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Essay Framework

Principal in the First Part Principal in the Second Part


- Felony - Accomplice for Felony
- Conspiracy for felony - Conspiracy for felony
- First Degree Murder (Statute) - First Degree Murder (Statute)
- Second Degree Murder - Second Degree Murder
- Voluntary Manslaughter - Voluntary Manslaughter
- Involuntary Manslaughter - Involuntary Manslaughter

1) Define Statute
Part 1a 2) Contrast with Def Situation
Statutory Break down into 3) Affirmative Defenses?
Felony -Actus Reus -Self-D, Do3, DoH, LEDs
-Act was involuntary?
-Att Circ (mens rea) -Duress
-Causation issue?
-Att Circ (mens rea) -Failure of Proof (vol. intox, mistake
-Att circ unmet?
- Mens rea (specific/general) of fact)?
-Mens rea unmet?
-Social Harm

Attempt will likely be taken off, but watch out for a solicitation for the initial felony (as well as with the murder).

Agreement
Intent to Agree
A/R
M/R (Overt Act)(MPC)
Part 1b Can be implied from
1) Conspiracy is "Criminals do not go shouting
Statutory behaviros. Conspirators do
own chargeable conspiracies off of roottops MPC requires some overt
Felony not need to meet.
offense With Mens Rea of the Object act in furtherance of
(Conspiracy)
Offense conspiracy
Does Wharton's Rule
M/R 2
Apply?

Premeditation Factors
Lesser included offense? Wilful, Deliberate, Premeditated
1) Enumerated Felony -Threats during & before
Part 1c Wilful - Specific intent to kill
-Statements before &
First-Degree Res Gestea? Deliberate - Nature & quality + full
If enumerated felony for first after
Murder consciousness
degree, argue liability based -Ill-will b/w parties
Agent v. Prox cause Premeditated - Cognizable (twinkle
on the above crime if guilty -Blows after killing
approach? of eye)
-Brutal manner
-Lack of provacation

Mens Rea
Actus Reus and Causation
Part 1c Common Law Definition Affirmative
-Intent to kill
Second-Degree Defenses
- Was there a voluntary act? -Intent to injure; depraved
Murder The killing of a human being -Justiffications?
-Cause in fact? heart
by a human being with -Duress?
-Prox cause -Felony murder?
malice aforehtought
-Is the victim DEAD or brain dead? --------------------------------
Argue failure of proof?

Part 1d Part 1e
Sudden and Adequate
Voluntary Misdemeanor
Provocation?
Manslaughter Manslaughter?
Statutory Construction
Strict Construction of Statutes Legality Principle

Goal: To have most favorable interpretation for side. A defendant may not be punished unless conduct was considered illegal before its commission.
Ascertaining Intent: -----------------------------------------------------------------------------------------------
- Purposes appearing from the statute taken as whole (1) Criminal statutes should be understandable to reasonable, law-abiding persons
- Phraseology (2) criminal statutes should not be crafted to delegate basic policy matters to policemen;
- Ordinary meaning of words (3) Judicial interpretation of ambiguous statutes should be in favor of accused
- Technical meaning of words ---------------------------------------------------------------------------------------------------
- Law prior to statute A law can be unconstituionally vauge for two reasons:
- End to be Accomplisehd (1) Fails to provide notice -> Definiteness requirement
- Dictionaries, Legislative Debates, Punctionation (2) Authorizes arbitrary and discriminatory enforcement by police

Definiteness Requirement: Due Process Clause


Connally v. General Construction Co. -> "A law is unconstitutionally
vague when men of common intelligence must necessarily guess at Undue Discretion: Due Process Clause
its meaning and differ as to its application" Crimes which give too much authority to police are impermissible.
Two reasons: Papachristou v. Cty. of Jacksonville -> Potentially criminalizes
(1) Lack of fair notice of conduct prohibited innocent behavior and makes discrimination possible due to
(2) Failure to define a reasonably ascertainable standard of guilt sensitivities of arresting officer
Boyce Motor LInes v. United States -> Only a "reasonable degree Cty. of Chicago v. Morales -> Loitering statute. Impermissible b/c it
of certainty" is required; approach limits at your own risk gave police complete discretion in determining definition of
Wainwright v. Stone -> Statutes being challenged for vagueness "loitering" - inherently subjective 'no apparent purpose' language
must be tested in context of previous statutes.

See Muscarello v. United


States for Framework of
BUT BE WARY -> Definiteness/ Rule of Leinity Note:
Statutory Interpretation
Zwickler v. Koota -> Supreme Court states overbreadth doctrine CANNOT be used when a
limiting construction can be used.
-> Ie, if there are two differing reasonable interpretations, then the constitutional one applies,
rather than acquittal.

Burdens
Burden of Production =
1st)
Burden of (Jury) Instruction 2nd) Burden of Persuasion
The obligation to convince the jury of a competing assertion. The
The obligation to present evidence at trial to support a legal party with the BPers bears risk of failing to convince jury.
claim.
Prosecution Test: Could a rational juror, on this evidence, In re Winship -> Prosecution ALWAYS bears the burden of
believe that defendant committed crime beyond a reasonable production regarding EVERY fact (element) necessary to
doubt constitute crime as charged, BEYOND a reasonable doubt.
Defense Test: Any foundation in the evidence to support an If met, Updated by Patterson -> Prosecution must prove "every
affirmative defense. sent to INGREDIENT of an offense"
Jury -

Presiding Trial Judge Determines if Met for Purpose of JURY Mullaney - Patterson Mess.
INSTRUCTIONS Patterson v. New York -
If Prosecution fails to meet burden on ANY element, then Mullaney v. Wilbur -
Unlike Maine, extreme
defendant is entitled to directed verdict of acquittal Maine statute says
emotional disturbance was part
If Defense fails, the affirmative defense instruction will not be murder must be "unlawful"
of affirmative defense, rather
given to the jury. (defined to mean no
than element of crime.
justification or excuse).
-> This shifted burden to
Words > Meaning
defendant to disprove an
Though this has same practical
element.
Patterson: The burden of persuasion for criminal elements may effect, because NY statute puts
UNCONSTITUTIONAL.
ONLY be placed on the prosectuion. BUT; if elements are this element under an
Cannot place burden of
re-written as aff. defs. they may be shifted to the defendnat, affirmative defense, the
an element of crime on
regardless of practical effect. defense must prove it TO
defendant
REDUCE charges.

