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Criminal Law Outline (medium version)

Spring 2019 – Professor Hughes

Sources of Criminal Law

 Common law jurisdictions – judges continue to play an important role in shaping the
criminal law. Judges in common law jurisdictions both definitively interpret the meaning
of criminal statutes and occasionally go beyond the statutes to announce new rules.
 Model Penal Code (MPC) jurisdictions – American Law Institute (ALI) created a new
model criminal code from scratch. No state has adopted the MPC in its entirety, but 34
states enacted completely new penal codes influenced by the MPC.
o The language of the statute is more important than prior decisions of judges
figuring out “what the law is.”

People v. Suitte (New York State Supreme Court, Appellate Division, 1982)
 “Sentencing involves consideration of the crimes charged, the particular circumstances of
the offender, and the purposes of a penal sanction.”
 4 objective principles of punishment:
o Deterrence:
 Individual Deterrence – directed at preventing the specific offender from
repeating the same or other criminal acts
 General Deterrence – aims to discourage the general public from recourse
to crime
o Rehabilitation – directed at reform of the individual
o Retribution – includes “the reaffirmation of societal norms for the purpose of
maintaining respect for the norms themselves,” community condemnation, and
the community’s emotional desire to punish the offender
o Isolation – serves to segregate the offender from society so as to prevent criminal
conduct occurring during the period of incarceration.
 When the issue is sentencing discretion, the standard of whether a sentence is bad is
whether there was an abuse of discretion, BUT
o Appellate court can use its discretionary review to dispense justice when it deems
it necessary
 Mandatory minimums take away judicial sentencing discretion

4 Basic Elements of a Crime

1. Actus reus (a prohibited act  social harm)
2. Mens rea (a prohibited mental state)
3. Causation (links actions w/ the social harm)
4. Concurrence (between actus reus and men rea)

Standards of Review
 Directed Verdict (during trial)
o For sure have to move for a directed verdict after the prosecution’s case-in-chief,
but can also renew after defense’s case-in-chief
o Preserving error for appeals
 Proof Beyond a Reasonable Doubt (trial)

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 Sufficiency of the Evidence (post-trial)

o Appeal on whether prosecution had sufficient evidence for a reasonable jury to
find the defendant guilty

Statutory Interpretation
 Judges play an important role in deciding what a particular statute means and how it
should apply to particular cases  body of informal rules to help them interpret statutes
o Although judges are supposed to only apply the law and not make it, when
statutory language is broad, ambiguous, or outdated, the line between applying
and making law can become exceedingly fine.
1. Plain Meaning – always the court’s starting point. If Congress provides no specific
definitions, then the court considers the ordinary, common-sense meaning of the words.
a. “The meaning of statutory language, plain or not, depends on context.”
2. Canons of Construction
a. Lists and Other Associated Terms
i. Noscitur a sociis: the meaning of doubtful terms or phrases may be
determined by reference to relationship w/ other associated words/phrases.
ii. Ejusdem generis: where general words follow a specific enumeration of
persons or things, the general words should be limited to persons or things
similar to those specifically enumerated.
b. Statutory Structure – a statute is to be considered in all its parts when construing
any one of them.
c. Statutory Amendment – a statute should be construed to be consistent with
subsequent statutory amendments. Used to help explain the legislature’s intention.
d. Avoiding Absurdity – statute should be interpreted to avoid absurd results.
3. Legislative History – when the plain language and canons of statutory interpretation fail
to resolve statutory ambiguity, we will resort to legislative history
4. Rule of Lenity – all doubts when reading a criminal statute should be resolved in favor of
the D,  recognition of important liberty interests at stake and presumption of innocence

United States v. Dauray (2d Cir. 2000)

 QP: Are individual pictures other matter which contain any visual depiction [within the
meaning of the statute]?
 Rule of Lenity  statute “. . . can be read either to support or to defeat this indictment.
We therefore apply the rule of lenity to resolve the ambiguity in Dauray’s favor.”

Actus Reus Requirement

 4 basic elements of a crime

o (1) a voluntary act (or omission when there is a legal duty to act) that results in
some kind of social harm (“actus reus”)
o (2) a prohibited mental state (“mens rea” or guilty mind)
o (3) a chain of causation that links the defendant’s actions with the social harm
o (4) concurrence between the mens rea and the actus reus

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1. Actus Reus
 Umbrella term that ties together several loosely related doctrines/concepts
o Notion that a person should not be convicted solely on the basis of their thoughts,
but also must have done something that caused some sort of social harm (act +
culpable mind-set)
o The defendant’s act must have been voluntary
o General rule that there can be no criminal liability for an omission unless the
person who failed to act had a legal duty to act
o Notion that “status crimes” are unconstitutional; people should only be criminally
punished for their conduct, not for being a certain kind of person.

Voluntary Act Requirement

 People generally cannot be convicted of a crime unless they commit a voluntary (i.e.
volitional) act that causes social harm
o A volitional act = movement of the body willed by the actor
 “I raised my arm” vs. “My arm came up”
o With a voluntary act, a person chooses to take that action. A person causes the
bodily action vs. simply an organ of a human being causing the action
 Habitual acts are generally considered volitional even if “the actor is
unaware of what she is doing as she is doing it.”

Martin v. State (Alabama Court of Appeals 1944)

 Man was forcibly removed from his home by police & then charged w/ public intox
 “Under the plain terms of this statute, a voluntary appearance is presupposed.”
 Held: D was involuntarily and forcibly carried to the public place by the arresting
officers, and an involuntary act cannot give rise to liability.

State v. Decina (Court of Appeals of New York 1956)

 Facts: Man suffered an epileptic seizure at the wheel of his car with fatal consequences
 Several loosely related concepts:
o (1) Not convicted solely on the basis of thoughts
o (2) Act must not have been compelled/committed by the government itself
o (3) Defendant’s act must have been voluntary
 When does the clock start ticking for when the crime occurs?
o Getting into the car, or actually driving recklessly?
 Held: D was culpable because he had made a conscious decision to drive while knowing
that an epileptic attack was possible.

Voluntary Act Requirement – case comparison

 If the D commits a voluntary act that poses a risk of causing an involuntary harm later,
then the second act will be deemed voluntary (State v. Decina).
 But D in Martin v. State voluntarily consumed alcohol that also posed a risk that he could
get arrested and carried into public in his drunken state.
o I think these two cases are distinguishable by the level of risk of the 2nd event
happening and by the severity 2nd events.

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Liability for Omissions

 Despite the rule that actus reus requires an affirmative, voluntary action, criminal liability
can be based upon an omission of action if the defendant had a legal duty to act, was
physically capable of acting, and knew of the facts giving rise to the need for action.
o The omission must also cause social harm, and the defendant must act with the
requisite mens rea in order to be convicted of the offense.
 5 situations in which individuals have a legal duty to act:
o (1) special relationship between the defendant and the victim (e.g. spousal,
parental, employers, etc.);
o (2) when the D enters into a contract which requires the D to either explicitly or
implicitly act in a particular way;
o (3) when there is a statutory duty to act;
o (4) when the D creates the risk of harm to the victim; and
o (5) when the D, who otherwise would not have a duty to act, voluntarily assumes
care of a person in need of help.

Criminal Liability Based on Omission

1. Legal duty to act
2. Physically capable of acting
3. Omission causes the social harm
4. D acts with the requisite mens rea

People v. Beardsley
(Supreme Court of Michigan 1907)
 Case of mistress overdosing and dude not saving her
 No duty to rescue – “duty neglected must be a legal duty; not a mere moral obligation”
o “It is not correct to say that every moral obligation is a legal duty; but every legal
duty is founded upon a moral obligation.”

Chapter 4 – The Mens Rea Requirement

 Generally – mens rea means the kind of moral blameworthiness that ought to make a
people criminally responsible for actions  Who deserves blame and punishment?
 In criminal law – intent requirement
o “the particular mental state provided for in the definition of the offense.”
 Model Penal Code (MPC) recognizes four mental states – MPC §2.02(2)
o (1) purposely,
o (2) knowingly,
o (3) recklessly, and
o (4) negligently
 When no mental state is expressed in the statute, the mental state element is satisfied if
the person acts purposely, knowingly, or recklessly.
o Under the MPC, if no mens rea element is specified, then “recklessness” is
sufficient to prove the mental state element

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Historical Development of Mens Rea

Regina v. Cunningham (Court of Criminal Appeal, 1957)

 “Malicious” vs. wickedness

United States v. Yeriman (U.S. 1984)

 Statutory interpretation
 “Whoever, in any matter within the jurisdiction of any department or agency of the
United States knowingly and willfully . . . Makes any false, fictitious or fraudulent
statements or representations, . . . shall be fined . . .”
o “‘[K]nowingly and willfully’ modify only the making of ‘false, fictitious or
fraudulent statements.’”  “[N]o basis for requiring proof that the defendant had
actual knowledge of federal agency jurisdiction.”

