Actus Reus + Mens Rea + (Causation ONLY RESULT CRIMES) +

(Social Harm) + Attendant Circumstances = Crime

(Unless valid defense)

ACTUS REUS: a necessary element for EVERY crime

must be an act, and must be voluntary (both Common Law and MPC)
*we do not punish people for their thoughts or their statusthere must be an act (or
failure to act)

Voluntariness--Model Penal Code 2.01 (1-2) p. 178

(1) A person is not guilty of an offense unless his liability is based on conduct that includes a
voluntary act or the
omission to perform an act of which he is physically capable.

(2) The following are NOT voluntary acts within the meaning of this Section:
(a) a reflex or convulsion;
(b) a bodily movement during unconsciousness or sleep;
(c) conduct during hypnosis or resulting from hypnotic suggestion;
(d) a bodily movement that otherwise is not a product of the effort or determination of the
actor, either
conscious or habitual (IE coerced action/duress)
** To qualify for criminal liability, conduct must be voluntary (conscious choice to act/will)

voluntary act definition: a movement of the human body that is, in some minimal sense,
willed or directed or
controlled by the mind of the actor
CAN ALSO BE THE RESULT OF HABIT/INADVERTENCE AS LONG AS THE ACTOR COULD HAVE
ACTED
DIFFERENTLY

to qualify as voluntary:
-actor must have conscious control over the act
-could the actor have acted differently?
-act must occur in the sequence of events that lead to the harm

purpose of voluntary act requirement: blame and punishment for free willif you choose to
put bad thoughts
into action, you deserve to be punishedwe do not punish people for their thoughts alone
criminal law is built on the presumption of free will, that people are generally responsible
for what they do

involuntary act definition: those over which individual has no conscious control

QUESTION: was there interference with the conscious minds direction of the body?
if yes: not voluntary act
if no: voluntary act

1
Martin v State 1944, p. 177 (being forced in public by police while drunk is not a voluntary
act, no culpability)
any person who, while intoxicated or drunk, appears in any public place where one or
more persons
are presentand manifests a drunken condition by boisterous or indecent conduct,
or loud and
profane discourse, shall on conviction be fined
VOLUNTARY NOT IN THE STATUTE, BUT COURT READING IN THE COMMON LAW PRINCIPLE
OF
VOLUNTARY ACT REQUIREMENT INTO IT
D FORCED INTO PUBLIC BY POLICE, ONLY VOLUNTARILY GOT DRUNK AT HOME, WHICH IS
NOT A CRIME
VALID DEFENSE THAT HE WAS FORCED BY POLICE, NOT A VOLUNTARY ACT

People v Decina 1956, p. 181 (driving with knowledge of epilepsy meets voluntary act
requirement)
*time framing issue: not guilty of offense unless actus reus is voluntary, accompanied by
mens rea,
AND actus reus is actual and proximate cause of the social harm
KNEW HE WAS SUBJECT TO SUDDEN, UNCONTROLLABLE SEIZURESACTUS REUS
WAS DRIVING
A VEHICLE SO AS TO CAUSE THE DEATH OF A HUMAN BEING (BC KNEW HIS
CONDITION)
MENS REA WAS NEGLIGENCE
*not necessary that all aspects of conduct be voluntary, only that conduct included
a voluntary act
(turning on ignition, driving car negligently)

Robinson v California 1962, p. 170 (act v status being an addict, UNCONSTITUTIONAL TO

PUNISH STATUS)
A STATUS OR CONDITION DOES NOT CONSTITUTE AN ACT IN CRIMINAL LAW
State cannot constitutionally punish a person for their thoughts alone, or for the mere
propensity to commit crimesviolates 8th amendment, cruel and unusual
punishment
(boundary between act and status are not always clear)
Addicted = status, NOT an act; a propensity is not an act, violates 8th and 14h
amendments of cruel
and unusual punishment
CALIFORNIA STATUTE IS UNCONSTITUTIONAL = allows a person to be punished at any time
simply for
a bare desire to commit a criminal act

Powell v Texas 1968, p. 172 (alcoholism is not a valid defense to public intoxication, THERE
WAS AN ACT here)
whoever shall get drunk or found in a state of intoxication in any public place, or at any
private house
except his own shall be fined not exceeding $100
NOT PROSECUTED FOR STATUS/CONDITION AS ALCOHOLIC, BUT FOR ACT OF
GETTING
INTOXICATED AND GOING TO A PUBLIC PLACE
FIRST DRINK OF THE DAY WAS VOLUNTARYSATISFIED VOLUNTARY ACT
REQUIREMENT

2
 Does not follow Robinson v CA, there is no cruel and unusual punishment here:
-here, he is not convicted on being an alcoholic, but for being drunk in public=act
-here, not punishing a mere status, nor regulating behavior in ones private home
-far cry from being an addict, chronic alcoholic, mentally ill, etc
-here there is an actus reus, in Robinson there was not

OmissionFailure to Act
omission substitutes for a voluntary act when D has a legal duty to act

Model Penal Code 2.01 (3), p. 187

not every moral obligation to act creates a legal duty to act: usually no legal duty to act to
prevent harm to another, even if one can do it without risk and even if the victim will diewe are
not our brothers keepers in criminal law

general rule: omission will not support liability UNLESS the law provides that the individual has a
special duty to act
purpose: criminal conduct requires guilty state of mind, and difficult to ascertain it in one who
fails to act
criminal law should not be used to force people to act to benefit otherslimited to
punishing moral
wrongdoings, not non-doings

(3) Liability for the commission of an offense may not be based on an omission unaccompanied
by action unless:
(a) the omission is expressly made sufficient by the law defining the offense; or
(b) a duty to perform the omitted act is otherwise imposed by law
**omission + duty can fulfill conduct requirement when language does not mention omission
(failure to act)
**status relationships, contracts, statues, give rise to duties

5 MAJOR CATEGORIES OF LEGAL DUTY

-certain status relationships (common law duty to protect others in special
relationship)
-parent-child
-spouse-spouse
-employer-employee
-owner-customer
-inkeeper-guest
-common carrier-passenger
-when statute imposes duty of care (provide food and shelter to minor children)
-when contract imposes duty of care (ie implied in law k re babysitter to protect
ward)
-when voluntarily undertaking care or rescue (thus excluding others from
helping)
where one has voluntarily assumed care of another so as to seclude helpless
person from
the aid of others
-when actor himself created peril (one who creates risk of harm must act to
prevent it)

3
Minimum Requirements of CulpabilityModel Penal Cod 2.02 (1), p. 235
(1) Except as provided in Section 2.05, a person is not guilty of an offense unless he acted
purposely, knowingly, recklessly, or negligently, as the law may require, with respect to each
material element of the offense

Jones v United States 1962, p. 184 (if legal duty imposed + not performed, omission=failure
to act=voluntary act)
WAS D UNDER A LEGAL DUTY TO ACT TO CARE FOR THE CHILD? A QUESTION FOR THE
JURY TO DECIDE
if he was, failure to act (omission) = act
IF LEGAL DUTY OF CARE EXISTED, THEN OMISSION IS AN ACT

4
MENS REA
vicious will, evil mind, moral blameworthiness, culpable state of mind

rationale: retribution: if you commit actus reus in morally innocent manner, do not
deserve punishment
belief in freedom of will and ability to choose between good and evil

COMMON LAW

Intentionally: must intend a certain result

homicide: intend death of another
arson: intend to destroy a dwelling

5
 INTENTIONAL IF:
(1) it was Ds conscious object to bring about a certain result
OR
(2) if D knew that the harm was practically certain to occur as a result of
conduct

*intent pertains to the result itself, not to the act that causes the result

general intent crime: no intent/purpose to do some future act beyond the

conduct that
constitutes the actus reus of the crime

specific intent crime: intent/purpose to do some future act or achieve some

further
consequence beyond the conduct or result that constitutes the actus reus of
the crime

Knowingly: some offenses require knowledge of a certain attendant circumstance

KNOWINGLY IF:
(1) aware of the fact
(2) correctly believes that the fact exists
OR
(3) suspects that it exists and purposely avoids learning whether he is correct
(willful blindness)

Recklessly: if D consciously disregards a substantial and unjustifiable risk of harm

*must be subjectively aware he is taking a substantial and unjustifiable
risk

Negligently: if D should be aware that conduct creates a substantial and unjustifiable risk
of harm

*by taking this risk, D is not acting like a reasonable person

MPC defines 4 mental states (p. 214)MPC Sect. 2.02 (2)(a-d)

PURPOSELY KNOWINGLY RECKLESSLY NEGLIGENTLY

(subjective) (subjective) (subjective) (objective)
Conscious Aware of nature of Substantial risk Substantial risk
object/wants to conduct or aware

6
engage in such that such attendant
conduct or cause circumstances exist
such result
Aware, or Practically certain Unjustifiable risk Unjustifiable risk
believes/hopes conduct will cause
attendant result
circumstances exist
(if they exist)

Aware of attendant Actor has awareness Actor should have

circumstances (if of risks above been aware of risks
they exist), or aware (known to actor) above, but was not
of their high AND DISREGARDS (failure to perceive)
probability of THE RISKS
existence

Disregard of risk is a Failure to perceive is

gross deviation from a gross deviation
standard of conduct from standard of
conduct
That a law abiding That a reasonable
person would person would
observe in actors observe in actors
situation situations

**gradations/degrees of blameworthiness: purposely (most punishment) to negligently (lesser

punishment)

MPC Sect 2.02(5): the greater mental state includes the lesser mental state
if purposely, then also knowingly, recklessly, and negligently
if recklessly, then also negligently

**MPC also recognizes a person can simultaneously have more than one mental state, and that
the definition of a crime often entails use of multiple mental states

2 types of evidence, both drawn on to prove or disprove mental states:

(1) directprove point without inferences
-can be weak or strong depending on witness (sincerity, accurate perception,
recounting)
(2) circumstantialone or more inferences must be made to prove point
-can be weak or strong depending on the strength of the inferences it supports

Morisette v United States 1952, p. 231 (no mens rea=no intent=no knowledge=no
culpability (conversion govt))
whoever embezzles, steals, purloins, or knowingly converts to his use or the use of
another, or without
authority sells, conveys, disposes of any record, voucher, money, or this of value of the US
shall be fined
BELIEVED PROPERTY TO BE ABANDONED, THEREFORE NO INTENT TO STEAL
SPECIFIC INTENT TO STEAL IS AN ELEMENT OF LARCENY
NOT A STRICT LIABILITY OFFENSE, CONGRESS MUST HAVE INTENDED MENS REA

7
 statute interpreted to require the mens rea of common law larcenymust prove intent
to steal

Strict/Absolute Liability: crimes that do not require culpable mens rea, no evil-meaning
mind

*D may be convicted of offense if he committed prohibited conduct without regard to

mental state
*commission of actus reus, without proof of mens rea, is sufficient to convict D

IES
-malum prohibitum offenses like speeding
-statutory rape

MPC Sect. 2.05 (requirements of culpability do not extend to these SL offences) p. 227
(ie pubic welfare)
MPC strongly disfavors SL by only allowing it for offenses that do not carry
any prison
sentence whatsoever

Attributes of SL crimes
-penalties for the offense are minor (fine, infraction, NO PRISON)
-prohibited activity provides inherent notice of wrongdoing to the actor
-requiring proof of mens rea would be costly in terms of litigation and deterrence
-usually involve public welfare cases

FACTORS to determine if SL (La Fave, p. 239, applied in People v Taylor)

(1) Legislative history of statute and context
(2) Guidance from context within statute (if mens rea in other parts of statute but
not in this, SL)
(3) severity of punishment
greater the punishment = more likely fault required
lighter the punishment = more likely SL
(4) Seriousness of public harm statutes seeks to prevent (high=SL)
(5) Defendants opportunity to ascertain the true facts (if not easy, not SL)
(6) Difficulty of proving mental state (if difficult=SL for effective enforcement)
(7) Number of prosecutions expected under statute (if many=SL, if few=fault)

*the extent to which conduct prohibited contains special risks to the public or inherent
notice of wrongdoing
often carries significant weight with courts when interpreting whether a crime is SL
or fault-based

Methods Courts use to Interpret Criminal Statutes

-Statutory Language
-Legislative History
-Criminal Law Traditions in Common Law
-Basic Criminal Justice Policy

8
MPC for Statutory Silence or Ambiguity regarding mens rea p. 236

Silence: MPC 2.02(3) if statute silent and not SL crime, prosecution must prove
recklessness at least

Ambiguity: MPC 2.02(4) if mens rea has been articulated at all in the statute, it applies to
all material elements of the crime in the statute

-principle exceptionSLpublic welfare cases (see p. 240)

*MPC strongly disfavors SL, narrows and constrains it

People v Taylor 2001, p. 239 (for possession of cane sword, D must have element of mens rea
to be culpable)
any person who does any of the following is punishable by imprisonment not exceeding
one year
-possess any . . . cane sword
*D did not know the cane contained a swordNEGATED MENS REA
NOT A STRICT LIABILITY OFFENSEknowledge mens rea
COURT APPLIES LA FAVES 7 FACTORS OF STRICT LIABILITY TO ANALYZE STATUTE
Supreme Court imputed knowledge mens rea to dirks and daggers, court here
reasoned
same mens rea for cane sword

Garnett v State 1993, supp (STATUTORY RAPE is SL offense, no defense of mistake of fact, no
mens rea element)
MD Rape Statute:
(a) any person is guilty of rape in 2nd degree if he engages in vaginal intercourse
with another
person:
(2) who is mentally defective, mentally incapacitated, or physically helpless,
and the person
performing the act knows or should reasonably know
(RECKLESS/NEGLIGENT) the
other person is mentally defective
(3) who is under 14 years of age and the person performing the act is at least
4 years older
than the victim (SL)
(b) any person violating the provisions of this section is guilty of a felony and upon
conviction is
subject to imprisonment for a period of not more than 20 years
PLAIN LANGUAGE OF STATUTE POINTS TO STRICT LIABILITY CRIME(a)(2) has mens rea,
but (a)(3)
does not, and D is charged with (a)(3)
LEGISLATURE INTENDED NO MENS REA IN (a)(3)
Mistake of age is not a valid defense

TRANSFERRING INTENT

9
potentially applies when the physical person hurt or killed is different from the one D meant to
hurt/kill
LEGAL FICTION TO RESOLVE BAD AIM CASES
ONLY APPLIES WHEN D ACCOMPLISHES THE SAME KIND OF HARM AS ORIGINALLY
CONTEMPLATED
*only the identity of the victim is different
USUALLY ONLY APPLIES TO INTENTIONAL WRONGS

*courts split on whether

-it should apply to a single, or all unintended victims
-it creates attempt liability for bystander victims People v Scott

*criticism of doctrine:
-it is unnecessary, bc identity of victim is not part of the definition of the offense, so no
need to transfer
victimsactus reus and mens rea requirements still met
*could be avoided if courts rejected TI doctrine and simply determined whether D had
mens rea to cause
the particular harm required in the charged offense

People v Scott supp (inadvertently killed bystander, meant to kill another, intent transfers,
guilty of murder)
THIS COURT SAYS TRANSFERRED INTENT CREATES ATTEMPT LIABILITY RE BYSTANDERS

CAUSATION: (whether Ds conduct sufficiently and directly caused result to warrant

imposing liability)

ONLY AN ELEMENT IN RESULT CRIMES (NOT CONDUCT CRIMES)

*typically only arise in homicide and attempted homicide prosecutions

MUST BE A LINK BETWEEN DS VOLUNTARY ACT AND THE HARM CAUSED

ultimate question: was Ds conduct a sufficiently direct cause of the result to warrant
liability?

