Substantive Criminal Law Exam Outline -

Crime – any social harm made punishable by law

 Social harm – negation, endangering or destruction of an individual, group or state interest which was
deemed socially valuable – Dressler
o Conduct crimes – driving under the influence – harmful conduct but harmful result not required
o Result crimes – murder – prohibited result – nature of conduct irrelevant, does not matter how
result occurred
o Attendant circumstances – facts or conditions that must be present during prohibited conduct or
must be part of prohibited result
 What society is willing to say is criminal – moral condemnation
 Criminal law distinguished from civil because of the societal condemnation and stigma that
accompanies the conviction =
 Conviction is expression of jury’s moral outrage
 Social contract theory – in order to be protected by society must abstain from harming others – when
violate then upset moral balance
o Criminals as free riders – getting benefits of society but not burdens
 Malum in se crimes – crimes that are evil/inherently wrongful
 Malum prohibitum crimes – change over time – legislature deems them as crimes/wrong because it is
prohibited
o Can be characterizes as public welfare offense -
Theories of Punishment –
 Constitution – person may not be punished twice for same criminal offense, may not be punished
retroactively, and may not be subject to cruel and unusual punishment
 Retributive – past conduct, punishment for acts already committed
o What actions are morally right, regardless of their ultimate effects on others
o Idea that punishment is justified when it is deserved – punished whether or not its results in a
reduction of crimes – idea of “desert of one’s deeds”
o Based on idea that humans generally possess free will and justly blamed
o Looks backwards and justifies punishment solely on basis of the voluntary commission of the
crime
o Assaultive retribution/public vengeance/societal retaliation – idea of eye for an eye
o Vs. Protective retribution – punishment to secure moral balance in society – prevent free rider
(benefits from system of rules without accepting same burdens)
o Victim vindication – reaffirms victims worth -
o Incapacitation –
o Argument that does not work – good people doing bad things – motivated by need
o Measure of social control – creates an affront to community – upsets moral balance
 Utilitarian/teleological/consequentialist – concerned with future conduct – prevent from doing bad
things in the future
o Actions are morally right if, but only if, they result in desirable consequences
o Purpose of all laws is to maximize net happiness of society
o Idea that humans act hedonistically and rationally (rational calculators) – that when
contemplating criminal activity individual will balance benefits from conduct against its risk
o Stress Deterrence – rational maximization
  Specific – D’s punishment is meant to deter future conduct by D
 Occurs in two ways –
o Incapacitation – imprisonment prevents D from committing crimes
through segregation from society
o Intimidation – D’s punishment reminds him that if he returns to a life of
crime he will experience more pain
 General – D punished to convince the general community to forego criminal conduct in
the future
 D’s punishment teaches what is impermissible, instills fear in punishment
o Rehabilitation – non-classical variety of utilitarianism – reduce future crime by reforming instead
of securing compliance through fear or bad taste of punishment
Origin of Criminal Laws:
 English Common law – system of misdemeanors and felonies
 Penal Codes/criminal statutes – adopted by state legislatures – based upon idea that crimes should be
defined by an institution more representative of those being governed than the judiciary
 ALI – Model Penal Code
 Federal power – Fed. Criminal statutes through the commerce clause
Cases:
 Regina – stranded sailors eat person to stay alive – jury cannot decide if morally wrong
o Judge – guilty – morally superior to chose to die then kill someone
o Example of punishing acts that are malen ense even though intent may not have been evil
o Retributive concept of what actions are morally right
 Suitte – D arrested for unlicensed gun when knew about statute, appeals jail term on basis that nice
person
o Court – Abuse of discretion standard – affirms
 Principle of general deterrence – sends a message – reinforces policy – moral balance
 Trying to use identity to mitigate his punishment
o Dissent – should look at individual not general deterrence – moral culpability
Principles of Criminal Law –
 Legality – first principle of American criminal law jurisprudence
o Idea that a person cannot be punished unless her conduct was defined as criminal by statutes
before she acted
o Prohibition on retroactive criminal lawmaking
o Based upon notions of fair notice – lacks adequate opportunity to conform conduct to the law
and enhances general deterrence
o No judicially created crimes - Must be written – statutory origin –
 **Judge cannot read into statute requirement that is not written
o Ex post facto – article 1 of the Constitution – legislature may not retroactively criminalize what
was an inoocent act at the time of the conduct or apply a stricter sentencing guideline adopted
after the crime was committed
o 3 interrelated corrolaries –
 Criminal statutes should be understandable to reasonable law-abiding persons
 Criminal statutes should be crafted so as not to delegate basic policy matters to
policemen, judges and juries for resolution on an ad hoc and subjective basis
  Rule of lenity - Judicial interpretation of ambiguous statutes should be biased in favor of
the accused, interpreted strictly against the government – Dauray case
 Prevents the court from inadvertently enlarging the scope of a criminal staute
through its interpretive powers
 Rule of lenity strictly construed – only applied when court can make no more tha
a guess as to what Congress intended
 Tie breaker – two equally reasonable interpretations of a statute
 MPC – no rule of lenity – instead statutes should be construed to their fair import
and statute interpreted to further, not frustrate the legislative policies behind the
specific law in question
 Many states have abolished the rule of lenity
 Strict statutory construction – Dauray
o Look to purpose of the statute
o Extent to which the statutory ambiguity was necessary to further the legislative goal
o **Constitutional preservation – if can find a way to preserve statute through reading then do it
but also supposed to give effect to plain meaning
 Impact of statute on protected rights of the individual
 Presumption – of innocence
 Standard of proof – beyond a reasonable doubt
 Burden –
o Of production – produce evidence that supports each element of crime
o Of persuasion – persuade jury to each element of crime and that none of the affirmative defenses
applies
Cases:
 Curley – D charged with mail fraud – appeals on basis that directed verdict should have been granted
because not enough evidence to go to the jury
o Court – Standard – just has to be enough evidence that reasonable minds could defer – if
evidence reasonably permits acquittal or verdict of guilt then decision for the jury
o More lenient standard then used by jury to get the decision in the hands of the jury
 Jeffries Article –
o Principle of legality – must be written –
 Ex post facto – can’t apply crimes retroactively
 No judicial creation of crimes – D would have no notice – no judicial creation of
requirement not in statute
o 2 doctrines –
 Void for vagueness – if does not give notice to average, ordinary citizen then void for
vagueness under due process clause -
 Strict construction in way legislature intended it to be applied
 Dauray – D arrested with 13 pictures of child porn, issue whether meets the statute which requires 3 or
more – D alleges statute is vague
o Court – interpretation
 Plain meaning – at least two different possible readings
 Canons of Construction – judge-made
 Lists and other associated terms
  Statutory structure – statute considered in all its parts to understand the meaning
 Statutory amendment –
 Avoiding absurdity – interpret in such a way as to avoid an absurd result
 Legislative history/intent – Legislature is silent as to their intended meaning
 Lenity – all doubts when reading a criminal statute should be resolved in favor of the
defendant
 Recognition of important liberty interests at stake and Presumption of innocence
 If two competing positions – have to accept the position of the D – statute is so
ambiguous that don’t have fair notice of what is criminal
 Ambiguity is so large that citizens do not have notice of what is criminal

 Presumption that D stays abreast of the law – but also presumption that law gets a fair
reading
 Case stands for proposition that if cannot understand what case stands for then probably
a constitutional violation on the grounds of vagueness
o Dissent – Ambiguity only if court can make no more than a guess as to what Congress intended
Constitutional Limitations on the Power to Punish –
A. Due Process Clause Limitations – statute must give sufficient warning that men may conduct themselves so
as to avoid that which is forbidden
 Void for Vagueness – so over broad it captures behaviors some citizens would believe to be innocent
o No notice – overbroad so fails to give notice of what conduct is criminal
o Unfettered Discretion – behavior is deceptively innocent – wide latitude for law enforcement to
determine when violation
 Statute must establish minimal guidelines to govern law enforcement (Kolender)
 Papachristou – 8 D’s arrested for prowling by night – anti-vagrancy statute
o Court – void for vaguenss
 No notice of what authorizes arrest – no fair warning
 Criminalized behavior that most people would consider innocent – over-breadth
 Unfettered Discretion – too much power to police with no check – really a racial issue
 Police should have reasonable guidelines for checks on their power
o Kolender – requiring ID’s void for vaguesness
o Walking While Black – false positive –being stopped on stereotypes – unfettered discretion
 Morales – city ordinance to prevent gang members from loitering
o Court – void for vagueness – lack of due process
 No notice – over broad – fails to provide notice to ordinary citizen of what type of
conduct is violative - criminalized conduct that is innocent
 Unfettered discretion – no guidelines how to enforce – rules from police department only,
provided absolute discretion to determine which activities constituted loitering – in so
doing could be applied to entirely innocent activity
o Dissent – Scalia – all crimes create some infringement on personal rights – here only a minor
infringement – community made a decision to make it criminal
 Thomas – not vague – elevating rights of gang members over citizens to declare certain
conduct as criminal – facially neutral – loitering not a deeply rooted right essential to
liberty – no fundamental right
B. 8th Amendment Limitations – Cruel & Unusual Punishment
 Two Prongs –
o Type of death – can’t be barbaric – can’t be cruel and unusual
o Excessive –
 Can’t be grossly disproportionate given the severity of the crime
 Objective & Subjective determination
 Objective - 3 Factors:
o Gravity of crime v. harshness of punishment** (really only factor that
matters)
o Inter-state – look at punishment of same crime in other states
o Intra-state – punishment of crimes within same state
 Subjective – whether conduct is so morally culpable that deserving of death
penalty (Justices interpretation)
o Whether capital or non-capital offense –
 If capital – narrow proportion principle
 Non-capital – very likely to defer to the legislature/state except in rare cases (O’Connor)
 Capital Cases –
o Coker – D was in prison for raping and stabbing a women to death and raping another women,
escaped from prison and raped again – given death penalty – appeals as cruel and unusual
punishment
 Court – death penalty is grossly disportional punishment for the crime of rape of an adult
woman
 Applied a strictly retributive conception of proportionality – simply compared the
harm caused by the rape with the penalty of death and found rape does not
compare with murder – rape in the abstract idea
 Look at whether grossly disproportional to the severity of the crime – looked to
history of other states and within the state
 Rape is not so morally depraved a crime that it should be punished with the death
penalty
 Dissent – should be individual not a societal concept – whether this D deserves death
 Issue that no further punishment for escaped convict
 Federalism – state should be making this decision – court’s morality replaces
morality of the people of GA – once decided death penalty is allowed then should
leave state alone
o Furman – standardless discretion in decision to impose capital punishment is cruel and unusual
punishment – result equals MPC with balancing test of mitigating and aggravating factors
 Non-capital cases
o Ewing – D convicted of stealing 3 golf clubs on a wobbler (could be charged as either a
misdemeanor or felony), sentenced to 25 years to life under 3 strikes program
 Court – Does not violate cruel and unusual punishmen
 Standard for disproportionality in non-capital – look at the same factors but deference to
state
 SC will almost always defer to a state legislature’s judgment in non-capital cases
 Legislatures can apply utilitarian factors in setting criminal penalties even if this process
results in retributively disportional sentencing
  Under proportionality analysis only have to rule cruel and unusual when three strikes rule
would be excessive – but rare when balanced with state’s interest and need
 State interest in deterring recividist criminals – regulate to protect citizens
 Scalia – proportionality – notion that punishment should be tied to penological goal of
retribution – no 8th A violation
o Ramirez v. Castro – 3 strikes – convicted of shoplifting on three occasions – convicted of 25
years to life – argues violates cruel and unusual 8th A
 Court – grossly disproportionate – would have had to commit 2d degree murder to kind
this kind of punishment
 Looking at the gravity of the offense and punishment – but still have to look at the
fact that this is an individual – judge moralizing who D is
 Ex: discretion is a powerful tool
 Notion of Discretion –
o Discretion at many levels – prosecutors, judges, jury – at critical junctures
o Police discretion – Papachristou, Butler article – how police make decisions on who seems more
criminal
o Juries – pre-Furman it was the juries deciding who should decide without a standard, and 3
strikes cases as to whether to disqualify previous felony convictions
o Judges – Dauray – discretion as to whether statute was ambiguous; 3 strike cases – Ewing,
Ramirez – using the wobbler factor to interpret conduct as felonies when could have been
misdemeanors
o Prosecutors – initially with indictment, pleas – Ramirez pled to two instead of one
o Dilemma of discretion – necessary but dangerous
C. Equal Protection Clause Limitations –
 States cannot make laws which treat people differently based upon race, religion, place of origin
 Cannot make any laws respecting differences unless you have a compelling governmental interest and
you narrowly tailor your law to meet that interest to do the least amount of harm
 Strict scrutiny – compelling interest and narrowly tailored
o Very difficult to get past scrutiny
o Only applies to racial discrimination that is intentional in recent decades
 Heightened scrutiny – ex: gender – before state can make inferences based on gender have to have an
important gov. object which is secured through the discriminatory means and is substantially related to
achieving that objective – less difficult
 Rational basis – gov. just has to have a legitimate purpose and a reasonable basis for believing the
discrimination will affect that purpose – pretty easy to meet
o Non-intentional discrimination that results in people being treated differently on the basis of their
race
 Cases –
o McClesky – D convicted of armed robbery/killed an officer – given death sentence, but appeals
on basis of Baldus study that disproportionate impact in application of the death penalty to
blacks – alleges violation of 14th and 8th A
 Court – Only purposeful discrimination is actionable
 No evidence here of intent/purpose – disparate impact not enough
 Nature of discretion involved in jury for death penalty makes its impossible –
case-by-case basis –
  Must be claim against an offending body not systemic charges of discrimination
 Where there is discretion allowed by law you have to have clear proof of abuse of
discretion
 Correlation not causation; would have to abandon the entire system; legislative fix
 Formal equality – on its face the rule does not say anything about treating people
different
 Substantive Equality – more black people die for killing white people
 Barnes – Court ignores subconscious, unconscious discrimination influences
o Russell – D challenges MN statute that 3 grams of crack is equivalent to 10 grams of cocaine for
crime and punishment – 14th A
 Court – courts looks at disparate impact not intent
 Facially neutral statute – state argues that amount that tends to indicate a dealer is
smaller for crack then cocaine
 Rational basis under MN standard – requires that distinctions must not be
arbitrary or fanciful but genuine and substantial providing a natural and
reasonable basis
 Classifications must be genuine or relevant, purpose must be one the state can
legitimately achieve
 Rejects anecdotal evidence, no evidence for distinction, illegitimate means
although legitimate purpose – presumes the intent from amount possessed
 MN stricter than federal standard – no rational basis because as applied it was
disproportionally impacting people
 Dissent – facially neutral – majority is out of line with federal statute that rejects
disparate impact with a facially neutral statute
D. Federalism & the Supremacy Clause –
 Constitution preserves authority of states over issues of public health, safety and welfare
 Supremacy clause – constitutionally sound federal law trumps conflicting state law
 OR v. Ashcroft – Dr, pharmacist, terminally ill patients, and state of OR challenge interpretative rule
issued by Ashcroft that physician assisted suicide violates the Controlled Substances Act
o Court – Ashcroft directive is unlawful and unenforceable because it violates the plain language
of the CSA, contravenes Congress’ express legislative intent, and oversteps the bounbs of the
AG’s statutory authority
 Federalism issue – AG may not exercise control over an area of law traditionally reserved
for state authority unless Congressional authorization is clear
 Medical Marijuana – arrests in CA for growing and selling marijuana for medical use
o Court – within the commerce clause for the CSA to prohibit this type of commerce
o Wickard v. Filburn – aggregated effect on economy, can reach through commerce clause
Chapter 3 – The Act Requirement – Acting v. Thinking
 Elements of a crime -
o Actus rea – requirement of a voluntary act (not compelled) that causes the social harm
