Criminal Law Outline *Once a D is engaged in an activity that is criminally and morally culpable, Ds mistake as to the details of the

crime is likely to be irrelevant -Danger invites rescue

Punishment
Purposes of Punishment The four purposes of punishment are: (1) retribution (2) deterrence (3) rehabilitation and (4) incapacitation. Retribution deserves to be punished, revenge, debt to society, send a message o Criticism (1) inflicts pain when it cant be shown that it will promote the greater good (2) legitimizes revenge (3) based on emotion (4) punish those forced to commit crimes Deterrence utilitarian purpose to deter D (specific) or others (general) to commit future crimes o Criticism criminals dont weight costs/benefit, spontaneous/emotional crimes, punishing one to benefit another Rehabilitation - correct criminal behavior o Criticism (1) wrong use of resources (2) society may not know whats best (3) assume criminals are sick and can be cured Incapacitation jail or death to prevent from causing future harm o Criticism (1) costly (2) ineffective in reducing recidivism (3) crimes may persist in prison Legality Legality is the principle of requiring conduct specifically prohibited before punishable serves to provide the following: (1) notice of what is unlawful (2) confine police discretion (3) prevent judges and jury creating of new crimes (4) criminal law is prospective Over-criminalization due to absence of legality (1) unused laws engender disrespect for laws (2) limited police/prosecutorial resources diverted to wrong cases (3) invasion of peoples personal privacy (4) increased possibility of discriminatory enforcement of laws

Elements of a Crime
Actus Rea AR requires a voluntary positive act of ones own volition. Regarding omissions, there is generally no duty to help, however, X created a peril. Xs positive act may be stretched as soon as _peril_. In addition, X has a duty to rescue. There are no indications of his actions after ____, but he certainly could have called for help. Voluntary acts include everything non-involuntary, brain engaged, habits and possession o Involuntary acts are never blameworthy (A) reflex or convulsion (B) movement during unconscious sleep (C) hypnosis (D) movement not a product of the actor Omissions or failing to perform act physically capable o General rule no duty to help unless (A) statutory duties (B) status relationships (C) contractual care (D) voluntarily assumed care (E) creating anothers peril Creation of peril must analyze (1) stretching out actus reus (2) duty to rescue every injury that doesnt result in instant death = omission to save o Defenses lack of knowledge of relationship, risk of harm to oneself Words alone treason, solicitation, conspiracy, aiding and abetting *Possession voluntary act in acquiring, omission act by not removing it

Mens Rea (Intent) The MPC developed the following set of terms to define the culpability/mental state required for different types of crimes: (A) purposely (B) knowingly (C) recklessly (D) negligently Purposely specific intent, goal or aim to cause the act, highest level of punishment Knowingly specific intent, virtually certain conduct will cause harmful result

o Includes willful blindness: dont take step confirming risk Recklessly general intent, consciously disregard substantial and unjustifiable risk, D realized risk o Minimal level required for most crimes, purpose of punishment Negligently D should have been aware of risk, danger invites rescue Strict Liability no mens rea Determine material elements requiring mens rea (1) language of statute (2) legislative history (3) public policy Prove kind of mens rea (1) motive (2) Ds statements (3) Ds actions

Strict Liability A strict liability crime is one that does not require a mens rea. Strict liability is determined by the language of the statute, legislative history and public policy. Strict Liability indicia include public welfare offenses, regulatory offenses, no mens rea language, high volume cases and small penalties. Determine if S/L 1) language of statute 2) legislative history 3) public policy and other indicators Indicia: 1) public welfare offenses 2) regulatory crimes 3) high volume cases 4) small penalties 5) no mens rea language Rationale: Deters immoral conduct, protect certain classes of victims, ease prosecutions burden Defenses: argue no actus rea, good faith defense regarding 1st amendment rights, entrapment Criticism purpose of punishment based on showing culpable intent, bad luck principle, punishing for things people did not know (no retribution) Vicarious liability strict liability for another persons criminal acts w/out showing D has culpable mens rea Defenses Mistake of fact is a defense if negates mens rea for material element, mistake need not be reasonable. What you need to know is what makes your conduct wrong. Material elements depend on the harm or evil the offense is designed to protect, what you need to know is what makes your conduct wrong Jurisdictional elements depend on, in order listed, on 1) language of statute, 2) legislative history, and 3) policy/common sense 4) in common law morally wrong approach, one is strictly liable for greater crime (lesser for MPC), if there is a jurisdictional element then in common law it is unlikely a specific intent crime Mistake of law mistake or ignorance of law is generally not a defense, disagreement is never a defense but disagreement serves as evidence of mens rea, misreading (of a nonmaterial element) is not a defense Exceptions: o Liparota - Negates material element, mistake need not be reasonable o MPC Estoppel theories reasonable reliance on official misstatement of the law, judicial decision, administrative order, official interpretations o Lambert defense, requires 1) no notice, 2) regulatory offense 3) omission, duty based on status Cultural defense no defense, may be given sympathy (or harshness) at sentencing

Homicide
Homicide is the unlawful killing of another Murder 1 Murder 1 requires: malice and premeditation. Premeditation requires D kill with cool, deliberate thought. D acting cold-bloodedly are more dangerous, more deserving of punishment, possibly more easily deterred because they considered their acts before killing Carroll standard requires purpose and premeditation, any cool moment of deliberation (no time is too short) Guthrie/Anderson standard requires purpose and preconceived design, which looks at 1) planning, 2) motive and 3) manner of killing.