State v. Fugate (Ohio 1973)

 “The element of intent may be . . . determined from attendant circumstances”
 Intent to kill may be presumed where the natural and probable consequences of a
wrongful act are to produce death, and such intent may be deduced from the surrounding
circumstances, including the instrument used to produce death, and the manner of
inflicting a fatal wound

Knowledge
 Under common law, a person knows of a fact if he either is aware of that fact or correctly
believes the fact exists.
o Many jurisdictions recognize another way of proving knowledge: willful
blindness or deliberate ignorance

United States v. Jewell (9th Cir. 1976)

 Issue of willful blindness – what does it mean to act knowingly?
 Deliberate ignorance and positive knowledge are equally culpable.
o Thus, to act knowingly is not necessarily to act only with positive knowledge, but
also to act with an awareness of the high probability of the existence of the fact in
question. When such awareness is present, “positive” knowledge is not required.
 A requirement of positive knowledge would make deliberate ignorance a
defense.
 MPC §2.02(7) – “When knowledge of the existence of a particular fact is an element of
an offense, such knowledge is established if a person is aware of a high probability of its
existence, unless he actually believes that it does not exist.”

Doctrine of Transferred Intent

 A defendant shoots at an intended victim with intent to kill, but misses and hits a
bystander  Okay to prosecute as if D meant to kill the bystander

Strict Liability Crimes

 How do you interpret a statute that has no specific mens rea?
o Gov’t doesn’t have to prove a mental state OR the mental state is still required?

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Morissette v. United States (U.S. 1952)

 Case of the dude taking scrap metal from an Air Force practice bomb site
 When a statute is silent as to mens rea, the ordinary presumption is that a mental state is
required for criminal liability
 Malum prohibitum – regulatory crime
 Malum in se – dangerous/violent crime

Chapter 6 – Causation and Concurrence

Causation
 Part of the actus reus requirement – links actions with the social harm
o (1) voluntary act that (2) causes (3) the social harm
o Must be a close causal connection, unlike the tort causal requirements
 Two types must be proven to establish criminal liability
o (1) Defendant’s conduct must be an actual or but-for cause of the social harm
o (2) Defendant’s conduct must be the proximate or legal cause of the social harm

1. Actual (But-For) Causation

 Whether the defendant’s voluntary act or omission is a causal factor resulting in the harm
o D does not have to be the primary cause of the social harm, but merely narrows
down the field of actors who might be held criminally liable for the social harm
 Courts apply the “but-for” test: “But for D’s voluntary act or omission when D had a duty
to act, would the social harm have occurred when it did
o If, without D’s conduct, the social harm would not have occurred when it did,
then D is an actual cause

2. Proximate Causation
 Whether it is fair and just to hold D criminally liable  when D’s conduct is the direct
cause of the social harm (no intervening causes)
o When intervening causes are present, courts apply intervening cause analysis to
decide whether to hold D criminally liable
o Intervening causes = acts or events that come after D’s act, but before the social
harm, which also contribute causally to the social harm
 Intervening cause analysis:
o Dependent (responsive) intervening cause – intervening cause dependent upon or
responsive to D’s voluntary act  D is the proximate cause unless the intervening
cause is extremely unusual or bizarre
o Independent (coincidental) intervening cause – intervening cause independent of
or coincidental to D’s voluntary act  D is generally not found to be proximate
cause and relieved of criminal liability, unless the intervening cause is foreseeable

Commonwealth v. Rementer (Superior Court of Pennsylvania 1991)

 Facts: Man assaulted Mary Berry, & kidnapped her in car. Multiple altercations occurred
and she escaped from the car multiple times in the street. She escaped one last time, ran
to a car for help, and got run over while trying to run from the abuser.

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 Issue: Is there a close enough causal link between D’s actions in assaulting Ms. Berry
and the car accident which caused her death to convict him for murder?
o Yes, D’s conduct was the legal cause of Ms. Berry’s death.
 Causation must be direct and substantial
 If the victim’s death is attributable entirely to other factors and not at all brought about by
the defendant’s conduct, no causal connection exists and no criminal liability for the
result can attach.
o The D’s conduct need not be the sole cause of the victim’s death in order to
establish causal connection, as long as D’s conduct was a direct and substantial
factor in producing the death, even though other factors combined with that
conduct to achieve the result
o If the fatal result was an unnatural or obscure consequence of the D’s actions,
sense of justice would prevent allowing the result to impact the D’s guilt
o Foreseeability
 The “but-for” element alone will not necessarily determine criminal culpability
 The risk that Ms. Berry might suffer serious injury or death either during the assault or in
her attempt to avoid it, was inherent in the situation D’s attack created
o The fatal result of D’s assault is not rendered unforeseeable merely b/c the precise
agency of death, i.e. the Michielli’s station wagon, could not have been foretold.

State v. Govan (Ariz. Ct. App. 1987)

 An intervening cause that was a coincidence will be a superseding cause when it was
unforeseeable  An intervening cause that was a response will be a superseding cause
only where it was abnormal and unforeseeable
 Facts: The gunshot wound led to the quadriplegia, resulting in complications eventually
resulting in a response to that condition, which results in Ms. Keeble’s death.
o Holding: Thus, D’s conduct was a proximate cause of the victim’s death and he is
criminally liable for it

Concurrence (pgs. 312-13)

 Temporal concurrence – mens rea at the same moment as the voluntary act or omission
 Motivational concurrence – mens rea is the motivating force behind the actus reus

Chapter 7 – Criminal Homicide

 Murder is broadly defined as the unlawful killing of a human being by another human
being with malice aforethought
 Manslaughter is traditionally defined as the unlawful killing of a human being by another
human being without malice aforethought

Definitions
 Life – defined either as “born alive,” or, under Roe v. Wade and Planned Parenthood of
Southeastern Pennsylvania v. Casey, the “viability” of the fetus in being able to survive
outside the womb.
 Death – includes brain death, along with respiratory and circulatory death
 Malice aforethought – term of art for mens rea
o Intent to kill may be inferred from:

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 Circumstantial evidence
 “Deadly weapon rule” – permits jury to infer intent to kill when the D has
used a deadly weapon aimed at a vital part of the human body
 “Natural and probable consequences” doctrine

Categories:
 Murder 1 – aggravated form of intentional killing. Common law requires proof either:
o (1) the murder involved “premeditation and deliberation”
 Premeditation – reflected on and thought about the killing in advance
(even in an instant)
 Deliberation – quality of thought process (undertaken with a cool head)
o (2) the murder was committed using a means specified in the first-degree murder
statute, such as lying in wait, poison, or torture
o (3) the murder occurred during the commission or attempted commission or
attempted commission of an enumerated felony (namely rape, robbery,
kidnapping, burglary, or arson) – Felony Murder Rule
o Death Penalty – M1 + Aggravating Factors
o BASICALLY M2 + Premeditation and Deliberation
 Murder 2 – default for intentional killing
 MPC §210.1 criminal homicide = the purposeful, knowing, reckless, or negligent death
of another human being
o Murder either purposely or knowingly, or when it is committed recklessly “under
circumstances manifesting extreme indifference to value of human life.” (§210.2)
o MPC does not recognize degrees of murder
 Voluntary Manslaughter – an intentional killing that would normally qualify as M2, but
is reduced b/c of a partial defense of either:
o Provocation (heat of passion)
o Imperfect self-defense
o Diminished capacity (D’s ability to form intent is not perfect)
o MPC §210.3 manslaughter = criminal homicide when it is committed recklessly
(but w/out circumstances manifesting extreme indifference to the value of human
life), and when 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.”
 Involuntary Manslaughter – criminal negligence (sometimes gross negligence,
sometimes recklessness, depending on jurisdiction)

§707.2 Murder in the First Degree

 A person commits murder in the first degree when the person commits murder under any
of the following circumstances:
o (1) the person willfully, deliberately, and with premeditation, kills another person.

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State v. Bingham (Supreme Court of Washington 1986)

 Having the opportunity to deliberate is not evidence the defendant did deliberate, which
is necessary for a finding of premeditation
 Many murders most brutish and bestial are committed in a consuming frenzy or heat of
passion, and that those are in law only murder in the second degree
 Held: manual strangulation alone is insufficient evidence to support a finding of
premeditation. Not enough evidence for M1  M2 okay
 Dissent: [t]hat a murderer originally commenced an act without intending death does not
grant him a carte blanche to persist when he realizes that to do so will kill his victim

Gilbert v. State (Fla. Dist. Ct. App. 1986)

 Good faith is not a murder defense – need affirmative evidence of desire for mercy
 Under both common law tradition and the MPC, suicide and active euthanasia are illegal
 Washington v. Glucksberg – SCOTUS held that the right to commit suicide was not a
liberty interest protected by the Due Process Clause of the 14th & 5th Amendments. State
governments have a legitimate government interest in prohibiting suicide/euthanasia.