The 2-STEP TEST for causation, prosecution must prove both

(1) BUT FOR CAUSE (find out what happened):

without Ds act, the injury/death would not have occurred

IF 2+ CAUSES (multiple act causes): when each act would have produced the
result, use modified
TEST: result would not have occurred when it did/as it did but for Ds act
[or if 2nd cause was a substantial factor in bringing about result, each act is
sufficient]
ie if one independent act accelerated the death caused by the other
act
IF ACTING IN CONCERT WITH EACH OTHERCONSPIRACY LIABILITY

10
(2) PROXIMATE CAUSE (find out who is responsible):
are Ds actions so remote or attenuated that it would be unfair to hold D
responsible?
[the result must be the natural and foreseeable consequence of Ds act]

If yesno causation If nocausation present

MUST BE a sufficiently direct cause

FORESEEABILITY IS KEY: if foreseeable to reasonable person in Ds situation, yes
proximate cause
**the higher the probability that result is foreseeable, greater likelihood of
causation

-Result MUST occur within natural and continuous sequence

-D is responsible for the natural and foreseeable consequences that follow from
the act

Intervening Causes: relieve D of liability, break in causal chain:

an act or event, that comes after Ds act but before social harm (ie death),
AND contributes
causally to the social harm

(1) Dependent/Responsive Cause (occurs in response to Ds voluntary act, or

dependent
upon Ds act)
TEST: was it bizarre or unusual? if yesno proximate cause if
noproximate cause

(2) Independent/Coincidental Cause (would have occurred anyway, no

control over it)
TEST: was it foreseeable to D? if yesproximate cause if nono
proximate cause

**ies of intervening causes: acts of nature, acts of the victim, grossly erroneous
medical
maltreatment
(medical negligence is not enough), or acts of 3 rd parties

IF 2+ ACTORS: other actors break causal chain only if mental state and
blameworthiness play major
roles in additional actors acts
**first actor will be found NOT to have been proximate cause of result

Doctrines that MAY AFFECT CAUSATION ANALYSIS

Eggshell Victim Rule
you take your victim as you find him, liable

De Minimus Contribution
if Ds contribution to social harm is minimal/minor, relieves him of criminal liability

Intended Consequences Doctrine

11
 if you intended the consequences, you are liable EVEN IF THERE IS AN INTERVENING
CAUSE
if result happens and you intended it, even if it happened in an unforeseeable
manner, liable
(IE: D wants to poison V, leaves poison on table and X gives V poison instead not
knowing what it
was D liable for poisoning bc he intended to poison V)

Free, Deliberate and Informed Human Intervention

if intervening agent intervenes voluntarily, knowingly and intelligently, D more apt
to be relieved
of liability than if intervention was due to natural force or a person not fully in
control
(IE if D assaults V, leaves V in road, later X robs V while unconscious, D is not liable
for robbery)

Commonwealth v Root (see below, blue case)

Apparent Safety Doctrine

when Ds active force has come to rest in a position of apparent safety, some courts
will stop
following it
if dangerous situation created by D is over, victim reached apparent safety, D not
responsible for
ensuing results
(IE V is threatened by spouse, leaves house and goes to dads house, late at night
so V sleeps outside
and dies of freezingspouse not responsible for death bc V reached safety
and chose to sleep outsideV would also lose under Free, Deliberate,
Informed Human Intervention)

Omissions
will rarely, if ever, supersede an earlier voluntary wrongful act

Intervening Causes (Dependent v Independent)see above

STEPS IN CAUSATION ANALYSIS (Common Law)

(1) was it a result crime? if yes go to 2

(2) was Ds act the But For cause? go thru test above, if yes go to 3
(3) was Ds act the Proximate cause? go thru test above, if yes, go to 4
(4) were there Intervening causes? Dependent or Independent? go thru test
above

12
State v Jenkins 1981, p. 482 (stabbed victim, victim died from reaction to treatment, Ds act
was proximate cause)
ILLUSTRATES EGGSHELL VICTIM RULE
D stabbed victim (proximate cause)
V rushed to hospital, had common procedure and died from rare allergy (but for
cause)
DEPENDENT INTERVENING CAUSE, NOT BIZARRE/UNUSUAL, THEREFORE STABBING WAS
PROXIMATE CAUSE OF DEATH, D LIABLE

People v Flenon 1972, p. 483 (victim died from blood transfusion, med negligence
foreseeable, proximate cause)
**medical maltreatment must be grossly erroneous to be an intervening causenot mere
negligence
GENERAL MEDICAL NEGLIGENCE IS FORESEEABLE, GROSS NEGLIGENCE IS NOT
DEPENDENT INTERVENING CAUSE, NOT BIZARRE/UNUSUAL BC INHERENT RISK IN BLOOD
TRANSFUSIONS, THEREFORE FORESEEABLE
Ds act was proximate cause of death

State v Echols 1995, p. 485 (V fell calling for help, D caused her injury, proximate cause
eggshell victim rule)
DEPENDENT INTERVENING CAUSE, NOT BIZARRE/UNUSUAL
falling is a natural reaction to the act of being robbed
Ds robbery was proximate cause of harm

MPC Causation p. 494this is abbreviated, see casebook for full statute

(1) Conduct is the cause of a result when:
(a) it is an antecedent but for which result would not have occurred, AND
(b) relationship between conduct and result satisfies any addl causal requirements of Code or
law defining offense
(2) if purposely or knowingly is an element, the actual result must be within the purpose or
contemplation of actor
(3) if recklessly or negligently is an element, result must be within risk of which actor is aware or
should be aware
**exceptions to each are found on p. 494

People v Kibbe 1974, p. 486 (death should have been foreseen even though not intended by
D, proximate cause)
DEATH IS A FORESEEABLE RESULT OF DS ACTIONS
VICTIM COULD NOT EXTRICATE HIMSELF OF ATTENDANT CIRCUMSTANCES
THEREFORE D LIABLE FOR 2ND DEG. MURDER

Possibilities of Relief of Causation:

(1) victim was a DEPENDENT INTERVENING CAUSE re his treatment of the attendant
circumstances after ditching his car on the side of the road)
(2) driver was INDEPENDENT INTERVENING CAUSE re he was speeding

COURT HAD BROAD INTERPRETATION OF CAUSATION: in the chain of events, the

RISK of
death was foreseeable
(narrow = specific RESULT of death must be foreseeable)

13
Commonwealth v Root 1961, p. 489 (victim drove recklessly, D not direct cause of death, no
proximate cause)
D and decedent were in drag race, decedent recklessly tried to pass D, died in head on
collision with truck
DECEDENTS RECKLESS DRIVING BROKE CHAIN OF CAUSATION
D NOT CULPABLE FOR DEATHNOT PROXIMATE CAUSE
decedents reckless driving was of his own accord
court interprets proximate cause STRICTLY, death must be a direct proximate cause of Ds
driving
while D was driving recklessly, decedent brought about his own death by driving on wrong
side of road

[SOCIAL HARM]
Destruction of, or injury to, or endangerment of, a socially valuable interest

Result Crimes: social harm is the specific result (ie homicide = death of another human
being)
Conduct Crimes: punishes the conduct, not the harm that results (ie drunk driving)

ATTENDANT CIRCUMSTANCES
Facts that exist at the time of the actors conduct or at the time of a particular result
required to be
proven in the definition of the offense

IEs:
homicide: victim is a human being
drunk driving: that the driver was under the influence of alcohol
rape: the victim did not consent, [victim was not actors wife]
larceny: the property did not belong to the actor

14
HOMICIDE (the killing of another human being)

Doctrinal Structure
Actus Reus: the taking of another persons life
Mens Rea: depends on the type of homicide

Murder: unlawful killing with malice aforethought malice: (1) express=intent to

kill
-1st degree (2) implied=extreme recklessness
-2nd degree depraved/abandoned heart

-intentional: express malice

-unintentional: implied malice

**for intentional murder, if you have malice, automatic 2 nd degree murder

**if you have premeditation and deliberation, bumped up to 1st degree murder

Manslaughter: unlawful killing without malice aforethought

-voluntary
-involuntary

DEFENSES

Provocation: reduces 1st and 2nd degree intentional to voluntary manslaughter (partial
defense)

Self Defense: not guilty of murder/manslaughter of any kind (affirmative full defense)

Imperfect Self Defense: reduces 1st and 2nd degree intentional/unintentional to

voluntary or involuntary
manslaughter (partial defense)

Diminished Capacity: reduces murder to manslaughter (partial defense)

15
Intoxication: partial defense

Insanity: partial defense

Causation Issues

Actus Reus/Mens Rea Issues

[MOF/MOL]

(NO Duress/Coercion, NO Necessity)

16
 CA Murder Statute PC 189 (p. 325)
All murder which is perpetrated by means [enum means] of a destructive device or
explosive, a weapon of mass destruction, knowing use of ammunition
designed primarily to penetrate
metal or armor, poison, lying in wait, torture [end of enum means], or by
any other willful,
deliberate and premeditated killing, or which is committed in the perpetration
of, or attempt to perpetrate, [enum felonies] arson, rape, carjacking,
robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable
under[sodomy with a minor/against anothers will, in prison, any lewd act on
a child, oral copulation with a minor.against anothers will/in prison, any
anal/genital penetration with a foreign object for a sexual purpose against a
minor against his will], or any murder which is perpetrated by means of
discharging a firearm from a motor vehicle [end of enum felonies]
intentionally at another person outside of the vehicle with the intent to inflict
death, is murder OF THE FIRST DEGREE. All other kinds of murder are of the
second degree.

To prove the killing was deliberate and premeditated, it shall not be necessary to
prove the
defendant maturely and meaningfully reflected upon the gravity of his or her
act.

MPC DIFFERS FROM COMMON LAW

MPC as 3 categories of murder (common law has 2: murder, manslaughter)
-murder: purposely, knowingly, recklessly (extreme indifference)
-manslaughter: recklessly (but NOT extreme indifference)
-negligent homicide:

MPC SIMILAR TO COMMON LAW

BOTH DO NOT REQUIRE PREMEDITATION OR DELIBERATION (that is only statutory)

MPC Homicide/Murder (p. 325)

17
 A criminal homicide constitutes murder when D kills:
(1) purposely
(2) knowingly OR
(3) recklessly under conditions manifesting an extreme indifference to value
of human life

*no degrees: ALL murders are 1st degree felonies under MPC
*does not include term malice: that is a common law term
*does not define murder as including intent to cause grave bodily harm

MPC Manslaughter
Criminal homicide constitutes manslaughter when
(a) it is committed recklessly, OR
(b) a homicide which would otherwise be murder is committed under the
influence of
extreme mental or emotional disturbance for which there is no
reasonable
explanation or excuse. The reasonableness of such explanation or
excuse shall be
determined from the viewpoint of a person in the actors situation
under the
circumstances as he believes them to be (SUBJECTIVE)

*extreme emotional disturbance is a partial excuse, mitigates

murder to
manslaughter (see below)

MPC Negligent Homicide (involuntary manslaughter)

criminal homicide constitutes negligent homicide when it is committed negligently

18
INTENTIONAL KILLINGEXPRESS MALICE
intent to kill = express malice aforethought

1st Degree: Ds act was willful (intent to kill), deliberate (evaluated choice) and premeditated
(took time to think
beforehand)premeditation and deliberation (not all states have this requirement in their
statute)

HOW TO INFER PREMEDITATION: 2 APPROACHES

*must always be MORE THAN intent, the question is how much more?

(1) Strict Approach (Bingham, Morrin)

premeditation and deliberation are separate and distinct, and
distinct from intent
deliberation is premeditation+
PROOF OF REFLECTION
planning/timing: activity of weighting choice
motive/relationship: reason for killing
manner of killing/coolness of D: how killing occurred

preconceived plan
19
 (2) Broad Approach/Jury Discretion Approach - CALIFORNIA (Carroll, Young,
Carmichael)
premeditation and deliberation the same, little difference between
them and intent

2nd Degree: NO premeditation or deliberation, AND NO enumerated means or felonies, BUT YES
intent to kill

State v Bingham
DELIBERATION = VALUE ADDED TO PREMEDITATION, DISTINCT
CANNOT INFER PREMEDITATION AND DELIBERATION FROM INTENT
3-5 mins of strangulation (manner) does not allow us to infer premed/delib
it was an intentional killing, but no direct or circumstantial evidence of planning or motive
CANNOT INFER P + D FROM ONLY MANNER AND INTENT WITHOUT PLANNING OR MOTIVE
2ND DEGREE MURDER

People v Morrin (Michigan)

PREMEDIATED = to think about beforehand for a length of time, HOWEVER SHORT
DELIBERATE = to measure and evaluate the major facets of a choice or problem

*no hot blood, MUST have cool mind, no undue excitement

*time between initial thought and action should be enough for a reasonable person to give
it a 2nd look

Commonwealth v Carroll
NO DISTINCTION BETWEEN PREMEDITATION AND DELIBERATION
= INTENTIONAL KILLING
1ST DEGREE MURDER (P + D inferred)
planning: thought about gun on headboard, took steps (but could also be heat of
passion)
motive: he confessed, was resentful of wife
manner: lethal weapon, shot head twice (vital organ)
NO AMOUNT OF TIME TOO SHORT TO FORM PREMEDITATED INTENT TO KILL

Young v State
NO DISTINCTION BETWEEN PREMEDITATION AND DELIBERATION
= INTENDS TO COMMIT THE ACT AND INTENDS DEATH TO RESULT

Carmichael v State
PREMEDITATION DISTINCT FROM DELIBERATION
PREMEDITATION = INTENT TO CAUSE DEATH, formed before the act
DELIBERATION = WEIGHING OF CONSEQUENCES OF ACT,

does not follow Bingham: HERE, P + D CAN BE INFERRED FROM STRANGULATION

(MANNER)

*no time limit, decision can be formed in an instant

*weapon, manner, nature of killing CAN be used to infer premeditiation

People v Anderson
planning: weak evidence
motive: no motive
20
 manner: brutal killing

MANNER (BRUTALITY OF KILLING) ALONE DOES NOT INFER P + D

VOLUNTARY MANSLAUGHTERPROVOCATION mitigates it from 1st and 2nd

degree murder

Provocation/Heat of Passion
D acted in a moment of such strong emotion in response to a provoking incident
that if affected his
ability to think clearly about his actions and their consequences

intentional killing where actor take a life in a sudden heat of passion as a result of
adequate
provocation

PROVOCATION MITIGATES EXPRESS MALICE, AND REDUCES 1ST AND 2ND

DEGREE
INTENTIONAL TO VOLUNTARY MANSLAUGHER
(MPC extreme emotional disturbance functions the same way as
provocation)

rationale: culpability of actor is reduces bc he was adequately

provoked

COMMON LAW PROVOCATION TEST:

Defendant acted with
(1) an intentional murder mens rea, while
(2) actually AND
(3) reasonably impassioned by the provoking incident
AKA would a person in Ds shoes have been SORELY TEMPTED TO
KILL?
WOULD A REASONABLEPERSON HAVE BEEN SORELY TEMPTED
TO KILL?

*it is Ds passion that must be reasonable, NOT the killing itself

*NEED TO KNOW WHAT APPROACH THE JURISDICTION USES FROM BELOW

3 Approaches to Adequate Provocation:

(1) Categorical Approach to Common Law

MERE WORDS NOT ENOUGH

NO PROVOCATION IF D HAD A COOLING OFF PERIOD BEFORE KILLING

21
 provoking incident can only be:
-extreme assault or battery against D
-injury or serious abuse of a close relative of D
-an illegal arrest of D
-mutual combat
-sudden discovery of spouses adultery

*these are the only legally adequate provoking incidents

role of judge and jury:

first judge determines if provocation is possible as a matter of law
then jury will make its own assessment of evidence whether to find
provocation

(2) Discretionary Approach to Common Lawmodern jurisdictionsreasonable

person test

WORDS MAY BE SUFFICIENT (ALTHOUGH USUALLY NOT)

USUALLY NO COOLING OFF PERIOD REQUIRED (although timing can influence
decisions
regarding reasonableness of passion)
NO LIST OF LEGALLY ADEQUATE PROVOKING INCIDENTS
*allows juries to find that any strong emotion may constitute
reasonable prov.
MORE WEIGHT ON REASONABLE PERSON AS STANDARD FOR ASSESSING DS
PASSION

*in some jurisdictions: D must have killed the person who provoked him, not
a 3rd party
(misdirected retaliation) DEFENSE CANNOT BE ASSERTED IF D KILLS
3RD PARTY

(3) MPC Approachextreme emotional disturbance

MPC Provocation Statute: (p. 354)

(1) A criminal homicide constitutes manslaughter when:
(b) a homicide which would otherwise be murder is committed
under the
influence of extreme emotional disturbance for which
there is reasonable explanation or excuse. The reasonableness
of such explanation or excuse shall be determined from the
viewpoint of a person in the actors situation under the
circumstances as he believes them to be
(2) Manslaughter is a felony in the 2nd degree

MPC TEST: extreme emotional disturbance test

(1) under the influence of extreme mental or emotional disturbance
(2) for which there is a reasonable explanation or excuse
(3) from the viewpoint of a person in the actors situation
(4) under the circumstances as D believed them to be

MORE SUBJECTIVE THAN COMMON LAW TEST, LESS STRINGENT (see below)

22
 [*under MPC, manslaughter is a 2nd degree felony]

REASONABLE RE EXPLANATION FOR THE EMED, NOT FOR THE HOMICIDE

DOES NOT REQUIRE DISTURBANCE TO BE TRIGGERED BY PROVOCATION as long as
jury
concludes there is a reasonable explanation or excuse for the disturbance
DOES NOT REQUIRE DISTURBANCE TO BE FROM PARTICULAR CATEGORIES
DOES NOT REQUIRE COOLING OFF PERIOD OR TIME FRAME
MORE SUBJECTIVE STANDARD, TAILORING REASONABLENESS TO ACTORS
SITUATION
MUCH EASIER TO ASSERT PROVOCATION DEFENSE UNDER MPC THAN COMMON LAW

Reasonable Man
-of ordinary disposition
-not exceptionally belligerent
-sober at the time of provocation
-of normal mental capacity

