Taras Criminal Law Outline

1. Punishment
A. Presumption of Innocence: Presumption of innocence begins at the
beginning- prosecution must overcome it
i. Proof Beyond a Reasonable Doubt: Standard that must be met by the
prosecutions evidence in criminal prosecution. No other logical
explanation can be found except that the defendant committed the
crime.

B. Punishment Theories
i. Two broad theories of punishment exist: utilitarianism and
retribution.
a. Principles of Utilitarianism: Utilitarianism holds that the
general object of all laws is to augment the total happiness of
the community by excluding, as much as possible, everything
that subtracts from that happiness, i.e., every- thing that causes
mischief (pain).
b. Role of Punishment :Both crime and punishment are evils
because they both result in pain to individuals and to society as
a whole. Therefore, the pain of punishment is undesirable
unless its infliction is likely to prevent a greater amount of pain
in the form of future crime.
c. Forms of Utilitarianism: (1) General Deterrence- punish
one person to send a message (2) Specific Deterrence- D is
punished to deter D from future criminal activity, creates fear to
prevent repeat offenses (3) Rehabilitation- believe criminal law
can be prevented in future by reforming individuals through
therapy, employment skills etc.
d. Incapacitation: prison temporarily puts convicted Ds out of
general circulation, prevents persons of dangerous disposition
from acting on their destructive tendencies.
You cant sacrifice another persons life to save your own

C. Constitutional Limits on Punishment and Sentencing

i. Punishment is excessive and violates the Eighth Amendment if
it (1) is nothing but purposeless torture; or (2) is grossly out of
proportion to the severity of the crime.
ii. Death Penalty:
1. Has limited applications

Cannot execute minors or mentally incompetent

Cannot execute someone whose insane

Ds crime had to result in loss of life

Treason is punishable by death

2. Justifications For Death Penalty:

Deterrence: will it prevent future crimes

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Retribution

D. Capital Murder
i. California Death Penalty Statute: (1) must be first degree
murderer and (2) prosecutor must allege, charge, and prove at
least one special circumstance (prosecutor doesnt need to seek
Death Penalty)

E. Introduction
i. Sources of Criminal Law

Common Law
Statutes
Model Penal Code: The Model Penal Code (typically
abbreviated as MPC) is a code created in the 1950s
and adopted in 1962 by the American Law Institute, a
prestigious organization composed of top judges,
scholars, and law- yers. Portions of the MPC have
become law in many states.
ii. Burden of Proof: Basics A basic American principle of criminal law
is that a defendant is presumed innocent. The Due Process Clauses of
the Fifth and Fourteenth Amendments of the Constitution require that,
to convict a defendant, the government must persuade the fact finder
beyond a reasonable doubt of every fact necessary to constitute the
crime charged.

2. Basic Elements of a Crime

A. Actus Reus: The actus reus of an offense that is the act of the crime.
Voluntary act that cause social harm.. MUST BE VOLUNTARY
i. Three Elements:
(1) Voluntary Act or legal Omission: Generally speaking, there can
be no crime in the absence of conduct. But, only a certain type of
conduct qualifies, namely, conduct that includes a voluntary act. You
can also get in trouble for not doing something if u had a legal duty

Ancillary Rule: An unconscious act is not voluntary. However, acts

arising from a voluntarily induced unconsciousness (drugs or alcohol)
does not negate actus reus

MPC 2.01(1): not guilty of an offense unless liability is based

on conduct which includes a voluntary act or omission to
perform an act of which is capable. The following are not
voluntary acts:

reflex or convulsion

a bodily movement during unconsciousness or sleep

conduct during hypnosis

a bodily movement that otherwise is not the product of

the effort or determination of the actor, either conscious
or habitual

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guilty of a crime for failing to act, even if that failure to

act permits harm to occur to another, and even if the
person could act at no risk to personal safety, UNLESS
there is legal duty to act.
- Rationale for this.
- Criminal conduct requires a guilty state of mind (mens
rea), and its really difficult to determine the state of
mind of someone who failed to act.
Line Drawing problem: difficult to draw the line, how do you decide which
omitters should be prosecuted
Promoting Individual Liberty: Our society like individual liberties and
limited government so crim law should be used to prevent people from
causing positive harm to people not coerce them to act to the benefit of
others
o

D not criminally guilty of failing to act unless there is a legal

duty to act.

