CRIM OUTLINE

Chapter 1: The Nature of Criminal Law and its Analytical Materials

Chapter 2: The Legality Principle

The Legality Principle: crimes are delineated by statute.
1. prohibition against judicial creation of offenses (state statutes)
2. abolition of common law crimes (state statutes)
3. prohibition of vague offenses (Due Process Clause)
4. prohibition of ex post facto laws (Article I, Section 9)
5. rule requiring strict construction of penal statutes (general principle)

Rationales
1. procedural fairness – you find out what the law prohibits
2. effective deterrence – if you know what’s illegal, you’ll know not to do it
3. avoid improper over-deterrence – if you know, you’ll be able to do everything
else
4. criminalization as legislative function – legislature is more representative
5. avoiding disparity in application and abuse of discretion – easier to apply things
equally if they’re written down uniformly
 Counter-Arguments
1. fostering inflexibility
2. promoting technicalities
3. excluding normative judgments – hard to express moral judgments in precise
language
4. principle of analogy – you want to exclude conduct analogous to that prohibited
5. legality in liability vs. sentencing – why are there no guidelines for sentencing?
6. legality and function – not every rationale listed applies to every phase of
offense/adjud.
7. legality in rule articulation vs. adjudication – level of simplicity & precision
needed might not be the same in telling public what the rule is and in giving judges
guidelines

The Rule of Lenity

-ambiguity in statute should always be resolved in favor of the defendant

Case: Ray Brent Marsh (dead bodies)

-the word in the GA statute was ‘deface’ but that’s not literally what he did to the bodies
-MPC focuses on knowing that conduct would outrage ordinary family sensibilities

Rules of Statutory Construction

-plain meaning rule: only resort to statutory construction when there’s a real ambiguity
-rule of lenity/strict construction OR fair import – state statutes will specify
-de minimis defense: no trivial infractions, and nothing statute wasn’t meant to cover

Chapter 3: Theories of Punishment

Case: Sara Jane Olson (SLA, car bomb, but not caught and settled down for years after)
-no specific deterrence here, but there’s powerful general deterrence; justice unclear

(chart on following page)

Deterrence

Bentham, “The Theory of Legislation”

-choose punishments so as to make the potential criminal’s cost-benefit point to
not committing the crime; take into account his odds of getting caught

Andenaes, “General Preventative Effects of Punishment”

-it might not be morally justified to make examples of people for general
deterrence
-we must be able to countenance the justice and the deterrence of each
punishment assignment
 Robinson, “Role of Deterrence in Formulation of Crim. Law Rules: At Its Worst
When Doing Its Best”
-deterrence doesn’t work because:
1. we don’t have data to back up the claim that adjusting rules
within the criminal system deters crime
2. deviating from just result may not deter any more than just
result does
3. deterrence distribution can only be better than just result
where it deviates from it, but it’s more difficult to get a
deterrent effect when that happens, because people think the
law is as it should be
4. deviating from perceived just result can damage law’s
underlying moral credibility
-prerequisites to deterrence, all questionable:
-potential offender must know of the rule
-able to change conduct in light of knowledge (failure to perceive
risk of punishment accurately – nobody thinks they’re gonna get
caught)
-willing to do so (they may not act rationally)
-another problem: diminishing return on punishment – the
difference between 1 year and 6 years is a lot bigger than the
difference between 30 and 35

Incapacitation/Rehab

Wilson, “Thinking About Crime”

-incapacitation is easy: no subjective states of mind (deter.) or subjective
justice (desert)
-3 necessary conditions for incapacitation to be sound distrib. principle
1. some offenders must be repeaters (very, very true)
2. offenders not immediately & completely replaced (mostly true)
3. effects of prison life can’t outweigh benefits of incapacitation
(debatable)
-since a few criminals commit most of the crimes you must do it
selectively, but:
-by nature of the offense doesn’t work, because street criminals
don’t specialize
-list of factors: were they in jail as a juvenile, drug use,
employment, etc.

Von Hirsch, “Incapacitation”

-studies show we have some limited capacity to predict who needs to be
incapacitated
-should we rely on judge’s intuitions or scientifically predictive tools?
-statistical tools: high rate of false positives
 -so who bears risk of false positives? potential future victims or
offenders?
-incapacitation usually involves overpunishment on the desert side
-selective incapacitation has problems with uniformity of
punishment, too

Robinson, “Punishing Dangerousness: Cloaking Preventative Detention as

Crim. Justice”
-system still purports to punish people, even as it moves toward
preventative rationales
-avoids controversy over preventative detention measures (it’s a police
state, etc.)
-since crime is age-related it’d make sense to incarcerate crime-prone
individuals during their high-testosterone years, but you can’t do that
because you have to maintain the appearance of doing justice

Optimized Desert

Kant, “Philosophy of Law”

-the only thing you can deal with when punishing is the crime at hand,
because it’s immoral to use one man for benefit of others
-can’t barter away justice for another concern, like experimentation
example
-you commit a crime, you commit it on yourself

Murphy, “Three Mistakes About Retributivism”

-retributivism is either inherently necessary, or necessary as a result of the
communal political compact
-everybody gives up the right to disobey the law when they don’t want to
in exchange for the benefits that criminal system gives each
1. doesn’t necessarily appeal to utilitarianism (Kant)
-if you profit from wrongdoing, it’s unequal and unfair
inherently, not because unfairness has undesirable
consequences
2. applicability
-obviously you can’t apply eye for an eye everywhere, but
it’s not meant literally so this is ‘superficial’
3. Marxist objection
-this can only apply in an ideal utopian society, because
there isn’t equality so how can you enforce it?
-but these speaks to a strength, not a weakness, because the
Kantian theory tells us why that’s a problem

Moore, “Moral Worth of Retribution”

