL because the
punishments are lower
o Male in se: Evil in itself (murder)
o Factors in support of SL (constitutional)
 Huge public health/safety issues
 Regulatory Offenses
 Low penalties
 Felonies generally have mens rea requirements
 Stigma with reputation
 Enforceability
 Legislative intent
 Common law history of criminalization
 More likely to need mens rea
  Common law history of criminalization
o Governing rules for when SL is appropriate:
 (1) if a crime is regulatory in nature
 (2) where the statute is silent to mens rea, then we look past common law (Morissette)
 (3) there is a minor penalty
 (4) the penalty does not gravely besmirch the defendant
 (5) if there is legislative intent that is made clear in the statute or in past history
 If we have an element
o Under the MPC:
 Only violations (small monetary fines, no prison time) can be SL. Everything else must have a
mens rea element. MPC is all about culpability so it is not a big fan of SL.
 If its silent the default is recklessness
 If a rule under the MPC has one mens rea element, it applies to all of the other elements too.
(Distribution Rule) unless a contrary purpose plainly appears in the statute.
 1.04(5) violation is not a crime and you should only get a fine.
 SL should only be reserved to violations; every offense that does not require mens rea is a
violation.
• General and Specific Intent
o Specific intent (old common law language): basically, refers to purposefully and knowingly. The mental
element of any crime any fact that negates this negates the mental element of the offense.
o General Intent: negligently and recklessly. To commit any crime will suffice, the general question of the
D’s guiltiness.
o You cannot be convicted of a crime where you do not have the requisite intent.
o MPC Culpability 2.02 – mens rea requirement/ definition
 The modern trend in American jurisdiction to use categories of culpability adopted and refined
by the MPC.
 4 levels of culpability (1) purpose (2) knowledge (3) recklessness (4) negligence
 Requires that one of these levels must be proved with respect to each “material element” of
that offense which may involve…
 (1) the nature of the forbidden conduct
 (2) the attendant circumstances
 (3) the result of conduct
 Recklessness involves conscious risk creation – conscious awareness of a substantial and
unjustifiable risk.
 Negligence does not involve a state of awareness – the actor should have been aware of that
risk
 Deliberate ignorance and positive knowledge are equally culpable
 Purposefully and knowingly replace specific intent – tend to be enjoined
 (1) Purposefully – desiring a certain outcome
 (2) Knowingly – knows with a high degree of certainty the results will follow the
commission of the act.
 Does not necessarily include desire.
 (3) Recklessness – the disregard of known risk. Knowing a risk and failing to take
adequate measures (NOT failing to discover a risk)
 (4) Negligence – failing to take account to heed to perceived risk when a reasonable
person would have
• Mens rea cases
o Morissette v. US
 D was picking up bomb materials from an Air Force bombing site
 It was illegal; he thought it was an abandoned property
 Held: The court held that mere omission of any mention of intent from the criminal statute was
not to be construed as the elimination of that element from the crimes denounced, and that
 where intent was an element of the crime charged, its existence was a question of fact to be
determined by the jury.
o People v. Dillard
 D riding bike with large loaded automatic gun. This was a major safety concern.
 CA recognizes certain regulatory offenses enacted for public safety and are not criminal in
nature and do not require actual culpability.
 Held: society has a legit interest in D knowing if a gun is loaded or not before going out. The
statute did not violate due process.
o US v. Wulff
 D was charged in violation of a federal crime for selling migratory bird parts, no culpability. This
felony with a max penalty of 2 years and a 2K fine.
 The elimination of criminal intent does not violate due process when (support for liability)
 (1) the penalty is small
 (2) where the conviction does not gravely “besmirch” one’s reputation
 Held: the statute does not meet either of these requirements and therefore is unconstitutional.
o Elonis v. United States
 Rap songs about ex-wife. Violent threats were made. It is a crime to deliver threats through
interstate commerce.
 Bad jury instruction: Should not have been told that both D intended the communication and a
reasonable person perceived a threat. (only required that D intended the threat)
 Held: Federal crime liability does not turn on facts without considering the D’s mental state.
Reasonable person standard only appropriate for tort. Reversed.
o Regina v. Faulkner
 D accidentally set ship on fire when he trying to steal rum. He had no intention to do this
though. Judges say you need the intent to do the very act you are charged with.
 This case shows why mens rea is very important especially with respect to intending certain
outcomes
• Mistake of Law (bad defense)
o Mistake as to offense definition generally is not a defense.
o It can be a defense when:
 (1) Mistake to offense definition (insufficient notice or when crime has not been in common law)
 (2) Mistake to legal circumstances (we are more sympathetic to this one)
 (3) Mistake due to erroneous official pronouncements (public official with rule making authority
or a judge)
 Why should we charge mistakes of law?
 Victimless crimes – culpable or not?
 Hard to understand
 Notice requirement
 Good faith acting on bad advice
o Retribution is the most important to the MPC. D must intend a real threat – It
matters what the alleged wrongdoer is intended.
• Mistake of Fact (good defense)
o Where someone misunderstands a fact that works against an element of a crime.
o Mistake of fact not available to the D when they are guilty of another offense, had the situation been
the way they supposed. Transferred intent.
o Mistake must be honest and reasonable.
• Mistake of Law cases
o Lambert v. California
 CA felony registration case
 Held: rare exception arises when new criminal statutes or ordinance departs significantly from
preexisting law and there is inadequate publicity or other notice.