GO BACK AND CHECK THE


EGELHOFF DECISION -> IT
MATTERS HERE
Dressler p 74-5
Presumptions
Mandatory Presumptions Requires fact
finder to accept a presumed fact upoon Crucial to show mental Permissive Presumptions Allows fact
proof of basic fact, unless the finding is states. finder to accept a presumed fact upon
rebutted by the opposing party. proof of basic fact, unless the finding is
"A fact-finder MUST..." rebutted by the opposing party.
Procedural Effect: Shift to the defendant "A fact-finder MAY..."
the burden of persuasion regarding the Procedural Effect: Allow the jury to draw
presumed fact, upon proof of basic fact INFERENCES
Basic Fact Man shoots another.
Unconstitutional, even if
rebuttable, due to the Constitutional sometimes.
Law presumes people intend
burden shifiting effect. Inference Unconstitutional if there is
consequences of actions
no rational basis to
connect the basic fact and
Presumed Fact Intent to kill met. presumed fact.

Example is UNCONSTUTIONAL as mandatory;


CONSTITUTIONAL as permissive

"People intend the natural and foreseeable


consequences of their actions"
Act or Omission
+
ACTUS REUS = Attendant Circumstance
+
Result/ Social Harm

1st) VOLUNTARY ACT or OMISSION of KNOWN LEGAL DUTY

Voluntary Act
Contraction of muscle willed by Bodily movement or muscular STEPS:
defendant's mind contraction. 1 - Identify the actus reus in statute
2 - Relate to ? 's actions from fact
Barber v. Superior Court 3 - Determine if act or omission would be
Time Frame
better for prosecution or defense; argue
Rule: A ? 's conduct must include DISTINCTION: Law
both
a relevant voluntary act; not all should prevent people
must be voluntary. + from actively causing
4 - Determine if voluntary would be better
EITHER for prosecution or defense; argue both
harm, but it should not
For prosecution -> Argue for a compel people to benefit
broader time frame. Mail bomb others.
sleeper.
For defense -> Argue for a shorter
frame of time, there will be fewer Omission of Legal Duty
voluntary acts Two elements. Jones v. United States
(1) ? must have knowledge of Ways to acquire crim duty:
the circumstances which give a) Statute, b) legal relationship, c) contract, d)
rise to the duty; AND assumption of care & seclusion, and e) creating a risk
(2) An opportunity to perform of harm to others
the duty.

2nd) ATTENDANT CIRCUMSTANCE STEPS


1 - Identify the attendant circumstances
2 - Relate the attendant circumstances to the facts provided
Components of the statute which specifically limit the social harm.
3 - Argue for prosecution
WITHOUT attendant circumstances, there can be NO social harm.
4 - Argue for defense

Ex - Burglary: The breaking and entering of the dwelling house of another at nighttime with intent to commit a felony.

Voluntary Act;
Attendant Att cir. 1 Att cir. 2
circumstance; Att cir. 3
Property must be a dwelling Property must belong to
Mens Rea Must occur at night time.
house another person

3rd) RESULT / SOCIAL HARM


STEPS
1 - Combine the voluntary act/ voluntary omission with the attendant
circumstance -> unless "... crime causing _____"
Social Harm The definition of the
2 - Define this as the social harm
Any invasion of a socially recognized offense will identify the
3 - Argue for prosecution
interest. Does NOT require actual harm. social harm.
4 - Argue for defense

Ex - Burglary: The breaking and entering of the dwelling house of another at nighttime with intent to commit a felony.

Volutnary Act + Attendant Circumstances = Social Harm BUT NOTE: "Causing...." is DIRECT statutory
form.

IDENTIFY VOLUNTARY A/O


FRAMEWORK

IDENTIFY ATT. CIRCMSTCS. SHOW THE SOCIAL HARM


1 - Identify the actus reus in statute 1 - Identify the attendant 1 - Combine the voluntary act/ voluntary
2 - Relate to ? 's actions from fact circumstances omission with the attendant
3 - Determine if act or omission would be
2 - Relate the attendant circumstance
better for prosecution or defense; argue
circumstances to the facts provided 2 - Define this as the social harm
both
3 - Argue for prosecution 3 - Argue for prosecution
4 - Determine if voluntary would be better
4 - Argue for defense 4 - Argue for defense
for prosecution or defense; argue both
Inchoate Offenses
Has there been enough actus reus?
Initial Criminal Conduct
Attempt "Last Act" Test

perspective
subjectivist
Mens Rea Attempt at MOMENT the defendant performed the final act she believed
necessary for the crime. HIghly subjective.
Attempt is a Specific Intent
Offense "Probable Desistance"

Even if the attempted crime How far has def. gone? If actor reached a point where it was unlikely that he would
is a general intent crime, the have voluntarily desisted from his effort to commit the crime.
prosecution will need to
demonstrate specific intent ie getting ouf of cab w/ minor = attempt. Forging but not filling prescription = not
to commit an attempt yet.