-retributivism doesn’t just say that ‘only the guilty are to be punished’; it
says also that they’re punished only because they’re guilty
 Robinson, “Competing Conceptions of Modern Desert”
-vengeful desert
-eye for an eye
-looks to the act itself, not blameworthiness, to determine
punishment
-concerned with absolute amount of punishment, as opposed to
relative amounts re: blameworthiness – absolute amount must fit
offense
-cares about kind of punishment b/c it should match the crime
-deontological desert
-blameworthiness
-comes from objective philosophy
-goes by endpoint and ordinal rank
-empirical desert
-blameworthiness
-not philosophy but general attitudes of community determine
punishment
-so, you need to look into how people actually define punishment
not how they should define it
-community beliefs go into a general body of rules, not case-by-
case eval.
-advantages
-encourages moral credibility of crim law
-which helps in new or grey areas
-and avoids resistance/subversion
-efficiency of stigmatization
-endpoint and ordinal rank
-MAJOR problem: immoral intuitions – Old South, 3rd Reich, etc.
-utility of desert
-stigmatization depends on reputation gained by the law for moral
applicability (needed for crime control, cooperation of witnesses,
etc.)
-shapes norms/moral principles which aren’t universal in diverse
society
-if it has a good reputation for being moral ppl will defer to the
criminal law to figure out what’s proper in borderline cases

Optimized Combination

MPC 1.02: Principles; Principles of Construction

(1) purposes of definitions of offenses
i. general deterrence
ii. incapacitation
iii. avoid overdeterrence
iv. fair notice
 v. differentiate between serious and minor offenses
(2) purposes of sentencing provisions
i. crime prevention (deterrence)
ii. rehabilitation
iii. avoid excessive punishment
iv. fair warning of sentencing
v. individualization
vi. consistency and streamlining the process (systemic
fairness)
vii. use science
(3) rule of fair import; use 1.02 to differentiate between possible
constructions

Hart, “Aims of the Criminal Law”

-it’s not a bad thing that there’s more than one basic principle
-we’re trying to reach institutional ends, not only social

Robinson, “Hybrid Principles for the Distribution of Criminal Sanctions”

-you shouldn’t just have a list of conflicting principles, bc then any judge
can do whatever he wants
-there’s no best order, but for every situation in which they conflict there
should be a statutory scheme that defines it

ALI Proposed Changes to MPC Section 1.02(2)

-first look at what they deserve, then within that range, use the other
principles to determine sentencing

Chapter 4: Culpability Requirements

Case: Thomas Fungwe (accidentally killed his baby)

Case: Raymond Lennard Garnett (retard statutory rapes girl)

MPC Section 2.02, General Requirements of Culpability

2-kinds of culpability
-purposely: (i) for conduct or result, conscious object to engage in
conduct or cause result and (ii) for circumstance, aware of circumstances
or belief or hope they exist
-knowingly: (i) for conduct or circumstances, awareness that conduct is of
nature prohibited or that circumstances exist and (ii) for result, awareness
that it is ‘practically certain’ he’ll cause that result
-recklessly: consciously disregard substantial and unjustifiable risk that
material element exist or will result from conduct; disregard must involve
gross deviation from standard of conduct law-abider would observe
 -negligently: should be aware of substantial and unjustifiable risk that
element exists or will result; gross deviation from standard of conduct
reasonable person would observe
3-if not otherwise provided, recklessly or above is sufficient
4-culpability requirement for an offense applies to all elements thereof
5-more culpability always suffices, e.g. pur. &/or know. are enough for reck.
6-conditional intent only excuses if the condition makes it not evil
7-knowledge of high probability = knowledge
8-wilfulness is satisfied by acting knowingly
9-culpability as to knowing the law is meaningless unless otherwise specified
10-when you have grading, you have to go by the lowest one

Negligence

Glanville Williams, “Reasons for Punishing Negligence”

-justice can’t require mistakes to be punished b/c everybody makes them
-punishment for inadvertence won’t deter
-will it bring greater foresight?
-will it condition future care, + make others more reasonable?
-overall it’s best to punish negligence rarely and only with fines

MPC 2.02 Commentary

-more motive to take care when acting
-proper to impute moral defect where D acts out of insensitivity to others’
interests not just out of failure to grasp them

Samuel Pillsbury, “Crimes of Indifference”

-moral blameworthiness for negligence in ‘perception priorities’
-key to culpability is why you failed to perceive/chose negligent conduct

Laurie L. Levenson, “Good Faith Defenses: Reshaping Strict Liability

Crimes”
-strict liab. for ‘public welfare’ crimes (selling bad goods, speeding, etc.)
-shifts risk to those best able to prevent mishap (but so does negl.)
-define what’s unreasonable for technical stuff before the jury gets
its hands on the matter
-eases prosecution’s burden to prove intent
-risk of presumption being wrong is outweighed by need for
society’s protection and for speedy prosecution
-morality offenses
-opposition to SL
-justifications inconsistent with utilitarianism
-inefficiently overdeters behavior
-no deterrence: people don’t know their behavior is wrong
-justifications inconsistent with retributivism
-defendants should only be responsible when blameworthy
 Negligence: Objective vs. Individualized Standard

H.L.A. Hart, “Punishment and Responsibility”

-with objective negligence, some people are held responsible for behavior
they couldn’t have helped

George P. Fletcher, “The Theory of Criminal Negligence: A Comparative

Analysis”
-negligence simultaneously objective and subjective
-negligence consists of legality and culpability (MPC recognizes this)
-legality: risk in question is substantial and unjustifiable; individual
differences ignored in determining legality
-culpability: actor’s failure to perceive was gross deviation from
std. of care reasonable person would observe in actor’s situation
-legal systems impose greater burdens of compliance on some than others
(if you’re blind we don’t expect you to see, but if you’re stupid we expect
you to be reasonable still)

Chapter 5: Culpability and Mistake

Case: Thomas Laseter (Alaska army guy rapes drunk pregnant girl)

Culpability Requirements and Mistake Defenses

2.04
1-ignorance or mistake of fact or law is a defense if:
(a) it negatives something required to establish material element of offense
OR (b) law provides that state of mind established by mistake is a defense
2-mistake doesn’t negate culpability element if you would have committed
a crime if the circumstances were as you thought they were
3-mistake of law is a defense when:
(a) the statute isn’t available or (b) you act reasonably on the word of a
government official

Exculpatory Mistake
-gets you out of the crime because either not guilty or had no mens rae
-you satisfy objective elements but not culpability elements
Inculpatory Mistake
-punishment despite not committing the crime (you think you’re taking
somebody else’s umbrella but it turns out to be yours)
-you satsify culpability elements but not objective elements

Mistake at Common Law

 -mistake was separate doctrine, wasn’t considered to kill offense elements
-it becomes what it is now with MPC-style “element analysis”

Mistake in Modern View

-like in MPC, mistake is a defense if it negates a req’d culp. Element
-your mistake has to be less culpable than your intent would have had to
have been (e.g. you can’t get out of a crime requiring only recklessness if
you had a reckless or knowing mistake)

Mistake of Law Defense

-it’s a defense if it negates a required element
-fact/law distinction is irrelevant doctrinally, but for individual crimes
you’re pretty much never required to know the law; MPC explicitly says
not to read it in, either (202(9))

Mistake as to Consent and Rape

Susan Estrich, “Rape”

-thinks the standard should be negligence in evaluating mistake to give
women’s consent more strength
-you would have to make a faultless mistake (a reasonable one) in order to
get off, whereas now you can make negligent mistake and get off
-you shouldn’t use the question of whether there was resistance as a
substitute for the mens rae inquiry
-a negligent rapist is blameworthy, and reasonableness should be defined
as “no means no”

Lynn N. Henderson, “What Makes Rape A Crime?”

