c




     

O p The Criminal Act

A p The Act/Conduct Requirement
1 p
asic assumptions when a court looks at statutory language: There must be an act, and
the act must be voluntary
2 p Ô
  (p : Martin was arrested at home and taken by police to a highway,
where he was convicted of being drunk on a public highway Since he was involuntarily
and forcibly carried to a public place, Martin cannot be convicted of public drunkenness
A person¶s criminal conduct must be voluntary to sustain legal conviction ± a
fundamental assumption of criminal law
3p The holding of Martin would not apply to a drunken person who sleepwalked
onto the highway, but the general rationale might suggest that he may not be
responsible
3p ºnder the MPC, Martin is a tougher case because he still chose to do the
voluntary act of yelling profanities even though there was an involuntary
component
3 p hat counts as a voluntary act? Ex: man in camper who strangled his wife in his sleep
during a night terror 3 options: Convicted, Acquitted, Onsanity
3p Prosecutor wanted insanity because he would be put away
3p ºnder the MPC, a prosecutor would argue that he voluntarily slept in the same
camper as his wife and stopped taking his medication, so part of the conduct
leading to her death was voluntary
{p ºnder 2 1(2(b, D¶s unconsciousness makes his act involuntary
{p ºnder 2 1(1, the conduct must only include a voluntary act
4 p Ñ
   (p 2: D voluntarily got into the car and drove, so the course of
conduct leading up to the deaths included voluntary conduct The voluntary act of turning
on and driving the car caused the death of the children Of he had a seizure which turned
on the car, it may be different

p Common Law Crimes
1 p © Ô   (p 4: Manley made false allegations to the police that a man hit her and
stole her bag She was charged with unlawfully effecting public mischief for her false
statements and for depriving the public of the police officers¶ services Court, claiming
traditional common law power to make law, held that an act that prejudices the
community is indictable as public mischief under the common law of crimes
3p The Manley court did not say it was creating a new crime; it was placing her
actions within a current category Kolender and Chicago would say this will be
too vague
3p Today, the outcome of Manley would probably violate the ³principle of legality´-
an ideal that forbids retroactive crime definition
3p The principle of legality reflects a variety of public policies: fairness to D¶s,
advance notice, separation of powers
2 p ºS Courts no longer feel that they can create common law crimes, but some jurisdictions
still recognize them
3p Crimes that were defined by the common law and never incorporated into
statutory language still exist
3p This does not violate the principle of legality because there is advance notice in
the cases
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3p There are no new common law offenses

3p Common law ideas are embodied in terminology and statutory interpretation- we
did not leave the common law behind This applies to all jurisdictions, even
though only 15/5 states explicitly recognize it
C p agueness and Due Process
1 p ü
 
 
 (p 5: Lawson was repeatedly detained or arrested under a CA
statute which required loiterers/wanderers to credibly OD and account for themselves
when an officer asked The Supreme Court held that the CA statute was
unconstitutionally vague on its face under the Due Process clause because it encouraged
arbitrary enforcement by failing to describe with sufficient particularity what a suspect
must do in order to satisfy the statute
3p 4th and 5th Amendment concerns here, but court chooses to use Due Process
agueness doctrine
3p Due Process Clause- a statute cannot be too vague
3p The void-for-vagueness doctrine requires that a penal statute define the criminal
offense with sufficient definiteness that ordinary people can understand what
conduct is prohibited, and in a manner that does not encourage arbitrary and
discriminatory enforcement
3p The legislature needs to provide minimal guidelines to guide law enforcement-
the CA statute gave too much discretion to the police
3p Must look at a statute as the court construes it, through People v Solomon (that is
where OD requirement comes from
3p Terry ³stops´ gave more power to detain someone for articulable suspicion

efore that you had to have probable cause
2 p oid-for-agueness Doctrine: 2 prong test
3p † TOCE: Penal statute must be sufficiently definite and clear so that an ordinary
person can understand what is prohibited/allowed There is something ³fictive´
about actual notice
3p  ER†ME†T: Does not encourage arbitrary and discriminatory enforcement
Discretion is usually allowed, but some statutes invite it For example, the
Lawson CA statute basically requires the officers to use discretion in determining
what OD is ³credible and reliable ´
3 p agueness (in addition to 2-part test
3p Court especially concerned with 1st Amendment rights and other constitutionally
protected behavior
3p Court considers whether it would be possible to have more precision
3p These all give clues as to how a court will respond to a claim of unconstitutional
behavior
‰p Ñ  


 
 (p 3: †o probable cause; Racial Omplications
5 p  
Ô

  (Supp p 2: Morales arrested and found guilty under a Chicago
rdinance which prohibited ³criminal street gang members´ from loitering in public
places ºnder it, if a police officer observes a person who he reasonably believes to be a
gang member loitering with 1+ persons, he shall order them to disperse Anyone who
does not promptly obey the order has violated the ordinance Morales challenged his
arrest on the basis of unconstitutional vagueness, in violation of due process Supreme
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Court held that in this case a law cannot be so vague that a person of ordinary intelligence
cannot figure out what is innocent activity and what is illegal
3p The Chicago ordinance was a pre-emptive action to prevent more serious offenses
(³broken windows´ theory Scalia¶s dissent likened it to a speed limit, calling it
³a small price to pay ´
3p Courts are much more willing to defend protected conduct (not necessarily
present in this case
3p The ordinary standard is to look at constitutionality ³as applied´ rather than ³on
its face ´ This statute resulted in tens of thousands of arrests over 3 years
D p Courts and Legislatures
1 p ü 






 


 (p : Keeler put his knee into the stomach
of his pregnant ex-wife in an effort to ³stomp the fetus out of her ´ The trauma crushed
the skull of the fetus, causing it to be delivered stillborn
efore the incident, the fetus
had a 
viability rate Court held that Keeler could not be charged with murder
because an unborn fetus was not a human being within the meaning of CA¶s murder
statute
3p On this case, it made sense for the court to look at old English common law
authority because the court presumes that in enacting the statute, the legislature
had the common law definition in mind (this is not always useful
3p The case was not decided on the facts, but on the law Two reasons why the
majority feels it is controlled by the statute:
{p Ëurisdictional: not a court issue- it is the legislature¶s jurisdiction to
change the statute because the court can¶t create new common law crimes
{p iolation of due process: no notice or fair warning Extending the statute
at this point to include fetus in the category of human being would deprive
Keeler of due process and would be considered ex post facto punishment
3p Ex Post Facto (After the Fact: The majority in Keeler refers to the ex post facto
clause in the 2nd part of its opinion The clause is found in Art 1 ³The Congress´,
Sect , pt 3 of the Constitution ³no ex post facto law shall be passed«´ and Art
1, Sect 1, pt 1 ³no States shall pass any«ex post facto law ´
{p Problem: CA is not passing a new law here (i e through the legislature,
so there is no claim of ex post facto law in the Keeler case
{p The Court says by analogy, if the legislature can¶t do it, neither can the
court because it would have the same effect on the D
{p This finds support in ×
 , where they discuss ³unanticipated judicial
enlargement´ of a SC trespass statute to civil rights demonstrators
Up ×
 was part of a broad campaign by lawyers trying to establish
that private businesses open to the public could not discriminate
They won on the basis of notice, but statutes against discrimination
were being passed at the same time
Up On ×
 , context matters a lot
2 p 

   (Supp p 4: Similar to Keeler, but the court reaches a broadly
different result Court held that a viable fetus is a person for purposes of vehicular
homicide statute, but that the new rule would be given prospective effect only and would
not be applied to the present defendant
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3p Cass majority agrees with Keeler dissent: the court can read human being to
include a viable fetus, and it should
3p Reject the notion found in Keeler that they are unable to develop common law
rules of criminal law because the Legislature has occupied the entire field of
criminal law; in MA, their criminal law is largely common law
3p Reject the suggestion that by using the term ³person,´ the legislature intended to
crystallize the preexisting common law with regard to who may be a victim of a
homicide
3p Reject that the rule of strict construction of criminal statutes prevents courts from
construing the word ³person´ to include viable fetuses
3p Made decision prospective to ensure fairness to D and avoid constitutionality
concerns
3p Ossues with ³Prospective nly´ decisions: people considering committing a
certain crime usually don¶t know the law; problem with judicial role because
setting general rules for the future is supposed to be a legislative role
{p Cass is good because it allows judicial flexibility without due process
issues; bad because the court is basically assuming a legislative role
{p State courts also have their own constitutions that may factor in as well
3 p ü 
and  :
3p MA (Cass is a common law state because the legislature never codified all its
criminal law; CA (Keeler is statutory criminal law only
3p Also, Cass only applied prospectively (gets around ex post facto issue in Keeler
3p Cass did not accept the idea of the ³bug in amber´- statutes are not fixed and the
court has more leeway
3p Date and nature of the statute: ehicular Homicide (Cass was not part of old
common law; it was a truly new American statute Court has no reason to look at
old common law for the definition of person Onstead it should consider the
modern legislature¶s statutory intent
3p Penalty Considerations: Relative punishment for murder (Keeler vs H (Cass
3p On each case, there is a majority and a dissent with different conceptions of how
the courts should act in these situations
4 p Ñ
 
  (p 1: D was president and partner of an investment club; indicted for
grand theft and moved to quash the indictment on the grounds that the crime of
embezzlement does not apply to the theft of partnership assets by a partner because each
partner is the owner of an undivided interest in the property Court held that the crime of
embezzlement extends to the theft of partnership assets by a partner
3p Court addresses the due process concerns arising from a court¶s interpretations of
a statute by examining whether common social duty under the circumstances
would have suggested a more circumspect conduct
3p This case turns on the foreseeability of the ultimate act within the scheme of the
criminal statutes and common law of the state This power of the courts to
interpret the law in retrospect is limited by due process and the necessity of
foreseeability
Ep missions:
1 p enerally: e have the choice to do good or bad things in our culture
3p Common kinds of legal duties: Statutory, Moral, Common Law, Contractual
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3p Ot is the narrow exception that omissions are sufficient to uphold criminal liability
(like the ood Samaritan laws in the Supp 
{p On drafting these statutes, language matters a lot (tense, modifiers, mens
rea words
{p Policy Ossue: should there be under some circumstances a duty on
everyone to intervene? These statutes are an indicator of change
2 p ×   (p 11: Man failed to provide care for his elderly mother, leading to
serious injuries and eventually her death Also prevented granddaughter from coming to
help the deceased Charged with injury to an elderly individual and sentenced to years
in prison Court held that since the court does not recognize legal duties derived from
common law and since no one was assigned a statutory duty to care for an elderly person,
the statute relative to omissions toward elderly individuals under which the appellant was
indicted is unenforceable
3p Key Relevant Facts: D was only charged for an omission; prosecutor made a
choice here to only point to the failure to provide medical care Ot seemed easier
not to connect up his actions (not letting granddaughter in, lying, etc  with her
injuries They went with what seemed to be the key- omission by failing to get
medical care The prosecutors and judge are treating this as just the next thing to
homicide
3p V presented on appeal: hether the indictment is fundamentally defective for
failing to include a statutory duty imposing a punishable omission under this
statute
3p Looking at the statute itself: states ³act or omission that causes«´
{p Policy matter of age
{p Even though the statute refers to an omission, there also needs to be a
statutory duty to act in TX (in most places, there just has to be a legal
duty, which can be derived from the common law
{p Penal provisions which criminalize a failure to act without informing those
subject to prosecution that they must perform a duty to avoid punishment
are unconstitutionally vague
{p A moral duty is not enough- we have a strong legal rule preventing
conviction in the cases where a legal duty does not exist Moral
imperatives are not the functional equivalent of legal duties
{p Legislature revised statute after this case was decided
3p On TX- A person who omits to perform an act does not commit an offense unless a
statute provides that the omission is an offense or otherwise provides that he has a
duty to perform the act Requires a statutory duty as opposed to a common law
status, contractual, or moral duty
{p Most jurisdictions allow pre-existing common law duties to apply; TX is
an exception because it wants to keep that power in the hands of the
legislature
{p Part of Texas¶s position comes back to notice
{p Also, the legislature is always elected, is state-wide, is representative of
the people, and has political checks
3 p Failure to Provide Sustenance
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3p ©    (p 12: D failed to procure medical attention for sick aunt D
found guilty of manslaughter and court upheld the conviction because ³every
legal duty is founded on moral obligation´ and it was D¶s ³clear duty´ to care for
her sick aunt
3p 
   (p 12: D failed to feed and care for a young child, causing his death
A jury found D guilty of involuntary manslaughter, but the CoA reversed because
the trial court had failed to require the jury to find that D had a legal duty to care
for the child (D was not child¶s parent but may have contracted to care for him or
secluded the child from his mother
{p On Ëones, the court could have found a duty similar to the one found in
liver because they were in a private place (issue about mother¶s
presence
{p O statute (Supp p  would cover Ëones if we assume that child neglect is
a crime
4 p Failure to Summon Medical Assistance for Drug verdose
3p Ñ
 ×
  (p 12 : D drank with and saw deceased take morphine; left
her and asked a friend to look after and let out deceased when she awoke D was
convicted of manslaughter for failure to render reasonable care, but MO Supreme
Court reversed because the fact that deceased was in D¶s house created no legal
duty on D
3p Ñ
 !
(p 13: D met deceased in a bar and took him home, where he
shot up narcotics and collapsed D moved to dismiss an indictment for involuntary
manslaughter on the ground that she owed no legal duty to the deceased, but the
court held that by taking him from a public place (the bar to a private place (her
home where she alone could provide care, D assumed a legal duty to summon
aid
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OO p The Criminal Mind: The criminal law addresses the required ³guilty mind´ in 2 principal ways-
doctrines of mens rea and special defenses
A p Common Law Mens Rea
1 p enerally: Common law is going to be shorthand for non-MPC
3p On CA, Keeler is in the common law family
3p States differ in how much the legislature has written down , but it all originally
came from the common law
3p  undefined/inconsistent mens rea terms- need to simplify
{p MPC has 4 defined terms/mental states: Purpose (subj , Knowledge
(subj , Recklessness (subj , †egligence (obj 
Up Subjective: hat a particular individual had in mind
Up bjective: Reasonable person
Up Recklessness is a hybrid of subjective (conscious disregard and
objective (risk that a reasonable person would not disregard This
risk is not just substantial, but unjustifiable Requires that the D
perceived the risk and disregarded it in a way that a law abiding
person in his situation would not have done
3p ant to know the nature and the purpose of his conduct;
have to ask specific subjective questions before we put it in
an objective framework
{p Rosetta Stone analogy between common law and MPC
2 p Ô

    (p 15: Morissette was a very important and influential decision;
famous passage that expresses an important truth very well Summary of the commitment
of modern criminal law to a mens rea requirement
3 p ©  " 
(p 11: D accidentally set fire to a ship while stealing some rum;
indicted for arson even though he did not intend to destroy the ship Court held that D¶s
felonious intent with respect to the theft did not establish his intent with respect to the
arson At a minimum, the offense for which Faulkner was convicted required that he
³ought to have foreseen´ the fire, but no instruction was given to the jury as to his
awareness of the probable consequences of his act
3p 4 Different pinions:
{p Fitzgerald (1: intended to do the very act with which he was charged
(subjective, MPC Purpose/it was the necessary consequence (objective,
MPC †egligence/having a probable result which the D foresaw
(subjective, comes closest to MPC Recklessness because the probability is
not high enough to fit knowingly/ought to have foreseen (objective, MPC
†egligence The word ³malice´ as this judge uses it goes from the highest
to the lowest mental state
{p Fitzgerald (2: if the overt act from which injury resulted was actuated by
any malice, and the injury is the reasonable consequence of that act,
malice is sufficiently established A consequence which any man of reason
might have anticipated (objective, closest to MPC †egligence
{p Palles: Doesn¶t care whether the individual saw the injury or not
(objective, MPC †egligence
4 p ©    (p 15: D ripped a gas meter off a wall for the money and
unintentionally released poisonous gas unto the air, partially asphyxiating an elderly
c



     

woman with whom he shared the house Trial judge instructed the jury that the word
³malicious´ in a statutory offense merely means wicked, and D was convicted CoA
quashed the conviction because they thought the jury should have been considering the
foreseeability of harm to the lady rather than D¶s wickedness in establishing malice
3p Mens rea term here is malice
3p On Faulkner, trial judge accepted that malice=general badness Same argument
being made here, that malice=wickedness Oncreasingly, courts are rejecting this
argument
3p CoA definition of malice required either:
{p An actual intention to do the particular kind of harm that in fact was done;
or
Up Cunningham did not intend to hurt the woman, so it does not fit
this first subjective standard, which is close to MPC Purpose
{p Recklessness as to whether such harm should occur or not (i e the accused
has foreseen the particular kind of harm that might be done
Up Also subjective; close to MPC Recklessness because the risk is not
high enough
3p This opinion does not accept negligence; requires that D foresaw the injury as a
minimum standard Faulkner did accept negligence
5 p Criminal †egligence
3p Frequently described as an especially egregious sort of callousness, different in
kind or degree from the ³ordinary´ negligence that will warrant recovery in a civil
suit for damages
3p 



