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VOLUNTARY ACT 2.

01
D=guilty only if there was a voluntary act
(product of conscious or habitual decision) or
omission to perform an act which he is
physically capable of doing; non-voluntary
acts=reflex, convulsion, unconscious act. *We
could point to evid. that could only be
explained by conscious behavior ie shooting
twice or rational decisions immediately after.
Martin: not on the highway voluntarily,
released there by cops & got drunk at home.
Newton: D shot cop while unconscious after
he was shot, not voluntary.
Possession=act if D knowingly procured or
received thing possessed or was aware of his
control for a sufficient period to have been
able to terminate possession. Kier: D asked
for ride home never suspecting driver had
weed, stopped in car w/weed & never
smoked so no poss. also for constructive
possession D must knowingly have
power/intent at some point to exercise
control (power inferred from access, intent
from circum). Hunte: Even if not inn
control, helping to get weed, smoking,
covering blinds, driving=poss. Ryan: statute
express reqd knowing #mgs of hallucinogen
but D didnt, even though knew it was
shrooms is not enough.
INTENT
Transferred Intent: liab. for a particular
result where the actual intended result
differs only in the person harmed
2.03(2)(a). Statutory Req: MR applied to
all elements, unless specified otherwise
2.02(4). *Where MR is not expressly
stated, MPC req. that act was committed
purposefully, knowingly, recklessless 2.02(3).
HOMICIDE 210
Murder 210.2: No premeditation
requirement, relies on mitigating and
aggravating circumstances when determining
punishment b/c (mercy killing) prior
reflection may reveal tortured conscience not
exceptional depravity. Is felony of first
degree.
Purpose (1a) (conduct/result=conscious
object). Forrest: Son buys gun, goes to
hospital w/purpose to kill ill dad. Carroll:
Intent from circumstantial evidence
words/conduct/circumstances w/inference
from use of a deadly weapon on vital area
i.e. husband shoots bitch wife 2x in head.
Knowledge (1a) (awareness that
result=practically certain or conduct=illegal).
Burden: Dad knows his baby is certain to die
b/c crying & hungry but doesnt feed
it=omission w/knowledge. Jewell : Deliberate
ignorance/willful blindness is knowledge i.e.
transporting pot across border after
suspecting but not looking in compartment
guilty.
Recklessly w/Extreme Indifference to Value of
Human Life (1b) (created risk & conscious
disregard of substantial & unjustifiable risk
that law abiding person would observe).
Reasonableness of explanation assessed from
viewpoint of a person in Ds situation under
circumstances as he believes them to be
210.3(1). Malone: Playing Russian Roulette
w/gun & pulling trigger w/60% chance of
shooting=extreme indifference for value of
human life. Fleming: Drunk driver gets on
highway & kills showed he had no regard for
human life.
Felony-Murder: Unlike CL w/auto FMR, MPC
est. rebuttable presumption that D acted
w/reckless extreme indiff. murder culp. if an
unintentional killing occurs during enumerated
robbery; rape; arson; burglary; kidnap;
escape, so prosecution still gets to the jury
w/murder. D would have to show his MR (re
the death that results from felony) is only
negligence or plain recklessness to be
acquitted of murder.
Manslaughter 210.3: Recklessly (1a) (created
risk & acted in conscious disregard of
substantial/unjustifiable risk that law abiding
person would observe, must weigh the
gravity of the harm and the probability of it
occurring against the reason person acted).
Hall: Awareness of risk dividing line between
reckless manslaughter & lesser crime neg.
homicide, ski instructor w/knowledge speeding
down slope=reckless). {Voluntary
intoxication=defense to reck. crime}.