1. Provocation (Voluntary Manslaughter)

 Doctrine of Provocation (heat of passion defense) – one who kills in response to legally
adequate provocation is treated as having acted without malice aforethought.
o D’s culpability is mitigated, not because of the absence of malice aforethought,
but because of culturally-sanctioned sympathy with his or her loss of self-control
o Concession to human weakness

Early Common Law

 “Mere words” rule – mere words never enough to constitute legally adequate provocation

Modern “Reasonable Person” Test

 (1) D acted in the heat of passion;
 (2) heat of passion was provoked by an act/event that would have also provoked a
“reasonable person” in the same circumstances to lose self-control;
 (3) D didn’t have sufficient time to “cool off” between provoking act/event & killing; &
 (4) Reasonable person would not have had sufficient time to cool off.
 Provocation must be what actually provoked the killing
 Misdirected Retaliation Rule – requiring that the person killed must be the provoker in
order for a D to be able to claim the provocation defense

People v. Berry (Supreme Court of California 1976)

 Textbook victim-blaming case where the court allows the abuser to get a jury instruction
for voluntary manslaughter b/c he claims his wife provoked him into killing her.
 “The cooling off period is a jury question.”
 Held: the court did commit error in refusing to instruct on voluntary manslaughter based
on sudden quarrel or heat of passion

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MPC v. Common Law – Voluntary Manslaughter

 Common law – a “reasonable person” in the defendant’s situation would have been
provoked to act in the heat of passion
 MPC – requires jurors to find that the defendant’s explanation for his mental or emotional
disturbance is a reasonable one

Commonwealth v. Carr (Superior Court of Pennsylvania 1990)

 Issue: whether the trial court erred when it didn’t allow evidence of defendant’s
psychosexual history to show the likelihood of a killing in the heat of passion aroused by
defendant’s observation of two women engaged in homosexual “lovemaking.”
 Pennsylvania test for the existence of legally adequate provocation is an objective test
 “The ultimate test for adequate provocation remains whether a reasonable man,
confronted with this series of events, [would have become] impassioned to the extent that
his mind was ‘incapable of cool reflection.’”
 “In a provocation defense, the actions of the victim establishing provocation are relevant .
. . the provocation must lead directly to the killing.”
 Held: Appellant’s history of misfortunes are not events which are in any way related to
the events which he claims provoked him.
o An accused cannot, by recalling some past injury or insult, establish a foundation
for a manslaughter verdict

MPC Extreme Emotional Disturbance Test

 What is the EED test? [MPC Provocation Doctrine §210.3(1)(b)]
o Permits a homicide that would otherwise be murder to be considered
manslaughter when it is committed “under the influence of extreme mental or
emotional disturbance for which there is reasonable explanation or excuse.”
 “The reasonableness of such explanation or excuse shall be determined
from the viewpoint of a person in the actor’s situation under the
circumstances as he believes them to be.”
 What does it achieve for a D (in terms of the level of conviction)?
o Permits a homicide that would otherwise be murder to be manslaughter
o Broader than the heat of passion doctrine which it replaced, in that a cooling off
period between the fatal act and the disturbance does not negate the defense

State v. Dumlao (Intermediate Court of Appeals of Hawaii 1986)

 Facts: man with paranoid schizophrenia accidentally killed his mother-in-law when using
a gun to scare off his wife’s brother b/c he believed the brother was trying to attack him
 The test is more, although not entirely, subjective, b/c requires jury to test reasonableness
of the actor’s conduct “from the viewpoint of a person in the actor’s situation.”
o The reasonableness is determined from the D’s viewpoint
 The MPC does not require the provocation to emanate from the victim
 Held: Trial court required to instruct jury as requested by D if there was any evidence to
support a finding that, at the time of the offense, he suffered an “extreme mental or
emotional disturbance” for which there was a “reasonable explanation” when the totality
of circumstances was judged from his personal viewpoint.

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o Whether a jury will agree that there was such a disturbance or that the explanation
for it was reasonable we cannot say. D was entitled to an instruction on every
theory of defense shown by the evidence. It’s the jury’s province to determine the
weight and credibility of that evidence.

Depraved Heart Murder

 When an individual acts with an intent to kill another human being  express malice
 No proof of intent to kill  may “imply” malice
o “Gross recklessness and extreme indifference to human life”
o D acted with gross recklessness and manifested an extreme indifference to human
life  Means that the D realized his actions created a substantial and unjustified
risk of death and yet went ahead and committed the actions anyway
 Depraved heart, shown by gross recklessness  can be M2
o Unintentional killings that involve simple recklessness or gross negligence
generally can only be punished as involuntary manslaughter

Commonwealth v. Malone (Supreme Court of Pennsylvania 1946)

 D and victim were playing Russian Roulette, but D thought he knew where the bullet was
and didn’t intend to actually shoot the victim when he pulled the trigger a third time.
o Did not intent to harm the victim  found guilty of M2
 When an individual commits an act of gross negligence for which he must reasonably
anticipate that death to another is likely, he exhibits malice
o Killing of the victim resulted from an act intentionally done by D, in reckless and
wanton disregard of the consequences, which were at least 60% certain to result in
death  killing was therefore murder

People v. Knoller (Supreme Court of California 2007)

 Dog mauling case
 M2 is the “unlawful killing of a human being with malice aforethought”
o Express = deliberate intention to kill
o Implied = circumstances show “abandoned & malignant” heart  defendant’s
awareness of the risk of death to another
 Test – conscious disregard of the danger to human life
o NOT awareness of risk of causing serious injury (wtf trial judge)

Involuntary Manslaughter
 Two ways a prosecutor can secure an involuntary manslaughter conviction:
1. Prove that defendant had the requisite mens rea for involuntary manslaughter
a. Criminal negligence – in most jurisdictions, something more than ordinary civil
negligence is required:
i. Gross Negligence – doesn’t require defendant to be aware of a substantial
and unjustifiable risk and thus disregards it
ii. Recklessness – requires defendant to be aware of a substantial and
unjustifiable risk and defendant then chooses to disregard it
iii. Some only require simple negligence
b. Application of the Misdemeanor Manslaughter Rule

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Commonwealth v. Welansky (Massachusetts Supreme Court 1944) Cocoanut Grove Case

 Facts: Fire in crowded club with blocked exits and fire hazards  club owner convicted
for involuntary manslaughter through wanton or reckless conduct. 492 people died
 Actus Reus – affirmative act, or omission when one has a duty (Decina seizure driving)
 Usually wanton or reckless conduct consists of an affirmative act in disregard of probable
harmful consequences to another
o But where there is a duty of care for the safety of business patrons invited to
premises which D controls, wanton or reckless conduct may consist of intentional
failure to take such care in disregard of the probable harmful consequences to
them or of their right to care – OMISSION
 Standard of wanton or reckless conduct is both subjective and objective
o Knowing facts that would cause a reasonable man to know the danger is
equivalent to knowing the danger
o Grave danger to others must have been apparent, and the D must have chosen to
run the risk rather than alter his conduct to avoid the act or omission causing harm
 He cannot escape the imputation of wanton or reckless conduct in his dangerous act or
omission if an ordinary normal man under the same circumstances would have realized
the gravity of the danger
 Negligence and willful and wanton conduct are so different in kind that words properly
descriptive of the one commonly exclude the other
 Conduct does not become criminal until it passes the borders of negligence and gross
negligence and enters into the domain of wanton or reckless conduct
 Held: It was enough to prove that death resulted from his wanton or reckless disregard of
the safety of patrons in the event of fire from any cause.

State v. Williams (Court of Appeals of Washington 1971)

 Facts: Defendants husband and wife charged w/ manslaughter for negligently failing to
supply their 17-month-old child w/ necessary medical attention, a result of which he died
o They did not realize how sick baby was; thought the baby had a toothache
o They did not take baby to a doctor b/c of fear that the Welfare Department would
take baby away from them
 Child died b/c an abscessed tooth allowed to develop into an infection of mouth/cheeks,
eventually becoming gangrenous  inability to eat  malnutrition  pneumonia
o Infection lasted for approximately 2 weeks
o Odor associated with gangrene would have been present for approximately 10
days before death BUT
o Had medical care been first obtained in the last week before the baby’s death,
such care would have been obtained too late  critical period of 5 days
 Two basic issues:
o (1) existence of duty to provide medical aid & seriousness of breach required; &
o (2) whether Ds were on notice, in time to save child’s life, that he needed care
 Law/Reasoning: At common law, the breach of the parental duty to provide medical care
for a dependent minor child had to amount to more than mere ordinary or simple
negligence  gross negligence was essential, BUT
o Under Washington statutes, the crime is committed even though death of the
victim is the proximate result of only simple or ordinary negligence

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 Simple or ordinary negligence describes a failure to exercise the “ordinary caution”

necessary to make out the defense of excusable homicide
o Ordinary caution is the kind of caution that a man of reasonable prudence would
exercise under the same or similar consequences
o If the conduct of a D, regardless of ignorance, good intentions, and good faith,
fails to measure up to the conduct required of a man of reasonable prudence, he is
guilty of ordinary negligence
o Caution by person of reasonable prudence under the same or similar conditions
 When did the duty to furnish medical care become activated?
o If the duty to furnish such care was not activated until after it was too late to save
the life of the child, failure to furnish medical care could not be said to have
proximately caused the child’s death
o If one, in the exercise of ordinary caution, fails to recognize that his child’s
symptoms require medical attention, it cannot be said that the failure to obtain
such medical attention is a breach of the duty owed
o At what time would an ordinarily prudent person who cares for the welfare of his
child and wants to promote recovery, deem it necessary to call in a physician
 Held: Sufficient evidence from which the court could find that, applying the standard of
ordinary caution, Ds were sufficiently put on notice concerning the symptoms of the
baby’s illness and lack of improvement in the baby’s apparent condition in the critical
time period to have required them to have obtained medical care for the child.

