I.

INTRODUCTION
A. Sources of Criminal Law
1) Role of common-law
(a) Most states have repealed common law crimes by codifying them into statutes
(i) Fair noticeunreasonable to expect an ordinary citizen to know the common law
(b) Many jurisdictions use common law to interpret statutes; it fills in the gaps of
statutory law
(i) People v. Kevorkian: Michigans legislature defined murder generally, but used
common law for a more precise definitions of terms
2) Statutes
(a) Primary source of criminal law
(b) MPC (Model Penal Code)
(i) Restatements of the law in a comprehensive way
(ii) Most American jurisdictions use the MPC as a basis for their laws during penal
code revisions
(c) Penal Codes: Divided into two parts
(i) General: statutes that deal with general principles that apply to many areas of law
(i) Definitions
(ii) Procedures
(iii) Defenses
(iv) A few general crimes (Attempt, Conspiracy, etc.)
(ii) Special/Specific
(i) Individual crimes (Murder, Arson, etc.)
(d) Statutory Interpretation
(i) Plain meaninglook to the text and apply common sense interpretation to the
words
(ii) Legislative intentlook to the history surrounding the passage of the statute
(iii) Precedentlook to the interpretation of the statute in other courts
(iv) Policylook to the policy rationale of the legislature
B. Limitations of Criminal Law
1) Principle of Legality: The U.S. Constitution requires that statutes be clear and that they
provide sufficient notice of what will be punished; limit on the legislature an the government
(a) Fair Notice: society must define punishable conduct in advance
(i) Pure Notice Problem: when the law is unambiguous, but the defendant is unlikely to
know it exists
(i) Lambert case: Defendant prosecuted for passive conduct (not registering in CA),
when she had no knowledge (and no probability of knowledge) that she was
supposed to register
(ii) Retroactive repeal (limit on courts): generally, courts must apply the law at the time of
the criminal conduct
(i) Keeler case: Court decided not to overstep the statutory wording of human being
(with regard to a fetus) because of the concept of fair notice; not convicted of
murder because common law (at the time) defined human being as one born
alive
(ii) Rogers v. Tennessee: Retroactively repealed the year-and-a-day rule; potential
violation of fair notice, but in this case the defendant did not expect the victim to
live beyond the incident; reason for the rule was for causation issues

(iii) Ex Post Facto: (limit on legislature): A legislature may not retroactively criminalize

conduct, increase a sentence, or change procedure in a way that makes it easier to convict;
a defendant cannot be punished for a crime that was not a statutory offense at the time he
committed the act; refers to ALL persons already convicted of a crime
(i) Bill of Attainder: prevents the legislature from passing retroactive laws increasing
sanctions for a particular person, or easily identifiable group
(iv) Rule of Lenity: Courts should resolve ambiguity in statutes in favor of the
defendant and against the prosecution
(i) Reasoning: Defendants should receive the benefit of the doubt when laws fail
to provide adequate precision
1. Limitation: there must be grievous ambiguity; cannot be applied when
the ambiguous reading is implausible of Congressional intent, or there is
no ambiguity in the first place
(ii) Alternate interpretation (by some jurisdictions): Fair import rule:
1. An even-handed approach; encourages statutory interpretation which
furthers the general purposes of the statute
(b) Vagueness: a crime definition must be reasonably precise (what is forbidden and what
are the sanctions) so defendants are not forced to guess at its meaning
(i) Reasoning: Vagueness may invalidate criminal law for either of two reasons:
(i) It may fail to provide the kind of notice that will enable ordinary people to
understand what conduct it prohibits
(ii) It may authorize and even encourage arbitrary and discriminatory enforcement
1. Lanzetta case: in reference to a statute defining gang activity; phrases like
any person not engaged in any lawful occupation or known to be a
member to general and subjective; left police to decide the scope of the
statute
2. Morales case: Loitering statute that contained ambiguous language and
allowed police vast discretion declared unconstitutionally vague
a. Dissent believed that what the statute prohibited (an order to disperse)
was not vague and provides adequate notice; also that police must
inevitably exercise discretion
(ii) If a defendant wins a vagueness challenge, the statute is struck (unrelated to actual
guilt)
II. BURDEN OF PROOF and BEYOND A REASONABLE DOUBT
A. Elements of a crime
1) Standard of proof: beyond a reasonable doubt
(a) Why? Due Process requirement of the Constitution
2) Burden of production: on the government
3) Burden of Persuasion: on the government
B. Defenses (no Constitutional rule; states are free to handle as they wish)
1) Standard of proof: decided by the state
(a) Beyond a reasonable doubt (rare for a defense)
(b) Preponderance of evidence (51% or more)
(c) Clear and convincing evidence (less than beyond, and more than preponderance)
2) Burden of production: on the defendant (some evidence; prima facie case)
3) Burden of persuasion: state may place on either party (on the defendant to prove the
defense exists, or on the state to prove the defense does NOT exist)

III. ELEMENTS OF CRIMES

A. In General
1) Specificity: Constitution mandates that crimes be stated with some specificity (concepts
of fair notice and vagueness)
2) Elements: each element is a policy decision
(a) Certain aspects are part of EVERY crime but are not considered elements: identity;
date; location
3) Burden of Proof:
(a) Prosecution has burden of proving each element beyond a reasonable doubt
(b) 5th amendment: The defendants knowledge cannot be used as proof of any element
(c) Effects the prosecutions choice of which charges to bring to trial
4) Categories:
(a) Actus reus: physical part of the crime; defines what offender must do
(i) Must be voluntary
(ii) Applies to an omission to act when one has a duty to do so (ie failure to pay taxes)
(b) Circumstances: details that fine-tune the reach of the statute
(c) Harm/Result: when a statute proscribes a particular lost, harm, or risk of harm (ie, for
homicide someone must die)
(d) Causation: Link between actus reus and harm
(e) Mens Rea: mental element
(i) Most significant and most difficult to prove
(ii) Proof of moral blameworthiness
(iii) Intentionally, knowingly, recklessly, with criminal negligence
B. Actus Reus
1) Wrongful actconduct necessary to commit a crime
2) Versions of Actus Reus:
(a) Voluntary Act
(i) Rule: The conduct of a prohibited act must be voluntary in order for criminal
liability to result
(i) State v. Sowry: Defendants act of bringing drugs into prison while under arrest
was not a voluntary act; thus the actus reus element is not satisfied; the law
does not punish a guilty mind alone
(ii) Involuntary (non-criminal) acts: reflex, convulsion, movement during
unconsciousness or sleep, conduct under hypnosis, bodily movement not a product of
actors effort or determination
(b) Omission: failure to act when there is a duty to act
(i) Rule: Failure to act may constitute a breach of legal duty when:
(i) Where one stands in a certain relationship to another
(ii) Where a statute imposes a duty to help another
(iii) Where one has assumed a contractual duty
(iv) Where one voluntarily has assumed the care of another
1. State v. Miranda: Boyfriend held liable for failure to protect the child,
because he assumed a familial relationship with the child, he assumed the
common-law duty to protect the child
a. In dissent, issues of fair notice
(c) Possession: someone is guilty of possession (actus reus) ONLY IF it is done
knowinglyadds a mens rea element to the actus reus

