Outline

Sunday, April 04, 2010

4:38 PM

Setting the Stage

1. In general
a. Crime is often defined as "any social harm defined and made punishable by law"
b. Criminal law operates by a means of a series of directions, or commands, formulated in
general terms, telling people what they must or must not do.
i. Prohibitions
1) "must nots"
2) Can be satisfied by inaction
ii. Affirmative requirements
1) "musts"
2) Can only be satisfied by taking a specifically or relatively specifically described
kind of action
c. Commands are taken as valid and binding upon all those who fall within their terms when
the time comes for complying with them, regardless of whether they are compiled in a
single document. They are created for the community on the community's behalf with the
power and prestige of the community
d. Civil sanctions vs criminal sanctions
i. What distinguishes criminal from civil sanctions is the judgment of community
condemnation which accompanies and justifies its imposition
ii. Criminal conduct is conduct which, if duly shown to have taken place, will incur a
formal and solemn pronouncement of the moral condemnation of the community
e. Ex post facto
i. Cannot be charged with crimes which were created after it was committed
f. Double jeopardy
i. Cant be tried again after a jury acquittal
2. Proof beyond a reasonable doubt
a. Standard for criminal cases
b. Jury must unanimously be convinced beyond a reasonable doubt
c. Presumption of innocence
d. Unconstitutional to try to attribute a percentage amount of certainty on standard
e. State has to burden of proof to show guilt
f. On appeal, the question is whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt
3. Jury nullification
a. Jury power to acquit with finality no matter how overwhelming the proof of guilt
b. Policy
i. Can act as insurance against the government's bad or unfair laws
1) Can go the wrong way as well
a) White man acquitted in south for killing of an African American
ii. Race based nullification
1) Acquit African Americans for nonviolent and victimless crimes b/c they
represent a disproportional of prison populations

Principles of punishment

1. Policy reasons for criminal law

a. Prevent Crime
b. General Deterrence

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 a. Prevent Crime
b. General Deterrence
i. All of us law abiding citizens avoid violating substantive criminal law in order not to
get caught
c. Specific Deterrence
i. If a person breaks the law they are caught and punished. Punishment is designed to
teach that individual a lesson
d. Punish Crime
e. Incapacitation
f. Cannot commit crimes if you are in prison
2. Retributivist
a. Two premises
i. Humans possess free will and
ii. Punishment is justified because people deserve it
b. Backwards looking and justifies punishment solely on the basis of the voluntary
commission of a crime
c. The moral desert of an offender is a sufficient reason to punish him
d. The moral culpability of the offender gives society the duty to punish
3. Utilitarianism
a. Purpose of all laws is to maximize the net happiness of society
b. Pain inflicted by punishment is justifiable if it is expected to result in a reduction in the
pain of crime that would otherwise occur
c. Beneficial consequences
i. General deterrence
1) Offenders punishment may help deter others
ii. Individual deterrence
1) Deters offender from repeating
iii. Incapacitation
1) Prevents offender from committing crime while incarcerated
iv. Reform
1) Punishment may help to reform the criminal so that his wish to commit crimes
will be lessened, and perhaps so that he can be a happier, more useful person
4. How much and what punishment should be imposed
a. Indeterminate sentencing
i. Trial judges have broad sentencing discretion
ii. Judge, not the legislature, sets the appropriate punishment for each offender within
very broad legislative imposed parameters
b. Determinate sentencing
i. Judges more restricted in their discretion
ii. Either punishment time is set or they have very little leeway
c. Shaming
i. Can be used if it reasonable relates to the nature of the offense
1) Can't be used if its sole purpose is to shame
2) But if shaming is a side effect of a condition reasonably related to some
rehabilitative purpose, it is ok
d. 8th amendment and the death penalty
i. 8th amendment prohibits cruel and unusual punishment
ii. test
1) Makes no measurable contribution to acceptable goals of punishment and hence
is nothing more than the purposeless and needless imposition of pain and
suffering or
2) Is grossly out of proportion to the severity of the crime
iii. Examples
1) Death penalty disproportionate for rape
2) Life imprisonment not disproportionate for three strikes law