Felony Murder Rule (AKA 2nd Degree Felony Murder Rule)

 Felony murder rule artificially imposes malice as to one crime b/c of D’s commission of
another, thus satisfying the standard of culpability necessary to raise homicide to murder.
 1st Degree Felony Murder Rule – a homicide is first degree murder if it is committed in
the perpetration or attempted perpetration of statutorily specified felonies
o Typical felonies are: rape, robbery, arson, burglary, and kidnaping
 2 Degree Felony Murder Rule – a homicide is second degree murder if it is
nd

committed in the perpetration or attempted perpetration of any felony that is inherently

dangerous to human life. Felon’s accomplices may also be convicted
 Often described as a strict liability crime b/c a person may be convicted of murder even if
they had no intent to kill and were not reckless or negligent w/ respect to the risk of death
o Accidental deaths that occur in the commission of or attempt to commit a felony
are covered by the felony murder rule
o Relative indifference to mens rea
 Some courts recognizing the felony murder rule have put limiting rules on it:
o Inherently Dangerous Felony Limitation
o “Res gestae” Requirement
o Merger Doctrine
o Misdemeanor Manslaughter Rule – Mini felony murder w/ misdemeanor instead

Inherently Dangerous Felony Limitation to Felony Murder Rule

 People v. James interprets felony as the type of crime, Hines v. State interprets felony as
the actual crime in question.

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People v. James (Court of Appeal of California 1998)

 Facts: While cooking meth, Defendant started a fire that burned down her mobile home
and killed three of her four young children.
 Issue: can cooking meth be used to support a murder conviction under the second-degree
felony murder rule b/c it is an inherently dangerous felony?
 Held: Yes, making meth, by its very nature, cannot be committed without creating a
substantial risk that someone will be killed
 Law/Reasoning: When society has declared certain inherently dangerous conduct to be
felonious, a D should not be allowed to excuse himself by saying he was unaware of the
danger to life  imputation of implied malice
o In determining whether a felony is inherently dangerous, court looks to elements
of the felony in the abstract instead of looking at the specific facts of the case
 I.e. Not defendant’s conduct
 Inherently dangerous felony =
o One which, by its very nature, cannot be committed without creating a substantial
risk that someone will be killed
o An offense carrying a high probability that death will result
 Whether a felony is inherently dangerous is a question of law
o What evidence can court look to in showing the felony is inherently dangerous?
 Only the particular crime at issue, but may hear relevant proffered
evidence  But definitely not defendant’s specific conduct
 D – only a small minority of meth labs are actually associated with a fatality
o However, only a small minority of simple kidnappings actually result in death, but
simple kidnapping has repeatedly been held to be inherently dangerous
 Distinguishable by violent vs. non-violent felony?
 D also relies on the evidence that a skilled person can make meth “relatively” safely
o Dangers of making meth are closely analogous to the dangers of possessing a
destructive device (held to be inherently dangerous)
o Cannot commit felony of making meth w/out possessing at least some hazardous
substances; w/out using/pouring/mixing those substances; or w/out applying heat.

Hines v. State (Supreme Court of Georgia 2003)

 Facts: Convicted felon went hunting with friends, it was getting dark, he had been
drinking, and shot his friend that he thought was a turkey.
 Issue: Is a convicted felon’s possession of a firearm while turkey hunting one of the
inherently dangerous felonies required to support a conviction of felony murder?
 Held: apparently, yes.
o Under these circumstances, we conclude that Hines’s illegal possession of a
firearm created a foreseeable risk of death
o Hines’s violation of prohibition against convicted felons possessing firearms was
an inherently dangerous felony that could support a felony murder conviction.
 Law/Reasoning: The felony must be inherently dangerous to human life
o A felony is inherently dangerous when it is dangerous per se OR(?)
o when, by its circumstances, the felony creates a foreseeable risk of death
 Depending on the facts, possession of a firearm by a convicted felon can
be an inherently dangerous felony

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Res Gestae Requirement

 Felony and homicide must be close in time and distance
o Killing must occur “during the commission or attempted commission” of a felony
o BUT, courts have held that felony murder liability continues until the felon
reaches a place of temporary safety – “place of temporary safety” rule
 Requires a causal connection between the felony and the homicide
o Courts aren’t in agreement regarding how much of a causal connection is required
 Some = mere “but-for” – Stamp
 Others = greater connection – King

People v. Bodely (Court of Appeal of California 1995)

 Facts: Supermarket burglary escape resulted in a hit and run that caused the death of a
guy who tried to stop the burglar from escaping
 Issue: whether a killing which occurs during the perpetrator’s flight from a burglary
occurs in the perpetration of the burglary and is therefore felony murder
 Held: yes, such a killing is felony murder
 Law/Reasoning: Place of Temporary Safety Rule – felony murder liability continues
until the felon reaches a place of temporary safety  applies to burglary
o The homicide is committed in the perpetration of the felony if the killing and the
felony are parts of one continuous transaction

People v. Stamp (Court of Appeal of California 1969)

 Facts: defendants robbed a business with guns and the owner has a heart attack and dies.
Victim had a history of heart disease and was obese and under a lot of stress
 Issue: But-for causal connection between the felony and the homicide
 Held: Felony murder applies whether or not the death was a natural or probable
consequence so long as the victim’s pre-existing condition is not the only substantial
factor in causing the death  Doesn’t have to be foreseeable either

King v. Commonwealth (Court of Appeals of Virginia 1988)

 Facts: Defendant and copilot were flying an airplane in order to smuggle drugs. Weather
became foggy and they got lost, then the copilot crashed the airplane in the mountain and
immediately died
 Held: Causal connection between felony and the homicide greater than but-for causation
 Law/Reasoning: the reason they crashed was solely the weather, not the felony
o Co-defendants can be charged with felony murder if one of the defendants dies in
commission of the felony

Merger: Heemstra
 If the cause of death is the same as the felony (like an assault), then they merge and thus
felony murder isn’t possible
Chapter 8 – Sexual Offenses

1. Forcible Rape

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 The law is reconceptualizing forcible rape from a crime against a woman’s honor to a
crime against a person’s sexual autonomy  states have gone different ways
o MPC – a unified body of sexual assault law with many different gradations
 California MPC is very different  most crimes can be categorized as
either common law or MPC, but forcible rape law is much more varied
 Element of Force or Threat of Force
o In many forcible rape cases, the critical question is whether the defendant used
force or threat of force to accomplish the sexual intercourse
o Most (though not all) jurisdictions have eliminated the resistance requirement
 However, evidence of resistance plays an important role in establishing
the elements of force and non-consent

Commonwealth v. Berkowitz (Superior Court of Pennsylvania 1992)

 Ultimate task remains the question of whether, under the totality of circumstances, “the
victim . . . was forced to . . . engage in sexual intercourse . . . against his or her will.”
o Objective standard – use of threat of forcible compulsion to prevent resistance
 Forcible Compulsion = “not only physical violence but moral/psychological/intellectual
force used to compel a person to engage in sexual intercourse against [their] will.”
 Totality of Circumstances Factors:
o Ages of victim and accused
o Atmosphere/physical setting
o Was the accused in a position of authority?
o Did the accused dominate or control the victim?
o Was the victim under duress?
 Held: although evidence of verbal protestations may be relevant to prove that the assault
was against victim’s will, it isn’t dispositive/sufficient evidence of “forcible compulsion.”
 Pennsylvania rape statute today still requires “forcible compulsion” or a “threat of
forcible compulsion that would prevent resistance by a person of reasonable resolution.”

State of New Jersey in the Interest of M.T.S. (Supreme Court of New Jersey 1992)
 Issue: is the element of “physical force” met by the act of non-consensual penetration?
 Held: Yes, any act of sexual penetration engaged in by D w/out affirmative and freely-
given permission of the victim to the specific act constitutes offense of sexual assault.
o Non-consent replaces physical resistance
 Prosecution has to prove, beyond a reasonable doubt that a reasonable person would not
have believed that there was affirmative and freely given permission
o Moves burden from victim’s state of mind to D’s state of mind
 M.T.S. flatly rejects any shift of focus, plainly holding that the focus is on the D’s use of
force and on the reasonableness of the D’s alleged belief that the victim has given
permission . . . not on the victim’s subjective state of mind
 Supreme Court of New Jersey does not formally eliminate the force requirement, but
accomplishes almost the same result by suggesting that the requirement is satisfied
simply by the act of sexual penetration without the permission of the victim.