o Mens rea – requisite intent – guilty mind
o Causation – link b/t the voluntary act and the social harm
o Concurrence b/t mens rea and actus rea – at time of voluntary act the requisite intent needs to
still be there (malice, forethought) – issue whether intentional or reflex
 Actions –
 o Voluntariness is a prerequisite criminal responsibility, it is an element of every criminal offense
o No actus rea unless an act – retributive idea that morally wrong to punish people for their
unacted-upon intentions – voluntary conduct as minimum precondition for punishment
o Actus rea will not apply if compelled by state or government – trapped, compelled, committed
o Act must have been voluntary – otherwise dealing with justifications and excuses for crime
 Voluntariness of the act is usually treated as an implicit element of criminal statutes
o No criminal liability for an omission/failure to act unless person who failed to act had a legal
duty
o Status crimes – punish person because of status rather than conduct – unduly vague, result in
arbitrary enforcement and violate 8th A
o MPC – voluntary act or the omission to perform an act of which he is physically capable
 Bryan Dalton – convicted under pornography law for keeping explicit sex journals
o Court – have to be talking about real children with the pornography law, and here he has not
committed an act
 Wilson v. Mitchell – black boys assaulted a white boy because of his race, sentence enhanced because
of racial intent – claims violates 1st A freedom to be a bigot
o Court – motive is a typical factor in sentencing, when not just abstract thinking but part of
motive to commit the crime then can be considered
 If bigoted nature is part of how you selected your victim and crime then part of motive
and action within the crime and not protected by 1st A and can be used in determining
punishment– can’t just introduce it to argue a bad person inference – has to be part of
motive
A. Situational Offenses
 When government actors cause to you be in the criminal position – issue of voluntariness and intent
 Entrapment, mistake of law, duress
 Martin v. State – D arrested at home, drunk, taken by police to highway and then convicted for being
drunk in public place
o Court – voluntariness is presumed in the statute – only reason he was in that position was
because police put him there
 Government cannot be the impetus for the act
 A broad time frame may have found him guilty because he got drunk voluntarily
 However, court applied narrow time frame looking at whether it was a voluntary
appearance on the highway
 Dressler – issue of volition – acts or events which are a function of habitual familiarity
o Volitional act v. body not the person acting (seizure)
o Voluntary is question of volition – difference b/t intention to do something and a reflex because
of an external stimulus
o Law treats habitual acts as falling on the voluntary side of the continuum/volitional
 Kelman – time-framing issue – depending on what time frame determines whether voluntary act meets
the actus reas
o Newton – shooting in reflex mode – harder to make time-framing
o Decina – court looked at act of getting into the car with knowledge of potential accident, not
actual conduct at time of accident – mens reas when getting into the car not at point of accident
 Barnes – notion of reflex v. intentional
o Two issues –
  Culpability – deciding after the fact whether voluntary by deciding if D was morally
culpable
 Foreseeability – could the D have foreseen the dangers of natural consequences
B. Unconsciousness Defense
 Time-framing –
o Prosecution does not have to prove every act of D was voluntary just that included a voluntary
act
o Voluntariness determined based upon whether court attaches a narrow or broad time-framing
o Court must focus upon the relevant conduct –
 People v. Newton – D convicted of voluntary manslaughter, stopped by police, suspected black panther,
D argues he blacked out after being shot and was unconscious when officer was killed
o Court – competing narratives of what occurred
 Dr. testified that injury could have caused him to lose consciousness
 Unconsciousness is a complete defense to homicide and lower court was in error in not
giving unconsciousness instructions
 No intent or volition if unconscious
 State v. Decina – D had seizure while driving and killed 4 schoolgirls, D was aware of condition,
persisted for 8 years – D argues unconscious defense – charged that knowing he was subject to these
attacks was culpably negligent in operating car
o Court – knew that he was subject to these attacks, knowingly took a chance –
 Critical knowing, voluntary act – knowing of his possibility of a seizure and foreseeable
that something like this could happen
 Voluntary act of driving car with known condition that could create a foreseeable accident
 Actus rea was operation of a vehicle resulting in death – therefore included prior acts
leading up to accident which constituted negligent operation of the car
o Dissent – time-framing issue – knowing in the statute was not understood to refer to voluntary
at prior to driving car
 Issue of culpability – whether it was a reflex or intended act
 If narrow time-framing at time car struck children would be involuntary
 If broad time-framing would look at voluntary act of entering car, turning it on and
driving
C. Omission – Failure to act where one has a legal duty
 A person has no criminal law duty to act to prevent harm to another, even if the person imperiled may
lose her life in the absence of assistance
 D’s omission of a common law
 4 Elements –
o Omission of a common law duty to act
o Where physically capable of performing the act
o Remaining elements of the charged offense must be proven with requisite mens rea
o Voluntary
 5 Situations –
o Special status relationship – parents to child, married couples, masters to servants, etc…Howard
o Contractual obligations – created by implied or express contract - Pestinakas
o Statutory duty – pay taxes, stop at scene of accident, provide food and shelter to children
 o D creates risk of harm to victim – person who wrongfully or innocently places another person or
her property in jeopardy has common law duty to aid
o Voluntarily assumes care of a person in need of help – one who commences assistance of another
in jeopardy has a duty to continue to aid, at least id the subsequent omission would put the victim
in a worse position than if the actor had not initiated help
 Must have knowledge of the facts giving rise to the need for action
 MPC – a person is not guilty of any offense unless his conduct includes a voluntary act or the omission
to perform an act of which he is physically capable
o Liability in 2 circumstances:
 If law defining the offense provides for it
 If the duty to act is otherwise imposed by law – incorporates duties arising under civil
law such as torts or contract law
 People v. Beardsley – D was having an affair with women, she overdosed on drugs, D put her in the
basement and had someone watch her, she died – D argued he had no duty to protect her
o Court – difference b/t moral and legal duty – no legal obligation here
 Voluntary association – example of court making a moral judgment about victim’s action
– her choice to deal with such a man
 Commonwealth v. Howard – parent-child duty – mom convicted of involuntary manslaughter –
boyfriend abused child to death -
o Court – reckless of grossly negligent standard – failure to do something deemed to be reckless
or grossly negligent here –
 Pre-existing duty as parent to protect your child – failure to protect was conscious
disregard
 Motherhood & Crime Article – society places social construction/burden on women to provide for and
protect children and failure to do so is criminal under omission statutes – but in reality often not
practical for women to do something about it
o Unreasonable when women have challenges in regard to their own safety
 Commonwealth v. Pestinikas – D’s agreed in an oral contract to take care of old man, but starved him
and locked him up – claim there was no duty
o Court – would not typically have a legal duty – but there was a duty based on the oral contract
 Omission becomes the substitution for voluntary act – but still have to have the necessary
mens rea
 D’s affirmative steps to prevent medication created mens rea
 Omission plus mens rea if a legal duty = liable
 David Cash – D watched friend sexually assault a 7 year old girl – no duty under the law for D to do
anything – (some states have remedied this through Good Samaritan statutes)
Chapter 4 – The Mens Rea Requirement –
 Broad meaning – morally blameworthy state of mind that precipitates commission of the act that
constitutes the social harm – focus on morally culpable – general notion of moral blameworthiness
 Elemental meaning - defined as the particular mental state provided for in the definition of an offense
 Issue of moral culpability and notion of retribution – who deserves blame and punishment
 Culpability depends on whether D was deemed to have the blameworthy mental states depending on
how defined by statute –
 Gather intent by the circumstantial evidence presented during commission of bad acts – Fugate – intent
from natural and probable consequences
  Barnes – would not want a world in which there were all strict liability offenses – idea of retribution for
intentional acts
 MPC – 4 mens rea
o Purpose – reflects mental state akin to conscious object of modern common law
o Knowledge – actor is aware that it is practically certain that his conduct will cause such a result
o Recklessness – actor consciously disregards a substantial and unjustified risk that the material
element exists or will result from his conduct
 if considering the nature and purpose of the actor’s conduct and the circumstances known
to him, its disregard involves a gross deviation from the standard of conduct that a law-
abiding person would observe in the actor’s situation
o Negligence – if the person should be aware of a substantial and unjustifiable risk that the
material element exists of will result from his conduct
 Difference b/t negligence and reckless – reckless is conscious disregard whereas
negligence is inadvertent
o MPC statutory interpretation of mens rea –
 A single mens rea will be deemed to modify each actus reus element of the offense absent
plain contrary legislative purpose
 If definition of offense if silent regarding a matter of culpability as to a material element
then material element is established if a person acts purposely, knowingly, or recklessly
 Modern Common law –
o Intent defined in two ways:
 Conscious object or purpose to cause a certain result or to engage in certain prohibited
conduct
 Know to a virtual certainty that one’s actions will cause the social harm
 Regina v. Cunningham – D convicted of unlawfully causing gas to enter into home of future mother-
in-law when he stole the gas meter off her gas pipes – whether he maliciously administered her poison –
whether he had the requisite mens rea
o Court - maliciousness requirement – as intent to do the particular type of harm that was done, or
reckless conduct such that type of harm was foreseeable
 Question of whether intent to deliver the poison – quashed conviction because did not
have the specific intent necessary with regard to poisioning
 If D was aware of the risk and consciously disregarded it then it could be said that he
recklessly caused the social harm, but if he did not have such foresight and only should
have been aware then only negligent and would not meet malice requirement
 Actus reas but no mens rea – maliciousness was not met
A. Problems of Statutory Interpretation – not clear which element mental state modifies
 US v. Yermian – D lied on questionnaire – statute said knowingly and willingly making false
statements, but D argues statute ambiguous because did not know he was under a federal agency
o Court – knowing and willful refers only to making false statements, do not need to know under
jurisidiction of the government
 Plain meaning – words modify only false statements – purpose of Congress
o Dissent – not clear – rule of lenity – when ambiguous read statute in favor of D – two possible
ambiguous readings
 Holloway v. US – D held up car with gun, accomplice said was willing to use gun if needed – statute
requires intent to cause death or serious bodily injury – D argues no intent
 o Court – Issue of conditional or unconditional state of mind
 Conditional – if then v. Unconditional – at all times had the intent to kill or injure
 At the relevant time offender plainly has the forbidden intent because cannot be that
Congress intended to separate out D’s who had a conditional intent
 Intent in the alternative is nevertheless the intent – implying a condition D has no right to
impose
o Dissent – cannot have an intent that is conditional – intent only if there is no condition precedent
but majority allows there to be conditional intent
 Would force courts to discern intent measure in a statute and whether conditional or
unconditional
 Notion that court is passing onto Congress their purpose
 Should have been a lenity case – ambiguous statute
B. Intent –
 State v. Fugate – D convicted of armed robbery and 1st degree murder – argues that did not “purposely”
kill the victim as required by statute
o Court – intent found from all the circumstances
 Infer intent whether natural and probable consequences of a wrongful act is to produce
death, presume intent deduces from all the surrounding circumstances
 VA v. Black – statute that if you burn a cross it suffices as intent to intimidate – D’s convicted of cross-
burning argue ban on cross-burning violates 1st A
o Court – not all cross burning are intended to convey a message – some is protected speech not
conduct
 Even though not all speech is protected, cannot make cross burning itself prima facie
evidence of intent – unconstitutional
o Thomas dissent – this is conduct on expressive (not really speech) – conduct that legislature can
legislate or subject to prima facie
C. Transferred Intent –
 Typically it is a basic principle of criminal law that intent to do one thing cannot be used as a substitute
for an intent to do another – (Ex: Regina v. Faulkner – intent to steal rum, not intent to burn down ship)
 Justified on grounds of necessity and proportionality –
o Necessity – should not avoid conviction just because killed wrong peron
o Proportionality – ensure that prosecution and punishment accord with culpability
 However, can result in disproportional punishment if charged with both offenses
 Dressler – recommends rejecting the doctrine and simply seeking to determine whether the actor had the
intent to cause the particular social harm required by the charged offense
 People v. Scott – D was tying to shoot mom’s ex-boyfriend, shot son and other people instead, argue no
intent to kill others
o Court – Transferred intent is a policy choice – if allowed D’s to use this defense then would
commit two social harms and only get punished for one
 Not a literal transfer of intent but a policy choice
 What if kill both – intended and unintended – circuit split – some give 2 1st degree
murder others only 1 and apply different mens rea to the second
D. Specific Intent v. General Intent –
 Strict liability – no mens rea requirement as to elements of the actus reus – policy choice where court
will read a knowledge requirement into the statute
 o Presumption against strict liability – presumption that mens reus requirement exists
o Public welfare offenses – acts although not morally wrongful, could gravely affect the health,
safety or welfare of a significant portion of the public
o Statutory rape – most common strict liability offense that is not a public welfare offense
o MPC – attempted to eliminate strict liability, except in cases of violations that cannot result in
imprisonment or probation but only fines
 General intent – policy choice by Congress – less to prove to convict
o One mental element – single notion of undertaking act voluntarily with the purpose of the social
harm or where virtually certain that conduct would result from it
o Historically referred to any offense for which the only mens rea required was a blameworthy sate
of mind
o Culpability measurement – ex: battery – intentional application of unlawful force upon another
– only requirement is the intent to commit the actus reus -
o All you have to do is voluntarily engage in an act that is morally blameworthy
o Les defenses available – voluntary intoxication not a defense
 Specific intent – requires a specific type of intent –
o Common law – malice or forethought for “purposes of committing…”
o Historically – when definition of the offense required proof of a particular mental state
o Elemental measurement
o Dressler –
 Two parts –
 Intent or purpose to do some future act or to achieve some further consequence
beyond the conduct or result that constitutes the actus reus of the offense
 Actor must be aware of a statutory attendant circumstance – ex: burglary –
breaking and entering of a dwelling at nighttime with intent to commit a felony –
specific intent
o Now – 2 elements:
 Voluntarily doing the conduct
 Second element – for the purpose of
o Voluntary engagement in act with additional requirement that you do it for some future purpose
or to achieve some further consequence
o Developed as a pragmatic strategy to deal with intoxicated offender, but relied upon in other
areas
o Specific intent catch phrase – “with malice or forethought” or “for purpose of” or “with intent
of”
o Elemental approach – Arson case and Frye – statute must be constructed in a way that there are
two mental elements
o Common law approach – Bryan and Cheek – SI requires specific mental element they
understand will cause the illegal conduct (whereas GI only requires intentionally engaged in
conduct)
 MPC – Cannot use voluntary intoxication as a defense –
o Does not break down into general or specific intent
o Gets rid of common law mens rea terms and replaces with 4 –
 Purposely, knowingly, recklessly and negligently
  People v. Atkins – 2 drunk D’s want to attack P, get really drunk and light canyon on fire, almost burns
down P’s house – D’s argue that statute requires specific intent but they had none
o Court – statute contains maliciously – read to mean a general intent statute
 Policy decision – voluntary intoxication inadmissible to negate general intent, but
admissible to negate specific intent
 If read as specific intent, voluntary intoxication would have been a complete defense
 Voluntary commission of setting fire
 Frey v. Florida – D drunk charged with battery and resisting arrest with violence – D argues voluntary
intoxication as defense to specific intent crime
o Court – plain meaning of statute – no heightened or particularized intent so no specific intent
requirement and voluntary intoxication is therefore not a defense to general intent
 Policy decision in interpretation –
 Compare with Newton – in Newton culpability issue because being shot first was not his
fault; whereas in Frey morally culpable in getting drunk and mental infirmity will not
relieve him when he put himself in this situation (yet lacks mens rea?)