Modern Role of Criminal Statutes

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 Modern Role of Criminal Statutes
Principle of legality
1. Separation of powers
a. Legislature should be the governing body who can codify criminal statutes and common
law crimes
b. Prevents the courts and the police from creating their own policy
c. Limits judicial interpretation of statutes
i. Courts should not legislate by expanding the interpretation of statutes
ii. Courts should not apply common law crimes where a statute exists
2. Individual rights
a. Notice and fairness
i. Non retroactivity - no retroactive application of criminal statutes
ii. Principles of clarity - criminal statutes should be understandable to the reasonable law
abiding citizen
iii. Principle of lenity - ambiguous statutes should be interpreted in favor of the
defendant
3. Principle of Lenity
a. General principle - Statutes have to be strictly construed
b. Rule
i. If a statute can reasonably be interpreted either in favor of the State or the individual,
the reading most favorable to the individual applies.
ii. How to interpret
1) First, look at the ordinary meaning or common usage of the language
2) If ordinary meaning not clear, look for Congress' intent
a) Statutory language
b) Statutory purpose
c) Legislative history
d) Similar/comparable statutes
4. Void for vagueness
a. General Principle - A statute must give sufficient warning that men may conduct
themselves so as to avoid that which is forbidden
b. Rule
i. Courts must judge vagueness in light of its common law meaning, its statutory
history, and the prior judicial interpretations of its particular terms
5. Void as overbroad
a. General Principle - A statutes cannot be so overbroad as to proscribe innocent conduct or
conduct that is constitutionally protected (e.g., First amendment)
b. Statute cannot be so overbroad as to proscribe innocent conduct or conduct that is
constitutionally protected
c. Rule
i. A doctrine of overbreath cannot be invoked when a limiting construction has been or
could be placed on the challenged statue
Actus Reus
1. The physical or external portion of the crime
2. Cannot punish for thoughts
a. No act
b. Morally wrong to punish people for unacted upon intentions
3. Definition
a. A voluntary act
b. That causes
c. Social harm
4. Voluntary act
a. The act

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4. Voluntary act
a. The act
i. A bodily movement, a muscular contraction
ii. Involves physical, although not necessarily visible, behavior
1) Talking - movements of vocal chords and tongue but does not include the
internal mental of thinking about, or of developing an intention to do, a physical
act
iii. There can be bodily movement without an act
1) A grabs B's arm and swings it into C
2) B did not act voluntarily or involuntarily
iv. Act does not apply to the results of a person's bodily movements
v. Act must be voluntarily performed or else it is just an event
b. Voluntary
i. Narrow meaning for actus reus
ii. Definitions
1) Movement of the body which follows our volition
2) Willed contraction of a muscle
iii. A voluntary act involves the use of the human mind, an involuntary act involves the
use of the human brain
iv. Involuntary acts
1) Muscle spasms
2) Movements compelled by a third party
v. Policy rationale
1) The law cannot deter involuntary movement
a) But can encourage people to take action to prevent involuntary movement
2) Hard to assign more blameworthiness for an act that was not a result of free
choice
c. Time framing
i. Prosecution does not need to show that every act or even the last act was voluntary in
order to show criminal liability
ii. Sufficient that the D's conduct included a voluntary act
iii. Example
1) D, who had a history of seizures, has a seizure in his car and kills someone
2) Narrow time frame would show that D's seizure was involuntary and therefore
no actus reus
3) However, a broader timeframe can show that D failed to take the proper
precautions to prevent the seizures
a) This would be the correct actus reus
d. Possession as an act
i. Not guilty is contraband "planted"
ii. Must have knowingly received or procured it or failed to get rid of it after becoming
aware of its presence
e. Omissions
i. Generally, not criminal liability to act unless there is a duty to act
ii. Duty to act
1) Special relationships
2) Contractual obligation
3) physician obligation
4) Statutory duty
5) D creates risk
6) D voluntarily assumes care of a person
iii. Additional considerations
1) Person with duty physically capable of acting
2) Mental capability
3) Emotional capability
4) Moral considerations and duties with legal duties
iv. No duty to rescue

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 iv. No duty to rescue
v. Morality plays a role in the line drawing between act and omission
5. Social harm
a. Negation, endangering, or destruction of an individual, group or state interest which was
seemed socially valuable
b. Society is wronged when an actor invades any socially recognized interest and diminishes
any socially recognized interest which was deemed socially valuable
c. Dividing social harm
i. Conduct elements/conduct crimes
1) Harmful conduct
a) Driving under the influence of alcohol
ii. Result element/result crime
1) Prohibited result
a) Death of another human being
2) Does not matter how result occurred
iii. Attendant circumstances
1) Certain facts or conditions required for crime to have occurred
a) Breaking and entering of the dwelling house of another at nighttime
Mens Rea
1. In general
a. Broad meaning
i. A general immortality of motive, vicious will, or an evil meaning mind
ii. Moral blameworthiness
iii. Guilty of a crime is she commits the social harm of the offense with any morally
blameworthy state of mind
b. Narrow meaning - elemental approach
i. The particular mental state provided for in the definition of an offense
ii. Ex - purposefully, knowingly, recklessly etc
2. Policy arguments
a. Utilitarian
i. A person cannot be deterred from criminal activity unless he appreciates that
punishment lies in store of he persists in his actions
b. Retributive
i. It is morally unjust to punish those who accidentally, rather than by choice, cause
social injury
ii. By convicting a criminal D, society denounces the actor; it condemns and stigatizes
him as a wrongdoer
3. Intentionally
a. A person intentionally causes the social harm of an offense if
i. It is his desire to cause the social harm OR
ii. He acts with knowledge that the social harm is virtually certain to occur as a result
iii. Both versions involve subjective fault
1) If actor did not desire to harm or did not know that harm was virtually certain,
then no mens rea
2) Should have known/been aware does not matter
b. Motive has no bearing in substantive criminal law
i. If doctor kills terminally ill patient to put him out of his misery, doesn’t matter that he
had a good motive
c. When motive does matter
i. Specific intent crimes require proof of a specific motive
ii. Defenses - killing someone in order to protect owns life
4. Transferred intent
a. Liability attributed to a D who intending to kill or injure one person, accidentally kills or
injures another person instead
b. Law transfers the actor's state of mind regarding the intended victim to the unintended one