In Ds Shoes
-not clear how far subjectivity of reasonable person standard the MPC
goes
-relevant to
-measuring gravity of provocation to a reasonable person
-assessing the level of self-control to be expected of a
reasonable person

People v Barry (cumulative rage could be adequate provocation, right to give provocation
instruction to jury)
D still could have been in heat of passion after 20 hours of waiting for victimquestion for
the jury re
adequate cooling off period
CUMULATIVE RAGE + RECIPROCAL ESCALATION
Wifes taunts, teases, provoked an uncontrollable rage
REASONABLE PROVOCATION
-20 hrs cooling off not enough in light of cumulative rage
-immasculation, 2 weeks of taunting, inflagrante delicto
A RESONABLE PERSON COULD BE SORELY TEMPTED TO KILL, QUESTION FOR THE JURY

Commonwealth v Carr (D killed one, wounded one when he saw 2 lesbians lovemakingNOT
adequate provoc.)
TEST: reasonable person test
REASONABLE PERSON WOULD NOT BE SORELY TEMPTED TO KILL BY SIGHT OF
LESBIANS
Ds reaction out of tune with provoking incident
COMMON LAW, NOT MPC TEST
under MPC, would need expert witness to testify as to extreme emotional
disturbance
from Ds situation (subjective test), possibly adequate provocation bc
reasonable to actor
(would be a question for the jury)

23
State v Dumlao (Hawaii case, MPC extreme emotional disturbance test, court should give
provocation instruct)
MD Manslaughter Statute
(b) spousal adultery not a mitigating factorthe discovery of ones spouse engaged
in sexual
intercourse with another DOES NOT constitute legally adequate provocation
for the
purpose of mitigating a killing from the crime of murder to voluntary
manslaughter even
though the killing was provoked by that discovery
D HAD PARANOID PERSONALITY DISORDER
A JURY COULD FIND THIS A PSYCHIATRIC DISORDER AND FIND HIS EXCUSE WAS
REASONABLE
FROM DS PERSPECTIVE, MATTER OF FACT FOR THE JURY
PROVOCATION INSTRUCTION GIVEN TO JURY

In Re Christian S (IMPERFECT SELF DEFENSE)

UNREASONABLE YET HONEST BELIEF THAT AN ARMED KID WOULD BE IN PERIL FROM AN
UNARMED KID STANDING 20 FEET AWAY
DID NOT MEET ELEMENTS OF IMPERFECT SELF DEFENSE BC NOT IN IMMINENT PERIL

Imperfect and Perfect Self Defense are separate and distinct doctrinessimilarity ends
with malice
-ISD not rooted in mental capacity or awareness of need to act lawfully
-can be free on diminished capacity but still (though unreasonably) believe in the need for
self-defense in a
given situation
**if you believe you need to act in self-defense, you think you are acting lawfully
(and therefore aware of obligation to act lawfully)

ELEMENTS
(1) actual belief
(2) unreasonable belief (yet honest belief) OBJECTIVE STANDARD
(3) necessary to defend oneself
(4) from imminent peril to life or great bodily injury

State of CA v Taylor (Imperfect Self Defense)

IMPERFECT SELF DEFENSE NEGATES MALICE, REDUCES 1ST AND 2ND DEGREE
MURDER TO
VOLUNTARY MANSLAUGHER

24
25
UNINTENTIONAL KILLINGIMPLIED MALICE
depraved heart, malignant and abandoned heart, depravity of mind = implied malice
aforethought

Implied Malice: Extreme recklessness that reveals an indifference to the value of human
life

*MUST KNOW YOUR CONDUCT IS ENDANGERING THE LIFE OF ANOTHER

2 Basic Components
(1) Extreme Recklessness: wanton and willful disregard of likelihood of death/great
bodily harm

what was degree of risk?

what was imminence of risk?
is there a lack of justification for taking the risk?
is there an awareness of the risk?

(2) Extreme Indifference: callousness, cruelty

what was level of callousness of conduct? (callous/wanton = reckless+)

what was level of cruelty of conduct?
what was level of dangerousness of conduct?
was there a conscious disregard?

*the deliberate perpetration of a knowingly dangerous act with indifference re whether

anyone is harmed
conscious disregard of a substantial and unjustifiable risk to human life
when risk of death is high and justification weak/non-existent, guilty of murder

*default 2nd degree if extreme recklessness + extreme indifference

26
 MPC reckless murder: the act of killing is done recklessly under circumstances
manifesting extreme indiff.
to the value of human life

CA Standard for Implied Malice (per CA v Watson)

(1) natural consequences are dangerous to human life
(2) the act was deliberately performed
(3) by a person who knows that his conduct endangers the life of another
(4) the person acts with conscious disregard for life

PROVOCATIVE ACT DOCTRINE

Allows prosecutors to charge 1st degree unintentional murder in jurisdictions where
the agency
limitation does not permit FM prosecution AND where predicate felony IS
statutorily
enumerated

ELEMENTS:
(1) Implied Malice
TEST: did D or his accomplices act with awareness of a substantial risk
that his
conduct was extreme enough to likely produce a violent
response by their victims?
(2) the killing is attributable to act of D or his accomplice
(3) the killing was committed during commission of one of the enumerated
felonies
THEN 1ST DEGREE UNINTENTIONAL MURDER (Taylor v Superior
Court)

US v Fleming (extreme recklessness and extreme indifference)

2ND DEGREE IMPLIED MALICE MURDER, no intent to kill but conduct was extreme reckless.
and indiff.
EXTREME = WANTON
DS CONDUCT WAS WANTON
-70-100 MPH
-drunk
-drove into oncoming traffic, during rush hour
NOT JUST RECKLESS, BUT EXTREME RECKLESSNESS (high amt of risk, no
justification of risk,
D was aware of risk and alcohol does not mitigate awareness)

Standard for Implied Malice:

(1) serious risk of death or serious bodily harm
(2) D aware of this risk
(3) reckless and wanton disregard for human life
(4) gross deviation from standard of care

CA v Watson (standard for implied malice in CA, question for the jury re extreme
recklessness/indifference)
STANDARD FOR IMPLIED MALICE IN CA
(1) natural consequences are dangerous to human life
(2) the act was deliberately performed
27
 (3) by a person who knows that his conduct endangers the life of another
(4) the person acts with conscious disregard for life
COURT: NATURAL CONSEQUENCES OF DRIVING TO A BAR AND DRINKING, KNOWING YOU
WOULD
NEED TO DRIVE HOME LATER, AND AT THE TIME OF DRIVING DRUNK D IS PRESUMED
TO KNOW THE HAZARDS OF DRUNK DRIVING (if not, standard is negligence, not
recklessness)
FACTS
-excessive drinking, drove to bar before beginning to drink
-high speed reckless driving while drunk
-300 ft of skidmarks to try to avoid accidentknew of danger
-veered into oncoming traffic
QUESTION FOR JURY: WAS THRE AWARENESS OF RISK OF DEATH ON PART OF D? re
element (3)
if yes, then drunk and reckless driving death = murder NOT manslaughter

People v Knoller (failing to properly control dog with violent history = extreme recklessness =
depraved heart)
IMPLIED MALICE because Ds knew dog was dangerous and consciously disregarded the
risk
implied malice test: if D is aware that his act is likely to cause death or serious injury to
another and
commits act anyhow
2nd Degree implied malice murder
high probability of death in keeping dangerous dog

Taylor v Superior Court (PROVOCATIVE ACT DOCTRINE re 1st degree unintentional murder)
FACTS
-D was getaway driver, not inside liquor store during armed robbery, victim killed
co-felon
NO FM BECAUSE CA HAS AGENCY LIMITATIONvictim killed co-felon, not in furtherance of
crime
CAN BE PROSECUTED UNDER 1ST DEGREE UNINTENTIONAL MURDER
PROVOCATIVE ACT DOCTRINE
if you act in a way so as to make another need to use lethal force in self
defense, you are
imputed with IMPLIED MALICE
Ds acts: execution threats, chattering insanely, coercive conduct
WOULD LEAD AN ORDINARY PERSON TO LETHALLY/JUSTIFIABLY RESIST

INVOLUNTARY MANSLAUGHTER
unintentional killing where there is no implied malice

D KILLS IN A CRIMINALLY NEGLIGENT MANNER

Doctrinal Structure:
actus reus: the killing of another human being
mens rea (depends on jurisdiction)
recklessnesssubjective awareness required (NOT WITH NEGLIGENCE
BELOW)
28
 gross negligence (criminal negligence)risky conduct, notice of risk, less
justification
ordinary negligence (simple negligence)like civil negligence

People v Hall (MPC definition of recklessness used, SKIING TOO FAST for conditions)
COURT INFERRING D MUST HAVE KNOWN OF RISK BY SAYING THAT A REASONABLE
PERSON IN
DS SHOES WITH HIS EXPERTISE, ETC, WOULD HAVE KNOWN
Courts can infer whether actor consciously disregarded such a risk from actors
knowledge,
experience, and what a reasonable person would have understood the risk to
be
RISK OF DEATH DOES NOT HAVE TO BE MORE LIKELY THAN NOT IN COLORADO
TO SEND
TO TRIAL FOR RECKLESS MANSLAUGHTER
-assess likelihood that harm will occur AND magnitude of such harm if
it occurs
-assess the nature and purpose of Ds conduct RELATIVE to how
substantial risk is
-risk must be of such a nature that disregarding it constitutes a gross
deviation from
standard of care a reasonable would exercise
ELEMENTS of Reckless Manslaughter:
Prosecution must prove Ds actions caused death, AND
(1)consciously disregarded
(2)a substantial and
(3)unjustifiable risk that he would
(4)cause the death of another
HERE: excessive speed and lack of control = extreme deviation from standard of
care

State v Williams (parents did not take child to doctor until too late to savenegligent
involuntary
manslaughter)
UNEDUCATED, NOT AWARE OF SEVERITY OF ILLNESS AND RISK TO CHILD
REASONABLE PERSON WOULD HAVE KNOWN CHILD WAS SERIOUSLY ILL
ordinary NEGLIGENCE, not extreme recklesness
*if parents consciously disregarded a known risk, it would have been depraved heart
murder)

29
30
FELONY MURDER
guilty of murder when a killing is committed in perpetration, or attempt to perpetrate a
felony (anchor,
predicate, or underlying felony)death can be accidental, still guilty of murder

DEFAULT 2nd degree if committed during any non-enumerated felony

Bumped up to 1st degree if committed during enumerated felonies (arson, robbery,
rape, burglary)

Strict liability re mens rea in the death, still need voluntary actus reus AND
causation

Rationale: deterrence: creates an enhanced risk of felony commission re can be punished

as a murderer
hope is that will cause felon to be more careful
also, felonies that result in murder should be punished more harshly than
felonies that do not bc
more social harm
form of transferred intent: intent to commit felony is transferred to intent to
commit homicide
EASES PROSECUTORS BURDEN OF PROOF

counter: increase the punishment for the predicate felonies themselves if you want
to deter
felonies, not indirectly with FM rule

MPC FELONY MURDER

criminal homicide constitutes murder when
-committed recklessly
-under circumstances manifesting extreme indifference to the value of human
life
such recklessness and indifference are presumed if
-actor is engaged or is an accomplice in the commission of, or an attempt to
commit:
robbery, rape, deviate sexual intercourse by force or threat of force,
arson, burglary,
kidnapping or felonious escape
*presumption is rebuttable

LIMITATIONS ON COMMON LAW FM RULE

(1) Enumeration

anchor felony MUST come from statutorily enumerated felonies, or DOES NOT
qualify for
1st degree FM (CA enumerated in murder statute)

(2) Inherently Dangerous Felonies (People v Sanchez)

inherent danger = significant risk of serious bodily injury or death

31
 2 Approaches (dep on jurisdiction)

(1) Inherently Dangerous in the abstractCALIFORNIA

significant risk of death in the abstract
ignore facts of case
test: can crime be committed without creating substantial
risk/high
probablility that death will resultif no, inherently
dangerous

IEs
-discharging weapon into inhabited dwelling
-manufacturing meth (bc of hazardous chemicals)
-willful discharge of weapon in grossly negligent manner
*more difficult to argue than as committedkeeps out many
felonies

(2) Inherently Dangerous as committed

significant risk of death in light of the specific facts of the case
test: was the manner and circumstances under which felony
committed
inherently dangerous

*easier to argue than in the abstractallows more FM charges

(3) Merger Doctrine

if anchor felony is an integral part of the homicide, it merges with it and FM

NOT APPLIED
so must prosecute the felony AND another murder theory separately
test: does underlying felony have independent felonious purpose other than
killing or
injuring victim? if yes, DOES NOT MERGE, can prosecute for FM (does
not bar)

if no independent felonious purpose, MERGES, cannot prosecute FM,

must charge
underlying felony and another murder theory separately

Crimes that merge Crimes that do not

merge
Invol/vol Robbery
manslaughter Rape
Felony assault Kidnapping
Felony battery Burglary
*violent crimes Arson

yes independent
no independent felonious purpose
felonious purpose

32
 (4) Agency/In Furtherance Of (Weick v State, State v Oimen)

2 approaches
(a) the Agency ApproachMAJORITYCALIFORNIA
killing must be done by felon or co-felon to qualify for FM
TEST: was killing done by felon or co-felon? if felon, CAN
PROSECUTE FM
if done by intended victim, CANNOT prosecute felons for it

(b) the Proximate Cause ApproachMINORITY

felon liable for any death that is a proximate result of the felony,
whether
done by co-felon or 3rd party
TEST: was the death a reasonably foreseeable consequence of
the felony?
if yes, CAN PROSECUTE FOR FM
*even if killing done by police officer, can prosecute felons

(5) Res Gestae (State v Adams)

death must occur because of and during perpetration or attempted
perpetration of the
felony and within the duration of the felony

*when anchor seen as too far in time, distance, or duration to killing,

NO FM

question: was anchor felony and homicide part of one continuous

transaction that was
closely connected in time, place, and causal relation? if yes, CAN
PROSECUTE FM

TEST: was there a break in the chain of events?

LOOK AT:
-point of time
-place
-causal relation bt death and predicate felony

TEST: place of temporary safety: has the felon gained a place of

temporary safety after
commission of felony and before death of victim? if yes, NO FM
PROSECUTION
(not always dispositive, re arson)

(prosecute under another murder theory separately)

33
 *death must occur before felony completed, even if D reaches place of
temp safety
ie ARSONIST reaches safety, but fire blazes on and then kills someone,
it is within
the res gestae of the crime

STEPS OF ANALYSIS
(1) prove all elements of underlying felony
(2) decide degree of felony murder (if enumerated, 1st degree, otherwise 2nd)
(3) if 2nd degree, is underlying felony inherently dangerous? (2 approaches, dep on
jurisdiction)
(4) is death a direct causal result of the felony?
(5) rule out bars and restrictions to felony murderFROM CHART

State v Sims (D shot victim in the course of an attempted burglary, defense was muscle spasm,
but FM is SL Crime)
VA Felony Murder Statute:

NO INVOLUNTARY ACT DEFENSE RE FELONY MURDER

MALICE IS ASSUMED EVEN THOUGH STATUTE DOES NOT MENTION IT
DEATH WAS DIRECT CAUSAL RESULT OF ATTEMPTED BURGLARY
voluntary act = breaking into house with intent to commit burglary
mens rea: strict liability
even it accidental (ie muscle spasm that pulled trigger) does not matter because strict
liability
1st DEGREE FELONY MURDERenumerated and accident is not a defense to VA FM
Statute

People v Stamp (death from a robbery, enumerated in CA, 1st degree FM, forseeability not a
requirement)
D DID NOT KNOW VICTIM HAD A HEART CONDITION, BUT FORESEEABILITY NOT AN
ELEMENT OF FM
as long as death is a direct causal result of the voluntary act of a felony, liable for FM
voluntary act = robbery (prove all elements)
ARMED ROBBERY ENUMERATED IN CA
THEREFORE 1ST DEGREE FELONY MURDER

People v Sanchez (police evasion is NOT INHERENTLY DANGEROUS in the abstractCA case)
EVASION IS NOT INHERENTLY DANGEROUS IN THE ABSTRACT
not enumerated in CA
CANNOT CHARGE FELONY MURDER BC EVASION NOT INHERENTLY DANGEROUS
court used OJ Simpson chase as example of a way to evade police without being
dangerous
standard of inherently dangerous = SIGNIFICANT RISK OF DEATH

Barnett v State (MERGER DOCTRINE BARS prosecution for FM when underlying felony is assault
in 1st degree)
ASSAULT IN 1ST DEGREE MERGES WITH FMCANNOT PROSECUTE FOR FM
must prosecute 1st degree assault separately, and another murder theory NOT FM