Murder 2

Murder 2 requires malice and is the dumping ground when there is not enough evidence for premeditation or HOP. Malice is the intent to kill, the intent to cause gross bodily harm or gross recklessness. Malice: 1) intent to kill 2) intent to cause GBH 3) gross recklessness implied malice 4) felony-murder o Intent to kill may be inferred from Ds actions, statements, circumstances of the case o Gross reckless for M2 requires a conscious disregard of a substantial/unjustifiable risk and the conduct to be gross (magnitude of harm must outweigh the social utility). Unjustifiable risk and Magnitude of harm (type and likelihood of harm) must outweigh Social utility of conduct (benefit, cost alternatives). The state would argue magnitude and risk of harm high. Alternatively, D may argue_____ magnitude and risk of harm was low. State would argue the social utility was less than the magnitude of harm to be considered gross. On the other hand, X would assert the opposite. The cost of alternatives was high. If X consciously disregarded the risk and his action was gross, he is liable for murder 2 under gross recklessness. If he consciously disregarded the risk and his action is not gross, he may be liable for IM.

Voluntary Manslaughter Voluntary manslaughter is the killing without malice of another human being. VM requires 1) actual heat of passion 2) legally adequate provocation 3) inadequate cooling time. Under the common law approach, D must show: (1) actual heat of passion (2) legally adequate provocation (3) inadequate cooling time o Legally adequate provocation situations in which reasonable person might be similarly (1) Common law categorical approach (objective): (A) extreme assault/battery (B) mutual combat (C) Ds illegal arrest (D) injury or serious abuse to close relative (E) adultery (2) Reasonable person approach in Ds situation, physical or emotional characteristics (alcoholism, battered women syndrome, senility, race, etc) Camplin RP approach w/phys characteristics provocation viewed from perspective of reasonable person with Ds physical characteristics RP w/emotional characteristics provocation viewed from perspective of reasonable person in Ds situation as he believes with his emotions MPC manslaughter requires 1) D subjectively under EED 2) objectively reasonable explanation for EED o Reasonableness determined from one in actors situation as he believes them to be with both physical and mental characteristics o 1) no provocation necessary 2) no cooling time limit 3) very subjective approach o Insufficient cooling time jury must determine by considering: 1) long-smoldering 2) rekindling

Involuntary Manslaughter Involuntary manslaughter requires: 1) unintentional 2) homicide Mere Recklessness IM can be proved if D had a conscious disregard of substantial/unjustifiable risk o Magnitude of harm outweighs the social utility Gross negligence IM can be proved if (1) D or RP in his situation should have known the risk (2) conduct was gross o Determine GN: (1) how serious risk (2) foreseeability of harm (3) why D involved in risk (4) other reasons Ds negligent conduct should not be punished, social utility MPC (negligent homicide) failure to appreciate risk of death which actor should be aware, extreme indifference to value of human life Dangerous instrumentality doctrine one who causes death while negligently operating a dangerous instrument (gun, knife, care, fireworks, dog) is automatically guilty of IM Contributory negligence not a defense (even if victim negligent, D can still be guilty of manslaughter)

Felony Murder (*use after apply traditional intent approach) Felony murder is a substitute for the mens rea or malice in a murder charge and requires: 1) D committed an independent felony 2) Death occurred during the course of the felony 3) death occurred in furtherance of the felony. The limitations on felony murder rule are 1) felony must be inherently dangerous 2) must be an independent felony. Must prove D committed felony (AR felony + causation) o Burglary, arson, robbery, kidnapping, rape, mayhem qualify under M1 o All other qualifying felonies are under M2 1) Inherently dangerous felony FM2 - only dangerous felonies qualify!!! o Abstract (Phillips) CA approach High probability of death during commission of felony? o As committed Was this felony dangerous as committed? 2) Independent Felony FM2 (Merger Doctrine) felony must have separate or independent purpose than to just kill or cause gbh. FM doesnt apply when elements of felony are the same as murder (merges) o Require malice? If yes, then doesnt require felony murder doctrine (merges) Assault with deadly weapon, manslaughter o Separate purpose? If yes, then apply felony murder 3) During the course of the felony All FM (Timing begins at planning and ends at escape) 4) In furtherance of the felony unpredictable actions by co-felon not in furtherance does not result in FM o Who was the killer/who caused the death/who was the victim o Agency Theory only liable for deaths by co-felons o Proximate Cause (shield cases)- felon responsibly for any death proximately resulting from unlawful activity, even from third persons (i.e. cop shoots bystander) Deaths are natural and foreseeable result Death of co-felon (jx) justifiable (no crime) vs. felony murder (hes a human) o Provocative Act/Vicarious Liability Doctrine (technically not FM) co-felon is liable for making atmosphere of malice, used where 3rd party does shooting o D argue not in furtherance: death was not necessary because felony would have happened anyway o P argue in furtherance: death needed to happen or else victim could have helped stop felony Policy: o Rationale: 1) retribution because they are up to no good 2) want felons to be extra careful 3) deter persons from committing felony because of risk of death o Criticism: 1) legal fiction does not realize risk 2) all felonies are no longer punishable by death 3) bad luck principle 4) if want to deter, increase penalty for all felonies