 Similar to Decina – no intent to hurt children but policy issue of culpability
 Ways to conceive the statute as specific intent – willful and knowing + violence –
additional element required
o Cooper – FL case – removed willful and knowing portion of resisting arrest statute
 Made voluntary intoxication no defense to either specific or general intent as a policy
choice
E. Knowledge –
 Common law typically meant actual knowledge – aware of fact or correctly believes fact exists
 Can be deliberate ignorance – impute knowledge
 Willful blindness/deliberate ignorance – actor is aware of a high probability of the existence of the fact
in question and he deliberately fails to investigate in order to avoid confirmation of the fact
o Counter that would be reckless but does not amount to actual knowledge
 US v. Jewell – D drove car into US from Mexico, found drugs in it – claimed he did not actually know
they were there
o Court – rejects actual knowledge – positive knowledge and deliberate ignorance are equally
culpable
 Willful blindness/Deliberate ignorance – truth or enlightenment avoidance –
 MPC standard – willful blindness – high probability of its existence unless he actually
believes that it does not exist
 Different standard – under facts and circumstances can impute knowledge
 Exception if there is a high probability but don’t believe there is anything there
 Morissette v. US – D was hunting on government property, stole metal cylinders that he though were
abandoned and sold them – D argues no intent – statute says “knowingly” – trial court construed as no
element of intent required (strict liability)
o Court – any time ambiguity in intent there needs to be tacit proof of intent to leave out the mens
rea requirement
 Should be concerned as a policy matter if offenses begin to be construed as strict liability
 Mens rea requirement will be presumed in absence of contrary legislative purpose
 Because statute evolved from common law offense which contains a mens reus
requirement although statute itself was silent
 Interpretive presumption that crimes from common law have mens reus requirements
  Public welfare offenses – legislature makes policy choice to regulate deterrence of a
certain type of behavior through strict liability
 Garnett v. State – 20 year old mentally handicapped man had sex with 13, she invited him, says he was
mistaken about her age – said she was older – argues no culpability
o Court – no intent requirement in the statute – some states have allowed mistake of age defense,
but if not in statute then legislature should fix, not them
 Silence in mens rea by legislative design – legislature explicitly raised the mens rea
element and decided not to include it
 Strict liability offense
Chapter 5 – Mistake and Ignorance –
A. Mistake of fact –
 Issue of lacking mens rea –
o Culpability notion - lacking the moral culpability for causing the social harm
o Elemental notion - lacking the particular mental state that is an express element of the offense
 Dual approach based on whether a specific intent or general intent crime
o Common law –
 Elemental approach for specific intent crimes
 Culpability approach for general intent crimes
 Strict liability – under no circumstances does a person’s mistake of fact negate his
criminal responsibility for violating a strict liability offense – absence of mens rea
precludes use of this defense
 First question – type of crime – general or specific intent (Navarro)
o General intent – needs to be good faith and reasonable
 Objectively reasonable under the circumstances
o Specific intent – needs only to be good faith/honest, reasonableness does not matter
 However, some stories can be so unreasonable that it undermines the credibility of good
faith
 Ex: if D believes that property he took was abandoned – because larceny is a SI crime as
long as D genuinely believed/good faith then negates mens rea
o D believes in a set of circumstances that if true would have committed no crime
o Tends to negate the mens rea requirement even though meet actus reas
o Issue of morally culpable state of mind
 MPC – mistake of fact is a defense if it negates the mental state required to establish any element of the
offense – irrelevant whether identified as GI or SI at common law – either D had the culpable state of
mind or not
o Exception – defense of mistake of fact is not available if the actor would be guilty of another
offense had the circumstances been as he supposed
 Ex: D thought he was buying cocaine but it was really heroine – would have been illegal
either way
 However, punished for the lesser offense
 Constraints on Mistake of fact -
o Moral-wrong doctrine – there should be no exculpation for mistake where, if the facts had
been as the actor believed them to be, his conduct would still be immoral (Bell)
 Not triggered unless the D’s conduct would be immoral had the situation been as he
supposed them to be – based on the4 facts as the actor reasonably believed them to be
 o Legal-wrong doctrine – substitutes illegal for immoral – D is guilty of criminal offense despite
a reasonable mistake of fact if he would be guilty of a different, albeit less serious crime if the
situation were as he supposed
o Strict liability – can have a strict liability component in a larger general intent statute (Bell)
 Can’t have an affirmative mistake of fact defense to strict liability unless the legislature
explicitly creates the exception (ex: no mistake of age in strict liability statute)
 No mens rea requirement
 People v. Navarro – D charged with stealing beams from construction site – D wanted it treated as a
specific intent statute, allowing him to negate mens rea by good faith
o Court – requirement of specific intent to steal – then honest or good faith mistake will negate
requisite mens rea – reversed to determine whether it was good faith
 Specific intent – cannot have additional elements of intent with good faith/honest
 But if it was a general intent crime then reasonableness matters – must be reasonable
under the circumstances
 Bell v. State – D procured girls for prostitution, charged with prostitution enterprise and underage girls,
D argues reasonable mistake of fact as to age
o Court – Legislature created an element within the statute that was strict liability – don’t get a
mistake defense with strict liability
 Mistake negates the mens rea but in strict liability requirement there is no mens rea so
nothing to negate
 Legal Wrong doctrine – common law idea – cannot allege mistake of fact in situations
where if the facts were as you believed them to be would still be a crime
B. Mistake of law –
 Common law rule - ignorance of law is no excuse – policy choice of not wanting to encourage
ignorance of the law – conclusively presumed to know the law
 Exceptions –
o Entrapment by Estoppel/reasonable-reliance doctrine - Clegg, Marrero
 Not excused for relying on one’s own erroneous reading of the law
 D is excused for relying on an official statement of the law, later determined to be
erroneous, obtained from a person or public body with responsibility for interpretation,
administration or enforcement of the law defining the offense – lacks moral culpability
 Narrowly applied -
o Must be a statute later declared to be invalid
o A judicial decision of the highest court in the jurisdiction later determined
to be erroneous, or
o An official, but erroneous interpretation of the law from a public office in
charge of its interpretation, administration or enforcement
 Who can you rely on? Has to be the one who’s responsibility to
enforce/interpret the law
o Ex: VA law on firearms – can rely on probation officer, but no ATF
(federal, but this is a state law), no to local fish/game warden
 Reliance upon advice of private counsel is not a defense to a crime
 **MPC codifies the common law Entrapment by Estoppel doctrine – but like
common law does not recognize reliance on private attorney
 o Crimes of knowledge – conduct that is prohibited is an element of the crime if knowledge that
the prohibited conduct is unlawful is an element of the crime
o Fair notice/Due process principles – Lambert – actual knowledge of duty to register or proof of
probability of such knowledge was a constitutional prerequisite for conviction of violating
registration statute – Bryant case
 Arguably based upon fact that punished an omission, status rather than an activity, and
malum prohibium offense – not sure can be expanded to contexts outside of registration
cases
 Majority – ignorance of law if no excuse except when provided by statute (or by judicial clarification)
o Ex: Marrero – statute said reliance on official statement
o Idea that knowledge, recklessness nor negligence as to whether conduct constitutes an offense or
as to the meaning of the offense is ordinarily an element of that offense
 Alternate/Minority rule – differentiates b/t general and specific intent
o General intent – same as majority rule – ignorance is no excuse, except by statute whether
reasonable or unreasonable
o Specific intent – mistake that negates mens rea is an excuse, whether reasonable or unreasonable
 Ex: Cheeks case – good faith belief negates SI mens rea even if unreasonable
 Parallels the mistake of fact rule for SI crimes
 If Court interprets that knew conduct is bad then will find the intent
 MPC 2.04 –
o Under limited circumstances a mistake of law defense if recognized –
o MPC codifies the common law reasonable reliance doctrine in nearly all respects –
o Fair notice – if he does not believe his conduct is illegal and the statute defining the offense is
not known to him and was not published or made reasonably available before he violated the law
o Unless the definition of the crime so provides neither knowledge, nor recklessness or negligence
as to whether conduct constitutes a crime or as to the existence, meaning or application of the
law determining the elements of an offense is an element of such offense –
o MPC requires proof of some culpable state of mind regarding every material element of an
offense – mistake of law is a defense if it negates a material element of the offense or if the law
expressly provides for a mistake of law defense
 People v. Marrero – Federal corrections officer convicted of carrying a loaded gun, he argued mistake
of law because of his interpretation of statute and told by gun dealer, and criminal justice teacher
o Court – If an individual can decide what the interpretation is then the exception would swallow
the rule – looks to MPC
 MPC – reasonable reliance upon an official statement of the law that is afterward
determined to be invalid or erroneous
 Statute is ambiguous – says peace officers – D thought he was included
 Did not rely on an official statement – further pronouncement – construed so that only
people that can have the benefit of the mistake are those that actually know the law but
just don’t know of its change
 D was not entitled to claim a mistake of law defense because his mistake was founded
solely on his own understanding of the law
 Policy issue – don’t want to incentivize people to make their own interpretations
 Rule – state was general intent crime so ignorance is no excuse except when excused by
statute
 o Dissent – rule of lenity should apply to ambiguous statute– issue of moral culpability – no mens
rea
 Principles of criminal law – lenity and punish bad people (culpability)
 US v. Clegg – D was arms dealer – says mistake of law based on estoppel – relied on advice of US
officials to keep smuggling
o Court – estoppel – advice from US officials impliedly giving consent – was dealing directly with
government officials of the highest rank
o Dissent – D was smuggling arms prior to the reliance
 Knew he was engaged in illegal activity so why should he get the benefit
 Have to have requisite authority – no clear facts that he was actually authorized or that
those giving implied consent had the authority to do so
 Cheeks v. US – Pilot stops filing taxes under belief he was exempt and that they were unconstitutional
o Court – Alternate Rule – ignorance of law is no excuse unless knowledge is an element of the
offense (specific intent) -
 Statute charged willfully – interprets as a specific intent statute meaning voluntary and
intentional violation of a known legal duty – using common law interpretation based on
“willfully” as specific type of intent
 Specific intent – so if good faith then negates mens rea even if not objectively reasonable
 Court erred in not giving instruction that D was not guilty if he believed, even
unreasonably that he was not legally required to report his wages
 A lot like the mistake of fact rule – same that if too preposterous then goes against notion
that it is good faith
 Court rejects unconstitutional argument – not a mistake but a determination about the law
being invalid
o Concurring – Scalia – does not like the good faith/constitutional split – impossible to say that a
statute which one believes to be unconstitutional represents a known legal duty
o Rule – knowledge requirement as a function of statute and even if it looks like an unreasonable
mistake can negate mens rea element if it was good faith
 Bryan v. US – D convicted of willfully selling in firearms without a federal license – says that requires
proof of willfully selling and willfully without a license and latter is missing
o Court – interprets as general intent – only require acting with knowledge that conduct is
unlawful – general knowledge of illegality
 Willfully –act that is undertaken for a bad purpose – government only has to establish
that D knew the conduct was unlawful
o Dissent – statute is ambiguous – canon of construction in favor of D – this is a specific intent
statute that the court is treating like a general intent
o Ex: of how court’s construction of intent requirement determined culpability
C. Fair Notice – lack of knowledge v. misinterpretation of law
 State v. Bryant – sex offender released on SC – travels to NC and fails to register –
o Court – Fair notice – distinction b/t common law where under limited circumstances excused for
being unaware of law
 Common law – presumed to now the law and govern themselves by law
 Lambert case – have to prove that there was actual or high probability
 Prevalence does not prove that have to register in NC
 No actual or constructive knowledge
 o Reversed on appeal – said that notice from requirement to register in SC and new county
 Dressler – punishing omissions rather than positive acts – punishing status rather than acts
o Malum prohibidum cases – things criminalized because legislature made then criminal not
because morally evil
Chapter 6 – Causation and Concurrence – looking for facts which suggest that actor with requisite mens rea
has caused a social harm to come into being – idea of personal responsibility for crimes
A. Causation
 Two elements –
o Actual/But for cause – but for voluntary act of D the social harm would not have occurred when
and as it did
 Substantial factor test – two D’s working independently – result could not have
occurred without presence of both actors
o Proximate/legal cause – an act that is a direct cause of the social
 Concerned with interruption/negation of but for cause
 Whether there was an intervening act that renders the actor less or not at all morally
culpable – whether intervening act was responsibly foreseeable
 Distinction b/t Dependent and Independent intervening causes –