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 b. Law transfers the actor's state of mind regarding the intended victim to the unintended one
c. Justifications
i. Necessity
1) Bad aimer should not avoid conviction for intent to kill homicide because he
killed the wrong person
ii. Proportionality
1) To ensure that prosecution and punishment accord with culpability
5. Knowingly or with knowledge
a. A person has knowledge of a material fact if he
i. Is aware of the fact or
ii. Correctly believes that the fact exists
b. Willful blindness
i. Knowledge of an attendant circumstance can be found if he
1) Is aware of a high probability of the existence of the fact in question AND
2) Deliberately fails to investigate in order to avoid confirmation of the fact
6. Willfully
a. Actor intentionally committed the prohibited act
b. Alternatively, requires proof that the actor intentionally performed the prohibited act in bad
faith, with a wrongful motive, or in violation of a known legal duty
c. Distinction
i. In a, if D refused to answer questions because he thought it his constitutional
privilege, he would be guilty
ii. In b, D would not be guilty because he did not know he was breaking a law
7. Negligence
a. Actor is negligent if his conduct deviates from the standard of care that a reasonable person
would have observed in the actor's situation
b. Conduct is negligence if the actor takes an unjustifiable risk of causing harm to another
c. Objective standard
d. Factors B<PL
i. If burden of preventing the harm is less than the probability of the harm occurring
times the amount of loss, then actor is negligent
e. Different from civil negligence in that the acts are a gross deviation from the standard of
reasonable care
i. A substantial and unjustifiable risk of causing the social harm
f. Policy arguments
i. Utilitarian
1) General deterrence - punishment sends a useful message to others
ii. Retributive
1) Against - shouldn’t punish acts that weren't done voluntarily
2) For - blame justified on negligent actor's failure to perceive the riskiness of his
conduct creates a culpable indifference to the rights and interests of those
around him
8. Recklessness
a. Requires proof that the actor disregarded a substantial and unjustifiable risk of which he
was aware
b. Subjective - Founded on the actor's state of mind in regard to the risk
c. Actor was aware of the substantial and unjustifiable risk he was taking, and yet he
consciously disregarded it and proceeded with his dangerous conduct
9. Statutory interpretation
a. If statute is not clear on its face, judges consider
i. Legislative history
ii. Earlier statutes on the same subject
iii. The common law as it was understood at the time of the enactment of the statute
iv. Previous interpretations of the same or similar statutes
10. General intent
a. Any offense for which the only mens rea required was a blameworthy state of mind

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 a. Any offense for which the only mens rea required was a blameworthy state of mind
b. An offense that only required proof of mens rea in the culpability sense of the term is a
general intent crime
11. Specific intent
a. The definition of the offense expressly requires proof of a particular mental state
b. Specific intent offense is one in which the definition of the crime expressly
i. Includes an 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 OR
ii. Provides that the actor must be aware of a statutory attendant circumstance
c. Ex - breaking and entering of the dwelling of another in the nighttime with the intent to
commit a felony
12. Model Penal Code approach
a. Takes an elemental approach
b. Elemental terms
i. Purposely
1) Relating to the result or conduct
a) Actor acts purposely if it is his conscious object to engage in conduct of
that nature or to cause such a result
2) Relating to attendant circumstances
a) Acts purposely with respect to attendant circumstances if he is aware of
the existence of such circumstances or he believes or hopes that they exists
ii. Knowingly
1) Result
a) If the actor is aware that it is practically certain that his conduct will cause
such a result
b) Subjective test
2) Conduct
a) Acts knowingly if he is aware that his conduct is of that nature or that such
circumstances exist
3) Attendant circumstances
a) If a person is aware of a high probability of the attendant circumstance's
existence, unless he actually believes that is does not exist
iii. Recklessly
1) Person acts recklessly if he consciously disregards a substantial and unjustified
risk that the material element exists or will result from his conduct
a) Substantial and unjustified - gross deviation from the standard of conduct
that a law abiding person would observe in the actor's situation
2) Evidentiary standard proposed by MPC: two roles for juries
a) Whether based on the actors perception, the actors conduct involved a
gross deviation (subjective)
b) From the standard of conduct of a law abiding person in the actors
situation (objective measurement)
iv. Negligently
1) If the actor should be aware of a substantial and unjustifiable risk that the
material element exists or will result from his conduct
c. Nature of the reasonable person
i. Physical characteristics usually would be considered
ii. Mental, hereditary, intelligence, and temperament would not be considered
d. Transferred intent
i. Applies to crimes where the element of result must be purposeful or knowingly if
1) The actual result differs only with respect the victim or the property injured or
2) If the harm contemplated would have been more serious or extensive than what
was actually caused
ii. Applies only to crimes where the element of result requires reckless or negligence if
1) The actual result differs only with respect the victim or the property injured or