-she wants no-means-no definition and impose SL on men who continue
-it puts less onus on the woman

Joshua Dressler, “Where We Have Been, and Where We Might Be Going:

Some Cautionary Reflections on Rape Law Reform”
-no means no is a good starting point, but sometimes it doesn’t, and bright
line rules result in false positives

Lani Anne Remick, “Read Her Lips: An Argument for a Verbal Consent
Standard in Rape”
-wants to redefine the standard to affirmative verbal consent
-helps prevent ‘nontraditional’ rapes which are currently not served
enough

Functions of the Criminal Law Doctrine

The Three Functions of Criminal Law

 1. rule articulation function: rules of conduct define conduct
prohibited/required by criminal law; ex ante
2. liability/adjudication function: decision re: whether violation is
sufficiently blameworthy to merit criminal liability; settles minimum
conditions for liability; ex post
3. grading function: assesses relative seriousness of violation and
blameworthiness of offender to determine general range of punishment
appropriate

Rule Articulation Doctrines

-define rules of conduct and set down prohibitions and requirements
-served by: conduct/circumstance elements of offenses, statements of legal
duties, conduct and circumstance elements of secondary prohibitions
(complicity, etc.), some culpability requirements, miscellaneous doctrines
(like consent defense), justification defenses

Liability Doctrines
-ensures that liability is imposed only when conduct was blameworthy
-sometimes imposed extrastatutorily, e.g. de minimis, renunciation
-general excuse defenses, mistake excuses show that violator could not
have been expected to act otherwise

Grading Doctrines
-distinct from rule articulation and liability/adjudicative
-result elements play in to how much time you get
-they don’t just manifest themselves in aggravating/mitigating factors, but
also in differentiating offenses, etc.

Chapter 6: Homicide: Doctrines of Aggravation

Case: Sabine Davidson (dogs)

Homicide
-levels: p/k is murder, reckless is manslaughter, negligent is neg. homicide
-premeditated vs. not is NOT in the MPC

Reckless Homicide as Murder (Commentary to MPC 210.2)

-MPC 210.2(1)(b): reckless homicide only is a first degree felony
(equivalent to p/k) when the felony is accompanied by conscious disregard
of risk under circumstances manifesting extreme indifference to the value
of human life
-that determination is left to the trier of fact (jury)
-this standard reflects common law and pre-MPC standards

Felony Murder Rule

 -at CL: if you’re committing a felony, and anybody kills anybody in the
course of it, you’re guilty of murder
-MPC: rebuttable presumption of extreme indifference when there’s a
murder during the commission of a felony (robbery, sexual attack, arson,
burglary, kidnapping, felonious escape) or if D in flight after such conduct
or if D = accomplice

Arguments FOR Felony Murder Rule

-could discourage felonies
-could encourage people to commit crimes less dangerously
-may be accidental at time of killing, but may still be blameworthy for the
killing b/c they raised the stakes by bringing weapon, etc.
-people do believe in it
Arguments AGAINST Felony Murder Rule
-unclear whether this will actually deter
-unclear whether people will know this is a rule
-difficult proximate cause issues

Discussion Materials on Felony-Murder Rule

Commentary on MPC 210.2
-the modern one changes the old one by
-taking away automatic felony murder, replacing it w/presumption
-need for recklessness w/extreme indiff. to value of human life
-added grading – you can now have felony manslaughter or felony
negligent homicide

David Crump & Susan Waite Crump, “In Defense of Felony Murder”
-reflects moral judgment that robbery + death = closer to murder than it is
to just robbery

People v. James Washington, California, 1965

-two guys were robbing a gas station, the gas station owner shoots and
kills one of them
-the other robber is convicted, but it’s overturned

Robinson & John M. Darley, “The Culpability of the Person: Felony

Murder”
-survey subjects believe there should be more liability for felony murder
than for just the felony, but believe current doctrine goes too far in
punishing negligent killing as murder
-so basically, they support a “felony-manslaughter” rule
-think accomplice deserves less liability than perpetrator
-felon might be liable for killings by intended felony victim at level of
negligent homicide, but not under some special killing during a felony rule

Chapter 7: Death Penalty

Case: William King (dragging death of James Byrd)

Arguments For
-deterrence
-total incapacitation
-eye for an eye (vengeance for muder)
-on the whole, it saves innocent lives, so if some innocents get killed, it’s OK
-desert
-compromise: lots on death row, few executions
Arguments Against
-it doesn’t work as a deterrent
-there’s no getting back a false positive
-same incapacitation with life sentence
-desert argument is disingenuous: you wouldn’t actually execute prisoners in the
same way they killed people

Hugo Bedau, “Arguments For and Against Capital Punishment”

-violates human rights
-administration is arbitrary and unreliable
-erroneous execution possibility
-less severe, equally effective alternatives
-death penalty is race and class based (if victim is white, more punishment)
-less costly vs. cost of litigation
-must take steps to prevent them from killing again vs. well, you can’t execute
them all, though

Hugo Bedau, “Innocence and the Death Penalty”

-people can be theoretically, and in fact are, executed erroneously all the time
-and that can’t be undone

Ernest van den Haag, “Punishing Criminals”

-you can die from a lot of things, e.g. surgery, but we do it because it has really
great benefits
-so the error potential alone does not eliminate the death penalty

Elizabeth Rapaport, “Death Penalty and Gender Discrimination”

-women underrepresented on death row because society doesn’t hold them to the
same standards which is bad