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In Re John Z. (Supreme Court of California 2003)

 Issue: whether consent to sexual intercourse, once given, can be withdrawn
 Held: a withdrawal of consent effectively nullifies any earlier consent and subjects the
male to forcible rape charges if he persists in what has become nonconsensual intercourse
o The offense of forcible rape occurs when, during apparently consensual
intercourse, the victim expresses an objection and attempts to stop the act and the
defendant forcibly continues despite the objection
 Law/Reasoning: No way to accurately measure the level of outrage the survivor suffers
from being subjected to continued forcible intercourse following withdrawal of consent
 Substantial evidence shows that she withdrew consent and, through her actions and
words, communicated that fact to defendant
o No reasonable person in defendant’s position would have believed that Laura
continued to consent to the act
 BUT, a defendant’s reasonable and good faith mistake of fact regarding a person’s
consent to sexual intercourse is a defense to rape

2. Statutory Rape (Basically a Strict Liability Crime)

Garnett v. State (Court of Appeals of Maryland 1993)

 Facts: Trial court did not permit a defense of reasonable mistake of the survivor’s age
 Issues: (1) Whether State must prove that D knew the complaining witness was younger
than 14, and (2) whether it was error at trial to exclude evidence that he had been told,
and believed, that she was 16-years-old
 Held: Maryland’s second-degree rape statute defines a strict liability offense that does
not require the State to prove mens rea; makes no allowance for a mistake-of-age defense
 Law/Reasoning: Generally, there are two components of every crime: the actus reus
(guilty act) and the mens rea (guilty mind or mental state accompanying a forbidden act.
 Strict liability crimes: crimes related to public health and welfare, and statutory rape
o 17 states have created a mistake of age defense
o Traditional view that those who engage in sex with young persons do so at their
own peril, assuming the risk that their partners are underage
 Maryland’s “statutory rape” law prohibit[s] sexual intercourse w/ an underage person 
 This silence as to mens rea results from legislative design
o Drafting history of the statute reveals that it was viewed as one of strict liability
from its inception and throughout the amendment process
o Consistent w/ traditional view of statutory rape as a strict liability crime
o The majority of appellate courts, including the Court of Special Appeals, have
held statutory rape to be a strict liability crime

State v. Yanez (Supreme Court of Rhode Island 1998)

 Facts: D claimed survivor told him she was 16, but she said she told him she was only 13

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 Issue: Whether a reasonable mistake of fact concerning a complainant’s age may be

asserted as a defense to a charge of statutory rape
 Holding: With respect to the age requirement, first-degree child-molestation sexual
assault is a strict-liability offense
o D charged with this offense may not introduce evidence of mistake regarding the
child’s age, nor is D entitled to a jury instruction regarding the same
o The statute’s lack of a mens rea results from legislative design
 Law/Reasoning: majority of courts, in considering this issue, continue to reject the
reasonable mistake of a victim’s age as a defense to statutory-rape
 The MPC of 1962 expressly rejects strict liability in the rape or sexual-assault context

General Intent / Specific Intent

 General Intent – definition of the crime consists of only the description of a particular
act w/out reference of intent to do a further act or achieve a future consequence
 Specific Intent – defendant’s intent to do some further act or achieve some additional
consequence  Usually determined by a prepositional phrase
o Some defenses are only available if it’s a specific intent crime

Chapter 9 – Theft Offenses

Basic Theft Crimes – Larceny, Embezzlement, False Pretenses

1. Larceny
(1) The trespassory “taking” and “carrying away” of personal property (actus reus)
 The actor must have no right to use the property
 A taking is considered “trespassory” if the actor takes possession of the property without
the possessor’s consent or other lawful justification
 “Carrying away” technically = “asportation.” Asportation = the assertion of control over,
and some movement of, the item contrary to the possession of the owner, no matter how
slight (e.g. shoplifter taking merchandise but setting it down somewhere else in the store)
(2) from the possession of another
(3) with the intent to permanently deprive the owner of it (mens rea)
 Must intend to steal the property
 If an actor takes the personal property of another, honestly believing that he owns the
property or has a right to possess it, he is not guilty of larceny, even if the actor
unreasonably and mistakenly believes that he has a claim of right to the property
(4) There must be concurrence between the mens rea and the actus reus
 The taking and the specific intent to permanently deprive must occur at the same time
 E.g. – borrowing something and then stealing it is not larceny b/c the taking and the
intent to steal did not happen at the same time

2. Embezzlement – (1) Intentional conversion of (2) property of another (3) by someone who is
already in lawful possession

3. Larceny by Trick – Same as embezzlement, but someone gains possession of property

through deception

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4. Consolidated Theft Statutes – combine larceny (+ by theft), embezzlement, & false pretenses

“Aggravated” Theft Crimes – Burglary and Robbery

1. Burglary
Old and New Elements
 (1) Breaking and entering
 (2) [of a dwelling house]
 (3) [at night]
 (4) with the intent to commit [a felony] therein.

United States v. Eichman (S.D.N.Y. 1991)

 Facts: Two men climbed onto the roof of the Armed Forces Recruiting Station at Times
Square and lowered the American flag flying over the building, then setting it on fire.
o Charged with burglary in the third degree
 Issue: (1) What constitutes “entering in a building with intent to commit a crime therein”
under burglary provisions of New York Penal Law? (2) Whether the Ds can be convicted
of burglary under New York law if the government does not attempt to prove that they
ever entered within the four walls or beneath the roof of the recruiting station.
 Holding: B/c common law required that a D penetrate the exterior walls of a structure in
order to be guilty of burglary, such penetration is required for the commission of
statutory burglary in New York.
 New York Penal Law requires that a defendant actually enter within the four walls or
beneath the roof of a building in order to be guilty of burglary in the third degree.
 Law/Reasoning: Under New York law, a person must “enter or remain unlawfully in a
building” in order to be guilty of burglary in the third degree.
 Element of entry still retains its common law meaning in New York
o At common law, burglary was the breaking and entering of a dwelling house at
night with the intent to commit a felony therein.
o The offense was directed at preserving the internal security of the dwelling: an
entry into the structure itself was an essential element of the crime
o Activity conducted outside the external boundaries of a dwelling, no matter how
felonious, was not burglary at common law
o Curtilage – the area within close proximity to the dwelling house. Outbuildings
within the curtilage were deemed to be part of the dwelling house, such that an
unlawful entry into the outbuilding was burglary
 Does not alter the entry requirement
 That Ds could reasonably have foreseen charge of burglary = much more doubtful

2. Robbery
 THEFT + (force/fear + immediate presence)

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Crocker v. State (Supreme Court of Mississippi 1973)

 Facts: D went to victim’s room, took victim’s billfold out of his clothes, removed $500
dollars therefrom, laid the billfold down, and then left
o Victim denied that defendant ever used any force or violence
 Issue: Force  Robbery?
 Holding: State failed to prove the second necessary element of the crime of robbery
(force or putting in fear)
 Law/Reasoning: 3 essential elements of robbery:
o (1) Felonious intent,
o (2) force or putting in fear as a means of effectuating that intent, and
o (3) by such means, taking and carrying away the property of another from his or
her person or in his or her presence
 All 3 elements must occur at the same point of time
 If force is relied upon as proof of the charge, it must be force by which another is
deprived of the property  If putting in fear is relied upon, it must be the fear under
duress of which the owner parts with the possession

Miller v. Superior Court (Court of Appeal of California 2004)

 Facts: Beach restroom, pants forgotten in stall theft
 Issue: Whether the immediate presence requirement of a robbery charge is satisfied
where the defendant, after stealing property belonging to the victim, but not from the
victim’s presence, is confronted by the victim as he is attempting to carry the property to
a place of temporary safety and uses forcible resistance to keep the property
 Holding: The immediate presence requirement is met under such circumstances
 Retention of the personal property during the asportation phase of the incident satisfied
the taking “from the person or immediate presence” element of robbery
 Law/Reasoning: California defines a robbery as “the felonious taking of personal
property in the possession of another, from his person or immediate presence, and against
his will, accomplished by means of force or fear.”
 Robbery is a theft with two aggravating factors: a taking
o (1) from victim’s person or immediate presence, and
 Taking element itself has two necessary elements: (1) gaining possession
of the victim’s property and (2) asporting or carrying away the loot.
 “Immediate presence” is spatially, not temporally, descriptive.
 A thing is in the immediate presence of a person, in respect to robbery,
which is so w/in his reach/inspection/observation/control, that he could, if
not overcome by violence or prevented by fear, retain his possession of it
 Immediate presence component focuses on whether the stolen property
was located in an area in which the victim could have expected to take
effective steps to retain control over his property.
o (2) accomplished by the use of force or fear
 Circumstances otherwise constituting mere theft will establish robbery
where D peacefully acquires victim’s property, but then uses force to
retain or escape with it
 Robbery includes element of asportation, robber’s escape w/ loot being considered
important in commission of the crime as gaining possession of property in the first place

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 The victim’s presence after the taking is in progress is sufficient to establish the
immediate presence element of a robbery charge
 Estes court: as the use of force or fear only in carrying the stolen property away was
sufficient to support a robbery charge, the victim’s immediate presence during the
asportation of the property was likewise sufficient.
o Robberies in where victim only comes upon the D after the defendant has gained
possession of the stolen property are commonly referred to as “Estes robberies.”