ÑÑ

 
 (p 1: D was convicted of murder
because he flung a policeman who was hanging onto his car into traffic as he sped
off, causing the policeman¶s death House of Lords upheld conviction on the
grounds that ³once the accused¶s knowledge of the circumstances and the nature
of his acts have been ascertained, the D is responsible for the natural and probable
consequences of his acts ´

p Mistake of Fact
1 p Common Law Treatment of Mistake of Fact
3p enerally:
{p Federal government and about half of states still use common law
{p Common law makes a distinction between specific and general intent;
MPC threw it out
{p ³Specific´ and ³eneral´ Ontent: common law division of crimes for
purposes of determining the relevance of certain defenses Some crimes
require a specific intent eneral intent crimes are ³everything else ´ The
court has to decide if a specific statute is specific intent or general intent
because these terms do not occur in the statutory language
{p A mistake of fact is a defense to a specific intent crime if it is honestly
made (subjective standard A defendant would always prefer specific
intent
{p Ot is a defense to a general intent crime if it is ³honest and reasonable´
(objective standard
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{p The type of intent is useful for certain defenses (intoxication, mistake of

fact and for when people are allowed to introduce evidence for a defense
3p ³Know´ as a Mens Rea Requirement: ³know´ and its variants are read in non-
intuitive ways from time to time (be alert to the possibility of different
interpretations Sometimes ³know´ is an express mens rea term included in the
definition of an offense; sometimes the definition of the offense is silent on mens
rea hen ³know´ is an element of an offense and is to be taken literally, it will
be characterized as a specific intent
3p Specific Ontent Crimes
{p reen v State (p 1: D killed and took some hogs and was prosecuted
for stealing D¶s defense was that he thought the hogs were his own Ëury
asked to decide question of fact- did he have the intent to appropriate
someone else¶s property? Of not, he would be acquitted because an honest
mistake of fact is a defense to a specific intent crime
{p Cunningham statute (p 15 appears to be specific intent, but we don¶t
know how a could will read it until a D claims intoxication or mistake
This is the background the MPC was responding to with 2 2
3p eneral Ontent Crimes
{p State v alker (p 1: D charged with child abduction even though he
was one child¶s grandfather, was with the father, and thought the second
child was also his grandchild The crime of child abduction requires only a
general intent Since D offered evidence that he had made an honest and
reasonable mistake of fact, he was entitled to a jury instruction on the
issue
{p º S v glivie (p 1 : D convicted of making false official statements
and for bigamy because he thought he was divorced from 1st wife when
filling out documents and marrying 2nd wife
ecause making false official
statements is a specific intent crime, an honest mistake of fact regarding
the truth of the statement is a defense (not guilty
ecause bigamy is a
general intent crime, a mistake of fact must be both honest and reasonable
D did not take reasonable steps to determine the validity of his honest
belief (guilty
{p º S v Yermian (p 11: Makes the point that you might have a specific
intent crime where an element has general intent standards
Up Of a common law crime required a specific intent but the mistake of
fact was relevant to an element of the offense other than the
specific intent, the courts followed the rule for general intent
Up D knew his statements were false, but not that they related to a
matter ³within the jurisdiction of a dept or agency of the ºS ´ The
false statements required a specific intent as to their truth or
falseness, but the mistake of fact offered as a defense was not
relevant to the specific intent aspect of the crime
3p Strict Liability for rading Elements
{p At common law, the general intent rules apply to mistake of fact Of a D
steals jewelry he thinks is worth $5 but is actually worth $1K, evidence
of his mistake is not admissible as a basis for reducing his conviction from
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grand to petty larceny Ot is only a defense is, on the facts as the D believed
them to be, no crime at all would have been committed (here, at least petty
larceny was being committed On effect, strict liability is applied to the
³grading´ element of the offense (an element that differentiates one level
of criminality from another
3p Strict Liability for Ondependent Moral rongs; Regina v Prince (p 13: D took a
girl which he honestly and reasonably believed to be 1 but who was actually 14
D¶s conviction was upheld on the theory that D¶s conduct would have been
morally wrong even if the girl had been 1
{p Ëudge affirmed on the basis that mens rea should be required as to those
elements central to the wrongfulness of the act Liability should be strict
as to the remaining elements of the offense
C p MPC Mens Rea (2 2, 2 3, 2 4
1 p The MPC gives the legislature a way to take control of mens rea and give notice to
everybody
2 p The Actus Reus: The act elements of the offense are characterized as conduct,
circumstances, and results
3p Conduct elements describe the acts or omissions required to commit an offense
3p Circumstance elements consist of external facts that must exist in order for the
crime to be committed
3p Result elements are any consequences of the D¶s conduct that are incorporated in
the definition of the offense
3 p MPC Section 2 2 has 4 defined terms/mental states (Discussion of each beginning on
p 1 : Purpose (subj , Knowledge (subj , Recklessness (subj , †egligence (obj 
3p Subjective: hat a particular individual had in mind
3p bjective: Reasonable person
3p Recklessness is a hybrid of subjective (conscious disregard and objective (risk
that a reasonable person would not disregard This risk is not just substantial, but
unjustifiable Requires that the D perceived the risk and disregarded it in a way
that a law abiding person in his situation would not have done
3p ant to know the nature and the purpose of his conduct; have to ask specific
subjective questions before we put it in an objective framework
4 p Example of Four MPC Terms:
3p Purposely:
urn down house with intent to kill a person inside
3p Knowingly:
urn down house for insurance money, knowing a person is in there
3p Recklessly:
urn down house for insurance money, no one is in there but a
firefighter dies trying to save house
3p †egligently:
urn down abandoned house that you know no one is in but a
homeless person who was hiding in there dies
5 p Supplement Vuestions (p 11-12:
3p Look for any of the four mens rea terms Of none found, recklessly is the lowest
standard- 2 2(3
{p Recklessly: conscious disregard of a substantial (big and unjustifiable
(value-judgment risk 2 2(3 is a default/efficiency rule, but it also
represents a value judgment/policy MPC authors wanted a subjective
element, but not to the level of knowledge On most of these cases, the D¶s
c



     

actual mens rea is going to be higher than recklessness; we are just

establishing the lower boundary for mens rea
3p The casebook leaves out discussion of a critical part of 2 2(4: ³without
distinguishing among the material elements«´ p 1  is not the better way to
analyze statutes Ot incorrectly states that ³purpose is the same as knowledge ´ e
should follow the drafters¶ intent and not skip an analytical step
3p 2 2( is about conditional purpose, which comes up very rarely
3p 1 Recklessly
3p 2 Recklessly
3p 3 Recklessly
3p 4 (1,aRecklessly; no; (1,b trespassing- recklessly; recklessly
{p (1(b ³in a private place´ is a circumstance Recklessness because of
2 2(4 This statute prescribes a mens rea term, but distinguishes among
the material elements, so it does not follow the mens rea term in (a and
2 2(3 applies to (b
{p (1(a referring to trespass is placed before the mens rea term, so it
distinguishes among the material elements and its term should be
recklessly However, trespass itself is a defined term There is a mens rea
term of ³knowing,´ but there is a comma before the act of entering- so the
act of entering is reckless
{p Types of elements don¶t necessarily matter to 2 2 (4
3p 5 Recklessly
3p  ³occupied structure´-recklessly; ³enter´-recklessly; ³purpose to commit a
felony therein´-purpose
3p  Recklessly
{p ³night´ (A-2- at common law, elements that went to grading the
seriousness of a crime were strict liability; they did not require mens rea
The MPC calls these material circumstance elements that are not unrelated
to the seriousness of the crime
{p MPC 1 13( : night is an attendant circumstance; (1: is it a material
element? Yes (A-1  The legislature obviously thinks nighttime
burglaries are more serious/worse
3p  ³compulsion´-recklessly; ³under 1´-strict liability; ³under 14´-negligent
{p Os compelling someone to submit just conduct? The mens rea for the
compulsion is reckless
{p (A- this is not a modern rape statute The conduct requirement for
sexual intercourse is recklessness 213  (A-  covers all of 213 only
³Reasonable belief´ defined in 1 13(1 (A-2- means not reckless or
negligent, strict liability only You still have to have the mens rea as to the
act; it is the age they don¶t care about mens rea for (if the child is under
1 Of they are older than 1, negligence is the standard and the burden of
proof shifts to D that he reasonably believed the child was older than the
critical age
{p Reminiscent of the decision in Prince, where the fact that he was
committing an independent moral wrong overrode mens rea- context
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specific, nuanced decisions about mens rea where children, sex crimes,
etc are involved (Different than Faulkner and Cunningham
3p †o; terrorist attacks- no; Yes
D p Mistake of Criminal Law
1 p Mistake of Fact:
3p Common Law: looks at general or specific intent (D wants specific intent because
mistake only has to be honest, not reasonable
3p MPC 2 4 (A-22 Fact and Law treated together 2 4(1 is a tautology: if you
make a mistake and the prosecution can¶t prove mens rea, you have a defense- it
is included because it is different than the common law inquiry (no separate
inquiry, just about whether the mistake disproves the mens rea
2 p Mistake of Law:
3p Common Law Cases:
{p   "
 (p 21: D was charged with possession of ephedrine, which
is legal in some states but not in OD During trial, D tried to introduce
magazines w/ads for ephedrine but the court held that they were not
relevant because knowledge that possession of the drug was illegal was
not an element of the offense Court held that the mens rea element of the
offense of possession of a controlled substance is knowledge of
possession, not knowledge that the substance possessed is a controlled
substance
Up Of the mistake in Fox was a factual mistake, then all that is needed
is to disprove mens rea
{p People v Marrero (p 24: D, a federal corrections officer, was convicted
for carrying a gun even though he and other federal officers and the person
who sold him the gun had construed the statute a different way than the
court
Up Case was closely decided
{p Hopkins v State (p 25: D, a reverend, got permission to put up certain
signs from the state attorney, but was indicted for violating the anti-sign
law Attorney¶s approval thought to be inconsequential by the court Court
held that a person who commits an act which law declares to be criminal
cannot be excused from punishment upon the theory that he
misconstrued/misapplied the law
{p State v Striggles (p 2: Lower court decided a certain gumball gambling
machine was not illegal, and D bought one State Supreme Court decided
it was illegal and convicted D Court held that inferior court decision are
not available as a defense when the highest court of a jurisdiction passes
any given proposition
{p Lambert v California (p 211: ºS Supreme Court case, reversing
conviction of a woman who failed to register as a felon in LA, on the
grounds of a due process violation Reasoning: she did not know of the
duty and there was no proof of the probability of such knowledge; also,
upon becoming aware of the ordinance, she was not given a chance to
comply
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Up The statute was not unconstitutionally vague; the problem was that
she didn¶t know about it
Up hy did she win? She didn¶t actually do anything- it was an
omission rather than an act Also, her conduct was something that
the average person would be able to do legally She came to be
prosecuted because she was suspected of committing some other
crime The registration statute was a mere convenience for law
enforcement
Up The statute is not really aimed at serious antisocial conduct; the
court suggests that because they could not prove what they thought
she did, they prosecuted under this omission instead †o notice,
actual knowledge, or probability
Up 3 Reasons why it was overturned:
3p 1 mission
3p 2 †o Social Function/Duty/Onterests
3p 3 ³ºsual Suspects´
Up ery few cases have followed Lambert because usually the statute
is more serious than this For example, the sex offender registration
has a much higher social value and statutory visibility, and
prevents a great danger to society
Up Hypo 1 ± Father allows son to starve and claims he didn¶t know it
was murder (p 212: not at all the same as Lambert Murder
statutes are not a mere convenience for law enforcement He had a
commonly understood societal responsibility Social context
matters here
{p Entrapment; Cox v Louisiana (p 213: ºS Supreme Court case, found a
violation of due process because police arrested demonstrators after they
were told by police how close they could stand without violating the
relevant statute Entrapment by estoppel
Up
ackdrop is protest of apartheid system in the South D¶s wanted
to protest around a courthouse where civil rights protestors are
being tried Supreme Court talks about notions of fair warning and
abuse of power (but this reasoning is not the norm
Up Feels a lot like Papachristou
Up Raley v hio: McCarthy era witchhunts- at this time, the Court
was sensitive to what they viewed as an abuse of authority
Up These 2 cases have a sense of luring people in and then trapping
them The criminal conduct is a creature of the government¶s own
actions; D was not predisposed to commit the crime
3p MPC and Common law as a general default rule both start from the rule that mens
rea as to the law doesn¶t matter ³[Reasonable] Ognorance of the law is no
excuse ´ Ëustification:
{p Sacrificing the individual to the broader good (matter of public policy
{p Don¶t want to make the courts decide every time that the D knew the law
{p †o incentive for people to decide what the law is
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{p Fundamentally inconsistent with the rule of legality (the law shouldn¶t be

different for every person
{p Debate over whether this is too harsh
{p Several states have enacted provisions that are much more protective of
Ds
Up †Ë and Texas are more likely to pick up people who really tried to
comply with the law but broke it anyway
Up Texas Penal Code (p 213: opposite of what MPC says- starting
point that ignorance of the law is no excuse Double requirement of
reasonableness as to belief and action Doesn¶t cover personal
belief or relying on private lawyers
Up †Ë Penal Code (p 21 has a fairly high standard: ³diligently
pursue all available means´- higher standard than a reasonable
effort
3p hat should be the exception to the general rule?
{p On 2 4(3 and 4, the MPC really tried to make a policy change to the
common law
{p 2 4(3(b ³reasonable reliance´ leaves open the possibility that the
reliance was not reasonable
Up There are multiple statutes that make a change here, and good
lawyers need to look at the precise wording
Up Ëudicial Decisions: Should people like Striggles be able to rely on
the decision of the municipal court or trial court?
3p Lower courts get reversed all the time They may not have
followed precedent or are not very persuasive Of you know
the decision is being appealed, you should have a pretty
good idea that the decision may not be reliable because it
has not been through the appellate winnowing process
Up Does Striggles fall within 2 4(3(b with his letter from the
mayor? Perhaps (iii an administrative grant of permission, but it
doesn¶t fit well hat about the county attorney? On (iv the word
³the´ implies that there is only one person who can perform this
function
Up Does Marrero have a case here? He could argue that he falls within
(i because he was relying on a statute There is a notion of an ex
post facto issue when the erroneous advice comes from a valid
source (like the federal government
Up Marrero does not qualify under the †Ë code because he did not
³diligently pursue all means available ´ Striggles didn¶t actively do
anything himself- there is more he could have done
Up Long has no argument under the MPC 2 4(3(b, but he wins
under the revised †Ë penal code
3p MPC 2 2(  and 2 4: ºnless it is specified, you don¶t have to have any mens rea
with regard to the law (policy judgment here consistent with common law that
everyone is presumed to know the law
{p 2 4(1 rejects the common law¶s general and specific intent rule
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{p ne way to think about 2 2(  and 2 4 is to see it as two default rules

representing 2 extremes about mistake of law
{p How does 2 2(  relate to 2 4(1? 2 4(1 talks about ignorance/mistake
that negatives the purpose, etc requirement to establish a material element
of the offense †ormally, these are mistakes of non-criminal law
{p 2 2(  adopts the rule that no mens rea is required as to the law with
which you are charged unless the legislature specifies to the contrary
Up 2 2(  applies to provisions of the MPC, not property/family/etc
law because the MPC is the ³the law determining the elements of
the offense ´
Up Ratzlaf v ºS (p 341: ºS Supreme Court held that ³willfully
violating´ a statute against structuring transactions required proof
that D acted with knowledge that his conduct was unlawful The
conduct alone was not enough
3p This is an example of where the legislature did specify a
level of mens rea
3p
eale finds Ratzlaf unpersuasive as a decision; Congress
immediately changed the law to require no mens rea after it
was decided
3p Cases like this are unusual and an exception to the rule
E p ther Mistakes of Law
1 p Ognorance or Mistake of †on-Criminal Law: the situation arises when the D makes a
mistake of non-criminal law relevant to the criminality of conduct
3p Common Law: in specific intent crimes, mistake of the non-criminal law was a
defense (general intent crimes typically did not exculpate on the basis of mistakes
of law
3p MPC treats mistakes of non-criminal law the same as mistakes of fact throughout
all levels of culpability
oth are a defense if they negate a required mens rea
element
3p eneral Ontent Rule; Long v State (p 215: D was reassured by his attorney that
his divorce was valid He remarried and was convicted of bigamy, a general intent
crime Strictly speaking, the D¶s mistake was not a defense to a general intent
crime (p 21 Revisited: Court recognized the asserted defense by adopting and
exception to the ignorati juris concept similat to the †Ë statute
3p People v
ray (p 21: D convicted on 2 counts of being a felon in possession of
a concealable firearm Ossue was whether he knew he was a convicted felon Court
reversed D¶s conviction on ground that the jury had not been properly instructed
on the doctrine of mistake of fact
F p Ontoxication
1 p English Common Law:
3p The English rule depends on what mens rea term is required by the statute Of you
would have foreseen the risk sober, then not seeing it because you are drunk is no
defense and culpability is established for general intent crimes Of a crime is
specific intent, then D can introduce evidence to show he was too drunk to form
the required intent
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{p Specific or general intent is determined by the judge and matters in

mistake and intoxication cases
3p Director of Public Prosecutions v Majewski (p 22: D convicted of assault after
an altercation at a bar; appealed claiming the defense that he was intoxicated and
could not have developed the mens rea to commit the offense Court held that
voluntary intoxication is not a defense to general intent crimes because the act of
taking drugs and alcohol is sufficient to satisfy the mens rea requirement
{p The Court¶s decision is seen as a policy compromise rather than as a
logical conclusion
2 p MPC 2 : On general, drunkenness is a defense if it negatives the mens rea However, if
recklessness is the mens rea, then it is not admissible or legally relevant (³immaterial´
The D¶s voluntary intoxication shows that he is taking the risk (P and K do not work
here
3p oluntary Ontoxication- 2 (5(b: doesn¶t matter if you don¶t know how strong
the substance was Of you take an intoxicating substance then you are taking the
risk that it is much strong than you think and you will be responsible for your
actions
3 p ºS †on-MPC Common Law Today: There is a consensus in American law that
intoxication evidence is inadmissible to negate mens rea for general intent offenses
3p Specific Ontent Crimes: Restrictive positions- 11 states do not allow evidence of
intoxication to be admitted in specific intent crimes
3p Policy Ossues: Fairnes of equating drunkenness with the crime making a moral and
legal equation (reminiscent of ³general badness´ in Faulkner and Cunningham;
discouraging drunkenness; thinking about the harm/victims rather than the
perpetrator¶s individual culpability
4 p Ontoxication v Self-Defense as a defense: is intoxication really an exculpatory defense?
3p Self-defense and other defense introduce a new factual issue going towards
disproving the elements of the offense
3p Ontoxication only goes to disprove mens rea- it is a restrictive doctrine because the
defendant may not be able to introduce it Ontoxication Defense=†o Mens Rea
Defense (don¶t always get to use
3p ºnder common law jurisdictions following Majewski rule, can only introduce
intoxication evidence for specific intent crime
{p hat should we tell the jury in a Majewski Common Law jurisdiction?
CA v H (p 22 :
Up Ot would be harder for the D to show that he lacked the capacity to
form an intent ( H
Up hat is practical considering the jury¶s limitations?
{p Shifting the burden of proof:
Up ver 1 years rape
Up Rely on a statute- 2 4(3
Up H jury instructions
Up
of the time, the state has the burden of proof under the MPC
3p On the ºS, roughly 11
of jurisdictions take a harder stance that intoxication
evidence can never be introduced even if it is logically relevant to the case
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{p (p 22 Montana v Engelhoff quote: Supreme Court case asking if it is

constitutional to keep logically relevant intoxication evidence out,
basically making it legally irrelevant Talking about deterring dangerous
behavior and changing cultural norms of irresponsible behavior while
drunk- social policies that trump the normal considerations of intoxication
asa defense
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OOO pMens Rea Structure: Ollustrations from Federal Law