Misdemeanor-manslaughter rule (unlawful act doctrine) Death occurring during the commission of a non-felony is a involuntary manslaughter. The limitations on the rule is 1) dangerousness 2) malum per se wrong because prohibited 3) proximately related Must prove D committed misdemeanor (AR + MR) Discuss strict liability if misdemeanor strict liability crime

Causation
Causation Causation requires actual (but for) and proximate (legal) cause. The act was a direct cause of the death. But for ____ X would not have died. The death was foreseeable because ____. (1) Actual cause Were defendants acts a link in the chain of causation? (2) Proximate cause Was the harm foreseeable? (3) Intervening acts Should any intervening acts excuse D from responsibility of harm? Consider punishment: Are Ds acts sufficiently culpable to deserve punishment? Was harm sufficiently foreseeable so punishing D will deter him and others? Actual but for Cause Actual cause is established if the defendants acts form a link in chain of causation leading to the harmful result. Ds acts need not be the only or last cause. But for ________ P would not have died. In concurrent cause cases where theres more than 1 actor, accelerating the result is considered actual cause

Proximate and Legal Cause Proximate cause looks at foreseeability and intervening acts. It requires the defendants acts to be a sufficiently direct cause of the harm. It is foreseeable that abc. Alternatively, it may not be foreseeable that abc. Proximate cause also looks at intervening acts. intervening act may/may not be foreseeable To test proximate cause, courts can use the following factors: (1) Foreseeability and (2) how to treat intervening acts o (1) Foreseeability - The harm must be foreseeable, but not the manner of harm (except when engaging in socially useful conduct as in Warner-Lamber/gum factory explosion case) Transferred Intent intent transfers to victim who is harmed Additional harm if D intend to harm one, but harms multiple more seriously, D responsible for more serious harm committed Vulnerability of victim D need not foresee victims peculiar frailties or vulnerabilities o (2) Intervening acts may break chain of causation (unforeseeable superseding/independent vs concurrent) Intervening Acts (superseding intervening act) Intervening acts look at foreseeability and control and policy to determine if an act breaks the chain of causation thereby making it unjust to punish D. Argue foreseeability + control and policy o Foreseeable objective, what could have been foreseen. If intervening act foreseeable it is unlikely to be superseding act unless its sufficiently related to Ds acts o Control and policy who had control over act + who do we want to hold responsible (blame) Talk about purposes of punishment Superseding or Independent intervening act= breaks chain of causation Unforeseen freak acts of nature break link Intervening disease contracted by victim dont usually break the chain of causation (foreseeable) Acts by another: o Victim Acts can break link if victim had free will unless induced Involuntary acts of victim (escape, response to Ds wrongful acts) does not break Refusal of treatment does not break link Condition does not break link (eggshell, even if treatment refused) o Medical care rare disease from treatment can break link Intentional maltreatment/Gross negligence break link o Additional perpetrators unrelated may be independent intervening acts Multiple perpetrators if either D act sufficient to cause death, both responsible under acceleration theory, some courts hold 1 D responsible for attempt and other for murder. o Complementary human action (joint enterprise) mutual encouragement, Russian roulette, drag racers generally do not break link Concurrent causes (jx) all Ds who jointly participated are responsible, other courts hold only D who most directly caused result to be responsible

Attempt
Attempt/Inchoate Crime Attempt is an inchoate crime that punishes a defendant for trying to commit a crime before it causes a harmful result. For a charge of attempt, the prosecution must prove: 1) Mens Rea: purpose to commit completed offense 2) Actus Reus (1) MR Common Law purpose (specific intent) for purposes of punishment, want to make sure D had intent since no harm o Some jx only need mens rea for material elements (other jx require for all elements) o MPC Ds purpose or belief (purpose/knowingly) that he/she will cause a prohibited act is sufficient i.e. Not Guilty for Attempted felony murder/IM o Some courts allow attempted S/L crimes: D does not need to have purpose to commit the crime (attempted felony murder, attempted statutory rape)

Attempted felony-murder: felony murder treated as partial strict liability crime and they waive the intent requirement. D acts in a way that can kill a person during commission of the predicate felony (2) AR tests: o First step test not used except in poison cases. Ds first step toward committing a crime o Last Step/Eagleton Test (common law): D took last step and external forces prevent result, too late to abandon (gun jams) o Dangerous Proximity/Holmes Test (California) Prosecution focus on how much D physically done and how physically close to completing crime Defense looks at how much left to be done Look at (1) how many steps D taken (2) how much more action required (3) why harm never occurred (4) amount harm likely to result (5) seriousness of prospective harm (6) appropriateness of law enforcement interference with Ds acts o Equivocality test Res Ipsa Loquitor Ds acts viewed in abstract to determine whether they show unequivocal intent to commit crime o MPC Substantial test strongly corroborative of intent: guilty if indispensable element is completed Dangerous proximity test + equivocality test Punishment Policy: There should not be punishment until evidence shows Ds clear purpose to cause harmful result and demonstrates Ds actions toward fulfilling goal o Majority attempt carries lesser punishment (rationale: equal punishment eliminates incentive to abandon criminal act, over-criminalization if full) Counter: accident is the reason killing did not happen o Federal/MPC full punishment (rationale: D who attempts a crime has the same mental state as one who intends the same amount of harm as one who is successful)