Weisberg, “Deregulating Death”

-he favors having some executions, but not many
-we don’t want to offend people too much, but we want to deter
Chapter 8: Homicide: Doctrines of Mitigation

Case: John Gounagias (Greek anal guy)

Turning Murder into Manslaughter

-under doctrine of extreme mental or emotional disturbance, some intentional
killings can be mitigated to manslaughter
-circumstances of killing still deserve serious punishment but are
meaningfully different from killings where no mitigation is present
-reinforce greater condemnation deserved by non-mitigation cases at same
time reducing condemnation in mitigation cases

Provocation at Common Law

-mitigates intentional killing from murder to manslaughter
-passion obscures reason, renders provoked intentional killer less
blameworthy than unprovoked intentional killer in some limited
way
-provocation must be reasonable or reasonable person would be
similarly provoked (= demanding standards)
-doctrine of mitigation: at CL: bumped down from murder to
manslaughter if:
-under influence of extreme anger
-provoked by reasonable provocation
-before sufficient time elapsed to cool down
-limitations
-early forms required provoking incident to occur in D’s presence
-person killed must be provoker
-difficulties w/test
-if reasonable man would have done the same, then isn’t D
blameless?

MPC Extreme Emotional Disturbance Mitigation 210.3 (1b)

-requirements:
-under influence of extreme mental/emotional disturbance
-plus a reasonable explanation or excuse for being that disturbed
-broader than CL because
-no explicit exclusions of particular sets of circumstances
-no timing requirement
-you don’t even have to kill the person who provoked you
-individualized objective standard: a reasonable person would have done
the same from the perspective of D

Diminished Capacity
-not a partial insanity defense; some element is missing because of mental
illness
 -at CL, provided slight mitigation or complete defense depending on the
degree to which the act was a result of the mental illness

How should reasonable person standard be individualized?

MPC 210.3 Commentary

-“situation” doesn’t include fuzzy morals or the idiosyncratic beliefs of the
individual
-can actor’s loss of self-control be understood in terms arousing sympathy
in the jurors?

Dir. of Public Prosecutions v. Camplin, England, 1978

-must have cause accused to lose control AND might cause reasonable
man to do the same
-makes this a jury question

George Fletcher, “Provocation”

-the reasonable man concept is difficult to fit in here because the
reasonable man doesn’t kill, even with provocation
-underlying inquiry: should D have been able to control the impulse? If
you don’t ask this, you can’t differentiate between a mental problem and a
mere hothead

Robinson & Darley, “Individualization of the Objective Standard of

Negligence”
-it’s appropriate to raise the standard of care for somebody who’s
experienced and/or highly intelligent
-the community agrees

People v. Helen Wu
-Helen Wu has Munchausen’s Syndrome which means she intentionally
makes her kids sick for the attention and the kid dies
-should her disease and cultural background play in? deterrence of kid-
killing vs. allowing ppl to see the world through their own eyes

E. Selene Steelman, “A Question of Revenge: Munchausen’s Syndrome By

Proxy and a Proposed Diminished Capacity Defense for Homicidal Mothers”
-if you can make Munchausen’s out to be something that justifies the
mothers not having the right to go near children, then it should be
recognized as being integral enough to their character that it counts toward
the individualized objective standard

Chapter 9: Causation
Case: Joe Paul Govan (guy shoots woman, they make up, she dies from it years
later)

-when offense includes a result element, causation requirement is implied

-requires both but/for cause and proximate cause
-prox. cause: “not too remote or accidental in its occurrence to have bearing on
actor’s liability or on gravity of his offense” and not too reliant on another’s
volitional action

Special Causation: Causing Another Person to Cause Result

-a remoteness problem where a second actor removes D from result
-intervening human actor’s potential to act independently does not itself overturn
D’s liability; that volition has to be sufficiently realized, it can’t just be that they
might as well have forced them

Special Concurrence Rule

-the Summers v. Tice problem: if we both shoot the same guy at the same time,
neither of us is a but/for cause of his death
-in criminal law, they can only be charged with attempt because they are not
but/for cause

Should Harms Matter?

-if harm matters then there should be distinction between attempt and successful
-harm matters approach: person who actually gets result has greater
blameworthiness:
-follows people’s intuitions
-acknowledges victims; suffering
-no reason to treat this moral luck differently
-moral credibility
-person who succeeds might be more dangerous b/c more effective
-deterrence proponents want complete and incomplete to grade differently;
if graded the same, then incentive to go the whole way and kill person
-harm doesn’t matter approach: blameworthy mindstate is the same

MPC 2.03 on Causation

Michael S. Moore, “The Independent Moral Significance of Wrongdoing”

-since you can never have complete control over everything, “moral luck” is not a
problem

George Fletcher, “A Crime of Self-Defense”

-objective approach: emphasizes victim, liability for bringing about irreversible
harm, incorporates focus on resulting harm
-subjective: focused on mens rae and intention for that to mature into action
-the only conduct that can be deterred is what’s within the actor’s control, so we
should focus on punishing subjective intent
 Robinson, “The Role of Harm and Evil in Criminal Law: Study in Legislative
Deception?”
-result is relevant in grading function
-MPC says results don’t matter, but yet it has result elements
-inchoate and completed offenses are separate, so as to look objective, but in
reality they’re the same grade so it’s subjectivist

Chapter 10: Attempt Liability

Inchoate Offenses
-since we punish risk creation as well as conduct we can punish inchoate
-sufficient that the person in some way sought to commit offense
-you have to define the minimum amount of conduct for criminal liability

Attempt vs. Mere Preparation

-did thought mature into action?
-you may escape attempt liability if, after you cross the line into attempt, you
voluntarily and completely renounce the attempt

Proximity Test (Common Law Objectivist Test)

-measures actor’s closeness to commission of substantive offense
-a jury issue
-objectivist approach: actor must actually come close enough to committing the
offense for real present danger that offense will be committed

Res Ipsa Loquitor Test/Unequivocality Test

-actor’s conduct must be manifestation of intent
-requires proof of conduct that manifests intent
-explanations
-since attempt is based largely on intent, we should require it to be proven
-problem: this doesn’t work for dual-use activities, like the guy
lighting his cigarette next to the hay
-the harm is creating anxiety in people
-problem: but why should this be the barometer of disrupting
society? lots of things disrupt society

Substantial Step Test (Subjectivist/MPC)

