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ACTUS REUS (AR

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 A voluntary act, or 2) omission when there is a legal duty

1) VOLUNTARY ACT
i) MPC: Under the MPC the following are not voluntary acts (a) (b) (c) (d) Reflex or convulsion Bodily movement during unconsciousness or sleep Conduct due to hypnosis A bodily conduct that otherwise is not a product of the effort or determination of the actor, either conscious or habitual (Note: This is a broad category) (e) Unconsciousness: A person must be conscious of their acts to be held liable for the crime (not necessarily a coma) 1. Exception: If unconsciousness (e.g. intoxication) is self-induced, the defense of unconsciousness is not very strong.

ii) OMISSION (this is voluntary ONLY if there is a legal duty to act)
(1) Is there a legal duty? (must argue all areas of duty below) (a) Is there a relationship between the D and the victim? 1. If statute imposes a duty to care for another 2. Special relationship (spouse, parents & kids) 3. Contract to provide care 4. Voluntary assumption of care + isolation 5. If D created the peril (b) The Good Samaritan statutes always enforce a clause that the duty only applies with relevant safety. (2) Was D aware of the opportunity to act? (3) Did the omission directly cause or worsen the injuries of the victim? (a) Person charged with duty of care is required to take steps that are reasonably calculated to achieve success.

MENS REA
MPC
MPC§2.02 Levels of Culpability 1)  can prove level req’d or level higher. 2) If there is a level mentioned in part of the statute that level applies for all the other elements, unless a contrary purpose plainly appears. 3) If no specified MR, default is recklessness (or purpose or knowledge) Conduct (bodily Circumstance Result movement) (conditions) (not always element) Purpose (Required Conscious Awareness, belief or Conscious objective/desire for attempts) objective/desire hope Aware Practically certain Knowledge Recklessness (default Subjective awareness ( did actually know) of substantial & unjustified risk that is culpability level) gross deviation from what law abiding person would do Indifference Objective/reasonable person would have been aware, gross deviation from Negligence Inattentiveness standard of reasonable care based on: 1) gravity of harm that foreseeably would result from ’s conduct, 2) probability of harm; 3) burden to  of not engaging in risk MPC 2.02(7) Where knowledge is req’d, a high probability of fact will suffice (willful blindness) Conditional Intent: §2.02(6) Does condition take  out of realm of people meant to be convicted by statute (negatives the mens rea)? (conviction upheld in conditional [―if you don’t cooperate, I’ll kill you‖] carjacking—Holloway) Common law or MPC?

Common Law
1) If MR included in statute then analyze sentence & statute purpose to see if it distributes, if specified M/R doesn’t distribute then use default below unless in S/L 2) If no specified MR, default is malice/recklessness (can be fulfilled by knowledge) Specific intent :  has some future purpose or actual knowledge of fact/circumstance . (murder, attempt, burglary, larceny, robbery)—sort of like purpose/knowledge in MPC General intent  aware of conduct & has knowledge, but no particular desire/purpose to bring about new circumstances x   Must have mens rea for each charge: x Not using stop tap when stealing money from the gas meterleaklife in danger—Cunningham x Sailor intends to get rum but burns the whole ship down in the process—Faulkner  is assumed to intend reasonably foreseeable consequences of action (inability to find corrupted juror doesn’t bar specific intent—Neiswender) Deliberate ignorance = mens rea. Awareness of probability of crime sufficient for mens rea (presence of marijuana in the trunk—Jewell)

STRICT LIABILITY- EXCEPTIONS TO MR
Common Law
Strict Liability Usu. involves newer statutory regulatory crimes where mens rea hard to prove ―Wrong in itself’no need for mens rea  If it’s a strict liability statute, mistake of fact doesn’t matter (underage girl—Regina v.Prince; leaving pregnant wife—White) x Old crime that doesn’t mention a req’d intent ≠ strict liability (accidental theft of casings— Morrisette)

MPC
Only where explicitly stated in statute x Can’t hold owner crim liable under a regulatory crime making it illegal to serve underage alcohol b/c of stigma, costs of crim conviction—Guminga  Can hold  liable for strict liability speeding law w/ stuck cruise control despite lack of control—Baker

iii) Most S/L crimes are statutory crimes except statutory rape iv) S/L only imposed when background circumstances give rise to a preseumption of knowledge or a duty of knowledge (ex: deported immigrant & attempted reentry) v) Vicarious Liability – liability imposed on one for the act of another (a) When incarceration is a possible sanction, no vicarious liability in S/L 1. Criminal penalties based on vicarious liability are a violation of substantive due process and that only civil penalties are constitutional. State v. Guminga (b) When no incarceration (ex. fines) 1. employers are criminally vicariously liable for the illegal conduct of their employees even in the absence of evidence of employer fault vi) Multifactor test for to determine if S/L (a) Common law crime (murder, stealing ex: Morisette- D took abandoned bomb casings), or Regulatory crime (ex- Balint(dist of narcotics) vitamin distribution case, deportation reentry – must be S/L so others participating in activity will take extra precaution) (b) Malum Prohibitum (more likely S/L) vs. Malum insa (ex. theft) – (any lack of fair warning may be defense) (c) Will legislative purpose be frustrated by implementing the mens rea requirement? If yes, then S/L (d) Type of punishment – avoid S/L if severe punishment (e) High barriers of entry (more likely S/L) (f) Closely regulated? (more likely S/L) (g) Is it a common field of endeavor? (less likely S/L) ex: US v. Staples- rifle w/ metal casing filed down, b/ gun ownership is common so no S/L, need MR) (h) Inherent dangerousness of the act (i) Notice from social norms (having sex w/ young people) (j) Is it an omission? (less likely S/L) (k) Will social policy be compromised if prosecutors have to prove MR? if yes, then less likely S/L vii) Defense

(a) No mistake of Fact defense .