Chapter 10 – Criminal Law Defenses

Defenses
1. Case-in-chief
a. Attack elements
b. Prosecutor’s burden
2. Affirmative
a. Admits elements are met
b. Acquit for another reason
c. Justification
i. Self-D
ii. Imperfect Self-D
iii. Defense of Others
iv. Defense of Habitation
v. Defense of Property
d. Excuse

Case-in-Chief Defenses (AKA Failure of Proof Defenses or Prima Facie Case Defenses)
 Defendant attacks prosecution’s case-in-chief by arguing that the prosecution has failed
to meet its burden of proof on at least one essential element of the crime
o (i.e. the mens rea, the actus reus, causation, or concurrence)
o All the defense has to do is raise a reasonable doubt as to the existence of one
element to secure an acquittal
 Unconsciousness and mistakes of fact are examples of case-in-chief defenses

Affirmative Defenses
 Defense in which D admits that the government has met its burden of proof regarding its
case-in-chief, but argues that he or she should be acquitted for some other reason
o The legislature can assign the burden of proving or disproving an affirmative
defense to either the prosecution or the defense
 Generally, the legislature will make the defendant bear the burden of
proving the requirements of an affirmative defense
 Standard of proof necessary for a D to successfully bring an affirmative
defense can vary from defense to defense and jurisdiction to jurisdiction
 Typically; however, the defendant must prove the elements of the
affirmative defense by a preponderance of the evidence
 Traditionally characterized as either justification defenses or excuse defenses

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Affirmative Defenses – Justification Defenses

 Justification defense – defense in which the defendant claims he did the right thing or
took the most appropriate action under the circumstances (e.g. self-defense)
o Focuses on the correctness or justness of the defendant’s action

1. Self-Defense – a D claiming self-defense must have had an honest and reasonable belief that:
a. (1) Imminence requirement – D was threatened w/ imminent threat of unlawful force,
b. (2) Necessity requirement –force they used was necessary to repel the threat, and
c. (3) Proportionality requirement –force used was proportionate to the threatened force
d. D also must not have been the initial aggressor, but if they are and they withdraw
from conflict (others know they withdrew as well), then the initial aggressor can act
in self-defense  If you don’t withdraw, might still have imperfect self-defense
e. D can be acquitted as long as they reasonably believed in the need to act in self-
defense, even if the belief was mistaken

Jenkins v. State (Florida Court of Appeals 2006)

 Facts: Mr. Jenkins (D) was preparing to go to work as a roofer and had his six-inch
sheath knife on his belt
 Mr. Cerezo pounded on Mr. Jenkins’s wife’s door  continued to verbally confront D
 Victim took a couple steps to leave and then ran right back to D and just blasted him on
the side of his head  D showed victim his knife
 Victim claimed that he had “a Glock” with which he was going to “cap” D
 Victim then clenched his fist and charged at D again  D raised his knife into a
defensive position  D did not swing the knife
o D did not mean to stab victim and could not retreat from the fight
 Issue: Self-defense?
 Holding: D established his claim of self-defense and the State failed to present legally
sufficient evidence to overcome that defense. Manslaughter reversed.
o Case was not remanded for a new trial b/c there was insufficient evidence to show
that D was not acting in self-defense
o State also failed to show evidence that D could have retreated
 Law/Reasoning: Florida Statutes:
o “Person is justified in the use of deadly force only if they reasonably believe that
such force is necessary to prevent imminent death or great bodily harm to
themselves or another, or to prevent imminent commission of a forcible felony.”
o A person under attack has a duty to “retreat to the wall” before taking a life; the
person must have used all reasonable means in his power, consistent with his own
safety, to avoid the danger and to avert the necessity of taking human life
o “Castle doctrine” – when one is violently assaulted in his own house or
immediately surrounding premises, he is not obliged to retreat
 The burden of proving guilty beyond a reasonable doubt never shifts from the state, and
this standard broadly includes the requirement that the State prove beyond a reasonable
doubt that the defendant did not act in self-defense
o The defendant has a burden to establish a prima facie case of self-defense, and the
State must overcome the defense by rebuttal, or by inference in its case-in-chief

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 It was the State’s burden to overcome Mr. Jenkins’s self-defense affirmative defense and
prove beyond a reasonable doubt that Mr. Jenkins was not acting in lawful self-defense

“Stand Your Ground”

 Honest and reasonable belief that:
o (1) Threatened with imminent, unlawful force,
o (2) force D used was necessary to repel the threat,
o (3) the force D used was proportional to the threat, AND
o (4) D wasn’t the initial aggressor (or withdrew)

2. Imperfect Self-Defense
a. Honest BUT NOT reasonable belief that D was
i. (1) Threatened with imminent, unlawful force
ii. (2) Force D used was necessary to repel threat
iii. (3) The force used was proportional to the threat
b. Can reduce a murder to voluntary manslaughter

3. Defense of Others – when a person uses force against another person to defend a third
person he thinks is in imminent danger of unlawful attack
a. Honest and reasonable belief that:
i. (1) Threatened with imminent, unlawful force,
ii. (2) force D used was necessary to repel the threat,
iii. (3) the force D used was proportional to the threat
b. Includes an imminence requirement, a necessity requirement, and a proportionality
requirement (deadly force may only be used to protect the third party from death or
grievous bodily injury).
c. Defense of others requires that defendant honestly and reasonably believe the force he
used was necessary to protect the third person from an imminent unlawful attack
d. Prior common law (NOT CURRENT RULE):
i. Act-at-Peril Rule – permits use of force in defense of a third person only if
that person could legally use force in self-defense. In other words, D who
came to third person’s rescue did so at his peril. If it turned out that third
person had no right to use self-defense force, then D would have no defense.

4. Defense of Habitation
a. Deadly force is not permissible simply in defense of property
b. Original common law rule – permitted an occupant of the dwelling to use any
force necessary, including deadly force, if he reasonably believed the force was
necessary to prevent an imminent, unlawful entry
c. Some common law jurisdictions restrict the use of deadly force to cases in which
the occupant reasonably believes such force is necessary to prevent imminent,
unlawful entry, and that the intruder intends to commit a felony or cause injury to
any occupant of the dwelling
d. In other common law jurisdictions, the occupant of a dwelling may use deadly
force against an intruder only if he reasonably believes that such force is
necessary to prevent imminent, unlawful entry, and that the intruder intends to

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commit a forcible felony or kill or cause grievous bodily injury to the occupant or
another occupant of the dwelling
e. Some jurisdictions allow the jury to presume that the homeowner’s belief in the
need to use deadly force to protect against an imminent threat of death or serious
bodily injury was reasonable.

People v. Brown (Court of Appeals of California 1992)

 Porch self-defense
 Court’s analysis: no reasonable expectation of protection “from the unauthorized
intrusion onto the kind of front porch involved” b/c it was an unenclosed front porch

People v. Ceballos (Supreme Court of California 1974)

 Garage spring gun case  Two teens broke in & one got shot in the face with spring gun
o Not armed, just burglary and not robbery
 Held: as a matter of law, the exception to the rule of liability for injuries inflicted by a
deadly mechanical device does not apply under these circumstances
 Court doesn’t want to make an exception to liability for death or injuries inflicted by
spring guns because liability depends upon fortuitous results
 Defendant was also not justified in shooting Stephen because the burglary did not
threaten death or serious bodily harm – no justification for the use of deadly force
o Burglary is also not a forcible felony (ex. murder, mayhem, rape, and robbery)
o “Where character and manner of the burglary do not reasonably create a fear of
great bodily harm, no cause for exaction of human life, or for use of deadly force”

Affirmative Defenses – Excuse Defenses

 Excuse defense – a defense in which the defendant’s act is presumed to have been
wrongful, but the defendant asks us to excuse for some other reason (e.g. insanity)
o Focuses on the individual defendant and whether he is blameworthy or culpable
 Today, both justification and excuse defenses can lead to complete acquittals
o The distinction only matters in regards to accomplice liability
 If D is justified in violating the law, then that D’s accomplices presumably
are not guilty either, for there was no wrongdoing
 Excuses; however, are considered person to the actor, so, if a D is
acquitted on the basis of excuse, her accomplices may still be found guilty.