A p Strict Liability/Public elfare ffenses; Statutory Onterpretations
1 p Strict Liability: means no mens rea to at least some of the elements (typically not all
3p Shifts in law towards an increasing emphasis on mens rea (recognized by
Morrissette
3p †ew generation of offenses in which strict liability is more important
(Dotterweich and Park- the public interest in having safe medicine and food is
very high
3p How do we reconcile these? Morrissette- if the offense has a common law history,
it does not lose its common law mens rea requirement (analogous to Keeler
ut
the court also recognizes strict liability offenses in Morrissette as well
2 p Morissette v ºS (p 234: D went onto government property and took spent bomb casings
(which he believed to be abandoned and sold them as scrap metal for $4 D was
convicted for stealing government property under a statute stating ³did unlawfully,
willfully and knowingly steal and convert property«´ even though he had no intent to
steal (question of the mens rea of knowing; his conduct was not at issue Supreme Court
reversed conviction, holding that the mere omission of any mention intent from the
relevant statute will not be construed as elimination that element from the crimes
denounced
3p The question at the trial level was whether the jury should be told that the
government has to prove that he knowingly converted government property The
trial court and CoA thought it was irrelevant whether or not had mens rea
3p Legislative Ontent: the offense was not a new public welfare offense, which could
fall under strict liability For older offenses, whatever was used in common law
for mens rea should be assumed hen the legislature took in common law
offenses, it took in all key elements of the crime, including mens rea
3p Of this case occurred in †C (non-MPC state with the same facts and statutory
language, the state court does not have to follow Morrissette because it is not a
constitutional issue, just statutory interpretation Alternatively, all state court
judges would have to follow Lambert However, it is likely that a state judge
would be persuaded by Morrissette
{p MPC states have their own version of analysis to follow
3 p Public elfare ffenses (p 244:
3p º S v Dotterweich: President/M of drug company convicted of a misdemeanor
for company shipments of adulterated/misbranded drugs; Supreme Court upheld
his conviction
3p º S v Park: CE of ACME markets charged with 5 violations of FDA act
because of shipments of food exposed to contamination in 2 warehouses;
convicted and Supreme Court affirmed
4 p Mens Rea Elements in Federal Crimes/The Legacy of Morrissette:
3p ºS v Freed (p 25: D indicted for possession of unregistered hand grenades in
violation of a federal statute Supreme Court held that the act required no specific
intent or knowledge that the hand grenades were unregistered and that the only
knowledge to be proved was knowledge that the instrument was a firearm
{p Reasoning- the statute is a regulatory measure in the interest of public
safety (like Dotterweich eighs the possible injustice of subjecting an
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innocent owner to a penalty vs exposing innocent people to an

unregistered hand grenade
{p Concurrence goes through MPC steps to come to the same conclusion
3p Staples v ºS (p 254:
{p Penalty considerations in Staples (bottom of p 25: ºnless Congress says
so, we should not apply the public welfare offense rationale to interpret
any statute defining a felony- have to consider mens rea Court did not
accept this rule Court held that a sever penalty tends to suggest that
Congress did not intent to eliminate a mens rea requirement
5 p Strict Liability Problem Handout: D attempted to board a plane with a butcher knife in
his carry on; claims he intended to check his bags but arrived late to airport Ossue over
what mens rea is required
3p overnment would argue for strict liability; D would argue that having a
concealed weapon was a common law offense requiring intent; overnment:
common law was not considering airplane safety; this is a new area of law with
distinct legislative intent to protect the public
3p †othing on the face of the statute tells you how to construe it- could go 2 ways:
{p Traditional English Common Law- Ontent required
{p Mala Prohibita/Public elfare
3p Federal courts have to follow the ºS Supreme Court in construing federal
statutes
3p e should follow Staples as opposed to Morissette because Staples is more
recent Staples modifies Morissette
3p hat about Freed? There is a different kind of social interest involved in Freed as
opposed to Lambert Freed is very dangerous and should have known it, but
Lambert had no reason to know she was doing anything wrong Can¶t carry
Lambert too far because many regulations are not conveniences as they held in
Lambert
3p For issues like these, you don¶t have to know the answer, just how to argue either
side
3p At common law, D didn¶t have to have mens rea about grading elements

p Corporate Criminal Liability
1 p enerally: On the ºS, corporations can be prosecuted for criminal offenses, but not all
countries agree Ot is highly debatable as a policy matter You can¶t put a corporation in
jail Criminal liability is fundamentally different from civil liability (argument against
ºtilitarian view- need to hold corporations liable to get them to do what the government
wants The federal courts define it very broadly For example, corporations can be tried
for murder
2 p Christy Pontiac Case (Supp 13: Rejects idea that CCL would be found for limited
category of offenses
3p 3 Requirements to find a corporation criminally liable
3p Of upper level management is only responsible for what they know, then that
creates an incentive for them to look the other way
3 p Differences between common law and MPC- proposals on deck to be debated This is an
area where the MPC intended to draw some changes
3p MPC does not hold corporations liable for lower level employees
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3p ºnder MPC, upper level management cannot ³recklessly tolerate´ the action
3p Christy steps 1 and 2 are not in the MPC- they come from the common law (†Y
Central Test
3p The 3 steps have elements from both
3p Does asking questions 1 and 2 make a difference? Maybe not
4 p
eale doesn¶t see any valid grounds for eliminating CCL because no good case has been
made and internationally other governments have been trying to get it or strengthen it
5 p The issue at the federal level is the argument that if you criminally convict a corporation,
you will effectively kill it
 p CCL acts as a lever to clean up certain sectors (like prosthetic joint manufacturers in †Ë
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O pAttempt
A p
asic Points:
1 p (p 345, paragraph 2: Attempt is defined chiefly by reference to the object offense Thus,
there can be no attempt standing alone You have to pay attention to the elements of the
underlying offense
2 p MPC¶s ³substantial step strongly corroborative´ is a whole lot less than common law
proximity
3 p The function of the MPC is principally a focus on the individual¶s dangerousness by his
mens rea at a high level and his willingness to take steps
4 p The common law seems to require more of the act requirement; most evidence will be of
D¶s conduct and minimal evidence of mens rea

p Act Requirement
1 p enerally: e are looking at how different jurisdictions define the timeline between idea
and act There are different approaches and different ways to phrase the test
3p Elements: Time, physical distance, proximity, preparation
3p Ëohn Hinckley story- Odea>>Act>>Result
2 p People v
owen and Rouse (p 345: Reversed and remanded the conviction because of a
faulty jury instruction
3p On jury cases, the two most important things for lawyers are what evidence to let
in and what the jury is instructed to find
3p Trial court¶s instructions here were that the jury only had to find that the Ds
entered the place with the intent- found to be invalid The act must speak for itself
(res ipso loquitor Entering the house in this case did not
3p The act must be unequivocal (in D¶s conduct
3p The sufficient act test- unequivocal, manifest, speaks for itself
3p At what point would
owen and Rouse meet the MPC test in 5 1(1(c and (2?
Could fall under (a because they were looking for Ms anzmeyer †ot (c
because they lawfully entered, and the legislature specifically wrote unlawfully
3 p The MPC is much closer to the ³light bulb´ or Odea Element The victim would like this
Most jurisdictions are not that close to the ³light bulb ´
4 p Rizzo (p 351: reversed because the Ds didn¶t get far enough along in the conduct Test:
Physical Proximity- did the acts come so near the commission of robbery that there was
reasonable likelihood of its accomplishment but for the interference (of the police?
3p Proximity: physical, dangerous (nature of threat, degree of social harm
3p Some jurisdictions articulate other kinds of tests:
{p ³Crossing the Rubicon´ test/Probable Desistance: at what point is the D at
the point of no return?
Up Hinckley: when he pulled out the gun
{p Dangerously close is a more flexible standard
{p Physical Proximity
{p Res Opsa
{p Ondispensible Element test (Hinckley-access to the President
5 p People v Youngs (p 35: D arrested with chloroform, gun, and slippers in the middle of
the night
 p MPC takes a different approach: 5 1 (A-42
3p Key language that states the test- ³a substantial step´ in (1(c
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3p (2 ³Shall not be held insufficient´- means that this is not an exhaustive list, but
the court can¶t say things on this list aren¶t good enough (and can¶t refuse to send
to the jury MPC is trying to drive home the legal effect of everything listed
3p ºnder MPC, should Youngs be convicted? He would fall under (e- jury
instructions: did he have a substantial step that was strongly corroborative of his
criminal purpose hat he has already done is not intrinsically dangerous, but he
has crossed the line The mental element matters the most
3p Rizzo falls under (2(a because they were searching for the victim
3p MPC is a big policy shift because it places much less emphasis on actual physical
situation and more on D¶s mens rea
C p Mens Rea of Attempt
1 p Differences between common law and MPC
3p Thacker v Commonwealth: D intended to shoot the gun, but not to kill a human
being hat do we do about these ³near misses´? ºnder common law, need a
death and specific intent to do the entire evil thing in order to fulfill the conduct
element of murder †eed specific intent as to the result (similar to MPC Purpose
to fulfill mens rea So, you aren¶t attempting to kill someone if you don¶t mean to
be
3p 5 1 Renunciation Defense- have to have done a ³substantial step´ for this
defense to apply The attempt is continuing and then you renounce (will see the
same defense in conspiracy
{p 5 1(1(a and (c: language about circumstances here O about the
³impossibility´ defense, not actually about mens rea for circumstances
That is found in 5 1(1 Definition of Attempt
3p 2 ((c- at what point has the D gone too far to renounce? This only comes into
play when D has done enough to become an accomplice This language is not in
5 1(4, so what about Ross?
{p Arguments: You can undo the offense of the attempted rape, but will be
liable for other offenses (assault, etc 
2 p People v Thomas (p 34:
3p Statute on p 3 has MPC language but is different, missing (1(a, (b, and half
of (c- left out language about mens rea (purpose and belief So, Thomas court
only considers the mens rea requirement for the commission of the offense
3p MPC 5 1(1 is only referring to circumstance, but the C statute applies it to
conduct and result
3p ºnder the MPC, purpose or belief is required for the mens rea of attempted
murder (lower than for murder, but higher than C court in Thomas
3p Thomas is the rare jurisdiction that comes out the other way C deliberately
omitted some MPC language to broaden the scope of attempt (inconsistent with
both common law and MPC There are probable only 2/5 states that would
reach this particular result
3p Of Thomas had succeeded, what would he be prosecuted for? Murder (high
recklessness or Manslaughter (mere recklessness? The death of a human being
is the result
ecause it is an attempt, the mens rea is bumped up to Specific Ontent
(close to MPC Purpose or MPC Purpose or ³belief ´
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3p However, this court looks at the mens rea for the underlying offense because of
the statutory language (p 3
D p Abandonment (p 3 - what happens if you change your mind?
1 p Ross v Mississippi (p 3 : D threatened woman with a gun and told her to undress;
upon hearing she had a daughter he left D convicted of attempted rape and appealed on
the issue that the trial court erred in denying his motion for directed verdict on the charge
of attempted rape Court held that Ross¶s appeal should succeed on the issue because the
evidence does not sufficiently raise a fact question as to whether he attempted rape and
that he did not, but instead abandoned the attempt
3p MS Rule: Abandonment occurs where, through the verbal urging of the victim,
but with no physical resistance or external intervention, the perpetrator changes
his mind (p 3 3
3p Ross court reverses on appeal because there was insufficient evidence to raise a
fact question as to whether he attempted rape- the victim testified that D said he
would leave because she had a little girl
3p hy was the MS court so sympathetic to the D in Ross? Statutory language- D
has to fail or be prevented from completing the offense in order to fulfill attempt
statute This is a variant to traditional common law based on statutory language
(no 3rd category besides fail and be prevented MS position is a broader defense,
but seems a little lacking
2 p Traditional Position: abandonment is not a defense because you have already committed
the crime of attempt (although it might have an effect on sentencing
3 p MPC takes the position that the traditional view is wrong because the MPC places a
strong emphasis on the mens rea of attempt Of the would-be criminal changes his mind,
the mens rea is gone
3p Does Mr Ross have a good defense under MPC 5 1(4 (A-44? Probably not
The abandonment has to be complete and voluntary Ot is not a broad defense
3p MPC 5 1(4 is narrow; D had to have been internally motivated to abandon and
no longer be a danger to fulfill the statute
3p MPC makes it easy to cross the line and hard to get out The common law waits
very late to cross the line but it is nearly impossible to get out
3p MPC punishment for inchoate crimes is the same as the complete offense;
Common law made it much lower
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 p Liability for the Conduct of Another

A p Complicity
1 p Trunk Monkey video: The monkey is the innocent agent, driver is the principal On some
narrow class of cases, the law will skip over the fact that another person actually did the
action
2 p Common Law:
3p Traditionally, parties to a felony differentiated as principles in the 1st and 2nd
degree and accessories before and after the fact
3p Today, virtually every American jurisdiction has modified this scene through
legislation to abrogate procedural distinctions between principals and accessories
before the fact and to allow prosecution of all such parties as principles The only
things left are the terminology and whether the principal actor has some derivative
liability
3p Accessories after the fact are dealt with separately and have a fixed liability
ºsually they are punished under obstruction of justice rather than retroaction
participation in the original crime (Also found in MPC 242 3
3 p enerally:
3p A high percentage of criminal conduct occurs with multiple actors
3p Assuming criminal conduct occurs by the primary party, each secondary party
must also have their own conduct and mens rea in their own context
3p Accomplices are convicted of the same crime as the primary
3p Laundry list of terms ³aided, counseled,´ etc - issue over how little is enough?
3p hat conduct/mens rea are required for the secondary actor? Similar to attempt in
that there is some object offense (but it is for the other person to do rather than
future self
{p CA HS rape onlookers?
4 p Act Requirement
3p Rex v Russell (p 5 : D charged with murder because he stood and watched,
doing nothing, while his wife and kids drowned in an apparent suicide attempt by
the wife Court held that a person can be accused of willfully aiding and abetting a
crime if he does nothing but purposely look on without help or encouragement
{p Holding: (i Of a person present at the commission of a crime in the
opinion of a jury on sufficient evidence shows his assent to such
commission, he is guilty as principal, and (ii that assent may in some
cases be properly found by the jury to be shown by the absence of dissent,
or in the absence of what may be called an effective dissent
{p Russell asks us to probe what is the theory of the court under which
Russell¶s conviction can be upheld? 2 possibilities:
Up (1 an omission is not a crime unless there is a duty to act
Up (2 the absence of dissent can be found to be an assent
Up Analogy: Secret service agent in Ëodie Foster fan club allowing
Hinckley to shoot
{p †otice we are on a knife¶s edge here between omission and accomplice
3p MPC 2 :
{p (2(a Onnocent agent
{p (2(b icarious liability (not the normal standard
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{p (3 Accomplice (mens rea language-conduct