D would be charged w/ the higher offense. believing it was someone elses. Intend to steal book.04 (1) Ignorance/Mistake of fact or law is a defense if (a) it negatives the rq’d culpability level. NOTE: at CL.if it negates element of the crime b/c crime never completed iv) No excuse for attempt. this will ONLY reduce the grade of the offense. but MPC would only charge for lesser offense ii) Moral wrong doctrine – (i) one can make a reasonable mistake & yet manifest a bad character or otherwise demonstrate worthiness of punishment 1. (3) Mistake of law is a defense when (a) doesn’t know of law & it’s unpublished. (b) acts in reasonable reliance on official statement of law later determined to be invalid  Only a defense when afterwards the law is deemed invalid—Albertini  Ignorance of law is no defense unless code allows it—Marrero (misinterpretation of law ≠ defense)—common law case . Prince – Man takes a girl with her dad’s consent not knowing she is 16 and is charged because the taking of the girl was a crime iii) Provides excuse for completed crimes (ex. b/ find it is yours). Regina v. (2) Defense is not allowed when the  would have been guilty of another offense if the circumstances were as she thought they were.Mistake of Fact (not defense in S/L) i) Lesser crime theory (a) Mistake of fact is not an excuse when even without the mistake the act would have been a lesser crime 1. so long as D acts w/ necessary MR Common Law Mistake of Fact Mistake of Law General Intent Honest & reasonable mistake of fact is a defense Sherry: Must be both honest & reasonable General Intent Mistake of law ≠ defense Hopkins –even where relying on an official b/c official doesn’t determine law Wood—quickie divorce Specific intent Honest mistake of fact is a defense b/c it overcomes mens rea Reynolds: Just honest & not reckless Kelly: Honest Specific intent Honest mistake of law is a missing element Smith—where  is missing specific intent (thinks he is ripping up own floorboards) MPC §2.since no requirement to complete crime. (b) the law allows it.

D damaged property thinking it was his) iii) If D engages in conduct which he believes is lawful. then there is no crime. judicial decision. Reliance on official interpretstion of law later determined to be invalid (statute. (b) acts in reasonable reliance on official statement of law later determined to be invalid  Only a defense when afterwards the law is deemed invalid—Albertini  Ignorance of law is no defense unless code allows it—Marrero (misinterpretation of law ≠ defense)—common law case .statute dictated actual knowledge) (c) With ignorance or mistake that negates Mens Rea (ex: ignorance negates intent) (Regina v. he thought he would be considered a peace officer. Trying to illegally import alchohol not knowing that u don’t actually have alcohol) v) vi) If D engages in conduct believing it is unlawful b/ it is infact not lawful. when it is unlawful. when it is unlawful. can be charged w/ attempt as long as knowledge is not one of elements of offense this is no excuse (ex. this is no excuse iv) If D engages in conduct which he believes is lawful. state – law requiring convicted people to register. or attempt.04 Mistake of law is a defense when (a) doesn’t know of law & it’s unpublished.Mistake of Law i) General Rule (a) No excuse for personal misinterpretation of law.ex: Marrero – D charged w/ unlicensed possession of gun. and also makes a mistake of fact. Smith. public officer) (b) Failure to give fair warning (Lambert v. Common Law Mistake of Law General Intent Mistake of law ≠ defense Hopkins –even where relying on an official b/c official doesn’t determine law Wood—quickie divorce Specific intent Honest mistake of law is a missing element Smith—where  is missing specific intent (thinks he is ripping up own floorboards) MPC§2. Court says no (b) Ignorance of law or personal misinterpretation of the law excuses noone EXCEPT ii) Exceptions to Rule (a) Reasonable reliance doctrine1.

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2) manner of killing.Young v. knowingly.At common law there are no degrees of murder b/ statutes divide murder into 1st & 2nd degree (1) CL Murder Rule: Unlawful killing of another w/ malice aforethought 1.prove intent as follows: i. recklessly under circumstances manifesting extreme indifference for human life (depraved heart) . State. Interferring w/ law enforcement that results in death of someone st (ii) 1 Degree Murder a. Intentional killing. intent to cause grievous bodily harm iv. Premeditated & Intentional Killings: courts have held the following: i. The time required to premeditate is no more than a brief moment of thought – same as intent in some jx . premeditation requires more than intention.D stabs V after being teased & flicked in nose ii. Ordinary people intent the natural & probable consequences of their actions. Guthrie.no malice aforethought as in CL (iii) Murder Rule: Criminal homicide is murder when it is i.when D intentionally uses a deadly weapon directed at a human being. intent to kill one person b/u kill another/anybody iii. knowledge that act is likely to cause death or grievous bodily harm (recklessness depraved indifference to human life) v. some kind of pause – . intent to commit felony & during felony u kill someone vi. D is an ordinary person so he intended the consequences ii.premeditation formed when D pulls the trigger iii. Malice aforethought is satisfied w/: i. 3) motive (iii) 2nd Degree Murder a. requires 2nd order of reflection on intentions. intent to kill w/o provocation or on slight provocation ii. manslaughter or negligent homicide) (ii) Note. Deadly weapon rule.HOMICIDE 1) MURDER.State v. an intent to kill may be inferred (2) MPC Murder (i) Rule: A person is guilty of criminal homicide if he purposely. committed purposely or knowingly or ii. 3 categories may point to premeditation: 1) Planning activity. recklessly or negligently causes death of another (murder.

If D kills another b/c he unreasonably belives the circumstances justify the killing . kidnapping or felonious escape someone is killed (felony murder) (3) DEFENSE (a) Self Defense (b) Duress or necessity? Depends on if CL or MPC (c) Imperfect Self Defense 1. rape. burglary. recklessness & indifference is presumed when D while committing robbery. May mitigate to manslaughter 2.iii. If D has to retreat and fails to do so b/ instead responds w/ deadly force 3. arson.

