CRIM LAW OUTLINE *INTRODUCTION* Moral: Right to hate criminals, punish them 2.
: Right to hate criminals, punish them 2. Possibility of Performing the Act: father who cant swim-
RELEVANT SECTIONS OF THE MPC
1.07: Prosecution of Multiple Offenses; Limitation on Convictions
1.12: Proof Beyond a Reasonable Doubt; Affirmative Defenses
2.02: General Requirements of Culpability
2.03: Causal Relationship Between Conduct and Result
2.06: Liability for Conduct of Another; Complicity
2.08: Intoxication
2.09: Duress
2.13: Entrapment
3.02: Justification Generally: Choice of Evils
3.04: Use of Force in Self-Protection
3.05: Use of Force in Protection of Others
3.06: Use of Force for the Protection of Property
3.07: Use of Force in Law Enforcement
3.08: Use of Force by Persons with Special Responsibilities to others
4.02: Evidence of a Mental Disease or Defect Admissible When
Relevant to Element of the Offense
4.03: Mental Disease or Defect Excluding responsibility is Aff. Defense
4.10: Immaturity Excluding Criminal Conviction
5.01: Criminal Attempt
5.02: Criminal Solicitation
5.03: Criminal Conspiracy 5.02(5) Overt Act
Limits on Criminal Law
Ex post facto: Cant charge for something they did before it
was against the law
Rule of Strict Construction: (Rule of Lenity) Interpretation of
law must go in s favor
Void for Vagueness Doctrine: CL any statute too vague is void
for peoples sake
Misc. Const. Limits: Crime must bear injury; Police cant be
arbitrary in authority
Classification of Criminal Law
Malum in Se: Crimes of moral turpitude; Wrong in themselves
Theft, homicide
Misdemeanor < 1 yr; Felony > 1 yr/ death
Malum Prohibita: Not inherently evil; Legislation regulates
Speeding, taxes Infraction (typically no jail, a fine)
BASIC ELEMENTS OF ALL CRIMES
Crimes require: (1) guilty act (2) guilty mind (3) necessary
attendant circumstances (for common law burglary -- takes
place at night, dwelling house -- is broken and entered into) (4)
causation (5) absence of defenses
Result in: (1) punishment (2) moral condemnation
Utilitarianism Max. pleasure, mini. pain; Focus on society
Least pain Punishment OR Future Crimes? Looks forward,
what will help & society?
Gen. Deterrence: Send message to others
Spec. Deterrence: wont do it again b/c (teaching lesson)
1) Incapacitation (physically deterring) or 2) Intimidation
Rehabilitation/Reform: 1) Psych care, 2) Care for drug
addiction, 3) Training/school (teaching to prevent future crime)
Retributivism Securing a balance in soc; gets his just
desserts Looks back, a crime was committed; violated
norms, so can be justly punished; Focus on ind.
Equalizing: An eye for an eye
Communicative: Symbolizes to criminal and victim that the
crime was wrong
Levels of Burdens
Beyond a Reasonable Doubt BARD Prosecutor has a really
high burden that is difficult to meet MPC 1.12
Preponderance of the Evidence POTE
Clear & Convincing C&C
3 BASIC BURDENS: Burden of Pleading: has this
Burden of Production: must offer evidence in support of the
defense If can raise evidence supporting instruction of the
defense, judge must instruct that way
Burden of Persuasion: must show jury he has met std of proof
required - = POTE; State = BARD In a tie, State wins
(exception is heat of passion in murder case)
Common Law
(1) must prove (2) By POTE (3) Subjective + Obj. Belief
MPC (1) must prove (2) By POTE: (3) Subjective Belief only
- - Added step - -
(1) State must prove (2) BARD: Belief was held
Recklessly/Negligently
*Prosecutors success results in establishing an imperfect
defense = Manslaughter conviction
Justifications for Punishment
Restraint: Jailed for safety of the public
Deterrence: Make example to send message
Rehabilitation: Sick and need help to re-enter society as a
contributing member
Retribution: People want sense that justice has been done; build
legitimacy of system
Death: Highest form of punishment Methods of Punishment:
Monetary (fines, restitution), Probation, Incarceration, Death
Serving Sentences: Concurrent: At same time Consecutive:
Back to Back
The Act: ACTUS REUS w/out an act you do not have a
crime what is an act? -Implicit element in MPC-
considerations: (1) Thinking No for wishing & planning; (2)
Presence or Appearance; (3) Unconsciousness; (4) Possession;
(5) Temporary Impairment (Mult. pers.); (6) Status (Intox,
Addiction, Homelessness)
MPC 2.01, non-voluntary acts include things like: Reflex or
convulsion; Movement during unconsciousness or sleep;
Conduct during hypnosis; Bodily conduct not product of actors
determination
OMISSIONS MPC 2.01(3) Kitty Genovese -If you have a
duty to act, you may be liable if you dont Capacity matters
Liability Elements: Finding Actus Reus in Omissions (only
if there is a LEGAL duty to act- not a moral duty)