"Indispensable Element"
Actus Reus
Attempt when no further elements beyond actor's control are missing. (Victim not
Attempt = Perpetration present? Lying in wait but gun not delivered?)
(NOT preparation)
Highly objective.
Courts are pretty bad at the
distinction; have developed
a number of tests "Unequivocality Test"

Attempt when 3rd party observer would unequivocally recognize that a crime is
about to be committed.
Highly objective.

(1) Nearness of
Dangerous Proximity
danger;
(Proximity to Success)
(2) Greatness of
harm; AND
Attempt when conduct is in "dangerous proximity to success" - the
(3) Degree of
danger of success is very great." Three circumstances
Apprehension
perspective
objectivist

"Physical Proximity" Test

Arises when actor has it within power to complete crime immediately.

(Note: This could be before OR after the "Last Act" test)


Highly objectivist. Depends on the occurrence of externalities and acts of third
parties.
Crime Completed

Defenses to Attempt Abandonment has two meanings.


-First, that the defendant never crossed one of the above tests sufficiently to
Legal Impossibility constitute an "attempt.
-Second, as an affirmative defense allowing withdrawal after point of attempt.
If the law does not proscribe the goal of defendant as illegal, then it will
not be considered an attempt (regardless of the actor's belief that his
conduct was wrongful). Abandonment (Affirmative Defense)
Voluntary & Complete Renunciation of Attempt
ie man has sex with girl he thinks is 15 (and therefore illegal) however, (1) Voluntary (not compelled by resistance, absence of necessary
she is actually 17 and beyond the age of consent. Though he believed instrumentality, or another change resulting in increased chance of failure)
himself to be blameworthy, he is not. The principle of legality will not AND
permit his conviction simply because he thought he was doing something (2) Complete (actual permanent abandonment, not merely postponing for
wrong. more favorable chance)

Solicitation

Mens Rea - Specific Intent to invite...etc (ie purpose to recruit)


Attempted Solicitation?
Actus Reus - "Invites, requests, commands, hires, or encourages another to
commit an offense" Attempted Solicitation IS recognized when a person attempts to send a
communication to solicit, but it is intercepted by LE or otherwise never
reaches its intended targer

Note: NOT a request for assistance, but to commit the offense independently. Attempted solicitation is NOT recognized merely because the target
said "no." This is still a complete solicitation.
If A asks B to help rob a store with him, it is NOT a solicitation.

If A asks B to rob a store for him, it IS a solicitation.


" Culpability" Model of Mens Rea

Only requires that ? caused the social harm in a " Elemental" Model of Mens Rea
COMMON LAW manner that demonstrated bad character,
malevolence, or immorality. & Requires that ? have committed the actus reus
MENS REA with a specified state of mind.
Regina v. Cunningham -> "Maliciously" meant the
social harm was caused from "wicked" activity,
ADD TRANSFERRED even if no intent to injure
INTENT RULES!!!!!!!!!!

Common Law
Alt Com Law. 1
Mental States Alt Com Law. 2
Class: Purpose to violate known - Voluntary,
- Act with "bad purpose" (culpability model)
legal duty + this purpose is bad intentional violation
NOTE: This causes an exception to the mistake
Wilful ie I want to kill and know it will harm of a known legal duty
of law provision -> if ? thought he was exercising
= Knowingly SCOTUS
legal right, there was NO bad motive
Cheek v. US

Class: ? unaware that result will


occur, but harbors conscious desire
(Knowldege) WIl Blind
(Purposefully, intentionally, (1) Aware of high probability of fact; AND
Purpose to bring about result
Specific maliciously)
Intent ie I want to kill.
(2a) Deliberate action to remain ignorant;
OR
Intentionally (2b) Purposefully fails to investigate
Class: ? aware of substantial Alt Com Law. Knowledge of existence of attendant
Knowledge certainty that harmful result will occur ? intended the result to circumstance when either:
(Subjective) occur (1) ? knows fact exists; or
(2) Correctly believe fact exists
(CL Malice) - Intentionally (express) or See Wilful Blindness
recklessly (implied)
? adverts to (crosses ? 's mind) and Remember that specific
Actor disregarded a
chooses to run an unacceptably high intent includes a high degree
Recklessness substantial and unjustifiable
risk. of recklesness
ie There is a chance I might kill
risk of which he was aware

General
Intent
When ? takes an objectively ? punished for morally blameworthy
substantial + unjustifiable risk in FAILURE TO REALISE that he is Culpable Indifference
Criminal Negligence
causing the social harm defined by taking an unjustified risk. (? should have been aware)
statute. Remember: BP>L

No As long as act performed or result


Strict Liability
Intent created, mental state is irrelevant. Special Rules for Strict Liability
Req

APPLICATION TO
SPECIFIC ELEMENTS Statutory Interpretation
Specific vs. General Intent Guidance
NOTE: The main relevance between specific and
general intent comes from the use of affirmative United States v. X-Citement Video
Specific Intent - An Principles of Interpretation -> Find Leg Intent
defenses. Certain aff defs are limited to specific
honest, though
intent.
unreasonable, mistake of (a) If the actus reus element would criminalize
fact will destroy the mens otherwise innocent conduct, then prosecution must
Two kinds.
rea prove mens rea for it;
Type One - 'Culpability' Style Meanings
General Intent: With a blameworthy mindset OR
with a statutory mens rea that does not pertain to (b) If the only one mens rea, and at the beginning,
General Intent - An then it will apply to all actus reus elements;
specific motive
honest AND
Specific Intent: Statutorily specified intent; ex
unreasonable mistake of (c) If in middle of actus reus elements, a mens rea
'intent to deprive
fact will destroy the mens requirement will only apply to subsequent elements
rea in question
Type Two - 'Elemental' Style Meanings
General Intent: Criminal Negligence &
Recklessness
Specific Intent: Wilfuly, Purposefully, Knowingly,
Intentionally
MENS REA
MODERN PENAL Definition as applies to...
CODE
Results Conduct Attendant Circumstances
Intentionally