OMISSIONS: We dont punish omissions. A person isnt

Situations in which the failure to act may constitute

breach of a legal duty

where a statute imposes a duty to care for another (IRS

tax filing date)

where one stands in a certain status relationship to

another (husband/wife, parent/child)

where one has assumed a contractual duty to care for

another;

where one has voluntarily assumed the care of

another and so secluded the helpless person as to prevent
others from rendering aid.

when a person creates a risk of danger of harm to

another (hitting a jaywalker)

Ancillary Rule: A physician has no duty to continue treatment once it has proved to
be ineffective. There is no criminal liability for failure to act unless there is a legal
duty to act. While a physician may have a duty to provide life-sustaining
treatment in the immediate aftermath of cardio-respiratory arrest, a physician has
not duty to continue treatment, once it proves to be ineffective.
Duty by Risk Creation: One who creates a risk of harm to another must thereafter
act to prevent ensuing harm

(2) Causing (Causation):

i. Actual Causation
1. Conduct crime: no harmful result, no causation required
2. Result Crime: (harmful result) no criminal liability for
result crimes unless it can be shown that the Ds act caused
the result; conduct is required in all result crimes

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3. Causation established:
i. But ForCausation
i.

Harmful result would not have happened BUT FOR actors conduct.

Substantial Factor Causation:

i. Two or more independent actors commit separate acts, each of

which is sufficient to bring about the prohibited result = both are
BUT FOR causation.
4. Acceleration: whether the result that would have
occurred anyway, occurs at an earlier time because of a
second actors act [Oxendine, child abuse, then child
death].
ii. Acceleration (causing the harmful result sooner) is sufficient for
causation, but aggravation (making injury more painful) is not.
iii. Proximate Causation: D cannot be a proximate cause unless
he is ans actual cause, but D can be an actual cause without
being the proximate cause.
1. Superseding Cause: intervening event that breaks the
proximate causal chain.

Response: involves a reaction to the condition created by the D.

i. Normal: does not break the PC chain

ii. Abnormal:

If abnormal yet foreseeable - PC intact

If abnormal yet unforeseeable - breaks PC chain

Proximate Cause Doctrines:

i.

Apparent-Safety: when a defendant's active force

has come to rest in a position of apparent safety, the
court will follow it no longer.

ii. Deliberate Voluntary Intervention: willful act by

another intervenes and causes harm.
iii. cultural defenses not taken into account.
iii. De minimis: If subsequent cause is de minimis, it will
not interrupt the PC chain.

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iv. Omissions: failure to act will not cut of the PC chain
for a positive act.
v. Intended consequences: when the results do not
happen quite as the actor planned, but generally the
same result is achieved and essentially by the same
means.
iv. Ex: mother tries to poison child, gives medicine to nanny. Neighbor
comes in and gives the child the fatal dose. Here, the result
contemplated was achieved, and it was achieved by the means
intended (poison). Even though the child administered the poison
(and not the nurse), it did not cut off PC.
(3) Social Harm: People are not punished for conduct (or omissions),
but rather for conduct (or omissions) that result in social harm.
i. Result crime: :(harmfulresult)Nocriminalliabilityforresultcrimesunless
itcanbeshownthattheDsactcausedtheresult;conductisrequiredinallresult
crimes.
ii. Conduct crime: law prohibits specific dangerous behavior, such
as driving under the influence of alcohol or solicitation to commit
murder.
Attendant Circumstances
o 1. Part of the actus reus- condition that must be present along
with the prohibited conduct in order to constitute a crime (i.e.
driving isnt illegal unless your drunk)

Additional element that must accompany the criminal act

and mind; facts surrounding an event.

Ex: A statute provides that it is an offense to drive

an automobile in an intoxicated condition
o

in an intoxicated condition = attendant

circumstances

Actus reus does not occur unless the actor

drives her car (conduct) while intoxicated (the
circumstance that must be present at the
time of her conduct).

D must have actual knowledge of the existence of

attendant circumstances which constitute the crime to
"knowingly" engage in criminal conduct. [Nations; 16 year
old bar dancer deceptive about her age.]

Cannot escape liability for crimes requiring knowledge of

attendant circumstances by willful blindness.

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Willful Blindness: when actor subjectively believes

there is a high probability that a fact exists and (2)
takes deliberate action to avoid confirming the fact
[Global-Tech]

MPC 2.02(7): (Willful Blindness): When knowledge of

the existence of a particular fact is an element of an
offense, such knowledge is established if a person is
aware of a high probability of its existence, unless he
actually believes that it does not exist (more reckless).