 o US v. Baker
 D sold counterfeit watches illegally. D claimed that the prosecution needed to prove that he
knew the act was criminal. (was previously civil)
 Held: he had all the requisite mental states for all elements of the crime. Just because you did
not know it was a crime generally is not a defense. He had notice because it was a civil violation.
o Cheek v. US
 D stopped paying his taxes because he sincerely thought the federal income tax was
unconstitutional.
 Offense he was charged with required the D to act willfully.
 D said he acted on advice from a group who believed taxes were unconstitutional and
therefore he did not willfully commit the violation.
 Criminal law punishes malice and culpability not what is reasonable. Cannot rely on
advice from private people or private counsel.
 Held: willful violation of the law is sufficient even if good faith beliefs of unconstitutionality.
Mistake of law is innocent mistakes, not for people who just don’t follow the law.
o Commonwealth v. Twitchell
 Religious parents followed MA attorney general guidance that parents have right to withhold
conventional medical tx for child.
 Held: good faith reliance on an official government interpretation can serve as an excuse to the
lower mens rea requirement
 Mistake of Fact cases
o People v. Bray
 D had been convicted of crime in KS before moving to CA. There was confusion on if he was a
felon or not. He thought it was misdemeanor and court had trouble figuring this out too.
 D knew the law, but his understanding of the legal circumstances (fact) was the issue
 Held: knowledge that one is a felon becomes relevant where there is doubt that D knew he
committed a felony. Under these circumstances, the instruction as to mistake of fact or legal
circumstance should have been given.
 When someone’s status is both a question of fact and law, then they cannot be convicted.
o Rehaff v. US
 Immigrant on student visa got bad grades and was kicked out of school. It was unclear if he
knew he had to leave the country. He went to the gun range and there was a statute that
prevented an illegal alien from shooting or possessing a gun
 D defense: he was unaware that he was engaged in unlawful activity
 Held: he must know his possession and his statute and the prosecution must prove mens rea as
to all material elements.
 Impure SL: knew you had a firearm but did not know about your status
 Congressional intent: knowingly modifies for all elements, vicious will
o Regina v. Prince
 D took 14 year old from her dad and the court debated whether or not the D needed to know
that was she underage
 Held: Court said that it did not matter, he is guilty regardless. Strict Liability is still permissible
with clear legislative intent.
o People v. Ryan
 Illegal to have 625mg of hallucinogen- does the D need to know the weight requirement? Yes.
 Defendant had 900 + grams of shrooms. He moved to dismiss for insufficient proof he knew how
much psilocybin was in the shrooms.
 If any material element of an offense lacks a mens rea requirement, it is strict liability. However,
there is no clear legislative intent to make it SL.
 NMR: Where the intent is unclear mens rea is applied to all material elements.
 Capacity for Mens rea
o Mental Illness
 Hendershot v. People
  D assaulted his GF.
 Can evidence be excluded about mental impairment that may negate mens rea for a
nonspecific (reckless or negligent) intent crime?
 No. D have a right to provide evidence. Denying them this opportunity lowers the
prosecutions burden of proof and violates due process.
 Common law usually did not allow mental defenses with general intent crimes.
 MPC 2.04: mistakes negate culpability, they care about how the world is perceived by
the defendant.

o Intoxication
 Intoxication is an affirmative defense (BOP shifts – preponderance of evidence on D if not self
induced or pathological) (MPC)
 Three Types
 Voluntary: choose to become intoxicated or notice you are and choose to anyway
 (2) Involuntary: not intoxicated by one’s own choice
 (3) Pathological: dramatically unexpected response to an intoxicant
 MPC 2.08 Intoxication
 It not a defense unless it negates an element of the offense
 Does not matter with mens rea requirement for recklessness
 Intoxication itself does not constitute a mental disease
 Common Law Intoxication
 Voluntary intoxication negates specific intent (knowledge or purpose) but NOT intent
(recklessness or negligence)
 Must be VERY intoxicated to get this defense
 Intoxication cases
 State v. Cameron: D was drunk and attacked the cops. Can intoxication be a defense for
a specific intent crime?
o Yes.
o But in this case, she was not that drunk and it was not a defense.
o Held: evidence of intoxication might be included if appropriate, but in this case
it was not because she was not drunk enough.
 Montana v. Egelhoff: States can also take away the intoxication defense by defining
their offenses. Man found with dead friends and a gun. Example: “but for voluntary
intoxication you would have the specific intent of mens rea”

Homicide

MPC: Murder Common Law – not unitary; murder (NMR)

1 – Purpose or Knowledge
2 – Extreme Recklessness (presumed with certain
felonies – robbery, rape, etc.) (show extreme
indifference to the value of human life)
1 – First degree - premeditation or commission in
the court of a dangerous felony (“felony murder”)
2 – Second degree – specific intent without
premeditation or adequate provocation; extreme
recklessness (“abandoned + malignant heart”)

3 – Special treatment of felony murder

MPC Homicide (minority)
 The MPC only has one kind of “murder” which occurs through:
o (1) Purpose or knowledge that a homicide will occur because of your voluntary actions OR
o (2) Extreme recklessness: extreme indifference to the value of human life
 This is presumed through certain dangerous felonies like kidnapping, robbery, arson, rape,
felony escape, etc.
 Sounds a lot like felony murder but it is not.

Common Law Homicide: The killing of another person with malice aforethought.
 First Degree Murder:
o Intentional and pre-mediated or in the course of a serious felony defined by statute.
o Premeditation created through intent and premeditation: unspecified length but enough time to “turn it
over in your head”
o Usually 20 years or more with or without parole
o Death penalty: usually only with first degree with additional aggravating circumstances
o Premeditation is a multifactor test
o Factors supporting premeditation: (Anderson Factors)
 What the D did prior
 Obstacles (amount of times you could walk away)
 Subsequent conduct (stress, calm feelings versus stress worries from heat of passion)
 Prior relationship that would give rise to motive to kill
 Instrumentality/plan (poison v. gun)
 Does the D have control over the situation
 Are there alternatives that are not homicide
o Factors against premeditation:
 Diminished capacity
 Provocation
 Short amount of time
 Sloppy commission of crime/ frenzied activity
 Self-defense
 Emotions/fear/anger
o Why does common law care so much about premeditation?
 Greater culpability if D gives forethought to killing
 Dispassionate killer poses greater danger to society
o United States v. Watson – premeditation case
 D struggled with cop and paused before killing officer.
 Held: formation of the plan to kill can happen in short amount of time before the killing.
 Second Degree Murder:
o Specific intent without premeditation or adequate provocation
o Extreme Recklessness
 Francis v. Franklin: intent case - inmate runs from dentist appointment
 Held: Prosecution cannot rely on presumption to establish mens rea: instruction cannot
tell jury to assume that D intended the natural and probable consequences of act
resulting in death, even if presumption is rebuttal because this instruction would be
inconsistent with the presumption of innocence and would violate due process.
 Prosecutor must prove every element
o Provocation must be adequate according to reasonable person standard
o Must have in fact reacted to the provocation (words alone cannot be adequate provocation)
 Mayes v. People: husband throws alcohol that hits lamp and starts fire. Kills his wife.
  Held: extreme recklessness can support a murder charge
o Abandoned and malignant heart murder