Defenses to Attempt The following are defenses to attempt: (1) abandonment (2) MPC renunciation (3) impossibility (1) Abandonment Common law doesnt recognize as defense. Guilty once D took enough steps o Must be complete and voluntary abandoned effort o Not voluntary if (a) fear of getting caught (b) waiting for better time to commit crime (2) MPC renunciation Modern laws and MPC recognize renunciation (abandonment) as defense o Require: (1) Complete renunciation (2) abandon before crime complete (3) voluntary renunciation Impossibility (Unexpected factual or legal circumstances prevent D from committing the crime) There are three types of impossibilities that applies when D completed the last step but circumstances prevented the crime: (1) legal (2) factual (3) MPC approach. Legal impossibility Defense under CL when D try to violate a law but no law exists (Legally impossible to pick an empty pocket/Nothing illegal about) o Mistake of Law No defense Factual impossibility No Defense, unexpected factual circumstance prevents crime (If facts were as actor believed, then D would be guilty) o Mistake of fact is a defense if it negates mens rea someone who doesnt want to commit a crime MPC 5.01 approach: If circumstances were as D believed to be (purpose), would there be a crime? If yes, then guilty of attempt o Mitigation MPC 5.05 if little or no chance of public danger

Solicitation (inchoate crime) Solicitation requires the following elements: (1) Any command, request or encouragement to another to commit a crime (2) with the purpose to promote or facilitate the commission of the crime. Actus Reus: can be purely verbal Mens Rea: Specific intent. Must have purpose to promote or facilitate Difference from attempt: (1) attempt require performance of act, usually substantial step (2) solicitation involves 3rd party (3) attempt generally carries heavier sentence Defenses: (1) abandonment (2) renunciation (3) First Amendment, unless D act of solicitation threaten imminent harm

Accomplice Liability
Requirements for Accomplice Liability Accomplice liability is helping someone commit a crime. It is not a separate crime, but a theory of liability for a substantive offense. Since modern law eliminated the common law distinctions, everyone gets the same punishment except accessory after the fact, which gets half. Common Law Principal 1st degree (perpetrator), Principal 2nd degree (aider/abettor/accomplice), accessory before the fact (planner), accessory after fact (helps after crime) Modern Law Eliminates CL distinctions, everyone gets same punishment except accessory after fact (1/2) Actus Rea 1) help does not have to make a difference 2) slightest act of encouragement or assistance, or can be omission if they have the duty to help 4) presence enough if prior agreement to encourage 5) principal does not need to know person is aiding 5) words enough Mens Rea: knowingly help with purpose of having the crime succeed (suspicion, presence not enough unless D agreed to be present to provide moral support or assistance) o Determining purpose: 1) stake in venture 2) nexus or connection showing intent to assist o Dont need to know the things the principal does not need to know (if principal doesnt need to know assaulting federal officer, then person who helps doesnt need to know) o Negligent crimes only require negligence (drag racers) o If different crime committed, need to determine if reasonably foreseeable or natural and probable result (robbing a bank, but robbing the customers instead mens rea enough) o Reckless/Negligent Crimes (IM)- requires (1) purpose to assist principal (2) negligent regarding results MPC accomplice needs same MR as principal to be culpable o S/L Crimes courts split, generally knowledge or purpose required o Reasonably Foreseeable (natural and probable) Doctrine applies if diff crime committed, guilty of any natural/reasonably foreseeable offenses Generally accomplice only responsible for crimes he purposely helps to succeed Failure to protect victim AL may be based upon omission to help when theres legal duty to intervene Relationship between the Liability of the Parties Accomplice and principal liability do not depend upon each other Feigned accomplice person act as accomplice in effort to apprehend principal is not guilty Excused principal accomplice liability does not depend on conviction of principal.

Defenses The defenses to accomplice liability are the following: (1) abandonment/withdrawal and (2) MPC (1) Abandonment/Withdrawal Not a defense at common law. Some jx have statutory defense for those who voluntarily and completely renounce involvement and make efforts to prevent (2) MPC recognize abandonment if D terminate prior to commission by (a) depriving plan of effectiveness or (b) providing sufficient warning to law enforcement to prevent On exam: (1) analyze culpability of principal: AR, MR, Causation (2) accomplice liability - Does not matter that principal (person who committed crime) cannot be prosecuted

Conspiracy (inchoate crime) Elements of Conspiracy Conspiracy is an agreement to commit a crime. It is a separate and inchoate crime that punishes preparatory conduct. The elements sufficient for a conspiracy crime are the following: 1) AR agreement between 2 or more persons to commit a crime 2) MR intend to agree for the purpose to have the crime succeed 3) Overt Ac any legal or illegal act done by any conspirator carried out for the purpose of the conspiracy. Punishes the mere act of agreeing, even if theres no substantial step toward completing the crime AR may be an expressed or implied act showing concerted activity between two or more qualified defendants Qualifications for conspirators: o Gebardi Rule victims dont qualify because the statute is meant to protect them.