-focuses on how far from pure intention to commit offense the actor has gone
-attempt liability imposed even if offense is impossible
-intention shows blameworthiness and dangerousness
-requires actor’s conduct be strongly corroborative of actor’s criminal purpose (as
opposed to res ipsa, where the action must be what proves the intent)

Culpability Requirements
 -intention makes the otherwise legal activities criminal: you can enter the bank to
take out money or to rob it
-at CL: attempt was a specific intent offense requiring more culpability than the
regular offense itself

MPC 5.01
1a: circumstances would be crime if they were as thought them to be (i.e. intend
to buy coke but it turns out to be powdered sugar)
1b: causing particular result is element of crime and does/omits something w/
purpose of causing or w/ belief that it will cause w/o further conduct
1c: substantial step test
2 details activities which are not insufficient to support attempt liability under 1c

MPC 5.01 Commentary

-proximity test measures how close you were to the crime whereas substantial
step measures how far you’ve gone in planning it
-it’s not a defense to substantial step that you would’ve stopped doing what you
were doing before the criminal result

Andrew Ashworth, “Criminal Attempts and Role of Resulting Harm Under

Code/Common Law”
-objectivists criticize substantial step for: 1. too much power to law enforcement
agents, 2. insufficient room for renunciation
-but last act test goes too far in protecting would be offenders

Francis B. Sayre, “Criminal Attempts”

-point where preparation becomes attempt ought to be case dependent, w/
liability for more serious crimes attaching earlier on in process
-impossible to lay down mechanical rule for line between preparation vs.
indictable attempt

Robinson & John M. Darley, “Objective Requirements; Conflict Between

Community Views and Criminal Codes”
-people want proximity, reduced grading, and renunciation of availability

Chapter 11: Impossibility

Case: John Henry Ivy (voodoo)

4 Types of Impossibility
-legal: missing objective element is circumstance; CL gives defense
-factual: missing objective element is conduct or result; no defense anywhere
-imaginary offense
-inherently unlikely attempt
 Lawrence Crocker, “Justice in Criminal Liability: Decriminalizing Harmless
Attempts”
-arguments vs. subjectivism, for objective (imposition) theory:
1. criminal codes built on objective theory: offenses largely graded re:
seriousness of effects; successful attempts almost always higher grade
than unsuccessful
2. subjective theory incomplete; places where committed to liability but no
offense exists to charge
3. criminal liability closely bound to criminal responsibility; no liability
unless offender responsible for creation of condition  only impositions
substance enough for condition
4. linguistic
5. political philosophy argument: objective = individual liberty, less for
state coercion
6. subjective too vague to provide adequate notice; falls short of minimum
conditions of legality and due process
7. retributivist argument: unfair to impose criminality unless have done
something imposing on society

Chapter 12: Conspiracy

Case: Sheik Omar Abdel Rahman

Roles of Conspiracy Liability

-inchoate offense punishing preparatory conduct
-it
dangers inherent to group criminality (disfavored by modern codes incl. MPC)
-procedural advantages
 -argument against: frequently used against politically unpopular dissidents

MPC 1.07(b)
-no conviction for conspiracy when you’re charged with the actual attempt

Wharton’s Rule
-you don’t charge conspiracy for something like price fixing, where the definition
of the offense includes colluding with others

Agreement Requirement
-agreement between two or more that one or more will commit substantive
offense doesn’t have to be spoken, can be written, tacit, etc. as long as there’s
assent
-old way: bilateral agreement: meeting of the minds; for actor to be liable, other
party must actually be agreeing, not a cop, etc.
-objectivist view: no actual danger, so why punish?
-new way: unilateral agreement: liability when actor agrees with another,
whether or not they agree back

Overt Act Requirement

-required of a conspirator in furtherance of agreement
-MPC: not required for first or second degree felony b/c agreeing to that carries its
own blameworthiness

Culpability Requirements
-requires “purpose of promoting or facilitating commission of offense,” meaning
the conduct element
-so conspiracy requires purpose even if recklessness, e.g., would satisfy the
substantive offense culpability-wise
-MPC requires purpose re: result as well as as to conduct
-it “elevates” the required level of culpability for each of conduct and result
individually, but NOT for circumstance element

Philip Johnson, “Unnecessary Crime of Conspiracy”

-raises first amendment concerns
-inherently confusing and uses one doctrine to answer many questions

David B. Filvaroff, “Conspiracy and the First Amendment”

-defendant becomes victim of guilt by association
Chapter 13: Voluntary Intoxication

Case: Jordan Weaver (bad acid trip rampage)

Doctrines of Imputation
-inculpate an actor despite not meeting some element
-objective imputation: complicity, causing crime by an innocent, substituted
objective elements, transferred actus reus, omission liability
-culpability imputation: voluntary intoxication, transferred intent, substituted
culpability (from an offense they thought they were committing to the one they
did)

Involuntary Intoxication
-if it negates culpability, this can be an excuse
-typically recognized as involuntary:
-coerced intoxication
-pathological intoxication (you couldn’t have known what the effect
would be)
-intoxication by innocent mistake
-unexpected intoxication from prescribed drug
-MPC 2.08: involuntary if not “self-induced” or if “pathological”

T1/T2 Analysis
 -there might be proximate cause concerns between time of intoxication (T1) and
time of offense (T2)

Voluntary Intoxication
-it’s not a defense unless it negatives an offense element
-VI does negative culpability elements if you’re really drunk, but 2.08(2) says it
imputes recklessness to you if what you did would be considered reckless sober

Imputation
-creates a legal fiction that compromises between protection for
society/punishment for bringing about VI vs. belief you’re less culpable
-imputation doesn’t get accomplished for VI if offense requires p/k
-you might criticize it for having inadequate justification for imputation, but if
you say that you are making somebody responsible when they’re not, you’re
impugning the whole idea of imputation which is central to crimlaw in general

Mitchell Keiter, “Just Say No Excuse: The Rise And Fall of the Intoxication
Defense”
-Montana v. Engelhoff: it’s not unconstitutional to equate a severe state of
intoxication with the requisite mens rae to any crime

Chapter 14: Complicity

Case: Cardinal Law (just shuffled around kid-touching priest)

-a doctrine of imputation that replaces all the elements

Objective Elements

Common Law
-objectivist view: requires actual assistance
-you have to be able to point to some physical action
-perpetrator had to actually commit the offense

