Criminal Law Outline

I.
HISTORY AND FUNCTIONING OF CRIMINAL LAW

A) POLITICAL THEORY BEHIND CRIMINAL LAW
Purposes:
 Enforcing the interest of the state in protecting the community
 Vindicating the states interest in protecting its population from various kinds of harm
 Punishment of perpetrator not compensation of victim
Philosophical Arguments:
 Criminal law is the expression of the moral condemnation of the community (stigmatizing
to call someone a criminal) i.e.
o Long term/Lifelong consequences in criminal law
o Deprives actor of liberty and future rights
Approaches to Criminal Law

 Utilitarianism Approach = punish people to affect their behavior (deterrence)
 Retributivists Approach = punish people because they deserve it (punishment should fit the
crime and the criminal -- punishment should be proportional to the harm of the crime)
o Corollary: don’t punish people if they don’t deserve it (retribution as a limiting
principle - applies even if the punishment could be justified on some other
grounds)
o If the judge determines the person was not culpable and another principle of
punishment applies - the judge can use retribution as a limiting principle to decline
to enforce a punishment (if the judge thinks the person isn't culpable, they won't
punish them)
o Compare with Strict Liability in Tort -- should we criminally punish people without
fault?
B) PURPOSES OF PUNISHMENT
 Deterrence:
o Specific Deterrence - deterred the actual person who committed the crime
o General Deterrence - deters anyone else who knows what happened to the
perpetrator
 Incapacitation:
o I.e. If you take someone off the street then they can't commit anymore crimes
 Retribution: punishing them because they deserve it (only punish to the extent that they
deserve)
o Culpability = blameworthiness - responsibility for the crime (how involved someone
was in the crime)
o Limiting principle
 Rehabilitation: punishing someone to change their ways and make them a better person
(changing the person on the inside) - reform
C) FUNCTIONING OF CRIMINAL LAW

Elements of a Prima Facie Case
o Actus Reus (action elements/conduct) = voluntary behavior that is required to commit the
offense
Levandowski Criminal Law Outline pg. 1
o Mens Rea (mental elements/intent) = mental state required to commit the offense
o Causation = connection between D conduct and the harm/result produced (if connection is
required - not an element of every crime)
o Concurrence = simultaneous conduct + intent (only applies to some cases -- MR and AR must
coincide)
Burden of Proof = burden of persuasion (ultimate burden)

 Burden of proving the prima facie case - burden is on the plaintiff
 Prima Facie Case = must prove all the elements of the offense
 Prosecution goes first - presumption of innocence + prosecution bears burden of proof
Standard of proof = the level of certainty the fact finder must reach before ruling for the party with
the burden of proof (beyond a reasonable doubt)
 Reduces wrongful convictions
 Highest standard because stakes are higher for accused (liberty and stigmatization)
 Commands the respect and confidence of the community
 Authority = Winship, 14th and 5th amendments (SC held constitutionally based)
Types of Defenses:
 Prima facie defense/Case in chief defense - creating a reasonable doubt about some
element of the crime
 Burden of proof on prosecution
 Affirmative Defense (Extenuating Circumstances) - admitting to the crime but providing a
justification - admits that all of the prima facie elements of the crime can be satisfied but
there is another reason for not convicting
 Buren of proof may be placed on defense by a preponderance of the evidence
 Prosecution is not allowed to appeal an acquittal
Standards of Review on Appeal

o Error in instruction - did judge correctly instruct the jury on the law
o Admissibility of evidence - trial judges' rulings on admissibility of evidence
o Questions of Law - de novo (considering questions on their own without considering the
trial judge's reasoning) - questions of fact are only for the jury
o Insufficient evidence to convict - was there enough evidence to prove each element of
the offense (if no, jury made a mistake)
o Judges ask whether the reasonable juror standard is satisfied (would a reasonable jury
convicted on the facts?)
o Judges just set the outside limits of jury precaution
Jury Nullification: jury has a right to ignore the law (i.e. if a jury issues a verdict contrary to the
law)
o Ultimate check on the legislature -- juries wont convict if they think the sentence is too
high
o Issue regarding whether the judge has an obligation to tell a jury they can nullify
o Defendant appealing a jury conviction contrary to law would appeal on grounds of
insufficient evidence (doesn't work the same way as the jury refusing to convict)
D) ROLE OF COUNSEL
 Both prosecutors and defense attorneys have an obligation to seek to improve the legal system
 Central job for both: plea bargaining
o Ethical Standards for the Defense Function (ABA)

 Function of Defense Counsel
 Trial Lawyers Duty to Administration of Justice
 Argument to the Jury
o Ethical Standards for the Prosecution Function

 Function of the Prosecutor
 Decision to Charge
 Discretion in the Charging Decision
 Role in Sentencing
E) INTERPRETING A STATUTE
o Literalist Analysis: plain meaning
 I.e. Dictionary definitions, context, Canons of construction
o Purposive Analysis: what was the legislature trying to accomplish when it passed this law
 Interpret the law consistent with that legislative intent
o Canons of Statutory Construction
 I.e. Mental elements generally travel forward but not backwards
 I.e. A statute with general words -- general words at the end of a list only include items of
the same general type (ham sandwich would not be considered a treat)
 Always looking at legislature’s intent NOT reasonable person standard
F) HOW TO READ A STATUTE

EX: "Whoever purposefully takes a cookie from the cookie jar of another without permission is
guilty of a crime
1. What is the crime?
2. What are the elements of the crime? Diagraming a Statute - how the elements relate
 Two Types of Elements:
 AR: action elements
 MR: mental elements
 How do you determine the elements? -- start with the statute
3. Identify the Action Elements (AR) - what the actor has to do to be guilty of a crime
 Cannot give anything not in the statute (exact wording)
 EX:
 Takes a cookie
 From cookie jar
 Of another
 Without permission
4. Identify the Mental Elements (MR)
 EX: Purposefully (intent) - modifies the word takes, did the person intentionally take?
 What is the mental attitude that applies to every one of the action elements? What
attitude did the person have to have when they did each of the action elements?
(legislative interpretation)
 Does "purposefully" travel to the other parts of the statute?