3p MPC 5 2:
{p (1 Definition of solicitation- command, encourage, request
{p (2 The receiver doesn¶t have to ³get´ the message The attempt to convey
counts as sufficient conduct
3p MPC 2 :
{p (3(a(iii: the MPC breaks out separately people who have legal duties
{p (3(a(ii ³aiding´
Up Compare to Tally (p 5: ne way to hold him responsible is if
they knew he was trying to help Psychological encouragement can
function as increasing the likelihood that someone will commit an
act r, if he does something that in some small way makes it
easier for the primary to do the crime (or for the victim to avoid it
even if the crime would have occurred without it
3p MPC and Common Law:
{p The MPC includes attempts to aid that didn¶t actually change the
likelihood of the outcome at al So, the MPC goes further because the
encouragement doesn¶t have to be known and the attempt to aid doesn¶t
have to be successful The MPC cares more about mens rea and trying to
do a bad thing
{p †otice the common law went quite far, captured actions of people that
were quite minor The MPS went even further The more you minimize
conduct, the more mens rea matters
5 p Mens Rea
3p Split at Common Law:
{p ºS v Peoni (p : judge required purpose of circumstances
{p
ackun (p   judge fundamentally disagrees and requires knowledge of
circumstances (at least when accomplice agrees to aid
3p Facilitation- Proposed †Y statute that got voted down (p 2: critical mens rea
language is with knowledge when the conduct is substantial (lower mens rea with
more conduct
{p †ot as serious an offense as being an accomplice
{p Onteresting/unique conduct requirement- trying to catch a form of behavior
where purpose is not present but a lower mens rea would still work-
believing it ³probable´
{p ³which in fact aids´- providing ³means or opportunity´
3p MPC: 2 (3(a- Purpose for secondary party is required
{p Ot is a little more complicated than that; see Supp 2 They intended to
leave an ambiguity to allow for case by case decision making on
circumstance elements (so in some cases a lower level is allowed for
circumstance elements- like age for Statutory Rape
{p Mens rea for the secondary party is important because they didn¶t actually
commit the crime (purpose is the standard as opposed to the ³normal´
standard of recklessness
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{p The MPC does not accept ³natural and probable consequences´ because
the MPC places a high priority on mens rea The MPC puts the liability on
each person¶s own mens rea
{p MPC 2 (4- most offenses don¶t have a result element All homicides
do
{p Prereqs to apply this:
Up Result element of offense
Up Person must be an accomplice in the conduct causing such result
(can frame this narrowly or broadly- use 2 (3 to determine who
these people are
3p People v Durham (p 4: Robinson shot the officer; Durham was the secondary
actor At the moment the shots were fired, Durham was on his knees with his
hands in the air
{p Standard for Robinson: Murder- causing the death of a human being with
P,K, or high R
{p ºnder normal standards, Durham would not be convicted Test for
Durham: aid, abet, encouragement, assent (by silence †ormal standard
for accomplice liability is P or K; evidence for this is not here
{p The court is not asking that question Rather, it talks about something
different and upholds the conviction even though Durham did not directly
help Court uses the standard of ³natural and probable consequence´
(p  ³in the totality of the circumstances ´ Also see italics in People v
illa citation (p 
Up Can only use this standard when you can show that the person has
become a general accomplice under normal standards Then, you
can extend the liability from the crime he sought to aid to any
natural/reasonable/probable consequence
Up Ot makes them responsible for the unplanned as well as the planned
consequences
Up You must first ask if they had become an accomplice The mens
rea for the consequence could be negligence or even SL if there is
enough causation There must be a strong causal link because D¶s
actions and the result The nature of the language roughly equals
negligence, but it is not the same
{p p 4 refers to the circumstances elements of the object offense The mens
rea for these elements may be different
3p Hypo: At bar, others trying to help P with crime of rape, accidental death
{p Person guarding/standing at front door- what mens rea?
{p Person actually next to the body would have higher level of mens rea
{p ºnder †/P, all of the accomplices are responsible for the crime committed
by the principal actor
 p Os Complicity Derivative?; Limits
3p hat happens in the Cogan and Leak situation where the principal actor is
acquitted?
{p That should not mean that the accomplices should get off
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{p How to convict Leak under MPC: 2 (- Leak mens rea and Cogan
conduct, or 5 1(3- attempted rape

p Conspiracy/Onchoate ffense
1 p enerally:
3p Conspiracy: an inchoate offense punishing agreement in advance of action
{p Similar to attempt
{p ºsually carries heavier sanctions than for the same misconduct by an
individual acting alone; also functions as a ground for aggravation of
penalties
Up
eing in a group and planning a crime has significant evidentiary
value and makes it more likely to occur due to social pressure and
fear
Up roups are more successful than individuals because they can
specialize and have people in more than one place at a time
{p Ot is a way of holding one person liable for the actions of another
Functions as an alternative to complicity
{p Conspiracy is highly important and often charged Prosecutors like it
because it can change the result in important ways
{p Main Point: Conspiracy is special from a procedural point of view
3p The Co-Conspirator¶s Exception to the Hearsay Rule:
{p Hearsay Rule: a limitation on the admissibility of evidence forbidding a
witness from testifying to the out of court statements of another in order to
prove the truth of those statements (there are many exceptions to this rule
{p A statement against interest by one co-conspirator is admissible against all
members of the conspiracy
{p
ootstrapping Problem: a conspiracy often is proven by evidence that is
admissible only upon assumption that a conspiracy existed Circular
3p Ëoint Trial:
{p The necessity of showing that the participants acted in concert creates an
especially strong justification for proceeding against all conspirators at
once
{p Of tried separately, other¶s statements can¶t come in; if tried together, they
can
{p From D points of view, joint trial may have disadvantages: divided
number of peremptory challenges, lawyer may not be able to pursue
desired trial strategy, risk that an innocent D may be prejudiced by
association
{p †ormally you will have evidence of what each person bought, etc and
will ask the jury to infer the agreement Don¶t have to have direct proof of
the words of an agreement to establish conspiracy (obviously it would not
work without circumstantial evidence
3p enue: for conspiracy, venue lies not only where the agreement was made but
also where any act in furtherance of the agreement was performed
{p iving more choice for venue is favorable to prosecution
3p Pervasive Ossues:
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{p hether the variety of substantive and procedural issues involved with

conspiracy law can sensible be addressed through a unitary doctrine
{p hether any of the several functions of the law of conspiracy justifies the
continued existence of the offense
2 p Act Requirement
3p People v
urleson (p  : D agreed to rob a bank on a certain date; on that date,
D and partner did a practice run b/c it was too crowded and agreed to rob the bank
3 days late n that date, a man bolted the door as the men were approaching
w/gun, suitcase, and disguises D charged with conspiracy to commit armed
robbery (1 count for each date and attempted armed robbery (for the 2nd date; D
found guilty on all 3 counts Court held that a person charged with multiple
conspiracies cannot be convicted of more than one if he has, with the necessary
intent, entered into a single agreement to commit a crime even if multiple overt
acts are committed in furtherance of that agreement However, if he entered into
multiple, although partially overlapping agreements to commit crimes and overt
acts are committed in furtherance of those agreements, he can be charged and
convicted of multiple conspiracies (This case is the latter because there was not a
single course of conduct; rather, there were two separate agreements with conduct
attached
{p MPC and
urleson look at the issue (of how many crimes the D can be
convicted of differently
Up Relevant Ollinois statutes (p  :
3p Conspiracy: looks like MPC because it is concerned with
individuals; does not differentiate between degrees of crime
(compare to 5 3
3p Attempt: uses phrase ³substantial step
like MPC, but is missing ³strongly corroborative´ and the
definition of substantial step
3p †ot sure if the legislature intended to leave out a relevant
part, or if it was a mistake
Up OL: Ot is clear that a D cannot be convicted of both an attempt and a
completed offense because the attempt merged into the offense
when it is completed
3p However, conspiracy is an aggravating offense, presenting
a special danger of group criminality, so some jurisdictions
do not merge conspiracy and completed offense
3p There can be cases where there are multiple attempts and
only one succeeds The attempts have to be factually
distinct attempts in order to not be merged
3p This is part of what is going on in
urleson: 2 attempts and
2 conspiracies
3p Ossue: what is the unit of prosecution?
3p
ecause conspiracy was a lesser punishment, they included
it in attempt through merger and only upheld the attempt
This is a unique/unusual feature of OL law Most courts
would not combine inchoate offenses this way
c



     

3p MPC 5 5(3 says you can¶t be convicted of more than one

inchoate offense
{p Can indict and prosecute for both, but can¶t be
convicted of both MPC 1 (1 However, the
singular phrasing in (b may be a way to get around
this and convict conspiracies with multiple offenses
(like long-standing criminal groups
Up How can you tell if there is more than one conspiracy? For
example, an agreement to rob two banks would be one agreement
and thus one conspiracy e often don¶t know
3p MPC 5 3(3: Onnovation of a ³continuous conspiratorial
relationship´- easier to prove than number of agreements,
distinct from the object offenses
{p Penalty Structures:
Up Ollinois: Ot makes sense that the sentence for conspiracy is less than
attempt (and attempt penalty less than completed offense because
attempt requires more action However, should also consider the
factor of group danger On general, substantial step is thought to be
more than overt act in furtherance, although note that the OL
legislature doesn¶t define it like the MPC does The punishment
structure of the OL statute looks more like the CL
Up Common Law has more focus on harmful conduct and actual result
than MPC
Up MPC Penalty Structure: for most serious offenses, attempt and
conspiracy penalty is one notch below the completed offense; for
less serious offenses, it is the same penalty for
attempt/conspiracy/actual completion This is a reflection of the
MPC¶s focus on mens rea
3p Conspiracy as an Onchoate ffense
{p ne principal function of conspiracy is to fix criminal liability for
inchoate behavior- supplements and is closely parallel to attempt
{p The best way to study conspiracy is to contrast it with the law of attempt
{p Conspiracy does not aggravate Attempt because of the policy impact-
harsh punishment when nothing bad actually happened
3p The †ecessity of Agreement
{p Modern definitions of conspiracy restrict the offense to agreement to do an
act which is itself a crime
{p At common law, no additional conduct was needed, but today many
statutes require that there be an overt act in furtherance of the conspiracy-
virtually any act committed by any of the conspirators will do Some states
now require a ³substantial step´
{p The law takes the position that something distinctive happens at the
moment of the agreement There is verbal conduct and expression of will
Ot has become more than just an idea There has been some movement
away from that rule, now just need an overt act in addition to the
agreement
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{p The agreement may be highly informal and may be inferred from indirect
evidence This is dangerous because circumstantial evidence may indicate
an agreement where there was nothing more than concurrent conduct
{p MPC 5 3 says the crime matters:
Up 1st Degree Crime: Ëust need an agreement (more dangerous
Up 2nd or Lower: Agreement plus overt act (low level offenses; not as
serious
Up So, MPC partly agrees with traditional common law and partly
with modern common law Ot does not require nearly as much as
attempt
3p The Sufficiency of Agreement
{p Conspiracy punishes some instances of inchoate misconduct that couldn¶t
be reached under the law of attempt
{p There is a debate about whether the act of agreeing to commit a crime,
standing alone or with an overt act in furtherance, is a sufficient basis in
conduct to support penal liability
Up MPC drafters say yes because the act of agreeing is concrete and
ambiguous and increases the likelihood that the crime will occur
Up MPC position criticized on the theory that the expansion of attempt
to focus on dangerousness rather than proximity reduces the
justification for the independent inchoate offense of conspiracy
Attempt now includes dangerous agreements, so why do we keep
conspiracy, which may include for less dangerous ones
undeserving of punishment?
3p
ilateral or ºnilateral Agreement
{p Requirement of bilateralism in some courts- ³meeting of the minds ´
Traditional position was that the conspiracy needed two people who
actually meant to agree
{p ther courts construe the law to punish one who conspires with another
without regard to the other¶s actual state of mind (unilateral
Up MPC agrees: directs attentions to each individual¶s mens rea
instead On the statute, ³he´ does the action, not both The
individual¶s subjective perception of what he is doing is an
agreement
3 p Mens Rea
3p Conspiracy and attempt are both specific intent offenses
3p Ossue: hat state of mind must the actor have with respect to the elements of the
underlying substantive crime?
{p Partial Answer: The actor must have at least the level of culpability
required for the underlying crime
3p Ossue: hether the inchoate crime of conspiracy imposes mens rea requirements
beyond those of the underlying offense (useful to distinguish among conduct,
result, and circumstance elements of the object offense:
{p Conduct: mens rea subsumed in the requirement of agreement
{p Results: requires an actual purpose to cause a proscribed result, even
where the underlying substantive offense would allow conviction on less
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{p Circumstances: CL implies that conspiracy should require awareness of

the attendant circumstances of the contemplated conduct, even where the
completed offense would require no such awareness; MPC (attempt
requires only ³the kind of culpability otherwise required for commission
of the crime´ for circumstance elements
3p On Lauria, the issue was ³is knowledge enough´? Suggests that in some
circumstances, mens rea should go down to knowledge (MPC if you are
supplying goods or services that facilitate the conspiracy
3p enerally speaking, we are at MPC Purpose or CL Specific Ontent with regard to
mens rea for conspiracy conduct and result, ambiguous as to circumstance for the
object offense
{p Same issues with conspiracy, accomplice liability, and attempt
4 p Ompossibility: Should impossibility be a defense to conspiracy?
3p CL said no (not legal or factual impossibility
3p ºS v Recio: Supreme Court overturned th circuit decision because even where it
is impossible (through government action to obtain the conspiracy¶s objective,
the conspiracy will not necessarily end
3p MPC 5 3: conspiracy terminates when object is committed or when agreement is
abandoned (so impossibility is not a basis for termination
5 p Renunciation and ithdrawal
3p CL: once an agreement (or agreement and overt act is reached, criminal
conspiracy is complete and abandonment is not a defense
3p MPC: 5 3( proposes that renunciation be recognized on similar terms as for
attempt
3p ithdrawal would limit the actor¶s liability for substantive offenses committed by
others after his participation ceased; also starts the S L against that actor
 p Cumulative Punishment
3p Attempt: Doctrine of Merger- the attempt merges into the complete offense so D
can¶t be punished for both
3p Conspiracy:
{p CL: merger was traditionally applied; today majority rule is otherwise
{p Federal Law (and many state laws: Conspiracy treated as an independent
wrong that does not merge Result is that D may be punished for both
agreeing to commit a crime and for participation in the crime
Up Conspiracy functions as an aggravation of penalties
Up Rationale (Supreme Court: the special danger of concerted
criminal activity warrants independent punishment
Up MPC does not agree
C p Ompossibility
1 p Attempt:
3p People v Dlugash (p 3: D shot a man who had been shot minutes before by
another person; the victim may or may not have been dead at the time D shot him
Ossue over whether D could be convicted of attempted murder if the victim was
already dead at the time Court held if D believed the victim to be alive at the time
of shooting, it is not defense to the charge of attempted murder that the victim
may have been dead (applying MPC
c



     

3p CL says legal (not factual impossibility is a defense to attempt

2 p Conspiracy:
3p
oth CL and MPC say impossibility is no defense to conspiracy
3p MPC places an emphasis on mental state v conduct in relation to impossibility
3 p oodoo Handout- how do we analyze this?
3p Any time there are multiple people involved, you should look at both attempt and
conspiracy
3p Look at the act requirements for each:
{p Conspiracy: agreement or agreement with overt act
{p Attempt (CL: different tests generally requiring to get further on the
timeline
{p Attempt (MPC: substantial step
3p At CL, impossibility was not a defense to conspiracy CL cared a lot about the
nature of the act and less about mens rea
{p Legal impossibility was a defense; factual was not ould have to decide
if the D¶s actions occurred with legal or factual impossibility
3p MPC rejects CL distinction and many CL jurisdictions have gotten rid of
impossibility as a defense
3p MPC takes the world as the D believes it to be (5 1- so, in voodoo case there is
no impossibility defense, but there could be mitigation (5 5 because it is ³so
inherently unlikely to result in the attendant crime´ and there is not really an issue
of public danger, so punishment would be reduced or charges dropped
{p Mitigation: applies to attempt, conspiracy, and solicitation Looks at the
danger to society
{p Public Danger: look at both conduct and actor Could argue that the actor
in this case is a danger because he wants the judge dead, but this would be
creating a broad/bad precedent
D p Conspiracy and Complicity
1 p enerally:
3p Conspiracy often functions as an alternative to complicity and they are often
functionally interchangeable
{p Complicity holds one person criminally responsible for the conduct of
another (may require aid or knowing assistance
{p Conspiracy imposes direct liability for the preliminary step of agreeing
with another to commit an offense
3p Omplications of the fact that conspiracy and complicity overlap:
{p Analysis of the law of conspiracy as an alternative to complicity largely
replicates the range of issues dealt with under the doctrine of complicity
{p Conspiracy functions not only as an alternative to prosecution for
complicity but also as an inchoate offense and as a basis for aggravation of
penalties
2 p People v Lauria (p 12: D was owner of a telephone answering service which was being
used by prostitutes to communicate with customers
y his statements to an undercover
officer, D was aware that his answering service was being used for this purpose D and
three prostitutes were arrested and indicted for conspiracy to commit prostitution Court
found no proof that Lauria took any direct action to further, encourage, or direct the call-
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girl activities of his codefendants and no circumstances from which his special interest in
their activities could be inferred
3p Reasoning:
oth the element of knowledge of the illegal use of the goods/services
and the element of intent to further that use must be present in order to make the
supplier a participant in a criminal conspiracy Proof of knowledge is a question
of fact; the element of intent may be proved by either direct evidence or by
evidence of circumstances from which an intent to further a criminal enterprise by
supplying lawful goods/services may be inferred
3p Rule: The intent of a supplier who knows of the criminal use to which his supplies
are put to participate in the criminal activity connected with the use of his supplies
may be established by (i direct evidence that he intends to participate, or (ii
through an inference that he intends to participate based on, (a his special interest
in the activity, of (b the aggravated nature of the crime itself
{p Onferred Ontent: Examples of ways that the criminal intent of the supplier
may be inferred from his knowledge of the unlawful use made of the
product he supplies: (i when the purveyor of legal goods for illegal use
has acquired a stake in the venture, (ii when no legitimate use for the
goods/services exists, (iii when the volume of business with the buyer is
grossly disproportionate to an legitimate demand or when sales for illegal
use amount to a high proportion of the seller¶s business, (iv when there is
a duty to take positive action- for example, the crime is a felony which
would put society in danger
3p †otes:
{p Vuestion of whether Lauria became their co-conspirator parallels debates
on accomplice liability (Peoni and
ackun
{p 2 parts of Lauria opinion:
Up Evidence of Ontent to Participate (direct or circumstantial- if you
are benefitting from an illegal activity, you probably don¶t want
that activity to stop
Up †ature of the Crime
{p Ontent in Lauria is close to MPC Purpose: (p 1 ³Onflated charges«´
paragraph gives an overview of (1 ³Yet«´ introduces (2 where
knowledge alone is sufficient because of a duty to report certain types of
crimes
E p Conspiracy- Scope
1 p Pinkerton v ºS (p 1 : Supreme Court Case
3p Facts: The Pinkerton brothers were indicted for violations of the Onternal Revenue
Code The indictment contained 1 substantive counts and 1 conspiracy count
There was no evidence that Daniel participated directly in any of the substantive
offenses, by there was evidence that the offenses were committed by alter in
furtherance of their unlawful agreement/conspiracy
3p Ossue: Os participation in the conspiracy itself enough to sustain a conviction for
the substantive offense even though it was committed in furtherance of the
conspiracy?
3p Reasoning: This was a continuing conspiracy and there was no evidence of
affirmative action on the part of Daniel, which was necessary to establish his
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withdrawal from it As long as the partnership in crime continues, the partners act
for each other in carrying it forward
3p Rule/Holding: An overt act is an essential ingredient of the crime of conspiracy Of
that can be supplied by the act of one conspirator, the same or other acts in
furtherance of the conspiracy are likewise attributable to the others for the
purpose of holding them responsible for the substantive offense
3p †ote: The Court states that a different case would arise if the substantive offense
committed by one of the conspirators was not done in furtherance of the
conspiracy, did not fall within the scope of the unlawful project, or was merely a
part of the ramifications of the plan which could not be reasonably foreseen as a
necessary or natural consequence of the unlawful agreement
3p Dissent: The judgment should be reversed because it is without precedent and is a
dangerous precedent to establish The vicarious criminal responsibility imposed
here is too broad The effect of Daniel¶s conviction in this case is either to
attribute to him alter¶s guilt or to punish him twice for the same offense,
namely, agreeing with alter to engage in crime ithout the agreement, Daniel
was guilty of no crime on the record ith it, and with no additional conduct, he
was guilty of two
2 p The Pinkerton Rule ± The Scope of Liability for Conspiracy
3p Pinkerton Rule: A member of a conspiracy is criminally responsible for crimes
committed by co-conspirators in furtherance of their agreement Extends liability
to include additional offenses that may not have been within the actor¶s
contemplation by that were committed by his or her cohorts in the course of the
criminal enterprise, as long as the additional offenses were reasonably foreseeable
consequences of the agreement
{p Pinkerton Rule is the law of majority in most American jurisdictions
{p Some modern statutes codify the rule; others explicitly reject it
3p Evaluating the Pinkerton Rule
{p On most cases, principles of complicity would authorize conviction in any
event On some cases, Pinkerton extends criminal liability
{p Two variables affect the dimensions of the issue:
Up The impact of the Pinkerton rule depends on the question ³as
compared to what?´ Of complicity limited accomplice liability to
crimes which he had an actual purpose to aid or encourage, the
effect of Pinkerton to the scope of liability would be considerable
Up The approach taken to determine the size or scope of a single
conspiracy matters because the significance of Pinkerton varies
with the scope of the activities for which an individual conspirator
is held liable
3p This is the basis for the MPC (2 4 opposition to the
Pinkerton rule
3p Ot is possible that one member of a very large conspiracy
could be held liable for thousands of offenses that he did
not influence at all
3p Class †otes:
{p The controversy in Pinkerton concerns substantive offenses
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{p On Durham, the theory was natural and probable consequences