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 1) The actual result differs only with respect the victim or the property injured or
2) If the harm contemplated would have been more serious or extensive than what
was actually caused or
3) The actual result involves the same kind of harm or injury as the probable result
and it not to remote or accidental in its occurrence
e. Statutory construction
i. A single mens rea term modifies each actus reus element of the offense, absent a
plainly contrary purpose of the legislature
1) Except if some material elements of the offense precede the culpability term and
some come after
a) Enter an occupied structure with purpose to commit a crime therein
i) Purpose only applies to intent to commit a crime
ii. If no culpability is described, to be guilty actor must have acted purposely,
knowingly, or recklessly
13. Strict liability offenses
a. Crimes that by definition do not contain a mens rea requirement regarding one or more
elements of the actus reus
b. There is a general presumption against strict liability
i. If no mens rea element is present in statute, courts will usually infer a culpable mental
state
ii. Factors that can overcome the presumption
1) Statutory crime is not derived from common law
2) There is a legislative policy that would be undermined by a mens rea
requirement
3) The current standard is reasonable and adherence is properly expected of a
person
4) The penalty for violation of the statute is small
c. Public welfare offenses
i. Crimes that although not morally wrongful, could negatively affect the health, safety
or welfare of a significant portion of the public
ii. No mens rea element
iii. Different because instead of being inherently wrong, they are wrong because they are
prohibited
iv. Examples
1) Statutes prohibiting manufacture and sale of impure foods or drugs to public
2) Anti pollution environmental laws
3) Traffic and motor vehicle regulations
d. Non public welfare offenses
i. Different from public welfare because they usually carry severe punishment and
involve inherently wrong conduct
ii. Statutory rape
1) Usually arises in the situation of the attendant circumstance that the D did not
know the victim was under age
e. MPC
i. No strict liability unless the offense is a "violation"
1) Violation - offense that cannot result in imprisonment or probation, but may
result in fines
14. Mistake of fact
a. Specific Intent
i. The defendant is not guilty of an offense if his mistake of fact negates the specific-
intent portion of the crime – negating the element of mens rea.
ii. Still requires that mistake be in “good faith,” even if unreasonable.
b. General Intent
i. Generally, a person is not guilty if his mistake of fact was honest (good faith) and
reasonable – negating the moral blameworthiness of mens rea.
ii. Sometimes, even reasonable mistakes are not forgiven

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 ii.Sometimes, even reasonable mistakes are not forgiven
1) if there is still moral wrong vis a vis the actus reus
a) Look at the incident from the view of the D
b) If his understanding of the incident is still immoral, D could be guilty
2) If there is still legal wrong, vis a vis the actus reus
a) If, because of a mistake of fact, D believes the crime he is committing is a
lesser offense, he can be charged with the real, more serious offense
b) Example
i) More serious offense to sell contraband to someone under 18 than
over 18
ii) D mistakenly believes the person is over 18
iii) Can still be charged with the more serious offense
c. Strict Liability
i. Never a defense
d. MPC - the same for mistake of fact and mistake of law
i. “Ignorance or mistake as to matter of fact or law is a defense if:
1) the ignorance or mistake negates the purpose, knowledge, belief, recklessness or
negligence required to establish a material element of the offense; or
2) the law provides that the state of mind established by such ignorance or mistake
constitutes a defense.”
ii. Exception
1) the defense is not available if the defendant would be guilty of another offense
had the situation been as he supposed.
2) But punishment reduced to the remaining offense
15. Mistake of law
a. General rule
i. Mistake of the law is not a defense
b. Exceptions
i. entrapment by estoppel
1) When a person reasonably relies on an official interpretation of the law that
turns out to be erroneous
2) Generally,
a) Available only when the reading of the law is mistaken.
b) Not available to S/L crimes .
c) Affirmative defense: D must prove entrapment by estoppel with a
preponderance of the evidence.
3) A person is not excused for committing a crime if she relies on her own
erroneous reading of the law, even if a reasonable person – even a reasonable
law-trained person – would have similarly misunderstood the law
4) A person is excused if she reasonably relies on an official statement of the law,
later determined to be erroneous, obtained from a person or public body with
responsibility with the interpretation, administration, or enforcement of the law
defining the offense.
a) For an erroneous statement of law to be “official,” it must be contained in:
i) The text itself of statute or other enactment: (Note: pre-official
interpretation”) –note, this only works if the statute actually
permitted his conduct and this only happens if a subsequent judicial
decision affirms that the reading of the statute by the D was correct.
ii) A judicial decision of the highest court in the jurisdiction, even if
later determined to be erroneous.
iii) An official interpretation of the law (later determined to be
erroneous) secured from a public officer in charge of its
interpretation, administration, on enforcement
ii. legislative exception
1) When knowledge that the prohibited conduct is unlawful is an element of the
crime