MPC limits it to the following felonies: robbery. Must prove murder iii. Phillips – court holds theft is no inherently dangerous so no felony murder ii.) c. burglary. Causation a. MR only required for the actual felony b. Applies whether D kills V intentionally. Accomplice can also be prosecuted for FM e. arson.when V is killed while being used as a shield by D c. Some jx say the killing must have somehow furthered the felony for felony murder to apply . accidentally & unforeseeably c.People v. Some states limit it to inherently dangerous felonies some don’t d. the lesser crime merges into the higher (ex: if guilty of both manslaughter & murder then convicted only of murder. If the elements of 1 crime are included in the other. Can’t use felony murder if there is an actual murder. Proximate Cause approach: Attaching liability for any death that is the direct & foreseeable result of the unlawful activity 1. rape. Ex: manslaughter.2) FELONY MURDER i. Can’t use involuntary manslaughter as predicate b/c it bumps crime up for no apparent justification d. assault & battery like felonies: the felony merges into the killing & can’t be used as predicate b. Rule: A person is guilty of murder if he kills someone during the commission or attempted commission of any felony a. negligently. Shield situations. Agency analysis: Many jxs apply FM rule only when D or one of his agents causes death. kidnapping or felonious escape . D can’t be blamed for deaths caused by Police or other parties b. Merger Doctrine – apply FM only where the predicate felony is somewhat independent of the killing a. recklessly.

w/ default of malice or recklessness) i.3) MANSLAUGHTER (unlawful killing of another . No need for actual provocation. Subjective & objective iv. sudden discovery of spouse’s adultery (must witness intercourse) . injury or serious abuse of close relative. Examples. of sufficient provocation: battery on D. passion & homicide iii.If likelihood of harm was that high then jury may infer that D should have known of the harm. Words alone can warrant manslaughter instruction ii. state. with no reasonable time to cool off 2.Maher v. D stabs wife 19X after she insulted him & asked for divorce) v.(Giroud v. does the recklessness manifest an extreme indifferent to human life? If so. (determined by view of someone in D’s situation) i. heat of passion ii. No rigid cooling off period iii. vi. then look for provocation that would decrease it to manslaughter ii. Rule: homicide committed recklessly i.D didn’t actually witness his 1. MPC. can claim the defense if D believes although incorrectly. Always start w/ murder.Manslaughter 1.Voluntary Manslaughter 1. D’s subjective awareness of the risk. The gravity of the harm is great v. passion must result from adequate provocation (ORP) iii. Rule: Intentional homicide with the following provocation i. Words alone will not suffice . that V was responsible for the affront . Intentional conduct. Rule: Homicide committed as a result of extreme mental or emotional disturbance (subjective) for which there is reasonable explanation or excuse. Knowing facts that would cause a reasonable man to know the danger is equivalent to knowing the danger 2. CL. D’s illegal arrest. it may be murder ii. iii. People. either commission or omission where there is a duty. there must be a causal link b/t the provocation. The likelihood of the risk is high iv. mutual combat.

People v. Criminal Negligence 1. Committed negligently—Should have been aware of he risk. MPC. Court holds that D’s conduct need not be the sole & exclusive factor in V’s death. D2 sets separate fire later. SHOULD HAVE BEEN aware of the risk (if D is actually aware of risk & proceeds then this is recklessness and may be voluntary MS) b. objective (in CL Jx this is involuntary MS) CAUSATION (usually in result crimes) 1) Is there a result element? Then you need to analyze cause 2) Cause in Fact (“But For”) i) Mens Rea (a) Causation w/o MR = No conviction (b) MR w/o Causation = No conviction ii) Multiple actual causes (a) D may be liable for accelerating a result (but for conduct.D1 shoots V in stomach.D sets fire. & D2 w/ murder b/c his was more effective & he thwarted D1’s goal.iv. while simultaneously. Criminal negligent homicide 2. Gross deviation from the standard of care that reasonable people would exercise in the same situation 3. Unlawful act (misdemeanor-MS) doctrine 1.In-Voluntary Manslaughter a. result would not have occurred where it did) (b) Concurrent causes. D2 shoots V 3 times in head – D1 is charged w/ attempt. CL. 2) CL Proximate Cause .independent factors inflicting injury @ same time so must demonstrate that D’s conduct was a substantial factor & result would have occurred even w/o D2s act 1.Negligent Homicide a. assicental homicide occurring during commission of an unlawful act that is not a felony constitutes involuntary MS v. inadvertent. Arzon. It is enough that his conduct was a sufficiently direct cause of the death & the ultimate harm is something reasonably foreseeable (ex firemen responding to fire could die) (c) Obstructed cause.

Root – D&V drag race. code focuses on issues relating to culpability (a) §2. risk that D should be aware of. but unanimously will be liable if innocent victim dies 3) MPC Proximate Cause i) But-for causation is the exclusive meaning of ―causation‖ ii) Instead of proximate cause. actual harm differs from what contemplated only regarding its extent 2. V based on curcumstances may not be considered independent & free willed (ex: police were pawns in D’s plan so weren’t independent. actual harm differs from what contemplated only regarding its extent 2. unless: 1.V was a free willed independent agent iii.03 (3) Recklessly/negligently: Must be within risk aware of or. then it is not efficient 2. Superceeding causes – D no longer poses imminent threat & V made bad decision 4. V is considered a free willed agent) ii.03 (2) Purposefully/knowingly: Must be within purpose or contemplation of actor unless: 1.i) Direct Cause.an act that is a direct cause is also proximate ii) Analysis (a) Forseeable (objective standard) (b) Proximity – how close in the chain is D’s conduct in relation to result (c) Efficient (was chain broken?) 1. Commonwealth v. V dies. Interventions that would not have changed the outcome doesn’t break the chain (medical malpractice doesn’t create efficiency problems) 3. in the case of negligence. Efficiency chain can be broken by act of intervening Independent AND free willed agent or V i. if the chain is ended and restarted by another. Assisted suicide – D didn’t actually act.Courts divided on whether D can be liable for V’s death. actual harm is what was intended and is not too remote (b) §2. Intervening cause – may break the chain 2. then causation is not established unless the actual result is a probable consequence of D’s conduct . actual harm is what was intended and is not too remote (c) If no mens rea element established. (D provides V with a gun and encouraged him to kill himself. rape/kidnap/torture victim not free willed when she poisoned herself) 1. Even if there is a direct cause.