E. Mens Rea- refers to the mental state the defendant must have had with
regard to the social harm elements set out in the definition of the offense.

ii. Intent: D must intend or be reckless about the particular type of harm
caused to be found guilty for that crime.
i. One presumptively intends the natural and probable consequences
of his actions [wine bottle case].
ii. Intentional: purpose or desire; knowingly; willfully
iii. General Intent: doesnt require any particular mental
state/degree of moral blameworthiness.
1. Rape: general he does not need any particular mental
state
2. [Cunningham: rips gas meter from wall. Recklessness
sufficient to show malice.]
iv. Specific Intent: (elemental) the particular mental state provided
for in the definition of an offense.
1. Larceny: specific, requires the intent to steal (permanently
deprive)
2. Receipt of stolen property: specific intent to receive
property + must knowing its stolen
3. Common law burglary: specific intent to commit a felony
v. MPC 2.02(1): a person may not be convicted of an offense unless
he acted PKRN, as the law may require, with respect to each
material element of the offense.
1. Purposely: conscious objective
2. Knowingly: awareness that the result is practically certain to
occur

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3. Recklessness: conscious disregard a substantial and
unjustifiable risk to human life.

Ex: Brain Surgeon: there is substantial risk a person will die, but
removing a brain tumor is a justifiable risk to save the patients
life (20% chance to save the life).
4. Negligence: inadvertently creates substantial/unjustifiable
risk of which he ought to be aware.

Does not involve a state of awareness.

vi. MPC 2.02(3): When the culpability sufficient to establish a

material element of an offense is not prescribed by law, such
element is established if a person acts purposely, knowingly or
recklessly with respect thereto. Negligence is not a sufficient
basis for establishing criminal liability.

F. Transferred Intent
i. Transfers the actors state of mind regarding the intended victim to the
unintended one.
ii. MPC 2.03(2)(a) your mens rea is purposely or knowingly if you cause
a result that differs from the intended result only by who or what is
affected.
1. Hypo : D kills X and Y (who is using Y as a shield) 2
counts of murder

G. The MPC Approach to Intent

i.

MPC 2.02(1): a person may not be convicted of an offense unless he

acted PKRN, as the law may require, with respect to each material
element of the offense.
2. Purposely: conscious objective
3. Knowingly: awareness that the result is practically certain to
occur
4. Recklessness: conscious disregard a substantial and
unjustifiable risk to human life.

Ex: Brain Surgeon: there is substantial risk a person

will die, but removing a brain tumor is a justifiable
risk to save the patients life (20% chance to save
the life).

5. Negligence: inadvertently creates substantial/unjustifiable

risk of which he ought to be aware.

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Does not involve a state of awareness.

ii. MPC 2.02(3): When the culpability sufficient to establish a material

element of an offense is not prescribed by law, such element is
established if a person acts purposely, knowingly or recklessly with
respect thereto. Negligence is not a sufficient basis for
establishing criminal liability.
6. Arsonist, tosses salt over shoulder before torching home;
genuinely convinced this would save Sams life
negligently, normal person would have been aware of the
risk.

H. Wilfull Blindness
i. MPC 2.02(7): (Willful Blindness): When knowledge of the existence of
a particular fact is an element of an offense, such knowledge is
established if a person is aware of a high probability of its existence,
unless he actually believes that it does not exist (more reckless).

Cannot escape liability for crimes requiring knowledge of

attendant circumstances by willful blindness.
Willful Blindness: when actor subjectively believes there is a
high probability that a fact exists and (2) takes deliberate
action to avoid confirming the fact

I. Statutory Interpretation

Resolution of questions of statutory construction begins with

looking at the plain language of the statute
o If after looking at it the meaning is still unclear, courts
may look at legislative history

J. Strict Liability
i. No MR requirement regarding one or more elements of the AR;
punishment is usually not harsh.
ii. The requirements of mens rea culpability do not apply to statutory
offenses in which the Legislature has clearly intended to impose strict
liability for all elements of that offense.
iii. Statutory Interpretation of SL: look at language of the Statute if it
mentions mens rea than it is not SL.

If a term indicative of moral culpability appears in a statute, we

are going to strictly interpret that mens rea applies to
subsequent language, unless (according to the MPC) there is
indication that the drafters dont want it to.

K. Mistake of Fact

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i. Mistake of Fact: lack of proof defense by negating the requisite mens
rea.
1. Specific Intent (SI) vs. General intent (GI):

Step 1: Are you dealing with a SI or GI crime?

Step 2: SI negated by mere good faith mistake (doesnt matter

if unreasonable)

Step 3: GI crime negated by a good faith belief which was

mistaken and reasonable.
2. MPC 2.04: a mistake is a defense if it negates the
mental state required to establish any element of the
offense (PKRN).

Lesser crime theory: someone charged with intentionally

damaging someones property. He is behaving negligently, not
intentionally. Therefore, he can be charged with the lesser
offense of negligently damaging someones property.