Duress vs. Necessity (dire situation)

Necessity:
1. Harm D avoiding > harm D causing
2. Seeking to avoid clear/imminent danger
3. Reasonable to think actions would abate other harm
4. No effective legal alternative available
5. Legislature hasn’t precluded what D did
6. D not at fault for creating the danger

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Duress:
1. Immediacy
2. Well-grounded fear
3. Escapability
4. Surrender to authorities

1. Duress (AKA coercion or compulsion) – D claims they were threatened by another person
w/ physical force (either to themselves/third-person), unless they committed a specific crime
a. Basic Elements:
i. (1) D acted in response to an imminent threat of death or serious bodily injury;
1. Most common law jurisdictions allow a threat to kill or seriously
injure the defendant or any other person
ii. (2) D had a well-grounded (or reasonable) fear that the threat would be carried
out unless they committed a specified crime;
iii. (3) D had no reasonable opportunity to escape the threatened harm
iv. Duress can never be a defense to murder, at least where D was the principal
actor, b/c it is wrong to kill an innocent person
b. Key difference between necessity and duress is that conduct under duress is a
response to a threat from a specific individual to commit the acts that constitute the
crime. Conduct under necessity involves a response to a dire situation
c. Model Penal Code:
i. Excuses criminal conduct coerced by the use of, or threat to use, unlawful
force against the actor’s person or the person of another that a “person of
reasonable firmness in his situation would have been unable to resist.”
ii. Not limited to situations involving threats of death or great bodily harm
iii. No explicit imminence requirement
iv. A duress defense to homicide is possible, even if the victim is an innocent

United States v. Contento-Pachon (9th Cir. 1984)

 Drug smuggling duress case
 Held: A D who has acted under a well-grounded fear of immediate harm with no
opportunity to escape may assert the duress defense, if there is a triable issue of fact
whether he took the opportunity to escape the threatened harm by submitting to
authorities at the first reasonable opportunity
 Law/Reasoning – 3 elements of duress:
o (1) an immediate threat of death or serious bodily injury
o (2) a well-grounded fear that the threat will be carried out
o (3) no reasonable opportunity to escape the threatened harm
o (4) SOMETIMES D must submit to proper authorities after attaining a position of
safety – seems to be required only in prison escape cases
 Immediacy: the element of immediacy requires that there be some evidence that the
threat of injury was present, immediate, or impending
o D had reason to believe that the drug lord would carry out his threats  not vague
threats of possible future harm
 Escapability: D must show that he had no reasonable opportunity to escape

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o The trier of fact should decide whether one in the D’s position might believe that
some of the Bogota police were paid informants for drug traffickers and that
reporting the matter to the police did not represent a reasonable opportunity
o The opportunity to escape must be reasonable
 Necessity: when a person is faced with a choice of two evils and must then decide
whether to commit a crime or an alternative act that constitutes a greater evil
o The coercion must have had its source in the physical forces of nature VS.
o Duress is applicable when the defendant’s acts were coerced by a human force
o Necessity defense is usually invoked when D acted in interest of general welfare

2. Intoxication
a. Voluntary Intoxication – can only assert for crimes of specific intent
i. Common law – whether a D can argue voluntary intoxication as a defense
turns on whether the crime with which the D is charged is considered a
specific intent crime or a general intent crime
ii. General intent crime – D can’t introduce evidence of intoxication
iii. Specific intent crime – D allowed to present evidence of voluntary intox
1. D must show that, because of their intoxicated condition, they did not
have the specific intent required for commission of the crime
iv. Common law courts have become increasingly hostile toward this defense
b. Involuntary Intoxication
i. Examples:
1. Innocent mistake (LSD instead of aspirin)
2. Physical condition makes you very susceptible
3. Unexpected (legal) drug interaction
ii. In some jurisdictions, evidence of involuntary intoxication is admissible to
negate either specific or general intent
iii. In most jurisdictions, involuntary intoxication can be the basis for a temporary
insanity claim (affirmative defense)
1. Some jurisdictions acknowledge this use of involuntary intoxication
evidence, holding that involuntary intoxication is only a defense if it
caused the defendant to become temporarily insane

Chapter 11 – Attempts
 Actus reus and mens rea requirements
 Defenses:
o (1) Abandonment  look at why they abandoned committing the crime
o (2) Defense of impossibility  whether it was impossible for the defendant to
actually commit the crime

Actus Reus
 No single common law test for determining whether and when a defendant’s acts go
beyond mere preparation and become sufficient for an attempt
 Many different tests, most of which focus on how much or how little remains to be done
in order to complete the target offense  How much preparation is enough?
 Common law – what remains to be done to fully commit the crime?

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o “An act, done w/ intent to commit a crime, & tending, but failing, to effect its
commission.”
 MPC focuses on what D has done, rather than on what remains to be done, and whether
D’s acts/omissions are strongly corroborative of the defendant’s criminal purpose
o Requires a “substantial step” towards culmination of commission of the offense

People v. Rizzo (N.Y. 1927)

 Facts: D was convicted of an attempt to commit robbery in the first degree and had intent
 D and co. planned to rob a payroll man who was supposed to carry money from a
company to a bank
 Defendants intended to rob the payroll man, whoever he was; they were looking for him,
but they had not seen or discovered him up to the time they were arrested
o Neither payroll men were at the place of arrest at the time of arrest
 Issue: Whether or not the steps which D had taken up to the time of his arrest amounted
to the commission of a crime
 Holding: No, these Ds are not guilty of an attempt to commit robbery in the first degree
because they had not found or reached the presence of the person they intended to rob
 Law/Reasoning: To constitute the crime of robbery, the money must have been taken
from the payroll man by means of force or violence, or through fear. The crime of
attempt to commit robbery was committed if these defendants did an act tending to the
commission of this robbery
 “An act, done with intent to commit a crime, and tending, but failing, to effect its
commission, is ‘an attempt to commit that crime.’”
 Many acts in the way of preparation are too remote to constitute the crime of attempt
o The line has been drawn between those acts which are remote and those which are
proximate and near to the consummation of the crime
o B/c “tending” is so amorphous, line drawn between remote/near
 The law considers acts tending to the commission of the crime as only those acts which
are so near to its accomplishment that, in all reasonable probability, the crime itself
would have been committed, but for timely interference
 The act(s) must come or advance very near to the accomplishment of the intended crime
 These defendants had planned to commit a crime and were looking around the city for an
opportunity to commit it, but the opportunity fortunately never came
 Common law – what remains to be done?
o Not found on person
o Nobody was even there to rob
o And no money had been taken out yet

People v. Staples (Court of Appeal of California 1970)

 Facts: Defendant was charged with attempted burglary and found guilty
 D, under an assumed name, rented an office on the second floor of a building, which was
over the mezzanine of a bank. Directly below the mezzanine was the vault of the bank
o D was aware of the layout of the building, specifically the relation of the office he
rented to the bank vault
 During the pre-rental period, D brought burglary equipment into the office

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 One day, D drilled two groups of holes into the floor of the office above the bank’s
mezzanine.
o He stopped drilling before the holes went through the floor and did nothing more
to continue the burglary
o D basically said that he changed his mind
 Landlord called the police, turned over D’s tools, and he was arrested
 Issue: Whether D’s conduct went beyond “mere preparation” to commit burglary
 Holding: (Stupid) Drilling by D was obviously(?) one of a series of acts which logic and
ordinary experience indicate would result in the proscribed act of burglary
 Law/Reasoning: D claims that, as a matter of law, there was insufficient evidence upon
which to convict him of a criminal attempt
o D claims his actions were all preparatory in nature and never reached a stage of
advancement in relation to the substantive crime which he concededly intended to
commit (burglary of the vault) so that criminal responsibility might attach
 Prosecution was required to establish that D had the specific intent to commit a burglary
of the bank and that his acts toward that goal went beyond mere preparation
o The required specific intent was clearly established  sole issue is whether his
acts went beyond mere preparation
 “Any person who attempts to commit any crime, but fails, or is prevented or intercepted
in the perpetration thereof, is punishable . . .”
o The statute does point out by the words, “fails,” “prevented,” and “intercepted,”
those conditions which separate an attempt from the substantive crime
 We can say that his “drilling” activity clearly was an unequivocal and direct step toward
the completion of the burglary (?)
o It was a fragment (literally a fragment) of the substantive crime contemplated –
beginning the “breaking” element of breaking and entering
 D himself characterized his activity as the actual commencement of his plan (but not the
commencement of the crime?)

 Defendant’s argument – mere preparation

 Court’s analysis – ? CHECK SLIDES

State v. LaTraverse (Supreme Court of Rhode Island 1982)

 Facts: D found guilty of attempting, knowingly and maliciously, to dissuade a police
officer from giving testimony before a grand jury
 An undercover police officer purchased stolen cars from D, who was then arrested
 While free on bail, D drove by the officer’s house several times before parking across the
street with the lights off
 Officer called for backup, and they followed D as he drove away from the officer’s house
o They found a can of gas, a rag, matches, an aluminum baseball bat, a wire coat
hanger fashioned to break into a car, and a threatening note
 Issue: Is this an attempt to commit a crime?
 Holding: D’s conduct constituted a substantial step in his endeavor to give the police
officer something to think about as the officer awaited his summons to appear before the
grand jury