MPC: no felony murder Common Law: Felony Murder

technically
Murder:
Extreme recklessness presumed if
homicide occurs during the course
of listed dangerous felonies
1 – predicate must be dangerous
felony
(usually listed by statute)
2 – No additional mental state
required – just intent to commit
felony
3 – Some nexus or connection must
be shown between felony +
homicide (sometimes called
“foreseeability test”)
4 – Confederates are liable too
(majority require foreseeability)

 Felony Murder (charged as first degree murder):

o Elements:
 (1) Homicide occurs in the course of a felony
 Has to be a dangerous felony, some states have predicate lists, and some have tests.
 Predicate list:
o Rape, robbery, burglary, felonious escape, arson, kidnapping.
▪ (2) Only need to prove the mens rea for the predicate felony
▪ (3) Logically connected to the court of the predicate felony
o Proximate cause between the felony and the death
o Occurs during the felony (including flight)
o Common tests: was it done to further the felony? Is there a logical connection?
▪ (4) Confederates are liable too
o Factors: location, time, did the D perceive he was in pursuit, did he still have the “fruits of the crime”, had he
reached temporary safety?
o Accomplice liability: you are liable for the foreseeable homicide committed by your co-felons.
o MINORITY RULE: The victim of the homicide cannot be one the felons.
o Merger Rule: for Felony Murder the predicate felony CANNOT be manslaughter or assault.
Need an independent felonious purpose.
o Why? All homicides require an assault and all manslaughter results in a homicide.
 o Without Merger rule, all homicides could be upgraded to first degree murder. Let’s make the
government do their job and not give them shortcuts.
o State v. Shock: man beats kid but did not intend to kill the child.
 Holding: conviction for felony murder requires that the D commit a collateral felony that is
separate and distinct from the act which causes death.
o People v. Gladman: D robbed a store and fled. D was located in a parking lot hiding under a car when a PO
came and the D shot him. There was evidence that the jury could conclude that the D was in immediate
flight from the robbery.
o Holding: Five factors to consider when determining if murder was within immediate flight of the
felony.
 (1) Physical proximity
 (2) Time elapsed since the felony
 (3) Carrying fruits of the crime
 (4) If they reached a place of temporary safety
 (5) Still being pursued by law enforcement
o Agency Rule: felony murder will not extend to the acts of a 3 rd party (NMR)
o People v. Washington: robbers try to rob gas station but owner kills
 Holding: D cannot be guilty of felony murder if the act of killing was not committed by a D or
the D accomplice while acting in furtherance of the felony (common design). Or if they
provoked the deadly situation through a gun battle, they would be on the hook.
o Exception: People v. Hickman – robber held liable for death of officer shot by another officer while
chasing them. Showed no intent to kill but those who cause in any direct or indirect way the death
of an innocent victim is guilty of murder. Example of the proximate cause approach.
o Causal connection between felony and death can be established by requiring that:
o Death be foreseeable or probable as a result of the felony.
 State v. Martin: NMR. guys go to a party and get into a fight and get kicked out. Leave bag
of trash on fire which ignites the building and kills a passed out party goer. Jury needs to die
death back to the volitional act.
o OR that act be committed by a participant in the felony
o OR that felon directly kills rather than somehow cause death
o OR death be caused in the commission of the felony or in furtherance of felony
o People v. Cavitt: woman and two men rob woman’s stepmom and stepmom dies while tied up after
the men had left. Men still liable despite having left.
 Holding: need causal relationship between felony and homicide. Doesn’t matter who
specifically killed her.
 Death Penalty (ONLY APPLIES T FIRST DEGREE/FELONY MURDER)
o Aggravating Circumstances:
 Escape or flee punishment
 Compensation
 Grave risk of death for people other than those being killed
 Murder is particularly torturous or cruel
 Judicial officer
 Knew victim was under/older age
 Knew victim has disability
o Mitigating Circumstances
 Under the influence
 Age at the time of the crime
 Duress (force, desperation)
 Accomplice or the actor?
 Lack of criminal history
 Consent
 EMED
 o New capital punishment statutes take two forms
 (1) Mandatory or automatic death penalty
 (2) Guided discretion statutes (NMR)
 Sentencer chooses life in imprisonment or death penalty based on aggravating or
mitigating factors.
o Olsen v. State
 D robs a bar and then shoots three people in the back of the head. He got a felony murder and a
1st degree murder conviction.
 Aggravating circumstances: atrocious and cruel (not enough evidence), risk of death of 2 or
more (needs to be bystanders not the victim), avoiding lawful arrest (he admitted to killing then
so they could not be witnesses), premeditation felony murder (the fact it was premeditated and
in commission of a robbery)
 Jury instruction issue with mitigating circumstances
 The jury was told they may consider but they should have been told shall
 The jury must consider all mitigating circumstances but the way they weigh the
circumstances is discretionary.

MPC: Manslaughter Common law

1 – Recklessness 1 – Voluntary; adequate provocation (heat of

2 - EMED (extreme mental or emotional
disturbance) for which there is a reasonable
explanation or excuse as determined from the
standpoint of a person in the D’s situation
passion)
2 – Involuntary – recklessness or negligence
Negligence is rarely criminalized.