Acts purposefully if it is ? 's "conscious object to engage in conduct of that nature or to If ? is "aware of the existence of
Purpose such circumstances or he believes or
cause such a result."
hopes they exists"

Knowledge If ? is "practically certain" that his If ? is "aware that his conduct is of criminal nature or that such attendant
conduct will cause such a result circumstances existed

If ? "consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct."
Unjustifiable risk -> if reasonable person in D's situation would or wouldn't do. BP>L (L is reason for risk)
Recklessness Substantial risk -> Grossly negligent
Consciously aware

Criminal Negligence If ? should have been aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct.

As long as act performed or result


Strict Liability
created, mental state is irrelevant.

APPLICATION TO
Under the MPC, EVERY material element that constitutes the crime must satisfy a mental state.
SPECIFIC ELEMENTS

If there is a
single mens rea Applies to every element
term
Mistake of Fact MISTAKES
Common Law Modern Penal Code

Specific Intent General Intent S/L


S/L
All Criminal
Offenses
Larcenry Lang Barrier Rape Speedometer
70 in 65

If mistake is
Any mistake of Negates the mens rea Any mistake of
REASONABLE,
Effect of Defense Negate Mens Rea fact is legally fact is legally
then acquital.
irrelevant irrelevant
Non-culpable

Does the
Did defendant Does the defendant have
mistaken fact
make a good-faith the particular mens rea for
Inquiry negate the
mistake? the crime? (Common law
mens rea for
REASONABLE? specific intent rule)
the crime?

But see Regina ->


Note: Consider what the
taking girl from
AND; Was the defendant's actual mental
parents is 'morally
mistake in good state was. If it was still
wrong' even if not
faith? criminal, he will be charged
criminal. MORAL
with the lesser offense which
WRONG
he meets.
DOCTRINE

Step 1) Label the crime as Step 2) Step 3) Apply inquiry from


s/l, gen in, or spcfc int. - S/L -> irrelevant chart.
- SI -> negates mens rea; ask if the defendant had the
specific intent to ______
-GI -> Ask if the mistake was reasonable mistake. -> If it is
a reasonable mistake of fact, then it is NOT CULPABLE and
therefore there is no mens rea

Mistake of Law

Exception: Statutory explicitly notes that


there must be knowledge of the law.
General Rule
Exception: Misunderstanding Based on Under some mens rea states, such as wilful,
A mistake of law is NOT a
Official (but erroneous) Interpretation of Law a knowledge of legal duty is within mens rea
defense, even if it is a
reasonable mistake
Reliance on this must be REASONABLE. 'Wilful' - "voluntary and intentional violation of a
known legal duty."
People v. Morerro
Ex) airline pilot tax evader case. United States v.
Cheek

Need framework
Intentional Killings
Homicide
Actus Reus

1) Voluntary Act or Omission 2) Attendant Circ - " of a human being" 2b) Attendant Circ - 3) Result/ Social Harm - " Killing"
- Identify and describe the action - Was the deceased a human being? "another human being" - What is a death?
by defendant which caused or a fetus? - Merely touch on the fact CL - Cessation of breathing and
the killing. - NOTE: Significant split in authority. that defendant was the heart
- Was it voluntary? CL: Baby born alive one who killed and is a Modern Trend - Irreversible
Statutes: Vary by state human cessation of all three brain
segments
Common Law Murder

The killing of a human being by another human being, with malice aforethought Causation

(1) Actual

(2) Proximate Causation

(3) Murder Only Year and a Day Rule


Mens Rea

Malice Aforethought
Aforethought now meaningless. Malice has four forms, one express & three implied.

Express Malice: Intent-to-Kill Proving Intent-to-Kill: The Natural and Probable Consequences Rule HEAT OF
"One who intentionally kills another human (a) People intend the natural and probable consequences of their actions; PASSION IS
being without justification, excuse, or mitigating (b) Defendant is a normal person; AFFIRMATIVE
circumstance exhibits malice aforethought" (c) Therefore, defendant intended the natural and probable consequences of act DEFENSE OR
------------------------------------------ Deadly Weapons Rule PROSECUTORIAL
Intentional Type 1: Purpose If the defendant used a deadly weapon in the commission, this N&PC rule is HEAVILY BURDEN
Intentional Type 2: Knowledge of Substantial REINFORCED for prosecution DEPENDING ON
Certainty. Permissible Inferences STATUTE
These MUST be presumptive inferences; an instruction which states "The law
Rules Below
presumes..." is a violation of the Due Process Clause
Under
Post-Crime Conduct
"Voluntary
The way a defendant behaves after the crime is of strong probative value to his initial
Manslaughter"
intentions.