Extreme Emotional Distress (1b): Excpetion
w/in MPC for crimes that would otherwise
murder but mitigated if (1) under influence
of EED (was really experienced, not a sham),
and (2) that EED was a reasonable expla. or
excuse (judged objectively by viewing
subjective internal situation D was in and
external circumstances as D perceived them,
even if inaccurate, to see if excuse mitigating
crime is reasonable/sympathetic).Casassa: no
EED if excuse too peculiar to D (unlike how
all feel pain of unfaithfulness) & killing out
of anger, not understandable human response
deserving mercy; under MPC no cooling off
period limits, no categorical limits b/c any
impetus sufficient, no provocative triggering
event needed b/c EED can be based on
significant mental trauma to Ds mind for
substantial period simmering & exploding into
force (White: angry ex-wife tries to kill ex
gets EED; Elliot: little brother kills older
brother out of the blue)
Neg. Homicide 210.4: Negligent (should have
been aware of a substantial/unjustifiable risk
& failure to see risk=gross deviation from
reasonable person). Williams: Gross neg.
where the parents knew the baby was ill,
but let it die w/out treatment. Pierce:
Treatment Dr. should have known was bad
killed patient. Policy- punish & encourage
reasonable social behavior.
ATTEMPT 5.01
Substantial Step Test: Broadens liab. w/focus
on what has already been done, not what
remains to cross threshold of criminality;
liab. even if major steps still needed which
permits early apprehension; incorporates
dangerous proximity test (how close D
came to completing crime) & equivocality
approach (did Ds conduct unequivocally,
not 50/50, manifest a criminal intent). *If
attempt=successful, it merges w/that crime,
so no sep. charge. *Can raise SD to attempt.
MR: D must act w/level of culpability
otherwise required for the commission of the
underlying crime D charged w/attempting
(1). *Then note what the degree of culp. are
for the crime being considered, the homicide
charge can be mitigated down to
manslaughter if actor instead acted recklessly
or under EED
AR: Purposely engages in conduct that would
be a crime if attendant circumstances were
as he believed (1a). Any purposeful act that
is a substantial step in a course of
conduct designed to accomplish a criminal
result & strongly corroborative of the
firmness of the Ds criminal intent (1c); acts
listed in (2); conduct that would be a crime
if attendant circum. what D believed them
to be (1a); omission 636. Jackson: Ds had
car w/guns, fake license, masks, handcuffs to
rob bank & met at bank then rescheduled
b/c bad timing; returned following wk.,
removed license & waited but noticed cops &
were arrested under MPC either
reconnoitering (2c) visits=sufficient sub
step strongly corroborating crim. purpose.
Harper: Ds set ATM trap & had guns ready
to rob service guy, {CL attempt b/c making
apt. w/potential victim, must have made a
move on victims} but MPC liab. for enticing
Vs (2b). Joyce: Coke dealer flew to city
w/20k to buy coke from cop but got
suspicious and never produced $, which would
have been substantial step, so no attempt
but in Acosta, enough that D called dealer
over, examined & didnt buy b/c D passed
from mere prep. to very near possession.
Conviction: Same as sub. crime b/c same
culp., unless death/life imprison. b/c no
harm.
Abandonment Def: If D abandoned effort to
commit or prev. comm. under circum.
manifesting voluntary and complete
abandonment of crim. pur. McNeal: victim
convinced rapist to let her go not voluntary
b/c victims unexpected resistance but in
Ross was voluntary. Johnston: Robber
returned $50 and said just kidding but this
was not a complete renunciation of crim.
purpose.
ACOMPLICE 2.06
MR: Act w/purpose of promoting or
facilitating the commission (conduct, not
result) of an offense (3.a). Purpose of Ds
act is that P will engage in the conduct
element of crime. {Knowledge of Ds intent,
unless w/stake in outcome or very serious
crime i.e. murder Fountain; maybe NY crim.
facil. 668}. Hicks: {Words of encouragement,
unless used w/intent to encourage like Wilcox
i.e. greet/attend/benefit from illegal
musician}. Presence enough if there is prior
agreement that D will aid if needed.
Gladstone: Unlike CL {liab. for providing
contact info to another interested in crime
w/out nexus/stake} liab. for MR facilitating
& attempt to aid (3aii). Roebuck: D= acmp.
to unintentional killing (a result crime)
under MPC for being accomplice in the
conduct by aiding w/purpose of facilitating
crime & being reckless w/respect to possib.
of death (same culp for the killing that
occurred)(4). Acmp. not liab. for crimes he
did not intend, even if they are natural &
probable conseq. of crime D did intend to
assist b/c liab. attaches easily i.e.
w/attempt, so too harsh.
AR: Any effort at aiding, even if ineffec. or
unknown to P, satisfies (3aii). Attempt, like
in 5.01(2) req. that Ds conduct strongly
corroborate Ps crim. purpose, so even
encouragement that is not heard enough).