 Common Law Manslaughter:

o Homicide without malice
o (1) Voluntary: intentional killing that lacks malice because the killer acted either… (a) wrongful self
defense OR (b) heat of passion after adequate provocation
o (2) Involuntary: recklessly or highly negligently
VOLUNTARY Manslaughter Cases
o People v. Walker
 Provocation
 (1) Event
 (2) Objective adequacy
 (3) D was provoked (subjective)
 (4) No cooling off time
 Man tries to force people to gamble and then attacks them with a knife. Man is disarmed and
incapacitated and the D stabs him anyways. D wanted self defense and then if that did not work
manslaughter bc of provocation (evidence supports voluntary manslaughter)
 Holding: you lose the defense of self defense when the D becomes incapacitated. (NMR)
o Imperfect self defense can transfer to manslaughter
o Ex parte fraley
 Man kills person who killed his son a year earlier and was subsequently acquitted
 Shot him twice and came back and shot him four more times
 Revenge killing is murder, he had proper cooling time. (NMR)
o People v. Barry
 Israel woman torments husband who eventually kills her.
o Holding: murder may be reduced to voluntary manslaughter where the heat of passion was the
product of a continuous period of provocation resulting intermittent out breaks of rage leading to
final act. Subjective more in the MPC realm
 o
Linninger: You could get full credit arguing that this is first degree murder because he admitted at
one point that he did come there to kill her.
o People v. Wu
o Woman kills son then attempts to kill herself after husband abuses him and fails to bring her to
America as promised.
o Cultural background: believed she could actually care for him in the afterlife
o Held: D was entitled to an instruction on her cultural background to help illustrate the emotional
disturbance she went through.
o NEW RULE: MPC 210.3(b) would a reasonable person be moved by the circumstances? Then the
MPC says that reasonableness of such explanation or excuse shall be determined by the view
point of someone in the actor’s situation, perceiving the circumstances as the actor would have
perceived them.
o Rowland v. State
o D visits wife at friend’s house and sees that she is sleeping with someone else. He attempts to
shoot the man but kills his wife instead.
o D wants a manslaughter instruction. Court determines that adultery is adequate provocation.
o Words alone are not sufficient to invoke provocation.
MPC is more about individual capacity – not social order
INVOLUNTARY Manslaughter Cases (recklessness or negligence)
o Commonwealth v. Welansky
o Fire happens at a club and doorway obstructions caused more deaths. The owner knew of this
risk.
o He did not intend to kill anyone so he as charged with involuntary manslaughter.
o Omissions can be the basis for criminal liability when there exists a duty.
o Holding: Recklessness can be the basis for involuntary manslaughter.
o State v. Williams
o Native couple charged with manslaughter which in this state can be based off negligence.
o They did not take their baby to the hospital and she died.
o Holding: if person commits ordinary negligence and such negligence proximately causes the
death of another a person is guilty of involuntary manslaughter. (minority view – always
uncomfortable with negligence being the basis for criminal sanctions)
Causation
 Cause in fact
o Something is a cause in fact if it is a but-for cause.
 Basically, if something is a substantial factor in causing the harm. Thus, where something is
strictly a but-for-cause, but only contributes to the harm in a small way, it is not treated as a
cause in fact.
 If there are two causes in fact which are not related to each other, and both causes are
necessary to cause the harm, both are causes in fact – both are substantial factors, both are but-
for causes.
 What if either alone would be sufficient to cause the harm?
o The second cause is still a cause in fact because accelerating when a harm
occurs is still to cause the harm.
o However, under the majority criminal law rule, the first cause is not a cause in
fact because you cannot say the harm was caused twice. But the D is probably
guilty of attempting to commit the completed crime.
 The minority rule is that it is too ridiculous to speculate about which of two potentially
causal factors caused the harm, so the first is also a cause.
o Legal or proximate cause: the more culpable D mental state the further the
proximate cause net extends.
 Thus, if the D mental state is purpose or knowledge it is more likely that
a court will say a later cause does not cut off the D liability then if the D
 mental state had just been reckless or negligent. Foreseeability is not
the only test for proximate cause in criminal law.
o D mental state is purpose or knowledge:
 If the harm caused is to a different person or property than the D
intended, the D is still the legal cause (sometimes called transferred
intent but nothing to do with intent, it is a scope of liability rule.
 Other causes of harm will not cut off the D liability unless they are so
bizarre that the court decides it is unjust to hold the D liable for the
resulting harm.
 Where the additional cause is victim’s irrational refusal to seek
treatment or aggravation of harm, D conduct is still likely to be the legal
cause, unless the victim’s response is super weird.
 Where the additional cause is acts of a third party, the same principle
above apples.
 Where the additional cause is acts of the defendant alone, same
principle.
o D mens rea is reckless or negligent
 If the cause preexisted the D conduct, the D conduct is still a legal cause.
 If the cause followed the D conduct is still likely the legal cause unless
the victim was being super weird.
 Same thing if the cause followed the D conduct
 Joint risk taking cases: where the person who is killed is an
innocent bystander, courts usually say that the acts of all risk
takers are causes in fact and legal causes regardless of which
risk takers actually did the killing.
 However, when the person killed is one of the risktakers, some courts
say that the survivor is not the legal cause of death while others would.
 D liability based on strict liability (felony murder, etc.)
 Most restrictive application of proximate cause; death must be
the natural and probable consequence of the D’s commission of
the crime.
Justification and Excuse – defense strategies
 Justification: D’s act was not wrong under the circumstances. (self defense)
o BOP = prosecution must disprove it
o Rationales of punishment support justification more than excuse
o It is a rule of conduct and rule of decision
o 3rd parties can help with justified conduct.
 Justification - Excuse: The act is wrong but is tolerable because the circumstances reduced culpability
o BOP = preponderance of the evidence on the D.
o Does not calculate cost/benefit rule: rule of decision
 MPC 3.04 (usually NMR follows this) (Self Defense)
 Self-Defense
 Reasonably believe
 Threat of death or serious bodily injury is
 Imminent and
 The force used was reasonable and necessary to prevent the harm
 Usually, the D may not claim self defense if they were the initial aggressor unless
 The victim escalated the situation to a higher level of danger