with 1) the purpose to commit the target offense (AR) or know the result will occur as a consequence of his conduct. If there is little to no liklihood of success then no case ii. CL Rule: when a person. Liklihood of success i. following the victim 4. However. possession. Legal Impossibility– no crime even if completed 2. chargeable with murder (reckless disregard).the acts if completed would constitute a crime b/ b/c of factors unknown to D there is no chance of completion of the crime 3. lying in wait 2. 2) conduct constituting a substantial step towards the commission of the offense. (c) Defense 1. unlawful entry of a structure. Must be the final step at CL 2. If someone killed.must be an affirmative act tested against 1. seeking to entice the victim to go to the place of crime 5. Abandonment is NOT a defense in CL 3.is this intent? Does he normally smoke or is this the 1st time? Is there a social norm of never smoking next to a haystack?) 3. 2.the only thing stopping the crime is luck or intervention (b) AR. D cannot be convicted of attempt. Mistake of fact is not a defense.ATTEMPT 1. Specific intent – Must prove that D performed these acts with the specific intention of committing the target crime (a) e. vehicle or enclosure where intending to commit the crime 7. Proximity i. performs any act that constitutes a the final toward the commission of that offense (a) Final step. if D kills no one. (a) Actions considered substantial step 1. searching for the victim 3. D recklessly fires gun in crown. Prevailing customs & social norms are relevant in assessing (D goes to haystack to smoke. with the intent/purpose to commit an offense. MPC Rule: criminal attempt occurs when a person acts w/ the type of culpability necessary for the crime AND must.g. Draw the line b/t preparation & attempt ii. reconnoitering the place contemplated for the crime 6. collection or fabrication of materials to be employed . Equivocality i. May disappear if there is clear evidence of intent ii. Ex: voodoo doll = liklihood. She lacked the specific intent to kill.

Exceptions (a) Felony murder – no such thing b/c requires a death (b) Involuntary manslaughter. AND 2) the mental state required for commission of the substantive offense i) MPC Uniqueness (1) REJECTS ―reasonable & foreseeable test‖ (2) Often the mental state may be inferred from proving #1 (3) No requirement that the aider & abetter be effective (allows attempt to assist) . during the course of crime that was completed whether or not such assistance was necessary or determinative (2) Accessory B/4 the fact .8. aid.L. arrest or prosecution. encouragement or succor to P. commanded. Legal Impossibility– no crime even if completed 3. Rule:. or attempts to aid another in planning or committing it OR 3) has a legal duty to prevent the commission of the crime and fails to do so. Voluntary Abandonement – not motivated by circumstances that increase risk of detention or increase difficulty in commiting the crime 2. (1) Accomplice rule-. whether or not that assistance was necessary or determinative (3) Accessory after the fact: knowing that P committed a crime and w/ intent that P evade detection. or agrees. or counseled. D provided assistance. protection. soliciting an innocent agent to engage in conduct constituting an element of the crime (b) Defense 1. w/ intent that another engage in criminal conduct or cause harm. or encouraged the principal in a completed crime.no such thing b/c involuntary is unintentional (c) Strict Liability crimes – except statutory rape which can still be attempt (d) Negligence crimes ACCOMPLICE LIABILITY 1) C. whether necessary or determinative (4) Natural and probable consequences doctrine – an accomplice is guilty not only of the offense he intended to facilitate or encourage b/ also of any reasonably foreseeable offense committed by the person he aids & abets 2) MPC Rule: D is an accomplice if w/ the purpose of promoting or facilitating he 1) solicits another to commit it OR 2) aids.w/ intent that another engage in criminal conduct or cause harm. D provided assistance by act or omission that was at least minimally effective. D while actually or constructively present provided assistance by act or omission or encouragement. Mistake of fact is not a defense.the acts if completed would constitute a crime b/ b/c of factors unknown to D there is no chance of completion of the crime 4.

No more than half the punishment . D must ensure that his assistance is ineffective or 2. Mens Rea – D must specifically intend that D commit the crime Justification – even if D1 provides proper justification or excuse (ex. advising. receiving. conspirator & accomplice.Not liable for principal crime . undercover law enforcement) it may not extend to D2 if there was an actual crime Part of the Common Law (can charge also for Modern Approach (Statutes). all the inchoate crime merge) Before Principle in First Degree – perpetrator All are treated as principals.can charge all (under MPC.3) 4) 5) 6) (4) May or may not impose liability if principal fails ii) DEFENSE (1) Renunciation (termination of complicity prior to commission of crime) 1. comforting or them as principals (still call them concealing Accessory after Fact).Treated as parties to the actually or constructively providing crime encouragement Accessory before the fact (not present)– counseling. give timely warning to law enforcement or make proper effort to prevent commission of the crime CAUSE – No need to show cause Can be accessory to involuntary maslayghter if you intend that D2 engage in reckless acts that put other at risk of death or serious bodily harm.D crime principal crime can charge all of them) can only be convicted of 1.Far less culpable acts and intent than principals . (The & During Aiding & abetting (accomplice) – present distinctions are eliminated) the Crime . . directing before the commission After Accessory after fact (not Present) – Some jurisdictions do not treat the crime protecting.