1. Legal Duty: Statutory (few), K (ex.lifeguard), Relationship
(spouses, parent-child), Vol. Assump of Care (if u start helping
u may be obligated to cont), Situation (you created peril)
not dive into deep water to rescue a drowning child but could do
other things to help like call the lifeguard etc
3. Causation: The omission must be proved to be the cause of
the death, for example
(Legal) Duties Giving Rise to Criminal Omissions Liability (1) Duty
Based on Relationship: Parents must aid small children; ship captains
must aid their crews; law expanding- might imagine a duty of a
mountain climber to rescue his climbing partner if he falls in a
crevasse. Key is to look for a special relationship; (2) Duty based on
Statute: Failure to stop after hit and run; (3) Duty based on Contract:
Lifeguard employed to watch over swimmers at the beach; (4) Duty
based on Voluntary Assumption of Care: If one starts to save a
drowning swimmer, one has to carry through; (5) Duty Based on
Creation of the Peril: recall case where rapist whose acts cause his
victim to drown in the creek; (6) Duty Based on Respondeat
Superior: Employer has a duty to curb dangerous activities of
employee when employee is in the course of work; Car-owner may be
criminally liable to third persons injured or killed as a result of his
failure to control his speeding chauffeur; (7) Duty of Landowner:
landowner may have a duty to act affirmatively to provide for the safety
of those whom he invites onto his property; ex.)night club owner-
deaths of his patrons killed as a result of failure to provide proper fire
escapes.
CL:INTENT
Specific Intent Something added to charge: Assault w/ intent
to commit rape; Requires greater degree of recklessness (hard to
prove); Intoxication IS a defense
General Intent Requires lesser degree of recklessness; Easier
to prove (Atkins); NO intoxication defense
CL: GENERAL v. SPECIFIC INTENT CRIMES
GENERAL INTENT SP
Example: Battery Ex
**Single Mental Layer** **D
- intent to inflict injury on another Bre
(in
Intoxication and Mistake of Fact ARE NOT DEFNENSES Int
- often the words with intent to are used to indicate a specific
intent crime (look for these in statute)
ex.) assault is a general intent crime, but assault with intent to
rape, is a specific intent crime; arson is a general intent crime,
but arson with intent to commit insurance fraud is a specific
intent crime
INTENT: MENS REA MPC 2.02 Mental state Hard to
prove Done circumstantially Transferred intent (meant to
shoot B, but hit C instead) Crime (arson, murder) cant be
MENS REA AND CULPABILITY think about choice of
Elements of Culpability MPC 2.02 One of these must be
found for each crime Motive not legally required; can help
though (this MPC section is VERY IMPORTANT!)
PURPOSELY: CONSCIOUS/RESULT - 1) Conscious object
(sugar for diabetic); 2) is aware of att. circ. (knows victim is
diabetic & gives him sugar anyway) Satisfied if purpose is
conditional 2.02(6) (threat unless victim complies)
KNOWINGLY: 1) is AWARE att. circ. exist (spike punch,
knowing guest is allergic); 2) PRACTICALLY CERTAIN
conduct will cause result (allergic guest will be injured
Satisfied by high probability Willfully if person commits
elements of crime knowingly (unless statute requires more)
- - Line separating seriousness of crimes - -
RECKLESSLY: Minimum default CONSCIOUS
DISREGARD of subst. & unjust. risk Subst. & Unjust. risk:
Must be of such a nature and degree that, considering the
nature and purpose of the actors conduct & the circumstances
known to him,
the disregard of this risk involves a gross deviation from the
standard of conduct
Standard of conduct: How a law-abiding person would act if in
the actors situation
NEGLIGENTLY: FAILURE TO PERCEIVE subs. & unjust.
risk that element exists or will result from his conduct Subst.
& Unjust. risk: Must be of such a nature & degree that,
considering the nature and purpose of the actors conduct and
the circumstances known to him, the actors failure to perceive
this involves a gross deviation from the standard of conduct;
Standard of conduct: How a reasonable person would act if in
the actors situation -Similar to tort negligence
OVERALL INTOXICATION MENS REA ANALYSIS
1. Was the involuntarily or pathologically intoxicated?
If yes, then it's a complete defense
If no, conduct analysis for voluntary intoxication
2. Does the jurisdiction even allow a voluntary intox.defense?
If no, then we are done with the analysis
If yes, ask the following questions:
3. Are we dealing w/ a double mental layer (specf int) crime?
If yes, then specific intent/culpability negated by evidence of
intoxication at both CL and MPC
4. Are we dealing with a "conscious object" or "purpose"
(specific intent) crime?