 D stops the aggression and withdraws, this is communicated to the victim.
 People v. Gleghorn
  D enters garage where victim living and is asleep. D made threats and set some things
on fire. Victim shoots an arrow at the D and comes down to be beaten severely by the
victim despite no longer being a threat.
 Held: Self defense must be proportionate. (1) self defense is not available when the
threat is gone (2) D started with serious harm, cant cite the victims escalation to justify a
self defense. (3) continued and severe beating was not justified.
o If someone initiates a confrontation by committing a simple assault not serious
than the victim can defend themselves and respond appropriately. However the
victim cannot respond unduly violently and if he does then the person who
started the fight can you self-defense and not be culpable.
 Mistake of Force
 Majority Rule (also MPC): Mistaken self-defense = acquittal
 Minority Rule: Mistaken self defense is imperfect and may reduce a murder charge to
manslaughter
 Reasonable belief
 In most states the fact that it is reasonable is enough
 Most jxn will consider the circumstances of the actor
 If court determines that the belief was unreasonable
o Common Law: Imperfect self defense (murder could be mitigated to
manslaughter)
o MPC: If the actor was reckless or negligent in their belief that they can still use
the belief as a defense for a crime with mens rea of knowledge or purpose.
 Deadly force
 When can deadly force be used? (in most states)
o Threat of death or serious bodily injury (or a reasonable belief)
o Duty to retreat
 Unless:
 Stand your ground state (NO duty to retreat) (minority rule)
 Castle doctrine state
o You do not need to retreat from your home or place of
work unless the attacker is also a person who lives or
works with you there.
 Can you use deadly force to protect property?
o Not really.. but if you are concerned that the person also could do harm to you
or another then yes you can.
o NO spring guns.
 People v. La Voie
o Facts: inebriated driver and passengers make continuous contact with D car and
then approach and threaten D. D then shot and killed one of them.
o The D had the right to defend himself against the threatened assault.
 Likely he could not retreat safely.
o Holding: deemed a justifiable homicide as the D could reasonably believe that
he was imminent threat of death or great bodily harm.
 State v. Leidholm
o Woman stabs husband to death while he is sleeping after argument where he
physically abused her.
o Holding:
 (1) person must actually believe and it must be a reasonable belief to
justify conduct.
 Use objective standard but fold in circumstances as perceived
by the defendant and their life circumstances. Jury question.
 (2) Court must give battered women instructions when it applies
  (3) If assaulted in home
 People v. Ceballos
o No spring guns
o Life < property
o Even if he had been there likely did not have a self defense claim.
 Defense of others
 You may use defensive force in order to protect a third party if that third party would be
allowed to use that force in their own self defense
 What about mistake if force to protect a third party?
o MINORITY RULE: you must be correct, no mistake of force
o MAJORITY RULE: same as mistake in your own self defense
 Common law: mitigation to manslaughter if force was unreasonable
 MPC: only a defense for purpose/knowledge crimes
 Law Enforcement
 Rules for Police (MPC, not functionally different than common law)
o Force not allowed unless
o Notice that you are police unless you cannot reasonably do so
o If you have a warrant, it has to be valid or you have to believe that it is
 Generally, you cannot use deadly force to make an arrest
o Exceptions:
 Arrest if for a felony
 Fleeing person poses a significant threat of death or serious injury to the
officer or others
 Or at least a reasonable belief that this is true
 Justification - Necessity: MPC 3.02
 (1) There must be a grave harm that is imminent
 (2) Further this harm must be greater than the harm the statute seeks to prevent
 (3) This is a proportionality analysis
 (4) Your solution would avert the harm
o Political Necessity (historically has not been successful but maybe some wiggle room now)
 Situation of emergency arising without fault on the part of the actor concerned
 Emergency is imminent and compelling to raise a reasonable expectation of harm directly on the
actor or those he is protecting.
 No reasonable way to avoid emergency without criminal act AND
 Injury from the emergency is of sufficient seriousness to out measure criminality.
o The Queen v. Dudley and Stevens
 Where the sailors ate the young sick boy when they were starving, would have died if they did
not do that.
 The case illustrates that killing innocent people to spare other innocent people is never excused;
this is NOT the law in the US. Sometimes, killing people can be excused depending on the
circumstances.
 There was no vote or decision, they killed off the sickest one. The court has a problem with this.
o People v. Unger
 The prisoner escaped to avoid being sexually assaulted because they would have killed him if he
reported the crime. D wanted necessary defense instruction and also duress but there was no
third party coercing him to leave so could not use the second option.
 Court finds that the trial court should have given the necessity defense
 Factors to consider (none dispositive)
 Prisoner is faced with specific threat of death, sexual attack, or substantial bodily injury
in the near future.
 There is no time to complain to the authorities or there exists a history of futile
complaints
  There is no time or opportunity to resort to the courts
 No evidence of force or violence used on other people during the escape
 Prisoner immediately reports to the authorities when he has attained a position of
safety from the immediate threat.
 Excuse - Duress:
o Elements:
 Reasonable belief that
 Threat of imminent infliction of death or serious bodily harm to self (or family member)
 Actor has no alternatives
o We acknowledge that the conduct is wrongful but it is understandable. It involves a response to human
threat rather than a natural danger. Duress is different because the conduct is committed to further the
criminal project of the aggressor rather than to resist.
 Duress will not excuse harm that is disproportionate to the imminent threats.
 NMR: homicide is never excused by duress.
 The MPC says that duress could be an affirmative defense to homicide or threat of force against
a person if a person of reasonable firmness couldn’t ignore the coercion.
 But not available if you put yourself there. (like a mob situation)
 Felony murder and duress
 If you do not have the culpability for the underlying crime then you lack the mens rea
for the felony murder.
o State v. Hunter: hitchhiker charged with felony murder after the driver killed a
bunch of people and was threatening the hitchhiker.
 Holding: Homicides committed directly by the D under duress cannot be
excused, duress should be a defense where the 3 rd party coercing the D
is the one who actually does the killing without the help of the D.
(NMR)
o State v. Crawford
 D commits a bunch of crimes to try to pay off a drug dealer who was threatening his wife and