{p The theory here- ³Pinkerton Liability´ is that the other person¶s overt act
counts against you The intellectual step is that the offense counts against
you (even if the other person actually did it if it was done in furtherance
of the conspiracy
Up Limitations: must be by a co-conspirator, in furtherance of the
conspiracy, and reasonably foreseeable
{p Test for Accomplice Liability: look at Daniels¶ mens rea (purpose and if
he aided, abetted, etc
Up ºnder Pinkerton, just ask if he was a co-conspirator and if the
other¶s acts were in furtherance of the conspiracy
Up Pinkerton and Durham are shortcuts for the government to prove
liability
{p As Daniel¶s lawyer, we want to argue that the conspiracy was over when
he went to jail Link to
urleson, where there were 2 separate conspiracies
found Raises question of how long conspiracies continue, because the
agreement can continue for a long time
Up How do conspiracies end? hen the objective has been
successfully completed
Up Ot is not enough to stop acting; there must be an affirmative action
to get out of the conspiracy
3p State v Stein: D discussed the possibility of burglarizing one of his neighbors
with an acquaintance; about a year later the other man committed armed robbery,
assault, and kidnapping in connection with an attempt to burglarize the home
discussed Trial court found D guilty of conspiracy, armed robbery, assault with
an offensive weapon, kidnapping, kidnapping while armed, and assault on a
police officer Court held that in addition to the conspiracy and armed robbery, D
could be held liable for the assault on the wife of the homeowner because it was a
foreseeable event in the course of a home invasion by armed men Liability of the
D for the other crimes was not found because it would be unreasonable for a fact-
finder to find that they were necessary, natural or probable consequences of the
conspiracy
3 p Scope and Duration of Conspiracy
3p Scope example: over 1 counts in conspiracy involving drug trafficking ºS
Supreme Court applied Pinkerton to the question of accomplice liability under
federal law Of Pinkerton liability gets carried too far, to people who are too
peripheral to the conspiracy, there may be due process violations/objections
{p The MPC does not agree because Pinkerton doesn¶t care about mens rea
Pinkerton looks like the natural and probably consequences standard for
accomplice liability in common law (which MPC does not accept either
{p MPC 2 (4: Of you are in accomplice to a result crime and to the conduct
(can be framed broadly or narrowly that causes the result, then you may
be held liable This is the closest that the MPC gets to Pinkerton
3p
raverman v ºS (p 2: Supreme Court Case Petitioners indicted on  counts,
each charging a conspiracy to violate a different law, even though only a single
agreement was proven Petitioners argued that the government should have to
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choose one on which to proceed; the government argued that they were seven
distinct offenses
{p Ossue:
asically, whether each contemplated offense renders the
agreement punishable as a separate conspiracy
{p Rule/Holding: The single agreement is the prohibited conspiracy, and it
violates only a single statute For such a violation, only the single penalty
prescribed by the statute can be imposed
{p A single agreement may have multiple criminal objects but it is still one
conspiracy/continuous conspiratorial relationship
Up The prosecution tried to say otherwise in order to stack the charges
in this case
3p The bject Dimension
{p hen the issue is liability for the inchoate offense of conspiracy (rather
than for substantive offenses the prosecution usually argues for several
conspiracies justifying several punishments
{p The defense tries to lump all the criminal objects into one conspiracy
{p Reaction of the courts varies
{p The MPC 5 3 states that a person is guilty of only one conspiracy if the
crimes are the object of the same agreement or continuous conspiratorial
relationship
3p The Party Dimension
{p Sometimes the prosecutor argues for one large conspiracy when the D is
charged with various substantive offenses committed by co-conspirators

y enlarging the conspiracy, each co-conspirator is responsible for more
offenses
{p Reasons why sometimes it is better to have one large conspiracy for
prosecution: Pinkerton (more people, more offenses for each person,
S L, hearsay rule, location of trial
{p Possible conspiracy structures:
Up Multiple conspiracies because they are not connected or
interdependent/part of a single undertaking (only one person in
middle-different from wheel
Up Chain- focuses on successive stages of cooperation Single, large
conspiracy because they all have a shared objective (even if they
have never met, they depend on each other
3p Ex: Smugglers>Middlemen>Distributors (Sometimes there
are multiple distributors which are dependent on each other
b/c they share distribution costs
Up heel- based on a central figure dealing separately with various
peripheral figures (rim or no rim; bookie v price fixing
Up MPC 5 3 (1 and (2 declares a person guilty of conspiracy with
any person who he knows the person he conspires with is also
conspiring with to commit the same crime, even if he does not
know the third person¶s identity
3p Duration
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{p Duration controls the S L, the admissibility of evidence under the co-

conspirator¶s exception to the hearsay rule, and the reach of an
individual¶s liability under Pinkerton for the crimes of co-conspirators
{p Renunciation and Abandonment:
Up Common law did not care about renunciation; could affect
sentence but would still be convicted
Up MPC creates a full defense of renunciation in 5 3(
3p Standard for Renunciation in 5 3(: have to thwart the
success of the conspiracy to renounce (probably not
possible if some criminal acts have already occurred †ot
many people will fall under this category (even telling the
police may not thwart successfully
3p Standard for Abandonment in 5 3(: have to advise those
with whom you conspire or inform law enforcement of the
conspiracy and your participation in it
{p MPC 5 3(
Up (a Conspiracy is a continuing offense
Up (b Creates a presumption of abandonment
where no overt act was committed during
the applicable period of limitations
Up (c Abandonment by an individual is only
effective only where it is confirmed by
notice to the other participants or the
authorities
3p Compare 5 3( and 5 3((c Ot is better to renounce
than abandon
{p Of a D abandons, he won¶t be liable for anything that
happened after he abandoned, and S L begins to
run (draws a line- he is still liable for things before
abandonment
{p Renunciation wipes out all liability (just like for
attempt
3p A person who was part of a conspiracy where crimes were
committed before they abandoned/renounced is still liable
as an accomplice under 2 (, but not liable under
conspiracy
3p Limits on Liability for Conspiracy
{p A victim can¶t be an accomplice/co-conspirator
Up Matter of legislative intent and respecting what the legislature
decides to make a crime or not a crime (implied legislative
judgment to not punish some things Can¶t evade the legislative
policy decision by calling someone an accomplice
Up MPC agrees and goes one step further Liability for conspiracy
limited on the same ground as complicity (MPC 2 (- a person
can¶t be an accomplice in the offense of another if his conduct is
inevitably incident to the commission of the offense
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3p ³Onevitably incident´ example: buying drugs is not a crime

if the statute only makes selling drugs illegal (so the buyer
can¶t be an accomplice to the crime
3p 5 4(2 refers back to this in the context of conspiracy
{p 2 Party Crimes: Policy decisions are in the legislature¶s hands
Up harton¶s Rule: the agreement between the essential participants
to commit a crime that is defined to require the participation of
more than one person should ordinarily not be prosecuted as
conspiracy So, where agreement is an essential part of the crime,
can¶t add on conspiracy (ex: dueling
Up †ot always followed by the courts- according to the Supreme
Court, the ³rule´ is nothing more than a judicial presumption
c



     

O pËustification and Excuse

A p enerally:
1 p Ëustification: D is fully justified; hasn¶t done anything wrong even though all of the
elements of the offense have been shown Self-Defense is the paradigm of a justification
3p Ëustification cases are fairly rare/exceptional cases
2 p Excuse: The behavior was not right or justified, but D is nonetheless excused from
criminal punishment The insanity defense is the paradigm of an excuse

p †ecessity
1 p Commonwealth v Markum (p 42
3p PA statute is the same as the MPC, but it is not applied- not consistent with the
analysis of the MPC
3p MPC 3 2 says ³believes´- subjective PA court¶s 4 Factors ³reasonably´-
objective inquiry
3p ºnder MPC, what happens when D is wrong? ³when the actor was reckless or
negligent«in appraising the necessity for his conduct, the justification«is
unavailable in a prosecution for which recklessness or negligence as the case may
be suffices to establish culpability´
{p hether you lose the defense depends on the crime you are charged with
{p ³as the case may be´- if the offense requires mens rea of recklessness for
the elements, and D is merely negligent, they will not lose the defense
2 p Choice of Evils: what should be included in a choice of evils defense? Different policy
choices reflected in different interpretations and formulations Ot depends on the offense;
imminence; emergency
3 p Differences
3p Markum court restated common law principles of justification
{p ne common law principle missing because it wasn¶t relevant: (Dudley
choice of evils can never extend to the taking of human lives You are
never justified to do so
{p †either the MPC nor the †Y provision contained that limitation explicitly

oth allow for the possibility of justifiably taking an innocent life
3p Ossue of timing:
{p Common law focuses on imminent emergency Of it does not fulfill this, it
will disqualify the actor from justification
{p MPC does not treat this as an independent consideration, but it does ask if
the actor was reckless or negligent (not an across the board
disqualification
{p †Y provision (p 4: ³imminent´«´no fault of the actor´«´ordinary
standards´«´clearly outweigh´«´Court´
Up ³ rdinary standards´- Frame of mind Asking the trier of fact to
make the judgment and less of an emphasis on what the legislature
intended
Up More power to the court as opposed to jury
Up Policy choices built into the technical language
Up ³Clearly outweigh´- Odea that if it¶s close, D loses
3p MPC 3 2(1
c



     

{p Should ³to another´ apply to animals or things other than people? Could
PETA use it as a defense? Probably not because there isn¶t an indication
of where it can end Could make a claim that other humans are injured by
injury to animals (like people who hurt animals as kids and hurt humans
later, or emotional distress from losing a companion animal
Up Ot is easier to bring PETA animals in under the †Y provision
(³public or private interest´
{p ³believes´ is subjective (a ³is greater´ is objective, but ³is sought´ is
subjective element (b and (c also objective
{p e are not going to leave (a-c to the actor¶s subjective definitions of the
situation They must choose to do the objectively lesser evil This defense
fits in the gaps where the legislature hasn¶t made any choices or thought
about this specific situation- see (b and (c ºnder (b, if there is a law, it
governs ºnder (c, if the legislature says you can¶t do it, then you can¶t
do it
{p See also p 42 #4- a similar goal in the common law
3p Hypo: Of PETA thought bad things were happening to the animals, but they were
mistaken
{p 3 2(1(a- hat were they seeking?
{p 3 2(2- ere they reckless or negligent?
{p This is the MPC analysis; †Y and CL would go a different way
3p Civil rights protestors- the statutes leave a lot up to interpretations
3p The justification defense exists in theory much more than in practice; it is very
rarely successful
C p Defense Against Aggression
1 p People v oetz: D shot 4 young black men on a subway because they were trying to rob
him D had been robbed before
3p PH: Traditionally, the grand jury is an ex parte civil proceeding to make sure
there is enough to go to trial Prosecution presents evidence and tells jury what
standard to apply †Y is very defendant friendly because it allows a judicial
review of the grand jury instructions and releases the transcript D can even come
in and testify if they want to
3p Ossue: ºnder †Y law, how do we exactly describe the self-defense defense?
{p Drafters started with MPC and included common law elements
{p P 41 ³Ontroduction´ Paragraph- Omportant! Read! eneral Elements:
Up Free from fault
Up Can¶t avoid/forced to defend against unlawful action
Up †ot excessive/proportional force
Up Consider possibility of retreat
3p hat does oetz tell us about †Y law or the MPC? Omperfect defendant? Ex:
oetz had a personal history and was nervous and acted unreasonably Should
they be disqualified altogether or can they claim the defense under certain
circumstances?
{p e don¶t know what actually happened here as far as the facts
{p This is the template for the legal standard that was applied in this case
c



     

{p †Y Penal Law (p 4: ³he [subj element] reasonably [obj standard]

believes´
Up Lawyers for D want to argue that it is reasonable to him
{p MPC 3 4 (Subject to 3  : ³when the actor believes´
{p Court notes that the legislature must have had a reason to make it
objective: gives people license to go too far; also it would be a huge
change from the common law, which required the actor behave in a
reasonably objective manner (i e be without fault
{p †Y Statute has a policy judgment that robbery justifies deadly force
Up Robbery necessarily involves a threat
3p (p 41 Meaning of ³free from fault´: †ot the initial aggressor, not behaving
unreasonably On this case, there is a question of how far this idea goes
{p Common law typically required objective reasonableness in the use of
force and amount of force needed
Up †ot the same thing as being correct; instead it is an after-the-fact
judgment that what you did was reasonable
Up Self defense exception: looking at subjective reasonableness,
rejected by oetz court
{p bjective v Subjective Standard choice identifies a policy decision
Up Ossue over whether or not this ³law´ can affect behavior because it
is an instant, instinctive decision
Up Argument against subjective standard: upholds extreme beliefs that
may be subjectively reasonable to a particular person- but
objectively reasonable (Everyone always believes they are
behaving in a reasonable way
{p Sº
Ë` MPC ± oetz/†Y Statute `
Ë
{p bjective Standard in oetz:
Up oetz (p 41: ³determination of reasonableness based on
circumstances«or situation´ including D¶s knowledge and relative
size to assailant and prior experiences
3p ery close to subjective standard; difference is that
subjective looks at psychological aspects of the D while
objective looks at a reasonable person in light of D¶s
circumstances
3p Full objectiveness only looks at immediate physical
instance; subjective objectiveness looks at more
individualize view
Up Last paragraph of oetz (p 4  substantially changes the result
He has to reasonably believe in his ³circumstances ´
3p Similar to MPC 2 2(2(c- uses same language of
³circumstances´ and ³situation´
Up MPC is a compromise too, but starts with subjective standard and
modulates toward objective
3p uilty of some offenses but not others
3p ³Omperfect justification´
c



     

{p Discussion about people discrimination on/fearing certain races Of you

can¶t legally discriminate against certain races we should not allow the use
of deadly force based on a person¶s race or fear of certain races
D p Self-Defense
1 p See handout for hypo and discussion
E p bjective/Subjective Defenses; Mistake
1 p See handout for hypo and discussion
2 p Distinction between bjective and Subjective Standards:
3p oetz moves objective standard more towards subjective
3p Liebholm case has subjective standard, but court uses reasonableness limitation
3p Looks like they are converging closer to the center However, it does make a
difference in the outcome
{p ºnder CL, if it is not reasonable, there is no defense at all, modulated by
imperfect justification mitigating the severity of the defense
{p MPC: entirely subjective (3 1, 3 4, 3  mens rea considerations
F p Self-Defense and Domestic iolence (Defense of thers
1 p State v Kelly (p 4 5: D (wife killed husband (who was running after her with a pair of
scissors after repeated attacks by husband D indicted for murder and claimed self-
defense at trial Court did not allow expert to testify about battered women¶s syndrome
because they did not think it would show objective reasonableness of D¶s perception of
the danger D convicted of reckless manslaughter
3p Ossue: hether the expert testimony about battered women¶s syndrome should be
admitted in this case; hether it is relevant to D¶s claim of self-defense
3p Rule/Holding: A valid plea of self-defense requires an actual (honest belief on
the part of the D in the necessity of using force which was reasonable under the
circumstances (as determined by the jury The expert testimony is directly
relevant to determining what the D believed at the time of the stabbing and this
will help the jury to decide what a reasonable person would believe under the
circumstances
3p †ote: Most courts have allowed testimony concerning the battered women¶s
syndrome to be admitted if offered by a qualified expert
2 p
attered oman Syndrome
3p Some argue that allowing
S testimony expands the scope of self-defense
beyond the bounds of lawful justification (however, the risk of distortion exists
even if
S testimony is not allowed
3p Omminence: some argue that
S is valuable because it may lead lawmakers to
relax the requirements of self-defense, like that the threat must be ³imminent ´
{p Vuestion of whether this requirement achieves a just result in cases
involving battered women, who can¶t leave/retreat because of
S and
instead must wait until the threat is imminent before using deadly force
3p Diaz case: woman killed husband as he slept; no ³imminent´ threat but D was
acquitted on grounds of self-defense because jurors accepted the idea that a
perception of future, inescapable danger could provide grounds for reasonable
self-defense action even when the source of the danger was asleep
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{p Most appellate courts do not accept self-defense claims made by battered

women who killed their husbands while they were asleep and refuse to
relax the imminence requirement
3p State v †orman: †C case where woman killed husband in his sleep after years of
abuse; trial court convicted because no self-defense instruction was allowed to the
jury; CoA reverse; Supreme Court reversed and upheld conviction because it
would give the term ³imminent´ a substantially more indefinite and all-
encompassing meaning, and would encourage ³homicidal self-help ´
{p Legally, the issue in this case is ³imminence´
{p Stewart and †orman criticized, compare the women to hostages
{p †orman under the MPC: Significant differences
Up 3 4(1: ³immediately necessary´- threat does not have to be
³imminent,´ just your action has to be immediately necessary
Up Limited by ³present occasion,´ but not in this case Ëust can¶t kill
because he might hurt you in a year or something like that
3p Feminist Perspective: theory that the law of self-defense developed in response to
male experiences and perceptions of violence, therefore failing to reflect the
circumstances under which women resort to lethal force
3 p Self-Defense by a
attered Child: Analogous issues with ³battered child syndrome´
3p Split between states as to whether jury can hear expert testimony
4 p Deadly Force and
S:
3p (Handout hypo Citizen can use deadly force to keep his wallet
3p On †C, †orman could not kill abusive husband while he was sleeping †C
Supreme Court upheld conviction, but she received a government pardon
3p hy did prosecutor choose to prosecute/charge †orman? High quality of
planning, issue of precedent
5 p Omportance of Expert Testimony: Connection to
S and Kelly case
3p On Kelly, question of whether the person was qualified, then whether their
testimony is relevant/helpful to the jury, then what the expert is allowed to testify
about 3 issues
3p Expert¶s testimony about
S goes to her credibility and reasoning because