2) MPC Rule –D is guilty if w/ the purpose of promoting or facilitating its commission.L. he makes agreement (AR) to 1) commit an offense. Rule. if he would not be guilty of the cosumated offence as wither a principal or an accomplice 5) Types of Conspiracy (1) hub & spoke 1. 4) aid another in planning or commission of the offense (1) Agreement may be direct or inferred from circumstantial evidence (2) MPC requires and overt act for conspiracy to commit a misdemeanor or a 3rd degree felony. 2) attempt to commit an offense 3) solicits another to commit an offense. There must be a rim connecting all parties for it to be complete 3.Agreement b/t 2 or more people to commit a crime.Once D enters a conspiracy. he is vicariously liable for all the substantive offenses as long as it is 1) reasonably foreseeable given the nature of the offense AND 2) done in the course of the conspiracy AND 3) done in furtherance of conspiracy.both parties must intend to agree & intend that the object of their agreement be achieved (3) Purpose may be inferred from knowledge (see #3 below) (4) Pinkerton liability. Abandonment 3) Intent may be inferred from knowledge when (1) D has stake in venture (2) there is no legitimate use for the goods or services (3) the volume of business w/ buyer is grossly disproportionate to any legitimate demand (4) sales for illegal use amount to a high proportion of seller’s total business (5) ** You need more than knowledge for misdemeanors** 4) EXCEPTION (1) D is not guilty of conspiracy if 1. or to accomplish a legal act by unlawful means (1) No overt act requirement (2) Specific intent. w/o rim you have multiple conspiracies (2) Chain Conspiracy (3) Pyramid . There is NO overt act requirement for 1st & 2nd degree felonies (3) ***MPC REJECTS Pinkerton Liability*** (4) MPC rejects Wharton’s rule (5) D only liable for what he actually knew (6) Defense 1.CONSPIRACY 1) C. One person in middle transacting w/ othere 2.

Self Defense: The court nevertheless uses the self defense analysis and finds that cultural defense does not show that D was actually scared . The conduct does not constitute criminal activity (intent to cause harm is missing) c. Romero: A pure cultural defense is not an excuse under the objective standard a. D is culpable forgiven Self-defense. Intentional mistreatment: Spanking with a belt that caused severe bruises exceeded reasonable discipline. D has engaged in all the conduct. Smith: Even if not requested. and caused the harm necessary to commit crime. jury should be instructed on justification if it is the sole defense AND supported by evidence a. defense of Cultural defense. People v. insanity. Cultural Defense: Expert testimony that D was acting under the codes of Hispanic culture and street fighting customs (he was expected to act in the way he did) was irrelevant i. Note: In both instances. Strict liability: Justification can be defense for strict liability crimes -. others intoxication Focus Culpable Examples 2. Justification of discipline cannot be claimed when pain and suffering caused exceeds the bounds of reasonable discipline a. possesses the state of mind. State v. Dissent: The kid was about to flunk school twice and the punishment emphasized the importance of education. society but the actor is not blameworthy (focus on D’s mental state) D is found to be not Even if D is culpable. Note: (1) moral judgments come into play in determining justifications (2) hard to distinguish between intent to discipline and intent to cause harm 4. Strong Motivation: The motivation to protect younger brother does not explain the use of deadly force b. and D intentionally caused the pain and suffering b. Objective Reasonableness: Cultural defenses are not admissible because that would create multiple standards – very hard to administer c.D was charged for a strict liability crime (failure to maintain lane and DUI) b.JUSTIFICATIONS & EXCUSES 1) Effect: Both work similarly in procedural terms and lead to the acquittal of Defendant. a. but it is not clear which party has the burden of persuasion 3. Burden of proof: D has to introduce ―some‖ evidence. Justification Excuse Act – the act socially Actor – the act is harmful to beneficial or useful.

1. the D is entitled to complete acquittal ii) Incomplete defense: In murder cases if D killed under an unreasonable belief or used unreasonable amount of force. nondeadly force may be used 2. other courts require initial aggressor to retreat (4) Defense of 3rd party. D is convicted of manslaughter rather than murder (only the malice required for murder is negated) 2) Burden of Proof: a) Production: D must introduce some evidence b) Persuasion: P has the burden to disprove BRD (under old common law D had the burden of persuasion – used in a minority of states only). then initial aggressor regains right to self defense 2. b) proportionality. Deadly force.L.right to use force parallels 3rd party’s right to self defense (act at own peril) (5) Defense of Property. Policy Question: Should the cultural defense be taken into account? (It is possible that under the honor code D is refusing to admit that he was scared).a person who is not an aggressor is justified in using force against another if he reasonably believes that the force is necessary to protect himself from imminent use of unlawful force by another (1) Deadly force is unjustified unless the actor reasonably believes that its use is necessary to prevent imminent & unlawful use of deadly force. 3) C. force is not reasonable unless prior request to desist has been made 3.d. even if there is no other way to prevent the harm 1.A person cannot use deadly force simply to protect his property against unlawful entrance. may not use force to regain property except in hot pursuit (6) Mechanical device intended to protect property by causing harm may be used where intrusion is such that if the person were present would be . c) subjective reasonability (3) Aggressor: one who starts a nondeadly unlawful conflict 1. Note that the subjective element of self defense can be a backdoor to cultural defense to some extent (identify this tension on the exam) SELF DEFENSE (Justification) 1) When to use: D charged with an assaultive crime may assert in defense that she reasonably believed that her actions were necessary to defend herself against an apparent threat of unlawful and immediate violence from another. some courts say if nondeadly aggressors V responds w/ deadly force. i) Effect: If successful. Rule.force likely to kill regardless of intent (2) Factors: a) Necessity.