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 1)
crime
iii. due process exception
1) When a person lacks fair notice of a legal duty imposed by law in violation of
due process
2) Factors
a) Punished activity was an omission
b) Duty to act imposed on the basis of a status (ex - location)
c) Offense is "illegal because prohibited"
c. MPC
i. See above in mistake of fact
ii. “A belief that conduct does not legally constitute an offense is a defense…when:
1) (a) the statute or other enactment defining the offense is not known to the
actors and has not been published or otherwise reasonably made available prior
to the conduct alleged or [no notice];
2) (b) he acts in reasonable reliance upon an official statement of the law later
determined to be invalid or erroneous, contained in [reasonable reliance]
a) (i) a statute or other enactment;
b) (ii) a judicial decision, opinion or judgment;
c) (iii) and administrative order or grant of permission; or
d) (iv) an official interpretation o the public officer or body charged by law
with the responsibility for the interpretation, administration or
enforcement of the law defining the offense.
iii. (4) Burden of proof: For Subsection (3): defendant must prove a defense by a
preponderance of the evidence.
d. Policy for general rule
i. Certainty of the law
1) Law is definite and knowable and should be learned
ii. Avoid subjectivity in law
1) Law should be interpreted by competent officials and courts
iii. Deter fraud
iv. Encourage legal knowledge

Causation

1. Generally
a. Causation is part of the actus reus requirement and is required for result crimes (crimes
which are defined in terms of the prohibited result – i.e., murder), but not for conduct
crimes (crimes which are defined in terms of prohibited conduct– i.e., DUI).
b. Causation is stricter than in the tort realm
2. Actual cause or cause in fact
a. Single causation
i. But for test
1) Prohibited result would not have occurred but for the D's conduct
b. Multiple causation
i. Aggravating cause
1) D’s conduct is a “cause-in-fact” of a prohibited result if the subject conduct was
an “aggravation” of an injury so as to make it more severe (e.g., lethal).
a) E.g., D1 and D2 simultaneously inflict nonmortal wounds, which in
combination resulted in death.
b) E.g., D1 inflicts nonmortal wound, then D2 inflicts second nonmortal
wound, which in combination resulted in death. Same result for D2 but
could call for proximate cause analysis as to D1.
ii. Substantial factor
1) D’s conduct is a “cause-in-fact” of a prohibited result if the subject conduct was
a “substantial factor” in bringing about the said result.

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 1)
a “substantial factor” in bringing about the said result.
a) Requirement of acceleration (at least in homicide cases). Contribution
without acceleration is not sufficient.
c. MPC
i. Uses But for test
ii. Adopts common law principles above to clarify
3. Proximate cause
a. Common law
i. Intervening cause - When some but for causal agent comes into play after the Ds
voluntary act or omission and before the social harm occurs
1) Act of god - an event that cannot be traced back to any human intermediary
2) Act of independent 3rd party - which accelerates or aggravates the harm cause
by D, or which causes it to occur in an unexpected manner
3) Act or omission of victim - that assists in bringing about the outcome
ii. Decisions based greatly on policy considerations or matters of fairness
1) De minimis contribution
a) The law generally will not treat a very minor but-for-cause legally
responsible for the result when there is far more substantial case to whom
responsibility can be attached
b) D hits V which results in a non mortal injury. V, while driving to hospital,
is struck by lightning. Ds causal connection is de minimis
2) Intended consequences
a) If an intentional wrongdoer gets what she wanted in both the result and the
manner she wanted, will be proximate cause even if an unforeseeable
event intervened
b) Mother wants to poison child so she puts poison in a medicine bottle for
the nurse to give to the child. Nurse doesn’t give child medicine but
sometime later, brother finds medicine and gives it to child. Mother is
proximate cause
3) Omissions
a) An omission will rarely supersede an earlier, operative wrongful act
b) D hits V in car negligently. Vs failure to wear seatbelt does not absolve D
of liability
4) Foreseeability of the intervening cause
a) Responsive (dependent) intervening cause
i) An act that occurs in reaction or response to the D's prior wrongful
conduct
One. Actions by victims to avoid harm
Two. Actions by bystanders to rescue victim
Three. Actions by medical personnel to treat victim
ii) D is not absolved of liability unless the response was both
unforeseeable and highly abnormal or bizarre
b) Coincidental (independent) intervening cause
i) A force that does not occur as a result of Ds wrong doings
ii) D's act puts him in a certain place at a certain time
iii) D is usually relived of liability unless the intervening cause was
foreseeable
5) Apparent-safety doctrine
a) Ds active force has put the victim in a position of apparent safety
b) D will be relieved from liability for any intervening causes after there is
apparent safety
c) Example - D threatened the life of V which caused her to leave the house
on foot in freezing weather. After reaching her father's house, she decides
to sleep outside and freezes to death. V had the choice to enter house and
be free from immediate harm but chose not to. D is not proximate cause
6) Free will