I. LIMITATIONS ON PUNISHMENT
A) PRINCIPLE OF LEGALITY
Purpose = Prohibits retroactive crime creation - You do something and then after the fact you
make it a crime
 Indirectly prohibits judicial crime creation - court doesn't get a case until after someone
has done something
 I.e. Rex v Manley: English case where a woman made up a fake crime - judge then charged
her with 'public mischief' which was not a crime at the time
 Preventing vindictive and arbitrary use of the criminal law by the different actors of the
judicial system
 Maximizes individual liberty (avoiding "chilling effect" - speech or conduct is suppressed
by fear of penalization)
 Preserving the right to fair notice (retributive concern)
B) VOID FOR VAGUENESS DOCTRINE

Statute must provide:
1) Fair notice (reasonable/ordinary person must not have to guess its meaning)
o Trap for innocent acts
o These activities forbidden are historically part of the amenities of life as we have
known them
o Casts too large a net
OR
2) Cannot invite arbitrary and discriminatory enforcement/abuse of discretion

o Constitution only allows arrests based on "probable cause"
o No standards governing the exercise of the discretion granted by the ordinance the
scheme permits and encourages an arbitrary and discriminatory enforcement of the
law
o Nets making easy the roundup of "undesirables:
Cases:
 Papchristou v. City of Jacksonville  convicted of violating a vagrancy ordinance
 Kolender v. Lawson  statute requiring loiterers to provide ‘credible and reliable’
information (void)

I. PRIMA FACIE CASE
(AR/MR/CAUSATION)
1) ACTUS REUS REQUIREMENT

A) TYPES
 Conduct  action that constitutes the crime (i.e. taking a cookie)
 Circumstances  details re the action (i.e. from the cookie jar of another)
 Results  harm that must be produced to constitute the crime (i.e. baking a cookie that causes
indigestion of another)
o I.e. Purposefully causing the death of another
B) THOUGHT CRIMES
 Prohibition against prosecuting "thought" crimes = D cannot be convicted just for thinking
about something
o I.e. possession does not violate this prohibition
o Purpose: no harm or threat to society + not a culpable thing + concern about protecting
people from abuse by the state or thought control/policing
 Reasoning for requiring acts/prohibiting thought crimes:
o Est culpability - culpable choice
o Est dangerousness
o Control govt power (avoid thought control)
 Conduct/Thoughts = continuum (Dalton Case Story about child porn)
 One way our govt reconciles not punishing thought crimes is by inchoate crimes (attempt)
C) VOLUNTARINESS
 Voluntary = "volitional; a movement of the body willed by the actor"
 Involuntariness will exculpate a defendant (not blameworthy and no conviction) -- Voluntary
act is required
 Rationale: if you didn't act voluntary, you're not very dangerous, culpable, or deterrable AND
unfair to punish someone with no control
 Types of involuntary acts = Sleep Walking, Physical Compulsion (reflex), Disease,
 Types of voluntary act = habits, mentally ill choices, hard choice (duress), results due to
intoxication
 Voluntariness is less connected to the person's intent or mental state - an act does not need to
be intentional to be voluntary
 Not every act by a D needs to be voluntary for them to be convicted of a crime - only the act
that caused the actual harm
 Habitual acts/unintentional acts are not considered involuntary
 Martin
D) OMISSIONS
 General Rule = No duty to act UNLESS:
o Special Relationship (i.e. parent/child)
o Contract (i.e. nursing home binds itself to care for residents)
o Statutory Duty
o Creates the Risk
o Voluntarily Assumes Care
o Good Samaritan Statute
o AND must have aware of the danger AND been physically capable of acting
 Only creates a duty to use RCUC
 If an omission is found  then replaces voluntary act and must prove MR
Cases:
 People v. Beardsley
2) MENS REA
 AR and MR must coincide
A) How to Apply the MR:

 Find MR element in statute
 Determine what AR element it modifies
 Take the established definition of that MR term and apply it to those AR elements
 Apply the resulting statutory requirements to the facts of a hypo to see if actor had the
required MR
B) Culpability Principle  why MR is required

 Should have culpability before stigmatizing someone and imprisoning them
 Wrongdoing must be conscious to be criminal (conscious choice is culpable)
 Fairness - it's not fair to punish someone who didn't make a culpable choice
 It’s worse to do something on purpose and with an intention to hurt someone else rather than
carelessness – must be morally blameworthy
 Consciously deciding to cause harm to society or someone else
 No point in punishing them - they can't be deterred and don't need to be rehabilitated
 Motive is not the same as intent required for MR
C) STRICT LIABILITY
 Where no MR is required
 Strict Liability is allowed for:
I. Public Welfare Offenses (malum prohibitum) - things prohibited but there is not
really culpability
 I.e. includes food and drug manufacturers that ship out unsafe items
(consumer protection), traffic violations, alcohol-sale laws, statutory rape,
felony murder
II. Harms of neglect (failure to do something)
 Risk creation vs. harm producing (potential for the harm not that actual harm
was actually produced)
 Low penalties + little stigma
 These offenses are of particular importance to public health and safety issues
AND are in particular need of deterrence
 Case  Morissette (When a statute is silent as to MR the presumption is that a mental state
is required for criminal liability)
MPC APPROACH
 If no MR specified – default to recklessness
 NO SPECIFIC/GENERAL INTENT DISTINCTION IN MPC
 Does not recognize strict liability offenses except for (1) violation not punishable by
imprisonment OR (2) felony murder charge