(Reckless Omissions Are Included)


Implied Malice Type 1: Intent-to-GBH
A defendant who either intent type 1 or intent Implied Malice Type 2: Abandoned and Implied Malice Type 3: Felony Murder Rule
type 2 acts to inflict great bodily harm on the Malignant Heart (Recklessness) A death caused in the commission of a felony.
victim, yet it results in death. A defendant who exhibits "an extremely WILL BE ON TEST; THE BURDEN SHIFTING
reckless disregard for the value of human life" IS GREAT FOR PROSECUTION
"Involves a substantial risk of deaeth, (ie criminal recklesness standard)
unconsciousness, extreme physical pain,
protracted or obvious disfigurement"
ALWAYS Speak of the Proximity of
Recklessness to Criminal Negligence. If Because this can be intentinaolly, recklessly,
there is a reckelssness kiling, the Defense negligently, or accidentally and unforeseeably,
would want it to be MANSLAUGHTER by the full rules are analyzed below
merely being criminally negligent killing

Unintentional Killings There is a point where the risk taken really crosses into recklessness
- but prosecution cannot prove "adverts to and chooses to run" Felony Murder
At this point, the criminal negligence is a tool to allow conviction
Involuntary Manslaughter
Because "malice
aforethought" does NOT
The killing of a human being by another human being with criminal negligence require "intent" technically a
Felony Murder CAN be an
unintentional homicide.
However, it will ultimately be
Mens Rea a 1st or 2nd degree murder
- Defendant took a substantial and offense; rather than
Same Actus Reus Causation Issues unjustifiable risk of which s/he SHOULD involuntary manslaughter
Analysis as with the Timeline HIGHLY relevant when HAVE been aware
Intentional Killings. dealing with negligence. There is a Value Judgment
time period when an omission changes Look at the reasons for not taking action
from reasonable to unreasonable, to and the magnitude of harm risked; if not SEE MISDEMEANOR
CRIMINALLY UNREASONABLE justified by the likelihood of occurrence MANSLAUGHTER RULE
GROSSLY NEGLIGENT -> Crim Neg.
GROSSLY NEGLIGENT -> Crim Neg.

Common Law Malice Translating Common Law Malice -> Modern Statutory Results Statutory Category

SUCCESSFUL HEAT OF PASSION DEFENSE


Voluntary
Malice 1: Manslaughter
Intent-to-Kill WILFUL, DELIBERATE, and PREMEDITATED

NO HEAT OF PASSION; NOT W-D-P 1st


Degree
Stat. Spec. Felony (Arson, Rape, Robbery, Burglary) Murder

Malice 4: Felony
Murder Rule
Any other felony
2nd
Degree
Default Murder
Malice 2: Intent
to Seriously
Injure

Default

Malice 3: Involuntary
Abandoned and Manslaughter
Malignant Heart
(Defense should argue it never crossed Defendant's mind -> Never adverted to the social risk
NOTE: Defense will always try to reduce to Criminal Negligence and thus Involuntary Manslaughter

Second Degree Murder


Prosecution Burden Aff. Defense Burden
Default Malicious Killing after Prosecution shows
to to
actus reus and basic mental state.
Increase Culpability Decrease Culpability

First Degree Murder - Wilful, Deliberate, &


Voluntary Manslaughter - In the Heat of Passion
Premeditated
Burden
If cooling off time
Burden The defense bears the burden for proving these
available,
The prosecution bears the burden of production and elements unless the statute shifts the burden onto the
-> 2nd Degree
persuasion that these elements are ALL THREE MET. prosecution

Killing of a human being in heat of passion upon sudden and


NOTE: Some legally adequate provocation
Wilful - "A specific intent to kill." courts have
1) Heat of Passion -> Includes any "violent, intense,
tried to say
high-wrought, or enthusiastic emotion - including fear,
that
jealousy, and resentment"
deliberate
Deliberate - Defendant was "fully conscious" and
and weighed the thought in his head. premeditated
Requires consideration of nature and quality of are mere 2) Sudden -> Time b/w provocation and killing gave no
thought AND full consciousness surplusage. time for cooling off by a reasonable person
Prevailing: Deliberate submerged in
premeditated
Minority: Deliberate = intentional
These courts 3a) Legally (Adequate) -> Common Law
state that Com Law: Aggravated assault, mutual combat,
Premeditated - Amount of time has passed + deliberate = commission of serious crime against close relative,
Defendant was able to form in his mind a plan intent and that illegal arrest, and spousal adultery
of destruction premediated Both
Prevailing: Cognizable period of time passed requires only a words MERE WORDS ARE NEVER SUFFICIENT
Minority: Short time period; "twinkling of an twinkle of the eye do
eye" to think about "work"
killing 3b) (Legally) Adequate -> Jury Inquiry
NC Provocation Factors (State v. Forrest) in
Defendant's "reason must be obscured by passion to
- Lack of Provocation this
an extent which might render ordinary men, of fair
- Conduct and statements of D before & after element
average disposition, liable to act rashly or without due
- Threats before & during deliberation or reflection."
-Ill-will between parties
-Lethal blows after victory
-Brutal Manner
Excuse or Justifiaction?
Excuse -> Look to the Justification -> Look to the
defendant's conduct. victim's conduct.
Rule: A person is guilty of
Felony Murder murder if a death results Is this wrong, but partially not Did the victim do something
(1st or 2nd Degree Murder) from conduct during the blameworthy for some reason? which made killing him,
commission or attempted - Spouse cheating partially, the right thing to do?
commission of any felony. - (Light) Mutual Combat - (Heavy) Mutual Combat
-(Existing) Emotional - Right to Property in Spouse
disturbance by defendant + - MERE WORDS NEVER
Actus Reus:
words by victim JUSTIFICATION
1) Voluntary Act - Did defendant either commit or attempt a
felony?
2) Attendant Circ. - Inherently Dangerous Felony
- Alt 1) Was the felony, in the abstract, an inherently dangerous
felony?
Accomplice gets
- Alt 2) Was the felony, in the context of situation, an inherently Accomplice gets
voluntary
dangerous act? 2nd or 1st degree
manslaughter
IF yes -> Felony Murder; If no -> See involuntary mans.
3) Attendant Circ. - Independent Felony (Lesser Inc Offns)
- Was the felony of a lesser included offense? If yes, this
CANNOT BE used to support the Felony Murder Rule.
Assaultive conduct is the usual problem w/ independent felony
(However, if a state statute allows it ie assault on child, then
it does not "merge" with the murder)
4) Social Harm - Death of a person
- This could include an innocent bystander, another Felony Murder for Acts of Accomplice or Innocent Party
co-felon, or a law enforcement officer. Majority: Agency Approach
-Accomplice Liability for Felony Murder only applies if the
shooter was an accomplice to defendant. Under agency
approach the acts of the co-felon are imputed by the other. No
Res Gestae Requirement causation requirement here. Defendant could already be
The homicide must occur within the time, distance, and causal arrested.
components of the 'parent' crime. Because a police officer or CCH would be antagonistic to the
1) Time & Distance (Perpetration Rule) crime, their acts would NOT implicate FMR for Defendant
-Crucial Issue of Time is when the killing conduct occurred, not Minority: Proximate Cause Approach
when the death happened. -Accomplice Liability for Felony Murder APPLIES to the acts
-Time begins when actor reaches point he/she could be of non-accomplice third-party which cause the death of a
prosecuted for the felonious act. victim during the commission of the felony IF they are
- Time ends when "continuous transaction" of crime is over proximately caused by the felony.
-> this requires that the criminals have fled AND reached place -A police officer or CCW's shots WOULD be attributable to the
of apparent safety. felon. Even if the police kill a co-felon, innocent bystander or
2) Causation other.
- There must be both an actual and proximate causal NOTE ON STAT CONSTRUCTION: If the statute states that
relationship between the crime and the homicide the killing must be "unlawful" then the police officer's killing
- If the death is merely coincidental, the rule does NOT would NOT transfer, even if a prox cause jurisdiction, because
apply. -> ie plane crash trafficking drugs, not flying dangerously his killing would be lawfully authorized by LEO privilege in
low or fast to avoid detection -> not a felony murder felony