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 be free from immediate harm but chose not to. D is not proximate cause
6) Free will
a) Whether the intervening act involved the “free, deliberate, and informed”
conduct of a third party [including the victim]. If so, then the defendant is
more likely to be absolved of responsibility.
b) When intervening cause is a natural force or the actions of a person whose
conduct is not really free, then courts are more willing to find causation
b. MPC approach
i. Treats but for causation as the exclusive meaning of causation
ii. Matters of proximate cause relate to the actor's culpability
iii. Purposefully or knowingly is an element to the offense
1) The [causation] element is not established if the actual result is not within the
purpose or contemplation of the actor unless
a) [transferred mens rea] – the actual result different only because harm is to
different person or property and the harm designed or contemplated would
have been more serious or extensive or
b) [forseeability issue] Actual result involves the same kind of injury or harm
as that designed or contemplated and is not too remote or accidental in its
occurrence to have a just bearing on the actor’s liability or on the gravity
of his offense
iv. Recklessly or negligently is an element to the offense
1) Causation is not established if the
a) [in the case of recklessness] the actual result in not within the risk of
which the actor is aware or,
b) In the case of negligence, the actual result in not within the risk of which
the actor should be aware
2) Unless
a) (a) [transferred mens rea]: the actual result differs from the probable result
only in the respect that a different person or different property is injured or
affected or that the probable injury or harm would have been more serious
or more extensive thatn that caused; or
b) (b)[forseeability issue] the actual result involves the same kind of injury or
harm as the probable result and is not too remote or accidental in its
occurrence to have a just bearing on the actor’s liability or on the gravity
of his offense

Concurrence
1. Generally
a. There must be a connection between the actus reus and the mens rea
b. Two components, temporal and motivational
2. Temporal concurrence
a. D must possess the requisite mens rea at the same moment that her voluntary conduct
causes the social harm (actus reus)
b. No temporal occurrence when the mens rea exists before or after, but not during the actus
reus
i. Mens rea before actus reus
1) D wants to kill V and creates a plan to do it. Later abandons the plan and
befriends V. Accidently shoots and kills V on a hunting trip later
a) No mens rea during the actus reus
2) Concurrence satisfied if the voluntary act that causes the social harm occurs
with the mens rea, although the social harm occurs later
a) D mortally wounds V. V dies in hospital 3 months later.
b) Concurrence of mens rea and actus reus when bullet fired
ii. Actus reus before mens rea
1) D innocently kills V. Afterwards, D decides she is glad that she killed V

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 ii. Actus reus before mens rea
1) D innocently kills V. Afterwards, D decides she is glad that she killed V
2) D did not have the proper culpability when V was killed
3. Motivational concurrence
a. The motivation behind the act that causes the social harm must be the mens rea of the
offense
b. Cannot be some other thought process (mental state of preparing to commit the offense)
c. D intends to shoot and kill V when V gets home. D believes the gun is unloaded and tests
the trigger by pulling it. V unexpectedly enters and is killed
i. Temporal concurrence exits
ii. But no motivational b/c D's motivation for pulling the trigger was to test it
4. Continuing act doctine?
a. Get more