Purpose (Highest Level)
 Modifies AR conduct and result elements  purpose keeps its ordinary meaning under the
MPC Section 2.02(2)(a)(i)
 Modifies AR circumstances elements  purpose becomes knowledge here under Section
2.02(2)(a)(ii)
o Knows or hopes or believes that their AR would cause the AR result
 Defendant consciously desired to bring about the harmful result or hoped that it would
occur
Knowingly
 Actor is aware of nature of her conduct and of the attendant/surrounding circumstances 
Section 2.02(2)(b)(i) (conduct and circumstances elements)
 Actor is aware that practically certain her action will cause the result  Section
2.02(2)(b)(ii) (result elements)
Recklessly
Definition = Actor is consciously aware of a substantial AND unjustifiable risk that the defendant’s
conduct will cause a harmful result (big risk and proceeds with the act)
 Risk is substantial
 Risk is unjustifiable (i.e. some risks are justifiable due to social benefits)
 Aware of the risk = subjective
 A substantial risk that a RPP would have avoided = objective
Criminal Negligence
 Creation of substantial AND unjustifiable risk of harm (i.e. creates a risk that grossly
deviates from what a RPP would foresee and avoid)  objective standard
o EX: There was a substantial risk the paper did not belong to the D and the RPP
would have been aware of that risk
 How foreseeable was the harmful result?
 How serious was it?
 How probable was its occurrence?
 How easy/difficult would it have been for the defendant to refrain from doing the act
COMMON LAW
 If no MR specified, default to General Intent
Evolution of CL MR
 3 stages for how the courts approach MR:
o General moral blameworthiness (R v. Cunningham)
o Culpability for each offense (no piggy backing  using the MR that was present for
one AR and also using it for a second AR that occurred as a result of the first act)
o Culpability for each element (introduced by the MPC- each AR element must have a
MR element that modifys it)
 Two major changes for common law MR:
o Terminology -- move to MPC
o Ideas about how culpability of the actor needs to be proven
 Objective = holding an individual to an external standard (requires conforming to a societal
standard)
 Subjective = requires a specific mental state (wrongful state of mind)

SPECIFIC INTENT
Proof of special MR, to wit:
1. Purpose to do future act OR
 Breaking and entering dwelling of another with intent to commit a felony therein
2. Purpose to achieve further consequences OR
 I.e. "Taking a cookie from the cookie jar of another with intent to anger"
3. "knowledge" required re circumstances element
 I.e. "Receiving stolen property with knowledge that it is stolen"
Rationale for SI: Assuring culpability where conduct is ambiguous
GENERAL INTENT
 any offense for which the only MR was a blameworthy state of mind -- only needs to prove
they understood or were aware of the nature of the act they were doing (low threshold)
 Intoxication - must figure out what element is being implicated in the claim (what part of
the MR the statute requires)
o Intoxication is admissible to negate the existence of MR as to a general intent
element
o i.e. People v. Atkins
INTENT/PURPOSE
 His or her conscious object or purpose to cause a certain result or to engage in certain
prohibited conduct OR
o Conscious Object = goal
 Knows to a virtual certainty (KVC) that one's actions will cause that social harm
KNOWINGLY
 Aware of the fact OR
 Correctly believes the fact exists
 Willful Ignorance Rule = Knowledge can be proven by showing willful ignorance by:
o Actor was aware of facts making it virtually certain that the fact was true
o Actor deliberately refrained from acquiring positive knowledge of the fact
o i.e. Jewell  not to allow an actor who good as knows what's going on to cheat the
system by trying to avoid positive knowledge
D) NATURAL + PROBABLE CONSEQUENCES DOCTRINE

 conduct the D engaged in was to cause or intend the injury then we can infer they had the
intent to kill
 Allows you to infer intent to kill - only applies to murder
 If the natural and probable consequences of the D conduct is death
 Broad meaning = moral culpability/blameworthiness
 Narrow meaning = mental elements of the particular offense
o Legal meaning: what is the MR that the statute requires (how does the law what the
person has to be thinking?)
o Factual meaning: what did the D actually think? Factual MR (subjective)
Cases:
 Fugate

3) CAUSATION
Definition = connection between a culpable act and the harmful effect it produces
A) Types:
1. Actual ('but for' causation)  "but for (without) the defendant's conduct, the harm would
not have occurred"
o There can be more than one actual cause – if any act would have caused the harm on
its own then it satisfies actual causation
o D that accelerates an inevitable harm to the victim is still liable for actual causation
(i.e. Physician Assisted Suicide)
2. Proximate (legal causation - intervening factors)

o Was the victims harm the natural and probable consequences of the defendant’s
conduct?
 Was the harm reasonably foreseeable?
 Was the harm not too remote to fairly hold the defendant responsible?
o If D's behavior is the direct cause of the injury, then legal causation is established
o Connection must be direct and substantial
 Direct = no intervening causes
 Intervening Causes = something that occurred between the D action and the
resulting injury
o Connection must not be remote or attenuated
B) Intervening Causes TEST:

 Was the intervening cause superseding
 Was the defendant the proximate cause?
Pure Foreseeability Test:

 If the ultimate harm was foreseeable result of what D did, then D is the proximate cause
(minority approach)
o Ultimate Harm Interpretations =
 The social harm that resulted OR
 Intervening cause
Foreseeability Exceptions:
 The question: was the result of D's conduct foreseeable?
 Interpretations of "result" as used above:
o "result" is the social harm that resulted
o "result" is the intervening cause
Examples of Intervening Causes:

 Pre-existing medical condition  dependent intervening cause (eggshell victim)
 Poor medical treatment  dependent intervening cause (unless gross negligent treatment)
C) Causation Outline
 Required: both proof of actual and proximate causation
 Actual (but for) Met?
 Proximate Cause met?
o Direct + substantial connection
o Intervening Cause?
 Dependent or independent
 Relevant foreseeability exception met?
 Alternative approaches:
 Foreseeability of IC OR
 Foreseeability of social harm caused
 Conclusion
PROXIMATE CAUSE (PC) EFFECT OF AN INTERVENING CAUSE (IC)