34
 Assault DOES NOT have an independent felonious purpose other than to kill or inflict great
bodily harm

Weick v State (AGENCY LIMITATION BARS prosecution of felon for FM when victim kills co-felon)
AGENCY LIMITATION BARS FELON PROSECUTION FOR FM WHEN VICTIM KILLS A CO-FELON
CONDUCT WAS NOT IN FURTHERANCE OF THE CRIME, IT WAS IN OPPOSITION TO IT
predicate felony was robbery
but VICTIM, not a co-felon, killed the other co-felon
THIS JURISDICTION HAS AGENCY LIMITATION MAJORITY IN FURTHERANCE OF

takeaway: if conduct causing the death is not in furtherance of the crime, cannot
prosecute for FM
in this jurisdiction

State v Oimen (AGENCY LIMITATION DOES NOT BAR prosecution for FM bc MINORITY proximate
cause juris)
Wisconsin FM Statute:
Whoever causes the death of another human being while committing or
attempting to commit [first or second degree sexual assault with use or
threat of force or violence, arson, armed burglary, armed robbery]

JURISDICTION REJECTS MAJORITY AGENCY LIMITATIONplain meaning of statute

HAS PROXIMATE CAUSE APPROACH INSTEAD
does not need to be in furtherance of predicate felony, only proximate result of
felony
Court rejects agency approach, that a felon can only be liable for death
when the killing is
committed by an individual acting in concert with him (an agent of the
crime)
-legislature did not intend liability only when there is an agency
relationship
-court takes plain meaning of statute, places no limits on whose
death it is
that results
-only 1 limitation: 5 enumerated felonies for 1st degree

State v Adams (RES GESTAE DOES NOT BAR 1st degree FMarmed burglary, while fleeing,
killed night marshal)
WAS IN ONE CONTINUOUS TRANSACTION
FLEEING BC INTERRUPTED DURING ARMED BURGLARY
fleeing is within res gestae of armed burglary
closely connected in point of time, place, causal relation
-no break in causal chainno place of temporary safety, no break in chain of events
HOMICIDE WITHIN RES GESTAE OF BURGLARYone continuous transaction
ENUMERATED IN MISSOURI
1ST DEGREE FM
TAKEAWAY: renunciation valid only if voluntary and complete

35
MISDEMEANOR MANSLAUGHTER
a person who commits a killing in the perpetration of a misdemeanor can be convicted IF
ANCHOR
MISDEMEANOR IS INHERENTLY DANGEROUS

*can be subject to FM Limitations, depending upon jurisdiction

STEPS IN ANALYSIS
(1) prove all elements of underlying misdemeanor
(2) is death a direct causal result of the misdemeanor?
(3) is underlying misdemeanor inherently dangerous? (2 approaches, dep on
jurisdiction)
(4) rule out bars and restrictions to felony murderdepends on jurisdiction

U.S. v Walker (misdemeanor must be INHERENTLY DANGEROUScarrying a gun w/o license IS

inher. danger)
D dropped gun, it discharged and killed bystander
INHERENT DANGER = HIGH RISK OF SERIOUS BODILY INJURY OR DEATH
Carrying a gun without a license is inherently dangerous to the community
licensure assures community the possessor is of sound mind, no criminal record, not
user of
drugs, free of defects that would impair safe use of weapon, trained in safety
of firearms
CARRYING UNLICENSED PISTOL DANGEROUS IN AND OF ITSELF

Misdemeanor Manslaughter from COMMON LAW (jurisdiction does not have a

statute on it)
(1)unlawful killing of a human being WITH either
a. the intent to commit a misdemeanor that is inherently dangerous, OR
b. gross or criminal negligence

Taylor v Superior Court (provocative act doctrine re unintentional 1st degree unintentional
murder)
FACTS
-D was getaway driver, not inside liquor store during armed robbery, victim killed
co-felon
NO FM BECAUSE CA HAS AGENCY LIMITATIONvictim killed co-felon, not in furtherance of
crime
CAN BE PROSECUTED UNDER 1ST DEGREE UNINTENTIONAL MURDER
PROVOCATIVE ACT DOCTRINE
if you act in a way so as to make another need to use lethal force in self
defense, you are
imputed with IMPLIED MALICE
Ds acts: execution threats, chattering insanely, coercive conduct
WOULD LEAD AN ORDINARY PERSON TO LETHALLY/JUSTIFIABLY RESIST
D WAS AWARE HIS ACTS WOULD LEAD A PERSON TO NEED TO DEFEND
THEMSELF

36
37
INCHOATE OFFENSESATTEMPT, CONSPIRACY, SOLICITATION
(incomplete/unsuccessful)
because we do not punish for thoughts alone, at what point does an incomplete/unsuccessful
effort to commit a
crime become a crime itself?
*ALL DEFENSES APPLY, INCLUDING THOSE BELOW THAT ARE SPECIFIC TO INCHOATE CRIMES

ATTEMPT (specific intent crime, even if the target crime is general ie rape)
*when a person, with the intent to commit a criminal offense, engages in conduct that
constitutes the beginning of
perpetration of the target offense
*usually punished as harshly as completed offense (ie rape 20 yrs, attempted rape 10 yrs)
rationale: attempt causes less social harm than completed offense = lesser debt to pay to
society = punish
less

*YOU CAN ATTEMPT TO CONSPIRE

comes closest to completion of all inchoate crimes

MUST BALANCE COMPETING CONCERNS re actus reus that is culpable

(1) danger of arresting and convicting innocent persons whose behavior is merely
suspicious
(2) need for law enforcement to prevent real criminal conduct from coming too close to
fruition

Doctrinal Structure:
ACTUS REUS: how far did the conduct go in completing the target crime?
*think about all steps necessary to fulfill actus reus of target crimedid D get
close enough
to meet the elements of the actus reus of the target crime?
*were acts closer to planning activity or closer to perpetration of the crime?
2 tests
(1) Dangerous Proximity Test (Common Law, People v Rizzo)Oliver
Wendell Holmes
(a) was Ds conduct dangerously close to success?
(b) was there reasonable likelihood of success but for intervention?
*this test is closer to perpetration than planning
* the more serious the offense, the less close D must come to
completion

38
 (2) Substantial Step Test (MPC)
(a) did Ds act constitute a substantial step in the course of conduct
planned to culminate in the commission of the target crime?
(b) was Ds act strongly corroborative of Ds criminal purpose?
*this test is closer to planning activity than perpetration

MENS REA: dual mens rea (1) for target crime (intent to commit acts which constitute
actus reus of target
offense) and (2) for attempted crime (specific intent to commit target offense
engage in conduct or achive result required for target offense)
2 tests
(1)Common Law Test
(a) was there general intent to commit the acts which constitute the
actus reus of the target crime?
(b) was there specific intent to commit the target crime? ie engage in
conduct or
achieve result required by target crime?
*go through steps of analysis of the target crime (if murder, must
determine degree)

(IE if pulling gun was meant to scare rather than kill, lacked specific
intent of murder, CANNOT be convicted of attempted murder)

(2) MPC Test

(a) did D purposely engage in conduct that would constitute the actus
reus of the
target crime?
(b) when the target crime is a result crime, did D do or omit anything
with the purpose
of causing or with belief that it will cause the result without further
conduct on his part?
*result crimes (ie murder) as opposed to conduct crimes (ie driving
drunk)

ATTENDANT CIRCUMSTANCES: (IF PRESENT)mens rea element must be met

majority approach: the mens rea IS THE SAME for attendant circ as it is for the
completed crime
ie if mens rea is negligence, then negligence for attendant circumstance too
minority approach: mens rea for attendant circumstances is purpose (must intend
and know)
regardless of what mens rea is for completed crime
STRICTER than majority approach

**if attendant circumstances are what D believes them to be, can

prosecute for attempt
(it is not about objective, extrinsic circumstances, but what is in Ds mind)

DEFENSES: Abandonment (MPC onlytypically no exculpatory abandonment in

common law, although

39
 trend is to allow so long as it is complete and voluntary)

Must be voluntary AND complete (not based on increased risk of detection

or motivated
by postponement or transfer to another objective or victim)
*voluntary: must originate with D, not as a result of extrinsic factors that
increase
probability of detection or difficulty of committing the target crime
*complete: the D must have not only abandoned this particular episode but
also abandoned
the idea of committing the crimerenunciation

BAR IS VERY HIGH

Impossibility (MUST DISTINGUISH between legal imposs (valid) and factual

imposs (not valid)

Common Law ONLY, although most jurisdictions no longer allow it as

defense
MPC has eliminated defense of impossibility: looks to what is in
Ds mind, NOT to
extrinsic, objective circumstances

*inherent prob with distinction: any case of hybrid legal impossibility

can be
characterized as a factual impossSEE People v Dlugash

LEGAL impossibility:

parallels mistake of law (negates mens rea)

VALID DEFENSE

hybrid legal impossibility: actors goal is illegal, but commission is

impossible
because of a mistake by actor regarding the legal status of a
factual circumstance related to Ds conduct (about actor, victim,
method of commission)most common

IE: attempted receipt of stolen property: if actor believes

it was not
stolen, mistake of attendant circ required to convict
(that
property was stolen)
D offers bribe to person he thinks is a juror, person is
not juror
D shoots at stuffed deer out of hunting season thinking
it alive

pure legal impossibility: attempt to commit a non existent crime

rare
(Ds conduct not illegal but he thinks it is illegal)
40
 *really a non-issue bc cannot be prosecuted for
non-crime

IE: attempted rape: if actor believes putting his hand on

Vs knee is
rape, mistake as to what rape is

FACTUAL impossibility: when Ds intended end is a crime but he fails to

complete bc of a
factual circumstance unknown to him or beyond his control
USUALLY NOT A DEFENSE, unless inherent impossibility

inherent factual impossibility: D chooses a means of accomplishing

the crime
that is unlikely to succeed
CAN BE A VALID DEFENSE

IE: D tries to shoot down airplane with rubber bands

D tries to kill V by using a voodoo doll

factual impossibility: D is mistaken about a fact that makes it

impossible to
complete the offense
NOT A VALID DEFENSE

IE: pickpocket reaches into empty pocketstill attempted

larceny
D sexually assaults V, cannot have sex bc impotentstill
attempted rape
D shoots into Vs bed thinks she is there, she was not there
still att murder
D pulls trigger of gun aimed at V, gun not loadedstill
attempted murder

*MPC grades solicitation at the same level as the target offense

Merger Doctrine Applies

if prosecution proves the completed offense, attempt MERGES and you are prosecuted ONLY for
completed offense

Kansas v Gobin
Kansas Attempt Statute
any overt act toward the perpetration of a crime done by a person who
intends to commit
such crime but fails in the perpetration thereof or is prevented or
intercepted in executing such crime
3 elements
(1)intent to commit the crime
(2)an overt act toward the perpetration of the crime
(3) a failure to consummate the crime

41
People v Rizzo (Victim never showed up, common law ACTUS REUS test, not dangerously close
to success)
D and 3 others drove around looking for intended victim, victim did not show up
LACKED ABILITY TO COMMIT CRIME BC VICTIM DID NOT SHOW UPTHEREFORE NOT
DANGEROUSLY
CLOSE TO SUCCESSCANNOT BE LIABLE FOR ATTEMPT
Actus Reus TEST: Dangerous Proximity Test
TAKEAWAY: conduct must come dangerously close to success to satisfy actus reus element
of attempt

South Dakota v Lyerla (cannot attempt to commit an unintentional crime, MENS REA 2 of
attempt not satisfied)
CANNOT HAVE SPECIFIC INTENT TO KILL BC HE DID NOT INTEND TO KILL
DID NOT MEET MENS REA ELEMENT (2)
Dissent represents the minority view:
-you can still be prosecuted for unintentional crimes of recklessness (extreme or
ordinary)

People v Staples (NO defense of ABANDONMENT once acts sufficient to be considered attempt
at common law)
DS ACTS WENT BEYOND PLANNING AND PREPARATION
HE BEGAN TO DRILL THRU THE FLOOR
COMMON LAW RULE: NO EXCULPATORY ABANDONMENT ONCE ACTS CONSIDERED
ATTEMPT

People v Dlugash (D shot V AFTER another had already shot Vlegal impossibility to kill V if V
already dead)
LEGAL IMPOSSIBILITY TO KILL A DEAD PERSON BC LAW OF HOMICIDE PREVENTS KILLING
OF A HUMAN
BEING, AND V WAS NO LONGER A HUMAN BEING BC X HAD ALREADY KILLED V
(coroner said V could have already been dead before D shot himNO PROOF
BEYOND
REASONABLE DOUBT RE V WAS DEAD/ALIVE WHEN D SHOT HIM)
NO CAUSATION so cannot prosecute for murder

*CAN PROSECUTE FOR ATTEMPTED MURDER, EVEN THOUGH VICTIM ALREADY DEAD
if attendant circumstances are as D believed them to be, can prosecute for
attempt
AC = D thought V was dead?

*can also be characterized as factual impossibility: did not know V already dead, so failed
to complete
offense even though he intended to kill VBUT FACTUAL IMPOSS IS NOT A DEFENSE

42
COMPLICITY/ACCOMPLICE LIABILITY/AIDING AND ABETTING
(NOT a crime in and of itselfa way of sharing the liability with the principalvicarious liability)

aider and abettor is prosecuted on the offense committed by principalconspiracy,

attempt, solicit., target

rationale: you are using principal as your agent, effectively saying your acts are my
acts -- thus punished
ALSO, group criminality poses special added dangers to society, so those who
promote or
encourage crime are liable for the crimes themselves

*mere presence is not enough (State v VT)

-accomplice must know he is assisting the principal, and have some conduct that assists,
however minimal
-presence + prior agreement IS ENOUGH
-presence + omission of affirmative duty IS ENOUGH (State v Walden, People v
Flayhart)

*there must be an attempt or completed offense by principal to hold accomplice liable

(as opposed to
solicitation)

*the accomplices conduct MUST ACTUALLY ASSIST the principaleven if it just made
it easiercan be
trivial
(psychological encouragement, opening a window so perp can enter, etc)

YOU CAN BE AN ACCOMPLICE TO AN UNINTENTIONAL CRIME

COMMON LAW

ACTUS REUS: voluntary act to promote/encourage commission of the target offence by

principal (must
know you are assistingpresence not enough but if with duty or prior agreement
can be enough)

= intentionally assists principal to engage in conduct that constitutes the

offense

43
 *ACT CAN BE SUFFICIENT IF IT MIGHT HAVE PROMOTED/ENCOURAGES
PRINCIPALS ACT
-speech sufficient if intended to encourage/help principal commit crime
-mere presence insufficient unless it is offered as a form of
encouragement
-accomplices help need not contribute to the criminal result
-principal need not be aware of accomplices acts
-accomplices acts must be capable of assisting the principal

(if you omit duty to act, ie police officer stands by and does nothing, sufficient
actus reus)

MENS REA (dual, must prove both)

` (1) accomplice must intend to assist principal in commission of the target crime
purposely
promote

majority rule: accomplice must have the mens rea of purpose regarding
the principals
crime
minority rule: accomplice must know principal will commit the target
offense

(2) purpose is to assist principal in completing crime: sharing in the mens rea
for target crime

(if police officer fails to prevent, and wants crime to occur, liable as
accomplice)
(principal need not be aware of accomplices assistance)

For Crimes whose Mens Rea is RECKLESS/NEGLIGENT (Washington v Hopkins)

-accomplices mens rea re assisting the principal: (1) MUST BE PURPOSEFUL
re the target crime: (2) share in reckless/negligent mens rea
for target offense

For Crimes whose Mens Rea is STRICT LIABILITY

-requires purpose to promote principals act
-REQUIRES AWARENESS OF FACTS THAT MAKES CONDUCT CRIMINAL
*ACCOMPLICE LIABILITY REQUIRES HIGHER MENS REA FOR ACCOMPLICE THAN
PRINCIPAL
IE: statutory rape requires accomplice to know the person is underage (not
principal)

CAUSATION: only required for the principal, not for the accomplice bc not an
independent crime, only
derivative liability for accomplice
*BUT MUST ESTABLISH THAT THE PRINCIPAL COMMITTED THE CRIME

DEFENSES: Abandonment/Withdrawal

44
 majority: requires complete and voluntary abandonment
minority: requires complete and voluntary abandonment AND that D
communicate the
withdrawal to perpetrators AND law enforcement BAR VERY HIGH

Innocent Instrumentality: a person is not an accomplice is he does not know

the conduct he
engages in amounts to a crimeno derivative liability
(acts of innocent person attributed to person who
instigated crime,
principal prosecuted directly for the offense)

Exempt Participants: a person is not an accomplice if he is a member of the

class of individuals
protected by the statutory prohibition
IE statutory rape: underage victim cannot be an accomplice even if
willing
participant

Natural and Probable Consequences Doctrine (People v Medina, State v Hoselton,

State v Linscott)
accomplice can be held liable not only for crime he is complicit in, but also for any
other offense by the principal that was a natural and probable consequence of the
crime the accomplice aided and abetted (OBJECTIVE STANDARD)

STEPS OF ANALYSIS (DRESSLER)

(1) did the principal commit the target crime? (*even if P acquitted/not charged, must
show P met all elements of the target crime)
(2) if yes, did accomplice intentionally assist the principal in the commission of the target
crime?
(3) if yes, did the principal commit any other crimes in the course of committing the target
crime?
(4) if yes, were these crimes reasonably foreseeable consequences? (*even though not
desired/contemplated by the accomplice or principal)
(5) if yes, accomplice is liable under the doctrine

MPC
(3) a person is an accomplice of another person in the commission of an offense if
(a) with the purpose of promoting or facilitating the commission of the
offense he
(i) solicits the other person to commit it
(ii) aids or agrees or attempts to aid such other person in planning or
committing it
OR
(iii) having a legal duty to prevent commission and fails to make proper
effort

45
 ACTUS REUS: aids or agrees to aid or attempts to aid principal in planning or
commission
*omission satisfies IF D has legal duty to prevent

MENS REA: purpose of promoting or facilitation commission of the offense

when causing a particular result, D acts with the kind of culpability that is
sufficient
for the commission of the offense

DEFENSES (per Dressler)

Abandonment: terminates participation before the crime is committed, and
if D neutralizes
his assistance, warns the police, or in some other way prevents
commission

Exempt Participants (see above)

Inevitable Incidence: if conduct is an inevitable incident to commission of

the crime
IE: customer of prostitute not an accomplice in
commission of pros.