If yes, then specific intent/culpability negated by evidence of
intoxication at both CL and MPC
5. Are we dealing with a single mental layer (gen int) crime?
-- Under MPC: If yes, is it a "knowingly" crime? -- if so,
evidence of self-induced intoxication negates culpability
If yes, is it a "recklessly" or "negligently" crime? -- if so,
evidence of self-induced intoxication does NOT negate
culpability (aka intoxication is not a defense)
-- Under Common Law: If yes, evidence of voluntary
intoxication does NOT negate intent.
6. If intent/culp negated, is there a lesser-included offense?
MISTAKE OF FACT
1. Is this a strict liability crime?
If yes, mistake of fact cannot be a defense. If no:
2. Is this a common law or MPC jurisdiction?
If common law:
3. Is this a specific intent or general intent crime?
If it's specific intent, then it will not matter whether the mistake
of fact is reasonable. It need be only an honest or gf mistake.
Is the mistake honest or in good faith?
If it's a general intent crime, then the mistake must be honest
and reasonable.
Is the mistake honest or in good faith?
Is the mistake reasonable?
4. If in a Model Penal Code jurisdiction:
Did the defendant act purposely, knowingly, recklessly, or
negligently, as the law may require, with respect to each
material element of the offense?
MISTAKE OF LAW
REASONABLE RELIANCE DOCTRINE
1. Person reasonably relies on an official statement of law;
2. Later determined to be erroneous;
3. Obtained from a person or public body;
4. With responsibility for the:
a. interpretation; b. administration, c. enforcement
5. Of the law defining the offense
CAUSATION
MPC & CAUSATION: MPC 2.03
I. Actual Cause: 2.03(1)(a)
(1) Conduct is the cause of a result when: (a) it is an antecedent
but for which the result in question would not have occurred.
II. In Cases of Potential Superseding Causes
A. Crime With Mental Element: 2.03(2)(b) & 3(b)
Result is not too remote or accidental in its occurrence to have a
just bearing on the actors liability (ie. if something is
accidental or remote then it is not foreseeable)
- compared to foresee. in CL is thinking more in terms of caus. -
MPC is thinking more in terms of culpability
B. Crime Without Mental Element: 2.03(2)(a) & (3)(a)
The actual result is a probable consequence of the actors
conduct; see (4) in 2.03 deals w/ probable consequence
ACTUAL CAUSATION:- the but for test (CL)
Double Concurrent Actual Causes:
(1) Accelerated Cause - death at a later time
- 2 people shoot victim (D1s shot may have caused victim to
die in a few hours and D2s shot caused him to die in 5 mins
the one who accelerates the death is the cause)
(2) Correspondent Cause - instant death
- Action 1- D1 shoots at heart of victim (death is instant)
At the same time D2 shoots at brain of victim (death also
instant); - But for D1s voluntary act would the harm have
occurred when AND as it did?
(3) Obstructed Cause- instant death trumps wound
- D1 attempted to kill V but his efforts were obstructed by a
separate force -- D2 -- who was a more effective killer.
- D1 is guilty only of attempted murder.
Types of Intervening Causes:
Act of the Victim: Drunk victim dies from own actions of
swimming for shore, flows from actions of crashing boats (
NOT liable); Act of 3rd Party: Dr. performed neg surgery on
injured victim ( not liable); Act of Nature: Vic left in woods
killed by bear/winter storm ( not liable)
PROXIMATE CAUSATION
Foreseeability: Dependant (responsive) intervening cause:
s Conduct + s Intervening Cause Prox Cause
(breaks the causal chain and s act is foreseeable)
Independent (coincidental) intervening cause:
s Conduct + Ind. Intervening Cause NO Prox. Cause (
not liable); (breaks causal chain b/c act coincidental not
legally responsible b/c it was not foreseeable) Not in resp. to
s wrong; Carjacked guy stays at friends, robber breaks in &
kills him, no; hit by car after left on road, yes
Intended Consequences Doctrine: D wanted mom to die by
poison, worker didnt give it, someone else did, D still liable
De Minimus Contribution to Social Harm: cuts vic
accidentally; on way to ER for stitches, car is hit; vic dies; no
liability; Apparent Safety Doctrine: caused a bit of harm,
dropped vic at ER for safety, vic refused treatment and died
Not liable; Free, Deliberate Informed. Hum. Interv.:
persuades vic to drag race- After, vic crashes & dies; During
race, liable, not now; Omission: Fathers failure to protect his
child will not absolve attacker even if fathers omiss. to act
caused the death
STRICT LIABILITY 1) Mens rea requirement? 2)
Congressional intent? 3) Public welfare or regulatory offense?
4) Severe penalty? MPC 2.05(2) = minor violation
COMPLICITY
ACCOMPLICE LIABILITY- see MPC 2.06 CL:
Principles to 1st Degree: Actually perpetrated the offense
Principles to 2nd Degree: Were actually or constructively
present at the crime scene & aided or abetted its commiss.