Type of Act Rule ..Unless.. Exception
Independent D is not PC; IC is Foreseeable
(coincidental) superseding
Dependent D is PC; IC is not Extremely
(responsive) superseding Unusual/Unforeseeable
Independent Superseding Cause = breaks chain in causation UNLESS foreseeable
Cases:
 Henderson v. Kibble
 State v. Govan

I. MISTAKE DEFENSES – CASE IN CHIEF
1. MISTAKE OF FACT
Common Law
o What element of the MR would D's mistake effect?
o Is the element that is affected a SI or GI?
o Apply relevant rule:
 SI = honest mistake
 GI = honest AND reasonable
o Specific Intent - honest mistake negates the specific intent required for commission
of the offense is a complete defense (mistake need not be reasonable only made in
good faith)  must be honest
o General Intent - mistake of fact must be both honest and reasonable to negate an
element of the crime  must be honest AND reasonable
Model Penal Code

o What MR element is affected? / What is the MR for the AR term affected?
o Mistake of fact is just the flipside of MR  does the mistake negate the mens rea
required for liability Section 2.04(a)
 If no MR then imply recklessness as the MR
o Case  People v. Navarro
Statute requires Specific Statute Requires General

Intent Intent
Reasonable Mistake of other Law NG G
UnReasonable Mistake of other Law NG G
Reasonable Mistake of Fact NG NG
UnReasonable Mistake of fact NG G
2. MISTAKE OF LAW
 General Rule = mistake of law is not a defense "ignorance of the law is no excuse"
 Even if the person reasonably believed the conduct is reasonable  Effect: Strict liability!
Exceptions where Mistake of Law can be used:

1) Reasonable reliance on official statement of law
 Acceptable Sources: those "charged with interpreting" the law
(including a high court or attorney general)

 Unacceptable sources: private counsel, expert in the field (eg law
professor)- even trial court
2) Mistake that negates requires MR re legality (statutes where knowledge of illegality is an

element)
 If the state specifically requires the ∆ have a MR re illegality of her
conduct, then mistake negating that MR is a defense
 EX: MI campaign finance act: "illegal to make contribution over 20"
and "knowing violation of this §" (narrow cases that require
knowledge)
 My mistake about that MR means I should have a defense
3) Fair notice exception (Lambert)

 § 52.38 LA Municipal Code
o Definition of a convicted person
o Unlawful for a convicted person to remain in LA for more than 5
days w/o reg.
 Appellant arrested on a separate charge and found in violation of the
registration law -- Court considered:
o Is it a crime of omission ("wholly passive," "mere presence") 
weaker prong
o Morally neutral conduct ("innocent")
 Wouldn’t expect it to be regulated (286-7)
 Wouldn’t suggest need for inquiry (287)
 Not clear that both would always be required to satisfy
the Lambert fair
 Also: actor neither knew nor probably knew re duty
(287)3.
 Fair notice exception (Lambert):
o Establishes a constitutional limit
o Mistake of law rule
o And use of strict liability
3. MISTAKE OF OTHER
 Specific Intent = need be honest (valid defense)
 General Intent = defense invalid
 MPC = same approach

 Mistake about legal rule that’s not part of the offense charged - another body of law
 Somehow affects the meaning of the charge at issue - meaning of the law they are charged
under or the applicability of the law
 In Mistake of Fact, Mistake of other law, also need to look at SI and GI

o EX: Larceny = taking property of another with intent to permanently deprive that
person of their property
o Mechanic's lien - woman takes her car to get fixed, and doesn’t pay the bill, the
mechanic has a legal right to her car until she pays the lien, she goes back later and
takes the car off the lot. She didn’t know of this mechanic lien law. Did she commit
larceny?
 AR = taking the car of the lot = depriving the mechanic of his property.
 Mistake = did she have culpable mens rea to "taking property of another" b/c she
thought it was her car
 Intent = how could she have intent to permanently deprive someone else of their
property because she thought it was hers?
 SI= must be honest need not be reasonable (same as mistake of fact)
 Look for another body of law and how it applies to that particular person and defines that
situation
o Rape hypo = CL only rape if it was non-consensual sex with a female who is NOT his
wife
 Man thought he was legally married to a woman, and raped her
 Marriage is invalid
 Mistake= not his wife (AR)
 ∆ claims that he has a legal defense because he is mistaken about whether or not
he was married (mistake of other law, didn’t know marriage was legal)
 GI-no defense and don’t get to raise mistake at all
Fact Different Law Law
CL: Specific Intent Honest <-- [same as] No Defense unless fits an
Element exception
CL: general Intent Honest and [same as]--> No defense- unless fits an
Element reasonable exception
MPC Negates MR <-- [same as] No defense- unless fits an
exception

I. HOMICIDE - MURDER
MPC APPROACH – No Degrees
1) AR = same as in CL (Causes the death of another human being)
 Section 210.0(1) - CL "born alive" rule defining human being for the purposes of homicide law
as a person who has been born and is alive
 Pre-mediation does not factor in
 GBH is not encompassed
2) MR:
 Purpose
 Knowledge OR
 Recklessness  under circumstances manifesting extreme indifference to value of human life
(consciously disregards a known risk
3) Causation:
 Direct and substantial  conduct was the actual or proximate cause of the death
COMMON LAW APPROACH – First/Second Degree

Definition = causing death of another with malice aforethought
AR = causes the death of another human being

o Death includes brain dead
o Raises question of when life legally begins/ends  today there are fetal homicide laws
MR = Malice Aforethought:
o An intent to kill (express malice) OR
o An intent to commit serious bodily injury OR
o An abandoned and malignant heart or depraved heart (aka depraved heart murder i.e.
drive by shooting) OR
o Felony murder rule applies
**any malice aforethought shown in any way besides express is implied
Aforethought  pre-mediation (usually a reasonable amount of time)
Murder = Killing with Malice Aforethought