Rule: A mistake of is not a defense when the actor would be guilty of

another offense had the circumstances been what he said

L. Mistake of Law- Ignorance of the law isnt a valid defense!

1. Reliance on Subjective Interpretation: D not excused for committing a
crime if she relies on her own erroneous reading of the law, even if
reasonable- No excuse
2. Reasonable Reliance: D excused for committing crime if she
reasonably relies on an official statement of law, later determined to
be erroneous, obtained from a person or with responsibility for the
interpretation or enforcement of the law. Excused
3. MP3 2.04(3): A belief that conduct does not legally constitute an
offense is a defense to a prosecution for that offense based upon such
conduct when

M. Causation;
i. Actual Causation
1. Conduct crime: no harmful result, no causation required
2. Result Crime: (harmful result) no criminal liability for result crimes
unless it can be shown that the Ds act caused the result; conduct
is required in all result crimes
3. Causation Established in two ways:

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But For Causation

i.

Harmful result would not have happened BUT FOR

actors conduct.

Substantial Factor Causation:

i.

Two or more independent actors commit separate

acts, each of which is sufficient to bring about the
prohibited result = both are BUT FOR causation.

4. Acceleration: whether the result that would have occurred anyway,

occurs at an earlier time because of a second actors act
[Oxendine, child abuse, then child death].

Acceleration (causing the harmful result sooner) is

sufficient for causation, but aggravation (making injury
more painful) is not.

ii. Proximate Causation

Prox-Cause Considerations

Foreseeability (response, coincidence)

Apparent Safety
Voluntary Human Intervention
Intended Consequences
Omission (NO)

The doctrine of Proximate or legal causation serves the

purpose of determining who or what events among those that
satisfy the but for standard should be held accountable for the
resulting harm.
A person or event cannot be a proximate cause of harm
unless she or it is an actual cause
BUT a person or event can be an actual cause without
being the proximate cause.
Typically an Intervening/superseding cause will be
(1) an act of God i.e. an event that cannot be traced
back to any human intermediary;
(2) an act of an independent third party, which
accelerates or aggravates the harm caused by the
defendant, or which causes it to occur in an unexpected
manner;
(3) an act or omission of the victim that assists in
bringing about the outcome.

P. Concurrence of Elements
i. To charge an individual with a crime, a prosecutor must prove there was
a concurrence between the actus reus and the mens rea of the accused
offense.
5. No proof that required MR of the crime existed at the time the
death occurred THEN D not guilty.

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3. Criminal Homicide
A. Overview

Common Law
-Intentional Killings
1st Degree Murder (Malice Aforethought + Premeditation and
deliberation)
2nd Degree Murder (Malice Aforethought but no premeditation or
deliberation; unprovoked Killing)
Voluntary Manslaughter (No malice aforethought because heat of
passion mitigates malice)
-Unintentional Killings
2nd Degree Murder (Malice Implied due to high probability of feath and
with wanton disregard for human life- unjustified risk taking)
Involuntary Manslaughter (reckless or negligent)
Felony Murder (when death occurs in the perpetration of a felony)
MPC
-Intentional Killings
Murder (purposely or knowingly)
Manslaughter (committed under the influence of extreme mental or
emotional disturbance for which there is reasonable explanation or
excuse)
-Unintentional Killings
Murder (recklessly under circumstances manifesting extreme
indifference to the value of human life- depraved heart murder)
Manslaughter (reckless- conscious disregard of a substantial risk)
Negligent Homicide (gross deviation from reasonable standard of care
Felony Murder- deaths caused by the commission of one of the enumerated
felonies which include burglary even when the death is accidental

B. The California Statutes and Other Selected Statutes

California- Murder Defined: Murder is the unlawful killing of a human

being or a fetus [except during a lawful abortion or when solicited,
aided, abetted, or consented to by the mother] with malice
aforethought.
Manslaughter: Manslaughter is the unlawful killing of a human being
without malice.

3 Kinds
(a) voluntary- upon a sudden quarrel or heat of passion [Punishable
by imprisonment for 3, 6, or 11 years]
(b) Involuntary in the commission of an unlawful act, not
amounting to felony or in the commission of a lawful act which might
produce death in an unlawful manner or without due caution and
circumspection. This subdivision shall not apply to acts committed in
the driving of a vehicle.
(c) Vehicular- driving a vehicle in the commission of an unlawful act,
not amounting to a felony, and with gross negligence, or driving a
vehicle in the commission of a lawful act which might produce death, in
an unlawful manner, and with gross negligence.