Wharton Rule conspiracy does not apply if act requires only two people Bilateral Rule (most jx) CL requires at least 2 common minds (would not apply if you have an undercover agent/police) Concerns: (a) feigned conspirator - conspiracy with informant/undercover (b) acquittal of all coconspirators (c) special defenses for one conspirator (d) no requirement that all conspirators be tried, only requires 2+ o MPC - Unilateral approach as long as D believe conspiring with another, she is guilty whether the other can be convicted or not Prior acts - A person who joins an ongoing conspiracy is responsible for his/her co-conspirators prior acts o No req at common law, just need agreement. Required for modern statutes. Overt act requirement overt act is any legal/illegal act done by any conspirator carried out for the purpose of the conspiracy MR need to prove with evidence of purpose of having crime succeed o MR attendant circumstances only need to know attendant circumstances req for substantive offense (jx elements, assault a fed officer) o Direct evidence of purpose statement or actual agreement o Circumstantial evidence (use to show knowingly purpose) : 1) D has stake in venture 2) D goods/services serve no legitimate use 3) volume of illegitimate business grossly disproportionate to that of legitimate business 4) inflated charges o o

Pinkerton Co-Conspirator Liability A conspirator is automatically guilty of criminal acts of co-conspirators in furtherance of the conspiracy. The conspirator need not do anything to help nor know co-conspirators will commit that crime Conspiracy as a form of Accomplice Liability where conspirator responsible even if dont aid/abet Liability for substantive offenses not retroactive, only starts when you join MPC rejects Pinkerton liability, requires proof of accomplice liability Scope of conspiracy defines Ds potential Pinkerton liability o Kotteakos/Wheel conspiracy conspirator ea working with same middleman. To create rim argue ea individual has vested interest in success of others to keep business alive, so single conspirator responsible for criminal acts of ea person interacting w/common middleman If there are multiple conspiracies, person interacting w/middleman only responsible for her and middlemans acts o Chain conspiracy single conspiracy with different roles. Ea responsible for criminal violations of others on distribution line. Manufacturer cant have goods to sale unless he has distributors, retailors. Retailors dont have anything to sell unless he has middleman/manufacturers/etc. Retailers getting hit for all the big stuff so he can give up the big guys. o Both courts look at whether groups at ea level know of overall scope of conspiracy and benefit from it As long as theres one agreement to be part of the group that sells drugs, can be co-conspirator (all middleman can be responsible) o If the only way the drug retailer to get drugs from the middleman Can have all 3 Accomplice Liability + Co-conspirator Liability + Felony Murder Defenses The following are defenses to conspiracy: (a) abandonment (b) withdrawal from ongoing conspiracy (c) MPC approach (d) renunciation Avoid Co-C liability: o Abandonment/Withdraw CL & MPC - 1) full, voluntary renunciation 2) notify co-c or law enforcement Still liable for previous offenses Avoid Conspiracy Charge; MPC renunciation 1) full, voluntary renunciation 2) must notify co-c or police 3) must thwart success of conspiracy

Defenses
Defenses Justifications and excuses are two types of affirmative defenses recognized by criminal law. The justification affirmative defenses are self-defense, defense of others and necessity. The excuse affirmative defenses are insanity, diminished capacity and intoxication. (A) Justification (did the right thing) A justification defense recognizes that even though D caused some harm, given the particular situation, D made the socially correct choice. Justification defenses include: 1) self-defense 2) defense of others 3) defense of property 4) necessity/choice of evils Internal structure: (1) triggering condition requiring D to act (b) necessity element giving D no choice but to act (c) proportionality requirement (1) Self-defense Self-defense is a justified defense allowing defense when one is under unlawful attack. Self-defense requires: 1) D honest sub and reasonable semi-obj fear 2) of death or sbh 3) imminent threat 4) no excessive force 5) D not initial aggressor 6) in some jx, D has duty to retreat before using deadly force (1) Honest and reasonable fear: (does not need to be right) o CL Reasonable person in Ds situation (semi-obj) consider: (a) physical attributes of D and assailant (b) Ds prior experiences race, culture (c) circumstances of attack - physical movements and comments o MPC (subj): Look at whether D believed force was necessary - Common law require fear of death/gbh to use deadly force - Some allow deadly force against BARKRM/inherently dangerous o Imperfect Self- Defense (a) If honest but unreasonable fear, mitigates M VM, or (b) if honest and reasonable but done with negligent actions in responding MIM o Look at motives to see if dishonest (subjective) o Battered spouses syndrome: because of abuse cycles, kill attacker when vulnerable rather than waiting for another attack, requires experts to determine if reasonable/imminent - Criticism: challenges to research underlying theory of syndrome and concerns the defense institutionalizes negative stereotypes of women as helpless victims (2) Death/SBH (CL) strictly requires fear of death/sbh to use deadly force o MPC/Some jx : Serious Felony BARKRM or inherently dangerous (3) perceived threat of imminent harm o 3 standards: D believed (MPC sub) l---------(R.P Modern CL)----------l Here/Now (obj C/L) o Modern CL RP argue whats reasonable (D wants to consider experience, P wants most objective) o Rationale of imminence: alternatives usually available if not imminent harm. (4) No excessive force, proportional response o MPC: Deadly force allowed when protecting against BARKRM o No pre-emptive strikes: rather have that person go get help (5) Initial aggressor loses right to use deadly force but can use non-deadly force o Argue both ways on who escalated the violence o Reclaim right to use self-defense by communicating intent to withdraw and attempting to do so in good faith o Instigator vs aggressor (aggressor is the person who raises to level of violence) - Argue both ways, violence can be broadly for the person by swinging crowbar and hitting items (5) No duty to retreat at traditional common law, but many jx added requirements o Retreat Jx: Duty to retreat only when D (1) before using deadly force (2) knows he can reach complete safety o Exceptions: (1) Non-lethal force (2)Castle Rule no duty to retreat when attacked inside own home, argue if outside home (3) statutory exceptions - stand your ground law never have to retreat No self-defense if used in manner youre not entitled to. Charged with crime that only requires negligence or recklessness (IM)