Express Malice Implied Malice
Intent to Kill (1st or 2nd degree, Intent to cause SBI (2nd)
depending)
Depraved Heart Murder (2nd)
Felony Murder (1st or 2nd degree
depending on felony)

FIRST DEGREE MURDER
Purpose of degrees of murder = to show some murders are more culpable than others
Requirements:
1) Murder involved willful premeditation and deliberation OR
o Premeditation = killer must have reflected upon and thought about the killing in
advance (poison, lying in wait, torture)
o Deliberation = quality of the accused thought process
o Willful = voluntary, intentional
2) Enumerated Means OR
Common Enumerated Felonies (triggering 1st degree FM)
o Burglary
o Arson
o Rape
o Robbery
o Kidnapping
o Sodomy
3) Felony murder involving enumerated felony (i.e. rape) (no proof of intent to kill required)
Case  Gilbert v. State
FELONY MURDER (1ST DEGREE MURDER)

AR = death occurs during the commission of a felony
 During = includes prior and fleeing a felony AND
 Commits a felony (AR for that felony)
 Only certain felonies suffice (majority of jurisdictions)
MR = NONE (strict liability)  but must show MR for underlying felony
COMMON LAW APPROACH (don’t need to know MPC)

 Form of 1st Degree Murder
 Historical Context  Originally all felonies were punished with murder
 Traditional Rationale for Felony Murder = Malice aforethought is assumed from the
commission of the felony  felony supplies the malice
 Killing occurs by anyone during the course of a felony (i.e. victim killing someone/police officer
killing someone)
 Effect  allows a prosecutor to charge a defendant with murder even if the defendant lacked
malice aforethought (piggy-backing MR/strict liability – offends culpability principle)

LIMITATIONS ON FM
1) Inherently Dangerous Felony (IDF) = those felonies that by nature are impossible to commit
without a substantial risk or high probability that death that will result
I. Abstract approach  consider general type of offense (judge)
II. Circumstances approach  consider specific manner in which committed in this
case (jury)
 Rational = a person who commits an inherently dangerous felony knows that it
presents a risk of death (justifies imposing murder if death results)
Inherently Dangerous Felonies Include:

 Robbery
 Burglary
 Rape
 Arson
 Kidnapping
Case  People v. James (cooking meth)
2) Res Gestae Requirements

a) Death must occur during felony (in terms of close in time and distance)
 During felony = between attempt and flight/escape
 Close enough in time and distance/geography
b) Casual connection between felony and homicide

 Some states use 'but for' causation
 Other states (like King) require a closer causal connection such i.e. the conduct
producing the death has to be in furtherance of the felony
Case  King v. Commonwealth (guys smuggling weed); People v. Stamp
3) During felony = between attempt and flight
4) Casual connection between felony and homicide

 Limits liability of FM (only those deaths ‘but for’ related to the commission of the felony
are those deaths liable for FM)
 proximate cause (foreseeable consequence)  broader sphere of liability than agency
rule
5) Independent Felony Requirement (Merger Rule)  Felonies that are assaultive in nature
'merge' with the homicide and cannot serve as the basis for a felony murder conviction
 A felony cannot be a predicate for felony murder unless the felony is legally distinct from
the act of killing
 Precludes felony murder charges based on felonies that inherently require personal injury
(i.e. serious bodily harm)
 EX: if someone stabs another and they die as a result they could be charged with voluntary
manslaughter and aggravated assault  CANNOT tack on FM to the aggravated assault
with Merger Rule
 Must prove malice if FM rule inapplicable
 Rational:
o Courts don’t want the conduct of the felony boot strapping into murder
o i.e. if the felony is burglary it isn't something that would cause the bootstrapping of
manslaughter into murder
o We don’t want all killings to be murders - we base homicide convictions on the MR --
why we have degrees of murder
 Case  Rose v. State
6) Agency Rule  felony murder liability applies only to killings committed by a felon or those
associated with her (i.e. accomplices) not to those by third parties
 Homicide is committed by one of the felons AND the homicide is done in furtherance of the
felony = all co-felons are responsible (each is considered to be the agent of the other)
 Killing must be directly caused by the felon
 Might or might not apply (courts are split)
 Exception  felon uses victim as a human shield
Effect of FM
 Strict Liability Effect:
o If D reasonably caused the death (i.e. a RPP would not foresee the result)
o If it was a pure accident
o If the death was a unforeseeable result of the felony
 No self-defense available
PRO/CON OF FELONY MURDER

IN FAVOR OF AGAINST
Deters accidental/N killings during Can't deter unintentional acts and is
felonies (strongest argument) unnecessary
Results matter; greater harm warrants Results don't justify increasing to murder if
greater punishment insufficient culpability
D is sufficiently culpable; a felon takes risk Violates culpability principle; P must
of bad outcome of the crime prove culpability for death (strongest
argument)

Eases prosecution's burden Not needed and not enough to justify murder
SECOND DEGREE MURDER

 Anything that is not the MR for first degree murder
 Non-enumerated felony
 Intent to kill without premeditation/deliberation
 Depraved heart murder
Case  State v. Brown
DEPRAVED HEART MURDER (2ND DEGREE MURDER) – MPC + CL