Mens Rea: The intent to commit the felony satisfies the Misdemeanor
requirement of malice. Manslaughter
When a defendant causes
the death of another human Follow the Framework for
being during the commission Felony Murder Rule
of an unlawful act not
First Degree Second Degree amounting to a felony (which
Felony Murder Felony Murder would qualify for the Felony
-Statutorily Listed Any felony not Murder Rule)
Offenses prohibited by the
- Rape Indp Fel rule,
-Arson Inhert Danger, or Various Rules
-Robbery not statutorily a) All misdemeanors
-Burglary listed b) Only "inherently
dangerous misdemeanors"
c) Misdemeanors +
non-dangerous felonies
d) Mala in se v. Malam
prohibita
Defenses
Non-Exculpatory Public
Offense Modification Failure of Proof Justifications Excuses
Policy Defenses

Defendant argues that the Defendant argues that the The defendants act was the Although wrong the
Logic

Court refuses to hear case


circumstances were not prosecution has failed to right thing to do under the defendant's actions were not
for reasons of public policy
intended to be covered by meet their burden of proof on circumstances blameworthy
the statute an element
Example

ex) Man burn's down ex) Insanity ex) Statute of Limitations,


ex) The younger party in a ex) Mistake of Fact can another's house to save his Judicial or Executive
statutory rape case. defeat the prosecution's entire town. Would be arson Immunity, Incompetency,
mens rea requirement otherwise, but was right Infancy
under circumstances
Permissible Shifting

Legislature MAY re-write Legislature CANNOT place Legislature MAY re-write Legislature MAY re-write Legislature MAY re-write
these to place the burden of the burden of ANY material these to place the burden of these to place the burden of these to place the burden of
affirmative defense on the element of a crime as an affirmative defense on the affirmative defense on the affirmative defense on the
defendant affirmative defense on the defendant defendant defendant
defendant
- Self Defense
- Defense of Others -Duress
-Mistake of Fact
-Involuntary Intoxication
List

-Statutory Rape -Voluntary Intoxication - Defense of Habitation


- Necessity -Insanity
(specific intent crimes)
- LE Crime Prevention
- LE Escape Prevention
Accomplice?

Possible but not automatic Possible but not automatic Yes Never Possible but not automatic

Justifications
Because justified conduct is technically legal, remember defense
Internal Logic of Justifications: General Theory Accoringly should always argue that the prosecution should bear the burden to
Triggering Condition + necessity + Justifications look to the actor's conduct disprove beyond a reasonable doubt per In re Winship (thought
proportionality to determine if it was even wrongful. Prosecution need only respond with Patterson v. NY and say they do
not need to disprove affirmative defenses).