 Dependent – causes which are in reaction or response to the chain of events D
put in motion
o Don’t eliminate culpability because foreseeable – maintain culpability
 Independent – unrelated chain of events deemed capable of breaking causal
chain and alleviating moral culpability -
o Issue of foreseeability – deemed to be able to perceive dependent
intervening causes but not independent
o D more likely to be relieved of criminal responsibility when the
intervening agent was free, deliberate or informed – voluntary, knowing
and intelligent
o Omissions will rarely serve as a superseding intervening cause
 Exceptions for causation –
o If not foreseeable – not independent intervening - Rementer
o Unjust in fundamental fairness – substantial factor test – Velasquez
o Apparent Safety Doctrine – if get to a place of apparent safety then causal chain is broken
 Commonwealth v. Rementer – D attacked girlfriend, chased her, caused her to run into street and get
run over by car and die – argues not the cause because there were intervening causes
o Court –
 But for – yes – witnesses to prove
 Legal cause – whether direct and substantially related – real connection
 Issues of forseeability and attenuation – was the type of harm foreseeable given
the conduct
 Intervening events were dependent on D’s actions –
 Alvarez v. Velasuez – 2 drag-racers – one dies
o Court – Exceptions for actual causation is substantial factor – when actors with separate acts
both adding to the harm
 Here both were engaged in bad conduct – either of the D’s conduct could have resulted in
a crash
  Substantial factor – D’s conduct was a substantial factor such that either person could
have been harmed
 Foreseeable but unfair under the circumstances – moral culpability argument because
both were bad actors and D was less culpable then decedent
 Deliberate, informed human intervention – victim acted in his own volition to turn car
around and continue race after it was over
 Henderson v. Kibbe – 2 D’s met drunk guy, stole his money and left him in middle of road with no
shoes, coat or glasses – hit by car and killed – D wanted causation instruction
o Court – Statute required causation and evidence was sufficient to prove that – jury had to
determine recklessness and in doing so determined causation
 Depraved indifference – recklessly engage in conduct that creates risk of death and then
causes it –
 Risk assessment – cause someone’s death through poor risk assessment
 Morse reading – Look at act not result – should not let off initial bad actors because some other action
in the chain
o Proximate cause – unrelated to considerations of deterrence, desert
o PC is a policy consideration – Morse does not like it
o Barnes – problem that end up being punished for things you don’t intend – concerned with
foreseeability as determining culpability – PC as check for but for cause to ensure moral
culpability
B. Concurrence –
 Two parts -
o Temporal concurrence – D must possess the requisite mens rea at the same moment that her
voluntary conduct or omission causes the social harm
 Mens rea cannot precede the actus rea – issue whether mens rea at time of actus rea not at
time of social harm
 Actus rea cannot precede mens rea -
o Motivational concurrence – relationship b/t the mens rea and actus rea must be more than
coincidental
 Not enough to have the requisite mens rea – but have to have it simultaneous with the actus rea
 Thabo Meli v. Reginam – D’s plotted to kill victim, hit him over head which they thought killed him so
left if in a ditch – already died from exposure – argued lacked concurrence
o Court – don’t want D’s to benefit from misapprehension –
 Expanding mens rea as a policy decision – at all times wanted to kill him
 Temporal concurrence –
 State v. Rose – D hit and run – then dragged body away – could not determine if victim died instantly or
later –
o Court – because could not determine when he died cannot determine if had the necessary mens
rea at time of actus rea – could not prove beyond a reasonable doubt that mens rea and actus rea
concurred
 If died immediately would be simple negligence
 If died after left the scene – then would have the necessary mens rea – only had to have
knowingly leave the scene standard
 Upheld conviction only for leaving scene of accident but not for manslaughter because
mens rea could not be determined
Chapter 7 – Criminal Homicide –
 Common law definition – unlawful killing of human being by another human being – unexcused,
unjustified killing
 Justified killing – self-defense, or excused for insanity, mental infirmity
 At common law could only be convicted of murder if victim died within one year and a day from
injuries inflicted –
 At common law – no degrees of murder/manslaughter – murder and manslaughter distinguished by
malice aforethought
o Did divide manslaughter into voluntary and involuntary manslaughter
 Apparent safety doctrine – policy decision – once you reach a point where no longer in danger cut off
liability of initial bad actor – works like other measures of PC
 Deadly weapon doctrine – instrument of death can infer intent – (are someone’s hands deadly
weapons? Ex: Brown) – when intentionally use a deadly weapon directed at a vital part of human
anatomy an intention to kill may be properly inferred
 Intent – infer from natural and probable consequences of action
Murder – with malice aforethought –
o Malice requirement –
 Evidenced through indication of intent – each state involves extreme indifference to the
value of human life
 Intent to kill (Express) – can be inferred from deadly weapon doctrine, issues of
premeditation and deliberation
 Intent to cause serious bodily harm – usually deemed to be second degree murder
in states that have a degree system
 Extremely reckless disregard for the value of human life - Abandoned
heart/malignant heart/depraved heart – implied intent if conduct manifests an
extreme indifference to human life – usually second degree murder
o Foreseeability and risk assessment – whether should have known risk was
likely where you make a bad risk assessment (Implied malice)
o Where the natural and probable consequences of your act would be that
someone would die
o Depraved indifference
o Deadly weapon doctrine – of you use an instrument which can be termed a
deadly weapon in the commission of a crime can be used to infer either the
intent to kill or cause serious bodily injury
 Felony murder rule – intent to commit and underlying or enumerated felony and
if someone dies in the course of that will transfer the intent for the underlying
offense to uphold a killing
o Degrees of Murder – measure of mens rea and moral culpability – no degrees at common law
 Thoughtful reflections before murder – more morally culpable then heat of passion
 First degree –
 Premeditated or Deliberate – done by design or plan and thoughtfully reflected
upon
o Deliberate – evaluative process – characterizing nature of act – measure
and evaluate the major facets of a choice or problem – cool purpose
 Goes to quality of though processes
  Premeditation goes to quantity of time in formulating design
o Premeditation – issue of time-frame – prior to commission of act
 Usually deemed to take some appreciable time
 Proof that the killer had time not only to form the intent but also to
turn the matter over in her mind and to give the matter at least a
second thought
 Enumerated felony murder listed in statute
 Specific situation deaths – ex: laying in wait, use of poison, explosive devices –
o Additional measure of moral condemnation because of heinousness of
crimes
o Premeditated, deliberate
o Break them a part so never a question
 Second degree –
 “All other” –
 If a person intends to cause grievous bodily injury to another but death results
almost always constitutes second degree
 Some jurisdictions have third degree and differing breakdowns of what constitutes first,
second, etc…
 MPC –
o Criminal homicide - When a person unjustifiably and inexcusably takes the life of another
human purposely, knowingly, recklessly or negligently
 Need not occur in a year and a day
o Murder – when actor unjustifiably, inexcusably and in the absence of mitigating circumstances
kills another –
 Purposely or knowing
 Recklessly under circumstances that manifest extreme indifference to the value of human
life
 Does not break down into degrees of murder
o Manslaughter – reckless but does not manifest depravity – indifference, extreme emotional
disturbance
 Issue of Premeditation -
o State v. Brown – D beat 4 year old son to death – whether sufficient 1st degree murder
 Court – premeditation is killing by design/plan – can be formed in an instant but cannot
use the continuance of blows to create premeditation
 Interpreted conduct as father not really wanting to kill son but to continue to beat
him – pattern of abuse
 TN – presumed to be 2d degree murder and state bears burden of proof in issue of
premeditation and deliberation to elevate to 1st degree
o State v. Bingham – D convicted of 1st degree after raping and strangling retarded victim – D
argued that no premeditation
 Court – premeditation is a mental process (weighing beforehand) does not have to be
long but deliberate formation and reflection upon intent to take human life
 D had intent to sexually assault but can’t use length of time of strangulation as
sufficient time to reflect
 Just because have to reflect does not mean you did – reversed 1st degree
  Dissent – sometime during the course of the 3-5 minutes he developed the intent – intent
on the fly – premeditation and deliberation formed in an instant
o Gilbert v. State – D killed wife – mercy killing – sentenced 1st degree for premeditation and
mandatory sentencing guidelines
 Court – clearly premeditated and deliberate
 No mercy will/living will – not willing to recognize constructive will
 Left up to legislature to determine if there should be mitigation of sentencing
guidelines under these circumstances
 Concurring – issue of how you really know someone wanted to die, should not make
distinctions among murder by members of socio-economic classes
 Don’t want to incentivize people to undertake these actions – slippery slope of
afterwards claiming it was mercy killing when wasn’t
 Depraved Heart –
o Commonwealth v. Malone – D was playing Russian roulette – on third shot killed victim – D
argued he had loaded gun in way should not have happened
 Court – Malice – act of gross recklessness – depraved heart
 Malice can be shown when an individual commits an act of gross recklessness
that he reasonable should anticipate will result in death of another
 When you engage in a seriously dangerous activity in which someone could die
don’t want to encourage that even if you don’t intend someone to die – will imply
you are depraved
 Objective reasonableness – if under the circumstances the natural and probable
consequences is that someone could get hurt not going to matter what you
subjectively intended
o State v. Davidson – D kept vicious dogs, past history of getting out and threatening people – got
out and mauled boy to death – D claims only negligent omission not reckless second degree
 Court – Question of forseeability – clearly foreseeable that dogs were going to hurt
someone
 D wants the court just to look at incidents on day of accident – time-framing
issue, but court looks at all the facts and incidents leading up to it
 Depravity does not require that she actually knew the dogs would kill someone
that day but rather it was intentional that she created a risk that others could be
hurt or killed
Manslaughter – without malice aforethought
o Intentional Voluntary – Provocation/heat of passion –
o Unintentional Involuntary – Form of culpable negligence or gross negligence (will be defined by
statute)
 Criminally negligent manner – when a person should be, but is not, aware that her
conduct is very risky
 Unintentional killing that occurs during the commission or attempted commission of an
unlawful act – unlawful-act manslaughter or misdemeanor-manslaughter
Voluntary Manslaughter -
o Common law rule - Provocation –
 Self-defense
 Crime against one of loved ones
  Attempt at illegal arrest
 Mutual combat
 Catching adulterous affair – (used to actually have to walk in on it)
o Traditional rule – mere words were not enough
 Information words – I just hurt your child
 Insulting words – epithets
 Exception – mere words okay at end of a series of cumulative events
 MPC – just words alone cannot provoke
 Previously only applied for men killing wives and not vice versa
o Contemporary rule – reasonableness
 Objective v. subjective
 Mere words controlled by staute
o MPC –
 Recklessness without extreme indifference to life
 Homicide extreme emotional disturbance –
 Subjective perspective fro D – Dumlao
 Internal – whatever the actor is thinking is going on
 External – have to accept the world as the actor believes it to be, whether or not
he was mistaken
A. Provocation – intentional homicide in sudden heat of passion as a result of adequate provocation mitigates
the offense to voluntary manslaughter
 May also negate other forms of malice aforethought – provoked to inflict grievous bodily injury upon
another or act recklessly and death unintentionally results
 4 Elements at common law –
o Actor must have acted in heat of passion
o Passion must have been the result of adequate provocation
o The act must not have had a reasonable opportunity to cool off
o There must be a causal link b/t the provocation, the passion and the homicide
 Common law rule that has persisted in most non-MPC – words alone do not constitute adequate
provocation
o Some courts allow mere words in the case of informational but not insulting words
o Others held open possibility that insulting words may qualify in extreme circumstances
 MPC – words alone rule does not apply
 People v. Ambro – D killed wife – continued marital problems, told she was taking the kids and been
wife another man – goaded him to kill her
o Court – series of cumulative events as exception to rule that mere words is not enough
 D did not catch her in the act – but cumulative events
 Time-framing issue – court willing to look at a series of events over a period of time
 Entitled to jury instruction for manslaughter on provocation
 State v. Tackett – words of reproach by a slave – court granted more leniency for provocation of a white
man who kills a slave then white man who kills a white man
 Nelson – applying serial provocation rule to continued racial assaults
o Difference is that series of provocation has not all stemmed from same person
B. Modern “Reasonable Person” Test -
 Elements –
 o Provocation
o Heat of passion was provoked by an event that would have also provoked a reasonable person to
lose control under the circumstances
o D did not have sufficient time to cool-off
o A reasonable person in D’s shoes would not have had time to cool-off
 People v. Berry – D was married for 3 days, then wife left for Israel, said she found another man, he
choked her she goes to hospital, then D waits for her for 20 hours and kills her
o Court – manslaughter provocation – court treats the events as a long series of cumulating events
 Focus on expert testimony on victim’s depraved mental condition, D cannot handle this
type of situation – suicidally inclined girl
 Can’t be subjective provocation but has to be reasonable man – but 20 hours waiting?