State v VT (MERE PRESENCE NOT ENOUGH to meet actus reus of complicity in Utah)
Not enough evidence to show D encouraged theftno slight conduct or verbage, was
merely present
was not a lookout, did not encourage the crime
PASSIVE BEHAVIOR/PRESENCE NOT ENOUGH FOR ACCOMPLICE LIABILITY
DOES NOT MEET ACTUS REUS

State v Walden (OMISSION OF AFFIRMATIVE DUTY + PRESENCE IS ENOUGH to meet actus reus
of complicity)
MOTHER D WAS PRESENT WHILE BOYFRIEND BEAT HER 1 YEAR OLD FOR 1 HRS, DID
NOTHING
affirmative duty to protect your childcannot stand by when reasonably within power to
protect child
while mere presence does not establish complicity, combined with affirmative
duty imposed, an act
of omission can establish criminal conduct
D WAS AIDER AND ABETTOR, THUS GUILTY AS A PRINCIPAL
OMISSION CONSTITUTED ENCOURAGEMENT OF THE COMMISSION OF THE ASSAULT

People v Beeman (aided and abetted, liability extends to NATURAL AND REASONABLE
CONSEQUENCES)
D INTENDED TO AID AND ABET PERPETRATORS IN ROBBERY
TEST:
(1) D acted with knowledge of principals criminal purpose
(2) with intent of encouraging commission of the crime
LIABILITY extends to natural and reasonable consequences of acts that D
knowingly and
intentionally aids

46
 PROOF OF INTENT TO ASSIST IN THE CRIME REQUIRED FOR AIDING AND
ABETTING
D LIABLE FOR ROBBERY, BURGLARY, DESTRUCTION OF PHONE EQUIPMENT even
though he
wasnt there for the robbery (sketched layout of home, told principals where
jewelry was)

State v Hoselton (MERE PRESENCE NOT ENOUGH for accomplice liability, no MENS REA bc did
not know of plan)
NO PRIOR AGREEMENT, NOT FORESEEABLE TO D THAT FRIENDS WOULD STEAL
WHEN D FOUND OUT ACTS OF FRIENDS, HE REMOVED HIMSELF FROM THE SITUTATION
the only evidence was a confession, when asked if he was a lookout, he replied you could
say that
*does not establish he was an aider and abettor
DID NOT INTEND HIS FRIENDS TO COMMIT LARCENYlacked mens rea to help commit
crime

*also cannot get him on natural and probable consequences doctrine, because (4) NOT
FORESEEABLE

State v Linscott (NATURAL/PROBABLE CONSEQmurder via armed robbery of drug dealerhad

MENS REA)
CO-FELON KILLED DRUG DEALER, D DID NOT INTENT TO KILL HIM, ONLY TO ROB HIM
MURDER IS A NATURAL AND FORESEEABLE CONSEQUENCE OF ARMED ROBBERY,
ESPECIALLY WHEN
ROBBING A KNOWN ARMED DRUG DEALER
Natural and Probable Consequences (Dressler analysis)
(1) did the principal commit the target crime? (*even if P acquitted/not charged, must
show P met all elements of the target crime)
(2) if yes, did accomplice intentionally assist the principal in the commission of the
target crime?
(3) if yes, did the principal commit any other crimes in the course of committing the
target crime?
(4) if yes, were these crimes reasonably foreseeable consequences? (*even though not
desired/contemplated
(5) if yes, accomplice is liable under the doctrine

*no FM prosecution bc armed robbery not enumerated in Maine, AND bc D asserted mens
rea defense
and FM is an SL crime
*no need for intent to kill if killing was result of natural and probable
consequences

State v Medina (NATURAL AND PROBABLE CONSEQ of gang fight is death, STANDARD
NEGLIGENCE in jurisdic)
D AIDED AND ABETTED ASSAULT
COURT EMPLOYS NEGLIGENCE STANDARDseems to go against name of doctrine
*does not need to be PROBABLE that someone would die in gang fight, only that it is
POSSIBLE
OBJECTIVE STANDARD: would a reasonable person know/should have known someone
might
47
 be killed in a gang fight?

Washington v Hopkins (you CAN BE AN ACCOMPLICE TO AN UNITENTIONAL CRIMEinvol.

manslaugher)
INVOLUNTARY MANSLAUGHTER RE ENTRUSTING CAR TO PERSON YOU KNOW IS DRUNK
actus reus: assisted intentionally by giving keys to a drunk
mens rea (1) intended to give keys to drunk, thereby assisting him in driving drunk
mens rea (2) not clear if standard is reckless or negligent, but court felt D was
reckless/negligent
PRINCIPALS ACT OF DRIVING DRUNK LED TO INVOLUNTARY MANSLAUGHER

*could also get him on NATURAL AND PROBABLE CONSEQUENCES DOCTRINE

People v Flayhart (INTENTIONAL OMISSION OF DUTY to provide care satisfies ACTUS REUS of
complicityNY)
Husband and Wife had affirmative duties to care for husbands brother
mens rea: negligence
CAN BE AN ACCOMPLICE TO NEGLIGENCE CRIMES
CAN INTENTIONALLY AID ANOTHER IN FAILING TO PERCEIVE A SUBSTANTIAL AND
UNJUSTIFIABLE
RISKnegligent unintentional homicide
each intentionally aided the other in conduct AND each also acted with
negligence because
they each failed to perceive risk of death, and intentionally aided
each other in failing to provide food and medical care, which caused
brothers death

CONSPIRACY (specific intent crime AND theory of complicity)

an agreement between two or more persons to commit an unlawful act or series of acts

rationale: group criminality is more dangerous than individual wrongdoing bc of

combined resources,
combined strength, and combined expertisealso less likely to abandon if others
involved

*police can intervene BEFORE attempt stage

YOU CAN SOLICIT A CONSPIRACY

*if police unable to intervene, prosecution can convict on BOTH conspiracy AND the target
offense
DOES NOT MERGE (unlike attempt and solicitation)

rationale: conspiracy presents extra dangers, and the extra danger justifies double
punishment

*co-conspirators can also be held vicariously liable for acts of other co-conspirators (like
complicity)holds
people responsible for the acts of others
COMMON LAW ONLY
MPC: must get them on complicity, automatic co-conspirator liability rejected

48
Common Law Doctrinal Structure

ACTUS REUS:

(1) agreement to commit unlawful act, DIRECT OR INDIRECT AGREEMENT (meeting

of the minds)
AND, USUALLY
(2) majority: overt act (majority of jurisdictions. can be same act as in #3 of
Pinkerton analysis)
minority: some jurisdictions DO NOT require an overt act

over act = any form of observable conduct undertaken as part of the conspiracy
(any act OK)

*most jurisdictions: conspiracy COMPLETE once agreement + overt act in

furtherance of consp.
(can be planning activity)

MENS REA: dual

(1) intent to enter into agreement/conspire

AND
(2) intent/purpose to commit or aid in commission of the act or acts constituting
target crime
(must intend that the target offense be achieved)2 ppl minimum must
truly agree,
insane/police do not count
BILATERAL JURISDICTION

minority: knowledge that you are aiding in commission of acts constituting

the target crime is sufficient, do not need to intend that the crime be
committed
(People v Lauria)

Bilateral Conspiracy=Traditional Common Law Approach

=requires an actual agreement (meeting of the minds) between 2+
people

Unilateral Conspiracy
=actual agreement not necessary so long as D believes the other is
agreeing

problem with unilateral approach: fails to carry out purpose of

conspiracy statute
-when police officer is the co-conspirator, no increased danger, no
increased chance
of success, no existence of continuing criminal enterprise, no
greater
difficulty of detection

49
 BUT CAN INFER INTENT FROM KNOWLEDGE Pinkerton v US

ATTENDANT CIRCUMSTANCES: same as underlying target crime

DEFENSES: Corrupt Motive DoctrineAPPLIES ONLY TO MALUM PROHIBITUM CRIMES

if conspirators lack a corrupt or wrongful rationale, not guilty

Whartons Rule
you CANNOT prosecute a 2-person conspiracy if the crime by definition
requires 2 people to
commit
statute MUST provide that both participants are culpable for the conductif
the two
conspirators are not the parties necessary to commit the offense, can
charge consp.

IF THERE ARE MORE PARTICIPANTS IN THE CONSPIRACY THAN THE MINIMUM

NUMBER
REQUIRED FOR THE CRIME, THEN CONSPIRACY CHARGE CAN BE
BROUGHT
AGAINST ALL PARTICIPANTS

IE: bigamy, incest, adultery, dueling, [gambling, extortion, bribery, sale of

stolen property,
simple drug sales (but can charge conspiracy to possess)]

rationale: the added danger of group criminality is absent with only 2

people

Withdrawal and Abandonment

majority: NOT a defense

minority: VALID DEFENSE
conspirator must manifest a complete withdrawal that is not
caused by either
fear of discovery or inability to complete the criminal
object of the
conspiracy

can require communicating withdrawal to co-conspirators, and if

close to
fruition, an effort to defeat the object offense

some courts require getting all co-conspirators to cease

conspiracy or
notifying authorities to prevent the crime

Exempt Participants (Per Dressler): a person is not an accomplice if he is a

member of the class of
individuals protected by the statutory prohibition
IE statutory rape: underage victim cannot be an accomplice even if
willing
participant
50
 Impossibility NOT A DEFENSE TO CONSPIRACY

PINKERTON LIABILITYlike the natural and probable consequences doctrine of complicity

(common law only)

a party to a conspiracy is liable for any criminal act committed by a co-conspirator if it is within
the scope
of the conspiracy OR it is a foreseeable consequence of the unlawful agreement

Co-Conspirators vicariously liable for crimes of other co-conspirators if:

(1) the co-conspirator is a party to the conspiracy
(2) the conspiracy is ongoing (not terminated)
(3) the crime is in furtherance of the conspiracy, AND
(4) the crime is reasonably foreseeable (negligence language)
*do not need to intend the consequence of the crime like in nat and prob
consequences doctrine

problem with doctrine: VERY BROAD LIABILITYbc conspiracies are usually open ended,
they can last a
long time and involve many parties and many crimesthis doctrine holds every
member of the
conspiracy liable for every crime committed by every other member to the
conspiracy as long as
the crime is among the objects of the conspiracy or is a reasonably foreseeable
outgrowth of the
conspiracy

Merger Doctrine DOES NOT apply: if attempted or completed, prosecuted for conspiracy AND
attempt or target

rationale: conspiracy presents extra dangers, and the extra danger justifies double
punishment

MPC
ACTUS REUS:
(1) agreeing to engage in conduct that constitutes a crime or attempted crime
OR
(2) agreeing to aid in planning or commission of crime or attempted crime
AND
(3) overt act in pursuance of conspiracy, EXCEPT in 1st and 2nd degree felonies, no
overt act
needed

MENS REA
(1) must act with purpose of promoting or facilitating the commission of the
conduct that
constitutes the offense

51
 *no 2-person minimum re mens rea like in common law: onlu 1 person
must truly agree-
so undercover cops, insane, incapable count--UNILATERAL
JURISDICTION

DEFENSE: requires:
(1) COMPLETE renunciation
(2) VOLUNTARY renunciation AND
(3) THWARTING the success of the conspiracy

*NO Whartons Rule or Impossibility defenses

*NO vicarious liability under MPCmust prove complicity for co-

conspirators

*MPC grades solicitation at the same level as the target offense

Martinez v Wyoming (actus reus for conspiracySUFFICIENT AGREEMENT ESTABLISHED)

Unilateral jurisdictionone person with requisite mens rea is sufficient, even if
the other person is
a police officer who lacks mens rea
MERE TACIT UNDERSTANDING BETWEEN PARTIES IS SUFFICIENT
taped calls re price and quantity of morphine
NO VOLUNTARY ABANDONMENTchanged his mind when he found out he was being
followed
evidence beyond a reasonable doubt D planned to purchase morphine and deliver to
informant, had an
agreement with another to violate the controlled substances act
GUILTY OF CONSPIRACY AND ATTEMPT TO VIOLATE CONTROLLED SUBSTANCES ACT

*no overt act requirement at the time, but Wyoming NOW requires it

Washington v Pacheco (CANNOT AGREE WITH FEIGNING PARTY, does not meet ACTUS REUS
for conspiracy)
Bilateral jurisdictionneed 2 people minimum to have mens rea, cannot include
police officers
YOU CANNOT AGREE WITH A FEIGNING PARTYpolice officer was predending to agree
D DID NOT CONSPIRE WITH ANYONE
although D had requisite criminal intent, he lacked the criminal act of
agreementno genuine
agreement
LAW in WA: requires D to reach a genuine agreement with at least one other genuine co-
conspirator

State v Dent (actus reus for conspiracy)

People v Swain (mens rea for conspiracyINTENT TO KILL REQUIRED)

Ds friend killed a boy in a drive-by shooting, D found guilty of conspiracy to commit
murder
INTENT TO KILL REQUIRED FOR CONSPIRACY TO COMMIT MURDER
CANNOT BE BASED ON THEORY OF IMPLIED MALICE

52
People v Lauria (mens rea for conspiracy, INFERRING INTENT FROM KNOWLEDGE)
for FELONIES, intent to commit the conspiracy can be inferred from knowledge that the
buyer will use the
goods or services for criminal purposes IF
(1) there is direct evidence that he intends to participate OR
(2) through an inference that he intends to participate based on
(a) a special interest in the activity
(b) the aggravated nature of the crime itself
special interest in the activity can be inferred
(1) when purveyor of legal goods for illegal purposes has acquired a stake in the
venture, OR
(2) when no legitimate (lawful) use for the goods or services exist, OR
(3) when the volume of business with the buyer is grossly disproportionate to any
legitimate
demand, OR when sales for illegal use amount to a high proportion of sellers
total business

for MISDEMEANORS, intent CANNOT be inferred from mere knowledge that buyer is using
products for
criminal purposes
HOWEVER, intent CAN still be inferred from knowledge IF supplier has special
interest in
operation of the criminal enterprise
special interest can be inferred
(1) when purveyor of legal goods for illegal purposes has acquired a stake in the
venture, OR
(2) when no legitimate (lawful) use for the goods or services exist, OR
(3) when the volume of business with the buyer is grossly disproportionate to any
legitimate
demand, OR when sales for illegal use amount to a high proportion of sellers
total business

US. v Feola (ATTENDANT CIRCUMST. for conspiracysame as mens rea for target crime
ASSAULT ON COP)
conspiracy to assault a police officer
Ds defense: lacked mens rea because didnt know he was a cop
Court: it is an SL crime, no requirement that actor must know he is assaulting a police
officer
TAKEAWAY: YOU CAN BE PROSECUTED UNDER A CONSPIRACY THEORY FOR SL TARGET
CRIME
EVEN THOUGH CONSPIRACY IS A SPECIFIC INTENT CRIMENO SCIENTER REQUIRED
FOR
ACTOR, ONLY ACTUS REUS
IF YOU HAVE AN ATTENDANT CIRCUMSTANCE FOR A CRIME, IT IS THE SAME AS THE MENS
REA FOR
THE UNDERLYING CRIME

Pinkerton v US (conspiracy as vicarious liabilityPINKERTON LIABILITYD in jail while bro

acted)

53
 D agreed to conspiracy and did not withdraw, even though he didnt know his brother was
carrying out
the conspiracy, liable for his brothers acts bc did not withdraw
RULE: AGREEMENT IS THE FORMATION OF CRIMINAL INTENT
+
OVERT ACT OF ANY CO-CONSPIRATOR IN FURTHERANCE OF THE CONSPIRACY
THAT IS A
FORESEEABLE CONSEQUENCE OF THE UNLAWFUL AGREEMENT,
CONSPIRATORS
LIABLE
a party to a conspiracy is liable for any criminal act committed by a co-conspirator if it is
within the scope
of the conspiracy OR it is a foreseeable consequence of the unlawful agreement
(vicarious liability if in furtherance of conspiracy)