Accessories BEFORE the fact: Aided or abetted crime, but not
present at commission
Accessories AFTER the fact: Rendered assistance after the
crime was complete Will survive the merger
Actus Reus of Accomplice Liability
Mere presence is not enough Must show encouragement
Omission to act, but knowing its happening is not enough Ex.
Watching vic on ledge, no; yell jump, yes
Can be established thru omission if theres a duty Cop should
stop a crime, not citizen
Attempt to aid or assist is enough: Making food for s could be
argued both ways
*Accomplice must possess the requisite criminal intent as
defined by statute
Accomplice vs. Facilitator (Kaplan)
1. Facilitation single mental layer
- ex.) "I'm giving you this gun because I know you want it. I
don't know what you'll be doing with it but I know it's
something illegal."
2. Complicity double mental layer
- ex.) "I'm giving you this gun because I know you want to use
it to commit a bank robbery & I want you to use it that way."
Mens Rea: The Intent to Promote or Facilitate a Crime:
- the mens rea of accomplice liability is often described in the
case law as having two separate (and independent) components:
(1) the intent to assist a principal actor in committing target act
(2) the intent that the principal actually commit that act
- can be and often is implied from a persons actions
Accomplice Liability- Double Layer Mens Rea (in other
words): -accomplice liability requires a double layer of mens
rea:1. Intent to aid the principal and 2. Intent to commit the
underlying crime
Inchoate Offenses solicitation, conspiracy and attempt
ATTEMPT
Six Stages of Criminal Process:
1) Conception Not charged
2) Evaluation Not charged
3) Forms intention to proceed Not charged
4) Prepares to commit crime inchoate crime zone
5) Starts commission of offense inchoate crime zone
6) Completion of offense Yes, charged
Attempt Defn performs act as substantial step toward
committing target crime If successful, attempt goes away &
youre charged only with the target crime MPC 5.01
CL: Was a misdem regardless of seriousness of offense
attempted;now felony but treated as less than target offense
Note on Merging: if charged with both attempt & the
substantive offense & found guilty of the substantive offense,
then the lesser is absorbed by the greater (attempt merges into
the substantive offense)
ex.) attempted kidnap. merges into actual kidnapping
Mens Rea: Level of culpability is same as it would be for the
target crime
Actus Reus: 1) Unforeseen interruption; 2) Mistake of
judgment (imperfect attempt); 3) Preparation (Not all preps are
enough; Degree of proximity matters)
Criminal Attempt MPC 5.01
(1) Complete or Incomplete? If complete, target offense a result
crime (1)(b); If Incomplete, 1(c) Imperfect: Actor performs all
of the acts she set out to do, but fails to attain criminal goal
Incomplete: Actor does some of the acts necessary, but stops or
is stopped before completing
(2) Conduct that may be held substantial under (1)(c): Lying in
wait, searching for or following vic; Enticing vic to planned
place of commission; Reconnoitering to that place; Unlawful
entry of location (structure, vehicle, enclosure) planned for
commission; Possession of materials to commit crime;
Collection of materials at planned place; Soliciting an innocent
agent to help
TESTS FOR ACTUS REUS OF ATTEMPT:
1. Physical Proximity must stand as the first or subsequent
step leading to the crime (better for )
2. Dangerous Proximity (CL) a person is guilty of attempt
when their conduct is so near the result that the danger of
success is great -Considers: Nearness of danger; Greatness of
harm; Degree of apprehension felt (better for )
3. Indispensible Element whether an indispensible element
or aspect remains over which the actor has not yet gained
control (ex. an actor who does not yet possess a necessary
instrument for the crime) - not yet crossed the line from
preparation to perpetration (better for )
4. Probable Desistence Test whether in the ordinary and
natural course of events the s conduct will result in the crime
intended (centers on how the far the has already proceeded in
starting the crime) (better for prosecution)
5. Abnormal Step whether s conduct has gone beyond point
where normal citizen would think better of it and stop (has
reached the psychological point of no return of an ordinary law-
abiding citizen?) (better for prosecution)
6. Unequivocality (aka Res Ipsa Loquitor Test) test under
which the s conduct manifests an intent to commit the crime -
criticized as setting too high a bar for conviction
7. Substantial Step (MPC) under subsection 1(c)
- The most difficult for the prosecutor to make out is the 1st,
going down in descending order to the MPC substantial step
test being the easiest
***look at the fact pattern you have and consider which test
seems to apply and talk about THAT test
Relationship b/t Solicitation & Attempt*From most liberal to
least liberal 1) All Solicitations are potential Attempts
Proximate to or substantial step towards Minority of juris. 6) Continuing offense longer time to file charges less risk of
Ex. M tells N to kill O in Os presence and theyre armed
2) Solicitation PLUS could be Attempt Solicitation coupled
with a slight act in furtherance of crime Many juris. Ex.