Tally: aid=preventing V from being
warned/chance to escape; {Ds help=known to
P}.
Conviction: D=guilty of obj. crime as long as
P (even if not convicted) engaged in
commission or atmpt. b/c acmp. liab. makes
D resp. for Ps conduct but ultim. for Ds
own MR - consistent w/MPC focus on each
indiv.s moral culp. If P does not engage in
crime or even attempt, Ds conduct is
attempt 5.01(3) or maybe conspiracy if
agreement beforehand 5.03(1)b.
Withdrawal: D can withdraw prev. provided
aid & avoid already incurred liab. if terminate
before its done & deprives value of aid given,
warns cops, or proper effort to prevent it
2.06(6)c.
CONSPIRACY 5.03
Cnsp.=sep. crime {merge}. Policy: more
danger w/group action b/c effective & poten.
complicated ventures; culp. for agmt. b/c sig.
step & D less likely to abandon; but, risks
punishing words/thoughts. Cnsp. for multip.
crimes=one cnsp. charge (3). D not liab. for
substantive crime of co-conspirator unless D
meets acmp. laib. but gen. will b/c acmp.
atmpt to aid=broad (2.06(3)a).
Mcdermot: If D knows fellow conspirator
cnspd w/another unknown person for same
crime=liab for consp w/him too (2), if D
doesnt know theres another not liab.
MR: Purpose of promoting or facilitating
(1). Morse: Can infer purpose from
knowledge if D has stake in venture/inflates
$ or permits installments or if no legit. use
for goods/service i.e. unregistered plane or
knowingly driving dealer to collect drugs in
Heras. MR often piggy backs on proof of AR.
AR: Agrees that one of them will engage in
crim. conduct or atmpt/solicit (1a); agree to
aid in planning or commission or
atmpt/solicit (1b). Interstate: Agreement
can be implied {personal
meeting/convo=needed}; proven by inference
w/evid. of choreographed nature of Ds
conduct i.e. same prices or practice of
support. Overt act only reqd for
misdemeanors/3
rd
deg. fel. (5) i.e., {illegal,
can be buying baggies, asking store hours} or
; permits early apprehen b/c crime=culp.
agrmnt.
Renunciation Def: Affd defense if D
thwarted consp. under cir. Manifesting
complete & voluntary renunciation of purp
(6). Total def. if either renun. or aband.
Abandonment Def: Cnsp.=continuing course of
conduct terminates once crime is committed;
if agrmt abandoned by all (7a); if D
abandons (aff. def) by telling others or
police (7c). Krulewhich/Grunewald: concealing
facts after crime not part of cnsp unless
evid of agrmt to continue cnsp to cover up
traces of crime.
Conviction: Same length as sub. crime,
except for most serious fel. 5.05; may be
mitigated to lesser time if inherently
unlikely to result in crime.
THEFT 223.2
MR: Purpose to deprive i.e. withhold prop.
of another permanently or long period
appropriating major value or unlikely to be
recovered 223(1)).
AR: Unlawful taking or exercising unlawful
control over moveable property of another
ROBBERY 222.1
Liab. if in course of theft (during or in
flight) D inflicts SBI/death; or threatens or
purposely puts V in immediate fear of SBI;
or commits/threatens any 1
st
/2
nd
deg. fel.
Lear: no threat or injury by just taking.
Santos: Flashing police badge not threat b/c
reason. V would think jig is up not threat;
no weapon means D expected bade alone
enough & no need for force generally.
BURLARY 221.1
MR: Purpose to commit a crime (analyze
MR/AR of underlying crime). Colvin: need
intent for crime other than trespass 221.2.
AR: Enters a building or occupied structure
w/out permission (affd def if abandoned).
2
nd
deg. if night, or in the course of
committing the offense, D pur. know., or
reck. inflicts or attempts to inflict bodily
injury or uses deadly weapon (device known
to kill/SBI).
JUSTIFICATION (J) & EXCUSE (E)
D admits his act w/requisite MR but asserts
either: J=did nothing wrong b/c took
better, more socially useful, morally
defensible of 2 evil choices; E=acknowledges it
was wrong but not morally blameworthy b/c
did all he could be expected to do.