CO-CONSPIRATORS VICARIOUSLY LIABLE FOR CRIMES OF OTHER CONSPIRATORS

IF
(1) the co-conspirator is a party to the conspiracy
(2) the conspiracy is ongoing (not terminated)
(3) the crime is in furtherance of the conspiracy, AND
(4) the crime is reasonably foreseeable as a result of the conspiracy

US v Jiminez Recio (duration of conspiracyDOES NOT TERMINATE when police defeat object
of conspiracy)
D claims not guilty because he joined the conspiracy AFTER POLICE seized the drugs
Court: CONSPIRACY DOES NOT TERMINATE WHEN POLICE DEFEAT THE OBJECT OF THE
CONSPIRACYYOU ARE STILL DANGEROUS BECAUSE YOU AGREED TO COMMIT
UNLAWFUL
ACTS
conspiracy does not end when object of conspiracy becomes impossible to
complete
the agreement is still a threat to the public due to the likelihood that other
crimes will be
committed
MUST WITHDRAW/ABANDON (or Whartons Rule if applicable)

conspiracy ends when:

-agreed upon acts are completed
-when agreement is abandonment
[disavowal, depending on jurisdiction]

54
SOLICITATION (specific intent crime AND theory of vicarious liability)a crime in every
state

55
*no soliciation occurs if solicitor intends to commit substantive offense himself but requests
assistance of another

*CRIME OF SOLICITATION COMPLETE THE INSTANT THE ACTOR SOLICITS ANOTHERNO NEED
FOR FURTHER
ACT BY SOLICITEE

*VICARIOUS LIABILITY makes solicitor liable for ANY crime the solicitee commitsvicarious
liability
usually treated as lesser offense than crime solicited (like attempt)

IF SOLICITEE COMPLETES CRIME, SOLICITOR FACES ACCOMPLICE LIABILITY, SOLICITATION

MERGES
INTO SUBSTANTIVE CRIME

IF SOLICITEE TAKES ACTION TOWARDS CRIME, SOLICITOR FACES CONSPIRACY OR

ACCOMPLICE
LIABILITY, MERGES INTO ATTEMPT

rationale: get the actor early in the process due to the increased danger of using agents
to commit crime

Doctrinal Structure:
ACTUS REUS: must promote/encourage/hire/request/command another to commit a crime
BROAD
*act complete at time of solicitation, no need for further act by
solicitee
words alone are enough

*will MERGE (see below) if solicitee takes action towards or completes crime

MENS REA: solicitor must intend the solicitee to commit the target crime AND intend the
outcome

CAUSATION: only for solicitee, not for solicitor

DEFENSES: Renunciation
(1) must renounce completely AND voluntarily
AND
(2) must persuade solicitee not to commit offense OR prevent the solicitee
from commiting

*cannot be out of fear of getting caught, to wait for more opportune time,
to transfer
target of the crime, etc. MUST BE VOLUNTARY AND COMPLETE

COMMON LAW
ACTUS REUS
(1) invites, requests, commands, or encourages
*ACT IS COMPLETE THE INSTANT THE ACTOR SOLICITS ANOTHERNO
NEED
FOR FURTHER ACT BY SOLICITEE

56
 MENS REA (dual)
(1) intentionally invites, requests, commands, or encourages another
person to engage in
conduct constituting a crime
AND
(2) must intend that the person solicited commit the target offense

*MUST SUCCESSFULLY communicate solicitation to be guilty of solicitation, however

possible that
if unsuccessful communication, could be guilty of attempted solicitation

MPC
ACTUS REUS
(1) with such purpose he commands encourages, or requests another
person to
engage in conduct that would constitute the crime, an attempt to
commit it, or
would establish the other persons complicity in its commission or
attempted commission

MENS REA
(1) Ds purpose is to promote or facilitate the commission of a substantive
offense

*DO NOT NEED SUCCESSFUL communication of solicitationeven if unsuccessful,

guilty of solicit.

*MPC grades solicitation at the same level as the target offense

Use of Innocent Agents

majority rule: solicitor NOT liable if he uses an innocent agentdoes not meet mens rea
*GET THEM FOR ATTEMPT IF BARRED BY INNOCENT AGENT RULE

minority rule: solicitor LIABLE even if uses an innocent agent (State v Bush)

Merger Doctrine Applies (no longer prosecute on solicitationm like attempt)

if solicitee COMPLETES crime, solicitation merges into the substantive crime itself as an
accomplice
if solicitee takes STEPS toward committing the crime, solicitation merges into conspiracy
or attempt as
accomplice

People v Quentin (acts NOT SUFFICIENT to constitute solicitation bc NO IDENTIFIABLE TARGET

NY)
MODIFICATION ON ACTUS REUS
STATUTE INTENDED TO ADDRESS SITUATION WHERE A PERSON SOLICITS A SPECIFIC
PERSON TO
DO AN ACT WHICH CONSTITUTES A CRIME
THIS WAS PUBLISHED IN A BROCHURENO IDENTIFIABLE TARGET
it was a call to action to burn draft cards, not intended for any one individual
STATUTE NOT DESIGNED TO COVER A GENERAL SOLICITATION TO A LARGE INDEFINABLE
GROUP
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 takeaway: need an identifiable target of solicitation to meet the elements of solicitation

People v Davis (solicitation STATUTE of GEORIA NOT UNCONSTITUTIONAL, not vague or

overbroad)
(1)Even speech that advocates violating the law is protected, unless the speech is
directed to incite or produce imminent lawless action, and the speech is likely to
incite/produce such action
**TEST=clear and present danger test
are the words used in such circumstances and of such nature as to
create
clear and present danger that they will bring about the substantive
evils
which Congress has the right to prevent

commissions of felonies are substantial evils Congress has the right

to prevent

State v Bush (MINORITY jurisdiction re INNOCENT AGENTS, can prosecute solicitor for using
innocent agent)
Montana Minority Jurisdiction
IT IS THE INTENT OF THE SOLICITOR, REGARDLESS OF WHETHER ACTOR IS INNOCENT
AGENT
SOLICITATION OF ANOTHER TO POSSESS DANGEROUS DRUGS

PROPERTY CRIMES
3 traditional forms of theft: Larceny/Larceny by trick, Embezzlement, False Pretenses

possession: sufficient control over the property to use it in a relatively unrestricted manner
possessor has actual or constructive control of the property with the intent to possess
it and has the
right to exclude others from possessing it at that time

custody: physical control over the property, usually for a very short period of time and usually for
limited purpose
(custodians right to use property is restricted)

title: ownership

*bailees is guilty of embezzlement, not larceny, bc has possession entrusted to him

lawfully and did not
take it from victims possession (custody v possession)

*employees guilty of larceny if steals business property (custody v possession)

Larceny (specific intent crime)

every person who shall feloniously steal, take, carry, lead, or drive away the personal
property of another,
or who shall fraudulently appropriate property which has been entrusted to him, or who
shall knowingly
58
 and designedly by any false or fraudulent misrepresentation or pretense, defraud any
other person of money, labor, or real or personal property

(distinct from embezzlement which occurs when the thief obtains lawful possession then
converts it to his
own use)

2 degrees
-grand theftvalue of stolen property greater than $950
-petty theftvalue of stolen property less than $950

Doctrinal Structure
Actus Reus : the trespassory taking and carrying away of the property of another
Mens Rea: intent to deprive owner permanently of property
Attendant Circumstances: personal property belongs to another
Defenses: Claim of Right

ELEMENTS Common Law:

(1) A trespassory (without consent)
(2) Taking and
(3) Carrying away of (asportation)
(4) Personal Property
(5) From the possession of another
(6) with intent to deprive the owner permanently of the property (animus furandi)
and
a. exception to permanent deprivation (People v Davis)has intent to
perm deprive
i. when D intends to sell property back to owner
ii. when D intends to claim a reward for finding the property
iii. D intends to return the property to owner for refund (People v
Davis)
*must intend to steal

CLAIM OF RIGHT DEFENSEbelieves in good faith that he has a right or claim to

the property
negates felonious specific intent required for theft
*also valid defense for accomplice liability (People v Williams)
accomplice must share the specific intent of the perpetrator, and if perp thinks it is
his property, the
accomplice logically also believes it is the perps property and is in good faith
was
helping the perp to get his property back
*generally NOT a defense to a theft that involves violence or threat of violence, ie robbery

Continuing Trespass Doctrine

when a person takes possession of anothers property by trespass (without
consent), every
moment he retains possession of it constitutes a new trespassory taking that
continues until he terminates the possession of the property

59
 purpose: so that if D did not intend to permanently deprive owner of property when
taken, but
later decides to steal it, you can prosecute for larceny bc concurrence
requirement of
intent to steal and taking of property satisfied

IE: if D non-consensually takes As car and intended to return it the next day, but
then decides to
keep car permanently, not guilty of larceny at time of taking (bc no mens rea
to
permanently deprive) BUT under continuing trespass, since the moment he
decided to keep car permanently, each moment thereafter D is committing
the actus reus of larceny anew

Single Larceny Doctrine

if D takes different items from the same general location, doctrine looks to
circumstances of the
offense to determine if D intended to commit multiple offenses or one larceny

*if thefts were part of a continuous act, a single larceny has occurred

CA Consolidated Theft Statute

Every person who shall feloniously steal, take, carry, lead or drive away the personal
property of another,or
who shall fraudulently appropriate property which has been entrusted to him or her,
or who shall knowingly and designedly, by any false or fraudulent representation or
pretense, defraud any other person of money, labor or real or personal property, or
who causes or procures others to report falsely of his or her wealth or mercantile
character and by thus imposing upon any person, obtains credit and thereby
fraudulently gets or obtains possession of money, or property or obtains the labor or
service of another, is guilty of theft

People v Davis (EXCEPTIONS to permanently language in theft statutes: sale, reward,

refund)
D claimed he did not steal because he did not intend to permanently deprive owner
as he was
looking to take and return to store for cash
Court: 3 exceptions to permanent deprivation, STILL HAVE intent to perm deprive
owner
(1) when D intends to sell property back to owner
(2) when D intends to claim a reward for finding the property
(3) D intends to return the property to owner for refund
STILL GUILTY OF LARCENYHAD INTENT TO PERMANENTLY DEPRIVE via creating a
substantial risk of permanent loss

Larceny by Trick = a type of larceny, NOT a separate crime

When thief obtains POSSESSION of property through lies or deceptionseemingly by
consent until
felonious intent discovered
requires intent to defraud
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 DISTINCT FROM FALSE PRETENSES
false pretenses is obtaining title or ownership of property thru false
pretenses
*owner intends to transfer title/ownership and possession
*victim thinks he is giving D title forever
larceny by trick is obtaining possession of property thru lies or trickery
*owner intends to keep title/ownership, transfer possess.
* victim does not know he is giving D possession forever

ELEMENTS of Larceny by Trick:

(1) taking possession of the property of another
(2) by knowingly making false representations as to material facts or making false
promises
(deceit)
(3) with an intent to permanently deprive the owner of the property

*larceny v larceny by trick

larceny: trespass or lack of consent by the initial possessor to part with possession of an
item
larceny by trick: apparent or ostensible consent vitiated by the fraud or trick

61
Robbery (specific intent crime)
62
 the felonious taking of personal property in the possession of another, from his person or
immediate
presence, and against his will, accomplished by means of force or fear
*essentially an aggravated form of theft: use of force or fear to disposess the victim
of property

fear=sufficient fear to cause victim to comply with the unlawful demand for his property
can be inferred from circumstances, no need for direct proof of fear
intimidation of victim equates with fear

(aggravated robbery: armed robbery, if dangerous or deadly weapon used in robbery)

Doctrinal Structure
Actus Reus

Mens Rea: specific intent to deprive the victim of the property permanently

ELEMENTS Common Law:

(1) trespassory taking and
(2) carrying away of
(3) the property of another
(4) with the intent to deprive the other of it permanently or for a substantial period
of time
(5) by the use of force or threat of immediate force, and
(6) the taking must be from the person or presence of the victim

CA Robbery Statute
(1) Felonious taking
(2) of personal property
(3) in the possession of another
(4) from his person or immediate presence
(5) against his will
(6) by means of force or fear

CLAIM OF RIGHT DEFENSEbelieves in good faith that he has a right or claim to

the property
negates felonious specific intent required for robbery

63
64
False Pretenses (specific intent crime)
every person who shall knowingly and designedly, by any false or fraudulent
misrepresentation or
pretense, defraud any other person of money, labor, or real or personal property

D knowingly misrepresents present or past fact which induces the victim to give D title to
the property
requires intent to defraud

DOES NOT APPLY TO:

-opinions, seller puffery
-MISREPRESENTATIONS REGARDING FUTURE CONDUCT (only present conduct)

*DISTINCT from larceny by trick:

false pretenses is obtaining title or ownership of property thru false
pretenses
*owner intends to transfer title/ownership and possession
*victim thinks he is giving D title forever
larceny by trick is obtaining possession of property thru lies or trickery
*owner intends to keep title/ownership, transfer possess.
* victim does not know he is giving D possession forever

ELEMENTS Common Law:

(1) a false statement of fact that
(2) causes the victim
(3) to pass title to the Defendant
(4) D must know the statement is false and
(5) thereby intend to defraud the victim

Embezzlement (specific intent crime)

every person who shall fraudulently appropriate property which has been entrusted to
him

fraudulent appropriation of property by a person to whom it has been entrusted

OBTAINS POSSESSION LAWFULLY AND THEN CONVERTS THE PROPERTY (STEALS IT) to his
own use
(distinct from larceny which occurs when thief takes property from anothers
possession but is
not given possession by that person)

*intent to restore property to owner is usually NOT a defense

ELEMENTS Common Law Embezzlement

(1) Intentional conversion of
(2) the property of another
(3) by someone who is already in lawful possession of it (by someone it has been
entrusted to)

IE: bank teller pockets cash from teller drawer

65
 NOT larceny bc did not take money out of possession of another person

conversion: an act that seriously interferes with the owners ability to use that property
-using something up
-selling it/ giving it away
-using it as collateral for a loan
- delivering it to someone not entitled to it
-inflicting serious damage to it

66
Burglary (specific intent crime)
Doctrinal Structure:
Actus Reus: entering a dwelling
Mens Rea: intent to commit a felony therein
Attendant Circumstances: dwelling of another

*burglary complete even if felony not committed once insideNO NEED TO TAKE
ANYTHING
(possessory interest of physical dwelling is breached once penetrated, no need to
dispossess)

ELEMENTS Modern Law Burglary

(1) Entering
(2) Dwelling
(3) With intent to commit a felony

Old Common Law:

(1) breaking (2) entering (3) dwelling (4) of another
(5) at nighttime (6) with intent to commit a felony therein

People v Davis (passing a check into a slot DOES NOT COUNT AS ENTRY for purposes of
burglary)
D PASSED A CHECK INTO SLOT TO CASH A FALSE CHECK
Court: cannot define enter so broadly
MUST BE PHYSICAL PENETRATION OF DWELLING THAT THREATENS OWNERSHIP (body,
tools, etc)

People v Salemme (issue in Burglary is NOT DANGER, it is INTENT TO COMMIT FELONY)

D claimed he did not act dangerously and so should not be guilty of burglary
Court: the issue is whether D had an intent to commit a felony once insidecourt found he
did

Receiving Stolen Property

generally, those who receive stolen property with knowledge that it was stolen and with
intent to deprive
the owner of the property

ELEMENTS of Receiving Stolen Property

(1) receiving or concealing
(2) stolen property
(3) with the knowledge the property was stolen and (ATTENDANT
CIRCUMSTANCES)
(4) with intent to deprive the owner of it

67
Arson
(1) the burning
(2) of the real property
(3) of another
(4) without consent or with unlawful intent

Assault (specific intent crime of committing a battery)

68
RAPEgeneral intent crime
Traditional CL Def: unlawful sexual intercourse with a woman without her consent with
force, fear or
fraud

Doctrinal Structure
ACTUS REUS: specified sexual acts, done by force, fear, fraud

MENS REA: culpable disregard for victims non-consent (NEGLIGENCE)

(*some jurisdictions have ruled Ds reasonable mistake of fact re non-
consent
is not a defense, effectively making rape an SL crime)

ATTENDANT CIRCUMSTANCES: victim did not consent

DEFENSES: Mistake of Fact (re D did not know he didnt have consent)
*not all jurisdictions

California: not a defense UNLESS substantial evidence of

equivocal conduct
on part of V which would have led D to reasonably and in
good faith
believe consent existed where it did not

[Insanity]

[Intoxication (ONLY IF IT induced insanity)]

VARIES FROM JURISDICTION TO JURISDICTION

Basic Traditional Elements:
(1) lack of consent
(2) done by force or threat, fear or fraud
(3) victim resistance