children. He also did a lot of other weird things that were not necessary.
 Holding 1: Threat of future harm is not sufficient for duress defense if that harm is not
imminent. (NMR)
 Holding 2: In order for duress to be established actor must show they were without a
reasonable opportunity to escape or withdrawal from the criminal activity. (NMR)
 The threat must be continuous throughout the duration of the crime.
 Consent (common law mirrors MPC)
o Consent negates the element of the offense except for bodily harm crimes (ex – trespassing or sexual
assault)
o For bodily harm crimes
 Only if the physical harm is not serious
 Also applies to reasonably foreseeable injury in a sport or other lawful activity
o Ineffective consent does not count
 Legal incompetence
 Minority
 Intoxication
 Mental disability
 Law says the person cannot consent (statutory rape)
 Entrapment
o Elements
 The government tempts an innocent person to do something they would not normally do AND
 The inducement was overwhelming
o Tried to a court, not a jury
 Courts are better at interpreting the actions of government officials than a jury would be
 o Not available as a defense if bodily harm is part of the conduct charged
 No amount of money or opportunity would make a reasonable person commit homicide
o Burden of proof: D shall be acquitted if proves by preponderance of evidence that conduct occurred in
response to entrapment
 Insanity
o People are not culpable without the requisite mental state at the time of commission.
o There is no national majority rule for insanity, but it usually some form of the M’naughten test
 Kahler
 SCOTUS held that both prongs of M’naughten are not required for due process. States
get to determine their own standard for insanity (NMR)
o McNaughten Rule:
 Most common and restrictive rule approach to insanity
 Two prongs:
 (1) The D did not know the nature and quality of their act (cognitive capacity)
 (2) The D did not know what they were doing was wrong (moral capacity)
 Serravo:
 Holding: knowing something is illegal is not the same as knowing something is right or
wrong (NMR)
 Courts can use objective societal standard for moral wrong and not he D’s own standard
 Deific decree: if you claim you were compelled to do something by god, will that be an
exception?
o D killed wife while she was sleeping and said that god made him do it
o Durham test: Volitional capacity (irresistible influence) – whether you can control your conduct or abide
by the law.
o ALI test:
 Volitional test
 Criminal behavior does not qualify an act as a mental disease or defect
o MPC:
 As a result of the D mental disease or defect they lacked substantial capacity to understand the
criminality of their conduct or conform conduct to the requirements of the law.
 Focused on culpability
Inchoate Crimes – Solicitation – Attempt – Complicity – Conspiracy
 Why do we punish the smallest act in furtherance of a crime?
o We want to give them a change to change their mind; deterrence
o In effect, we would be punishing thought crimes without some actual act.
 Attempt
o Mens rea
 You need specific intent for attempt
 MPC needs requisite intent plus a substantial step in the commission of a crime.
 Common law is beyond mere preparation
 No negligence or recklessness for mens rea
 The mens rea for attempt has to match the mens rea of the actual crime committed
o State v. Lyerla
 Crazy guy on road shot at car full of women
 You cannot attempt recklessness; illogically impossible.
 They charged with him attempt to commit reckless murder but reckless
murder does not have a specific intent requirement.
 Lininger said this charge would be best reckless endangerment for the
other two girls, not attempted murder.
o Actus reus
 Common law
 Physical proximity
  Unequivocally clear intent to commit the crime
 Dangerous proximity
 Preparation is not enough
 People v. Murray
o D had plan to marry his niece got the judge to make plans to elope.
o Holding: An attempted crime requires an act that leads directly toward
completion of the crime and goes beyond mere preparation for the attempt.
o Shows how reluctant courts are to punish preparation
o MPC – more than mere preparation
 Substantial step
 Lying in wait
 Enticing the victim
 Checking out the place for the crime
 Unlawful entry of the structure for the crime
 Possession of materials for the crime
 Soliciting and innocent agent to engage in an element of the crime
o People v. Staples: guy tries to dig through floor to access bank, but gets caught and attempts to say he
abandoned his efforts.
 Holding; if the acts of D constitute an attempt to commit a crime, as opposed to mere
preparation, he cannot raise the defense of abandonment. (NMR)
o Why require a higher actus reus?
 We do not want to criminalize what would normally be lawful behavior
o Transferred intent for homicide
 Intent always will transfer if you attempt to kill someone and actually kill someone else
 Exceptions  People v. Bland: guy shoots into car trying to kill driver and kills other passengers
 Holding 1: transferred intent for a premeditated murder charge only works for third
parties actually killed not injured
 Why does it change when the person is actually killed?
o It is closer to the main objective of the shooting
 Holding 2: (Linninger) if you undertake an act that will certainly kill the target and
nearby bystanders, you are on the hook for attempt for the bystanders (NMR)
 Kill zone: If the means to kill someone puts others in the same area in danger of death, it
is considered intent to kill bystanders.
 Knowledge of collateral damage supports a finding a direct attempt
 Holding: intent to kill a target transfers to others accidentally killed but not to others merely
injured (NMR)
 Except kill zone theory
 If you commit the homicidal in a way that poses danger to other people around then
you have the mens rea to kill the bystanders
o Charge the mens rea to the actual victim and don’t get creative
 Intent always will transfer if you attempt to kill someone and actually kill someone else
 Abandonment
o Common law: cannot abandon
o MPC:
 Affirmative defense if
 Actor completely voluntarily abandoned the crime or prevented its commission
 Two types of abandonment, voluntary and involuntary
 Voluntary -> occurs when the D is motivated to drop his plan by his conscience or a
change of heart
 Involuntary -> NOT a valid defense, occurs when D is intercepted or caught in the act by
someone else.
o People v. Rizzo
  Group tries to rob man withholding payroll funds
 Holding: a D may not be convicted of attempt unless the D intentionally
commits an act tending to the commission of a crime, which is so near
to accomplishment of the crime that in all reasonable probability the
crime itself would have been committed but for timely interference.
 But only those acts which advance very near to the accomplishment of
the intended crime (substantial step) will support an attempt conviction.
 In other words, the act must have a dangerous proximity to
successful commission of the crime.
 Cannot just get scared or overwhelmed because you are about to get caught
o State v. Formella (school kids abandon helping friends steal a test key)