(i) Reasoning: if there is no element of awareness, the actor cannot be morally

blameworthy
(d) Status Crimes:
(i) Rule: Cannot punish someone for a status; must punish for an act
(i) Robinson v. California: Defendant convicted for being addicted to drugs; invalid
because imprisoning someone for drug addiction is considered cruel and unusual
punishment
(ii) Rule: a defense claiming an unconstitutional arrest on the basis of status must prove the
defendants conduct was involuntary or uncontrollable
(i) Powell v. Texas: defendant arrested for public intoxication; not considered a status
conviction, because he was convicted for the act of being drunk, not the status of
being an alcoholic
1. Hypo: there may be a defense for someone who is homeless and also an
alcoholic, thus making his act of being drunk in public involuntary and
uncontrollable
C. Circumstances
1) Purpose: to fine-tune criminal activity
2) Can refer to a particular victim, location, certain time of day, etc.
D. Harm
1) Many criminal statutes require the offender to have caused a particular harm
2) Define different levels or severities of harm
3) Some criminal statutes depend on the risk of harm, rather than actual harm itself
E. Causation
1) Relationship between actus reus and harm
2) A policy-based limit on how far criminal liability extends
3) But-for causationthe harm would not have happened but for your action; all jurisdiction
require this kind of causation
4) Under the MPC (and in most jurisdictions) but-for causation not enough; requires proximate
causation
(a) An independent intervening cause breaks the chain of causation
(b) A dependent intervening cause is sufficiently related to the defendants conduct to hold the
defendant responsible
5) Rule: If defendants actions are directly and substantially connected to the harm, and the harm
is foreseeable, then still liable
(a) McCloskey case: Defendant provided alcohol to teenagers, who later drove drunk and were
killed; court found that it was a forseeable event, and was directly and substantially linked to
the accident, thus defendant was liable
F. Mens Rea
1) General: Intent to perform the physical act
2) Specific: Intent to perform the physical act, and to product the result (requires intent)
3) 4 levels of moral blameworthiness:
(a) Purposely/Intentionally: Intended to do it, and intended to cause a particular result;
subjective
(i) I wanted it to happen
(b) Knowingly: Awareness that it is practically certain that your conduct will cause a certain
result; intent is irrelevant; subjective
(i) I was aware that is was practically certain to happen

(c) Recklessly: Conscious disregard of risk; requires a gross deviation from the normal

standards of care; subjective and objective

(i) I knew the risk, but I did it anyway
(d) Criminal Negligence: Failure to perceive a substantial risk; the failure to perceived must be
a gross deviation from the normal standards of care; objective
(i) I should have known the risk
4) Downward inclusiveness: If you act intentionally, you also act knowingly, recklessly, and
negligently
5) The mens rea element in a statute applies to all other elements, unless clearly indicated
otherwise
6) If a statute has no mens rea, then by default recklessly is added, unless clearly indicated
otherwise
7) Higher MPC States (Intentionally and Knowingly)
(a) Intentionally: general focus is the why
(i) Harm: act was done to intentionally cause the harm; motive is used as circumstantial
evidence of your purpose
(ii) Conduct: The act was done in order to do the conduct
(iii) Circumstance: aware of the circumstance, believed it, or hoped it would be there
(b) Knowingly: one does not have to be completely certain
(i) Harm: practically certain the harm will result
(ii) Conduct: aware that your conduct will have a certain result
(iii) Circumstance: aware of the circumstance
(i) United States v. Lynch: Defendant claims he did not know of the crime, and did not
know the artifact removed was an archaeological resource; court finds that no mens
rea is necessary for the first claim, but necessary for the second
8) Lesser MPC States (Recklessness and Criminal Negligence)
(a) Recklessness:
(i) Awareness of risk, and conscious disregard
(ii) Risk is a gross deviation from standard of care of a reasonable person
(b) Criminal Negligence:
(i) Should have been aware of the risk
(ii) Risk is a gross deviation from standard of care of a reasonable person
(i) People v. Hall: To prove reckless manslaughter, prosecution challenged to prove
that the skier:
1. Consciously disregardedinferred from the particular facts of the case,
including the persons knowledge and expertise
2. A substantiala risk may be substantial even if the chance that harm will occur
is well below 50% if the magnitude of harm is potentially great
3. And unjustifiable risk that he woulddetermined by weighing the nature of
purpose of the actors conduct against the risk created by that conduct
4. Cause the death of anotheractor must risk causing death to another person
(can be general, does not have to be directed to a particular person)
9) Transferred Intent: If you intend to harm one person, but in fact harm another, the intent is
transferred to the injured party (there is also transferred recklessness and criminal negligence)
10) Deliberate Ignorance: Deliberately avoiding knowledge in order to avoid criminal liability
(a) Rule (Jewell instruction): Jury may find knowledge from deliberate ignorance; the
deliberate attempt not to find out what you possess implies that you at least know there is
something illegal about the possession, but proof of deliberate ignorance is required

(i) Sanchez-Robles case: Defendant claimed she was not aware that the van she was

driving contained drugs, and further claimed her ignorance on the fact that she did not
know the smell of marijuanacourt allowed, because there was no proof of deliberate
ignorance
G. Strict Liability Crimes
1) No required proof of mens rea
2) Still controversy as to whether mens rea should be read into strict liability crimes
(a) People v. Hoskay: Court held that public indecency was a strict liability crime because
there was no mens rea in the statute (however, when the conduct necessarily involves a mental
element, the court should read a mens rea into the statute, ie for possession)
H. Interrelationship of Elements
1) All elements in the statute must be present at the time of the act
2) Connection between mens rea and actus reus must be linked by causation (not temporally
coexistent)
3) Connection between mens rea and harmthe harm the occurs must be the intent of the mental
state (except in cases of transferred intent)
4) Circumstances and Harm must occur at the same time
(a) Jackson v. State: Defendant forgot pre-trial conference, and then missed the trial date
because he was unaware there would be one; defense is that his culpable mental state
(conscious choice not to appear) did not exist simultaneously with his physical act of failing to
appear
(i) Court found that the elements need not be coexistent as long as they are causally
connected
IV. HOMICIDE
A. Life
1) All homicides require a live human being who is killed by another human being
2) Fetus issue:
(a) Traditionally, fetus must be born alive to constitute a homicide victim
(b) Some jurisdictions have expanded this definition and now punish the killing of a fetus
(i) However, only so long as it does not interfere with a womans constitutional right
to have an abortion
B. Death
1) Two tests:
(a) Traditional definition: irreversible cessation of circulatory and respiratory functions
(b) Brain death standard: irreversible cessation of all functions of the entire brain
2) If you satisfy either test, you qualify as dead under homicide law
C. Pennsylvania Model/Traditional Model (Generally)
1) Purpose: limit the use of the death penalty
2) Closely followed in many jurisdictions
3) Homicide divided into 4 degrees:
(a) 2 murdersmalice aforethought
(i) 1st degree and 2nd degree
(b) 2 manslaughtersno malice aforethought
(i) Voluntary and involuntary
4) Malice Aforethoughtpresent in 4 categories
(a) Intent to killacting for the purpose of taking human life