Mistake of Fact 2.04: is a defense if Ds
subjective belief re: facts (reasonable or not)
negates the MR for the crime (1) but if
D would have been guilty of another offense
(prob. lesser) had the situation been as he
supposed, D couldnt raise defense of mistake
for that (2). Mistake of Law: D believes
that his conduct is not an offense b/c
unaware & couldnt have been or reasonably
relied on official statement of law (3).
Duress 2.09 E: Under duress if b/c of
threat, or use of force by a 3
rd
person
against D or another, a person of reasonable
firmness in Ds situation couldnt resist any
crime. Seriousness of crime (homicide) v.
threat to D (lose hand)=factor a RP would
eval.; ct. looks @ what differentiates D from
others considered i.e. size, strength, age,
health {temperament}. Toscano: {Threatnd
harm imminent, as long as reasonable
firmness test met}.
Insanity 4.01 E: Insanity=mental state
existing during crime. D acquitted if due to
mental disease or defect he lacks sub.
capacity either to appreciate criminality of
the conduct (no culp. MR like Yates psycho
mom-kid-killer) or conform conduct to law
(couldnt control himself i.e. clepto steals in
front of cop). The first form of incapacity
to appreciate the wrongfulness of the
conduct i.e. if the defendant mistaken about
the nature of the reality around (a cognitive
defect) or it may have been a distorted view
of right and wrong he thought he was doing
right by killing somebody an unconscious
response. On the other hand if after his
crime he acted normally afterwards with
normal mental functioning given his
subsequent irrational behavior it will be
difficult for the defense to say his conduct
was a result of the lack of substantial
capacity to appreciate the wrongfulness of
conduct. However, could be temporary
insanity which would be enough.
Necessity 3.02 J: D must believe that crim.
conduct nec. to avoid harm to himself or
others & that harm inflicted by crim. act
less serious than harm law protects against
i.e. run red light to save preg. wife. Allows
jury to weigh all factors in specific situation;
harm does not have to be imminent or
restricted to death/SBI; nec. can be based
on human or nonhuman force; can be applied
to homicide, only if numerically saves more
lives than lost. Hutchins: Medical necessity of
weed for sclerosis pain did not outweigh the
harm to public if defense were permitted.
Fontes: {Economic necessity of poor stealing
to feed kids, but maybe ok under MPC}.
Self-Defense 3.04 J: Can use force if D
believes its immediately nec. {last second
bef. hit} to protect against unlawful force
by another on present occasion or {if V
withdraws}; can use SD to prevent V from
calling buddies. Sands: Can use SD w/o overt
aggressive act i.e. V asleep. Use of deadly
force based on subjective belief (even if
unreasonable) force is reasonable & neces. to
protect against death, SBI, kidnap, rape
(2b) (Unlike Goetz). Threat to use deadly
force i.e. showing gun to create apprehension
is not use of deadly force, as long as there is
no intent to carry it out 3.11(2). *If Ds
belief was appraised recklessly or negligently,
still liable for those crimes but it defends
against murder.
Duty to Retreat: Peterson: Duty to retreat
rather than use DF if D subjectively knows
he can in complete safety (2bii) (not
from, home/work b/c castle doctrine, even
if guest/shared). Duty to retreat if D can
surrender property(2bi); {a D-aggressor
w/intent to cause SBI use DF(2bi)}; if D-
aggressor w/non-DF & V responds w/DF & no
retreat, D can use DF b/c permitted to
survive; D-aggressor withdraws & V initiates
2
nd
conf., D can SD. If in SD D harms 3
rd

party but not neg./reck no liab 3.09(3).
Defense of Property 3.06 J: No DF unless
arson, burglary, robbery, or prop. felony & V
used/threatened DF; or if not using DF
would subject D to SBI (3dii). Ceballos:
{trap guns (5)}.
Reckless/Negligent Use of Force for 3.0
Justifications 3.09(2): If D is
reckless/negligent in believing/acquiring info.
or failing to acquire info about whether he
can retreat or the need to use force=liable
for any neg/reck. crimes.
MERGER
Even if the defendant is guilty of all three
crimes he can only be convicted of one
combining all forms of preparatory contact
prohibiting conviction for both an offense in
a conspiracy other conduct the same offense.