S is outside the knowledge and contrary to conventional wisdom about what a
normal person would do in that situation
3p Expert not allowed to say what she reasonably believed
3p †ot clear that she can close to death on any occasion in the years of abuse
3p How much is what she did a retaliation and how much is genuine fear of death or
serious bodily harm? (Definition of serious bodily injury: A-
 p Onsanity
1 p enerally:
3p Small number of Onsanity cases
3p nly 4
of criminal cases go to trial
3p Onsanity defense is a double-edged sword (shows danger to others, as opposed to
moral culpability
2 p People v olff: D murdered his mother because he could not bring girls to his house to
rape/photograph if she was there This was after he got stuck in a chimney trying to enter
c



     

a girl¶s house He stated that he knew what he did was wrong There was psychiatric
evidence that D had schizophrenia
3p olff under CL:
{p Most jurisdictions would apply M¶†aughten: hether you know right
from wrong; hether you know what you are doing
Up Ëurisdictions vary on what ³know´ means
3p Cognitive meaning: narrow/restrictive interpretation
3p Affective meaning: can verbalize a correct answer, but
doesn¶t really know what it means (broader interpretation
{p There are also jurisdictions that think M¶†aughten is not enough:
complement it with irresistible impulse
Up Parsons opinion: ³knew what was right or wrong, but lost the
power to choose´
Up †ot enough to just look at whether the mental disease affected
their understanding of their action, but how it affected their
understanding
{p ´ of jurisdictions accepted MPC 4 1
Up Oncludes both a cognitive and a volitional prong
Up Recognition of fact that it is not a bimodal switch- not total loss of
free will, but lack of substantial capacity
Up Critical threshold question: whether there was a mental disease or
defect
3 p Onsanity Defense/Hinckley Ëury Debrief
3p Everyone agreed there had to be a mental disease or defect
{p Diagnostic differences (what it is, how serious
{p Medical side is just a piece of the puzzle
3p Prior to Hinckley, split between common law jurisdictions that started with
M¶†aughten
{p Some added irresistible impulse (minority- many rejected because it was
inconsistent with ideas of free will
{p Some had a narrow cognitive version of M¶†aughten
{p Some had a broader affective version (CA court in olff case
Up All agreed he was schizophrenic, but he also knew right from
wrong- limited understanding
Up CA Supreme Court upheld jury¶s rejection of the insanity defense,
but took out 1st Degree Murder conviction because he couldn¶t
premeditate
{p MPC is different because it substitutes the language ³appreciate´ and has a
volitional prong
Up ther significant piece: ³lack of substantial capacity´
Up Many jurisdictions began moving toward MPC, then Hinckley
occurred
3p Possible changes to Onsanity Defense:
{p Substance/Definition (†ot uilty by reason of Onsanity:
Up Definition of mental disease or defect:
3p Limit to psychosis or other perceptual
c



     

3p Limit to ³severe,´ defined by judges

Up Cognitive v Affective
Up olitional Prong
Up Substantial Capacity? Do we like the MPC language?
{p Procedures:
Up
urden of Proof:
3p Put on D
3p Standard:
eyond a Reasonable Doubt, Preponderance of
the Evidence, Clear and Convincing
Up †O (†ot uilty by reason of Onsanity v 
MO (uilty
ut
Mentally Oll- Leg
3p
ig difference here †O- treated and go home; 
MO-
treated and go to prison, but does not necessarily mean they
will get treatment
Up Limits on Evidence (Experts
Up Eliminate the Defense (Leg 
Up Civil Commitment/Treatment
Up Ëury Onstructions
3p Ompressions of Hinckley Lawyers and Ëudge:
{p Thinking about how lawyers talk to jurors (credibility
{p itnesses¶ preparation
{p Ëudge: Onconsistency
{p Defense Lawyers better than Prosecution
{p Everybody afraid to push too hard about instructions to avoid a final ruling
either way (no one wins, but no one loses
{p Ëuries in general
4 p Clark v Arizona (handout: Supreme Court case D suffered paranoid schizophrenic
delusions about aliens; shot and killed a policeman that he thought was an alien AZ
statute was a variant of M¶†aughton, making insanity an affirmative defense D
convicted of 1st Degree Murder; Supreme Court upheld conviction Court concluded that
the state court did not violate Due Process by limiting the application of the psychiatric
evidence solely to the insanity defense, and not to mens rea (so D could not present
evidence that he thought policeman was an alien
3p See handout to compare AZ, ºS, and TZ Onsanity Defense Statutes
3p As a policy matter, can see that the court recognizes the state¶s formulation of the
insanity defense
{p AZ had a narrow interpretation of the defense
{p D could not present ³alien´ testimony under AZ state law; would have
been allowed under M¶†aughton
3p Supreme Court¶s reasoning in deciding that it did not violate Due Process:
{p Ëury confusion
{p ould get around legislative decision to limit the defense
{p Maybe he could bring it in as self-defense?
3p Affirmative Defense: D is not contesting the elements of the offense; raises some
new issue distinct from the elements of the offense
c



     

3p Presumption of Sanity: Onsanity only comes into the case if D introduces relevant,
probative, admissible evidence that raises the issue (same with self-defense
{p Hinckley: nce D gets it in, then government has the burden of proof
{p AZ: D has the burden of proof
{p olff Case: treated psychiatric evidence as a defense to 1st Degree Murder
(would not happen under federal law and law of many other states
3p Onterpretation of the words ³know´ and ³appreciate´ varies among and within
courts
c



     

OO p Homicide
A p Ontroduction: p 5 introduces common law ideas of murder and manslaughter
1 p ³Malice Aforethought´- a term of art differentiating the two ideas, with 4 definitions
2 p Dividing line between Murder and Manslaughter; historically, importance was to
determine if D would receive the death penalty
3 p here death was appropriate- 4 cases (in MPC terms:
3p Murder
{p (i Purpose or Knowledge to case death
{p (ii P or K to cause grievous bodily harm
{p (iii ³R´ (R+ to death
{p (iv Strict Liability- no mens rea (Felony Murder
3p (†ot appropriate- Manslaughter
{p oluntary (Purpose
{p Onvoluntary (no Purpose
4 p Manslaughter v Murder: difference in punishment reflects difference in comparative
culpability
5 p †ote: can only be convicted of attempted reckless murder in C and FL

p (p : PA statute is the best example of common law murder statute
1 p Onnovated with breakdown of Murder into 1st and 2nd degree
3p 1st degree Murder: Capital punishment; 2nd degree Murder: still murder, but no
death penalty
3p Accepts the common law definition of murder (³malice aforethought´, but then
separates the more heinous crimes as 1st degree; everything else is 2nd degree
{p Most statutes don¶t directly define 2nd degree murder; instead, it is
whatever doesn¶t go under 1st degree
{p Some purposeful killings are 1st degree because they are premeditated;
some are 2nd because they are not
Up Some are mitigated down because they are provoked (H PSAP or
EEDREX- differences on p 3
3p ºnder MPC there is no specific requirement of
provocation, although it is hard to find a reasonable excuse
or explanation without one (implications on p  
{p Also, don¶t necessarily have to strike back at the
provoker; no timing requirement; no categories or
rules; does not ask objective reasonable person test,
just asks what is reasonable for D in his situation
and as the D believes the circumstances to be (so
mistake is okay- although at the end of the day
there has to be a reasonable excuse or explanation
for his distress
{p Similar to diminished responsibility in common law
(p 
{p Like a lower level of insanity acting as a partial
excuse
3p Division because murder and manslaughter not just P or K, but can also be R+
(depraved indifference
c



     

{p R+ Killings: extreme, culpable, unintended killings Every jurisdiction

treats some of those as murder
Up Dividing Line: Does society judge retribution more by an
individual¶s planning or thoughts or are we more focused on
results of conduct?
{p Common law: ³abandoned and malignant heart regardless of social duty´-
so reckless that they are essentially knowing, evil people
{p rdinarily cases have agreed R+ is an objective standard but there is also a
good deal of dissent in both MPC and CL which urges for a more
subjective interpretation
Up State v McKinney (Shepard case: great chance to use R+ even
under subjective standard
3p Mitigating Murder to Manslaughter:
{p CL:
Up H PSAP: Heat of Passion/Sudden Adequate Provocation
Up Some CL courts allowed negligence in manslaughter because the
offense of negligent homicide did not exist
{p MPC:
Up EEDREX: Extreme Emotional Disturbance/Reasonable
Explanation or Excuse
Up Manslaughter can only include R unless the D was intoxicated
(failure to perceive the risk is immaterial if the reason D failed to
perceive it was drunkenness- Dufield handout
3p †egligence causing Death:
{p CL: Robertson (p   differentiates between culpable negligence (more
like MPC recklessness and simple negligence (more like MPC criminal
negligence MPC does not
{p MPC: Death caused by negligence should be the lower offense of
negligent homicide
C p MPC gets rid of degrees of murder (21 2
1 p 21 2: R+ committed recklessly under circumstances manifesting extreme indifference to
the value of human life bjective v Subjective:
3p ³Circumstances´ are that of extreme indifference (obj  or ³circumstances´
manifesting extreme indifference (subj 
3p Kind of a toss-up; unclear in the language of the MPC
2 p 21 : huge list of aggravating and mitigating factors
3 p †o explicit mention of ³premeditated and deliberate´ but lots of examples of such
conduct
4 p Definitely allows court to consider more factors of each crime but could be really
unpredictable and arbitrary
D p Ontentional Homicide
1 p State v McKinney (handout- Shepard Case:
3p Does it count as murder? Ontent to kill hard to determine immediately Does it
show intent that they lured him out or beat him? Maybe not
{p
ut asking him if he could read the license plate first: inference is that
they wanted him to die so they could not be indentified
c



     

{p Still, they had a gun and could have shot him Did they really ³intend´ to
kill him? Arguments on both sides
{p Probably can¶t prove Purpose, but may be able to prove K to kill
{p Definitely can prove P to cause seriously bodily harm, so it still counts as
murder
3p Prosecution wants 1st degree murder, which requires ³premeditation and
deliberation´
{p †ot all jurisdictions interpret this the same way Some have broken it
down to just meaning chose to kill or intended to kill
{p Probably R+ murder; form of malice aforethought, lacking enough to
bring it up from 2nd degree
3p rading:
{p Murder - 4 Forms of Malice Aforethought:
Up P/K ` death (1st degree; P+D and FM
Up P/K ` grievous bodily harm (some 1st and some 2nd degree
Up R+ ` death (2nd degree
Up Felony Murder/Strict Liability ` death (some 1st and some 2nd
degree
{p Manslaughter
Up oluntary
Up Onvoluntary
{p †egligent Homicide (some jurisdictions
3p D tries to bring in evidence that he was really freaked out by victim¶s sexual
advances This argument would mitigate his claim
{p Common Law: Assuming that he could bring in the evidence and jury
actually believed him (doubtful, would it be sufficient?
Up H PSAP Standard- reasonable person, sudden legally adequate
provocation, heat of passion
Up CL allows people to mitigate down as an issue of justification or
partial excuse (like †orman Looking at the relative moral
culpability, thinking that the provocation ³caused´ the crime
Up There are differences in how strict common law jurisdictions are
Some have a more general reasonable person approach, while
some have a narrower categorical approach
Up McKinney does not fit the categories in the CL objective test that
would mitigate down from murder to manslaughter
Up Freddo v State: D was a very sensitive guy and was so offended
by language that he killed †ot mitigated down to manslaughter
because standard is that provocation must be such that would ³in
the reasonable man, stir resentment likely to cause violence,
obscuring the reason and leading to action from passion rather than
judgment ´
3p Don¶t care about personal prior history
3p Adequate Provocation: listed on p 
c



     

{p Many jurisdictions had a categorical approach,

where you had to fit into an indentified type of
provocation (4 types
{p ords, gestures, trespass not sufficient
{p MPC: Accepts mitigation from murder to manslaughter but deliberately
changes the terms (A-1
Up 21 2 Murder; 21 3 Manslaughter
Up McKinney would be better off under the MPC because the MPC
drafters deliberately and substantially expand the mitigating
defense
Up Comparing CL and MPC:
3p CL: Heat of Passion, Sudden Adequate Provocation
3p MPC: Extreme Emotional Disturbance, Reasonable
Explanation or Excuse
3p Difference in intensity
Up Timing: MPC doesn¶t have to be sudden; implies no cooling time,
has no timing requirement at all
Up Adequacy of Provocation:
3p CL has an objective standard: where a reasonable person
would be driven to act (categories or general
3p MPC is mixed objective and subjective: EED ³in the
actor¶s situation´ (intentionally undefined and
³circumstances as defendant sees them´ is subjective, but
the explanation for the emotional disturbance has to be
objectively reasonable
{p This could work for Freddo or McKinney
{p MPC meant to remove rules and categories and
leave it to the trier of fact to figure out what counts
{p EED meant to be broader and more flexible than CL
Up Advantages and Disadvantages
3p Easier to get in extreme cases with MPC- but they do still
have to be reasonable
3p ³
oy¶s Rules´- what are the social values we are
promoting?
3p MPC flexibility also leads to unpredictability Conviction
will turn on other factors in the trial like jury, lawyers,
money, and D¶s appearance
3p Ompact on Trial: Yale murder example- †Y statutes (based
on MPC made the trial all about why D was so upset rather
than the severity of the offense
3p Vuestions to ask: Do more get mitigated down under MPC
or CL? hich achieves a more just result? Also keep in
mind the relative punishments for each
2 p State v
rown:
3p Rejects view that premeditation and deliberation just means chose or intended to
kill
c



     

3p Holds that deliberation requires some period of reflection or ³cooling time´ so

that actor is free from excitement or provocation
E p ºnintentional Homicide
1 p Reckless Homicide/R+ Killings
2 p †egligent Homicide
3 p Ontoxication- State v Dufield: Supreme Court case
3p «the function of proving the existence of "circumstances manifesting extreme
indifference" is to establish, not a subjective state of mind, but a degree of
divergence from the norm of acceptable behavior even greater than the "gross
deviation" from the "law-abiding" norm, by which reckless conduct is defined
3p n this view, the words in question would describe a way of objectively
measuring such a deviation, in which case any voluntary intoxication that might
have blinded a defendant to the risks of such extremely deviant behavior would be
as irrelevant as it would be to proof of the less culpable deviation required to
establish mere recklessness e believe this latter view is correct, for reasons
grounded in the practical consequences of the defendant's position, and the policy
underlying the statutory treatment of disregarding risks of harm to others
3p hether a defendant's homicidal behavior falls within the category of reckless
manslaughter under RSA 3:2, O(b, or the category of second degree murder
under RSA 3:1-b, O(b, its culpability arises essentially from the defendant's
disregard of the risk of death to another On each category, the degree of risk for
which culpability is assigned is identified by reference to the defendant's
deviation from a standard of social behavior
3p r

  

  
        
  
      

       
  
  Each standard performs the same function as a norm
from which deviant risk-taking is measured, and actions falling within the
categories of lesser and greater culpability form a continuum of behavior
3p
ecause each of the statutory terms, "gross deviation " and "extreme
indifference ," performs the same basic function of identifying a particular
degree of deviance in creating risk, it is reasonable to infer that the relevance of
voluntary intoxication should likewise be the same with respect to culpability for
either the lesser or the greater degree of risk so identified
3p ë      
    
ë  ! "!
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 0     

  
   
     
   