Modern Codes
-subjectivist: has to purposely agree or attempt to aid perpetrator
-has to make a substantial step toward aiding
-agreement to aid is only unilateral
-perpetrator must actually commit the offense or, if he fails, you’re
charged with the attempt
-many would argue you should be complicit if you are knowingly aiding
-when states adopt knowing standard it usually has to be more
significant aid if it’s knowing as opposed to purposeful

Elevation to Purposeful
 -under MPC you have to be purposeful as to the conduct constituting the
aid
-you don’t need to be purposeful as to the circumstance or result elements,
you only have to have the level of culpability required by the statute for
the offense itself re: those elements
-in some jurisdictions they require purposeful across the board, though

Chapter 15: The Act Requirement and Liability for an Omission

Case: David Cash (watched friend kill girl)

The Act Requirement

-MPC 2.01(1) typically requires a voluntary act
-2.01(1) only has effect where act requirement is not specified in the crime
-you can have intangible act like assenting to conspiracy
-is it necessary? most crimes have it anyway; only necessary in special situations

Omission and Possession

-the 2 substitutes for an act
-sometimes you have a legal duty to perform an act
-requires: legal duty, physical capacity to perform it
-possession: if you have knowing receipt or control, it’s considered an act

How does it affect offense definitions?

-they don’t have to include act requirement because it’s implicitly in there

Duty to Act
-although it’s unclear from the text, PHR thinks we should require at least
recklessness as to knowing there’s a legal duty
-Lambert v. CA: SCOTUS recognizes unfairness of recognizing duty where the
person isn’t aware of it

Discussion Materials

Joshua Dressler, “Some Brief Thoughts (Mostly Negative) About ‘Bad

Samaritan’ Laws”
-3 reasons why not to have general duty to aid laws
-retributivist
-crim should punish people for bad acts, not bad character
-risk of false positives because intent is not manifested in
an act
-utilitarian
-high costs of investigation and prosecution
-unlikely to actually influence action
-you don’t want to encourage ultimately incompetent help
 -political theory
-problem of vagueness: you can’t definitively tell
somebody what they should’ve done
-prosecutors are motivated by what makes the local news

Daniel B. Yeager, “Radical Community of Aid: Rejoinder to Opponents of

Affirmative Duties”
-battle between “soulless individualism”/”obsession with privacy” and
communal obligations

Chapter 17: Lesser Evils Defense

Case: Israeli General Security Service

-justifying circumstances suggest that conduct avoided greater harm/evil than it caused
-formally recognized in about half the states
-MPC 3.02: catch-all defense that only applies when others fail
-traditional approach: only natural forces like threat of starvation, etc.
-modern approach: can avoid unjustified threat to legally protected interest
-legally protected interest: those expressly sanctioned by law OR recognized by
community and not specifically denied by law

The Necessity Requirement

-it’s right in there explicitly
-it has to be necessary and also proportionate
-necessary in time AND necessary in amount of harm caused
-some statutes require imminence, but not the MPC
-the presumption that action is unwarranted unless the danger’s imminent
is probably wrong
-necessary in amount: if there’s a better (lawful or less harmful) option, it’s not
considered necessary

The Proportionality Requirement

-the actor’s conduct must be less harmful than that which is threatened
-it’s judged according to the community view of evil, not the actor’s

Legislative Final Word

-MPC 3.02(1)(c): if legislative purpose otherwise appears, you can’t get defense
-so you can’t use it for civil disobedience to contradict a law on the books
-should courts rely on moral principle instead of whatever legisl. says?
-if offense definition addresses the situation or provides a separate justification
defense, that precludes the use of the general lesser evils defense

DISCUSSION MATERIALS
 State v. Warshow, VT, 1980 (Majority)
-nuclear plant protestors wouldn’t leave site when asked, arrested for trespass
-a defense admits a criminal act, but claims it’s justified in some way
-necessity requires that an emergency situation not of D’s making presents a
reasonable expectation of harm which provides no reasonable alternative to the
criminal act
-low-level radiation is not imminent enough to satisfy this, and the danger of
meltdown was speculative
State v. Warshow (Concurrence)
-the legislature’s already made the choice, and this jury doesn’t get to contradict it
State v. Warshow (Dissent)
-protestors certainly thought there was an imminent danger
-while the legislature’s made the choice, the defendants still should have had an
opportunity to show that their only alternative to crime was nuclear disaster

State v. Green, MO, 1971 (Majority)

-prisoner escapes to avoid rape
-this was not imminent and he could have gone to guards as alt. means
State v. Green (Dissent)
-D knew that the alternative means would not be enough to protect him in time
-he could only submit or escape, and thus was justified

John T. Parry & Welsh S. White, “Interrogating Suspected Terrorists: Should

Torture Be An Option?”
-only when it provides the last remaining chance
-it’s illegal, nobody’s gonna back them up in court, but if it’s obvious that
somebody’s gonna nuke a city unless you torture him, go to it
-Israelis have it right
-if you use torture, others will torture your agents

Steven M. Bauer and Peter J. Eckerstrom, “The State Made Me Do It: The
Applicability of the Necessity Defense to Civil Disobedience”
-if you allowed this, it would greatly enable grassroots action
-it empowers the jury and individual expression, esp. of political minorities
-still have to show the political process failed, so it doesn’t make it overly easy
-generally helps the public debate to let juries decide whether it was justified in
each individual case

Chapter 18: Defensive Force Justifications

Case: Bernie Goetz

-defense for use of force necessary to protect oneself (or property) from unlawful
aggression (MPC 3.06)
-triggering conditions: necessary and proportional
-3 traditional types
 -1. self-defense
-2. defense of another
-3. defense of property

Why Not Acquit Goetz?

-people might think he did nothing wrong when really he’s using a defense
-it would be ambiguous, undermining notice function of crimlaw
-if they think he’s getting off even though he did the wrong thing, then uniformity
of law is undermined

Triggering Conditions
-defense triggered when (1) aggressor (2) unjustifiably threatens (3) unlawful
force
(1) aggressor
-must be actual, physical aggression
(2) unjustified threat
-justified force is excluded (e.g. being arrested by a cop)
-so, you can’t claim self-defense in using force against somebody who’s
defending themselves against your unjustifiable attack, unless their
counterattack was disproportionate or unnecessary
(3) unlawful force
-even though this seems to be underinclusive, they let you get away with
self-defense defense when the aggressor doesn’t have the required
culpability or has an excuse rendering their force lawful
-you can defend yourself unless aggressor is justified

MPC 3.11
-defines unlawful force
-permits resisting aggression with excuse or nonexculpatory defense
-this should probably just be right in 3.06, and is rather obtuse
-what does “defense not amounting to a privilege” mean?