(i) (Some jurisdictions accept knowledge that death was substantially certain to

result)
(b) Intent to do serious bodily injury (must be serious!)
(c) During commission of a felony (malice aforethought of the felony is carried over to the
murder itself)
(d) Depraved heart (recklessness; extreme indifference to human life)
5) Traditional Homicide Categories (Pennsylvania)
(a) First Degree Murder2 possibilities
(i) Killing that is willful (constitutes the malice aforethought), deliberate and premeditated
(expanded under 1st degree murder)
(ii) Killing that occurs during the commission of a listed felony (constitutes malice
aforethought) (expanded under felony murder)
(b) Second Degree Murderkilling with malice aforethought
(i) Intentional killing (not deliberate and premeditated)
(ii) Killing with intent to do serious bodily injury
(iii) Killing during the commission of a non-listed felony (expanded under felony
murder)
(iv) Killing with a depraved heart (expanded under 2nd Depraved Heart)
(c) Voluntary Manslaughterdoes the prosecution ever voluntarily choose this choose
this level of homicide? I know it is not a defense as such, but seems to incorporate a
defense within it? Does the burden fall on the defendant to prove the provocation, etc?
(i) Killing in the heat of passion
(d) Involuntary Manslaughter2 possibilities
(i) Killing through criminally negligent conduct
(ii) Killing during the commission of a misdemeanor (misdemeanor-manslaughter
rule)
D. Felony Murder Rule
1) For 1st degree murder, the felony must be one of the listed (most serious) felonies
(a) Often preferable for prosecutor, because only requires proof of the mens rea for the
predicate felony (rather than proof of behavior that was willful, deliberate, and
premeditated)
(i) Causation limitation is the only limitation that applies to listed felony-murder rule
2) 2nd degree murder: during the commission of a non-listed felony
(a) Limitations (only applicable to 2nd degree felony murder!)
(i) Merger Doctrine: predicate felony must be independent of the act that kills the
victim; predicate felony must have an independent felonious purpose other than
killing or seriously injuring the victim
(i) Why? Because it would have unjust effects, such as making every person guilty
of manslaughter automatically guilty of 2nd degree murder, which would
eliminate manslaughter as a viable crime
(ii) Both manslaughters are excluded as predicate felonies
(iii) Assault and battery are often excluded as predicate felonies
1. Why? These occur in almost every homicide, including those that would
qualify as voluntary and involuntary manslaughter
(iv) Kilburn case: Defendant convicted of felony-murder for a homicide resulting
from an armed assault; merger doctrine did not apply because there were two
assaultsthe first assault when the gunman pushed into the home and
ordered the victim around; second assault when he took the victim in the

bedroom and shot him in the head; court held that the second assault merged
with the homicide (same felonious purpose), but the first assault did not
(independent felonious purpose)
(ii) Dangerous Felonies: felony-murder limited to felonies involving a special danger
to human life
(i) Why? To avoid over-criminalization; a certain jurisdiction may classify a
relatively minor crime (in terms of moral culpability) as a felony
(ii) 2 Approaches:
1. Inherently dangerous crimescourts look to the elements of the crime in
the abstract to determine chances of loss of life or serious bodily injury
a. Problem: some felonies may not appear dangerous in the abstract, but
may be deadly in a particular situation
2. Dangerous Act approachfelonies that occur while the defendant is doing
an act dangerous to human life; courts look at the circumstances of the
case, and the acts of the defendant while committing the felony
a. Problem: the presence of a dead body will sway a finding that a crime
was inherently dangerous
(iii) State v. Anderson: Defendant unintentionally shot victim while in the
commission of the following felonies: felon in possession of a firearm, and
possession of a stolen firearm
1. In the inherently dangerous approach, no felony-murder because the
abstract possession is not inherently dangerous (he could be by himself;
the gun could be unloaded)
2. In the dangerous act approach, may be felony-murder because the
possession and the circumstance of pointing the gun at the victims head
was inherently dangerous
a. However, discharging the shotgun was not in furtherance of the
predicate felony (see Causation below)
(iii) Causation: death must occur because of and during the commission (or attempted
commission) of the felonyoften extended to the commission and the immediate
flight after the predicate felony
(i) Co-felons:
1. Felons are liable for killings committed by their co-felon
2. Felons are liable for co-felons accidental death
3. Killing by a non-felon:
a. Agency theorya felon is responsible only for crimes committed by a
co-felon (thus, killings by a police officer or unrelated third party do not
make felon liable for those deaths under felony-murder)
b. Proximate Cause theorya felon is responsible for deaths that are
reasonably foreseeable consequences of the felony
i. Idea is that a cone of violence is set in motion by the predicate
felony
E. First Degree Murder: Willful, Deliberate, and Premeditated Killing
1) Willful: Intent to kill
2) Deliberate: Cool state of mind; capable of reflecting; opposite of impulsive
3) Premeditate: Advance planning
(a) Some courts hold that premeditation may occur in an instant

4) Role of Motive: Not an element, but may be circumstantial evidence of (or lack of) intent,

premeditation, and deliberation

F. Depraved Heart (Second Degree Murder)
1) Depraved Heart=recklessness; extreme indifference to human life
2) Often unintentional, but still constitutes malice aforethought
3) Connected to involuntary manslaughter on a continuum of negligence; if not enough for
depraved heart, may be enough for involuntary manslaughter charge
4) Examples: Russian Roulette; shooting a gun into a crowd of pedestrians; dropping a
heavy rock onto a highway, etc.
G. Voluntary Manslaughter
1) Often intentional, but not enough to constitute malice aforethought
(a) Why? Recognizes human frailties and includes an element of comparative fault
(b) Reduces the gravity of the killing, but it is not a defense or excuse
2) Elements:
(a) Must kill in the heat of passion or under extreme emotional disturbance (in theory,
this negates the presence of malice aforethought)
(b) Must be legally sufficient provocation:
(i) Physical assault and spousal adultery have typically been found sufficient
(ii) Mere words are insufficient, unless they are particularly inflammatory
(iii) Defendant cannot goad victim into provocation
(i) If provocation is not legally sufficient for voluntary manslaughter, in some
cases can be used to argue Murder 2 because of the absence of a cool mind
for deliberation element of Murder 1
(c) Reasonable person test: the defendant must be provoked, and the circumstances must
be such that a reasonable person would have been provoked
(d) Insufficient Cooling Time: killing must be spontaneous and rash
(i) Some courts demand immediate reaction, others allow for brooding timemost
often instruction is allowed and it is left to the jury
H. Involuntary Manslaughter
1) Criminal Negligence
(a) Often involves the failure to perceive a serious risk
(i) Some jurisdictions raise the bar and demand a subjective awareness of risk, and
ignoring the riskhowever this seems more akin to depraved heart murder
(b) Conduct should be a significant departure from the conduct of a reasonable person
2) Misdemeanor Manslaughter
(a) A killing in the commission of a misdemeanor or unlawful act (the unlawful act itself
constitutes the recklessness/criminal negligence required)
(i) Many jurisdictions reject this doctrine
I. MPC Model3 categories: Murder, Manslaughter, and Negligent Homicide
1) Murder:
(a) Causing death purposely or knowingly (no malice; no premeditation-deliberation)
(b) Causing death recklessly with extreme indifference to human life (higher degree than
depraved heart)
(i) Evidence of felony creates a presumption of recklessness with extreme
indifferencemay still have to prove that defendant acted recklessly during
commission of the felony
2) Manslaughter:
(a) Homicide committed recklessly (possibly comparable to depraved heart) or,

(b) Homicide committed under extreme mental or emotional disturbance for which

there is reasonable explanation or excuse (similar to voluntary manslaughter)