(2) Defense of Another There are two approaches to defense of others 1) reasonable person approach and 2) stand in the shoes approach. First we must analyze if the other person had the right to self-defense. Then, we apply the two approaches. Reasonableness Standard: D may use force to protect another person if D reasonably believe use of force necessary to defend 3rd person from imminent unlawful attack. o As long as you dont act recklessly or negligently, you can have a mistake defense o Rationale: encourages Good Samaritans to help Stand in the shoes: D stands in shoes of person being defended, and defense authorized only if person being defended has right to use defensive force. o Rationale: encouraging people to take law into own hands is dangerous a D must be sure in assessment of situation or take the risk of no defense. (3) Defense of Property Deadly force may not be used solely to defend property Common law, deadly force permissible to prevent any felony MPC: deadly force allowed when (a) person being dispossessed of dwelling (b) intruder committing felony (c) risk of sbh if non-deadly force used Make my day laws: some jx statutes permit force to prevent unlawful entry when occupant reasonably believes trespasser will commit crime and use any force in dwelling

(4) Necessity (Choice of Lesser Evils, Residual Principle of Justification) The necessity defense requires the following common law elements: 1) Ds faces choice of evils/serious harm 2) no apparent legal alternatives [surrender requirement in escape] 3) immediate threat 4) D chooses lesser harm objective RP 5) did not bring upon self 6) no contrary legislation 7) no economic necessity G/R: Under common law, Not allowed for homicide o Except in MPC when sacrificing 1 to save more people Under the MPC (choice of evils), D may engage in criminal conduct to avoid harm if (1) harm avoided greater than harm done, save more lives by sacrificing a few (2) no specific prohibition to use defense (3) no legislative purpose to exclude defense Lesser Harm Objective (Reasonable Person) Standard: jury decides whether D picked lesser evil o Most courts dont allow necessity in homicide cases to avoid fewer lives sacrificed to save more o Lives> property In most jx, euthanasia is unlawful, but if courts recognize a right to die then the defense of euthanasia may be used as necessity D cannot create necessity and then use necessity as excuse to violate law o BUT in MPC: D who created necessity may still assert necessity defense (but can still be prosecuted for negligent offenses) In civil disobedience cases, necessity rarely succeeds since harm isnt imminent and theres other lawful alternatives Necessity is a defense to prison escape, but require escapee surrender upon reaching place of safety (want to know that prison had an alternative to escape and use it vs. making an excuse to escape)

(B) Excuse defense (did wrong thing, but not deserving of punishment) The law recognizes limited excuse defenses where D made the socially wrong choice by engaging in certain conduct, but was either not fully capable of controlling her behavior. Excuse defenses include: (1) duress (2) intoxication (3) insanity (4) diminished capacity (5) infancy (6) consent (7) entrapment (1) Duress/coercion (common law) The common law requirements for duress are the following: 1) threat of present, imminent harm 2) death or sbh 3) against D or close friend/relative later common law 4) reasonable person would yield 5) D did not put self in situation 6) not for homicide Person deprived D of fair opportunity to exercise free will NO IMPERFECT DURESS