Necessity Requirement
-can only use when necessary (if you can wait you have to) and to the extent
necessary (you can’t use more force than you need to defend)
-explicit necessity requirement, and heightened from lesser evils

Proportionality Requirement
-this is always explicitly set out so as to take the intricate balancing involved out
of the jury’s hands
-protecting property: you can do it, but not with deadly force, and you have to
ask them to stop first, within reason
-self-defense: life-for-a-life trade is OK to protect personal autonomy
-defense of another: you can do it, but only if it would be OK for you to do it if
they were attacking you AND it would be OK for the person to do it themselves
AND you believe it’s necessary for the other person’s protection
Discussion Materials
Judgment of the German Supreme Court, 9-20-1920
-you can shoot a thief if it’s the only way to keep them away from your property
-this protects society from rampant lawlessness and theft
-but the force has to be tailored to that protection

John Q. LaFond, “The Case For Liberalizing the Use of Deadly Force in Self-Defense”
-we should think of it in terms of personal autonomy, and the state can’t always protect
-it’s more efficient to allow private remedy to curb violence
-while you want to protect life, you’re not accomplishing that by protecting aggressors
who will probably kill somebody else

MPC 3.04 Commentary

-it’s only OK to use deadly force in the most extreme situations
-allowed in 2(b) when actor believes necessary to protect vs. death, serious bodily
injury, kidnapping or forced sexual intercourse; based on proportionality
-important to discourage use of deadly force

MPC 3.06 Commentary

-you can’t use deadly force in protection of property
-you can kill somebody even if the danger to yourself has passed to prevent
consummation of offense, like if they robbed you at gunpoint and are now running away

George P. Fletcher, “Proportionality and the Psychotic Aggressor: A Vignette in

Comparative Criminal Theory”
-2 major views: either (1) you can do whatever’s necessary to stifle an aggressive attack
on person or property, or (2) your response has to be tailored to what’s being threatened
-(1) is the autonomy-based notion, where the aggressor has placed themselves outside of
the law’s protection and you as an autonomous agent can kill them for breaking social K

Garrett Epps, “Any Which Way But Loose: Interpretive Strategies and Attitudes Toward
Violence in the Evolution of the Anglo-American ‘Retreat Rule’”
-we’re trying to protect life above all
-usually the cases are of people with a prior history of conflict
-every time used legitimately, probably also used by aggressor seeking to justify
unprovoked violence

Robinson and John M. Darley, “Use of Force in Defense of Property”

-community view: necessary non-deadly force always gets you off
-people give a wider berth than the code does, even (especially) in case of property

Chapter 20: Mistake as to Justification

Case: Richard Jahnke (abused kid shoots dad)

MPC 3.09
 -justification defense is unavailable if there’s no actual justification and the reason
you think there is is that there’s a mistake of law
-you can’t escape recklessness or negligence if your mistake is reckless or
negligent
-when you’re reasonably protecting yourself you’re fine if you hurt an innocent
bystander, but if you’re reckless or negligent, you’re screwed

-society wants actors to act with justification if the belief is reasonable, which this
encourages; without the defense, you’d punish blameless actor
-no defense when the act is justified, but the actor thinks it isn’t
-“privileged” conduct = objectively justified and cannot be resisted
-“unprivileged” conduct = subjectively justified and can be resisted
-unreasonable mistakes can be used to mitigate sentence in some jurisdictions

State v. Norman, NC, 1989

-woman shot husband due to battered woman syndrome; claims self defense
-no reasonable belief of imminent threat: guilty

Robinson and John M. Darley, “Competing Theories of Justification”

-2 theories: PHR prefers ‘deeds theory’: conduct actually prevents greater harm
-most theorists want ‘reasons theory’: conduct was done to prevent greater harm
-the community generally wants the ‘deeds theory’

Chapter 21: Mistake Excuses

Case: Bernard Barker (thinks he’s being sent by the CIA but it’s illegal)

Mistake of Law
-you can only get off with this excuse if the law was somehow unavailable or if
you were acting on the word of a public official
-it’s also a defense if it negates an offense element but this is rarely applicable

Thomas W. White, “Reliance on Parent Authority as Defense to Criminal

Prosecutions”
-against mistake of law defense: people should try to know the law
-Barker should have made reas. effort to know the legal basis of his actions

Louis B. Schwartz, “Reform of Federal Criminal Laws: Issues, Tactics and

Prospects”
-if it’s good-faith obedience to higher authority, the authority should be the one
prosecuted

George P. Fletcher, “Arguments for Strict Liability: Mistakes of Law”

-he doesn’t expect everybody to know the law
 -the law wouldn’t just become whatever the criminal thinks it is – that idea breaks
down the barrier between conduct and culpability
-he wants mistake of law defense

People v. Marrero, NY, 1987 (Majority)

-corrections officer carried gun, statute said peace officers may, he said he was a
peace officer
-a mistaken, yet reasonable, interpretation of a statute is not a defense
-the statute never authorized this, so we can’t let him get away because he thought
it did
People v. Marrero (Dissent)
-statute was ambiguously worded

Dan M. Kahan, “Ignorance of the Law is Only for the Virtuous”

-the line between legality and morality is not exactly defined and letting Marrero
get off allows people to skate close to the line of legality but over the line of
morality by taking advantage of legal uncertainty
-he’s anti-mistake of law defense

Chapter 22: Insanity

Case: Andrew Goldstein (subway pusher knew it was wrong, couldn’t help self)

-it’s an excuse, not a justification: they’re not telling you to do the same thing in the same
situation again, but that you get off because of a special safety valve
-you lack substantial capacity to either (1) appreciate the criminality of what you’re doing
or (2) to conform your conduct to the requirements of law
-you have to have some kind of recognized disorder
-intoxication is not one
-psychopathy is not one
-sociopathy is not one
-basically, if it’s only manifested in your crimes, it’s no good