(i) No provocation requirement
3) Negligent Homicide:
(a) Homicide committed with criminal negligence (similar to involuntary manslaughter)
(i) MPC rejects the misdemeanor-manslaughter approach
4) Vehicular Homicide
(a) Operating a motor vehicle with gross negligence or recklessness causing death
(i) Drunk driving the most common scenario
V. ASSAULT
A. Overview
1) Crime against a person, by injuring or frightening them with physical contact
2) In many jurisdictions assault (fear crime) and battery (offensive touching/physical
contact) are combined into the one crime of Assault
(a) For instance, Assault in New York involves physical injury; the fear crime is called
menacing
B. Assault
1) 2 Types: Attempted Battery and Frightening
(a) Attempted batterydefendant failed in an intentional effort to inflict bodily injury
(i) Requires an intent to do physical harm (not merely frighten)
(ii) Unlike other attempt crimes, the actor must come close to actually inflicting harm
(ie, swing and a miss)
(iii) Focus on defendants actions (victims awareness not necessary)
(b) Frighteningdefendant intentionally causes someone to be reasonably frightened of
suffering immediate bodily harm (sometimes fear of future harm will qualify, ie a
conditional threat)
(i) Requires an intent to cause fright
(i) Negligence and recklessness are insufficient
(ii) Requires the victim to suffer from actual fright
(i) Victim held to reasonable person standard with normal sensibilities
C. Battery
1) Physical contact without consent
(a) Contact may involve various degrees of harm (reflected in degree and sentencing)
serious bodily injury, to bodily injury, to offensive touching
2) All jurisdictions apply battery to intentional harm
(a) Transferred intent applies
3) Some jurisdictions extend battery to reckless and criminally negligent injuries
4) A few jurisdictions extend battery to harm caused by (during the commission of) unlawful
acts
D. Modern Combined Offense (Assault)
1) Combines attempted battery, frightening facets of assault, and the causing injury
ingredient of battery (more significant harm is needed than traditional battery; offensive
touching will not do)
2) MPC defines to crimes under Assault:
(a) Simple Assault:
(i) Purposely, knowingly, or recklessly causing bodily injury
(i) Negligently causing bodily injury by means of a deadly weapon

(ii) Attempting by physical menace to put another in fear of imminent serious bodily

injury
(b) Aggravated Assault
(i) Purposely, knowingly, or recklessly causing serious bodily injury, under
circumstances manifesting extreme indifference to human life
(ii) Attempting to cause serious bodily injury
(iii) Attempting to cause bodily injury with a deadly weapon
E. Aggravating factors of Assault and Battery
1) Gravity of harm
2) Grave intent (usually during the commission of a serious felony)
3) Method the crime is carried out
(a) Ie, with a deadly weapon
4) Category of victims
(a) Ie, children, police officer, etc.
F. Defenses
1) Consent: one may consent to some assaults, but the consent must be voluntary and
knowledgeable (sports activities, surgery)
2) Parental/Teach privilege: parents and guardians may use reasonable force in disciplining
their children
G. Related Crimes
1) Reckless Endangerment: when someone recklessly (at times negligently) creates a risk of
harm (death or serious bodily injury)
VI. PROPERTY CRIMES
A. Overview
1) Traditional theft law applies to property law
B. Relationships of a person to property:
1) Custody: when you acquire property for a very limited purpose and for limited time
(a) Ie, a person trying on clothing in a store
2) Possession: Actual / Constructive control over property, with the right to exclude others
from it
(a) Ie, renting a car
3) Ownership (Title): Total rights in property; permitted to use as desired
(a) Most property does not have a title to it, so it is not necessary to establish ownership
(i) Ie, you own your wallet (no title)
4) Abandoned property: Owner has relinquished all rights to property
(a) Owner must intentionally give it up
C. Traditional Approach
1) Larceny: obtain possession of property through theft
(a) Elements:
(i) A Trespassorywithout consent
(ii) Taking andobtaining actual control or dominion of the item
(iii) Carrying Away ofasportation; in most jurisdictions, even the slightest
movement will suffice
(iv) Personal PropertyNot real property (crops, structures, wild animals); not
services
(v) Of Another Persontaking from someone elses possession (not ownership)
(vi) With Intent to permanently deprive2 mens rea:

(i) Intentional deprivation of property from the possessor

(ii) The intent to deprive had to be permanent
1. Permanent can be a substantial amount of time, or for sufficient time to
deprive property of its value
(iii) A mistake as to a claim of right to property can be a defense, in that there is
no intent to deprive another person of their right of possession (if actor
believes HE has the right to it)
(iv) Also, when a person takes property temporarily (borrowing something) and
then decides to keep it, they do not satisfy the necessary intent because the
intent needs to be present at the time of the trespassory takingwould this be
embezzlement?
1. Since a successful thief technically possesses the property, then if the
rightful owner steals it back (satisfying the above elements) is he not
committing larceny?
(b) Ex. Defendant takes a coat off a dummy, and attempts to walk away but cannot b/c a
string is attached to the dummy; insufficient asportation
2) Larceny by Trick: obtain possession of property through deceit
(a) No tresspassory element; rather obtaining consent and possession through trickery
same mens rea as larceny?
(i) King v. Pear: Man expresses interest in buying a horse, rides the horse with
owners consent, and the rides away
3) False Pretenses: obtain title of property through deceit; although the owner intends to
covey ownership to another person, that intent was instigated by fraud
(a) Elements:
(i) Intentional misrepresentation about a present or a past fact (not future)
(ii) The fact must be in fact not true
(iii) The misrepresentation must be material to the transaction; almost a version of
causation
(iv) Mens rea (2 components):
(i) Knowledge that the fact is false
(ii) Intent to defraud
1. Intent usually inferred from the knowing misstatement or omission,
because if one uses a false statement to obtain title it is reasonable to infer
that it was made for that purpose
(b) Ex. Defendant switching price tags on an item, and then buying it at false price;
securing title and possession by false pretenses
4) Embezzlement: lawfully (with a clean mind) obtaining possession of property, then
wrongfully converting it to ones own interesteven if its obtained with a dirty mind, still
need embezzlement because it is in the embezzlers possession (cant be larceny) and it
wasnt obtained by deceit (cant be larceny by trick)right? Or, is taking it with a dirty mind
= deceit necessary for larceny by trick
(a) Fraudulent Conversion and Fraudulent Breach of Trust are essentially the same
crimes
(b) Victim of embezzlement entrusts the property to the defendant
(c) There must be a fraudulent conversion of the property by the person with otherwise
lawful possession
(i) The conversion must be a serious interference with owners property rights

(d) Mens Rea: specific intent crime; intent to fraudulently convert property for personal

use (as opposed to larceny, which is intent to permanently deprive)

(i) Valid defense is mistake as to ownership or scope of entrustment (like larceny)
because the mens rea would not be present
D. Modern Consolidated Approach (MPC)
1) Generic theft offense that consolidates the historically separate versions of property crime
(larceny, embezzlement, etc)
2) Example: NY 155.05Consolidated Theft Statute
(a) Elements:
(i) Wrongfully (without consent, by threat, or by deception)
(ii) Takes/obtains/withholds (no more asportation)
(iii) Property (no distinction between title, possession or custody)
(iv) Of Another
(v) With intent to deprive or appropriate (no more permanently; doesnt matter when
evil intent is acquired)
(vi) From the owner (defined as the person who has a right to possession)
E. Receiving Stolen Property
1) Why a separate crime?punish the people who make thefts financially worthwhile by
providing a market for stolen goods
2) Receivingwhen the 3rd party (no contact with victim) obtains possession
(a) Many jurisdictions have added receiving or concealing, to cover actors who find out
that property is stolen at a later point
3) Stolen Propertyacquired by means of larceny or robbery, and in some instances
embezzlement and false pretenses
4) Mens Rea (2 components):
(a) Intent to deprive the owner of property
(b) Knowledge that the property is stolen (or belief that it is stolen)
(i) Often involves circumstantial evidence: paying a low price; faulty record-keeping;
history of similar transactions; etc.
5) Example: NY 165.40 Criminal Possession of Stolen Property
F. Theft of Servicesseparate from the theft statute (165.15)
G. Joyridingseparate from the theft statute (165.05 Unauthorized use of a vehicle)
1) Gets rid of the intent to deprive requirement
H. Forgeryoften covered by False Pretenses statutes
VII. THEFTISH CRIMES, SOMETIMES VIOLENT
A. Robbery
1) Most serious of all theft crimes
2) Elements of larceny + 2:
(a) Taking must be from the person or presence of the victim
(i) Proximity requirement is reasoning behind classifying robbery as such a serious
crime because it increases the likelihood of harm to the victim
(ii) Person: on victims body, or within immediate physical control
(iii) Presence: actual and constructive presence; ie, from the victims home while
victim is at home
(b) Theft must occur by force or threat of immediate force (to victim or to 3rd party)
(i) Traditionally, the force (or threat) had to be before or at the time of the taking