 Holding: An accomplice’s withdrawal from a crime requires an overt act
that expresses his disapproval to authority figure.
 Not an accomplice if:
 He terminated his complicity in the crime
 He wholly deprived his complicity of effectiveness in the
commission of the offense.
 Does not apply to accomplices who also do not recount.
 McQuirter: shows the importance of precise language in attempt laws
o Facts: AA man arrested for attempted rape of a white woman
 Impossibility
o This is a weird standalone unit.
o Impossibility is sometimes a hybrid of fact and law that is what makes it hard
o We care legal impossibility as a defense, not factual impossibility
 Example: we won’t charge you for growing marijuana in OR even you think it is breaking the law.
 Could charge you for firing into a room that you think has a person in it but is really
empty.
 Why? Don’t want to necessarily reward people for being crappy criminals
o Impossibility Doctrine
 Legal impossibility = good defense
 Legal impossibility: the crime you intend to do is not actually a crime
 Factual impossibility = not a good defense
 Factual impossibility: when the crime cannot be committed due to a complication the D
is not aware of.
 Booth v. State
 Man steals coat to sell to his attorney. He is apprehended by police who use the coat in
a sting operation to try to catch the lawyer.
 Holding: the act went towards the commission of the crime was not properly done and
therefore he cannot be guilty.
 Solicitation
o Mens rea: intent to solicit a person (specific intent)
o Actus reus: generally, urge or pay someone to commit the crime.
 The words themselves are the crime.
 There does not have to be an attempt for the actual crime
 People v. Lubow
o Two men owe debt to third and solicit the debtee to commit a jewlery sales
crim. Third man went to police with the other twos ideas.
o Holding: crime solicited does not need to be committed to be guilty of
solicitation. There does not even need to be an attempt.
 Undelivered solicitation
 Still enough. It is the words, not whether or not it was successful, delivered, attempted,
anything.
 o Renunciation: it has to be enough to stop the crime from being completed
 Either persuade the person to not commit the crime or call law enforcement (but the cops have
to actually prevent the crime)
o Rationale for Solicitation
 You shouldn’t have to let people commit the crimes before the police can get involved
 Especially crimes that involve a victim
 If people have to follow through, we would likely see an increase in crimes.
 Complicity (aiding and abetting/accessory/accomplice liability)
o MPC and the common law align here.
o Helping ever so slightly could count as aiding and abetting. But mere presence is not enough.
o The charges are distinct if they both require proof of an element the other foes not.
 The unique actus reus for attempt is a substantial step beyond mere preparation – Conspiracy
needs an overt act (even minor) that shows the plan is going int effect.
o Committing the criminal act through the actions of another by:
 Actor has the culpability of the object crime OR
 Actor is legally responsible for the person who committed the crime OR
 Actor is an accomplice of the person who commits the crime – this is the most common
 Has the purpose of promoting or facilitating the offense (solicitation)
 Help plan the object crime
 Has a duty to prevent the commission of offense and fails to do so (ex- police officers)
o Mens rea
 Intent to aid or encourage the offense w/
 Rosmund v. US: D joined friend to sell pot. Buyers ran and another friend of D shot at
the buyer. D was charged with aiding and abetting use of a gun.
o Holding: A person is liable for aiding and abetting a crime if a person takes an
affirmative act in furtherance of that crime with the intent of facilitating the
crime.
o D must have full knowledge of the crimes commission before hand.
 The mental element of the offense itself
 Must intend for the principle to complete the offense
o Etzweiler: D lends car to drunk driver who kills people in car crash
 Holding: cannot have mens rea for aiding and abetting unless you have
express purpose of facilitating the commission of the target crime.
(NMR)
o Actus reus (this is easier bar to meet for this crime)
 An act, conduct, word, signals, that incite, instigate, or encourage a crime.
 If a jury can infer that the D acted in concert w/ the person committing the object crime and
 That act aided in commission of the crime
o State v. Ochoa
 Residents of mining town protest and attack the cops
 Holding: your held can be as slight as inhibiting aid for the victim. Mere
presence is not enough. Had common purpose and intent can be
formed at the scene of the crime.
o Renunciation
 Terminate complicity prior to the act AND
 Stop the crime altogether OR
 Tell the cops or the intended victim
 You cannot be an accomplice if you are the victim
 Statutory rape for example
o Public Policy
 Aiding and abetting for secondary crimes
 Why charge people for
 o Another way to deter/reason not to aid and abet
o Encourage helper to derail the crime
o Incremental deterrence
 Disadvantage
o Broad strokes may impose criminal sanction on innocent people
• Conspiracy
o An agreement to commit a crime of any sort
 Time frame = continuous offence until you revoke it with an overt act.
 Cannot conspiracy to commit a crime with a negligent mens rea – legal impossibility
o Mens rea: Intent to commit the object crime
o Actus reus: an agreement/plan between two or more people to commit a crime AND an overt act
(smaller than the act needed for attempt liability)
 Can be inferred from action
 Griffin v. State
o Car accident turned into a group of people attacking police officers,
spontaneous
o Conspiracy charge was the issue her, was there an agreement to attack?
 Tacit agreement: sufficient for actus reus. Government can prove
implicit agreements through circumstances showing an interference of
common design.
 People v. Lauria
o Phone prostitution ring case
o Mere knowledge is not enough is the supplier’s complicity is just that they
*might* be used illegally. (NMR)
o Prosecution must show that the supplier had
 Purveyor of goods acquired a stake in the venture (profits beyond the
usual use of the service)
 No legitimate use for the goods and services
 Volume of the business is disproportionate
 United States v. Diaz
o D accomplice brings gun to cocaine sale and D is charged with conspiracy to
distribute cocaine and gun charge
o Holding: each conspirator may be liable in a conspiracy for the acts of the other
conspirators done in furtherance of the conspiracy
 ONLY common law
 Foreseeable that gun would be brought to drug deal
o Pinkerton liability (two part test) – you accept acts in furtherance and
commission of the crime. You are all acting in a way that binds everyone.
 1- in furtherance?
 2- also has to be a natural and foreseeable consequence of the
conspiracy
 This is a tool used for prosecutors to charge liability when felony murder
would be a stretch. – juries may be more comfortable charging
conspiracy than felony murder.
o Note: MPC says that you are not responsible for the unforeseeable acts of
others
o Renunciation
 Have to thwart the object crime.
ATTRIBUTIONS OF CRIMINAL LIABILITY///MERGER CHART