The McNaghten Test

-you get a mental disease or defect defense if at the time of the crime you suffered
form the disease of the mind so as not to know the nature and quality of the act or
if you did, you didn’t know what you were doing was wrong
-MPC is different: it says you didn’t have substantial capacity to know

Irresistible Impulse Test (add-on to McNaghten)

-it can take away your knowledge of right and wrong as well as your power to
choose
-it goes hand in hand with McNaghten
-requires absolute absence of knowledge of wrong or absolute loss of power to
choose
Durham Product Test (not used anymore)
-this is frowned upon
-the older test focused on symptoms rather than whether the illness had a but/for
effect of your mental disease or defect
-it’s bad because if the mental disease was 1% of the reason, you get off

MPC Test
-it likes the fact that Durham looks at degrees of impairment
-but it sets a higher bar than but/for: substantial capacity

-after John Hinckley got off, opinion swung from MPC back to McNaghten (usually plus
II)

-insanity requires a preponderance

U.S. v. Robert Lyons, 5th Cir. 1984

-rejection of control prong
-the only defense should be if the person is unable to appreciate the wrongfulness
of their conduct
-no scientific basis for measuring control, and it just turns into battle of the
experts

Jodie English, “The Light Between Twilight and Dusk: Federal Criminal Law and
the Volitional Insanity Defense”
-thinks rejecting the II test is bad public policy
-it leaves mentally impaired ppl who are blameless without a defense
-there’s no perfect measure for any impairment so it’s unfair to knock this out

Robinson and John M. Darley, “Study 12: Insanity”

 -people think they can distinguish the different kinds of defenses; they like the
multiple prongs

Section 23: Disability

Case: Patty Hearst

-disabilities include mental illness, immaturity, involuntary intoxication, duress,

involuntariness
-not a product of a voluntary act or you don’t substantially appreciate the nature or you
don’t know it was wrong or criminal or you just don’t have control

You have to:

-pick a recognized disability
-figure out how that caused a recognized excusing condition

-nothing for voluntary intoxication

-being insane is not enough

4.10
-immaturity is special in that you assume it when somebody’s under 16, 16-17 the
court decides

2.09 Duress
-would a person of reasonable firmness in actor’s situation have been coerced?

Robinson, “Are We Responsible For Who We Are? The Case of Richard

Tenneson”
-there was clearly coercive indoctrination
-they destroy who you are and build a new person
-PHR: this should cause some defense, it’s clearly methodical and effective
-same thing with Stockholm Syndrome

Richard Delgado, “Ascription of Criminal States of Mind: Toward a Defense

Theory for the Coercively Persuaded (“Brainwashed”) Defendant”
-factors for defense:
-defendant’s mental state: a result of abnormal influences?
-mental state induced: sharp departure from previous?
-imposed rather than selected?
-after you’re told what you did, do you reject it?
-typical symptoms of coercion?
-did the bad things you did benefit those who brainwashed you?

Joshua Dressler, “Prof. Delgado’s Brainwashing Defense: Courting a Determinist

Legal System”
-indoctrination defense fails to account for who’s blameworthy and who’s not
 -Delgado encourages determinist view of society
-compared to insanity, you still have more choices

Delgado, “A Response to Dressler”

-Dressler misunderstood him, he meant to propose a narrower test for those who
have been victims of coercion over a long period of time
-just because insane has less choice doesn’t mean coerced has enough choice
-poor people lose choices, but here the capacity to choose itself is gone

U.S. v. Alexander, 1972

-black guys shot at marines in diner
-lack of control due to rotten social background claimed
-dissent only: should hear testimony on their rotten background

Chapter 24: Entrapment

Case: John DeLorean (bought coke at fed’s suggestion)

Nonexculpatory Defense
-balancing of competing interests: D is fully blameworthy, but societal benefit of
defense arises from foregoing conviction
-ex. statutes of limitation, diplomatic immunity, judicial/legislative/executive
immunities, immunity after compelled testimony or pursuant to plea agreement,
incompetency to stand trial

Goals of Entrapment
-deterrence of improper police inducement
-avoiding unfairness of government initiating offense, then prosecuting you for it

Objective Formulation
-focus on police conduct
-MPC 2.13: did police create substantial risk that offense will be committed other
than by those who are already ready to commit it?
-more compatible with equality because you’re not punishing people for
predispositions that may not be of their own making

Subjective Formulation
-was entrapping conduct or actor’s choice responsible for the crime?
-focus on whether ‘inducement’ took place (ex. DE statute)
-Sorrells: SC adopts subjective view for federal crimes

Due Process
-you can get a defense independent of entrapment if police violate “canons of
fundamental fairness, shocking to the universal sense of justice”
-even if you were predisposed, and thus there was no inducement, what they did
was just so ridiculous you can’t convict
Nonexculpatory vs. Excuse
-excuse means you couldn’t expect somebody not to do the same
-if entrapment were an excuse it wouldn’t be just the police, it would be anybody,
and you would be able to use it for physical force, which you can’t

Should We Have Entrapment Defense?

-it lets off blameworthy defendants
-but, it deters shady police conduct

MPC 2.13 Commentary

-reasons to have it:
-deter police from increasing risk of innocents committing offenses
-entrapping officers wasting their time not arresting real criminals
-police tactics undermine their standing in the community
-don’t want cops carrying out personal vendettas
-those things all lend themselves to the objective formulation
-reasons subjective is bad
-incompatible with notion of equality before the law
-undermines deterrence

Dru Stevenson, “Entrapment and the Problem of Deterring Police Misconduct”

-since the major goal of entrapment is to deter, it’s very indirect deterrence
-the only way it can work is if:
-cops’ time and efforts have been wasted
-frustrates the prosecutor
-cop wants to see the criminal punished

Louis Michael Seidman, “The Supreme Court, Entrapment, and our Criminal
Justice Dilemma (Rationales for Entrapment Defense Fail)”
-2 major justifications:
-entrapped are not blameworthy
-deter police
-defense is not a consistent judgment of police conduct
-does it increase or decrease crime? Decrease b/c you might put people away who
would commit crimes anyway

Andrew Ashworth, “Defences of General Application: The Law Commission’s

Report #83”
-wants to create offense for entrapment, which would deter more directly
-logical conclusion of Dru Stevenson’s argument
-but prosecutors wouldn’t charge, otherwise cops wouldn’t help them