3) forcible rape. (threat of death or serious body harm) (7) Law enforcement. Deadly force prohibited except if he believes the intruder 1) is trying to disposess him of his dwelling. burglary. can use nondeadly force to prevent a crime is force is necessary to prevent to crime or to make an arrest. he doesn’t lose priviledge to self defense (5) Mechanical device intended to protect property by causing harm is prohibited (6) Law enforcement or private person. 4) kidnapping (2) Defense of 3rd party – may use deadly or nondeadly force to the extent that such force reasonably appears to the intervener to be justified in defense of the 3rd party. you may be convicted***) (3) Defense of property.D is justified in using force if he believes (subjective) the force is immediately necessary to protect himself against the exercise of unlawful force by another (1) Deadly force.D may use nondeadly force to prevent trespass on land or theft of property if he believes 1) the persons interference w/ property is unlawful.justified only if necessary to protect on the present occasion against 1) death. 1. Deadly force may be used he believes that 1) arson. can never use deadly force to prevent a misdemeanor arrest 2..justified in taking the life or inflicting bodily harm w/ his own hands. Force is not immediately necessary unless request to desist has been made 2. 2) serious body injury. 2) has no claim of rightful possession. 2) such force is immediately necessary AND either 3a) the person previously used of threatened to use such force against him or another or 3b) use of nondeadly force would expose him or others to substantial danger of serious bodily injury. moving car) 3. and 3) nondeadly force is immediately necessary 1. may not use force if you know it would put other at substantial risk of serious body injury (ex.only use deadly force to prevent a crime if he believes 1) substantial risk of death or serious body injury to . & the force is necessary to prevent dispossession (does not authorize deadly force solely to prevent unlawful entry into home) 4.only use deadly force to prevent a crime if he believes 1) substantial risk of death or serious body injury to officer or others exists unless if prevented and 2) the force is necessary to make an arrest or prevent escape. (4) If D start unlawful nondeadly conflict. (8) 4) MPC Rule. the intrusion affects D’s property. if the aggressor turns out to be a justified police officer. (*** but you do so at your peril. robbery or felonious theft of property is imminent.

not reputation or economic interests 2) MPC Rule.may be allowed iii) Imminence of threat – speculative belief about remote or inevitable harm is insufficient NECESSITY (JUSTIFICATION) . Some jx limit it to emergencies created by natural forces ii. indirect civil disobedience) (3) There is no effective legal alternative (4) The harm caused by the crime is less serious than the harm averted (5) The legislature must not have considered the choice of 2 evils and obviously opted for one as opposed to the other (ex. can use force to prevent a crime is force is immediately necessary to prevent to crime. Rule: D is justified in violating the law if these conditions are met (multifactor) (1) D is faced w/ clear & imminent danger (not speculative) (2) There is a direct link b/t his action and the harm to be averted (direct v. D illegally possesses marijuana for medical purpose. still convicted) (6) D did not place himself in the peril (7) May justify homicide 1. 2. 1. D may not take life of another to save himself iii.L.D’s conduct is justified if . Limitations i. 1) C. If duty is owed (ship captain) may not kill to feed others iv. See outline in folder for the rest 5) Retreat (1) Some courts say no retreat & allow V to use deadly force (2) Some courts say V must retreat if he can do so safely (3) Castle exception: V has no need to retreat if attack is in own home 6) Reasonable belief standard (1) Reasonable person in D’s situation (Subjective in MPC & Objective in CL) 7) Battered woman’s syndrome i) Prior abuse ii) Expert testimony.others exists unless if prevented and 2) use of deadly force poses no substantial risk of injury to bystanders. May be limited to protection of people & property.

Note: i. i.L. no deadly force threat or imminence required ii.(1) He believes his conduct is necessary to avoid harm to himself or another AND (2) The avoided harm is greater than harm from the crime AND (3) No legislative intent to exclude the conduct exists 1. Rule – 5 elements must be present (not defense for murder) (1) Another person threatens death or serious body harm (deadly force) to D or 3rd party (relative) (2) D reasonably believed threat was genuine (3) Threat was present imminent & impending @ time of criminal act (4) There is no reasonable escape except through compliance with the demands (5) D did not cause the peril 2) MPC Rule – Duress is a defense if (can use for murder) (1) Unlawful force or threat of force to D or another person AND (2) A person of reasonable firmness in D’s position would be unable to resist the force 1. Don’t lose defense if you created the peril negligently or recklessly (reduces the crime to level of culpability ex: negligent homicide) iii. If D negligently places self in the situation then the defense is available for all offenses except those which the MR is negligence 3. Not available in D recklessly placed himself in a situation where it was probable that he would be subject to such coercion 2. no requirement that 3rd party be a relative . It may be used for homicide & not limited to property DURESS (excuse) 1) C. may be used in murder iii. No immediacy requirement ii. Differences w/ C.L.

. .Complete Defense when so affected the D .No excuse in general intent crimes (ex.08(1): Must negative an element of the offense (A/R.§ 2.Strict Liability: Such crimes are covered susceptible .08(1): Must negative an as to render her insane w/in the insanity test element of the offense (A/R. M/R. .Strict Liability: Not included 1) Involuntary Intoxication (1) Might allow an excuse if it negates MR even if low level of MR . .Involuntary if (1) D did not know that the involuntary – grossly excessive ingested substances was intoxicating (2) in proportion to the amount consumption under duress consumes and the D did not know that she was unusually .§ 2.§ 2.INTOXICATION In-voluntary Intox.M/R: Can negate only a specific intent if one is required by the crime (ex: premeditation) . A/C).Strict Liability: Not clear – perhaps not recklessness) except if it is to the level intoxication is immaterial where it voids AR (ex brain damage) . or A/C). in the jurisdiction (Miller) M/R.unawareness of risk due to .Strict Liability: Such crimes are covered Voluntary Intox.08(4): Pathological is . Common Law MPC .