69
 Modern Definition:
(1) specified sexual act or acts
(2) victim non-consent AND
(3) proof of Ds culpable disregard for victims non-consent

Modern Doctrine
(1) Lack of Consent
(2) Elimination/relaxation of resistance requirement
(3) Elimination/relaxation of physical force requirement
(4) Emphasis on Ds culpable disregard for victims non-consent
-sufficient notice of non-consent = FORCE REQUIREMENT
-Ds negligence in regards to non-consent = NO FORCE REQUIREMENT

2 Approaches for Proving Ds Culpable Disregard of Vs Non-Consent (dep. on

jurisdiction)
(1) proof that D used extrinsic force to accomplish the sexual act majority
OR
(2) proof that D proceeded with the sexual act under circumstances that
demonstrate at least
negligent disregard for the victims non-consent minority

2 Approaches for Assessing Vs Non-Consent

majority: burden of proof re non-consent on VICTIM

victim must have communicated unwillingness to D
NON-CONSENT CANNOT BE PROVEN FROM SILENCE

minority: consent = an affirmative and freely willed agreement

Extrinsic Force Requirementmost jurisdictions

ALL JURISIDICTIONS WITH THIS RULE REQUIRE PROSECUTION TO PROVE D HAD

SUFFICIENT
NOTICE OF VICTIMS NON-CONSENT SO THAT PROCEEDING WITH ACT
DEMONSTRATES
CULPABLE DISREGARD FOR VICTIMS SEXUAL AUTONOMY

IN MOST JURISDICTIONS, DS CULPABILITY DEPENDS OF PROOF THAT D USED

EXTRINSIC FORCE
OR THREAT OF SUCH FORCE TO ACCOMPLISH THE ACT

*meaning of extrinsic force varies from jurisdiction to jurisdiction

GENERALLY: accomplished sexual act through violence, physical coercion
or threat

most jurisdictions: Ds culpability depends on proof that D used extrinsic force or

threats of such

70
 force to accomplish act
NOT ENOUGH D COMMITED ACT WITHOUT VICTIMS CONSENT

other jurisdictions: force requirement means just Ds movements needed to

accomplish sexual act

few jurisdictions: have eliminated the word force from their statutes
it is enough that D used the force necessary to accomplish the sexual act

NO Extrinsic Force RequirementCalifornia

how do you determine Ds culpability re non-consent?

majority: require some form of notice of non-consent so as to prove Ds negligence

as to
the non-consent

BURDEN OF PRODUCTION ON D so treated like mistake of fact

CA Force:
prosecution need only show D used physical force of a degree sufficient to
support a finding
that the act of sexual intercourse was against the will of the victim People
v Griffin

Fraud in Rape

Fraud in INDUCEMENT: law treats it like intercourse was CONSENSUAL if V tricked or

deceived
into having intercourse knowingly

IE posed as a celebrity, induces prostitute to have sex for counterfeit $, says

sex will
cure a disease, etc.

Fraud in FACTUM: CONSENT INVALID if V is unaware she consented to act of sexual

intercourse
as a result of fraud

IE patient signs consent form allowing surgeon to insert instrument in vagina

while
under anesthesia, instrument is penis, surgeon guilty of rape

CA Rape Statute
(a) Rape is an act of sexual intercourse accomplished with a person not the spouse
of the
perpetrator, under any of the following circumstances:

71
 (1) Where a person is incapable, because of a mental disorder or
developmental or physical
disability, of giving legal consent, and this is known or reasonably
should be known to the person committing the act

(2) Where it is accomplished against a persons will by means of force,

violence, duress, or
menace, or fear of immediate and unlawful bodily injury on the person
of another

(3) Where a person is prevented from resisting by any intoxicating or

anesthetic substance,
or any controlled substance, and this condition was known, or
reasonably should
have been known by the accused.

(4) Where a person is at the time unconscious of the nature of the act, and
this is known to
the accused. As used in this paragraph, unconscious of the nature of
the act means
incapable of resisting because the victim meets one of the following
conditions:

(a) Was unconscious or asleep;

(b) Was not aware, knowing, perceiving, or cognizant that the act
occurred
(c)Was not aware, knowing, perceiving or cognizant of the essential
characteristics
of the act due to the perpetrators fraud in fact
(d) was not aware, knowing or perceiving, or cognizant of the essential
characteristics of the act due to the perpetrators fraudulent
representation
that the sexual penetration served a professional purpose when
it served no professional purpose

(5) Where a person submits under the belief that the person committing the
act is the
victims spouse, and this belief is induced by an artifice, pretence, or
concealment practice by the accused, with intent to induce the belief

(6) Where the act is accomplished against the victims will by threatening to
retaliate in the
future against the victim or any other person, and there is a reasonable
possibility that the perpetrator will execute the threat. As used in this
paragraph, threaten to retaliate means a threat to kidnap or falsely
imprison, or to inflict extreme pain, serious bodily injury or death

consent = positive cooperation in the act or attitude pursuant to an exercise of free

will
THE PERSON MUST ACT FREELY AND VOLUNTARILY and have knowledge of
the nature
of the act or transaction involved

72
 A CURRENT or PREVIOUS dating or marital relationship SHALL NOT BE
SUFFICIENT to
constitute consent where consent is at issue

force = the prosecution need only show the defendant used physical force of a
degree sufficient to
support a finding that the act of sexual intercourse was against the will of the
victim

CA Rape of Spouse Statute

(a) Rape of a person who is the spouse of the perpetrator is an act of sexual
intercourse
accomplished under any of the following circumstances:

(1) Where it is accomplished against a persons will by means of force,

violence, duress,
menace, or fear of immediate and unlawful bodily injury on the person
of another

State in Interest of MTS (FORCE REQUIRED IN RAPE is enough so as to COMPLETE act of

PENETRATION)
17 year old penetrates 15 year old while she was asleep, she wakes up and slaps himno
force evidence
NJ Sexual Assault Statute:
commission of sexual penetration with another person with the use of physical
force or coercion
physical force requirement = AS MUCH FORCE AS IS NEEDED TO COMPLETE THE ACT
OF PENETRATION

Brown v State (victim must USE EVERY PHYSICAL POWER TO RESIST rape)
D convicted of rape, asserts only that V tried to escape, did not try to resist physically
victim DID NOT PUT UP THE UTMOST RESISTANCE
absence of consent is not enough
NO EVIDENCE OF PHYSICAL RESISTANCEno marks on D of signs of struggle
-she said let her go, she screamed
-no other verbal protests
-tried to escape, but retreat is not the same as resistance
very harsh, later decisions rejected this decision, in 1905

People v Barnes (rape must be committed AGAINST VS WILL BY MEANS OF FORCE OR FEAR OF
INJURY)
D convicted of rape, no proof V resisted or that D used force to overcome her resistance
REJECTION OF PROOF OF RESISTANCE requirement in 1966
now only need the crime to be committed against victims will and by means of
force or fear of
immediate and unlawful bodily injury
(some can be paralyzed with fear, others its too dangerous to resist)
LACK OF RESISTANCE DOES NOT CONSTITUTE CONSENT
Resistance now used as evidence to evaluate whether D reasonably/honestly believed he
had consent

73
DEFENSES
Justification: was D justified in doing what he did?
indicates Ds conduct was morally good/socially desirable/or not wrongful
outcome (harm) of Ds conduct is proper

Excuse: Should D be excused for what he did?

MISTAKE OF FACT: evidence of mental state or defense to certain offenses, p. 243

Valid Defense if it negates the mens rea of an offense (unless mens rea is SL)

IE:
-whether gun was loaded
-mistake about who owned the laptop taken by D in theft case

MPC Sect. 2.04 Ignorance or Mistake p. 247

(1) Ignorance or mistake as to a matter of fact or law IS A DEFENSE IF:
(a) the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or
negligence required to establish a material element of the offense; OR
(b) the law provides that the state of mind established by such ignorance or mistake
constitutes a defense

**mistake DOES NOT HAVE TO BE REASONABLE if the mens rea of the offense is
purposely or knowingly

STEPS OF ANALYSIS:
(1) Does the MOF relate to an element of the offense as to which mens rea is
required?
AND, if so,
(2) Does the MOF negate the mens rea? IF YES, CAN ASSERT MOF DEFENSE
(unless SL offense)

Mens Rea Purpose, Knowledge, Mistake is honest, valid defense

Reckless (objective)
Mens Rea Negligent (subjective) Mistake is honest AND reasonable, valid
defense
Strict Liability NO mistake is valid defense
*bc no mens rea to negate with SL crimes,
legally irrelevant

74
Common Law MOF
General Intent Crimes:
-MOF must negate general intent mens rea element of the offense
IE unauthorized use of anothers car: MOF that she had consent of owner negates
mens rea

Specific Intent Crimes

-MOF must negate specific intent mens rea element of the offense
IE Larceny: MOF that property was abandoned negates mens rea bc did not intend
to steal

75
MISTAKE OF LAW (generally not a valid defense, but there are exceptions)

Generally NOT a defense, BUT THERE ARE EXCEPTIONS

mistakes about specialized legal knowledge, matters that lie beyond the knowledge of most lay
persons

IGNORANCE OF THE LAW IS NO EXCUSE (GENERALLY) MPC 2.02(9)

rationale: the law is definite, so any mistake is inherently unreasonable
also if it were a defense, we would be concerned about inviting fraud bc very hard
to disprove
also it encourages people to learn about the law

THERE ARE EXCEPTIONSIF NEGATE MENS REA REQUIREMENT

mistakes about specialized legal knowledge, matters that lie beyond the knowledge of most lay
persons

MPC Provisions Sect. 2.04 (p. 247)

(1) ignorance or mistake as to the matter of fact or law is a defense if
(a) the ignorance or mistake negatives the purpose, knowledge, belief,
recklessness, or negligence
required to establish a material element of the offense, OR
(b) the law provides that the state of mind established by such ignorance or mistake
constitutes a
defense

-status of a divorce decree in bigamy case

-tax law IE willfully failing to file tax return: if you dont know you were supposed to file,
negates
specific intent (willfully = knowing you need to but not doing it anyway)
-moving out of apt, taking floor boards believing he had legal right to do soactually
legally belonged
to landlordpurposely, knowingly, recklessly destroying property of another but
MOL of who
owned floorboards negated mens rea
-failing to register as ex felon with police: if you didnt know that was a requirement, lack
knowledge of law
76
 negates mens rea
-if statute provides knowingly using X in an unlawful manner not knowing it was illegal is
valid MOL

4 valid MOL defenses: MPC 2.04, p. 265 (MUST NEGATE MENS REA
REQUIREMENT OF CRIME)
(1) mistakes about mens rea (mistake of specialized legal knowledge that negates mens
rea) Regina v Smith
(2) if knowledge that prohibited conduct is unlawful is an element of the crime rare
(3) reasonable reliance on official statement of law later changed/deemed invalid rare
(4) inadequate publication of the law rare

*unlike MOF, MOL DOES NOT HAVE TO BE REASONABLE TO BE VALIDONLY NEEDS TO NEGATE
MENS REA

STEPS OF ANALYSIS
(1) Identify attendant circumstances
(2) Does D require specific knowledge regarding the attendant
circumstances?
(3) Identify Mens Rea required in the statute
(4) Does D lack the mens rea? IF YES, CAN ASSERT MOL DEFENSE

People v Rypinski 1990, p. 248 (acquitted of shooting friend bc mistake of fact re bullets
loaded in his rifle)
A person is not relieved of criminal liability for conduct because he engages in such
conduct under a
mistaken belief of fact UNLESS
(a) such factual mistake negatives the culpable mental state required for the
commission of an
offense NY PENAL LAW
MOF AND INTOXICATION NEGATED MENS REA HERE
D DID NOT KNOW THE RUFLE WAS LOADED (shot his friend in the knee)
ACQUITTED OF RECKLESS ASSAULT 2ND DEG. BC LACK OF KNOWLEDGE NEGATED MENS
REA
A person is guilty of assault in the second degree when:
(4) He recklessly causes serious physical injury to another person by
means of a deadly weapon or a dangerous instrument NY PENAL LAW

United States v Baker 1986, p. 255 (D claimed to not know its crime to sell fake Rolexes-NO
MOF defense)
anyone who intentionally traffics or attempts to traffic in goods or services and
knowingly uses a
counterfeit mark on or in connection with such goods and services

77
 (bold = mental elements, underline = non-mental elements)

*D: MOL BECAUSE HE DIDNT KNOW IT WAS ILLEGAL TO SELL FAKE WATCHES
*COURT: KNOWLEDGE IS NOT AN ELEMENT OF THE CRIME OF SELLING WATCHES, NO MOL
DEFENSE

Regina v Smith 1973, p. 267 (YES MOL defense to Criminal Damage Act 1971)
a person who without lawful excuse destroys or damages any property belonging to
another intending to
destroy or damage any such property or being reckless as to whether any such
property would be
destroyed, shall be guilty of an offense
(bold = mental elements, underlined = non-mental elements)

*D: MOL BECAUSE HE DIDNT KNOW IT WASNT HIS PROPERTY

*COURT: KNOWLEDGE IS A REQUIRED ELEMENT OF THE CRIME, YES MOL DEFENSE

Specific Intent: when definition of crime refers to intent/purpose to do some further/future

act or consequence
beyond the conduct or result that constitutes the actus reus of the crime
General Intent: when the definition of crime is only of the description of a particular actno
intent or purpose
to do some future act or achieve some further consequence beyond the conduct or result
that constitutes
the actus reus of the crime
*actor can be convicted upon proof of any lesser mens rea (knowingly, recklessly,
negligently)

People v Sally Mistook p. 297 (burglary specific intent, trespass general intent, abandon
fridge strict liability)

Burglary: every person who enters any building or part of a building at night with intent to
commit grand
or petit larceny or any felony is guilty of burglary

Trespass: every person who willfully commits a trespass by any of the following is guilty
of a
misdemeanor:
(a) entering and occupying real property or structures of any kind without the
consent of the
owner, the owners guest, or the person in lawful possession

Abandoned Refrigerators: every person who discards or leaves in any place accessible to
children any
refrigerator, having a capacity of one and one-half cubic feet or more, which is no
longer in use, and
which has not had the door removed or the hinges and such portion of the latch
mechanism
removed to prevent latching or locking of the door is guilty of an infraction (MINOR
OFFENSE)
NECESSITYJustification
*Choice between 2 evils

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 *triggered when actor engages in what would otherwise be a crime to order to avoid a
greater harm
*MUST SHOW THE EVIL CHOSEN WAS GREATER THAN THE OTHER EVIL

DOES NOT APPLY TO HOMICIDE

*traditionally used in situations where necessity is borne out of FORCES OF NATURE, and Ds
action is in interest
of the general welfare (as opposed to duress = human forces)

rationale for necessity defense: public policythe law ought to promote the achievement
of higher
values at the expense of lesser values, and sometimes the greater good for society
will be
accomplished by violating the literal language of the criminal law

ELEMENTS of Necessity
(1) D must be faced with clear and imminent danger
(2) D must reasonably expect that his action will be effective in abating the danger
he seeks to avoid
(3) there must be no effective legal way to avert the harm
(4) the harm that D will cause by violating law must be less serious that the harm
he seeks to avoid
(5) the legislature must not have precluded the particular choice of evils defense
that D is seeking
(some enumerate crimes that are not eligible for necessity defense, ie
homicide)
(6) D must have clean hands (not have wrongfully placed himself in the situation)

Limitations
-some states limit necessity to emergencies created by natural forces (exclude
human forces)
-some states limit to protections of persons or property only
-DOES NOT APPLY TO HOMICIDE CASES (use self defense/imperfect self defense
instead)

Nelson v State (necessity defense not recognizedSTOLE EQUIPMENT TO FREE CARnot

proportional harm)
D claimed the car would tip over if he didnt free it, and it was cold
BUT Ds friend slept in the car, so threat of tip-over NOT IMMINENT
PROPORTIONALITY (4) ISSUE
THE HARM D CAUSED BY STEALING AND DAMAGING EXPENSIVE EQUIPMENT WAS
NOT
PROPORTIONAL TO THE HARM AVOIDEDCOST OF DAMAGE CAUSED MUCH
GREATER

People v Lovercamp (2 INMATES ESCAPE because threatened with rape by other inmates)
met all 6 elements of DURESS
ADDED ELEMENT for prison escapees:
Must turn themselves into authorities immediately upon escape
(here, they were immediately apprehended, so immaterial in this case)

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80
SELF-DEFENSEJustification
person is justified in using deadly force against another if (a) he is not the aggressor and
(b) he reasonably
believes that such force is necessary to repel the imminent use of unlawful deadly
force by the other
person

(deadly force = force likely to cause or intended to cause death or serious bodily harm)
*aggressor may not use deadly force in self defense UNLESS regained the right of SD, see
below

BURDEN OF PRODUCTION PRETRIAL ON D

ELEMENTS Common Law

D MUST:
(1)(a) Actually and
(b) Reasonably believe that he faces a threat that is (objective standard)
(2)(a) Imminent and
(b) Unlawful and that (of death or serious bodily injury)
(c) the force used in response was necessary/proportional to the threat
(when deadly force)

*if person acted with reasonable belief that emergency existed and there were no
alternatives available,
sufficient EVEN IF BELIEFS ARE MISTAKENobjective reasonable man test

*NO DUTY TO RETREAT

Retreat Rule (MINORITY jurisdictions)

MAY NOT use deadly force to repel an unlawful threat of deadly force if that person
is aware of
a safe avenue of retreat from the threat

duty activated the moment D sees and reasonably believes he is threatened

IF D DOES NOT FIRST RETREAT, CANNOT ASSERT SELF DEFENSE

APPLIES TO:
(1) an innocent party facing a deadly threat (if you are at fault, does not
apply)
(2) outside the home and (cannot be inside your home)
(3) when innocent party wishes to use deadly force in response to threat

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 MAJORITY DO NOT REQUIRE RETREAT RULES

Castle Exceptionsome jurisdictions

removes duty to retreat when intruder in your home
can use deadly force against intruder
MUST
(1) reasonably believe intruder intends to inflict serious bodily harm or death
(2) must not have provoked intrusion
(3) must not have provoked threat or use of deadly force

Last Wrongdoer Rule (some jurisdictionsin response to Initial Aggressor Rule

rejections)
ASK: Was Ds use of force an honest and reasonable defensive response to the
victims wrongful
escalation of the conflict to the level of deadly force?