(i) State v. Holmes: defendant asks to inspect the diamonds, and once he receives
them he pulls a gun and forces victim into the basement so as to steal the
diamonds; not guilty of robbery because he acquired the property without
force, only using it afterward
(ii) Now, the MPC and many jurisdictions extend robbery to in the course of taking,
or to retain possession
(i) Pope v. Netherland: Defendant kills after stealing victims purse; still convicted
of felony-murder (using robbery) since the force was used in the same
criminal episode
3) Between Robbery and Theft
(a) Purse-snatching: theft of a purse from a person (more serious than theft because its
from the person, but less serious than robbery because of minimal force)
(b) Larceny from person: pickpockets (same reasoning as above)
(c) Carjacking: Robbery of a car; requires violence or threat of violence
(i) Can be either permanent or temporary intent
4) Example: NY 160.00 Robbery
(a) Robbery is forcible stealing. A person forcibly steals property and commits robbery
when, in the course of committing a larceny, he uses or threatens the immediate use of
physical force upon another person
B. Extortion
1) Two elements:
(a) Intent to obtain property of another
(i) In some jurisdictions, it can be the intent to cause someone to do something he is
not obligated to do
(b) Threat of present (overlaps with robbery) or future harm to person, property or
reputation of another (some statutes eliminate physical harm, limiting extortion to
property or reputation)
(i) Threat must be wrongful
(i) Legitimate threats do not count (do such and such or Ill sue; make this right,
or Ill reveal your behavior to the press, etc.)
1. United States v. Jackson: Jackson demanded $40 million from Bill Cosby by
threatening to reveal damaging information to the press; threat was
considered wrongful in 2 ways:
a. Threats to injure a persons reputation are inherently wrongful
b. Threats to injure a persons reputation when there is no claim of right
(ie, entitled to the $) is inherently wrongful
C. Burglary
1) Traditional approach: Breaking and entering a dwelling house of another at night with
the intent to commit a felony
2) Modern approach:
(a) Many jurisdictions eliminated breakingentering or remaining inside suffices
(b) If its a dwelling, its an aggravated form of burglary
(i) There are lesser degrees of burglary for unlawfully entering a non-dwelling
(c) Many jurisdictions eliminated night
(i) Some make it an aggravated factor
(d) Many jurisdictions changed intent to commit a felony to intent to commit a crime
(felony or misdemeanor)

(i) For example: It is a burglary if all other elements are satisfied and the criminal was

intending to commit larceny; if the criminal commits larceny, they are considered 2
separate crimes, with separate sentencing
3) Example: NY 140.20, 25, 30 Burglary
(a) 3rd Degree: basic, fundamental statute; adds concept of unlawfully remaining
(i) No breaking; no night
(b) 2nd Degree:
(i) armed; physical injury; threat of physical injury; OR
(ii) building is a dwelling
(c) 1st Degree:
(i) Armed; causing physical injury; displaying a weapon, etc.
4) Criminal Trespass: Going onto someone elses property without permission
(a) Mens rea: person must know that they do not have permission

VIII. PREPARATORY CRIMES

A. The process (or preparation) of committing an object crime
1) Allows police to intervene before an object crime is carried out
2) Punishes for the same moral culpability as the object crime
3) Punishment is different because of the differing results (ie, the defendants do not succeed
in committing the crime)
B. 3 Main Preparatory Crimes
1) Attempt: defendant makes an effort toward committing an object crime
2) Solicitation: defendant attempts to enlist someone else to commit a crime
3) Conspiracy: group criminality; defendant agrees with another person (or more) to
commit a crime
4) (Assault of attempted battery, and burglary are also types of preparatory crimes)
C. Attempt
1) Rationale: punishes the risk of harm, rather than actual harm; protects society for people
who intend to injure it
2) Merger: A person cannot be convicted for both the object crime and attempt to commit
the object crime
3) Actus reus: sufficient act in furtherance of the object crime; requires an assessment of
how far a person has gone toward committing an object crime (determined by the jury)
(a) Beyond mere preparation There is a line that separates mere preparation
conduct from perpetration conductpreparation stage does not satisfy the actus reus;
defendant must engage in conduct that constitutes perpetration
(b) Tests for actus reus:
(i) Dangerous proximity test: whether the defendant comes close to completion of
the object crime; focus on physical proximity
(i) Looks at what remains to be done
(ii) Substantial step test (MPC; most common): whether a substantial step has been
taken that strongly corroborates the intent to commit the crime; the step must help
establish the mens rea (criminal purpose)
(i) Looks at what the actor has already done
1. United States v. Williamson: Attempted battery case; defendant placed two
knives in his pocket, looked for the victim with intent to hurt him, but
ceased his search when he did not find himthe court found that he had

not taken a substantial step because there was no physical proximity

(arguable) and no intervention from 3rd parties was needed
(c) (Solicitation and conspiracy usually occur before the attempt, but not necessarily)
4) Mens rea:
(a) Intent to commit the object crime (no attempted recklessness or negligence)
(i) Ie, for attempted robbery there must be intent to take property by force
(b) Intent to engage in perpetrating steps (knowledge that the steps are in furtherance of
the object crime)
(c) Many jurisdictions also require the same mens rea as the object crime
(i) For instance, for attempted first degree murder, govt. would have to prove intent to
kill (for attempt), and intent to commit a willful, deliberate, and premeditated killing
(for first degree murder)
(d) Mens rea is often inferred by the actus reus
5) Potential Defenses:
(a) Impossibility
(i) Legal Impossibility: Defendant makes efforts to do something that is not a crime
(i) True: There would be no crime, even if the object of the crime had been
fully accomplished
1. Affirmative defense
2. Actor thinks he is committing a crime, but the legislature has not made it a
crime
3. Example: carrying aspirin from Canada to the U.S., thinking it was a crime
(ii) Hybrid: Defendant has an illegal goal, but cannot accomplish the crime
because of a mistake about legal status
1. According to MPC, not a defensecrime is looked at as if the attendant
circumstances were as he believes them to be
2. Actor is mistaken about a legal status (mix of factual and true legal
impossibility)
3. Example: bribing someone the actor believes to be a juror; receiving
unstolen property believing it to be stolen
(ii) Factual Impossibility
(i) Not a defense
(ii) Actor misperceives the facts
1. One must look at the facts as the criminal believes them to be (like hybrid)
(iii) Example: picking an empty pocket
(iv) Example: undercover agent posing as a child on the internet to catch sexual
predators
(iii) Inherent possibility
(i) Valid defense
(ii) Akin to factual impossibility, except the defendants incompetence is so
apparent that there is no attempt
(iii) Example: voo-doo doll
(b) Renunciation
(i) Generally accepted defense, if all elements are satisfied
(ii) Involves a person who is guilty of attempt, but then changes his mind and
retreats
(iii) Elements
(i) The change of mind must be:

1. Complete (a total decision not to commit the crime)

a. Does not apply to someone waiting for a better time to commit the
crime
2. Voluntary
a. Does not apply to a defendant who is afraid of getting caught
(ii) The object crime must not occur (if a person fully renounces a crime but it still
occurs, there is no defense)
D. Solicitation
1) Rationaleto discourage people from trying to involve others in a crime
2) Actus reus (broadly defined)
(a) Solicits, requests, commands or otherwise attempt to cause another person to commit
a crime
(i) Crime is complete upon communication, as long as there is the mens rea
(regardless of the actions of the solicited person)
(b) Under MPC, communication does not have to reach intended recipient (why?the
evil intent is there); in some jurisdictions it must reach the intended recipient (why?
the risk of harm is absent)
(i) Some of these latter jurisdictions will allow an attempted solicitation
(c) In some jurisdictions, words are enough; in other jurisdictions, they require evidence
that corroborates the solicitation itself and the defendants intent that it be acted on
3) Mens rea:
(a) Intent to cause another person to engage in criminal conduct
4) In many jurisdictions, there are different degrees of solicitation based on the type of crime
being solicited
5) Merger: by statute, solicitation merges with conspiracy (cannot be convicted of both)
(a) Why?because conspiracies start with solicitation
(b) If merger occurs, every actor is equally liable, regardless of who initiated solicitation
6) Defenses:
(a) Certain impossibilities (solicitor cannot be the victim, ie statutory rape)
(b) Renunciation (same requirements as above)
E. Conspiracy
1) Generally
(a) Theory: Group criminality is more dangerous than individual criminality; moral
blameworthiness is attached to the deliberation
(b) Independent of the object crime (can be convicted of both conspiracy and the object
crime)
2) Elements:
(a) Plurality (circumstance): two or more people
(i) Some jurisdictions say an undercover agent qualifies as a co-conspirator, because
the evil mind (moral culpability) is present in the conspirators belief that hes
conspiring (Unilateral approach, MPC)
(ii) Other jurisdictions say an undercover agent does not qualify as a co-conspirator
(bilateral approach)
(b) Actus reus:
(i) Agreement (express or implied) to commit a crime
(i) Usually proven by circumstantial evidence; jury question
(ii) Overt act: any act by one conspirator in furtherance of the conspiracy

(i) Most jurisdiction require this (allows prosecution if the act is not substantial
enough to constitute attempt)
(ii) Overt act need not be criminal
(c) Mens Rea:
(i) Intent to enter into an agreement
(ii) Knowledge of the common criminal objective of the agreement
(d) Mens Rea in Supplier Cases: Intent to promote the commission of a crime
(i) Must have the intent to participate or promote the crime; knowledge of
illegality is NOT enough
(ii) Not a clear line between knowledge and intent to promote
(i) Often circumstantial evidence is used (repeated transactions, inordinate
profits, assistance in concealment, etc.)
(iii) Lauria case: Defendant provided telephone service used by a prostitution ring;
provider had knowledge of the illegal activities, but was not part of the conspiracy
because he did not have intent to promote
(iv) Falcone: Sugar supplier knew the buyer was making moonshine, but was not part
of the conspiracy
(v) United States v. Lawrence: defendant agreed to rent his trailer to meth producers
for $1,000 a day; changed his mind and never received the money; court held that he
did not have the intent to promote the distribution of meth
(i) Important details (for the court)
1. Defendant did not follow through with the agreement or transaction (ie,
never received money)
2. Defendant only negotiated for one payment, not a stream of rentals
(ii) More appropriate offense would be Criminal Facilitation: Must knowingly
provide the means for another to commit a crime
3) Limitations:
(a) Whartons Rule: If by definition a crime can only be committed by at least two people,
then if only two people commit that crime, conspiracy does not apply (ie, adultery)
(b) Protected class of victims: the victim of a crime cannot be convicted for conspiracy
to commit the crime (ie, and underaged participant in sexual relations would not be
charged with conspiracy to commit statutory rape)
4) Defenses:
(a) Renunciation (statutory defense):
(i) Completely eliminates criminal liability for conspiracywhy? Because it provides
an incentive to prevent the object crime from occurring
(ii) Renunciation must be complete and voluntary
(iii) Defendant must prevent the commission of the object crime
(b) Withdrawal (not a statutory defense):
(i) Does not eliminate liability for conspiracy; responsible for the conspiracy and all
crimes prior to the withdrawal
(ii) Defendant must notify police or co-conspirators of the withdrawal (BUT, does not
have to prevent the commission of the crime
(iii) An effective withdrawal eliminates liability for crimes committed after the
withdrawal (ie, Pinkerton would no longer apply)
5) Scope of Liability

(a) Pinkerton Rule: Every conspirator is guilty of all reasonably foreseeable crimes

committed by other conspirators during and in furtherance of the conspiracy (MPC

rejects Pinkerton)
(i) Dramatically extends criminal liability to participants who do not have the mens
rea of the substantive offense
(i) Why? To deter collective criminal agreements
(b) For an agreement, both parties must have awareness of the agreement
(i) Knowledge of co-conspirators identities not necessary; general understanding of
the nature of the conspiracy (ie, big drug distribution chain) is enough
(c) Only way to avoid liability through Pinkerton is withdrawal
6) MPC (Conspiracy)
(a) Actus Reus:
(i) Agreement is necessary (no overt act requirement for first or second degree
felony)
(b) Mens Rea:
(i) Person must agree with the purpose of promoting or facilitating the object
offense (highest mens rea levelpurposeful)
(i) No Pinkerton b/c requires mens rea to be present
(ii) Knowledge of members is necessary, but knowledge of identities is not
(c) Unilateral approach: undercover agents count as co-conspirators for the purpose of
plurality
(i) Why? To facilitate sting operations
IX. ACCOMPLICE LIABILITY
A. Theory of liability (not a crime):
1) A person is criminally liable for a crime if they provide some assistance in the commission
of the offense by the primary violator, and act with the requisite mens rea for the
commission of the target offense
B. Common law distinctions:
1) First degree principal:
(a) Perpetrator of the object crime
(b) Physically or constructively present
(c) Person who uses an innocent instrumentality to commit a crime
2) Second degree principal:
(a) Provided assistance to the first degree principle in committing the crime
(b) Actually or constructively present
(c) Responsible for the object crime
3) Accessory before the fact
(a) Counseled, advised, directed, or aided the commission of the crime
(b) Responsible for the object crime
4) Accessory after the fact: provided aid after the offense; assisting criminals escape or hide
(a) Purposely assisting a felon to escape, after the commission of a crime
(b) Less culpability; lacks the mens rea for the object crime, but does have the intent to
help a criminal escape apprehension (obstruction of justice crime)
C. Modern approach:
1) Jurisdictions have consolidated the first 3 categories
2) Some jurisdictions hold accomplices liable for any crime they are a party to, and any crime
that is a natural and probable consequence of that crime (a cousin of Pinkerton)