D thinks he is squeezing a lemon when in fact he is squeezing his wife’s neck) OR b)not to know that what he was doing was wrong (ex. aware that is wrong b/ doesn’t care as a result of his mental disease – ex psychopaths . 1.INSANITY 1) Culpability is either eliminated or mitigated a) Distinguish diminished capacity: Insanity does not show that D lacked the M/R for the underlying crime.where D is aware of what he is doing. believed V was harboring evil spirit) ii) Durham – act was a product of mental defect (not typically used) (i) D will at least be partially excused if 1) his offense was the “product of the mental disease or defect” iii) Irresistable impulse (volitional) (i) Ds are presumed sane. however a D will be at least partially excused if (ii) 1) at the time of the offense 2) he “acted from an irresistible & uncontrollable impulse”. 3) Produced by mental illness or defect. he lacks substantial capacity to appreciate the wrongness of his conduct(cognitive) or to conform his conduct to the requirements of law (volitional) (ii) Volitional arm also encompasses affective disorders. not anger) (v) which rendered him incapable of know a) the nature & quality of what he was doing (ex.Cognitive & volitional (i) A person is not responsible if @ time of conduct as a result of the defect. ex: D has an irresistible urge to kill his wife (not a defense in M’naughten standard b/c D knew what he was doing & intended to do it) iv) MPC. It shows that D lacked the basic capacity to engage in morally reprehensible conduct – failure to understand surroundings or control his conduct 2) 3) 2 tests i) M’Naghten Test (cognitive) (i) All Ds are presumed to be sane so must prove that: (ii) at time of commission (iii) the party was laboring under such a defect of reason (iv) from disease of the mind (no physical damage only cognitive.

Was the victim defrauded? i. 2. mental deficiency. 4. emission is not necessary. Intoxication: Repeated intoxication cannot be a disease for the purposes of this section RAPE 1) C.i. . Was it Forcible? a. Was there carnal knowledge (intercourse)? Slight Penetration is enough.  No Rape iii. a. In inducement: fraud as to the reasons why she should consent to sexual intercourse does not invalidate consent.L. Psychopaths cannot use the defense (§ 4. D is not guilty of rape (he can be guilty of another crime though). Is the Victim a Woman and not wife? a. . When consent is withdrawn during intercourse.(1) Carnal Knowledge + (2) Woman (not wife) + (3) Forcibly + (4) Against her will + (6) Corroboration + (7) Prompt Reporting 1. In factum: D deceives the victim into believing that the act involved something other than intercourse (nature of the act)  There is Rape ii. MPC: ??? 5. Traditional Approach: Signs of utmost resistance were helpful in establishing the forceful and lack of consent elements. Was consent withdrawn? Split in jurisdictions i. There is rape when the withdrawal is communicated to the male and he therefore ignores it ii.01(2): an abnormality manifested only by repeated criminal or otherwise antisocial conduct) ii. d. Was Victim incapacitated? Intoxication. Any threats? Consent obtained by fear of great and immediate bodily harm to her or another is not real b. Check: Accomplice to wife’s rape: Can be convicted for rape b. Modern Statutory Trend: It is not required that defendant uses force to overcome victim’s ability to resist. Identify: Modern statutes may recognize the rape of a wife under certain circumstances 3. or insanity c. Some jurisdictions may require proof of resistance. a. As to whether the defendant is husband? The jurisdictions are split. Additional Elements? (1) Corroboration (2) prompt reporting. Was it against Victim’s will (lacking effective consent)? a.

2) Statutory Rape: Intercourse with a victim under the age of consent is rape (usually by statute) a) Age: varies with jurisdiction b) Awareness of victim’s age: not necessary. i) Reasonable Mistake of fact: several jurisdictions require that (1) D honestly and in good faith had such a belief (2) the factual mistake was objectively reasonable ii) Unreasonable Mistake: Can be sufficient if actual knowledge of lack of consent is needed. Whether the D must be aware that the act is being performed against the will of the woman or negligence would suffice? Defenses: D believed that victim consented. American courts are reluctant to adopt this approach. . the question is whether mistake of fact is a defense. violence or intimidation Burglary: (1) Breaking and Entering of the (2) dwelling house of (3) another in the (4) nighttime with the (5) intent to commit a felony therein. If evidence shows that there was no consent. This is usually a strict liability crime – even a reasonable mistake of fact is no defense. i) Note: Some jurisdictions may allow this defense c) Lesser Charge: Usually statutory rape is a lesser charge of rape LARCENY/ BURGLARY / THEFT Larceny Rule: (1) Trespassory (unlawful) Taking and (2) Carrying Away of (3) Personal Property (4) of another person (5) with intent (MPC is purpose) to steal.Mens Rea: Not clearly defined (usually treated as a general intent crime). Robbery: Larceny + (1) property must be taken from the victim’s person or presence and (2) taking must be accomplished by means of force.