M give N weapon or pays her to do crime
3) Not an attempt unless solicitors overt acts would constitute
an attempt if she intended to commit the crime herself
Solicitor must play active role in crime; Many juris.- M solicits
N to burglarize Os home;M opens Os window for Ns entry;
4) Solicitation is never an attempt- b/c the solicitor does not
intend to personally commit the offense- Min of jurisdic.
SOLICIATION
Criminal Solicitation MPC 5.02
** Consider accomplice liability; Aider and abetter; Raise both
issues - Overlapping area; Going too far?
Definitions of Solicitation: 1) Solicitor conceiving of criminal
idea; 2) Furthering its commission via another person by;
3) Suggesting to, inducing, or manipulating
Uncommunicated Solicitation: Immaterial under Subsec (1)
that there was no communication Designed conduct enough
Renunciation of Crim Purpose: Aff. defense if solicited
someone, then persuaded him to stop Must have genuine
change of heart CL Solicitation is always a misdemeanor
Majority: One grade below solicited offense
Minority: Same grade as solicited offense
Mens Rea: Spec. intent crime Not guilty if jokingly
suggests a crime
Actus Reus: Solicitation is complete the instance the person
requests the crime be committed even if asking is pretending
Can be a message to many people at once
CONSPIRACY MPC 5.03 Elements of Conspiracy:
1) Agreement to commit the target act
2) Intent to commit the target act itself
Begins: 2+ agree (& overt act if needed)
Overt Acts Any legal or illegal act to further the crime (Ex.call
bank for open time) Less than aiding & abetting; Majority:
Requires 1 overt act by 1 party; Minority: Overt act for serious
crimes only Ends: 1) Its abandoned or 2) Its completed
Rationales for punishing conspiracy
1) Preventative measure; Police intervention can be earlier than
attempt; 2) Addresses group criminality (groups create more
havoc in society)
Prosecutorial Advantage
*Tremedous ethical restraint necessary here
1) Separate crime with its own penalties
2) Permits apprehension of potential criminals even earlier than
attempt
3) Members are vicariously liable for acts of others even w/o
proof of accomp. liab.
4) Allows apprehension & prosecution of groups & from before
they joined the group
5) Joins multiple s for trial Jury more easily infers joint
criminal activity
statute of lim. running
7) Venue is more fluid Can be anywhere an act for the
conspiracy occurred
Address only if undercover agent is present:
Bilateral CL: Agreement b/t 2+ to commit concerted action
(unlawful act or a lawful act by unlawful means) 2nd person
must really be involved, not pretending
Unilateral MPC: Focus on 1 person and his belief that he is
agreeing with another for purpose of committing crime
Most jurisdiction switched from CL to MPC
Wharton Rule: Cant be conspiracy if crime logically needed 2
people to complete Ex. Adultery, incest MPC 2.06(6)(b)
says person who cant be convicted of a substantive offense as
an accomplice cant be convicted of conspiracy to commit it
Gebardi Rule: Protects victim of a conspiracy from being
charged as a co-conspirator, even if she was part of the
agreement MPC 5.04(2)
Mens Rea Group crime: Consp. & Accomp. Liab.
Conspiracy: Intent to agree/Intent to commit
Accomplice Liability: Intent to assist another; Intent the
principle commit crime
Attempt: Intent to commit the specific crime that was the actors
objective
Solicitation: Intent to promote or facilitate commission of
specific crime by another
Actus Reus Element of Consp; Can be established
inferentially, by concerted action, circumstantially s with a
number of criminal objectives but 1 agreement have 1
conspiracy Separate agreements can be separate charges of
conspiracy- Barnes courts analysis: 1) Informal Nature of
Agreement: Need not take any specific form; 2) Need not be
spoken/written; 3) Conduct itself is enough; 4) May be
contemporaneous with overt acts
Wheel Conspiracy Separate conspiracies linked (spokes) through a
single person (hub) People dont know each other but depend on one
another for success
Chain Conspiracy People may or may not know each other 1
agreement tied to next Manufacturer Distributor Street Dealer
Culpability of Co-Conspirators
Held liable if reasonably foreseeable as coming from planned
crime (Natural/Nec. conseq. rob bank, steal car) Not liable if
you joined conspiracy after crime is done
PINKERTON LIABILITY- Co-Conspirators: (CL)
MPC rejects the Pinkerton rule: conspirator only guilty of crime of co-
conspirator if they could also be held culpable 4 acc.liability too
Ex.) aider and abettor is liable for substantive crime, but does not
become a co-conspirator b/c he was aiding and not in the agreement
Statement of Rule: an overt act of one partner may be the act of all
without any new agreement directed to that act.
Rationales: (1) co-conspirators are considered each other's agents; and
(2) without such a rule, a conspirator behind the scenes could insulate
herself from liability for those acts that help the conspiracy succeed.
Exceptions: Pink.liability does not attach if the substantive offense
committed by one of the co-conspirators:
(1) Was not in fact done in furtherance of the conspiracy;
(2) Did not fall within the scope of the unlawful project;
(3) Was merely a part of the ramifications of the plan which could not
be reasonably foreseen as a necessary or natural consequence of the
unlawful agreement;
(4) Occurred before the defendant joined the conspiracy.