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 Since the Court decides to follow the MPC de novo, it now affords D the opportunity to
establish by the fair preponderance of the evidence that his departure from the officer’s
neighborhood constituted a voluntary and complete abandonment of his criminal
purposes on the evening in question
 Law/Reasoning:
 Common Law Overview – Classic elements of a common-law attempt
o (1) intent to commit a crime,
o (2) execution of an overt act in furtherance of the intention, AND
o (3) failure to consummate the crime
 Neither the intent to commit a crime nor mere preparation in and of itself constitutes an
attempt
 In Vermont, an attempt is defined as an act which “must reach far enough towards the
accomplishment of the desired result to amount to the commencement of the
consummation.”
 Justice Wendell Holmes noted that “the act done must come pretty near to accomplishing
that result before the law will notice it.”
o It is a question of degree
MPC –
 Not about drawing a line between attempt and noncriminal preparation, but meant to
make the crime essentially one of criminal purpose implemented by an overt act strongly
corroborative of such purpose
 Substantial Step: an attempt occurs when one “purposely does or omits to do anything
which is an act or omission constituting a substantial step in a course of conduct planned
to culminate in his commission of a crime
o To constitute a substantial step, the conduct must be “strongly corroborative of
the actor’s criminal purpose
o This standard shifts the emphasis to overt acts of the defendant which
convincingly demonstrate a firm purpose to commit a crime
 Shift emphasis from what remains to be to what already has been done
 Code’s requirement of proof:
o (1) that D must have been acting with the kind of culpability otherwise required
for the commission of the crime D is charged with attempting, and
o (2) that D must have been engaged in conduct which constituted a substantial step
toward the commission of the crime
 Affirmative Defense of Abandonment = abandonment of efforts to commit the crime
when circumstances manifest a complete and voluntary renunciation of criminal purpose
o Abandonment or renunciation is not complete and voluntary if it is motivated
because either:
 (a) the defendant has failed to complete the attempt because of
unanticipated difficulties, unexpected resistance, or circumstances that
increase the probability of detection or apprehension, OR
 (b) D fails to consummate the attempted offense after deciding to postpone
his endeavors until another time or to substitute another victim or another,
but similar, endeavor

Mens Rea Requirement

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 Mens rea of an attempt is the specific intent to commit the targeted offense
o The mental state required for commission of an attempt may be narrower than the
mental state or mental states required for commission of the target offense

People v. Harris (Supreme Court of Illinois 1978)

 Facts: Couple got into an argument, and victim attempted to run away from D because D
brandished a gun  She couldn’t get away, so ran into the car and drove away
 D was behind the car with the gun and shot at the car, breaking the back window
o A bullet fragment was found on the left side of the rear seat
 Issue: Should the jury have been instructed that it could find D guilty if it found that he
intended to either kill or do great bodily harm to someone?
 Holding: No, mens rea intent for attempt = solely intent to commit a specific act: murder.
 Law/Reasoning: Big difference between the elements of the offense of attempt and those
of the specific offense attempter (murder)
 MPC – a person commits an attempt when, with intent to commit a specific offense, he
does any act which constitutes a substantial step toward the commission of that offense.
 Crime of murder allows intent to either kill or cause great bodily harm that actually leads
to death, but attempted murder requires a narrower intent
o To convict for attempted murder, nothing less than a criminal intent to kill must
be shown
 On a charge of attempted murder, it is not sufficient to show that the defendant intended
to do serious bodily harm or that he acted in reckless disregard for human life
o Attempted murder requires an intent to bring about that result described by the
crime of murder (i.e. the death of another)

State v. Hinkhouse (Court of Appeals of Oregon 1996)

 Facts: (SVU episode)
 D is infected with HIV and was convicted of ten counts of attempted murder and ten
counts of attempted assault
 D engaged in unprotected sexual intercourse with a number of victims without disclosing
his medical condition
 D exhibited a pattern of (1) refusing to wear condoms and (2) not telling his partners that
he was HIV positive
 D’s parole officer repeatedly discussed the danger of spreading HIV and told D that if he
passed the virus to another person, “he would be killing someone.”
o Also warned D that “if you infect anyone, that is murder.”
o D claimed to understand and agree to take appropriate precautions, but did not do
so
 D not only did not warn his partners about his HIV status, but also lied about being HIV
positive
 While having sex with one of his victims, D started a romantic relationship with a woman
he hoped to marry.
o He told this woman of his HIV status and allows wore a condom
 D’s psychologist even said that D had reportedly threatened to “go out and spread” HIV

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 State’s expert noted that it was significant that D agreed to use, and if fact did use,
condoms with a woman for whom he expressed affection, but did not use condoms with
the other women with whom he had sex
o D said that if he were positive, he would spread the virus to others
o ^such statements, coupled with D’s behavior, showed intentional, deliberate
conduct
 Issue: Sufficient evidence to show that D intended to cause death or serious bodily
injury?
 Holding: Yes, particularly in light of the pattern of exploitation over a long period of
time, a rational fact finder could conclude beyond a reasonable doubt that D did not act
impulsively merely to satisfy his sexual desires, but instead acted deliberately to cause his
victims serious bodily harm injury and death
 Law/Reasoning: A person is guilty of attempting to commit a crime “when the person
intentionally engages in conduct which constitutes a substantial step toward commission
of the crime.”
 A person commits assault in the first degree when “the person intentionally causes
serious physical injury to another by means of a deadly or dangerous weapon.”
 A person commits attempted murder when he or she attempts, without justification or
excuse, intentionally to cause the death of another human being.
o To act “intentionally” is to “act with a conscious objective to cause the result or to
engage in the conduct so described.”
 D had been told, and he acknowledged, that having unprotected sex and transmitting the
disease was “murder”
o In spite of that awareness, D engaged in a persistent pattern of recruiting sexual
partners over a period of many months, consistently concealed or lied about his
HIV status, and refused or pretended to wear a condom
o D told at least one person that he intended to spread the disease to others by such
conduct
 His conduct demonstrates that his objective was more than mere sexual gratification
o When he engaged in sexual relations with the woman he hoped to marry, he
consistently wore condoms and made no attempt to conceal his HIV status
o When he had sex with others, in contrast, he concealed or lied about his condition
and refused any protection.

Chapter 12 – Accomplice Liability (Complicity)

 One who intentionally assists another in the commission of a crime can be convicted of
that offense as an accomplice
o Generally, accomplices are held liable for the same crime as the principle in the
first degree, except for accomplices after the fact
 Defendant who satisfies both the actus reus and mens rea requirements for
complicity is not guilty of “complicity,” but is rather guilty of the
substantive crime – the crime with which the principal in the first degree
has been charged
o Requires both actus reus and mens rea
 Actus reus requirement is satisfied by assisting the principle in the first
degree in the commission of a crime

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 Mens rea requirement has two elements:

 Addressed later?
 At common law, the different parties involved were divided into principles and
accessories
o Common law rules have largely been abandoned, but many courts still use the
terminology of principal in the first degree, principal in the second degree,
accessory before the fact, and accessory after the fact
 Principal in the First Degree – person who actually commits the acts constituting the
offense or uses an “innocent instrumentality” to commit the crime
o Innocent instrumentality – either a non-culpable person, such as a mentally
incompetent person, or a non-human agent, such as a trained animal (drone?)
 Principal in the Second Degree – person who intentionally assists the principal in the first
degree and is present during the commission of the crime
o Presence – actual or constructive presence
 Constructive presence: if the accomplice is close enough to render
assistance to the principal in the first degree during the commission of the
crime
 Accessory Before the Fact – person who intentionally assists in the commission of the
crime, but is not present when the crime is being committed
 Accessory After the Fact – person who helps the principal in the first degree and his or
her accomplices avoid arrest, trial, or conviction
o An accessory after the fact is treated less harshly than a principal in the second
degree or an accessory before the fact

Accomplice Liability – Actus Reus Requirement

 To satisfy this requirement, an accomplice must assist the principal in the first degree in
committing the crime
o Mere presence is not sufficient for accomplice liability
o Some assistance, no matter how trivial, is required

Pace v. State (Supreme Court of Indiana 1967)

 Jkflds

Accomplice Liability – Mens Rea Requirement

 Accomplice must have:
o (1) the intent to do the acts that assist the principal in the first degree in the
commission of a crime, and
o (2) the intent for the principal in the first degree to commit the crime

Wilson v. People (Supreme Court of Colorado, en banc 1939)

 What happens when an individual feigns his complicity, but provides the principal in the
first degree with assistance in committing the crime? Can the feigning accomplice be
found liable for the crime that the principal in the first degree commits?
 Jfkldsls

The Natural and Probable Consequences Doctrine

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 Many common law jurisdictions hold an accomplice liable not only for the crime he
assisted, but also for any other crime that was the natural and probably consequence of
the crime he assisted
 The other crime must have been the reasonably foreseeable consequence of the intended
crime

Roy v. United States (District of Columbia Court of Appeals 1994)

 Facts: Attempt by law enforcement to purchase a handgun through a paid informant
o Prospective purchaser was robbed of his money instead
 Informant met with Defendant to discuss the

Pgs. 137-48

Constitutional Limitations on the Power to Punish

Equal Protection
 The Equal Protection Clause of the Fourteenth Amendment prohibits each state
government from denying to “any person within its jurisdiction the equal protection of
the laws.”
o Prohibits governments from treating people differently based on their race unless
such treatment serves a “compelling state interest” and is “narrowly tailored” to
serve that interest
o Strict scrutiny test b/c very few government actions can satisfy this stringent test
 Recently, SCOTUS has applied this “strict scrutiny” test only to racial discrimination that
is “intentional.”
o Unintentional conduct that results in people being treated differently on the basis
of their race is subjected to a much lower level of scrutiny – whether the state has
a “rational basis” for the unintentional discrimination

Equal Protection Claim

1. Facial Claim: the legislature enacted (or maintains) the death penalty statute because of
its racially discrimination effect
2. “As applied” claim: the decision-makers in his case acted with discriminatory purpose

McCleskey v. Kemp (U.S. 1987)

 Fkdls;ls

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