Malice is implied when the individual who kills acts with an abandoned and malignant heart  treated as
second degree murder
Extreme Recklessness with respect to risking human life =

o Implied when: it can be shown that the defendant acted with gross recklessness and
manifested an extreme indifference to human life  meaning that the defendant
realized that his actions created a substantial and unjustified risk of death and yet went
ahead and committed the actions anyway
o Regular Reckless = conscious disregard of a substantial and unjustifiable risk  can be
the basis for a homicide conviction (involuntary manslaughter which in some states can
be based on mere criminal negligence)
o Courts sometimes use B*P><L to evaluate extreme recklessness
Requirements:
1) D is reckless (i.e. is aware of substantial and unjustifiable risk of death) AND
o Some courts require gross R: aware of likelihood of death
o Can’t talk about recklessness in terms of foreseeability (implies negligence)
o If a problem does not give you facts that suggests they are aware of the risk then don’t
read it into the problem
2) Her conduct manifests extreme indifference to value of human life (aka conscious disregard
for life)
3) D commits an act likely to cause death (most states don’t require)
Cases  Commonwealth v. Malone (Russian-Roulette game); People v. Knoller (dog biting case)

II. HOMICIDE – MANSLAUGHTER COMMON LAW
Voluntary Manslaughter = intentional killing that would normally qualify as second-degree murder, but
which is reduced to the lesser crime of voluntary manslaughter through the application of a partial
defense (i.e. provocation, imperfect self-defense, or diminished capacity)
Subjective Elements: Objective Elements: Death Casually

Acted Under Actual In Response to a Legally Adequate Connected to
Provocation Provocation Provocation
Early CL  Acted in a sudden  In/Out categories (i.e. mere Not Required
(Categorical) heat passion (HOP) words)
Modern CL  Acted in HOP and  RP would have been provoked Required
(RPP) hadn't cooled off and RP wouldn't have cooled off
yet
Early CL Provocation  Categorical Test (minority CL approach today)

 D acted in heat of passion - sudden reaction/immediate (subjective element; fact question
for jury) AND
 In response to legally adequate provocation (legal question for judge) -- Legally adequate
=
 IN: aggravated assault or battery; witnessing serious crime against close relative;
illegal arrest; mutual combat; or witnessing adultery by wife
 OUT: mere words except in some states where spousal communication of adultery is
IN
VOLUNTARY MANSLAUGHTER -- MODERN COMMON LAW (Reasonable Person Test)

1) The D acted in a heat of passion (actual provocation - subjective)
2) The D was reasonably provoked into a heat of passion (legally adequate provocation -
objective)
3) The D did not have sufficient time to "cool off" between the provocative event and the killing
 D actually had not cooled off (subjective)
 D can get re-provoked
 Cumulative series of provocation (minority jurisdictions)  People v. Berry
4) A reasonable person in the D shoes would not have had sufficient time to cool (objective)
5) Must be a causal connection between the provocation, the passion, and the killing (D must
have killed the provoking person and not an innocent third party)
In Effect:
o Some courts: time passed is not too long as matter of law (objective)
o Physical traits and demographics = subjectivation of the standard
o Much more power given to the jury than in the early CL
o General Rule = words alone are not adequate provocation
A. UNLESS  words that inform the defendant of an act that would have
constituted adequate provocation had the defendant seen the act in person
(minority jurisdictions)
 Imperfect Self Defense

Defined = mitigation doctrine reducing murder to voluntary manslaughter
ONLY applies to murder not to other offenses where D raises self defense
WHERE:
o D acted with honest but unreasonable belief re one or more elements of self-defense OR
o D responded to initial nondeadly attack (by V) by wrongfully escalating to deadly force
INVOLUNTARY MANSLAUGHTER – COMMON LAW

Common Law Approach
A) Accidental death resulting from:
o Death results when the D does a lawful act but in a culpable manner (recklessly/gross
negligence)
o Death results when D does an unlawful act that doesn’t rise to a felony (misdemeanor
manslaughter rule – MR is irrelevant)
B) Requirements:
 Recklessness or criminal negligence in some states
 Creation of substantial unjustifiable risk of harm
 Creates a risk that grossly deviates from what a reasonable person would foresee and avoid
Involuntary manslaughter
a. Recklessness OR
b. Criminal negligence

III. HOMICIDE – MANSLAUGHTER MPC
MPC doesn’t use “involuntary/voluntary” manslaughter or “provocation”
AR  causing the death of another human being … same AR as CL

 Must be a homicide which would otherwise be murder
MR  Criminal Homicide = purposeful, knowing, reckless, or negligent death of another human being,
thus calling into play the four MR elements defined in §2.02
(1) it is committed recklessly (but without circumstances manifesting extreme indifference to
the value of human life) AND
(2) a homicide that would otherwise be murder "is committed under the influence of extreme
mental or emotional disturbance for which there is reasonable explanation or excuse"
o Does not require provocation or cooling off period ‘
o Reasonableness = person in D situation under the circumstances as the D believes them
to be
Things different under MPC

The cooling off requirement – so cumulative effects while be acceptable
Misdirected Retaliation – we don’t care whether the extreme emotional distress was caused by somebody
or somebody else
Mere words – lacks this requirement
The MPC is a standards approach – give it to the jury and let them have their field day
Homicide must be committed “under influence of” EED – thus a very diluted form of causation (passion
linked to death)
Subjectivization - is it a reasonable explanation for being so upset
Rationale behind manslaughter

 Partial defense - mitigating from second degree murder down to voluntary manslaughter
 Provocation = ONLY mitigation of murder to voluntary manslaughter where D was provoked
to 'heat of passion' (cannot raise for any other crime)
 (partial) justification: "I was entitled to be upset" - not "I was entitled to kill" OR
 (partial) excuse
 Whether the provoking conduct is something that could have caused a reasonable person to
get so upset that they lost control over themselves
Cases  People v. Barry; Commonwealth v. Carr