Withdrawal & Renunciation from Consp.
Question of fact Requires affirmative rejection communicated
to co-conspirators
CL: No defense once a conspiracy is formed
Can 1) Shield from liability of others crimes; 2) Begins
running S/L in s favor
MPC 5.03: Affirmative & complete defense if: 1) renounces
crim. purpose; 2) Thwarts the success of the conspiracy
HOMICIDE see MPC 210
Core Elements of Crime: START ANALYSIS HERE:
Actus Reus = Killing; Mens Rea= Depends on grade of
homicide (mental state); Causation=Actual + Proximate;
Circumstances=Another human being
Victim: End of life: Cessation of breathing and heartbeat OR
No spontaneous brain activity
Criminal homicide: Unexcused/unjustified killing of another
human being
*CLs Homicide: 1) Murder (by degrees): Killing someone
with a guilty mind Intent to kill Engaging in conduct with
the knowledge that the conduct will result in someones death
Acting with extreme recklessness; distinguished from
manslaughter b/c it requires malice aforethought (four ways:
(1)intent to cause death or serious bodily injury (2)w/
knowledge that action will cause death or SBI (3)when killing
occurred during the commission of a felony (4)or when the perp
intended to oppose, by force, an on duty officer or jus of peace)
2) Manslaughter: Killing with a less guilty mind, w/out
malice Heat of passion1) Voluntary; 2) Involuntary
1st Degree Murder: Intentional & Premeditated, deliberate
-Most particularly heinous types of killing
-Premeditated satisfied: Lying in wait, torture, WMD, death by
drive-by shooting
2nd Degree Murder: Knowing Catch-all Category
-A killing caused by dangerous conduct & s obvious lack of
concern for human life
-Int. killing that is not premeditated, planned, committed under
special/heinous circumstances NOR in heat of passion
Voluntary Manslaughter: Intentional; Heat of Passion; no
cooling off period Imperfect defense; See passion defense
Note:(MPC 210.3) 1) Heat of passion or 2) Ext. Emot. Disturb.
OR 3) For which theres an imperfect def.
-Lesser included offense of 2nd Deg. Murder; No cool-down
time; Adequate cause by vic; Obj: rsbl person standard;
Subj: THIS person has been provoked
Note: to go from murder to mansl.= I killed V but the killing
was a result of circ which lessen the severity (provoked, heat of
passion or imperfect defense, I did it b/c I thought V was about
to use deadly force not realizing that could have acted less or V
did not intend deadly harm and I overacted
Involuntary Manslaughter: unintentional killing(1) Committed
recklessly;(2) With grossly negligent behavior; doesnt need
premeditation
Felony-Murder: killing caused during commission of or
attempt to commit a felony; imposes vicarious liab. (all felons
guilty! (ex.) guard kills teller in bank robbery, all felons liab, ok
in maj states, min- killing must be done by a felon)
- must be guilty of underlying felony; fel must be inherently
dangerous; sep from killing; killing during or immediate flight
from felony; death must be foreseeable (V taking self protective
action is foreseeable); V must not be a co-felon
Note: MPC 210: Abolishes distinction between 1st & 2nd
Categories of death-eligible killers if they have killed 1)
Purposely; 2) Knowingly, and 3) Recklessly under
circumstances manifesting extreme indifference to the value of
human life (Murder presumed if is engaged in or fleeing from
robbery, rape, burglary, kidnapping)
*MPCs Homicide: not by degree:1)Murder i)intent to kill; ii)
xtreme recklessness; iii)felony murder; 2)Manslaughter
i)intentional form(commit under EMED); ii)reckless killing (
is aware + consciously disregards a subj + unjusti risk of death
3)Criminally Negligent Homicide- mental state=negligently;
should have known about subjective + unjusti risk of death;
NOTES: Premeditation Some reflection about the act prior to
the act -Spectrum from different jurisdictions: 1)Missouri: a
moment in time; 2) Arizona: More than a moment in time; 3)
Cali: i) Planning activity; ii) Motive; iii) Manner of kill.
MPC presumption of extreme indifference 210.2 Murder
What is the legal consequence if the offenses result in murder?
Recklessness and indifference are PRESUMED means
that the defense will have a chance to rebut the presumption!
This is not the felony-murder rule main CL distinction!
CL does not have a REBUTTABLE PRESUMPTION (MPC)
Mares, Felony-Murder Rule & Merger: (case w/ old woman
& house guest who gets stabbed during teen robbery) only
liable for the worse of the offenses they merge; Felonies
giving rise to merger (Wyo): Sexual assault, Arson, Robbery,
Burglary, Escape, Resist Arrest, Kidnap (more MPC 210.2(b))
- flight following a felony counts for felony murder (until has
reached a place of temporary safety temp safety=jury issue)
Misdemeanor Manslaughter Rule: (invol. mansl.)