Imminent: Dont want anyone who feels threatened to use excuse o Counter-argument: lack of imminence does not mean its not a genuine threat The MPC sliding scale standard requirements for duress are the following: 1) threat of unlawful force 2) against D or any person 3) type of threat cause person of reasonable firmness in Ds situation to yield 4) D not recklessly put self in situation 5) defense available for any crime, including homicide Imminence, closeness to person is a factor in determining reasonableness No economic duress or threat to reputation Reasonable firmness how much of Ds situation should we take into account Sliding standard: greater the crime, the more serious a threat (unlawful force) must be to excuse (2) Intoxication (forming mens rea) Intoxication usually a partial defense (unless involuntary) and is alcohol or drug use that substantially impairs the mind causing prostration of mental faculties, cannot be used for liquid courage since mense rea was already formed. Involuntary and voluntary intoxication are the two types of intoxication excuses. Involuntary Intoxication can be a complete defense and can be: (a) unwitting - did not know (b) coerced/forced (c) pathological voluntary intake medication or alcohol producing unexpected/grossly excessive effect with no way to know Voluntary Intoxication partial defense, if recognized in jx, can drop specific intent crimes general intent MPC if self-induced, no intoxication defense for reckless crime (only use to drop from higher to lower intent) Needs to be intoxicated before forming mens rea of the crime Most jx, excuse only for M1 (purpose) o Minority jx, defense to any crime, including reckless Degree mere intake is insufficient, requires prostration of Ds faculties (INSANITY) Complete defense if prolonged use leads to permanent mental disease or defect Determining specific or general intent (1) how much mens rea (purpose v reckless) (2) historically what it is called (3) there must exist a lesser crime for it to drop down to, presence of a jx element may suggest it is a general intent crime (3) Insanity Excuse Insanity is an excuse and full defense due the Ds diseased state of mind at the time of the crime. D can premeditate, but it comes from a diseased state. Medical illness is a medical term Insanity is a legal concept including any abnormal condition of mind which substantially affects mental or emotional processes and substantially impairs behavior controls. Competency (Dusky Standard) Ds mental state at time of trial tested by ability to 1) consult with attorney 2) rationally understand proceedings against her Tests for Insanity Defense: o Traditional MNaghten test requires proof that: 1) presume D sane 2) D must prove at the time of crime D must have defect/disease of mind such that (a) D didnt know nature or quality of acts OR (b) if D did know acts were wrong based on societys morals. Nature/quality of act: if jury believe D doesnt know act was wrong, should not punish Defect/disease of mind: (a) history of mental problems (b) clear symptoms (c) medical evidence (d) stigmatize - dont want to perpetuate stereotypes (e) is it sincere, how easy to fake (f) cannot bring upon yourself (g) number of people with defect Wrong legally wrong is morally wrong, though can know its legally wrong yet not understand moral basis of it. Look at acts of D after crime Knew crime was wrong apologizing, acting in shock, calling police Didnt realize wrong in daze, still doing weird things, continuing with life like nothing happened o Additional Common Law: Irresistible impulse test volitional standard (CL): few jx, defense if due to mental disease or defect unable to stop self even if police officer present (policeman at elbow test) o hard to verify if you had no control or did not want to control Deific decree exception (CL): defense when (because of a mental disease or defect) D believe God or Supreme Being ordered commission of crime, but knew it was against the law and against societys morals because they did not really have free will

o Society bias that people who hear voices have mental disease or defect o Need to hear voices/command o Durham product rule: few jx, Ds unlawful act was product of mental disease/defect o MPC (more lenient excuse): 1) presume D sane (2) D must prove (a) at the time of crime/act (b) D must have defect/disease of mind (c) lacks substantial capacity to (cognitive) appreciate wrongfulness of conduct OR (volitional) conform his conduct to requirements of law Even if someone knows under MNaghten standard, can be excused under MPC because they lack substantial capacity (schizo would have no excuse under MN but would be an excuse under MPC) Allows partial impairment (as compared to MNaghten where you must never had known) Appreciating wrongfulness understanding beyond superficial knowledge *Did not appreciate the nature and consequences of acts and acted purely from instinct of selfpreservation Policy: (a) person does not know what they are doing or cannot control acts (b) insane should be incapacitated in mental institution without criminal stigma (c) for safety of D and other inmates, better for D institutionalized in civil setting (d) should not punish those without free will Policy against: (a) subject to abuse (b) criminals can feign mental illness (c) experts make determinations based on unscientific/vague standards o Support: (a) grossly overestimate # acquitted under insanity defense (b) those with defense are committed to mental hospitals (c) necessary to guarantee only those morally blameworthy are punished.

Counter Arguments to not Insanity: apply to a lot of people, symptoms not different than stress, no specific name to condition, kind of knows what hes doing, Syndromes 1. Diminished Capacity 2. Insanity 3. Reasonable Person standard (VM and Self-defense) 4. Sentencing 5. Extreme emotional disturbance (manslaughter under MPC) 6. Reasonable explanation for self-defense Syndromes Postpartum psychosis diminished capacity didnt have intent or know (reckless). Manslaughter if defense DID (multiple personality) - Alter other than the host commits the crime wont have the AR (involuntary action) *Not even a person committing AR Germaphobes used as insanity, can be used as necessity/defense of others Capgras not clones Sleep deprivation DC, bring upon yourself!, pre-formed the MR and when tired you were disinhibited and acted on it Sleep walking no volitional, catch 22: to prove sleep walking need history but that could show habit Stockholm syndrome positive emotional attachment to abductors Road Rage PMDD progesterone, treated with medicine, Aspergers syndrome high intelligence problem, does not appreciate wrong. Use physical state instead of mental capacity. (4) Diminished Capacity Diminished capacity is a partial defense that allows D to use expert testimony to show D could not form the mens rea necessary for specific intent crime due to a lower mental status. Drops mens rea lower (i.e. purpose to reckless) 3 Approaches to defense: o (1) Clark - no defense (cannot use expert evidence, but can use observational evidence) o (2) Brawner (majority) jx mitigate specific intent crimes general intent crime EXAM: LOOK AT STATUTES IN FOOTNOTES TO MAKE SURE THERES GENERAL INTENT CRIME TO DROP DOWN TO OR ELSE CANT USE BRAWNER o (3) MPC, allow defense for any crime,

drops specific intent general intent, or general intent no crime Determine specific v. general intent (1) how much mens rea (purpose v reckless) (2) historically what it is called (3) there must exist lesser crime for it to drop down presence of jx element may suggest it is a general intent crime Usually used when D has problem prevailing on insanity defense *Policy concern: Diminished capacity people can get off (acquitted) for reckless crimes without psyc treatment *Pre-formed the Mens Rea and diminished capacity caused you to act on it! o