Initial Aggressor Rule (some jurisdictionsother jurisdictions have last wrongdoer rule)
Once D starts a violent conflict, he remains an aggressor (AND CANNOT ASSERT
SELF DEFENSE)
UNLESS D takes some significant and usually dramatic action to restore Self
Defense rights
= renunciation of aggression with BOTH words and deeds
= withdraws from the conflict

*if no withdrawal of D from conflict, cannot assert self defense EVEN IF other
party
wrongfully escalated the conflict from non-deadly to deadly force

**very harsh rule when there are 2 wrongdoerssome states instead have
last wrongdoer
rule to avoid this harshness

Florida Stand Your Ground StatuteNO DUTY TO RETREAT, legislature rejects

A person who is not engaged in an unlawful activity and who is attacked in any
place where he has a right to be has no duty to retreat and has the right to stand
his or her ground and meet force with force, including deadly force if he or she
reasonably believes it is necessary to prevent death or great bodily harm to himself
or another or to prevent the commission of a forcible felony

Defense of Others

majority rule: intervenor may use deadly/non deadly force to the extent that such
force
reasonably appears to the intervenor to be justified in defense of the 3rd
party

minority rule: intervenor may only use force to defend a 3rd party if the 3rd party
would in fact haven been justified in using force in self defense, and
force that is proportional to the
threat
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 MPC
A person is generally justified in using force upon another person if he believes that
such force is
immediately necessary to protect himself against the exercise of unlawful
force by the other
individual on the present occasion

*NO REASONABLENESS STANDARDindividualized standard (if D believes such

force necessary)

People v Goetz (REJECTION of MPC subjective standardINDIVIDUALIZED STANDARD RE

REASONABLE BELIEF)
D killed 3 on subway, then the last 1, thought he was going to be robbed, had been robbed
before
NY
Court rejects the completely subjective test of the MPC in determining whether self
defense appropriate (MPC = no reasonableness standard, only if D believed it
necessary to defend himself with force)
Court thinks MPC standard allows anyone to justify self defensetoo subjective
HERE, INDIVIDUALIZED STANDARD: (mix of MPC and Common Law objective test)
A REASONABLE PERSON, GIVEN DS PRIOR EXPERIENCES, IN DS SHOES
WOULD A REASONABLE PERSON HAVE FOUND USE OF DEADLY FORCE
NECESSARY?

State v Norman (D convicted of involuntary manslaughter because THREAT WAS NOT

IMMINENT)
D suffered 20 years of abuse and continuing fear at hands of her husband
D killed him while he was sleeping
COURT REFUSED SELF DEFENSE INSTRUCTION
He was sleeping, THREAT WAS NOT IMMINENT
D HAD OTHER ALTERNATIVES OTHER THAN KILLING HIM
Test of Imminence: objective individualized reasonable person test

DURESS/COERCIONExcuse
where extrinsic circumstances compel a person to perform unlawful acts he does not wish
to commit
but was forced to in response to threat of death or great bodily harm

DOES NOT APPLY TO HOMICIDE

*traditionally used in situations where duress is borne out of HUMAN ACTION, and Ds action does
not promote
general welfare (as opposed to necessity defense = natural forces)

rationale: no reason to impose criminal sanctions against someone who committed

unlawful acts
which anyone else given the circumstances would have also committed
ACTOR MUST CHOOSE BETWEEN THE RISK THE WRONDOER WILL CARRY OUT
THREAT AND
COMMITTING THE CRIME HE IS BEING FORCED TO DO

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 ELEMENTS of Duress
(1) when another person has threatened to kill or seriously injure D or a 3rd party
(2) D reasonably believed the threat was genuine
(3) the treat was imminent at the time of Ds criminal act
(4) there was no reasonable escape from threat except through compliance with
coercers demands
(5) D was not at fault for finding himself in the coercive situation
(6) DOES NOT APPLY TO HOMICIDE

People v Lovercamp (SEE NECESSITY ABOVE, BUT IT WAS REALLY MORE A CASE OF DURESS)

US v Contento-Pachon (D SMUGGLED DRUGS INTO US to avoid his and his familys death)
Court allowed DURESS instruction, NOT necessity instruction
necessity is for general welfare interests and forces of nature, not applicable here
CAN ASSERT DURESS WHEN UNDER FUTURE THREAT OF HARM IF CANNOT ESCAPE
SITUATION
issue for court regarding Duress: was the threat immediate, and was D lacking in an
opportunity to escape?
*avenue of escape must be reasonable: was not reasonable to flee with family:
would need to pack
up belongings, quit job, travel beyond reaches of drug traffickers
*immediate here = force of threats continued to restrain him until off the flight
and refusal to
comply = immediate death of him and his family

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INSANITYExcuse--focuses on Ds condition at the time of the offense
rationale: those who lack mental capacity to conform to strictures of the law should not
be held criminally
responsible for their conduct

BURDEN OF PRODUCTION PRETRIAL ON D

MPC American Law Institute TEST:

(1) if as a result of mental disease or defect:

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 (2) D lacks substantial capacity to appreciate wrongfulness/criminality of his
conduct
OR
(2) lacks capacity to conform his conduct to requirements of the law

CA TEST (from 2009 prop 8before this test was MNaughten from 1982-2008, now again
like
MNaughten)
(1) D is incapable of knowing or understanding the nature or quality of his act
OR
(2) D is incapable of distinguishing right from wrong
(3) at the time of the commission of the offense

COMMON LAW MNAUGHTEN TEST

At the time of commission,
(1) D had a mental disease or defect, AND (see tests below for mental
disease/defect)
(2) D was incapable of knowing or understanding the nature and quality of his act
OR
(3) D did not know that what he was doing was wrong
AKA incapable of distinguishing right from wrong (legal or moral) at the time
of
commission of the offense

Mental Disease or Defect TESTS:

(1) McDonald Test
any abnormal condition of the mind which substantially affects
mental or
emotional processes and substantially impairs behavior
controls

THINGS COURTS LOOK TO:

-does the condition have clear symptoms?
-do medical and scientific communities support
recognition of the
condition as a criminal defense?
-is it a condition defendants are likely to bring upon
themselves?
-is the condition easily feigned?
-are there policy reasons to exclude/include this condition
as a
disease?

(2) APA Test

those severely abnormal mental conditions that grossly and
demonstrably
impair a persons perception or understanding of reality
and that
are not attributable primarily to the voluntary ingestion of
alcohol or other psychoactive substances

*courts usually EXCLUDE disorders whose primary effects are on Ds

desires,
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 judgment and conduct; INCLUDE those that distort Ds reality
perception and thought processes

problems with MNaughen test (People v Drew):

-exclusive focus on cognitive capacity of D, which is often unrelated to Ds
illness or crime
-attempts to relieve punishment of only those who have NO cognitive
capacity
BUT there are degrees of impairment/awareness, gray not black and
white
can know nature and quality and wrongfulness, but commit anyway bc
of disease
*does not address situation where D understands actions but cannot control
behavior

corrective measures of MPC test:

adds volitional requirement to test and more variation regarding capacity so
that it
is not an all-or-nothing proposition like in MNaughten test

*WHEN INSANITY JOINED WITH OTHER PLEAS:

-FIRST tried as if only the other pleas enteredAND presumed to be sane
-THEN if found guilty, OR if insanity plea is the only plea entered, question of
whether D
sane/insane is tried
-IF INSANE: judge determines if D has regained sanity
-if STILL INSANE: committed to institution

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INTOXICATIONExcuse
EVALUATED AT TIME OFFENSE COMMITTED
common law treats it as an affirmative defense

NEVER A FULL DEFENSE FOR VOLUNTARY HOMICIDE

*2 distinct defenses
(1) voluntary intoxication
CANNOT BE ASSERTED FOR GENERAL INTENT CRIME (People v Register)
ONLY ASSERTABLE FOR SPECIFIC INTENT CRIMES TO NEGATE SPECIFIC INTENT
MENS REA
*D must show he did not have specific intent required for commission of crime due
to intoxication
D MUST ARGUE WHY INTOXICATION SHOULD ELIMINATE CRIMINAL LIABILITY

*some jurisdictions have eliminated voluntary intoxication defense altogether

MPC: may be used to negate mens rea of PURPOSE OR KNOWLEDGE BUT NOT
RECKLESSNESS OR
NEGLIGENCE

(2) involuntary intoxication

CAN BE ASSERTED TO NEGATE BOTH GENERAL AND SPECIFIC INTENT
CRIMES
general intent negation: negates intent to do physical action that constitutes
the crime
specific intent negation: negates intent to bring about result of the crime

People v Register (NO VOLUNTARY INTOXICATION defense when GENERAL INTENT CRIME)
*CANNOT USE INTOXICATION DEFENSE WHEN CRIME IS 2ND DEGREE
UNINTENTIONAL MURDER
BECAUSE IT IS A GENERAL INTENT CRIME
*CANNOT USE VOLUNTARY INTOXICATION DEFENSE WHEN MENS REA ELEMENT
OF CRIME IS
RECKLESSNESS

because it is in itself reckless to get so intoxicated, so it cannot negate the mens rea of
recklessness
THEREFORE D GUILTY OF 2ND DEGREE UNINTENTIONAL HOMICIDE (depraved heart
murder, mens rea
is reckless)

DIMINISHED CAPACITYExcuse
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*lack of capacity to entertain required mental state for the crime
*not a true affirmative defenseaffects evaluation of whether prosecution has proved the
requisite mens rea
EVALUATED AT TIME OFFENSE COMMITTED

INCOMPETENCE
*lack of ability to understand the legal proceedings and assist in his own defense
*can arise at many points during criminal case
EVALUATED DURING CRIMINAL PROCEEDINGS
lack of competence bars prosecution while D incompetent
court can delay or suspend criminal proceedings
resume proceedings if D regains competence

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ETC
MORAL CONDEMNATION OF THE COMMUNITY
PUNISHMENT IS JUSTIFIED BY COMMUNITY CONDEMNATION

Burden of Proof
(1) BURDEN OF PRODUCTION
-burden of producing evidence
-P: burden of producing evidence re the elements of the crime charged
-D: burden of producing evidence re the affirmative defenses
*must show that a jury could reasonably find X
*effect is that the issue has been properly raised to try upon

(2) BURDEN OF PERSUASION

-burden of persuading the factfinder re the issue
-P: burden beyond a reasonable doubt as to every element of the crime
charged
-D: (usually) burden to prove defense (although ct can assign burden to P)
-very high: beyond a reasonable doubt
-somewhat high: clear and convincing evidence
-low: preponderance of the evidence

Discretion in Criminal Case (p. 1-19)

Police control first portal: whether and how to investigate (incl. minimal or extensive
investigation)
-influences: police policy, legal boundaries, info available about case, social/cultural
perceptions, gravity of
harm, criminal history of the accused, policy resources
-If police decide case warrants prosecution, they contact prosecutors office Prosecutors
control second
portal: the charging of a crime (rules, standards, and statues govern this discretion)
-influences: limited time and resources, changes in political/social dynamics, new research,
education or

90
 info
-turn to statutes to determine if the law is applicable to particular cases (federal, state,
and local)
-if conduct involved violated criminal law + merits prosecution, jurisdictions
charging procedures

Charging procedures (constraint placed on prosecutorial discrimination)

(1) grand jurycitizens of community determine whether prosecutor can file charges
(federal/some
states)
(2) prosecutorial charging + preliminary hearingprosecutor alone charges, court can
review decision
**probable cause standard to charge

Arraignment: formally labeled D, determines if D has counsel, informs D of charges, D enters

plea, free/held until
trial

Plea Negotiations: 90%+ state and 95% federal convictions are pleas of guiltydont go to trial
get early guilty
plea for lighter sentences than might be assigned if D pushes case through system

Discovery: P and sometimes D provide info about case to opposing sidedisclose exculpatory
info (favorable to D)

Trial: 5-10% cases go to trial

-motions, jury selection (voir dire), swearing in of jurors, P opening statement, P evidence
(direct and cross
examination), P exhibits, D opening (or after P opening), D rebuttal evidence, P
closing argument),
jury deliberation, verdict (conviction: beyond a reasonable doubthighest legal
standard)

Sentencing (2 types of schemes) and Probation

(1) determinatebase term and limited ranges to increase or decrease at judges
discretion
(2) indeterminateminimum sentence but range, can be released early on parole (ie
25yrs-life)

Purpose of Punishment (p. 31-32)

2 Broad Theories
(1) Utilitarianism
-foundation: people are hedonistic and seek to augment pleasure and avoid
pain
people are rational and capable of calculating/weighing their
conduct
therefore they will decide whether punishment is worth potential
gain
-object of law is to augment societal happinessextract as much
unhappiness/pain

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 -crime and punishment are both evils because they both result in pain to
indiv and society
-PAIN OF PUNISHMENT UNDESIRABLE UNLESS LIKELY TO PREVENT
MORE PAIN
IN THE FUTURE THAN IT INFLICTS BY PUNISHMENT
-purpose is to prevent future crime, not to punish prior wrongdoing
-forms:
-general and specific deterrence
-rehabilitation

(2) Retribution
-foundation: wrongdoing creates moral disequilibrium in society
wrongdoer receives benefits of others obeying the law but he
does not do so
proportional punishment restores equilibrium: pays his debt
-humans possess free will, and it is a choice to commit wrongs, so
punishment justified
-PAIN OF PUNISHMENT UNDESIRABLE UNLESS PERSON HAS FREELY
CHOSEN
TO COMMIT AN OFFENSE (PUNISH WRONG IF PERSON LACKS FREE
CHOICE)
-purpose: to punish the wrongdoing itself, regardless of future prevention
-forms: retribution

Deterrencefuture-orientedsequentialist+utilitarianmake punishment useful to society

reduce crime
General: frightening other potential offenders to not offendbecomes a lesson to others
Specific: frighten guilty person for re-offending
Incapacitationfuture-orientedsequentialist+utilitarianmake punishment useful to society
reduce crime
deprive individual of ability or opportunity to commit further crimedenies offender the
choice
*upon release, special deterrence effect begins and hopefully he will not re-offend
Rehabilitationfuture-orientedsequentialist+utilitarianmake punishment useful to society
reduce crime
prevent crime by changing criminal so he no longer desires to commit crime
Retributionretrospective-orientedconcerned with criminals blameworthinessno
advancement to collective
welfare of societypunish criminal because they deserve itan eye for an eye
Denunciationexpress publicly societys disapproval of blameworthy conductconcerned with
blameworthiness
of criminal, but also utilitarianeducate society and reinforce norms reflected in common
law

Dudley v Stephens 1884, p. 532 (marooned, cannibalism, defense of necessity not valid when
you kill people)
NECESSITY DEFENSE CANNOT BE INVOKED IN HOMICIDE
Court: more important to preserve the integrity of life than to preserve your own
Killing of Parker not justified, Ds may have survived 4 more days until rescue without
eating Parker
Sentence commuted, was death penalty, speaks to denunciation

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United States v Bergman, 1976, p. 34 (Rabbi defrauded govt, court decided appropriate
types of punishment)
RETRIBUTION, DENUNCIATION, GENERAL DETERRENCE
Court gave Rabbi 4 months in prisonthis was a premeditated crime, court does not want
to make
exceptions for privileged offenders
D argued for behavioral sanction ie community service, volunteer work
court: that would not be a punishment as Rabbi would be doing what he does for a
living as punish.
Rabbi has free will, chose to commit the crime

93