5.05(3) 1.071b.
THEORIES
Focusing on why the proposed statute would
be similar to/different from/better
than/worse than the approach taken by
courts in those cases would be good.
Utilitarians: incapacitation, deterrence,
rehabilitation (proscribe good society
benefits by punishing )
- deterrence meaningless without accurate
notice of forbidden conduct and consequences;
felicific calculus
- specific and general deterrence -> depends
on threat of punishment
- incapacitate b/c has rejected social
norms and shows willingness to do so again
(predict recidivism?)
- rehabilitate until has renounced further
crime (change into someone who abides by
social norms)
- generally considered to be forward-looking
(find some good in s bad conduct)
- depend on mens rea to ensure needs
treatment (for example, only those thinking
about possible penalties can be deterred)
Retributivists: punish only if person is
blameworthy and made immoral choice in
committing criminal act; demand punishment
be proportional to the actual harm
committed
- impose punishment even w/o utilitarian
purpose (also, right to punishment)
- morally blameworthy? Only blameworthy if
freely acting/freely making bad choice!
- depend on mens rea to demonstrate this
moral culpabilityexercise of free will in
making bad choice.
Incapacitation (Restraint): While imprisoned,
a criminal has fewer opportunities to commit
acts causing harm to society.
Special Deterrence: Punishment may deter
the criminal from committing future crimes.
Weighing cost/benefit based on his own prior
exp. w/punishment judge asks what will
deter this guy in sentencing/how severely.
Life sentence has no specific deter. Benefit
since no ability to ever do anything again.
But even then has gen. detr see Posner in
Jackson, no marginal benefit of life v. 20
years for young man.
General Deterrence: Punishment may deter
persons other than the criminal from
committing similar crimes for fear of
incurring the same punishment. D weighs
cost/benefit based on
perception/awareness/knowledge of what
punishment might be. Judge asks what will
deter others from same offense later.
Retribution: Punishment is imposed to vent
societys sense of outrage and need for
revenge. If unbulicized, no gen. deter. Value.
Rehabilitation: Imprisonment provides the
opportunity to mold or reform the criminal
into a person who, upon return to society,
will conform her behavior to societal norms
reintegration.
Education: The publicity attending the trial,
conviction, and punishment of some criminals
serves to educate the public to distinguish
between good and bad conduct and to
develop respect for the law.
PRINCIPLE OF LEGALITY
The Due Process Clause of the federal
Constitution, found in the Fifth and
Fourteenth Amend- ments, has been
interpreted by the Supreme Court to require
that no criminal penalty be imposed without
fair notice that the conduct is forbidden.
The void-for-vagueness doctrine, which has
been held to require particular scrutiny of
criminal statutes capable of reaching speech
protected by the First Amendment,
incorporates two considerations: 1. Fair
Warning: A statute must give a person of
ordinary intelligence fair notice that his
contemplated conduct is forbidden by the
statute. 2. Arbitrary and Discriminatory
Enforcement Must Be Avoided: A statute
must not encourage arbitrary and erratic
arrests and convictions. No Ex Post Facto
Laws: The Constitution expressly prohibits ex
post facto laws. The Supreme Court has
defined an ex post facto law as one that
operates retroactively to: (i) Make criminal
an act that when done was not criminal; (ii)
Aggravate a crime or increase the punishment
therefor; (iii) Change the rules of evidence
to the detriment of criminal defendants as a
class; or (iv) Alter the law of criminal
procedure to deprive criminal defendants of a
substantive right.
INTERPRETATIONS OF STATUTES
Plain Meaning Rule: When the statutory
language is plain and its meaning clear, the
court must give effect to it even if the
court feels that the law is unwise or
undesirable. An exception to this rule exists
if the court believes that applying the plain
meaning of a statute will lead to injustice,
oppres- sion, or an absurd consequence.
Ambiguous Statutes Strictly Construed in
Favor of Defendant: The rule of lenity
requires that an ambiguous criminal statute
must be strictly construed in favor of the
defendant. Ambiguity should be distinguished
from vagueness. An ambiguous statute is one
susceptible to two or more equally reasonable
interpretations. A vague statute is one that
is so unclear as to be susceptible to no
reasonable interpretation.

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