Criminal Homicide
1. In general
a. The unexcused or unjustified killing of a human being by another
b. A fetus has to be born alive to be considered a human being
c. Brain dead is considered dead
d. Lesser included offenses
i. Jury can convict D of a lesser offense even if charged with a higher one
ii. Example - charged with first degree murder but convicted of second degree
2. Common law
a. Murder
i. The killing of a human being by another human being with malice aforethought
1) Malice
a) Acts with malice if D possesses any one of four states of mind
i) Intention to kill a human being
ii) Intention to inflict grievous bodily injury on another
iii) An extremely reckless disregard for the value of human life
(depraved heart murder)
iv) Intention to commit a felony during the commission or attempted
commission of which the death results (felony murder rule)
ii. Intention to kill a human being
1) Proving intent to kill - willful
a) Must show that D subjectively intended to kill another person
b) Natural and probable consequences rule
i) Compare D to an ordinary person
ii) Say that an ordinary person intends the natural and probable
consequences of their actions
iii) D is an ordinary person
c) Deadly weapon rule
i) Use of a deadly weapon directed at a vital part of the human
anatomy allows for the inference of intent to kill
2) Killing must be deliberate and premeditated
a) Deliberate
i) Quality of the accused’s thought process: A killing undertaken with
a cool head – weighing the reasons for an against the action and
considering the consequences of the action.
ii) Severely intoxicated person might not be able to act with sufficient
depth of reflection to be guilty of first degree murder
b) Premeditated
i) Killer must have reflected upon and thought about the killing in
advance [Quantity]. States are split on the amount of time required
to premeditate. Some courts state that is could be in the time it takes
to blink an eye (which blurs premeditation and intent); other states
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 to blink an eye (which blurs premeditation and intent); other states
require that it takes some appreciable time, without stating how
much.
c) A person can premeditate without deliberating but cannot deliberate
without premeditating
i) Example - heat of passion killing lacks deliberation
3) If murder is willful, premeditated, and deliberate, it is 1st degree murder
iii. Intent to inflict grievous bodily injury on another
1) Malice is implied if a person intends to cause grievous bodily injury to another,
but death results
iv. Depraved heart murder
1) Malice implied if a person's conduct manifests an extreme indifference to the
value of human life
2) Extremely reckless homicide
3) Determined as a factual matter on the basis of the specific circumstances
4) Distinguishing from involuntary manslaughter
a) D disregards a substantial and unjustifiable risk to human life
i) Unlike involuntary manslaughter, D must know the risks instead of
should have known
b) Courts also consider
i) Moral culpability of D
ii) Socially undesirable
iii) Relationship between perp and victim
5) Examples
a) Intentionally shooting into occupied room
b) Driving car fast in stormy weather while intoxicated and hit someone
c) Russian roulette except you fire at someone else
v. Felony murder rule
1) A death that results from the commission or attempted commission of a
specifically listed felony constitutes first degree murder
2) Ds state of mind does not matter, operates like strict liability
a) Mens rea of the intention to commit a felony is transferred to homicide
3) Extends to accomplices
a) If D1 and D2 rob a bank and D2 shoots and kills V, D2 can be charged
under the felony murder rule
4) Limitations
a) Inherently dangerous felony
i) States limit the rule to homicides that occurred during the
commission of a felony dangerous to human life
ii) Determining inherently dangerous, 2 approaches
iii) 1 Consider the elements of the offense in the abstract
One. Whether the crime cannot be committed without creating a
substantial risk that someone will be killed
iv) 2 consider the facts and circumstances of the case to see if inherently
dangerous
b) Independent-felony (or merger) limitation
i) Felony murder rule only applies if the predicate felony is
independent to the homicide
One. Death resulting from armed robbery is independent because the
robbery's purpose (to take property) is independent of the
homicide
ii) If felony is not independent, then felony merges with the homicide
and cannot be the basis for a felony murder conviction
One. Example - assault with a deadly weapon leading to homicide
will be merged if the assault was an integral part of the
homicide

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 homicide
c) Res gestae - time, distance and causal requirements
i) Time and distance - must be a close proximity between the felony
and the homicide. Can occur from the point the D could be
convicted of attempted felony to fleeing the scene after the felony
ii) Causation - must be a but for causal connection between felony and
homicide
d) Killing by a non felon
i) Agency approach
One. Felony murder rule does not apply if a non felon party commits
the homicidal act
Two. But if an accomplice felon kills, all co-felons are responsible
ii) Proximate causation approach
One. Felon is liable for any death that is the proximate result of the
felony, whether the shooter is a felon or a third party
b. Manslaughter
i. An unlawful killing of a human being by another human being without malice
aforethought
ii. Types of manslaughter
iii. Voluntary manslaughter
1) Heat of passion
a) Intentional killing committed in sudden heat of passion as the result of
adequate provocation
b) Elements
i) Adequate provocation
One. Old test - categorical
First. Mutual combat, witnessing adultery etc
Two. Modern test - reasonable person
First. Would a reasonable person be provoked?
Second. Trend - to subjectivize the reasonable person
1. Look at whether the ordinary person in the Ds
situation would be provoked
Third. Jury might consider the gravity of the provocation (age,
sex, race, religion, culture) but less likely to consider the
level of self control (drunk, short tempered)
Fourth. Words alone do not constitute provocation
ii) Committed in the heat of passion
One. Anger, jealousy, fear, wild desperation
iii) No reasonable opportunity to cool off
One. Would a reasonable person have cooled off in the time that
elapsed between provocation and fatal act?
iv) Causal link between provocation, the passion, and the homicide
One. Misdirected retaliation - The person killed must be the person
who created the provocation
c) Policy
i) Provoked D does not act with a bad or corrupt heart, but rather from
the curse of passion to which even good men are subject
ii) If provoked, was not an entirely voluntary homicide
iv. Involuntary manslaughter
1) Criminal negligence
a) An act, lawful in itself, but done in an unlawful manner, and without due
caution and circumspection
b) Must be a gross deviation from the standard or care or recklessness
c) Should have known standard
d) Example - D fires a gun that knows is loaded at a person is guilty of
murder. D fires a gun that he thinks is empty but actually isn't, at a person