- abolished in most states by MPC (ex. being culpable for death
that occurs after/during commission of a misdemeanor-imposes
strict liability for serious offense and is disfavored by courts)
ex.) driving thru toll w/out pay not malim in se so death of toll
keeper not misdem-manslaughter (only for malim prohibita)
How MPCs EMED (xtreme mental or emo disturbance) is Diff.
from CL Manslaughter Standard 1. Specific Act of Provocation Not
Required- It is enough if D suffered from condition that caused D to
react in an emotional manner.
2. "Cooling Time" Not an Issue- b/c no specific act of provocation
required, issue of whether too much "cooling time" before killing
becomes moot. D must actually be suffering from disturbance at time
of killing.
3. No Artificial Restrictions on Evaluating Whether an Act of
Provocation Was Legally Sufficient- Because no specific act required,
even words may be enough to trigger D's extreme emotional/mental
disturbance.
4. Objective and Subjective Standard- Trier of fact must determine if
reasonable explanation for the EMED. Determined from: (a) the
viewpoint of a person in the actor's situation; (b) under the circums. as
he believes them to be.
Standard is both:(1) objective (m/b reasonable explanation or excuse
for D's behavior -- D's "idiosyncratic moral values" c/n factor into
determination) and (2) subjective (trier of fact should consider both the
defendant's physical and emotional characteristics in determining
whether reasonable explanation for D's reaction).
DEFENSES Any set of identifiable conditions or circums that
may prevent conviction for any offense
Legal Defenses: Double jeopardy, speedy trial, delay, venue
Factual Defenses: First line of defense is attacking prosecutors
case-in-chief, poking holes in evidence Then, when its s
turn, we see affirmative defenses
Affirmative Defense: must prove by preponderance of the evi.
Complete Defense: If ur successful, you go free; not Insanity
JUSTIFICATION DEFENSES Even IF prosecutor has
proven the crime, there is a reason for this to have committed
this crime; It is ordinarily impermissible to kill another person.
However, if the person has a knife at D's throat, D is permitted
to kill in self-defense. From society's perspective, D's actions
are "justified" given all of the circumstances.
ie.) Self-Defense; Defense of Others; Defense of Property; Law
Enforcement; Necessity (or Choice of Evils)
SELF-DEFENSE CL Elements:
(1) an (a) honest and (b) rsble fear of death or great bodily
harm; Good faith reasonable belief
(2) from an imminent and unlawful threat; necessity
(3) proportional response to that threat; and proportionality
(4) was not the initial aggressor. proportionality
Some jurisdictions have a fifth requirement:
(5) duty to retreat. Proportionality (ND has this Must attempt
to get away before using deadly force Duty only if you know
you can retreat safely Exception: Castle Doctrine: Attacked in
your home; Unless is initial aggressor OR Attacker is co-
worker & at work)
MPC 3.04: must 1) Actually believe the force was necessary
to protect himself from the use of imminent use of unlawful
physical force by another person; AND 2) Belief must be
reasonable under the circumstances
*Differences: MPC belief doesnt have to be rsbl (cant be reck
or neg) Instead of imminence, MPC allows immed. necessity
on present occasion (earlier) Less strict proportionality in
MPC (deadly force for kidnap)
Honest & Rsbl Fear: Must really feel scared & attacked, not
just if the rsbl. person would feel that way If rsbl. person
would think it was a real gun, it can be treated that way
Elements to consider from Goetz: 1) Physical attributes; 2) s
prior experiences; 3) Circum. finds himself in (physical
movements, comments of assailants) Absence of Imminence is
often a problem; Subj. belief is enough
Utilitarian: Better aggressor dies than innocent person Allow
people to defend; Retributivist: Right of an innocent person to
life is superior than that of an aggressor
Self-Defense by an Aggressor:
Ordinarily not allowed Cant create own necessity of force -
Exceptions: Non-deadly aggressor met with deadly force;
Aggressor made effective withdrawal, then is attacked
DEFENSE OF OTHERS
Majority: Rsbl. belief intervention is nec. Minority: Alter-Ego
rule: Stand in shoes of person being attacked- be careful
DEFENSE OF PROPERTY
- prop less valuable than human life
- see MPC 3.06 allows deadly force to defend property
1) Person is being dispossessed illegally &
2) Intruder is committing felony against property
(burglary/arson) and has threatened deadly force to person OR
3) Attempting to use non-deadly force to prevent felony would
expose person to subst. risk of serious bodily harm
CL Rule: use of deadly force not justified to protect property
unless: Make My Day law jurisdictions
- deadly force may be used to protect a resident when residents
home is being invaded & they believe attack is directed toward
persons (even if resident is unclear if attack is focused on
possessions or persons) not justified if house unoccupied
ARREST/ USE OF FORCE
Law Enforcement Defense: Arrest Authority for Police
CL: Without warrant, officers must have:
1) Rsbl. grounds there was felony OR
2) If misdemeanor committed in front of cop
Non-Deadly: Rsbl. belief it is necessary to make arrense for
felony or misdemeanor Even if turns out innocent Deadly:
Majority: Allowed to prevent escape of felon; Minority: Only if
escaping felon is dangerous (armed or committed ser. crime)
Police Self-Defense during Arrest
1) If met with forcible resistance; 2) Entitled to use force,
including deadly; 3) Rsbly fear imminent death or serious inj.