1        
F p Felony Murder (p 3 
1 p enerally: FMR is the rule in most jurisdictions (with judicial efforts to narrow
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3p Of there is no enumeration of the felony murder in the 1st degree, then it is not
there and all felony murders are 2nd degree (because 1st degree is specifically
defined
2 p riginal version of Felony Murder Rule: A person who commits any felony and any
accomplices [accomplice liability] in that felony are guilty of murder if a death occurs
during the commission or attempted commission [attempt] of or flight from the felony
3p Strict Liability
3p
road Rule; later restricted in 3 ways:
{p hich felonies count- ³inherently dangerous´ (not self-defining
{p Causation- death required; the death must be ³natural and probable result´
of felonious conduct
{p Ondependence of felony from the homicide
3 p Two
ig Ossues
3p hat Counts as a Felony: Vualifying Predicate Felonies
{p All Felonies: riginal ersion: any felony (moved towards limiting
Up ery few still hold to this
{p Enumerated Felonies: Some statutes enumerate a list of felonies to take it
up to 1st degree, but even if there is a list they aren¶t the only ones; all
other felonies take it up to 2nd degree murder
Up Courts differ as to whether enumerate VPFs and which felonies
constitute VPFs; can be a reflection of legislative concern with
certain crimes (train wrecks
{p Onherently Dangerous: On many jurisdictions, move to focus on felonies
inherently dangerous to human life Split on how to determine these:
Up Abstract: Look at the felony definition itself in the abstract
Up n Facts of Case: Look at specific facts and circumstances as well
as definition (oodseal
3p Merger
{p Hansen (p 45: Of you have a VPF, death has to be sufficiently causally
linked and it must not merge (also have temporal limitations
{p Theoretically, the felony murder rule could bump anything from MPC
†egligent Homicide up to Murder by charging a felony (like assault
Up Policy problem giving rise to the merger doctrine
{p Ossue over how far merger can go (court have a lot of difficulty with this:
Up Courts typically say it must be an independent felony, meaning it
does not merge Two ways to determine have emerged:
3p Hansen (Ontegral: Os the predicate offense an integral part
of the homicide- like if the only event was an assault
leading to death? Assault is a felony integral to the death
3p Ondependent felonious Design: D had a separate plan
{p Kansas statute (handout: Os it true that a homicide cannot be a VPF?
Up Difference between (a and (b- (a does not merge, (b requires
multiple victims
4 p oodseal (handout: D slipped, gun fired and killed man in car with D¶s prostitute friend
D claims it was an accident; prosecution¶s story was that it was an aggravated robbery
3p oodseal doesn¶t care about mens rea
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3p The effect of the felony murder rule is to take a case that might have been as low
as civil negligence and makes it murder (1st degree in this state
{p Prosecutors and legislatures like it; MPC does not
3p †o causation or timing problems here; issues are:
{p Os it a qualifying predicate felony?
{p Even if it is a VPF, what about merger?
3p Classic formulation included all accomplices (like Silky to the predicate felony
(possession
{p How does conspiracy play into this? hat is her conduct/mens rea with
regard to the object offense?
{p Also consider Pinkerton
3p (p 2 Court interprets/narrows/refuses to broaden statute as a policy matter
{p Like question in Keeler (except in Keeler there was a clear indication of
legislature¶s intent
{p Here, the court thinks the legislature didn¶t really think about it
{p This court is not unique in narrowing the statute because almost all
jurisdictions have come up with limitations on the felony murder rule
3p Court decided they would consider if the felony was inherently dangerous on the
facts of the case and states even though oodseal¶s actions with the gun were not
inherently dangerous, they were upholding the felony murder rule
{p Court reaches this odd result because they are trying to get around the
issue of merger (because if D was assaulting with the gun, then he
couldn¶t be held under FMR
5 p Felony Murder Rule takes certain issues off the table
3p Cunningham Hypo: Of woman had died when he ripped the gas meter off of the
wall
{p Of it was a VPF, no consideration of mens rea and murder charge
{p CL: manslaughter
{p MPC: negligent homicide
 p MPC does not like Felony Murder Rule
3p (A-1 21 2(1(b
{p Look at definition of ³presumption´ (A-1 1 12(5- this only applies to
the MPC
Up The presumed fact is recklessness with extreme indifference
{p Probably can get to the jury
Up ives jury a signal that it is sufficient, but is not strict liability
Acts as an evidentiary ³boost ´
Up Of the jury wants to find R+ on the basis of the facts, they can
{p This MPC proposal has not been widely adopted; most states unwilling to
completely eliminate the felony murder rule, but some (like †Y have
limited it
3p FMR unpopular with both MPC and academics
{p Public Policy Considerations
Up Reasons for FMR: it would deter people from committing felonies
or from letting people die while they are committing felonies
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Up Against FMR: the fact that negligence or bad luck could lead to a
murder charge without mens rea is worrisome
 p Multiple Actors and the FMR:
3p Durham was not felony murder because the felony- possession of a stolen car-
was not a VPF Also, they were not committing the robberies or fleeing (in the
immediate sense any more
{p Standard in Durham: †atural and probable consequences
3p Accomplice Liability
{p On order to establish accomplice liability, you have to be an accomplice to
the VPF Traditionally, all accomplices were subject to the FMR
{p MPC limits accomplice liability by presuming R+
{p ºnder normal accomplice liability, you look at mens rea with regard to the
object offense (sometimes failure to act is sufficient
Up Have to find this first to apply the FMR
3p Sophophone Case (p 1
3p Hypo: Police officer killed during armed robbery attempt and shootout
afterwards; bullet from cop fire, not the robber
{p VPF: armed robbery
{p Timing: attempt or flight therefrom
{p Proximate Cause: lots of shooting, but fatal shot was not from one of the
co-felons
{p Courts are split: Agency v Proximate Cause
Up This fact scenario fits Proximate Cause but not Agency
Up The dominant theory is Agency, but this case didn¶t come out that
way because the language did not demand it
Up ³Cause´ doesn¶t mean the bullet has to come from your own gun
(in this decision
Up Agency is more restrictive than Proximate Cause
{p Public Policy: Defendant appeared responsible here; another set of facts
might have come out differently
3p †Y does not support FMR for a coincidental death, but does support FMR for
those ³caused by´ the co-felons
{p ºnder †Y law, there are affirmative defenses available
 p FMR Pros and Cons
3p Most valuable in cases where you wouldn¶t find R+
{p Does that show that it is inappropriate to extend liability that far?
{p ives prosecution 2 shots at getting D, especially if jury has a hard time
applying R+
{p ften could get at least 2nd degree murder by using R+ and causation
instead of FMR
3p Courts are split on how to deal with situations where the decedent is a co-felon
{p Some require that it be a victim to enforce the FMR
{p Sophophone case: how much does it matter that he was already in the
police car?
{p Also cases where the death is cause by lawful use of force pose an issue
(different for police officer death than for co-felon death
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3p †o Felony Murder under the MPC

{p FMR is another special rule of accomplice liability
 p Death Penalty
1 p enerally:
3p There is more than law to think about here Proportionally, DP is a tiny number of
causes, but:
{p Ot is a defining aspect of ºS law
{p Lawyers need to have a basic understanding of the DP in the ºS
3p On the 1 ¶s, courts considered whether the DP was constitutional per se
{p Constitution talks about people being deprived of life, and about capital
offenses
{p 2 lines of argument:
Up Argument that the DP contravened evolving standards of decency
in a civilized society (th Amendment ± cruel and unusual
punishment hat was accepted then may be considered cruel and
unusual today
Up The then existing DP sentencing procedures were unfair
{p Furman v eorgia (p 2: Majority of the Supreme Court split into two
wings:
Up
rennan and Marshall: society had evolved past DP
Up Douglas, Stewart, hite (swing group: the procedures were the
problem The DP was ³wanton and freakishly imposed´ and it was
like being hit by lightning
Up Dissent: DP itself and procedures okay
{p Mcautha v California (p 2: claimed that submitting guilt and
punishment to the jury in a single proceeding deprived D of a fair
sentencing hearing Court held that it did not violate due process
{p 1  Decisions (p 5: 35 states passed new statutes as a backlash to the
Furman decision ery strong evidence to suggest that the majority of
people in the ºS had not rejected the DP
Up regg v eorgia: Headline case
Up oodson v †C: Another main case
Up Supreme Court took five cases instead of one because the states
took different approaches:
3p †C/LA: mandatory DP for all D¶s convicted of 1st degree
murder
{p Rejected by Court because it ³simply papered over
the problem´
{p †o individualization; when the penalty is that
severe, it is essential that the process be
individualized (footnote K, p 5- 
3p A/FL/TX: attempted to structure the exercise of
discretion (ALO and MPC Focused jury¶s attention on the
particularized nature of the crime and characteristics of the
individual D Must find and identify at least one statutory
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aggravating factor; also A Supreme Court given review

function, which acts as ³insurance ´
{p Lockett: D must be permitted to introduce her background and particular
circumstances and involvement/participation
Up D was a secondary participant with no criminal history and the
trigger person didn¶t get the DP
Up Supreme Court said you can¶t exclude potentially mitigating
evidence even if it is not within a factor specified by a statute
Up Does not allow a list of mitigating circumstances to be exhaustive
based on the th Amendment
{p Predicates making a D eligible for DP:
Up Procedures and factors particular jurisdictions will consider
Up Relationship between jury and judge
3p Constitutional Process: There has to be a narrowing/channeling of discretion, but
also the opportunity for mitigation and individualism
3p †eelley (p 11:
{p Most states have something that looks like the MPC
{p AL Statute (
-51: Murder, closer to the MPC (no common law language
like malice aforethought or premeditation/deliberation
Up However, it says ³with intent´ instead of MPC P or K in (1 and
³reckless indifference´ in (2 instead of depraved indifference
Up (3 many differences from MPC because MPC only gives a
presumption but this is common law FMR (and not an exhaustive
list
Up You can tell they started with the MPC but changed certain things
Up (b is a version of common law H PSAP; rejected EEDROX
{p On AL: (1 Prove murder; (2 Prove capital murder; (3 Agg/Mit
circumstances
{p First thing prosecutor has to decide in †eelley is whether it is murder-
clearly it is
{p †ext Step: (
-52 Capital ffenses
Up This does not look like the MPC, which goes directly from
defining murder to aggravating/mitigating circumstances
Up AL goes from defining murder to limiting the number of cases that
are death-eligible This is a middle step that is a substitute for what
the common law called 1st degree
Up This is a long list: (1-4 forms of FMR; (5 by identity of victim-
police officer; all the way down to (1
Up Applying to victim in †eelley: 1, 15, 1
Up ºnder AL law, capital murder is not a narrow category
3p Also difficult to tell how a jury will come out on each case
{p After the jury finds D guilty of a capital offense, then there is a bifurcated
proceeding presenting aggravating and mitigating circumstances
Up Aggravating Circumstances (
-54
3p On †eelley: 4, 
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3p ³Especially heinous, atrocious, and cruel´ circumstances is

a real area of contention with regard to consistent
application of the DP
3p States differ on whether to enumerate either the only or the
necessary aggravating circumstances (but allow the jury to
find additional ones
Up Mitigating Circumstances
3p ºnder Lockett, a list of mitigating circumstances cannot be
exhaustive
3p AL legislature gives some suggestions
3p Ossue of
attered omens Syndrome (p 1112
Up †eelley makes arguments for extreme mental or emotional
disturbance; that her participation was relatively minor; extreme
duress or domination; capacity to appreciate criminality of her
conduct (weaker version of MPC Onsanity
Up eighing on aggravating v mitigating circumstances done
qualitatively, not quantitatively
{p ptions for the jury: life without parole or death Ëury chose life without
parole but judge overruled (in most states, judge does sentencing Also in
most states if jury says no DP, judge can¶t decide for DP
Up Ëury has to make factual finding or determination that forms the
basis of the DP (th Amendment right
Up †o constitutional protection against judge sentencing
Up Ëury is a ³black box´ in †eelley, came out 1 against DP and 2 for
DP
{p AL restricts the jury¶s authority by making it purely advisory and giving
the judge the ultimate decision-making power to sentence someone to
death
Up The ability to reduce severity is fundamentally different than
increasing it, or making a case death-eligible
Up ºnguided lenience is okay; unguided severity is not
Up eighing of the circumstance: judge doesn¶t state how he weighs
the different factors (³black box´
3p McCleskey: no mitigating factors (indicative of a bad
lawyer b/c every case has some significant mitigating
evidence; statistical evidence introduced on habeas, when
he got new lawyers
{p Reasons a judge might decide different than a jury
Up Ëudge is a repeat player; more consistent
Up Emotional detachment
Up Harder to get a jury to agree (limitations of group decision making
especially if unanimous
Up Ëudges are elected and are a reflection of the community, while
jurors are more anonymous
{p Appellate Review (
-55- 1  structure approved by Supreme Court
Up AL: 2 levels of review of the propriety of the sentence
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Up Court of Appeals starts from scratch

Up as death the proper sentence? (b(1
Up Compare to similar case

{p overnment commutes sentence to life without parole; very unpopular

decision, made on the last day
Up Role of executive clemency (†eelley, †orman, cannibalistic
seamen
Up Role of politics in this context (elected judges, DA, governor
3p The new, post 1  statutes specify who is eligible for the death penalty
{p A doesn¶t enumerate mitigators; AL gives a non-exclusive list and
aggravators have to outweigh mitigators
3p McCleskey: D raises two different legal arguments:
{p 14th Amendment argument: Ossue of equal protection (p 13 Had to find
discriminatory purpose by legislators and decision-makers; discriminatory
impact doesn¶t prove discriminatory purpose, but it is possible to infer
things (People v Lauria However, McCleskey couldn¶t show that his
case was enough to establish purposeful discrimination
{p th Amendment argument: the statistics show that DP is more often
imposed when there are white victims- do they show a failure to move
away from an arbitrary and capricious system? Court concluded that the
evidence presented here did not establish a level of
arbitrariness/capriciousness/impropriety sufficient to overturn
Up Factors (p 1 middle: ³At most«´
3p DP system ³surrounded by safeguards´
Up (1 The value of sentencing discretion- the Constitution requires
individualization/discretion in DP cases
Up (2 Safeguards that have been imposed to increase fairness
(changes to jury selection- trying to drive out the opportunities for
racial prejudice and bias in the system
3p
elief in the jury
Up (3 Fear of the slippery slope: same thing could be done for gender
and physical attractiveness, or other parts of criminal justice
system
Up (4 Legislature is in the best position to make these judgments
{p McCleskey follow-up
Up
ack down to trial court; raised an additional issue- th
Amendment rights violated under Mesayah (questioned in jail by
undercover agent ent back up to Supreme Court, who said he
didn¶t raise the issue soon enough ºltimately executed
{p McCleskey¶s case is representative of the DP as a whole; if he had won, it
probably would have effectively ended the DP
Up
rennan suggests this is wrong and could narrow it only to the
middle area of the ambiguous cases where implicit, subconscious
racial preferences could make a difference
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3p How do we feel about how the system is working post-Furman and regg? Some
justices have gone on the record as having concerns (Powell regrets McCleskey
{p ne big concern is the racial discrepancy- not the same as purposeful
discrimination, but it may reflect a lot of different issues
{p Economic disparity- people with good lawyers don¶t get the death penalty
Up Also stigma against criminal defense lawyers resulting in a lack of
adequate counsel at the tial level
{p Cost of the system- Supreme Court made it exponentially more expensive
{p Execution of innocent people (D†A is helping with this
{p Deterrent effect questionable
{p Cruel and unusual/barbaric- consideration of social standards/evolving
ethos
{p Effect of state/region/county
{p ºS reputation on an international level
{p Os this an area where the popular election of judges and DAs is a matter of
concern?
3p ALO no longer recommends DP model or MPC 21  template; A
A voted for a
moratorium
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OOO p Rape
A p Rape Law Traditionally ± Problems
1 p †onconsensual vaginal penetration not sufficient (needed resistance
2 p Focus on the victim
3 p †o inquiry into D¶s mens rea
4 p ender specfic
5 p Special procedural rules (corroboration requirements; jury instructions
 p †o marital inclusion
 p MPC¶s prompt complaint rule (not accepted now

p The theorists have persuaded the policy makers that there was a problem with the way rape law
were written
1 p Agree that we need to change the system; don¶t agree on how to change it
2 p Definition of the problem ` how to fix it
C p Statutes between States
1 p enerally
3p Things we have agreement on:
{p †eed to get rid of the special procedural rules that put the victim on trial
{p Elimination of the Prompt Complaint Rule
{p ender †eutrality
3p †o explicit references to mens rea in any of the state statutes
{p Ot is no defense if D believed there was consent At the lowest level, they
meant it to be strict liability
{p Henderson advocating strict liability for a class of offenses; Estrich
advocating negligence
{p Role of Ontoxication in these cases (victim or D
3p Calling the crime ³Rape´
{p Omplications for victims, defendants, juries
{p Might encourage more victims to come forward if it is not
{p †egative impact of having ³rape´ and then other degrees of offenses
(trivializing victim¶s experience
3p Resistance: About ´ of jurisdictions require reasonable resistance as a measure of
force; in other jurisdictions it is probative evidence of consent
{p So, victim¶s conduct comes into consideration in most cases
{p 14 states allow a felony conviction without force;  allow misdemeanor
{p Shift towards consent, but in many states force is still an element
{p Shift towards mens rea, but no agreement as to what level should be
required
2 p Key Differences
3p MO Approach: Force, iolence, Sexual ³Assault´
{p Problem with MO: limits it to extrinsic force
Up Led to cases where courts really struggle to find something that
looks like force
{p MO is trying to find proxies for nonconsent
Up Requirements of force/resistance acted as a proxy for mens rea
Ossue over what to do about mens rea as to victim¶s consent in the
absence of these requirements
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{p MO Supreme Court judicially created a consent defense to respond to