C. Degrees of Murder
1st Degree: Intent to kill + Malice (express or implied)
D. Manslaughter

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o

Requires: actual provocation, legally adequate provocation, and no

cooling off.

Actual Prevention

Legally adequate provocation

Sudden discovery (visual discovery, walk in on the act) of

spouse (I do) in adulterous situation

Injuries, death or serious abuse of a close relative

o

Extreme assault or battery on the Defendant

o

Not deadly force, but non-deadly force = partial

defense

Mutual combat: two people fight, one gets the upper

hand.

Unlawful arrest: If D is illegally arrested but the arrest is not

lawful.
o

No cooling of: insufficient time period between provocation

and killing

Elements

Actual Passion

Legally Adequate Provocation

Insufficient Cooling Off

Common law: if intent to kill formed in heat of passion, no MA.

Involuntary Manslaughter: accidental yet culpable killing

Scuffle; if the person trying to arrest is killed by the

person resisting unlawful arrest, murder can be
downgraded to MS.

Voluntary Manslaughter: intentional killing

You see your child being shot right before your eyes

If person was reckless and someone died = IMS (accidental)

Mitigation from 2nd Degree voluntary manslaughter:

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Appeal: If jury mitigates 1st degree or 2nd degree down to MS,

State cannot appeal. However, if jury does not mitigate down to
MS, D can appeal.

E. The Reasonable Man Standard

In order for an intentional homicide to constitute manslaughter a

defendant must have killed in response to provocation calculated to
inflame the passion of a reasonable man or which might render ordinary
men, of fair average disposition, liable to act rashly or without due
deliberation or reflection, and from passion, rather than judgment
For purposes of the law of provocation, the reasonable man has never
been confined to the adult male

F. Manslaughter Under the MPC

1.Criminal homicide constitutes manslaughter when:

i. It is committed recklessly; or
i. A homicide which would otherwise be murder is committed
under the influence of EMED for which there is reasonable
explanation or excuse.
1. Reasonableness determined from the viewpoint of a
person in the actors situation under the circumstances
as he believes them to be.
ii. A defendant pleading EMED has to show:
i. Did the killing occur during an EMED?
a. Subjective; look at manner in which killing
occurred.

[Jury Question] was there a

reasonable explanation or excuse
for the EMED under which the
defendant killed?

b. Subjective: view internal situation in which

the defendant found himself and the external
circumstances as he perceived them at the time,
however inaccurate that perception may have
been.
c. Objective: Assess whether explanation or
excuse for his emotional disturbance was
objectively reasonable.

MPC Manslaughter Notes:

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i. Jury may also consider repeated
provocations/course of conduct.
ii. More subjective than common law.
iii. Words alone may be sufficient for provocation.

G. Negligent/Reckless Homicide
o

Negligent homicide when it is committed with gross negligence.

Gross negligence: failure to appreciate risk of grievous bodily
injury or death which grossly deviates from the prudence of a
reasonable person in same or similar circumstances.

H. Felony Murder
i. Felony Murder Rule (FMR): one can be charged with murder if a
death results from conduct during the commission or attempted
commission of any felony; malice is implied.
1. Rationale: encourages people who are bent on committing
a felony to not do so in a way that needlessly endangers the
lives of innocent people.
2. California Approach: Penal Code 189

1st Degree Felony Murder Rule: if killing occurs

during commission of any crime listed in 189(a).
i. example: heart attack during armed robbery
is first degree

2nd Degree Felony Murder Rule: any felony

murder that does not qualify as first-degree felony
murder where the underlying felony is "inherently
dangerous" but is NOT one of the ones specifically
listed in Penal Code 189 PC.

6. Limitations

Inherently Dangerous Felony: felony murder rule

limited to homicides that occur during the
commission of a felony inherently dangerous to
human life.
i. Majority: Abstract Look at the statute
itself:
ii. Minority: As committed: looks at facts, how
felony was actually committed

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Merger Doctrine: felony murder rule does not apply if

the underlying felony is an offense that is an
integral part in the homicide itself.
i. Rules out most dangerous felonies, assaultive
crimes requiring malice intent

Burglary merges, but burglary with

intent to assault does not merge.

Merges: poisoning food, drink or

medicine; armed robbery; kidnapping;
felony child abuse.

Merger Doctrine excludes from Felony Murder Rule

the most dangerous crimes to life;

Inherently Dangerous excludes those crimes that are

the least dangerous to life.

7. Exam: look at statute, If statute is not specific as to legislative

intent, you may apply Inherently Dangerous and Merger Doctrine.

I. Inherently Dangerous Limitation