**FOR police Arrest & Use of Force SEE MPC 3.07**
CITIZEN ARREST:
Non-Deadly: Crime committed in citizens presence Only for
misdemeanors involving breach of the peace
Deadly force: More narrow Rsbl. belief offender committed
felony Strict liability (you better be right!) Minority:
Offender committed dangerous felony or is armed
NECESSITY DEFENSE: MPC v. COMMON LAW
Generally, the MPC necessity defense is broader than the
common law defense in three ways: (1)The MPC has no
imminence requirement. (2)There is no absolute prohibition on
self-created necessity. is only responsible for any crimes of
recklessness or negligence caused by her actions. (3) Necessity
is available in homicide prosecutions.
INSANITY - If successful, committed
CL: No death; Assert @ pre-trial; Question of competency for
jury; Burden is C&C
MNaughten Test: Out of touch with reality; Hearing voices;
delusional belief system Excused if: 1) At time of crime; 2)
Result of mental illness; 3) Didnt KNOW what he was doing
(cognitive el.); 4) Did not know it was WRONG Majority: No
if knew he was breaking the law Minority: Even if he knew,
his warped beliefs can be considered Irresistible Impulse Test:
Policeman at the elbow test; Insanity destroyed s power to
choose Extreme Volitional Test: Impulse too strong to resist
No reflection time
MPC: not resp. if: 1) At time of crim; 2) Result of mental
illness; 3) Lacked capacity to a) APPRECIATE the
CRIMINALITY of conduct OR b) CONFORM conduct to law;
Durham Product Test: Jury decides 1) Insane at time; 2)
Would have occurred w/o insanity
EXCUSES No capacity to choose = No blame
Duress: Threat caused to commit crime
Diminished Capacity Twinkie defense: couldnt 1)
Maturely/meaningfully reflect; 2) Comprehend his duty to
follow laws
Entrapment: MPC 2.13: 1) Inducement; gov. POTE; 2)
Predisposition; gov. BARD: 1) Hist. of crim. conduct similar to
this crime; 2) formed design; 3) Ready response; Tests: Subj:
Predisp.; Obj: Govt. Conduct
INFANCY & INCAPACITY
MPC 4.10: No bar to finding of criminal liability but requires transfer
to Juvenile Court if D is under 16; Many jurisdictions, have made this
only a rebuttable presumption
Ages 0-7: Complete Automatic Infancy Defense Child under age
seven does not have the cognitive capacity to form the mens rea for any
crime; Ages 7-14: Infancy Rebuttable Presumption Child is
presumed incapable of committing a crime; equivalent of M'Naghten;
Over the age of 14: No Infancy Defense
ENTRAPMENT
3 Tests: (1)Predisposition Test: if was "predisposed" to
commit the crime and law enforcement agents only offered him
the opportunity to do so, there is no entrapment defense;
(2)Gov. Conduct: Was the government's conduct likely to have
induced a law-abiding person to commit the crime?; (3) 2.13
IMPOSSIBILITY
Factual: No defense; Used to be at CL Hand in empty pocket;
shoots at corpse
Legal: Yes, defense; Law doesnt prohibit the goal sought to
achieve No guilt even if believes they are engaging in
unlawful behavior impossibility (ex. buys baby powder
thinking its cocaine)
ABANDONMENT No defense in most places
If yes, only applies if voluntarily & completely abandons the crime
Must not have already caused serious harm to vic See MPC 5.01(4)
Voluntarily: Genuine change of heart No unforeseen resistance, lack
of essential tool, change to increase likelihood of arrest, etc
Completely: Not merely postponing until you have a better opportunity
Mistake of Fact If can negate spec. intent, you can still rely
on gen. intent
1) Strict liability? If yes, no defense
2) CL or MPC? CL: If spec intent, good faith mistake works; If
gen intent, mistake must be honest & reasonable (blk. umbrella)
MPC: Culpability (knowingly, purposely, etc) must be satisfied
for each element of it
Mistake of Law No defense Exceptions:
Reasonable Reliance Doctrine:
1) reasonably relied on statement of law; 2) Later determined
to be erroneous; 3) Obtained from person or public body; 4)
Respon. for Interpret., Admin, Enforce; 5) Of the law defining
the offense
Failure of Proof Claim: Knowledge the prohibited conduct
constitutes an offense is itself an express element of the crime