issues with Felony Rape
3p O, †Y: Focus on Consent
{p Different definitions of consent (positive v negative
3 p Key features of traditional rape law that indicated a need for change (O Statute:
3p Focus on victim; burden of proving utmost resistance
3p Spousal exclusion
3p ender specific
3p Penalty structure: 1 grade/degree; Single offense; harsh; DP eligible
{p Encourages courts to define more narrowly
3p Actual sex only
3p Physical force focus (as opposed to lack of consent
3p †o mention of mens rea
3p Procedural issues:
{p Corroboration of victim¶s account (†Y required for every element
{p Cautionary jury instruction (believing victim, convicting D
{p Discussion of prompt complaints (
rown
{p Treatment of victim (chastity inquiry
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OX pProportionality
A p Death Penalty
1 p Eighth Amendment
2 p Maximum punishment for aggravated rape?
3 p Sequence of Death Penalty
3p 1 2: Furman (effectively struck down all DP statutes
3p State legislature¶s reaction period
3p 1 : Court has to come to grips with the two approaches by the states
{p Mandatory DP statutes rejected because individualization and discretion
was essential (oodson v †C
{p ºpheld statute in regg v A
3p Lockett: must allow D to bring in mitigating evidence
3p 1 : Coker- issue: are there limits on the DP other than procedure? Ot is the same
statute that was upheld in regg
{p Omposing substantive limits on the types of conduct/crimes for which
death can be imposed
4 p Death Penalty for Rape
3p Coker (Rape of an Adult
{p (p 1, OO: ³it is now settled«´ (Furman holding
{p th Amendment¶s role: barring both (1 barbaric and (2 proportionally
excessive to the crime committed
Up 2 distinct standards/ways to violate th Amendment here
{p Methodology of Coker:
Up 1 bjective Factors (legislative and jury activity
Up 2 Court¶s subjective/independent final judgment
{p Subjective opinions vs bjective factors:
Up hy is the court focused on this?
ecause they said they would
measure cruel and unusual punishment by evolving standards of
decency, so they have to know how far society has evolved
3p Also overriding decision of legislatures- but by counting
legislatures
3p Framework:
{p After justices have examined the relevant objective
factors, they have to make a subjective judgment
{p Look at contemporary values in making a subjective
judgment
Up Ot is good to leave these judgments to the legislature, but at the end
of the day there is a limit on how far the legislative process can go
(purpose of constitutional provisions
3p Supreme Court¶s issue here is that they can¶t just look at
the historical context because they have to look for trends
in legislation, juries, etc
3p Defined by legislature, but have the power to overrule
legislature
3p State legislative activity is constrained by what they think
the court will let them do (cyclical
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Up bjective Factors: legislative authorization of the death penalty;

imposition of the death penalty looking at jury verdicts
3p
e skeptical/critical of these measures
{p Ossue in Coker: Rape of an adult
Up Measure: legislative authorization of death penalty for rape of an
adult Court concludes that only one state allows it (end of bell
curve; small number of cases where juries impose it (5 out of all
ºS, all in A
Up Majority decides that this is grossly disproportionate and that it
makes no measurable contribution
3p Likely/Possible additional motivation for majority is race
and the erratic imposition of the death penalty, especially in
A (see p  footnote a; p 12
lack rapists
considerably more likely to be sentenced to death for rape
3p Coker and victim were both white
Up Dissent: Touches on recidivism, unnecessary breadth of decision,
federalism, and not allowing a trend to develop
3p Kennedy v Louisiana (Rape of a Child
{p Coker methodology still applicable here
Up bjective considerations: only one person sentenced to death for
the same crime; this is an extreme oddity inconsistent with broader
social values
3p Ossues with objective considerations:
{p Os state-counting relevant? Federalism argument
{p Most statutes are quite recent
{p The infrequency may actually show the care used in
determining this sentence (consideration of
mitigating factors, reservation of DP for worst
cases and that the system is working well
{p ³ bjective´ factors may not be all that objective
{p Role of international presence mentioned but not
explicitly discussed (American exceptionalism
3p Do we trust the process of child rape trial and sentencing?
ould it be like getting hit by lightning to get the DP for
it?
{p Role of Amicus
riefs (may have swayed the Supreme Court¶s decision
Up †ot stated in case by may have influenced
Up Problem of potentially innocent convictions
Up Role of race (reminiscent of McCleskey
3p Racial disparity found in middle level
3p Harsher sentences for
lack rape of hite woman
3p 3
of exonerees
lack or Latino
Up Filed by Sexual Assault roups:
3p ictims less likely to report if DP allowed to be imposed
because they usually know the D
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3p Concern that there is no marginal difference between rape

and murder (what is keeping a rapist from murdering?
3p ould greatly magnify the trauma of child victims
3p ould impede recovery and healing (DP cases go a long
time
{p Mental Retardation Side †ote
Up Retarded people cannot be given the DP
Up Kennedy¶s OV was  (marginal mental retardation, but the court
doesn¶t highlight this factor
Up Does the execution of retarded people violate the cruel and unusual
punishment clause?
Up Possible mitigating circumstance in a case
{p
roader implications of Kennedy: cases invoking DP for crimes other than
murder
Up This case has some of the hallmark problems of a DP case for rape:

lack D; factual issues; claim of innocence; weaker counsel
Up 5 to 4 decision: foreclosed federal development
3p Limits on what states can do post-Coker and post-Kennedy:
{p Strong theme that nothing justifies taking a life other than the taking of
life (no dead body= no DP
{p Crimes against the state still allow DP
{p †o DP for attempt
5 p Death Penalty for Felony Murder
3p Enmund and Tison involve causing the death of a human being where the D¶s are
secondary actors under accomplice liability
3p Enmund:
{p ariety of ways for lookout to be charged under felony murder (Pinkerton,
natural and probable consequences Robbery is the qualifying predicate
felony here
{p Ossue: Potential of the th Amendment to police the D¶s connection to the
offense
{p Ëudgment: D can be convicted of murder, but the th Amendment does not
permit the imposition of the DP
{p Holding (p 123: The th Amendment does not permit ³imposition of the
DP on one such as Enmund who aids and abets a felony in the course of
which a murder is committed by others but who does not himself kill,
attempt to kill, or intend that a killing take place or that lethal force will be
employed ´
Up (p 125: ³e are not aware of a single person convicted of FM
over the past ¼ century who did not kill/attempt/intend, who has
been executed´
Up (p 12: ³The question validity of DP for his own conduct´
Up Deterrence and retribution considerations
3p Tison:
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{p Facts: sons helping father and cell mate break out of jail (similar to Coker
serving multiple life sentences when he escaped At the time the shots are
fired, sons are getting water for the victims
{p PH (p 133: AZ Supreme Court changes meaning of intent to kill to
encompass anticipation of the use of lethal force
Up Supreme Court says that this meaning is broader than that
described in Enmund
Up Even so, the Tisons fall outside the category of FM for whom
Enmund explicitly held the DP disproportional
3p This category was defined as: minor actor in an armed
robbery, not on the scene, who neither intended to kill nor
was found to have had any culpable mental state
Up (p 135 A narrow focus on intent is unsatisfactory in
distinguishing the most culpable and dangerous of murders
{p Ëudgment: Tison boys may be executed
{p Holding: The reckless disregard for human life implicit in knowingly
engaging in criminal activities known [to whom?] to carry a grave risk of
death represents a highly culpable mental state« [objective]
Up Holding Cont : ³Major participation´ [in the predicate felony] and
reckless [not as CL or MPC defines it] indifference to human life,
is sufficient to satisfy the Enmund culpability requirement
3p Could argue that Enmund would fit this
{p Enmund Dissent ( ¶Connor, p 12 : ³The Court¶s holding«disturbing
because it makes intent a matter of federal constitutional law«´
Up Highly subjective; contested definitions
Up Kind of like opening Pandora¶s box by creating new
categories/Constitutional terms and concepts:
3p Major/Minor Participation
3p Constitutional definition of Reckless Ondifference
3p Meaning of Omplicit (can argue it means more than just
committing the felony
Up Can potentially have broader application:
3p FM accomplice liability
3p Ëail sentences (life sentences, 25 to life, life w/o parole
under the th Amendment proportionality principle: Ewing
v CA
{p These issues tended to be raised under states¶
recidivist schemes
{p Language from Enmund: have to look at D¶s
intention and conduct (this is what D¶s wanted in
Ewing

p Omprisonment
1 p How has the Supreme Court responded to the question of how the th Amendment affects
prison sentences up to and included life?
3p Already enforcing DP and fines/forfeitures under th Amendment
3p Chose to respect legislatures decisions about prison sentences in Ewing
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2 p Ewing is the most recent in a series of decisions (p 3

3p Area in which the court has been fractured
3p Trouble getting majority for any of the three sides:
{p (1 Proportionality principle of cruel and unusual punishment clause is
limited to death penalty cases and does not apply to prison sentences at all
{p (2 Proportionality principle based on 3 objective factors:
Up ravity of offense and harshness of penalty
Up Compare to sentences of other criminals in same jurisdiction
Up Compare to sentences for same crime in other jurisdictions
{p (3 Stripped down version of the 3-factor test: unless a court first finds that
the penalty is ³grossly disproportionate´ to the gravity of the offense, it
should not undertake any comparative review
Up More deferential to state legislatures
3p Sequence of Cases:
{p Rummel (Similar to 3
{p Solem (2
{p Harmelin (3
{p Ewing
3p Concerns from conclusion (p 5-53:
{p ho guards the guardians?
{p Of 25 to life is too much, is 2 okay? 15? Etc«
{p Os there really any true proportionality review in this case?
{p Split between th Amendment comparative methodology in (2 and
requirement that it must be grossly disproportionate on its face (3 because
group (2 is too nitpicky and wants too much oversight of states
Up Also it is hard to compare different states because they might have
different policy goals, etc
Up here does (3 get its reasoning of what constitutes a great
disparity? Too much judicial power
3 p CA Three Strikes law will probably not be overturned anytime soon by ºS Supreme
Court
3p Requires large majority of CA legislature or over 5
of voters
3p
udgetary considerations may force a change
3p CA Supreme Court could overturn under CA Constitution¶s cruel and unusual
punishment clause
{p Some state constitutions say cruel R unusual punishment, which could
make a difference
3p Defense lawyers must be creative; have to worry about short term and the
immediate client¶s interests (opposite of prosecution, who thinks long term about
the state and its people
3p States are independent entities whose judiciaries may choose to interpret the
clause differently than the Supreme Court
3p The more the federal constitution is construed narrowly, the more pressure exists
for the states to protect individual interests
4 p Supreme Court flip-flopped about this issue:
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3p Center group/Plurality advocated narrow test of gross disproportionality

threshold
3p Have to take the legislation as you find it- this is a recidivist measure (different
considerations than Coker, which did not look at D¶s past
3p CA did not ³cross the line´ of gross disproportionality
3p Even if it had been decided differently, very difficult to determine what would be
too much (if DP is too much, what about life, 25 yrs, etc 
3p Ewing dissenters wanted an objective analysis/comparison of standards
{p Vuestion of how objective that really was
{p Problem with being the only state that wanted to try something different
3p Decision puts it back largely into the democratic process/legislature
{p
asis of Kennedy¶s advocation that we have gone too far and the courts
can¶t save us
5 p
e able to articulate the standard that comes out of Ewing and policy considerations back
and forth
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X p Reasonable Doubt/
urden of Proof

A p Constitutional Considerations in Criminal Law:
1 p th Amendment
3p Procedural Limits on DP
3p Substantive Limits on DP
{p Even if the process is correct, there are still limits on what crimes and
people are subject to the DP (not rape, not retarded people
3p Omprisonment
2 p 5th and 14th Amendments
3p Due Process in the context of vagueness/fair warning
3p
urden of Proof

p On re inship
1 p Ëustices had no idea that they were making such a huge change because juvenile
delinquency was a judicial process outside of criminal law (no conviction/punishment
3p Vuestion was about the procedural protections applied during this adjudication
process
2 p alt: 15 y/o arrested for making harassing phone calls and basically imprisoned, no
lawyer Court concluded you had a right to lawyer and notice of charges against you
Later case held that juveniles not entitled to trial by jury
3 p inship comes after alt, question of how strong the proof had to be: Supreme Court
held that it had to be beyond a reasonable doubt with respect to all factual elements of the
offense (consistent with criminal law
4 p Ossue/Application to Criminal Cases: Os there a constitutional rule as to what has to be
proven by a reasonable doubt?
C p Mullaney v ilbur
1 p 1 : Mullany and regg v A upheld; oodson v †C rejected
2 p H PSAP case Ossue was whether the government had to prove malice aforethought or D
had to prove H PSAP or something else to get out of murder
3p ption 2 is a historic anomaly (York/Maine¶s law inconsistent with shift over
time towards consideration of D¶s mens rea
3 p Easy case: Powell wrote for a unanimous court
4 p inship opinion draws important distinction between formalistic and substantive
analysis (p 11: inship is about substance rather than formalism- the nature of the
person¶s liberty interests regardless of the label put on it
3p ther concern: stigma on person post-conviction; reputation
3p Court notes broader societal interests in 2nd paragraph- ³respect and confidence of
the community ´
3p e have a stake in not convicting innocent people
3p Powell in Mullaney: it would be ³intolerable´ (p 111
3p Considerations apply to H PSAP as well
5 p Recognition that insanity is different- burden shifts to D because all elements of the
offense already established
 p Main concern in Mullaney: that states could undermine the point of shifting the burden
by just changing the labels from element to defenses of crimes
D p Patterson v †Y
1 p EEDROX establishment burden shifted to D ` ºpheld
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2 p Holding: p 115 middle paragraph: if it is an affirmative defense rather than an element,

than the state doesn¶t have to prove it
3 p Majority: States must prove ³an element;´ if it does not want to prove it, they should call
it a defense and shift the burden to D (does not have to be beyond a reasonable doubt
3p hy?
ecause most defenses are gratuitous
3p †otice how this fits with Proportionality:
{p Of a state has little to prove, they can¶t impose a significant sentence
{p Majority is not concerned with potential end run problems because:
Up May lead to hyperpunitiveness/thwart beneficial state changes
Up Don¶t want to overrule legislature
Up (p 115 fn2: before inshop, everyone understood this and there
was no basis for fear that legs would run amok and abuse their
discretion
{p Due Process starts with legislative choices on how to define elements of a
crime
4 p See p 11 block quote
5 p Powell¶s Dissent: Author of Mullaney dissenting on basis of inconsistency with Mullaney
and constitutional concerns
3p He is no longer fully committed to Mullaney Revised: substantial factor in
guilt/innocene, historice importance in American law (can¶t take away a core
element like mens rea, etc  His position did not win
 p Difference in Patterson and Mullaney: Functionally, the statutes are the same
ut
EEDROX is better for D¶s, so this is not an anti-D provision- part of †Y¶s recodification
of penal law/reform effort
3p Contrast to Maine
3p †Y had 25 affirmative defenses that shifted the burden to D (new defenses,
broadened defenses
3p ther states did this too- Trend in law
3p MPC also shifted burden sometimes (mistake of law defense shifts burden
 p Shift from ³substance, not form´ to looking at what the state has decided to define/label
as elements of the offense (proof beyond a reasonable doubt only applies to the
elements
 p Huge, complete shift in the rationale
3p On Mullaney, the state presumed and failed to prove malice aforethought (but that
is why it was decided
3p Recognizing the degree to which Mullaney could potentially thwart progressive
reconsideration/reevaluation of criminal law doctrine that would benefit D¶s
3p
asically, state legislatures should have the option to establish gratuitous defenses
with a burden shift
p Label changing problem addressed (p 115, last paragraph: ³this view«there are
obviously Constitutional limits«´ see handout with excerpt from Patterson v †Y
3p Lists the ³limitations´ but these are not very big protections! This list is probably
not exclusive, but we don¶t know
E p Martin
1 p 4/5 states require the state to disprove self-defense; 2 require the D to prove it
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2 p Martin was harder to decide (5-4 court because the self-defense facts overlap with
elements of the offense
3p hio statute: ³prior calculation and design´
3p Prosecution¶s theory was aggravated murder; Martin¶s claim was self-defense- 2
diametrically opposed accounts of the same facts
3p Prosecution doesn¶t want to have to prove prior calculation beyond a reasonable
doubt
3 p Majority: the form of the labeling governs (look up exact holding
F p
urden of Proof (2 Separate Things
1 p
urden of Persuasion (convincing jury
3p Real constitutional problem under the Due Process clause (have to watch how it is
done in particular jurisdictions
2 p
urden of Production (producing evidence
3p Ex: M¶†aughten begins with the assumption of sanity; D has the burden of
producing evidence of insanity
3p This does not mean that D has to bear the burden of persuasion (hot issue with
insanity defense
3 p Affirmative Defenses usually shift both to D
4 p MPC 1 12(1 ³unless and until«´ different that CL/most states- MPC shifts Production
but not Persuasion (as a policy matter
3p Ex: Renunciation is an affirmative defense
3p Sometimes shifts Persuasion to D (Mistake of Law; 213  Mistake of Age
5 p Legislatures can shift the burden however they want, but they can¶t contravene the key
rule that you can¶t call it an element without proving it beyond a reasonable doubt
(Patterson
3p There is an interplay between substance and procedure affecting the choices of
legislatures
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XO pCriminal Law verview:

A p Know that Federal Law is not MPC

p Criminal Law is constantly changing and evolving
1 p Adding new crimes; creating new defenses
C p hen should criminal liability be imposed?
1 p Mens Rea: becoming increasingly important and more precisely defined (MPC¶s
obsession, but not always:
3p Felony Murder
3p Accomplice Liability for unintended consequences
3p Regulatory offenses
2 p Conduct: How much is sufficient? Must be voluntary conduct
3p Attempts (substantial step
3p Accomplice Liability
3p missions/Failure to Act
3p Conspiracy
3 p
alance between Mens Rea and Conduct: hich is the key to defining different offenses;
which way should the law be moving?
3p MPC ` Mens Rea
3p Accomplice Liability
4 p How much should results matter?
3p Should attempt be punished like a completed offense? On CL, it is less serious
3p Conspiracy
D p rading Ossues
1 p hat should be the focus? How much is mens rea? Conduct? Result?
3p Homicide rading
3p Rape
3p Death Penalty
2 p How much discretion should there be?
3p
road offenses with discretion to sentencing judge and prosecutor
3p †arrow offenses
3p System becoming arbitrary, complicated
E p Limitations on Punishments
1 p hy are standards tighter for some areas but not others? Death Penalty v Prison Terms
F p Separation of Powers: Ëudicial v Legislature
1 p Reasonable Doubt
2 p Don¶t have to have Onsanity defense
3 p Power shifting toward legislature
3p Concerns about fair warning
3p Legislative discretion