 Coker Article – documented history of violence by D, example of how court’s narrative is off
o Court is searching for a cumulative serial provocation with D as the victim
o Onus on women – still on her in the provocation cases, but should be on the husband to prove
that he was justified to be provoked
 Taylor Article – not a relevant construction given disproportionate numbers – law meant to protect men,
notion of women as property – cumulative terror not cumulative rage
o Laws are written without perspective and gender based on particular idea of who women is
 Reasonable person – does a RP ever kill? Yes – reasonableness can be overcome by provocation
o Traditional rule – D’s unusual physical characteristics
o Subjective v. Objective
 Perspective of the actor or a societal standard
 Problematic issue of how much background should matter
 Ex: Berry case – want him to be held to an objective standard
o Social norms/prejudices which are imputed to people we deem to be reasonable
 Society deems some prejudices to be reasonable
 Mison article – Schick v. State – D picks up guy on side of road, hitchhiker makes a homosexual
advance, wants instruction that non-violent homosexual advance warrants provocation
o Judge – allows manslaughter instruction that jury can consider whether provoked to kill based on
homosexual advance – found guilt only of manslaughter
o Problem – saying that reasonable person is homophobic
 Dir. Of Public Prosecutions v. Camplin – D was a 15-year-old boy who killed an older man that
sexually assaulted and laughed at him
o Court – reasonableness standard given according to you age
 Shift standard from purely objective to subjective
C. MPC – Manslaughter –
 Guilty of manslaughter if:
o Recklessly kills another, or (different from murder which requires extreme indifference)
 Subjective fault – conscious disregard of a substantial and unjustifiable risk
o Kills another person under circumstances that would ordinarily constitute murder but which
homicide is commited as the result of extreme emotional disturbance for which there is a
reasonable explanation or excuse
 MPC does not recognize any form of criminal homicide based on unlawful-act/misdemeanor felony rule
 Extreme Emotional Disturbance
 Two elements –
 o Reasonableness from perspective of person in actor’s situation under the circumstances he
believes them to be
 Need not involve an injury or affront perpetrated on the D
 No rigid cooling off standard as in common law provocation
o Must be a reasonable explanation or excuse – objective portion of the defense – reasonable
explanation for the emotional disturbance that caused the actor to kill – but also subjective from
the viewpoint of person in actor’s situation under circumstances as he believes them to be
o Homicide except for extreme emotional disturbance
o Its an affirmative defense – D must produce evidence
o Intended to incorporate sudden heat of passion and partial responsibility (diminished capacity)
 State v. Dumlao – D convicted of murdering mother-in-law – claim extreme emotional disturbance
o Court – MPC standard – should have gotten the instruction because there was evidence that may
have been under extreme emotional disturbance
Involuntary Manslaughter – based upon culpable negligence – gross negligence or recklessness
 Criminal negligence – gross deviation from the standard of care that reasonable people would exercise
in the same situation
 Murder = Recklessness – person takes a very substantial and unjustifiable risk of which he is aware
 Criminal negligence/involuntary manslaughter = inadvertent risk-taking of which a reasonable person
should have been aware –
o Turns on question of consciousness of the actor’s risk-taking
o A lesser offense or corollary of depraved heart murder
 Unlawful act doctrine/misdemeanor manslaughter – accidental homicide that occurs during
commission of an unlawful act not amounting to a felony constitutes involuntary manslaughter
o Some jurisdictions limit to inherently dangerous misdemeanors
o Some distinguish b/t misdemeanors mala in se and mala prohobita and apply to the latter
o Some apply to all misdemeanors
 Commonwealth v. Welansky – D owner of nightclub, overcrowded, fire started and hundreds died
because could not escape – D in hospital at time but found guilty of manslaughter
o Court – failure to act/omission – if commit a dangerous act or omission that an ordinary man
under the dame circumstances would have realized the gravity of the danger then duty to do so
 Involuntary – wanton or reckless in such a way that convicted of second degree instead of
manslaughter
 Risk of physical harm creates a strong likelihood of harm
 *Generally gross negligence standard looks like depraved heart standard – conscious
disregard (if convicted of depravity deemed to have subjective awareness)
 State v. Williams – H & W charged with manslaughter for negligently failing to supply child with
medical attention – claimed simple negligence standard of statute is too low
o Court – common law duty of parents – statute is clearly only simple negligence
 Ordinary caution – reasonable prudence under circumstances
 Proximate cause issue – time-line – argue were not aware until it was too late – court
disagrees
 Reasonableness – extenuating circumstances – however, court sticks to objectively
reasonable standard and finds liable
Felony Murder Rule –
 Exists to deter other types of crimes – so that people involved in dangerous felonies will be extremely
careful – bootstrapping murder charge based on intent to commit underlying felony
o Deterrence
o Reaffirms sanctity of life – more serious and greater punishment
o Eases the prosecutor’s burden
 Murder typically a SI crime – but rule operates to impute intent for underlying felony to murder
 Standard looks like strict liability – killing could have been intentional, reckless, negligent, accidentally
or unforeseeable
 Extends to accomplices – if D was an accomplice to the felony, D would be guilty of murder without
regard to his state of mind relating to the death
 MPC – extreme recklessness is presumed if the homicide occurs while the actor is engaged in or is an
accomplice in the commission, attempted commission or flight from one of the dangerous felonies
specified in the statute – jury may but need not infer extreme recklessness
 Two parts –
o If enumerated or if the underlying felony is inherently dangerous
 Inherently dangerous –
 Felonies in the abstract – court will ignore the facts of the specific case and
instead consider the elements of the offense in the abstract – look at the offense as
defined by statute
o Whether the crime by its very nature cannot be committed without
creating a substantial risk that someone will be killed –
o Offense carrying a high probability that death will result for example
 Felonies in considering the facts and circumstances of the particular case to
determine if such felony was inherently dangerous in the manner and
circumstances in which it was committed
 Some jurisdictions will apply both tests – if inherently dangerous under either
approach
o Causal connection – connected enough in time (temporal or geographic) – some only require but
for others PC, nexus
 Enumerated Felonies –
o People v. Stamp – 3 D’s in process of robbery – manager of store died 20 minutes afterwards of
heart attack – D’s argue causation – not foreseeable
 Court – D’s were engaged in an enumerated felony – they were the actual/but for cause
 Felon is strictly liable for all killings committed by him or accomplice during
course of felony as long as direct causal result – form of actual cause
 Only needs actual/but for cause – not proximate/legal cause
 Policy decision – based on deterrence
 Similar to tort concept – robber takes victims as finds him
 Non-enumerated felonies – Inherently Dangerous Standard
o Felony must be inherently dangerous –
o People v. Patterson – D was smoking coke with two girls, one of them died
 Court – whether possession or possession for sale was inherently dangerous
 Not an enumerated felony so underlying felony must be inherently dangerous
 Court of appeals – looked at question in the abstract – part of health and safety
codes and not inherently dangerous
  SC – an inherently dangerous felony is one where there is a high probability that
death will result
 Make determination under the circumstances of that particular offense
 Concurrence – deterrence is the purpose
o Standard should be substantial risk of death – lower standard then high
probability
o Hines v. State – D was hunting, mistakes friend for a turkey and kills him – had a prior and was
not supposed to possess a gun – argues underlying felony of possession not inherently dangerous
 Court – under the circumstances approach –
 Inherently dangerous – when by its circumstances creates a foreseeable risk of
death or dangerous per se
 Affirmed conviction because foreseeable risk of death
 Case by case determination – flexible
 Dissent – circumstances were not inherently dangerous – status felony
 Wants a high probability standard
 Res Gestae Requirement – defines the causation analysis and can serve as both a limitation and an
extension of the felony murder rule
o Two parts –
 Temporal and geographic requirement – Whether the relevant killing has taken place in a
close enough time and distance
 Felony cannot take place after the homicide
 Generally, most courts provide that res gestae of a felony continues even after
commission of a crime until the felon reaches a place of temporary safety
 Search for a causal connection – must show that it was the felonious nature of the
conduct that caused the death
 Some jurisdictions – only require but for causal connection
 Other jurisdictions – requirement that but for and proximate cause or nexus b/t
felony itself and killing
o People v. Bodely – D robbed supermarket, during flight killed someone in the parking lot that
was trying to stop his car – D argues difference b/t burglary and robbery – robbery had place of
safety requirement but burglary did not have the same distinction and crime was complete once
left the building
 Court – Escape rule – treated it as one long continuous transaction until reach a place
of temporary safety
 Burglary and robbery – until reach a place of temporary safety – anything until
you reach that point is part of continuous transaction
 Purpose to incentivize people to commit crimes carefully
 But for cause – yes – set in motion a chain of events with the requisite moral
culpability
 PC? Was it foreseeable? PC is about individual understanding and society’s basis
 Court treated it as only a but for requirement for causation
o King v. Commonwealth – D pilot of plane transporting drugs, got lost in fog, cofelon took
controls while D navigated and cofelon crashed and cofelon died – whether accidental killing
was committed while in prosecution of some felonious act
  Court – but for, PC and nexus requirement – killing must be so closely related to the
underlying felony in time, place and causal connection to make it a part of the same
criminal enterprise
 Must be an act that was an attempt to move the crime forward – direct
furtherance
 Time-framing issue – court arguing that flying in the air is not enough (although
all part of transportation)
 Idea that crash would have occurred even if they had been transporting legal cargo
– result of bad weather not low flying to avoid radar, etc…
 Real issue – Like Velasquez, this was a cofelon that died (equally culpable) –
cofelon’s own bad piloting and adverse weather (happenstance)
o Court does not like the felony murder rule – takes away notion of
imputing malice – here court says causation was not enough to supplant
intent
o Courts can use strict causation requirement to limit felony murder rule
 Merger Doctrine – independent felony rule – predicate or underlying felony must be independent of the
murder –
o Underlying felony must have separate or independent felonious purpose – underlying felony
must not be a lesser included offense of homicide
o Elementally different – felony must have some separate elements or facts other than those
necessary to prove homicide (except malice)
o When all the facts of the murder are included in the underlying offense then probably will merge
unless statute tells you they don’t by enumerated offense
o If deemed to have merged – then charged with the lesser offense – if not then charged with
felony murder
o Merger is Jurisdictionally controlled – focuses on issue of whether independent
 Some elemental notion – multiplicity – should not be able to charge someone for multiple
offenses for a single force of conduct
 Some notion of double jeopardy – (FL) – should not be able to convict someone for two
things on a single course of conduct
o Ex: assault with a deadly weapon is underlying felony but person dies – would have to prove
nothing new for homicide – assault is said to have merged with the homicide because all the
elements are overlapping
o People v. Smith – D convicted of 2d degree felony murder for child abuse – repeated abuse
during which child hit head and died of injury – whether aggravated child abuse can suffice as an
independent felony – D argues abuse was integral part of homicide and merged
 Court – Agrees – applied merger doctrine – where the underling felony is an intergral
part of or included in the underlying felony than does not trigger felony murder rule
 Elements of assault were necessary elements of homicide – facts which support
abuse were not different in any way to prove the murder – integral part
 Assault integral of and included in fact in the homicide – death of child was
caused by an assault that was the basis of the charge of felony child abuse
 Example of how courts do not like the felony murder rule and get around it
 Agency Rule Limitation –
 o Felony murder rule does not extend to a killing, although growing out of the commission of the
felony, if directly attributable to the act of one other than the D or those associated with him in
the unlawful enterprise
o Does not apply if an adversary to the crime, rather than a felon, personally commits the
homicidal act
o State v. Canola – D and 3 cofelons rob jewelry store, owner of store and felons have shoot-out,
cofelon killed owner, but owner killed one of cofelons – D charges with both deaths – statutes
says when “death of anyone ensues from crime” – whether D can be liable for death of cofelon
o Court – felony murder rule does not extend to a killing, although growing out of commission of
the felony, if it is directly attributable to the act of one other than the D or those associated with
him in the unlawful enterprise
 Court does not extend agency rule to lethals acts of third persons not in furtherance of the
felonious scheme
 Felon cannot be held accountable for death of an accomplice occurring during the
commission of a felony
 Agency rule – killing must have been done by the D or by an accomplice acing in
furtherance of the felonious undertaking
 D liable for death of owner under agency rule but not for death of cofelon
 Proximate causation approach – minority of courts
o Felon is liable for any death proximately resulting from the felony, whether the shooter is a felon
or a third party
o Felon set in motion a chain of events which should have been within his contemplation when the
motion was initiated and should be responsible for direct and inevitable sequence from criminal
act
Murder Statutes in FL –
 1st degree unlawful killing when:
o Premeditated
o When committed in perpetration or attempted perpetration of listed felonies (enumerated)
 1(a) – (q) – large number of felonies enumerated
o Deaths resulting from unlawful distribution of a controlled substance where controlled substance
is the proximate cause of death – 1(a)(3)
 2d degree unlawful killing when:
o Perpetrated by an act eminently dangerous to another and evincing a depraved mind - Depraved
mind statute
o When in perpetration of the listed felonies by someone other than the person engaged in the
crime
 when someone else other than the perpetrator cause the death still fault of perpetrator but
2d degree rather than first
 no agency theory
 3d degree when:
o Engaged in felony other than those listed 1(a)-(q)
 782.051 Attempted felony murder –
o Odd because felony murder is typically accidental – unplanned that happen during course of
some other felony
o Can you attempt to do something unintentional
 o Ex: when someone could have died, but person doesn’t – could have been detrimental but in the
end is not
o Section 1 – principles and accomplices
o Section 2 - Attempt enumerated felonies
o Section 3 - Attempt other than enumerated felonies
 Section 1-2 – 1st degree felony
 If a third party – then second degree – third party’s who almost cause someone to die
 Depraved heart murder – includes recklessness – but courts have read into it more like an ill will –
approaching malice
 Limit on felony murder – in order for felony murder to attach have to be taking steps in furtherance of
the felony
 Euthanasia code, vehicular
 Interesting – define felony murder for principles and accomplices
o For depravity murder – recklessness may not be enough
o 3d degree murder for non-enumerated felonies
Chapter 8 – Sexual Offenses
 Rape statutes typically general intent crimes – morally blameworthy state of mind regarding female’s
lack of consent
o
 Sex crimes one of few crimes in which D and victim will agree on facts but only difference being one
believes it was a crime and the other not
 Rape is rooted in ancient male concepts of property –
 Modern view – crime of violence and a privacy/autonomy offense
 Problems -
o Communication problems – confusion with yes meaning no
o Gender social norms by the judges
 Distinctions b/t different standards in jurisdictions –
o Resistance
o Forcible compulsion
o Consent
 Traditional view - Element of Force or Threat of Force –
o Resistance requirement – linked to the force requirement – greater the initial use or threatned
force the less resistance that is required
 Problems –
 Some women freeze from fear or taught to be passive
 Resisting can prove more dangerous – could increase risk of aggravated injury
 Resistance element also proves critical in determining consent
o Rusk v. State – victim met D at bar, gave ride home, he wanted her to come upstairs, she said no
but took her keys
o Court – MD statute requires force as an essential element – victim must resist or her resistance
overcome by force or prevented from resisting by threats to her safety
 No evidence of resistance, no evidence that was in fear = no resistance, no force equals
no rape, consent
  Basically a requirement that she fights back – if did not fight off then deemed to have
consented - problem in rape cases of issue of physical signs
 Dissent – difference b/t consent and force – conflates consent requirement with force
 Sexism – focus on age and marital status of victim
 Reliance on social factors related to male/female sexual encounters
 On appeal – adopt dissent – enough facts to go to resistance – should have left to jury
o State v. Alston – D kept harassing victim as to status of relationship, met her at school, walked
off together, had sex, she says he was threatening
 Court – NC statute force against victim’s will – forcible compulsion standard
 No evidence that D used force – threat or force over a period of time not enough
 Time-framing issue – court will not time-frame back – says threat at school was unrelated
to act of intercourse
 Earlier threat was not linked directly to a demand for sexual intercourse on the alleged
occasion – must threaten force on the present occasion to an extent that would cause a
reasonable female to fear grievous bodily injury if she were to resist
 Court would not time-frame back would time-framed forward to later consensual
acts as constructing whether earlier rape was consensual
 Compare with manslaughter cases where will look to series of cumulative events
 Issue that this had been a consensual relationship – could time-frame from point of break-
up
 Court struggling to deal with consensual relationships and time-framing issue
o Commonwealth v. Berkowitz – college sophomore raped by another sophomore, kissing and
petting, says she needs to go, D argues previous flirting – lower court convicted of rape
 Court – statute defines forcible compulsion, defined as physical, but also moral,
psychological or intellectual force
 Totality of circumstances insufficient evidence – no is not enough to prove forcible
compulsion – here rape is not defined as nonconsensual sex, rather rape by force
 No consent but the element of force was lacking – no threats and force was not sufficient
to prevent resistance by a person of reasonable resolution
 Previous history was tricky – no meaning maybe – feigning disinterest
 Barnes - Not wise for court to read social behavior into law that no sometimes
means yes – if get it wrong D should bear danger of getting it wrong not victim
o Make no meaning no the baseline so it sets the societal standard
 Force or threat of force not the same thing as absence of consent – sex that takes place
over objection is not the same as sex by forcible compulsion – no physical violence, harm
or danger = no forcible compulsion
 Force necessary for penetration
o State of NJ v. MTS – D living at home with victim’s family, at night came to her room, claims
consensual and only during sex did she attempt to stop it
 Court – Issue of statutory construction of sexual assault – how much force is necessary
 Physical force necessary to violate was nearly the force necessary for penetration – force
based on idea of consent
 In absence of affirmative and freely given permission the specific act of penetration is
rape
 Key is permission not consent – forcible rape if penetration without securing permission
– a yes in words or action before proceeding
  Looked at how statute was formed rejected MPC and removed resistance requirement
 Still raises problems as to determining permission – what if permission is tainted?