Self- Defense Defense of Others


Elements If deadly force is used when Elements
(1) Must be an actual or apparent threat; only non-lethal is permitted,
(2) or use of deadly force; Same elements as S/D, but in defendant's
then this is IMPERFECT
(3) [such force is] unlawful mind in relation to the apparent victim's
DEFENSE; mitigates to
(4) [such force is] immediate plight
manslaughter
(5) Response is necessary
(6) D must What can be taken to account as In most states, a reasonable mistake is okay.
(a) Honestly (subjective) believe all reasonable? OBJECTIVE v. Called "apparent necessity" rule.
of the above SUBJECTIVE THIS DISTINCTION WILL BE ON THE EXAM
(b) Reasonably (objective) believe all (1) Gender -> due to physical If found
of the above disparity unreasonable,
(2) Age -> due to physical this becomes a Alter Ego Rule
Limitations disparities "imperfect No longer the majority, but still prevalent in
NOT RACE. Although this may defense" and some jurisdictions
Provocation - S-D is unavailable to a
contribute to the imperfect accordingly
provocateur; unless he MITIGATES TO
(a) In good-faith communicates his defense, non-physical traits based
MANSLAUGHTER
intention to withdraw; AND on prejudice may not make a
(b) attempts to withdraw person's belief reasonable Defense of Habitation
(Safe Haven) - S-D is unavailable to a Elements
person who, though initially imperiled,
(1) Privilege to use
leaves to a safe haven and then returns
Battered Woman's Syndrome (2) Deadly force to
ARMED.
Short Jist: Should be allowed to introduce testimony (3) Prevent Commission
HOWEVER, note that a person may,
in a situation where there was a confrontation. (4) of forcible felony
seeing unlawful danger, go back home to
-> This is because a battered woman would know -(note common law was ONLY felony)
arm himself
when a violent or deadly beating would occur better (5) In the home
than a normal individual.
Duty to Retreat
- Old Common Law: Duty to retreat The defender may not
Should NOT be available if there was not a threaten use of deadly force
worked into the necessity req.
confrontation because there is no imminence. The in escalation. Ie) Ex lesbian
- Mod Stat Trend: No duty to retreat,
defense should argue that imminence has a more lover coming to door case
especially Castle in one's own home
expansive meaning and that future beating was, for
-Mod Minority: Duty to retreat UNLESS
all intents and purposes, imminent.
retreat would endanger an Innocent
Law Enforcement
Defenses Necessity

Elements
Crime Prevention (1) Emergency Situation
-Note: At com law, only
Deadly force may be used if Remember, normal citizens Civil Disobedience can
emergencies caused by
reasonably appears CAN use the law qualify for the necessity
nature may invoke
necessary to prevent a enforcement defenses, defense; however it must be
necessity; now human
forcible felony however, they will almost DIRECT civil disobedience -
conduct may as well;
certainly have met the S/D, the civil disobedient must be
(2) To prevent a significant evil
Do3, DoH first perpetrating exactly the
Felony Arrest (3) With no adequate
crime they are protesting.
alternative
If he reasonably believes it is (4) Harm caused not
ie if trespassing, must be
necessary to prevent the disproportionate to harm
violating trespassing laws.
escape (or effectuate the avoided
arrest) of a forcible felon, a (5) Situation caused through
person may use deadly force no fault of the defendant

At common law, it neither


needed to be necessary nor
forcible felony

Using deadly force against a Overall, Justification require


misdemeanant or non-violent the jury to BALANCE THE
felon is an unreasonable EVILS of a situation. The
seizure under the 4th other kinds of defenses do
ammendment not demand this. Good way
to remember distinctions.

Excuse
Involuntary Intoxication
Threat to damage property (Voluntary is Failure of Proof)
Duress - Unavailable to Murder unacceptable.
Four Categories of Intoxication Qualify
(1) Another person threatened to kill or greviously (1) Coerced intoxication;
If it fits into (2) Pathological Intoxication;
injure D or third party (of relation, ss);
category, (3) Intoxication by Innocent Mistake; AND
(2) Reasonable belief that the threat was genuine;
FULL (4) Unexpected side-effect of prescribed
(3) Threat was "present, imminent, and impending"
ACQUITTAL medication.
at time of criminal act;
(4) There was no reasonable escape from threat
except through compliance; AND
(5) D not at fault for exposing self to risk.

Insanity - M'Naghten Test


Person is insane if laboring under a defect of reason that either

(1) she did not know the nature and quality of the act that she was doing; or
(2) if she did know it, she did not know that what she was doing was wrong.

Federal Test
If due to serious disease or defect, the defendant is unable to appreciate (1) the nature and
quality of her conduct; or (2) the wrongfulness of her conduct.

Infancy

Mind Doli Capax: Does the child have the ability to tell right
from wrong?
Infancy Defence to Sentencing
Some states follow M'Naghten Test for all of these kinds of
issues.
Minors cannot get death penalty
Rule of 7's
Minors cannot get life without parole
0-7: Incapable of Malice
7-14: Presumed incapable of malice
14 and up: Presumed capable of malice
Accomplice Liability
Derivative Liability
Common Law Classifications:
Note - P2P is NOT guilty
of "aiding and abbetting"
Principal in the First Degree (P1D) - The person who physically commits the act
but of the substantive
w/ the requisite mens rea; OR uses an "innocent instrumentality" to bring about
offenses committed by
harm.
P1P.
P2D may still be Principal in the Second Degree (P2D) - A person who intentionally assisted in
prosecuted if P1D is Liability is dependent on
the commission of the crime in the presence, actual or constructive, of the P1D
acquitted the P1P actually
breaking a law.
Accessory Before the Fact (ABF) - Same as P2D, but without actual or Accessories must
constructive presence of P1D be tried with or after
the P1P, never
Accessory After the Fact (AAF) - Person who, with knowledge of another's guilt, before.
intentionally assists the felon to avoid arrest, trial, or conviction. MODERN
CHANGE -> Now nearly all jurisdictions consider this a separate and less If P1P is acquitted,
serious offense than P1P's felony. accessories cannot
be convicted

Actus Reus

Kinds of Assistance
Rule of Accomplice Liability:
- Physical Conduct: Furnishing a Mens Rea
weapon, casing a scene, locking (1) Did the defendant in fact aid the behavior
door, or driving getaway car which constitutes the crime; and Drawn from facts of crime,
- Psychological Influence: "Presence
knowledge of the accomplice
+ very little else" (can be prior
(2)(a) Did defendant intend to aid the behavior about the P1P, etc.
agreement to assist; or expression
of non-interference) NOTE: MERE that constituted the crime,
PRESENCE IS INSUFFICIENT
- Assistance by Omission: Only valid
(b) with the mens rea for that crime This second mens rea
if the accomplice has a legal duty to element may be properly
intervene. Otherwise, no duty to inferred by proof of first
contact police and report an offense.