3) Other jurisdictions reject natural and probable consequence, and only hold accomplice

liable for the object crime they are trying to accomplish

(a) Medina case: Defendant aiding in the commission of a drug trafficking offense held
liable for a firearm charge; court found that she needed knowledge of the firearm, and
some sort of facilitation of carrying the firearm (driving the car was sufficient)
D. An aider and abettor can be convicted after the named principal is acquitted
1) Standefer case: allows a different jury to come to a different conclusion
E. MPC: A party is liable for a completed crime if:
1) Actus Reus: Solicits, aids, or agrees or attempts to aid another in the commission of
a crime
(a) No agreement necessary; encouragement may suffice; perpetrator need not be aware
of the assistance
(b) Solicitation: while some jurisdictions would only indict for solicitation, under the
MPC, a solicitor may also be properly labeled an accomplice
2) Mens Rea: with the purpose of promoting or facilitating the commission of the crime
(a) Accomplice liability extends to reckless or negligent crimes
(b) No natural and probable consequences doctrine
3) Some jurisdictions require actual aid; in those circumstances agreeing or attempting to
aid may not be enough
F. Obstruction of Justice Crimes
1) Accessory after the fact (MPC = Hindering)
(a) Obstruction of justice crime
(b) Must have knowledge and purpose
2) Some jurisdictions have a family-member exception
3) Compounding
(a) Taking money to not report a crime
(b) Exception: if you are receiving due compensation for the crime (victim of robbery
demanding the return of $)
4) Misprision: Failure to report a crime, or hiding evidence
G. Corporate Criminality
1) A corporation can be convicted of a crime for:
(a) An omission to do something its legally bound to do
(b) The commission of the offense was authorized/tolerated etc. by the board of directors
(c) The commission of minor crimes performed by an agent acting on behalf of the
association
(d) Defense: a high managerial agent took due diligence to prevent the crime (allows the
corporation to be isolated, while individual actors can be personally liable)
X. DEFENSES
A. Overview
1) Every defense is policy-based, to reduce moral blameworthiness in certain contexts
2) Statutorily based (common law defenses sometimes apply)
B. Policy Bases:
1) Relative innocence: government may give a defense to the actor who is less morally
culpable
(a) Ie, a bar fight, usually the one who is arrested won the fight
2) Life over property: Generally, you may not use deadly force to protect property
3) Encourage law enforcement: Many defenses enable law enforcement to do their jobs; a
police officer can use reasonable force to make an arrest

4) Basic concepts of responsibility: General notions for who is responsible for what they

do

(a) Infants, insane people, under duress, etc. = not responsible

C. Types:
1) Failure of proof: not a true defense; refers to the prosecutions failure to prove the
elements of the crime; can be offered by the defendant to help make prosecutions proof fail
(a) Ie, alibi, intoxication, diminished capacity, mistake of fact
2) Justification: I committed the elements of the offense, but what I did wasnt wrong
(a) Ie, self-defense, defense of others, defense of property, law enforcement
defenses
3) Excuse: I committed the elements of the offense, but I am not responsible for my actions
(a) Ie, insanity, duress, entrapment, mistake of law
4) Special defense: applies to specific crimes
(a) Ie, renunciation for attempt/conspiracy
5) Partial defense: reduces (but does not erase) criminal liability
6) Extrinsic defense: nothing to do with moral blameworthiness
(a) Ie, Statute of limitations; diplomatic immunity
D. Kinds of Defenses
1) Alibi
(a) Type: Failure of proof
(b) Disproves the first element of every crimeidentity: that the crime was committed by
the defendant charged
(c) Notice rule: Defendant must give pre-trial notice if alibi is going to be offered as a
defense
2) Mistake of Fact
(a) Type: Failure of proof
(b) A valid defense when it negates the mens rea of the crime
(i) E.g., I thought it was my overcoat when I took it (did not intend to deprive
another)
3) Diminished Capacity
(a) Type: Failure of proof or Excuse (less than insanity)
(b) An impaired mental condition (short of insanity) caused by intoxication, trauma or
disease, which negates the mens rea of the crime
(c) Partial defense: may lower the level of criminal responsibility (but not erase it like
insanity)
(d) Applicable when the mental disease effects different aspects of the defendants mental
processes (mens rea element of crimes)
(i) E.g., can act intentionally but cannot deliberate or premeditate
(e) Advance notice and mental evaluation requirement (like insanity)
4) Intoxication
(a) Type: Failure of proof
(b) Intoxication is a defense if it negatives the mens rea of a crime (can even argue that is
negatives the actus reus because the act is not voluntary)
(i) Limit: cannot use intoxication to negate the subjective awareness part of
recklessness; if youre to drunk to be aware of a risk, you may not offer evidence of
that fact
(ii) Limit: never a defense for drunk driving
(c) Involuntary intoxication: when you become intoxicated through no fault of your own

(i) Can be used to satisfy the mental disease or defect of insanity

5) Infancy
(a) Type: Failure of proof
(b) Common law: Rule of 7s
(i) Under 7: incapable of forming mens rea
(ii) 7-13: rebuttable presumption of incapacity to form mens rea
(iii) 14+: rebuttable presumption of capacity to form mens rea
(c) Modern jurisdictions have juvenile courts, which focus on rehabilitation
(i) Infancy is not a valid defense in juvenile courts (since they were designed to handle

minors)
(d) Some jurisdictions ay Murder 1 is always in adult court
6) Self-defense:
(a) Type: Justification; Complete
(b) Why? It is appropriate for people to defend themselves when they are attacked, or
when they reasonably believe they are being attacked
(i) Problems arise with unreasonable/irrational people
(c) Self-defense is situational and rapidly changes as the incident escalates; often
difficult to assess reasonableness
(d) Elements:
(i) A person is authorized to use a reasonable amount of force to protect himself
(i) Objective standard applies to the defenders use of force
(ii) When there is a reasonable and actual belief that force is necessary
(i) Objective standard for reasonable belief
(ii) Subjective standard for actual belief
(iii) To protect against the imminent use
(iv) Of unlawful force (against the self-defender)
(i) However, cannot resist arrest even if arrest is unlawful
(e) Deadly force:
(i) Deadly force can be used against deadly force (reasonable standard)
(f) Retreat rule: In some circumstances you should retreat rather than take human life
(i) Policy: you should not take human life if you dont have to
(ii) Exception: you are not required to retreat from your home
(g) People v. Goetz: question whether reasonable has a subjective or objective standard;
MPC uses subjective reasonableness, which has been rejected by most jurisdictions
(i) To avoid the problems encountered with unreasonable/irrational people
(ii) Reasonableness can also be considered in light of the circumstances or situation,
but still must be how a reasonable person would act under those circumstances
(h) Subjective belief: Even under the subjective belief model, if that belief is mistaken and
recklessly or negligently formed (and the person is charged with a reckless or negligent
mens rea crime) then self-defense is not applicable
(i) Imperfect self-defense: Can serve to reduce the grade of an offense (e.g., from murder
to voluntary manslaughter), if some but not all of the self-defense elements are present
(i) Can arise from an unreasonable belief of imminent threat, or an unreasonable
amount of force used in response to a threat
7) Defense of third persons:
(a) Type: Justification
(b) Why? Designed to encourage people to defend others
(c) Cases are always fact-specific

(d) 3 Approaches:
(i) Stand in shoes:

(i) Most traditional

(ii) I may do whatever the person Im rescuing could do; if you make an erroneous
judgment, you could be in trouble
1. If you hit a police officer making a lawful arrest, believing that they were
assaulting the person is no defense under this approach
(ii) Reasonable Belief
(i) Most prevalent today (same as self-defense)
(ii) May use a reasonable amount of force if you reasonably believe that force is
necessary; if you make an erroneous but reasonable judgment, there is a
defense
(iii) Subjective (MPC)
(i) You have a defense if you believe its necessary to use that amount of force to
rescue another person
1. Provides the most encouragement to the potential rescuer
8) Defense of Property
(a) Type: Justification
(b) More limited because property is less valuable than human life
(i) You may not use deadly force to protect property
(i) Exception: protecting your home allows for use of deadly force
1. Exception to exception: trap-guns cannot be used to protect your home;
must be able to exercise discretion to use deadly force
(c) General rule: Reasonableness
(d) MPC: Subjective approach; justifiable if actor believes such force is immediately
necessary
9) Law enforcement defense
(a) Type: Justification
(b) Why? Allowing law enforcement to do their jobsto arrest, or prevent an escape
(c) Common law: officer could use deadly force to stop a fleeing felon (no reasonableness
standard)
(d) General rule: Officer may use reasonable force to carry out duties or prevent an
escape
(i) Tennessee v. Garner: Deadly force is permissible if it is reasonable under the
circumstances (looked at from the perspective of a reasonable officer)
(i) Circumstances usually limited to criminals who pose a threat of death or
serious injury (upon escape) to the officer or to the public
(ii) Courts take into account that officers are often forced to make split-second
decisions
(e) There is no longer a resisting arrest defense, even if the arrest is unlawful
(i) Why? To prevent citizens from being harmed
(ii) Exception: a citizen may resist arrest if the arrest is effectuated with unreasonable
force
10) Crime Prevention defense
(a) Type: Justification
(b) Both law enforcement and civilians have a defense to use force to stop crime
(c) Use of deadly force varies across jurisdictions
(d) Often used conjunctively with self-defense, and defense of third-parties

11) Public Duty:

(a) Type: Justification
(b) A person with a public duty is permitted to carry it out in a reasonable manner
(c) Controversial in the area of military
(i) There is a defense if the military person is executing an order by a superior, and

does not know it to be unlawful

12) Discipline (Based on special relationships)
(a) Law gives a defense to people in certain relationships to use a reasonable amount of
force in that relationship (parents/children; teachers/students)
13) Necessity and Duress (Choice of Evils Defenses)
(a) A person must make a choice between a crime or some other evil, and in some
circumstances, public policy says the crime is okay
(i) Fact-sensitive; always a jury question
(ii) Defenses do not apply to homicide (however, killing one person to preserve ten?)
(b) Necessity: source of the compulsion is not human (typically nature)
(i) Type: Justification
(i) I did the right thing by choosing the lesser of two evils
(ii) Must be a clear and imminent danger
(i) Leno case: Defendant exchanged clean needles to prevent the spread of AIDS;
danger not imminent, so no defense
(iii) Standard: reasonable person
(iv) MPC
(i) Standard: Conduct the actor believes to be necessary (subjective)
1. However, many jurisdictions apply the reasonable person standard to limit
the defense
(ii) No immediacy requirement
(iii) Can be used in homicide cases (unlike common law)
(v) Prison escapes: prisoner is required to report to authorities once safety is reached
(otherwise no defense)
(vi) Limitations:
(i) Defendant must cause a lesser evil than the harm avoided
(ii) Defense is limited (or unavailable) if defendant creates the perilous situation
(even if done recklessly or negligently)
(c) Duress: Conduct induced by human coercion
(i) Type: Excuse
(i) I did something wrong, but Im not responsible because I was forced to do it
(ii) Common law elements:
(i) Immediate threat of (Immediacy)
(ii) Death or Serious bodily injury (Severity)
(iii) With a well-grounded fear (Objectively justified)
(iv) And no reasonable opportunity to escape (No escape)
(v) Sometimes, submission to proper authorities when safety is attained (Prompt
surrender)
(iii) MPC: Defense is allowed when there is
(i) Use of, or threat to use, unlawful force
(ii) Against his person, or another
(iii) That a person of reasonable firmness in his situation (objective standard)
(iv) Would have made the same choice

(v) Can be used in homicide (unlike common law)

(iv) Limitation:

(i) Defense is limited (or unavailable) if defendant creates the perilous situation
(even if done recklessly or negligently)
14) Entrapment
(a) Type: Excuse
(b) Rationale: prevents the government from using vast superior resources to encourage
innocent people to be criminals
(i) But must find a balance so that the government (police) can do their jobs
(c) 2 Approaches:
(i) Subjective (prevailing): Focuses on the defendants predisposition
(i) Govt. may afford the opportunity for a person to commit a crime as long as
the criminal is predisposed to commit it
(ii) When defendant raises the entrapment defense, this opens the door for the
government to introduce evidence of prior criminal activity, character
evidence etc. do determine criminal predisposition
(ii) Objective (MPC): Focuses on the governments conduct
(i) Defense arises when the government creates a substantial risk of persuading a
generally law-abiding person to commit a crime (doesnt matter if the
particular defendant is law-abiding or not)
1. Some jurisdictions consider whether the governments behavior is
outrageous (thus violating defendants Due Process rights)
2. Some jurisdictions consider whether the government has supplied an
indispensable element to the crime
15) Insanity
(a) Type: Excuse
(b) Criminal insanity: mental condition at the time of the crime (NOT during trial,
sentencing, etc)
(c) If defense is successful, the defendant is sent to a mental hospital for a period of time
(i) May be kept indefinitely, or released
(d) Insanity can be a defense to any crime
(e) Notice: must be advance notice of an insanity defense
(i) Once notice is given, the defendant is submitted to a court-ordered examination by
a mental health professional (often the only evaluation in the case; private
examinations are expensive)
(ii) If defendant is deemed sane, the insanity defense will not be raised at trial
(f) Verdicts:
(i) Not Guilty by Reason of Insanity (NGRI) = Not Guilty
(i) Triggers an automatic hospitalization of 30-90 days
(ii) Following the evaluation period, normal civil commitment rules apply
(ii) Guilty But Mentally Ill (GBMI): some jurisdictions allow a this third verdict
(i) Defendant gets the proscribed sentence, but serves all or part of it in a mental
hospital
(ii) If defendant leaves the hospital, sent to prison to serve the rest of the sentence
(g) Tests:
(i) MNaghten Test (Traditional)
(i) Requires a disease of the mind
(ii) Either defendant did not know the nature and quality of the act he was doing

1. E.g., strangling a person when he thinks hes squeezing a grapefruit

(iii) Or defendant did not know the act was wrong; moral issue
1. E.g., unaware that killing is wrong
(iv) Cognitive test: measuring what the defendant knows
(v) Irresistible Impulse (additional option): If defendant knows what hes doing
is wrong, but cannot stop himself from doing it
(ii) Durham Test (found MNaghten test too limited)
(i) Product test: a defendant is criminally insane if the crime is a product of a
mental disease or defect
1. Problems:
a. Makes the insanity defense too widely available
b. Issues of causation
c. Turning the decision over to mental health authorities
(iii) MPC Test (Prevailing)
(i) As a result of mental disease or defect (Durham test)
(ii) The defendant lacks substantial capacity to:
1. Either appreciate (rather than know) the criminality (wrongfulness) of his
conduct
a. Cognitive test: includes an element of understanding the moral or legal
import of the behavior (combines the either/or of MNaghten)
2. Or conform to the law (Irresistible impulse option)
16) Mistake of Law
(a) Type: Excuse
(b) Ignorance of the law is no defense
(i) Exception: when a person relies on an official statement of law to their detriment
17) Incompetency:
(a) NOT a guilt issue (moral blameworthiness); it is a Due Process issue
(b) Defendant must be mentally competent to stand trial (applies to the trial, sentencing,
and executionif applicablestages)
(i) Must be generally capable of understanding the proceedings, and generally capable
of assisting in ones defense
(c) If proven incompetent (by a preponderance of evidence), trial is suspended, and
defendant is committed