Coercion?
o State v. Scherzer – Mentally handicapped victim, met boys she knew, went to house and sexual
activity – two statutes with two standards – sexual penetration using physical force or coercion
or sexual penetration of mentally defective person
 Court – persuasion is not coercion – insufficient evidence of force or coercion
 Policy choice of making her a person in the law capable of consenting – if force or
coercion contingent upon status of disabled person then standard of two statutes would be
the same – giving handicapped person’s autonomy
 Notion of autonomy – section of law would cease to have meaningful interpretation if
deem handicapped person as having no ability to consent
 Dismissed on force standard, but found that all boys should have known she was
mentally handicapped so convicted on that
o In re John Z – victim met Juan, went to party, D and Juan kiss her and attempt to have sex, D
has sex, Laura says she need to go home during sex, but D remains in her for another minute and
a half – issue of withdrawal of consent after initially giving consent
 Court – withdrawal of consent effectively nullifies any earlier consent –
 On facts consent was withdrawn and D had a reasonable amount of time to withdraw but
did not = rape
 Brightline rule – when consent is withdrawn need to withdraw
 Dissent – agrees that withdrawal can create a claim of forcible rape but not on these facts
 Is persisting the same as force? Not sure if defined reasonably amount of time and this is
different then rape initiated against consent
o Antioch policy – requires express consent – anytime fail to get positive consent must withdraw;
consent to some level of intimacy is not consent to sex
 Feminist Challenge in Criminal Law - Physical intrusion on the person requires actual permission
o Anything less than clear affirmative permission is not consent
o Consent is tainted in areas of coercion, or violation of right to leave
o Autonomy – feminist model that own your body and sexual behavior
 Cases like Rusk, Austin, Berkowitz – negate autonomy
 Rusk – court discussed she was divorced, repercussions socially
 Idea that chaste women would fight with every inch of her being
o Cases like Rusk and Austin – ambivalence means potential sex
o Ambivalence as consent – results in situation where rape is only punished where they involve
physical violence because no notion that autonomous women can say no
o No clearly stated should be enough – but system where only punish the physically violent
o Recommendation – bifurcate sexual assault crimes
 Rape – forcible compulsion
 Sexual misconduct – non-violent interference – any sexual imposition without valid
consent
o Barnes – make all rape a consent standard – force becomes force necessary for penetration and
anytime penetration without freely given consent that is rape
 Rape Shield – rules of evidence to prevent admission of evidence as to victim’s previous sexual
encounters
 o Notions of chastity and piety – fear that victim could be viewed as harlot instead of law working
to protect her by bringing in evidence of past encounters
o Rule designed to prevent case focusing on history of victim as determining consent
o Constitutional problem – 6th A Confrontation clause – right of D to confront witnesses against
him
 Where procedural rule preventing confrontation – balancing test
 Most rape shields have been balanced – valuing whether evidence should be let in and is
more probative then prejudicial
o Lewis v. Wilkinson – D charged with rape, received pages of victim’s diary in mail alluding she
had improper motive and consent in bringing charges – whether admitted
 Court – rape shield would prevent evidence of victim’s sexual past
 Evidence’s probative weight outweighed prejudicial value – relevant to questions
of motive and consent and not redundant to things testified
 While rape shield generally bars this type of evidence can admit evidence with
cautionary instructions - though research shows that limiting instruction actually
works to draw more attention to it in practice
 Example of how the 6th A challenge works in the context of a rape shield statute
Federal Rules of Evidence –
 412 – only admissible when:
o Offered to prove alternative source of physical evidence (Kobe Bryant Case)
 Danger – additional value that jurors could infer that when a person is rape and then has
consensual sex b/t time of rape and reporting then goes to notion that was not really a
rape
 If were rape idea that would not have then had consensual sex
o Evidence of previous consensual acts of sex with the D –
o Catch all – Lewis case – confrontation clause
 413 – evidence of other sexual assaults or offenses are admissible for bearing on any matter to which it
is relevant
o Prior instances which might tend to suggest that D engaged in previous offenses or crimes
o Not required to limit prior offenses to actual convictions –
o Not as concerned with protecting sexual background of D to establish potential
 Rape Narrative – Tyson case –
o Unlike white women who are typically constructed as chaste, black women as often portrayed as
hypersexual or harlots
o Patriarchal stories – Tyson embraced his role as a prototypical “beast”
o Washington – atypical – churchgoer, size, demeanor, intelligence – framed her as atypical black
women and thus was capable of seeing as a victim
o There are ways of overcoming typical social constructions but have to do identity work – have to
destabilize the stereotypes
 MPC – if acting purposely, knowingly, or recklessly regarding each of the material elements of the
offense he has sexual intercourse with a female under any of the following circumstances:
o Female is less than 10
o Unconscious
o Compels by force of by threatening her or another person with imminent death, grievous bodily
harm
 o Employs drugs or intoxicants to control her conduct
 Partial marital exemption under MPC – if living together and spouses
 Gender specific – only males can rape and females can be victims
Statutory Rape –
 MPC – includes an affirmative defense if child is above ten, but recognizes no spousal rape – spousal
exception
 State v. Yanez – D (18) charged with statutory rape for consensual sex with a 13, alleges mistake of age,
whether reasonable mistake of age is a defense? Due process violation of not being allowed to challenge
the facts
o Court – mens rea matters with sexual assault, but with minors policy decision by legislature to
take out the mens rea requirement and make it strict liability – due process about protecting form
of fundamental justice – nothing about removing mens rea that upsets a principle of justice that is
rooted in traditions and conscience of our people – no fundamental right here
 Policy choice to protect children, also a policy choice whether statutes include affirmative
defenses
o Dissent – 2 teenage lovers – D was not the class of assailants legislature was trying to punish
 Oberman article – keep strict liability to protect children
 Bright-line rule as sensible although imperfect mechanism for protecting minors
 Power dynamics – even if consent issue of power dynamics with adult and a child – even when its
teens
 Delgado article – applied in a discriminatory manner – against older men who have sex with girls from
good homes or minorities
 Laws used to punish men who are political unpopular or socially unacceptable
 Women are rarely charged for sex with younger men
Developments -
 1980-1990’s – rape laws became gender neutral, removed force standards for penetration without
consent
 At least some jurisdictions have begun to acknowledge mistake of age defense for statutory rape
Sodomy –
 Forcible - Social harm
 Consensual relationships – deviant offenses from moral condemnation
 Bowers v. Hardwick – D charged with sodomy for consensual sex with another man – argues it violates
his right to privacy and intimate associations inside his house
o Court – construes issue as whether a fundamental right to privacy for homosexual sodomy – no
 History of barring sodomy, everything done in one’s house is not illegal (rebuts Stanley
argument of declaring things obscene in one’s home)
 Focus on activity instead of personal relationships
 Moral component – use morality to construct criminal laws – treating as malum ense
instead of malum prohibido
 Malum prohibidum – socially constructed crime/ malum ense – everyone agrees as bad
o Dissent – constitutional right to privacy in decision, home, right to be left alone not about homo,
liberty interest in choosing your relationships
 Need to have some further justification from the state then just morality
 Lawrence v. TX – statute which makes it a crime to engage in same sex sexual activity – different then
Bowers which targeted homo and hetero sexual activity
 o Court – right to intimate relationships, precedent of Griswold, Roe, privacy sphere
 Criticizes history of Bowers – moral condemnation is not enough with a malum
prohibidum - either real social harm or protecting/achieving a valid social goal
 Barnes – wants something stronger from court – adult consensual relationships in privacy
of own home and gov should not be there under those circumstances
 Military Penal Code – still criminalize act of sodomy,
o Markhum – dealt with Lawrence principle in military setting – non-forcible consensual sodomy
still not allowed – military is unique setting, based on Lawrence on facially invalid, would have
to apply case by case basis – relevant factors in military environment
Chapter 10 – Criminal Law Defense –
 Defenses – any set of identifiable conditions or circumstances which may prevent conviction for an
offense
 Two categories –
o Case-in-chief defenses – government has failed to substantially prove all the elements required
for the offense - failure of proof defense
o Affirmative Defenses – elements of a crime are met but criminal culpability still does not attach
 Justification – conduct which is otherwise criminal but under the circumstances is
socially acceptable and which deserves neither criminal liability or sentencing
 Focuses on the act and seeks to show the act was not wrongful
 Self-defense – classic justification defense – actus rea but was first attacked by
someone else which removes inclination to deem it wrongful
o Act is justified or no social harm is said be involved b/c of the
circumstances
o 3 requirements of self-defense –
 Necessity - Actor has to reasonably believe in necessity of using
force
 Imminence - Actor reasonably believes that threat was imminent
 Proportionality - The use of force in response was in proportion
or not excessive relative to threat or harm faced
o Standard of reasonableness –
o No self-defense if were the initial aggressor – unless in some
jurisdictions if initial aggressor and then withdraw
o Escalation principle – if originally attacked but use excessive force then
lose self-defense – use a gun in a fist-fight
o Duty to retreat – in majority of jurisdictions no duty to flee when
presented with opportunity to
 Rooted in notion that hard to know when could have retreated –
don’t want jury second guessing
 Idea that right should never yield to wrong
 Counter – idea that all human life should be preserved if at all
possible –
 Duty to retreat jurisdictions – have developed castle doctrine
exception – no duty to retreat if attacked in own dwelling
  MPC – person may not use deadly force if he knows that he can
avoid the necessity of using such force with complete safety by
retreating
 No retreat in home requirement unless initial aggressor
o Some jurisdictions – transferred-justification doctrine – in self-defense
fire a gun and miss aggressor and hit an innocent – allow self-defense to
transfer to the actual victim
 Some courts – manslaughter if acted carelessly -
 Excuses – social harm has taken place but under the circumstances the actor should not
be punished
 Focus on the actor and show the actor is not morally culpable for the wrong
 Insanity – causes social harm but argues should not be punished because result of
mental condition
 Theories of excuse –
o Excuse necessary to encourage rational maximization – want to
incentivize people to act appropriately
o Criminal law premised upon deterrence and moral culpability – person
getting their just deserts and would not morally deserve it under certain
circumstances
 When person is insane or coerced their conduct is undetterable
o Causation theory – person should not be blamed for her conduct if it was
caused by factors outside of her control
 Under this theory insanity or coercion would not be blamed but
intoxication because it is self-induced would be
o Character theory – treat a person’s moral character as central to the
concept of deserved punishment – punishment proportional to moral
desert and measured by actor’s character
 Problems – would need to look at person’s entire life, sometimes
good people do out of character bad things, and assumes people are
responsible for their character but not always true
o Free choice or personhood theory – make sure that as a matter of free
volitional choice person has decided to break the law
o Some crimes also have specific defenses – ex: conspiracy – defense of withdrawal; attempt –
defense of legal impossibility
o Public policy defense/exculpatory –
 S of L – prevents prosecution even though legal elements and moral culpability is in
place – time limits (murder – no S of L)
 Immunity – non-exculpatory policy offense extended to those that committed elements
of crime and moral culpability attaches but some reason not for punishment (typically
plea bargaining and not full immunity)
 Self-defense –
o General rule of mistake of fact and self-defense - D is entitled to be acquitted on the basis of self-
defense if her mistake of fact regarding the threat was reasonable, if unreasonable will be
convicted
o Deadly force – deadly force is only justified in self-protection if the actor reasonably believes
that its use is necessary to prevent imminent and unlawful use of deadly force by the aggressor
o MPC – person justified in using force upon another if he believes that such force is immediately
necessary to protect himself against the exercise of unlawful force by the other on the present
occasion – subjective belief of actor
 Deadly force – if actor believes such force is immediately necessary to protect himself
against death, serious bodily injury, forcible rape or kidnapping
o Culverson v. State – D convicted of 1st degree murder, cocaine deal in car, says it was in self-
defense but victim claims he was initial aggressor – received instruction on actual danger instead
of apparent danger and whether duty to retreat
 Court – does not need to be actual danger but rather a reasonable blief that are about to
be seriously hurt or killed – instruction was wrong - Ex: unloaded gun – not actual danger
but would be apparent – but if first aggressor no defense
 No duty to retreat – although existed at common law don’t want people relying on
idea they have to retreat and empower aggressor
o Not based on machismo – based on fact that retreat confuses the jury and
leads to inconsistent verdicts – no second-guessing non-aggressor
 Dissent – should be a duty to retreat if there is a place of complete safety to which the
non-aggressor can turn – jury is capable of determining – reasonable man would flee not
cowardice
 Let the law handle unjustified aggression not non-aggressor
 **Self-defense requires necessity and how can you say force was necessary if
you had an opportunity to retreat
o People v. Goetz – D approached by 5 black youths on train, had screwdrivers in pockets, asked
him for $5, he shot them all with unlicensed gun– said he was mugged in past and afraid of them
– lower court used a subjective standard of self-defense – but NY statute said reasonable belief
 Court – bifurcated standard –
 D must actually believe he was in threat of danger
 But must also mimic a reasonable person under the circumstances – not supposed
to be a reasonable man just like D but a reasonable man approached by 5 youths
on the subway
 MPC – subjective standard – if D believes imminent danger –
 Court rejects this and says NY statute says reasonably believes while MPC just says
believes, therefore determination of reasonableness must be based on the circumstances
facing a D – including any relevant knowledge D had about that person, and prior
experiences – in light of all the circumstances
o Reasonable man –
 Embrace of vigilantism – have to protect ourselves – black people as hypersexual,
hypercriminal – notions of identity and stereotypes
 To the extent that willing to look at any of the background history then not truly dealing
with a man –
 In Goetz case would be dealing with a reasonable racist – but should that be the standard
 Are we going to import individual background characteristics? Are they ever important
 What if background gives notion of being victimized, troubled
 Idea of reasonable person in the actor’s situation – but how much should you consider
 o State v. Simon – D elderly homeowner – abnormally afraid of Asians and thinks his neighbor is
an expert in martial arts
 Court – jury should not have given a subjective standard of reasonableness but rather an
objective standard – court construes statute which says that D must have reasonable
belief as objective standard –
 Battered Women’s Syndrome and Self-defense –
o Popular theory in 1980’s – less now – should it be recognized as a defense? Changes in domestic
violence – not just men/women, but parent/child, same sex
o Examples of how law is gendered – reasonableness determined by juries
o Goetz – all white jury – reasonable to be a racist
o Evidence of BWS questionable in nonconfrontational cases -
o State v. Stewart – Issue of Imminence - D fatally shot sleeping husband after long period of
abuse of herself and daughters – whether she can receive a self-defense instruction where no
deadly threat or imminent danger contemporaneous with the killing – time-framing
 Court – can’t just be dangerous in the abstract but force contemporaneous with danger
 Two experts on BWS – cycle of violence – building of tension and violence,
culminates in an explosion and ends in a honeymoon – learned helplessness
 If time-framed used as in provocation context then she was in the time just before
the explosion – this would have been the only time she could protect herself
 Court sees this abuse as routine part of her life – reasonableness inquiry turns on
issue that husband was asleep – can’t reasonably fear someone that is asleep
 Hard to believe this was her only option – could have left, had the keys, he was
asleep, and she had been divorced twice before (knew how to leave)
 Court thinks a reasonable person would leave – cannot justify this scenario as one
which meets imminence requirement – perceived danger was at an unknown time
so no imminence – self-defense instruction was improper – must be reasonable
not subjective
 Even where force may be inevitable – premature until threat is immediate
o State v. Wanrow – man tried to molest son while staying with a neighbor, also molested
neighbor’s daughter, came to house, altercation, he makes statements while drunk, and D shot
him arguing self-defense because he startled her – whether error for jury to consider acts and
circumstances prior to crime – whether reasonable women?
 Court – Time-framing issue – entitled to totality of the circumstances, background to
determine whether reasonable
 Gender – long history of sex discrimination – law is gendered – statute says he,
commentary that reasonable man standard implies a gendered norm that may not
work for women
 Court being sexist? Gendered in reverse?