Crime Attempt Solicitation Aid and Conspiracy Felony

Abetting
Distinct Offense? Yes Yes No Yes Yes

Merges? Generic attempt Yes Yes No Depends (usually

usually merges, doesn’t merge, but
but some assault and
statutes define manslaughter can
certain attempts merge where D
as crimes that doesn’t have
don’t’ merge independent
(e.g., burglary) felonious purpose)

When Is N/A If within scope If foreseen If in furtherance Foreseeability can

Defendant Liable of solicitation of conspiracy and be inferred from
for foreseeable nature of predicate
Others’Secondar felony
y Crimes?

Additional Crimes
• Rape/ Sex Crimes
o Definition: Sexual penetration without consent
o Sexual assault is the broader definition where rape lies; which includes any unwelcome touching that
has a sexual intent (usually a deal down charge for Defendant)
o Forums to take rape or sexual assault complaint
 1. Criminal justice system
 BOP beyond a reasonable doubt
 2. Administration of school
 Most severe punishment is expulsion
 3. Civil Court system (tort)
 BOP= preponderance of the evidence
o Rape Shield Law
 An accuser, based on allegations of rape cannot be embarrassed with their prior sexual history.
 Exception: can bring up prior sexual history of the accused.
o Past v. Present
 Evidence of resistance NO longer required
 Evolution of resistance requirement: utmost resistance  earnest resistance  no
resistance
 Corroboration requirement
 Past: could not being case based on victim testimony
 Present: now you can
 Rape shield laws introduced
  Jury instructions
 Instruction that it is easy to fabricate a rape case is gone
 Prompt presentation requirement
 Past: file within three days
 Present: SOL but some jurisdictions allow otherwise
 Use of force requirement
 Past: required
 Present: trending toward non-consent being sufficient but not adopted by all
jurisdictions
 Resistance no longer required in any jurisdiction
o People v. Dorsey
 Woman raped in elevator but no physical force was used
 Holding: look at the totality of the circumstances and implied threat can
be sufficient for rape conviction (NMR)
o People v. Barnes
 D weed dealer was the P neighbor too
 He acts crazy and eventually raped her
 Court found that a reasonable person would have acquiesced
 Focus on the D conduct
 Resistance can cause victims to be further injured and is bad policy.
 MPC Issue
 First line: “Rape is when man who has sexual intercourse with a female that is not his
wife
o Issues
 Gendered
 Implies husband cannot rape his wife
• Theft Offenses
o Generally
 Taking another’s property with the intent to deprive
 Specific intent crime
 Larceny = formerly all encompassing term for robbery
 Was trespassory taking
o Burglary
 Generally:
 Invading building or structure to commit felony
 Formerly required invading a dwelling at night
 Common law elements
 Breaking and entering (more than mere entry, like creaiting an opening lifting up
window at night
 Nonconsensual entering of a building or car
o Dwelling and night are still aggravating circumstances
 With intent to commit felony in that place
 MPC elements
 Either building or occupied structure
 Not burglary if area is open to the public
 Includes misdemeanors
 NMR
 Trespass or consensual entry in a building or sometimes a vehicle with the intent to
commit a crime therein.
o Robbery
 Common law
 Elements
 o Taking property another
o From the victim, person or their presence
o By violence, intimidation, or threat
o Intending to deprive victim permanently
 MPC: requires some serious violence to be threatened or committed
o Inflict serious bodily injury
o Threatens another or purposely puts in fear of serious bodily injury
o Commits or threatens to commit any serious violent felony
 Lear
o Holding: no use of force or violence  so just theft
o Extortion
 Definition: guilty of statutory extortion if someone obtains or attempts to obtain the property of
another by means of threat
 Blackmail
 Spite blackmail: is a demands for payment coupled with a threat to commit an act one
otherwise has a right to do that would inflict harm on the person threatened without
any benefit to the actor.
 Opportunistic blackmail: demand for payment for doing or providing something one has
a legal right not do. That will prevent substantial harm to the person from whom
payment is demanded at minor cost or inconvenience to the actor.
 People v. Dioguardi
 Holding: not necessary for D to have the ability to follow through with his threats, that
induced or played a role in the victims fears, to uphold an extortion conviction.
o Fraud
 Generic definition: taking property by deceit
 Common law elements
 Intent to defraud
 Material misrepresentation
 Victims reliance on imparting of property
 Sattlekau: man put out ad for housekeepers that teases matrimony
 Holding: mix of hope and reliance are enough
 Federal Statute
 Elements (no reliance necessary)
o Intent to defraud
o Material misrepresentation
 Durland v. United States
o Holding: scheme or artifice to defraud can include future facts (NMR)
 Wire fraud
o Elements
 Scheme or artifice to defraud
 Use of phone or computer
 Do not need reliance and is SUPER easy to use
 Mail Fraud
o Elements
 Scheme or artifice to defraud
 Use of mail
 Honest services fraud
o Elements
 Scheme or artifice to defraud
 Includes a scheme to defraud of honest services
 Limited to bribery
o Embezzlement
  Variation of theft
 Stealing things you are trusted with
 Usually committed by employees
• Honesty Offenses
o Perjury
 People lying in a highly formal setting
 MPC: judicial or congressional hearing
 We criminalize it because it undermines the justice system’s foal to find the truth
 Elements
 False statement
 Made knowingly or willfully
 Under oath
 Materiality (the fact that you discussed)
o Two federal perjury statutes
o (1): 18 USC sec 1621 Perjury in judicial proceedings and in proceedings before congress
 (1) false statement
 (2) made knowingly and willfully (hard to prove)
 (3) under oath
 (4) fact at issue is material
 Has a two witness requirement
o (2) 1632 False declaration (more modern perjury)
 Scope narrower just for judicial proceedings
 (1) False statement
 (2) made knowingly
 (3) under oath
 (4) about material facts
 No two witness requirement - just play the video tape. You do not need two witnesses.
 Bronstron – man under investigation for financial crimes and having foreign bank accounts
 Holding: a witness cannot be convicted of perjury based on testimony that is literally
true but was unresponsive to a question asked (literal truth defense)
 Exception: in cases involving concealment of material facts through trick, scheme, or
devise, literal truth defense would not be valid.
 False statements
 Speaking with federal law enforcements
o Don’t speak to fed officer without a lawyer
 Elements
o False statement
 Also written if you have duty to report
o Made knowingly and willfully
o Within federal jurisdiction
o Materiality (of the facts discussed)
 Brogan – union official asked if he committed a crime
o Holding: the exculpatory “no” is not a valid defense  not the same as pleading
the 5th
 Obstruction of Justice
 Elements:
o Obstructive act that does hinder the investigation
o Nexus connection to pending investigation (judicial or grand jury)
 Aguilar – no obstruction without grand jury
o Corrupt intent (mens rea)