I. DEFENSES – SELF DEFENSE
Types of defenses:
1) Case-in-Chief defenses = mistake of fact + unconsciousness
2) Justification Defense = D claims they did the right thing or took the most appropriate action under
the circumstances (i.e. Self Defense, Defense of Property, Necessity, Defense of Habitation)
o Conduct is socially acceptable (even desirable)
o Focuses on the correctness and justness of the defendant's action
o Objective = would apply to anyone acting in the same way
o Must be disproved by government
3) Excuse Defenses = whether the individual defendant is blameworthy or culpable  act is wrong
but asks to be forgiven for another reason and because punishment isn’t merited (I.e. Insanity,
Duress)
o Personal = apply to defendant’s individual circumstances
o Must be proved by defendant
COMMON LAW
1) He or she was threatened with imminent threat of unlawful force
o Imminence must be honest AND reasonable
o Imminence arises in victims of domestic abuse frequently (Battered Wife Syndrome)
2) The force he or she used was necessary to repel the threat
 Can consider characteristics of defendant and victim (i.e. whether the victim was
smaller than defendant)
3) The force used was proportionate to the threatened force
o Traditionally  deadly force could not be used against a non-deadly threat
 Deadly Force = likely to cause serious bodily injury or death
 Serious Bodily Injury = imperils human life; seriously interferes with health or
comfort; causes protracted loss or impairment of a bodily member, organ, or mental
faculty
o Modern  permitted to use deadly force against:
 Threats of imminent death
 Serious bodily harm
 Specific offenses like rape, kidnapping, armed robbery
 Against a home intruder (Castle Doctrine)
4) Defendant must not have been the initial aggressor
o Initial Aggressor = can’t use deadly force unless it is an escalation of force from the other
person
o Can start out as initial aggressor and then withdraw and use self-defense
1-3 are not absolute (D does not have to be correct in belief only needs to have reasonably
believed self-defense was necessary  mistaken belief OK)
o Reasonable Mistake = self-defense applies
o Unreasonable Mistake = self-defense is barred (some states will allow imperfect self-
defense)
B) Duty to Retreat  Majority Rule

 No duty to retreat
 Pushed by the NRA
 Stand Your Ground Law = eliminates the duty to retreat in certain zones
o If the actor is a person who reasonably responded to force by using deadly force that
person is entitled to self-defense even if they knew they could retreat (deadly force is not
a last resort)

C) Duty to Retreat  Minority Jurisdictions

For a successful self-defense claim…
 Reasonable belief in imminent threat and necessity of force used AND
 Not possible to retreat
o No safe retreat available OR
o No knowledge of available retreat
 Exception = Castle Doctrine (need not retreat when threatened in one’s own home)
o Raises issues as to what constitutes the home  i.e. Car? Work?
Cases:
People v. Gomez
Jenkins v. State
State v. Kelly

I. ATTEMPT
Not a separate offense on its own  always tied to a 'target offense' and then merges into the completed
offense
Types of Attempts:
Neither achieves its criminal goal
 Completed = all conduct completed that was intended (i.e. Someone aims a gun at another and
pulls the trigger to shoot but misses)
 Incomplete = not all conduct intended

COMMON LAW
Attempt = an act done with intent to commit a crime and tending but failing to affect its commission
AR =
Must go beyond threshold of merely preparing for the crime  must be a step in actually preparing to
complete the crime
TESTS (focusing on the conduct remaining to be done)

1) Direct and Unequivocal Movement Towards (unequivocal direct step pg. 799): engaging in the
underlying crime (focuses on the conduct completed) -- "an unequivocal and direct step"
2) Commencement of the Consummation 798, 799: the beginning of the completion of the crime
(focuses on what remains to be done) --- "the beginning of the breaking element"
3) Dangerous Proximity Test (the rule of immediate nearness): come close to completing the AR of the
underlying offense
 Looks at seriousness of crime
 D geographic proximity (how close to completing the crime in time and space)
 More dangerous the crime the more remote the proximity can be
MR =
1) MR of the underlying target offense
2) MR of SI as to the attempt  D must intentionally act with the purpose of accomplishing the crime
or harmful result
3) If the target crime requires existence of certain circumstances the D must intend those
circumstances (D cannot be liable for a reckless/negligent attempt)
Meaning:
o Conduct Elements = intent to commit all conduct elements of the AR
o Results Elements = intent to commit any results elements of the AR
o MR required by the underlying offense to any circumstance’s elements (i.e. no
heightened intent as to those)
 Attempt is a SI even if underlying offense is general intent crime (Harris)
MPC APPROACH
AR =
Attempt requires a substantial step towards the culmination of the commission of the targeted offense
(Section 2 - pg. 802)  does not need to fit in a subsection to discuss substantial step (least favorable test
to defendants + looks at what actions have already been taken)
 2a = lying in wait
 2b = enticing
 2c = reconnoitering the place
 2d = unlawful entry of a structure or vehicle
 2e = possession of materials to be employed
 2f = possession, collection or fabrication of materials
 2g = soliciting an innocent agent
MR =
1) MR of underlying offense (does not refer to specific intent)
2) Intent required by the underlying offense as to any circumstance’s elements
3) Purposefully act with either a purpose to cause the result or else a belief that the result will occur
(less than intent)
4) If culpability is required then the D must have that same level of culpability
Purpose of Attempt
Competing policy concerns:
 Early crime prevention (protect others, don’t tie officers’ hands)
Versus
 Assuring culpability and dangerousness avoiding compromising of act requirement
Defenses
1) Abandonment (some jurisdictions)
 For CL + MPC = Renunciation of criminal purpose that is both:
Voluntary  not motivated by unanticipated difficulties AND
Complete  not merely a decision to postpone (putting off until another time)
 Purpose  encourage people to stop and second guess committing a crime (encourage
deterrence)
2) Impossibility  No longer a defense under CL or MPC