 Barnes – shift reasonableness to reasonable person and consider the background
factors instead of gender – size differentials, instead of gender (she was on
crutches) – court creating false positives by gendering
 Can’t rely on socially deviant character for reasonableness –
 Imperfect Self-Defense – making a mistake, typically a mistake of fact
o Responding with deadly force when attacked with less, don’t want to say completely morally
culpable, usually structured to give a mitigation – remedy in-between – lesser crime
 o MPC – state of mind distinction – if a person is reckless or negligent in having a belief about the
necessity of force under the circumstances or reckless or negligent in failing to acquire material
knowledge she loses any justification defense against prosecutions based on recklessness of
negligence
o Two versions –
 Nondeadly aggressor who is the victim of a deadly response – imperfect
 Kills when unreasonably believes the factual circumstances justify the killing –
manslaughter rather than murder
 Defense of Others – intervener’s right to use force parallels the 3d party’s right of self-defense
o Common law – status rule – only could defense those in special status relationship – mostly gone
 Now – can defend anyone
o Act at peril – only entitle to measure of defense that person you assisted was entitled to use –
 Mitigated in some jurisdictions to an imperfect defense
 Now minority rule – nullified by imperfect defense statutes
o MPC – imperfect self-defense – depending on what mens rea for crime
 Retreat principle – intervener required to attempt to secure victim’s retreat, if victim
would have been required to retreat if can reach complete safety
o People v. Young – D intervenes in fight b/t 2 older men and victim, in reality they are
undercover cops
 Court – Act at peril rule – making D require more information to understand the rights
and privileges of the victim, don’t want to incentivize to act without infor
 Dangerous precedent for plain clothes cops
 Dissent – minority view that gets rid of act at peril – imperfect defense so long as
reasonable and good faith can be exonerated under mistake of fact – no mens rea
 Defense of Habitation –
o Common law Approach– may use force, including deadly force if reasonably believe necessary
to prevent unlawful entry
o Modification #1/Middle Approach – Use of deadly force in cases in which the occupant
reasonably believes such force is necessary to prevent imminent unlawful entry and the intruder
intends to commit a felony or cause injury to the occupant or another occupant in the dwelling
o Modification #2 – Use of deadly force is justified if have a reasonably believe that the other
person not only intends an unlawful and imminent entry of the dwelling, but that the intruder
intends to commit a forcible felony or great bodily injury or killing – more than just committing
a trespass
 Problem – how do you know what type of crime intruder is intending to commit?
o People v. Brown – D contracted victim for landscaping, altercation, victim fired, victim
approached D on porch with hammer, D shot arguing self-defense
 Court – whether porch counts as part of the residence for home protection
 Creates a rebuttable presumption that a residential occupant has a
reasonable fear of death or great bodily injury when he or she uses deadly
force
 Nible case – standard of whether a reasonable expectation of protecting oneself
from unauthorized intrusions – whether reasonably expect to be free from
intrusion
  Expectation on D’s porch was diminished whether expect to be free from
unauthorized intrusion
 Porch not part of residence – no defense of habitation
 Not every state makes you wait until the person gets into the house and not every state
allows you to shoot them once they get into the house
 Defense of habitation for undisturbed repose – should not matter whether inside or
outside
o FL statute – 776.013 –
 Right to stand your ground and no duty to retreat if you are attacked in any place where
he or she has a right to be there – right to meet force with force including deadly force if
he or she reasonably believes it is necessary to do so to prevent death or great bodily
harm to himself or to protect another or prevent the commission of a forcible felony
 Included in the home protection portion of the statue – could be read to give some
presumption that if attacked in a place where lawful right to be justified by saying felt
threatened?
 Are we creating a self-defense assumption similar to the castle doctrine? That’s not
what’s supposed to be going on here but has been read this way
 LA Times article – argues that extends the castle doctrine to include anywhere a person
is entitled
 Includes crimes occurring and crimes committed – past crimes??
 Defense of Property – common law not allowed to use deadly force in defense of personal property
o At common law deadly force is never permitted to protect property, but in certain circumstances
can used deadly force to defend habitation because of elements of physical danger
 Can only use force to protect property in narrow circumstances – if reasonably believes
necessary such force is necessary to prevent imminent and unlawful dispossession
o Some states – can use force when commission of forcible felony (FL) , can defend your car (LA)
o MPC – may use nondeadly force upon another to prevent unlawful taking of property and in
recapturing property
 deadly force can be used if he believes that the other person is attempting to commit
arson, burglary, robbery or felonious theft or property destruction, force is immediately
necessary to prevent commission of offense and person previously used or threatened
deadly force against him or another, or use of nondeadly force would expose him or
another to substantial danger of serious bodily injury
o People v. Ceballos – D robbed in past so set-up mounted trap gun, 2 teens try to break in and
one shot in face – argued had a right to do indirectly what could have done directly
 Court – whether trap gun was excessive force under circumstances
 Use of deadly force cannot be used solely for protection of personal property –
court treats this as defense of property not defense of habitation because D was
not present so in absence just protecting his stuff
 Even if D was there – never justified in using deadly force in protection of
personal property
 Defense of habitation different because premised on unknown danger and need
for protecting occupants – here no occupants
 Policy – don’t like silent instrumentalities of death – no discrimination b/t robber
or child – history of no exception of liability for mechanical devices
  MPC – prohibits use of a mechanical device to protect property if its is intended to cause
or is known by the user to create a substantial risk of causing death or serious bodily
injury
 Necessity –
o Choice of evils defense – hinges on some sort of emergency resulting in your conduct labeled as
criminal being justified
o Never claimed in indirect civil protest – problems with causation – and legal alternatives
o General Elements –
 ***Harm ∆ was seeking to avoid must be greater than the harm ∆ would likely cause by
breaking the law
 Legislature has not determined the matter in a way that goes against the ∆
 Causal connection bt ∆’s illegal act and the harm ∆ was seeking to avoid—reasonable for
∆ to believe his illegal conduct would abate the threatened harm
 ***No effective legal alternative available to ∆
 ∆ was seeking to avoid a clear and imminent danger
 ∆ was not at fault for creating the dangerous situation
o MPC – conduct the actor believes to be necessary to avoid a harm or evil to himself or others is
justified provided:
 Harm or evil avoided is greater than that sought to be prevented by the law defining the
offense charged
 Neither the code nor other law defining the offense provides exceptions or defense
dealing with the specific situation involved
 Legislative purpose to exclude justification claimed does not otherwise plainly appear
o Imminent under common law – not under MPC – no imminence requirement under MPC
o Homicide - difference in how treat necessity in respect to homicide – Regina case – necessity is
never a defense to common law homicide – MPC doesn’t have any such wording
 MPC – example that killing an innocent person in order save lives of many more may be
a justification to homicide that would not be allowed under common law
o US v. Schoon – D’s indirect civil protest in IRS office for US involvement in El Salvador
 Court – rule for necessity – 3 elements:
 Balance harm/choice of evils
 Causal relationship/link b/t conduct and aversion of harm
 Whether other legal alternative existed
 Can’t meet any of elements – not a cognizable harm, no causal link (won’t stop US
involvement), legal alternative (as long as there’s a Congress with a right to make a
decision there is a legal alternative)
 Probably never necessity defense in indirect civil protest – always argument can lobby
Congress
o In re Eichorn – homeless man arrested for sleeping in designated public area, defense of
necessity said the shelters were full, dangerous walk, and harm of sleep deprivation
 Lower court – no necessity – had alternatives – another city or sleep in someone’s yard
 Court – Test in CA – act has to prevent significant evil, can’t be adequate alternatives,
harm cannot create greater harm than one avoided, good faith belief in necessity,
objectively reasonable belief, under circumstances did not substantially contribute to
emergency
  Under the circumstances at least colorable to question of significant evil –
 alternatives have to be reasonably available (all the shelters are full) – should
have been given necessity because he did not contribute to his own situation
 Unusual case – typically courts don’t like to allow necessity defense in personal hardship
cases, but here did not appear any other place to sleep that night and should have had
instruction
Excuses – morally blameworthy conduct, but under the circumstances should not be held accountable
 Duress – known as coercion – is an affirmative defense in which D claims he was threatened by another
person with physical force (either to himself or 3d person) unless he committed a specific crime
o Common law and MPC – don’t recognize threats to interests other than bodily integrity – no
threats to property or reputation recognized
o Basic elements –
 D acted in response to an imminent of death or serious bodily injury
 D had a well-grounded/reasonable fear that the threat would be carried out unless she
committed a specific crime
 D had no reasonable opportunity to escape the threatened harm
o Difference b/t duress and necessity –
 Duress is a response to a threat from a specific individual to commit the acts that
constitute a crime – wrongful conduct but not punished under the circumstances
 Necessity involves a response to a dire situation – actions not really wrongful
o Murder - Common law duress could not be a defense to murder, no such exception in MPC
 Very few state recognize an imperfect duress defense which reduces offense to
manslaughter
o Felony murder – general rule = that a person coerced to commit a felony during which a
person is unintentionally killed may raise duress defense – duress for underlying felony so
should apply for felony murder -
 Other states disallow the defense in all murder prosecutions, regardless of D’s mens rea
 Don’t care about the particularized context of the felony murder – no duress
defense whether intentional or unintentional – policy choice
 Duress defense barred in the abstract where underlying felony is dangerous –
results in limiting most felony-murder convictions as the underlying felony is
usually dangerous
o MPC – defense of duress when criminal conduct was coerced by the use of, or threat to use,
unlawful force against the actor’s person or the person of another that a person of reasonable
firmness in his situation would have been unable to resist
 Broader than common law duress – prior use of force, and non-deadly/non-imminent
threats – general applicability so can be raised in murder prosecutions – does not require
imperiled person to be D or member of D’s family
 US v. Contento-Pachon – D convicted of unlawful possession with intent to distribute – caught
transporting cocaine in swallowed balloons into US – said was under duress that would harm his family,
and argues necessity
o Court - sufficient evidence to go to the jury on duress as to elements of immediacy and
escapability –
 Immediacy – arguably not in immediate danger – conditioned upon his failure to
cooperate but as long as believed restrained question for jury
  Escapability – could have gone to police as was not physically restrained but D thought
police were corrupt in Bogota – reasonableness question for jury
 Court – rejects necessity argument – usually invoked when D is acting in interest of
general welfare, whereas duress is free will being overcome by outside will
 Necessity – usually forces of nature – here specific individual
o Dissent – immediacy measured contemporaneously – threat is a constructive force no one there
with gun
 Where there was a reasonable legal alternative to violating the law, a chance to refuse to
do the criminal act and avoid threatened danger the defense should fail
 State v. Hunter – Hitchhiker, requested instruction on compulsion – picked up in car, helped repair gun,
then Remeta started talking about his murders and how he should have murdered another hitchhiker,
issue whether defense of compulsion is available for a felony murder charge
o Court – can argue duress for felony murder if can use duress for underlying felony
 LaFave ex – if B can assert duress as an offense to the robbery charge, B should no lose
duress as a defense to the felony murder charge
 Entitled to a duress instruction even where the evidence is slight and supported only by
D’s own testimony
 Rejects AZ, MS rule that states that felony murder rule is no different than other types of
murder for which duress is not a defense, strict liability offenses – don’t distinguish b/t
accidental and intentional killings -
 BWS and Duress – whether BWS should be admitted where women committed offense under duress
from abuser
o Most courts deem BWS evidence irrelevant to claim of duress on grounds that duress requires
and objectively reasonable fear of imminent death or grievous bodily injury and evidence of
BWS supports only subjective fear – “feel” like have to do what he says
Insanity – trend in recent years not to let people off by reason of insanity – notion of verdict of guilty but
mentally ill – move to medically render them healthy enough to be moved to prison
 3 stages –
o Pre-trial competency - Incompetent stand trial – whether sane enough to be tried because can
appreciate what is happening and assist counsel in presenting his defense
 SC – government may forcibly administer anti-psychotic drugs to render a mentally ill D
competent to stand trial
o Mental competency into issue – whether found not guilty by reason of insanity
 M’Naugten test – ability to know the difference b/t right and wrong
 MPC – whether substantial lack of capacity to appreciate criminality or wrongfulness of
his conduct
o Mental capacity of convicted D on death row may be an issue prior to execution
 Federal Rule excuses conduct – 18 USC 17(a) - Where as a result of a severe mental defect or disease,
the actor cannot appreciate the “nature or quality of his acts or the wrongfulness” –
o Nature of quality – from the old standard – weird mixture –
o Harder standard with severe – no volition portion dealing with ability to comport behavior
 M’Nagthen test - Mental defect or disease rendered the D in such as way as –
o Not to know the nature and quality of the act he was doing, or
o If he did know it, that he did not know he was doing what was wrong
 MPC – two part rule – conduct is excused where result of mental defect or disease lacks substantial
capacity either to
o Appreciate the criminality (or in the alternative, legislature may adopt wrongfulness of his
conduct
o Or to conform his conduct to the requirements of law
o “Criminality” – option of legislature to use legal or moral wrong
 US v. Freeman – D sells drugs to an informant on two occasions, claims did not have sufficient capacity
and will to be held liable for the criminality of his acts – alcohol and drug user
o District court – under M’Naghten rule D knew what did was wrong –
o Court of appeals – MPC standard is out – which standard should apply
 Kadish – morality theory of criminality – some D’s are improper subjects for punishment
because moral condemnation is not warranted
 Can’t satisfy any of the purposes of criminal law – deterrence, rehab – don’t work
on someone that is incompetent
 Rex test – should not punish someone that does not know b/t good and evil – wild beast
test
 M’Naghten test – bad decision bad on Queen not wanting D to get off - reaffirmed old
right-wrong test distinction
 Move away from M’Naghten –
 Irresistable impulse idea – cannot act in cool and collected matter – did not work
in many circumstances
 Durham – D not criminally responsible if his unlawful act was the product of
mental disease of mental defect – created causation questions – what does it mean
to be a product of – doctors would force diagnoses to fit causation analysis
 Adopts MPC –
 “Know” is a difficult issue – depending on if doctor said yes or no doctor was
testifying to ultimate issue of guilt or innocent
 Lacks substantial capacity to “appreciate” requires more intellectual awareness
of wrongfulness –
 State v. Crenshaw – D convicted of 1st dg murder for killing wife, got deported from Canada on
honeymoon, wife stayed a few more days, thought she was cheating so killed her because his Moscovite
faith said it was not improper to kill an adulterous wife – calculated, methodical, took his time
o Court – M’Naghten test – problem that instruction defined right and wrong as legal right and
wrong instead of moral right and wrong
 Under the facts legal and moral are synonomous – D would have understood violating the
law and that his actions were immoral
 Who’s standard – must be objective/societal standard of morality
 Only exception – when believe actions are ordained by deity – no unique religions
 Future cases – court will create general rule that no definition of wrong should
accompany an insanity defense instruction – decision for jury
 Dissent – should apply the general rule in this case, does not like equating legal and
moral wrongs
 Wilson case – who’s standard should be applied?