Mens Rea for a Greater/Lesser Offense than P1D's Conviction

" In Fact Aid" Do not confuse "in Lesser Greater


- ? must both ACT and this act must be EFFECTUAL fact aid" for When an accomplice has Old Com Law: Only murder could give
-Ex, Lookout honks to warn of approaching police causation. There is lower culpability (mens rea) higher crime to P2D
but goes unheard by burglars who are arrested-> NO requirement than P1D, accomplice may Modern: If P2D has greater culpability, is
NO LIABILITY for causation with be charged with lower possible to be responsible for greater
- Once aid is given, however, ANY aid NO MATTER accomplice offense. offense outside of murder than P1D
HOW TRIVIAL, is sufficient liability.
-Ex, Journalist applauds saxophonist he knows is i ie) P1D premeditates and
llegally playing kills, but P2D did not Ex) P1D kills in heat of passion, P2D
-Ex, Asks to bring home bananas premeditate -> P1D first assists with pre-mediation and intent to
degree murder, P2D second kill
degree murder

Expansion & Retraction of Liability By Acts of P1D Limitations


Expansion of Accomplice Liability -
Statutory Exemption
Probable and Natural Consequences Affirmative Defenses Abandonment
Provision
Doctrine
A person cannot be the
An accomplice may be held liable not The use of an affirmative accomplice to an act which An accomplice may
only for the initial crime which they defense by P1D can the legislature created for terminate his complicity for
supported, BUT ALSO for any other exonerate the accomplice if it his/her own protection subsequent acts if s/he:
offense that was a 'natural and probable is justified, because third
consequence of the crime aided' parties have right to assist in ie) Girls cannot be (1) In fact terminates
justified act accomplices in statutory rape complicity;
Ex-> Cocaine robbery turned to murder. (2) Termination is prior to
offenses (ie can only escape
liability for subsequent acts);
Four Step Inquiry
and
(1) Did P1D commit crime A?
A successful excuse by P1D (3) Wholly deprives
(2) Did ? (accomplice) in fact aid
+ intent + mens rea for crime A? does NOT excuse complicity of effectiveness in
(3) Did P1D commit other accomplice because the act the commission of the
crimes? was still blameworthy offense (must communicate
(4) If yes, were these crimes (excuses are personal) to P1D of cessation)
(even if not contemplated or
desired by ? ) reasonably
foreseeable consequences of
crime A?
Criminal Partnerships Solicitation

Solicitation Mens Rea - Specific Intent to invite...etc (ie


purpose to recruit)

Actus Reus - "Invites, requests, commands, hires,


or encourages another to commit an offense"
When offense is completed, the solicitation merges

Conspiracy
Pinkerton Liability
When the solicitation is Once a conspiracy is formed, all members are
successful, it merges with guilty of all offenses by the otherparties so long as
the conspiracy. they were

(1) During and in furtherance of the object; AND

(2) Reasonably foreseeable as part of conduct (ie,


Accomplice Co-Conspirator
Attempt Natural and Probable consequences)
Abandoning a Conspiracy

Principal Liability The substantive offense of conspiracy is


COMPLETE at moment of agreement; D will still
be guilty even if he withdraws.

Derivative Liability Withdrawal can only REMOVE LIABILITY for


Committed Offense future acts during and in furtherance of the object
of the conspiracy by other parties.

Can simultaneously have both, one, or (1) Communicate withdrawal to all conspirators
neither accomplice & co-conspirator
liability by the same person
Elements of Consipracy
(Dual Intent)
Conspiracy Conspiracy is an offense in its own right; however, it is also a window for derivative liability (1) Intend to Agree
(2) Intend to commit object
As an Inchoate Offense of consipracy
Intent #1: Intent to Agree
Agreeing to commit a crime with
another person is found more Purpose
dangerous in its own right, and Knowledge (of criminal - Stake in crime
Sufficient alone.
therefore such an agreement is its conduct) PLUS - No legal purpose of service
M/R If actor has purpose to OR
own offense Knowledge insufficient; also - Gross Disproportion to Il. Entrprs.
aid conspiracy; I2A
need one of factors to right. - Aggravated Nature of Crime
satisfied.

As Derivative Liability

Once the agreement is reached,


all conspirators are guilty of the Intent #2: Intent to Accomplish Objective
acts of all conspirators they should
have known to exist, regardless of At least two (the parties to be charged) parties to ie) If the only parties were a cop and drug
actual personal knowledge. the conspiracy must ACTUALLY INTEND to dealer, there is no consiracy, because the cop
M/R
complete the objective; but no specific intent for has no intent to accomplish objective
Alll responsible for all acts in the attendant circumstances
furtherance of and during the
commission of the conspiracy. Act: Agreement Reached
Can be either implied or explicit. In reality, implied is very easy to show. The prosecution argues that
criminals do not shout their conspiracies from rooftops, and asserts that the "collocation of circumstances."
A/R
Wharton's Rule Look for choreography - spontaneous assistance in rape not conspiracy after girl trips

No conspiracy liability for a crime


which by definition requires two Conspiracy Complete at Common Law
parties (UNLESS a third party is
Minority Rule (MPC Addition)
involved, then back to conspiracy).
A minority of states find that there must be an overt act in addition to the initial agreement, in order to solidify
Ex) Adultery, bigamy, incest.
a conspiracy conviction.
A/R
ANY ACT no matter how trivial, is sufficient if performed in furtherance of the conspiracy.
Multiple, Single-Object Conspiracy ACT CAN BE LEGAL - No need for an act to be illegal - so long as it furthers the conspiracy, it counts.
Or
Single, Multiple-Object Conspiracy

Major distinction in terms of sentencing.


Statutory caps prevent

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