Rape
Rape is unlawful sex without consent by threat of force, fear or fraud, resistance requirement has been removed, traditionally mistake only needed to be honest (can be oblivious), now reasonable mistake is also required in some courts. Can be deception if you think something else is in you. Mistake as defense common law: honest mistake o Modern: honest and reasonable belief victim consented o Negligent rape if unreasonable mistake Deception some jx recognize use of deception precludes victim from giving valid consent There are different levels or rape as there are different levels of homicide. Statutory rape presumes woman under certain age is incapable of consent o Some jx allow D to use reasonable mistake defense

Death penalty
Constitutional so far. Limited by 8th amendment, which has an evolving standard of decency. Because of evolving standard, the court can pick away at what is no longer constitutional (execution of mentally retarded, minor under 18 at time of crime, crime that was not homicide). Pros retribution for one who takes life to uphold value of life, deter future murders, incapacitation to prevent jail murder, historical Cons if we have sanctity of life then government should not have chance to kill, cheapens value of life, not a proven deterrent and notoriety can encourage murder, life imprisonment equally incapacitates, costs more, cannot correct for errors, potential discrimination (depending on race or location of killing) Higher than 50% error rate Deterrence no credible study supports theory of DP because people want to be celebrity that gets death penalty, Costs: statistics establish its more expensive to execute than to put people in prison for the rest of their life Race: people who killed whites are 4x more likely than people who kill people of color Need to be guilty of M1 with special circumstances. Then jury will have second trial to decide ______. Procedural bifurcated proceedings, only imposed for intentional murders (and felony murders if major participation + reckless indifference to life), must balance aggravating and mitigating circumstances, only allow jurors willing to impose death sentence under proper circumstances Constitutional limitations due process, 8th amendment, cannot use mandatory death sentence, must give standards for jurors, cannot execute minors, insane or mentally retarded criminals, equal protections limitations (this is hard to prove)

Final Exam Review: Drop off practice exam before end of Wednesday Insanity Burden on D Presume Sane Diseased/defect of mind D: paranoia, always been a little odd (less likely faking), says inappropriate things, medical care, under care of psychiatrist Counter: theres a lot of people who are odd, a lot of people who say inappropriate things, a lot of people who act strange and can be easy to fake, psychiatrist never had firm diagnosis, there would be a lot of people affected by this *Did he bring it upon himself by not taking the medication correctly? Mnaghten: 1. does he know the nature and ___ of his acts? 2. does he know that its wrong? 3. irresistible impulse 4. deific command MPC: 1. easier under MPC standard because he has to appreciate its wrong. Lack substantial capacity Diminished capacity Brawner: M1M2 because of mental problems he could not form premeditation Clark: dont get diminished capacity MPC: even if he was charged with IM, or reckless, you could drop it down to no crime if he didnt have enough brain juice to form mens rea Diminished capacity for attempt Purpose: diminished capacity only in MPC because theres no other crime to drop down to (attempt requires purpose) Intoxicaiton AR: drinking beer that reduces effectiveness of medication, involuntary? not being forced to, no one slipping it to him. Voluntary Intoxication: cannot drop down to no crime even in MPC so no intoxication defense Mental problem: MENTION EED!!! Tyson case: drunk driving voluntary manslaughter? Voluntary Manslaughter: HOP/Legally adequate provocation provocation does not need to be from the victim MPC terms Maliciously defaulted to recklessly Specific and general intent only used in intoxication and ____ Common law but for and proximate MPC actual cause and legal cause Conspiracy to do what? Accomplice liability to what? Accomplice liability look at tangential players and the key issues is their purpose. Honest but unreasonable fear = imperfect self-defense and voluntary manslaughter Felony murder look at definition of felony. If definition require prove intent to kill or gross recklessness/malice anyways, dont use it to prove felony murder.

Over-criminalizing Legality strictly designed crimes 1. Actus Reus a. Voluntary b. Omission 2. Mens Rea a. Purposely b. Knowingly c. Recklessly d. Negligent e. Strict Liability 3. Mistake of Fact 4. Mistake of Law 5. Homicide a. Murder 1 b. Murder 2 c. Voluntary Manslaughter d. Involuntary Manslaughter e. Felony Murder f. Unlawful Act Doctrine g. Dangerous Instrumentality Doctrine 6. Causation 7. Attempt a. Mens Rea b. Actus Reus c. Impossibility d. Abandonment 8. Accomplice a. Actus Reus b. Mens Rea c. Reasonably Foreseeable Doctrine d. Abandonment 9. Conspiracy a. Actus Reus b. Qualifications c. Overt Act d. Mens Rea e. Pinkeron Rule f. Scope of Conspiracy g. Abandonment 10. Justification Defenses a. Self Defenses/Imperfect b. Defense of Others/Property c. Necessity 11. Excuse Defenses a. Duress/Imperfect b. Insanity c. Diminished Capacity d. Intoxication e. Entrapment

Procedural Questions: Motion limine: motion made at the start of a trial requesting that the judge rule that certain evidence may not be introduced in trial. This is most common in criminal trials where evidence is subject to constitutional limitations, such as statements made without the Miranda warnings Jury nullification: Jury says dont care what laws are (because they dont want to punish)