o Moral wrong –
 Individual standard
  Societal standard
 Mixed standard – MPC standard - the actor believes that he or she is morally right, but
due to their defect they also believe that society would not blame them under the
circumstances
Diminished Capacity – out of favor
 Person can show suffered from defect or disease not amounting to insanity at the time he committed the
crime and therefore lacks the mental state required for commission of the charged offense will not be
found guilty of charged offense – not as morally blameworthy so punished less
 Problematic – Twinkie case – acquitted D after killed mayor of San Fran arguing diminished capacity
from too much junk food
 MPC 4.02 – does not break down as a separate offense – can introduce any evidence of mental disease
or defect – any sort of altered condition
o 2.10.03 – extreme emotional disturbance under murder statute will mitigate murder to
manslaughter –accepts both common law mitigations
Intoxication –
 Involuntary intoxication –
o Those jurisdictions that allow it – allow it for both GI and SI crimes
o Either ignore distinction of involuntary or craft it as a form of temporary insanity – used as an
affirmative defense without having to be committed
 Voluntary intoxication –
o Common law – not an affirmative defense to a crime, but rather drunkenness actually considered
worse
o Modified – since assign blame according to mental status/understanding – not fair to be charged
for understanding completely
 Whether SI or GI =
 SI – will be allowed to permit evidence – no SI for crime
 GI – will not be permitted to introduce evidence of intoxication
o MN v. Egelhoff – D killed two campers, said lacked the ability to commit the crimes, no
voluntary act or alternately could not meet standard of purposely, knowingly
 SC - historically never had unfettered to offer evidence that is incompetent (rules of
evidence have exclusions – no due process violation because no fundamental right
 Historically drunkenness made offenses worse – drunkenness itself could be
charged as an offense – does not help D
 No exception has been carved out over time – has not reached a level that became
fundamental right (although most places have begun to allow it to negate SI)
 Policy - have problems with drunks committing crimes, don’t want an excuse
 Society’s moral perception that one who voluntarily impairs his own faculties
should be responsible for the consequences – culture of violence with drunk
o Powell v. TX – D is chronic alcoholic, punished under statute which makes state of intoxication
in public a crime – claims 8th A violation, status crime, no volition but rather compulsion
 Court – not punishing for being drunk but drunk and coming into public
 Time-framing issue – similar to Decina – voluntary act of first drink (even though
under compulsion to continue drinking after that point)
 Policy choice – slippery slope, if alcohol is a disease don’t want defense to DUI’s
and protects alcoholics from potentially being civilly committed
  Robinson – can’t punish for status – not doing that here, being arrested for being
drunk in public which is conduct not for being an alcoholic
 Dissent – Robinson – person should not be punished for being in a condition that
he cannot control – if one of the conditions of the crime is premised upon what is
a disease for some people then becomes a status crime for those people
Cultural Defense - No where has it been adopted wholesale as an affirmative defense the cultural defense
 Renteln article – individual justice goes to notion that unfair to punish someone that would be law-
abiding in their own country that runs afoul here because of ignorance that someone who was born here
would have been aware of – individual culpability
o Pluralism – giving respect to the culture of the former country of way they adjudicate the crime
o Advocating a partial excuse – not wholesale excuse – use equality and liberty as justification
o If they subjectively believe that there conduct was not criminal in home-land consider those in
determining mental culpability – lesser mens rea or not the SI
 Sacks article – ignoring the rights of the victims – typically women and children, while recognizing
rights of typically men
o Idea of individual justice – giving right to oppressing individuals – privileging the individual D
and taking away the rights and protections from the victims
o Deterrence – by allowing these defenses hampering deterrence – create a favorable notion of
specific deterrence, but problem is that as a general deterrent people recognize that potentially
there culture could save them from harshest punishment
o If you can privilege culture why not privilege background information – what about
impoverished social background? Sub-cultures in America? Rejected because at least kneow of
the social norms by living in this country
o Hard to both respect the culture and provide protection for victims – victims may have come here
specifically to get away from the abuses of the home country
 4 ways of using culture defense -
o Affirmative cultural defense -
o Negate the mens rea through the cultural defense
o Mitigation – rather than charging based on standards for this country – might use cultural aspect
to argue mitigation and punishment that would have been given in the home country
 Mitigate down-ward the offense
o Argue as a different type of excuse – ex: temporary insanity
 Most of these defenses turn on questions of reasonableness – who’s standard of reasonableness?
o Reasonable American person or reasonable person in that culture
o Trying to get the benefit of ignorance of law – but generally don’t typically get to argue
ignorance – ignorance of law is generally no excuse
o Making a choice about who’s culture your privileging, certain actors over victims –
Incohate Defenses –
 Offenses which cover conduct designed to perfect a target offense but which fail to do so
 Why is it important to be able to charge for an offense when did not achieve target offense?
o Allow police to intervene before conduct is achieved
o Prevent the harm
o Particular nefarious crime because involved people working in concernt – added amount of
danger
 Attempt –
 o Actus rea and mens rea
o Common law actus rea – an act done with an intent to commit a crime, intending but failing to
affect the crime
 Used to be that all attempts were misdemeanors
 Over time made many attempt offense felonies – sometimes can be a felony not
withstanding that underlying crime was only a misdemeanor
o MPC – requires a substantial step toward the culmination of the commission of the targeted
offense
o Typically most crimes have a companion attempt offense
o Attempt offense merges with target offense – can’t be convicted of both attempt offense and
target offense – lesser included offense
 Sometimes even if not written as lesser included offenses – cannot be convicted of both
o Preparation - Period prior to the commission of the actus rea
o Must be more than mere preparation to be committing an act in furtherance of the target offense
 People v. Rizzo – D’s were attempting to rob a payroll, police intervened before they could find the guy,
arrested in building but payroll guy no where in sight – whether attempt or mere preparation
o Court – mere preparation – court hung up on fact that not close to finding intended victim
 Holmes Dangerously proximity to success standard –
 Nearness of danger –
 Greatness of harm –
 Apprehension caused by action –
 Must be so near to its accomplishment that in all reasonable probability the crime itself
would have been committed but for the timely intereference – court really only looked at
1st factor of test
 *Commentators accused court of using really using the Physical proximity test – all that
is required is an overt act that is proximate/directly tends toward complete crime
 Barnes – seems like D’s were dangerous here, police convinced of apprehension
 Abandonment –
o Common law rule of abandonment – no defense to crime of attempt
o Some jurisdictions – can’t abandon from an attempt once moved from mere preparation because
by committing some act in furtherance then already committed the attempt –
 Can only argue if still in mere preparation stage
o MPC – as long as voluntary and complete you can always abandon – as long as of your own
volition and not a response to circumstances to prevent apprehension
 State v. Latraverse – D charged with knowingly and maliciously attemping to dissuade an officer from
giving testimony at his grand jury indictment – whether mere preparation or attempt – found with
materials in car, note, but said was driving away and had abandoned
o Court – applies MPC standard – constitutes a substantial step in a course of conduct planned
to culminate in his commission of the crime – finds an attempt
 No abandonment – was not a voluntary and complete abandonment - a response to
prevent apprehension
 Mens Rea requirement –
o Common law – for the crime of intent must have the intent to commit the specific offense
 Two intents –
 (1) intent to engage in or commit the acts that comprise the actus reas
 o The acts which you hope will lead up to the target offense
o Intent to commit the substantial steps of acts in furtherance
 (2) specific intent to commit the target crime – serves a narrowing function with
regard to intent of target crime
o Intent to murder – has to be based upon intent to kill because involved the
specific intent
o Intent to do great bodily injury is not specific intent
 Always requires that D has the SI to commit the target crime to be guilty of attempt even
if target crime is a GI – can be a mismatch
 This rule makes it that you cannot attempt to do something unintentionally –
 Only FL and another state has attempted felony murder
 Involuntary manslaughter – no attempted involuntary manslaughter because
cannot have the intent to unintentionally kill someone
o MPC – acting with the kind of culpability otherwise required for commission of the offense
 Does not require SI like the common law – only the intent required for the target offense
o People v. Harris – D and girlfriend are fighting, when she tries to flee from him in fear – he
shoots out back window of car – charged with attempted murder – instruction said find intent if
intent to kill or intent to seriously injure or do great bodily harm
 Court – Common law standard - for the crime of attempt person must have the intent
to commit the specific offense
 Reversed conviction because instruction was wrong – jury must find that he had
the intent to kill in order to be convicted of attempt, cannot convict on a finding
that he had intent to do serious injury or great bodily harm
 Defense of Impossibility –
o Barnes – distinction b/t factual and legal impossibility is problematic
o Legal impossibility – if intended act is not criminal, no criminal liability for attempt to commit
the act
o Factual Impossibility – of the intended substantive crime is impossible of accomplishment
because of some physical impossibility unknown to the accused, the elements of a criminal
attempt are present – morally culpable
o MPC – gets rid of distinction b/t legal and factual impossibility - Person is guilty of attempt to
commit a crime if purposely engaged in conduct which would constitute the crime if the
attendant circumstances were as he believes them to be
o US v. Thomas – D’s accused of raping victim – problem victim was dead but were not aware,
issue whether they can have an attempted rape when victim is dead
 Court – where circumstances as you believed them to be would be a crime then can
convict of attempt – even if there was a mistake – upheld attempted rape – guilt of each
necessary element – had the requisite mens rea
 Concerned with D’s that think they are soliciting/attempting something illegal that
turns out not to be – want to be able to convict those D’s of attempt
Assault –
 Common law – convicted of battery if applied unlawful application of force to person of another
either willfully or in anger
 Incohate crime – because at Common law assault was an attempted battery
 Modern approaches –
 o (1) unlawful attempt + a present ability to commit violence
o (2) unlawful attempt + a present ability to commit violence + apprehension (place victim in
fear, created well-founded fear of violence)
 FL – well-founded fear of imminent violence
o (3) imminently placing one in fear of battery
 MPC – knowingly causing or attempting to cause injury to another or negligently causing bodily
harm with a deadly weapon - Collapses assault and battery into one offense
 Assault is typically a lesser included offense of battery
Solicitation –
 At common law – solicitation criminalizes the asking, enticing, inducing the criminal activity of another
o Crime committed as soon as solicitor uttered the phrase
 Solicitation merges – either convicted of soliciting or if person solicited actually commits the crime then
charged with commission
o Can’t be convicted of both but can be charged with both
 MPC – communication distinction –
o Solicitation does not have to be communicated under the MPC – ex: wrote a note and even if
note never reached them can still be tried with solicitation
 Common law – most jurisdictions for a solicitation to be given affect need to have communicated it
Conspiracy – typically does not merge (GA only state where merges)
 Conspiracy as punishment enhance because can charge for both – charge with attempt and conspiracy
 Policy – idea that people working in concert to achieve a criminal plot are exceptionally dangerous
o More nefarious – harder to break up even if remove one player
o Notion that because of agreement empowered yourself to go forward with plan more so then if
alone
 Common law – when have 2 or more persons agreeing to commit either a crime or some other corrupt,
dishonest, fraudulent or immoral act – does not merge
o Complete upon agreement alone constituted the crime
o Immoral acts and crimes – typically immoral acts gone away now
 Modified – two parts –
o Has to be an agreement – either bilateral or unilateral
o Must have an overt act in furtherance of the conspiracy or in furtherance of criminal objective
 Pretty simple to meet the overt act – anything in preparation beyond agreement
 MPC – conspiracy merges with complete crime – allows for unilateral or bilateral agreements
 Procedural advantages to charging conspiracy – encourages parties to turn on each other, sentence
enhancements in order to assist in prosecuting case, enhances number of years in prison
 State v. Pacheco – D convicted for conspiracy to commit murder, D was dirty cop, issue that was a
unilateral agreement not bilateral because other party was an informant setting him up
o Court – must be bilateral agreement – legislature intended there to be a meeting of two or more
minds
 Should have charged with solicitation or attempted conspiracy
 Dissent – MPC endorses unilateral conspiracy – should only really matter whether D
manifested objective criminal intent
 The Pinkerton Rule – rule of vicarious liability for conspiracy crimes
 o Two brothers involved in bootlegging crime – while one brother is in jail, his brother goes
forward with acts in furtherance of the crime – brother in jailed charged with conspiracy and
targeted crimes
o When two or more people agree with one another to commit a crime, so long as the agreement
remains in effect one party can be held responsible for the acts of the other person in furtherance
of the agreement
o Pinkerton - makes you vicariously liable for target offense attempting to commit and also for
other crimes that are reasonable foreseeable as a necessary of natural consequence of the
unlawful agreement
o Limits – typically only liable for offenses committed in furtherance of whatever you agreed to
 Ex: if agree to rob a bank and co-conspirator does something unrelated not liable
 However, Mothersill case – willing to expand crimes for which parties can be liable even
if not the specific target crime agreed to
 US v. Mothersill – D’s had drug conspiracy, one member of conspiracy was trying to kill Bailey to keep
her quiet with a bomb, police pulled over, and opened package with bomb and died – all charged with
officer’s death under vicarious under Pinkerton
o Court – Alvarez – extended Pinkerton rule to embrace substantive crimes occurring as a result of
an unintended turn of events – reasonably foreseeable but originally unintended crimes
 Limited – by the due process clause – have to either play more than a minor role or you
have to have actual knowledge of at least some of the circumstances and events
culminating in the reasonably but unintended substantive crime
 Factors in Alvarez that the court considered –
 Substantial amount of drugs and money involved in the drug conspiracy
 Given the amount of money and drugs, the conspirators must have been aware of
the likelihood that another member of their coterie would be using or carrying
weapons, that is necessary deadly force would be used to protect the conspirator’s
interests
 In light of the extensiveness of the huge drug enterprise, had to know that the other
coconspirators would be carrying weapons and would use deadly force if necessary to
protect the conspiracy – therefore, jury can reasonably infer from the size of the
conspiracy that murder could be on the table
 Alvarez says actual knowledge – but Mothersill can reasonably infer
 Death of Tillman – adds evidence that this attempted killing was in furtherance of the
drug conspiracy – all of the events link back to the drug conspiracy
 Mens rea for Conspiracy –
o Common law – looks like mens rea for attempts – 2 intents -
 Intent to enter agreement
 Intent to commit the target offense (SI)
o MPC – actor must have the purpose to promote or facilitate target offense, or to aid others in
committing, attempting or soliciting the action that constitutes the crimes
o People v. Swain – D’s charged with conspiracy to commit murder –
o
 Withdrawal –
o Common law – no ability to abandon or withdraw from the conspiracy, because the agreement
itself was the crime – like attempt (once attempt target offense, already committed offense so
cannot withdraw)
o New rule – must have both an agreement and an overt act in furtherance of = theoretically could
withdraw after agreement but before act
 However, interpret slightest act as being in furtherance of target offense, typically no
withdrawal found
o If you attempt to abandon the conspiracy after the conspiracy is completed but before the
achievement typically cannot be held liable for acts of former co-conspirators starting at point
you abandoned – as long as effectively withdraw prior to completion
o Jurisdictions have different rules for how you effect –
 Some must tell everyone involved your done
 Others tell everyone your done and prevent crime from happening (like the MPC)
 Some all the above and tell law enforcement
o MPC – 5.036 – can withdraw as long as renunciation is complete, voluntary and thwart
completion of the offense – if goal is achieved still charged with conspiracy under the MPC
o Affirmative defenses – D’s have the burden of persuading the adequacy of the defense
o If D produces sufficient evidence to negates an element the prosecution maintains the burden to
establish all the elements – all D has to do is produce and government has burden of persuasion
o US v. Read – D’s conspirators in mail and securities fraud – manipulating inventory and profits,
alleges instruction was wrong in that placed burden of proof of withdrawal on D
 Court – once D produces sufficient evidence of withdrawal the government has to
disprove withdrawal because it is an essential element of the crime (whether part of
agreement) – burden of persuasion is still on the government
 D is still liable for the conspiracy offense because withdrawal is not a defense – in
order to be a complete defense D would have had to withdraw and the 5 year S of
L would have had to have run
 But if he did abandon can no longer be convicted of coconspirators acts/target
offense – stops being liable under Pinkerton
o US v. Recio – drug conspiracy and police intervene, has 2 guys continue to set up sting on other
D’s – whether conspiracy automatically ends when object of conspiracy becomes impossible
 Court – MPC – conspiracy terminates when the crimes that are its object are committed
or when the relevant agreement is abandoned – would not find impossibility a basis for
termination
 Meets the elements of conspiracy – acts in agreement and acts in furtherance
 Policy – danger of accepting impossibility because it does not continue to protect
society –
 Makes conspiracy like attempt and other inchoate crimes