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 murder. D fires a gun that he thinks is empty but actually isn't, at a person
is guilty of manslaughter
2) Misdemeanor manslaughter rule
a) A homicide that occurs during the commission of an unlawful act not
amounting to a felony constitutes common law involuntary manslaughter
3. MPC
a. Murder
i. Mens rea
1) Purposely or knowingly or
2) Recklessly + extreme indifference to the value of human life
b. Manslaughter
i. Mens rea
1) Recklessly or
2) Kill someone which would normally constitute murder but under the influence
of extreme mental or emotional disturbance (subjective) for which there is
explanation or excuse (objective/subjective)
a) EMED (subjective) - D experienced intense feelings, sufficient to cause
loss of self control, at the time of the homicide
b) Explanation or excuse - reasonable explanation or excuse for the EMED
that caused the actor to kill (objective)
i) reasonableness should be determined from the viewpoint of a person
in the actor's situation under the circumstances as he believes them
to be (subjective)
One. Includes personal handicaps and other external characteristics
Two. Excludes idiosyncratic moral values
ii. Comparison with common law
1) Extreme mental or emotional disturbance more flexible
2) No requirement of provocation
3) Cool off period not considered
c. Negligent homicide
i. Common law equivalent of involuntary manslaughter except no misdemeanor
manslaughter rule

Rape
1. Traditionally
a. States have varied rape laws
b. General intent offense
i. No requirement that D had specific intent to rape
ii. Only that D had a morally blameworthy state of mind regarding the female's lack of
consent
c. Elements
i. Sexual intercourse
ii. Achieved forcibly AND
iii. Against the will (non consent) of the victim (female)
2. Social harm
a. Viewed today as both crime of violence and also a privacy/autonomy offense
i. Invasion of victim's body
ii. Personal space violated without consent
iii. Assault of the psyche
iv. Denies victim's autonomy
3. Actus reus
a. Forcibly - majority of cases
b. By means of certain forms of deception
c. While the female is asleep or unconscious

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 c. While the female is asleep or unconscious
d. Upon a female incompetent to give consent
i. Drugged, mentally disabled, too young
4. Forcible rape
a. Actus Reus Elements
i. Penetration
ii. By force or threat of force
1) Requires a showing that D used or threatened to use force likely to cause serious
bodily harm to the female or possibly a third person
2) Use of force can be used to show non-consent but non-consent cannot be used
to show force
3) Resistance
a) Generally, requires a showing that victim resisted or that she was
prevented from resisting by threats to safety
b) Large variance over how much resistance is required
i) To the utmost
ii) To make it evident to the perpetrator
iii) Reasonable resistance
c) Interplay with force
i) The greater the force, the less resistance required and vice versa
d) Interplay with non-consent
i) The lesser the resistance, the more likely there was consent and vice
versa
e) Modern trend
i) Eliminated or lowered the resistance requirement
One. To prevent the increased probability of injury if resisting
4) Fear of force vs threat of force
a) Threat of force requires an objective act coming from another person
b) Fear of force is a subjective emotion that female feared serious bodily
injury if she resisted
i) Not enough to satisfy threat of force requirement
ii) Ex - she didn’t resist because he was bigger than her and she was
afraid
c) Some combination of her subjective fear of harm and some objective
conduct by the male that places her in reasonable apprehension for her
safety are required
5) Modern trend
a) Berkowitz
i) Force can include moral psychological, or intellectual force to
compel a person to engage in intercourse
ii) Force is determined using a reasonable person standard
incorporating the totality of the circumstances
iii) verbal resistance is only sufficient when coupled with a threat of
forcible compulsion, mental coercion, or actual physical force of a
type inherently inconsistent with consensual sexual intercourse.
b) MTS
i) Force can be shown if male has not received a "yes" by words or
actions
One. No requirement for resistance or demonstrated non-consent
(saying no)
ii) any act of sexual penetration engaged in by the defendant without
the affirmative and freely-given permission of the victim to the
specific act of penetration constitutes the offense of sexual assault.
Therefore, physical force in excess of that inherent in the act of
sexual penetration is not required for such penetration to be unlawful
iii) Consent may be inferred from acts or statements reasonably viewed

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 iii) Consent may be inferred from acts or statements reasonably viewed
in light of the surrounding circumstances
iii. Without consent
1) Two views of consent
a) Internal state of mind - may subjectively, in her mind want sex or not want
sex but fail to manifest her wishes outwardly
b) Expressive, external concept - when permission is given verbally or by
some other external act by the party
2) Issues
a) Males may miscalculate female's internal state of mind in consenting to
intercourse
b) External consent may not always be "voluntary"
i) Yes may not be voluntary if a no would result in injury or death
3) Withdrawn consent
a) If consent is granted, it may be withdrawn before intercourse occurs
i) If consent is withdrawn during intercourse, the lawful intercourse is
not converted into rape
b. Mens Rea
i. General intent
ii. D must have intended to have sex without consent of the victim
1) D was in fact mistaken as to consent (subjective)
2) Ds mistake as to consent was reasonable (objective)
5. Limitation on jury instructions
a. Rape shield laws
i. Limits when can be admissible at court
ii. Classes
1) Prior consensual sexual acts with the accused
a) Almost always admitted because relevant in determining the victims
consent and Ds mens rea
2) Prior consensual acts with persons other than the accused
3) Reputation for lack of chastity

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