 Defense to attempt AND conspiracy
 Traditional CL (abandoned) = Factual (crime intended could not be committed b/c of physical
facts unknown to D is not a defense) AND Legal (Conduct D intended to do is not a crime and is a
defense)
Types:
 Legal Impossibility  if the intended act is not criminal there can be no criminal liability for an
attempt to commit the act (i.e. raping a corpse)
 Impossibility in Fact  if the intended substantive crime is impossible of accomplishment because
of some physical impossibility unknown to the accused the elements of a criminal attempt are
present (i.e. shooting an unloaded gun)
 Inherently Impossible  D intends to commit a crime, but it is inherently impossible for the
conduct to have a harmful effect (I.e. sticking pins in a voodoo doll or prisoners with HIV biting or
spitting on guards with the intent to spread HIV)
Cases 
 People v. Rizzo (rob a man)
 People v. Staples (holes into building to bank)
 State v. LaTraverse (intimidate police officer)

I. ACCOMPLICE LIABILITY/COMPLICITY
Accomplice = one who intentionally assists another in the commission of a crime or in avoiding arrest but
was not the primary perpetrator
Terminology
 Principal in the first degree  Person who actually commits the offense or uses an "innocent
instrumentality"
 main actor and engages in the AR of the underlying offense
 Non-culpable person: mentally incompetent
 or a non-human agent (trained animal)
 I.e. a person who solicits a hitman to commit a murder will be liable as the principal of that
murder
 Principal in the second degree  Person who intentionally assists the principal in the first degree
and is present during the commission of a crime
 Presence can be constructive or actual
 Constructive = close enough to crime to render assistance
 Modern trend is to treat all principals the same
 Accessory before the fact  A person who intentionally assists in the commission of the crime but
is not present when the crime is being committed
 Liability is vicarious/derivative of the criminal liability of the principal
 Must intend to further the commission of the crime
 Did not solicit the other person to commit the crime
 i.e. a person lending their gun to another knowing they would use it to rob a bank in
exchange for some of the loot (was not present for the offense)
 Accessory after the fact  A person who helps the principal in the first degree and his/her
accomplices avoid arrest/trial/conviction
 Must know the other person committed a crime
 i.e. a getaway driver
 Accomplices  Are held liable for the same crime as the principal in the first degree, an accessory
after the fact is treated less harshly than principal in the second degree and accessory b/4 the fact
AR =
"aiding and abetting" principal (encouraging, assisting, urging, soliciting, advising, etc.)
1. AR is satisfied by assisting the principal in the 1 in the commission of a crime
2. Mere presence is not sufficient
Ambiguity of mere presence:
 Support/encouragement (by not opposing) OR
 Noninvolvement/fear
3. Pace v. State (1967) Indiana: A defendant may not be held criminally liable as an accessory
before the fact based on mere presence or silent acquiescence.
MR =
MR is satisfied if
1. The ∆ has a general intent to do the acts that assist in the principal in the first degree in the
commission of the crime
2. The intent that the principal in the first degree commit the crime

 Wilson v. People (1939) Colo.: An individual who participates in a felony as a feigned
accomplice in order to entrap another is not criminally liable for the felony.
Cases:
 Pace v. State
 State v. Foster
 Wilson v. People

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I.

HISTORY AND FUNCTIONING OF CRIMINAL LAW

Approaches to Criminal Law

C) FUNCTIONING OF CRIMINAL LAW

Burden of Proof = burden of persuasion (ultimate burden)

Standards of Review on Appeal

o Ethical Standards for the Defense Function (ABA)

o Ethical Standards for the Prosecution Function

F) HOW TO READ A STATUTE

Levandowski Criminal Law Outline pg. 3

B) VOID FOR VAGUENESS DOCTRINE

2) Cannot invite arbitrary and discriminatory enforcement/abuse of discretion

Levandowski Criminal Law Outline pg. 4

1) ACTUS REUS REQUIREMENT

A) How to Apply the MR:

B) Culpability Principle  why MR is required

Levandowski Criminal Law Outline pg. 6

Levandowski Criminal Law Outline pg. 7

Rationale for SI: Assuring culpability where conduct is ambiguous

D) NATURAL + PROBABLE CONSEQUENCES DOCTRINE

Levandowski Criminal Law Outline pg. 8

2. Proximate (legal causation - intervening factors)

B) Intervening Causes TEST:

Pure Foreseeability Test:

Examples of Intervening Causes:

PROXIMATE CAUSE (PC) EFFECT OF AN INTERVENING CAUSE (IC)

Independent Superseding Cause = breaks chain in causation UNLESS foreseeable

Levandowski Criminal Law Outline pg. 10

Model Penal Code

Statute requires Specific Statute Requires General

Reasonable Mistake of other Law NG G

UnReasonable Mistake of other Law NG G

Reasonable Mistake of Fact NG NG

UnReasonable Mistake of fact NG G

Exceptions where Mistake of Law can be used:

Levandowski Criminal Law Outline pg. 11

2) Mistake that negates requires MR re legality (statutes where knowledge of illegality is an

3) Fair notice exception (Lambert)

 MPC = same approach

 In Mistake of Fact, Mistake of other law, also need to look at SI and GI

Fact Different Law Law

Levandowski Criminal Law Outline pg. 13

COMMON LAW APPROACH – First/Second Degree

AR = causes the death of another human being

Aforethought  pre-mediation (usually a reasonable amount of time)

Murder = Killing with Malice Aforethought

Levandowski Criminal Law Outline pg. 14

Case  Gilbert v. State

FELONY MURDER (1ST DEGREE MURDER)

MR = NONE (strict liability)  but must show MR for underlying felony

COMMON LAW APPROACH (don’t need to know MPC)

Levandowski Criminal Law Outline pg. 15

Inherently Dangerous Felonies Include:

Case  People v. James (cooking meth)

2) Res Gestae Requirements

b) Casual connection between felony and homicide

Case  King v. Commonwealth (guys smuggling weed); People v. Stamp

3) During felony = between attempt and flight

4) Casual connection between felony and homicide

PRO/CON OF FELONY MURDER

Levandowski Criminal Law Outline pg. 17

SECOND DEGREE MURDER

Case  State v. Brown