they are: a. or e. Material – will the evidence affect the outcome of the case? c. 1. 3 General Principals limit the distribution of punishment in the Criminal Justice system. The harsher penalty is appropriate in dealing with those who are simply incapable of conforming to social norms i. Legality – ―Fair warning‖ c. Proportionality – Do the rules match the level of punishment appropriate with the level of blame B. California (SC) Three strike rule is not unconstitutional i. There are two approaches that exist in tension. three factors are considered i. Sentences imposed on other criminals in the same jurisdiction iii. Probative – Is the crime more likely to be true based on the evidence? b. Sentences imposed for commission of the same crime in other jurisdictions.e. Culpability – To safeguard conduct that is without fault from being criminal b. Helm (SC)  To assess whether a punishment is cruel and unusual for being disproportionate. Test One: Solem v. Relevant evidence may not be admissible if it is under d. will it arouse undue hostility? 1) Cruel and Unusual Punishment (8th Amendment) 1. prejudicial. b. a. ii. Note: Justices do not agree how the concept of proportionality is to be applied. Gravity of the offense and the harshness of the penalty ii. Rationale: States have a valid interest in deterring and segregating habitual criminals.PUNISHMENT A. Holding: Nothing in the Eighth Amendment prohibits California from using the law to protect public safety by incapacitating repeat offenders. privilege – privilege against self incrimination. Disproportionate Penalties: Some penalties that are not inherently cruel and inhuman are prohibited nevertheless because they are so grossly and outrageously disproportionate to defendant’s conduct a. Principles of Evidence – Evidence is relevant is it is probative and material a. Incapacitation and deterrence are legitimate goals to punish with the rule. . Generally: The Eighth Amendment prohibits against cruel and unusual punishment and it is binding on the States through the 14th Amendment. Test Two: Ewing v.will it affect result improperly. those who cannot be rehabilitated. Two legs of the analysis: (1) the punishment is inherently impermissible (2) proportionality 2.

parents or sibling. Note: The prime punitive goals are retribution (depends on culpability) and deterrence b. General Rule: Not inherently excessive and may. Murder of peace officer on duty ii. Victim Impact Statements: Victims and family members (in case of murders) are permitted to speak at sentencing i. Virginia 1. ii. 5. Graver violation of the 8th Amendment if Defendant did not use drugs within the state. Purposeful or knowing murder of two or more iv. Punishing for Status or condition: Robinson v. Death Penalty: a. Scope in murder cases: Crawford v. California (SC) a. State may require mandatory treatment of the illness. Can be Disproportionate: Supreme Court has held that death penalty can be excessive and hence violate the Eighth Amendment i. Young Murderers under 18 – Roper v. Permissible: VIS is relevant in determining a defendant’s blameworthiness. Holding: Eighth Amendment prohibits the imposition of the death penalty on all offenders under 18. Holding: The execution of the mentally retarded is cruel and unusual punishment. Murder by a person charged or convicted of a felony of anyone involved with the criminal proceedings b. . Solem: Case by case approach (Favorable to Defendant) 2. Holding: The quick glimpse rule – should be limited to specific details concerning whether the victim left dependents. Intentional murder of a person involving the infliction of torture v. Murder occurring at a correctional facility iii. Mentally impaired offenders – Atkins v. 4. but it cannot punish individuals for being sick. State (Missouri Case) 1. Rationale: Narcotic addiction is like an illness that may be contracted innocently or involuntarily (similar to being mentally ill or a leper). i. Simmons 1. Ewing: A bright line test looking at the law itself (Favorable to Prosecution) 3. Holding: A California law that makes it a criminal offense to be addicted to narcotics iS a cruel and unusual punishment and violates the 8th Amendment. be imposed on a defendant and carried out i.1. and is not barred by the Eighth Amendment (Payne v. pursuant to a proper procedure. Tennessee – SC decision) ii. Mitigating and Aggravating Factors: These factors are taken into account to determine whether the sentence given is too excessive a. Death Penalty: Constitution Project’s Death Penalty Initiative has recommended the reservation of the punishment for five scenarios i.

III. Other Constitutional Limits . b. b.a. there can still be Due Process concerns (identify the tension on the exam). (2) Sufficient preciseness to discourage arbitrary enforcement or punishment – procedural violation of due process. Problematic: Why have such statements in the first place? Why differentiate among victims to determine sentencing? Shouldn’t all lives be weight equally? Should D be allowed to introduce impact statements? 1. the defendant had (1) actual knowledge or there is (2) proof of the probability of knowledge and subsequent failure to comply. VIS may be appropriate the social loss and harm caused by the Defendant. The goal is merely to establish victim’s identity and verification of survivors who are reasonably expected to grief and suffer. Notice: (1) The Due Process Clause requires notice that people can tell whether the anticipated conduct will be criminal by examining the statute. They merely define the recommended range of sentence. Holding: Notice requirement under the due process clause dictates that for a conviction of failure to registration to stand. Therefore. 2. the statutes are not vague. i. IV. Due Process Prohibition Against Vagueness / Fair Warning 1. Due Process: Although 8th Amendment does not prohibit VIS. Note: Criminal law punishes on behalf of the society. Rationale: Details of defendant’s good virtues or particularized sufferings of victim’s survivors are irrelevant and may incite the jury to make an arbitrary and emotional decision. Vagueness as to punishment: Can such challenges take place? a. California a. 4. iii. Facial Vagueness: No objective standard of conduct is specified at all (Very broad challenge) 3. Facts: California has a statue: Unlawful for any convicted person to be or remain in LA for more than five days without registering. Ignorance of Law: Lambert v. Rationale: The court read knowledge requirement in this strict liability statute because (1) status is involved (2) an omission is criminalized (3) possibility of ensnaring innocent (4) strict liability crime. Note: If two statutes criminalize the same conduct and give different sentences.

e. government may not purse second proceedings no matter how strong its newly found evidence is.1. Note: If a defendant is found not guilty of a charge. Ex Post Facto: Such laws (after the facts i. retroactive application of laws) are manifestly unjust and oppressive. 2. i. a. 3. Therefore. repeated prosecutions for the same or related crimes are prohibited. Bill of Attainder is Not permitted: A bill of attainder is special legislation that declares a specific person to be guilty of a crime and subject to punishment without either a trial or conviction. and thus are prohibited by the Constitution. Double Jeopardy: The Constitution provides that a defendant may not be put ―twice in jeopardy‖ for the same offence (Fifth Amendment). Dual Sovereignty Doctrine: A different state or federal government may prosecute a person for the same crime so long as there is jurisdiction over the defendant. .