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As of 5/9/19
State law: States have police power over their citizenry and can create statutes aimed at protecting the general welfare
of society and enforcing certain behavioral norms
o For this reason, judicial interpretation is very important! – see Statutory Interpretation
o Laws both define the criminal activity AND provide sentencing requirements / guidelines
Federal law: Federal gov’t can create uniform national laws by invoking one of its enumerated powers
o Judicial interpretation is very important – see Statutory Interpretation
o Laws both define the criminal activity AND provide sentencing requirements / guidelines
MPC: Model criminal laws written by the American Law Institute
o Many states base their criminal codes on the MPC – adopting sections either whole or in part
**NY** and OH are two JDs that have adopted large parts of the MPC, but R says not always
necessary to know which JDs are which bc there “is no such thing as a MPC JD”
o MPC tends to be specific in its terms bc one goal was to provide ppl with a clear idea of what the law is so
that they can act accordingly
vs. common law which tends to be more vague (MD very reliant on common law)
THEORIES OF PUNISHMENT
How to determine appropriate punishment –
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Criminal Law – Outline
As of 5/9/19
Specific deterrence: deter this offender from recidivism (committing the same crime in
the future)
General deterrence: deter public at large – idea is that if ppl know about the possible
punishments, they will not break the law
o SUITTE NY: With the new mandatory punishment for this gun law violation,
leg was trying to crack down on gun use – if we disregard it now, what would
be the point of the law? what would this say to ppl going forward?
o See also consequentialist view (above)
Retribution: Punishment in recognition of the social harm that D caused and the moral
blameworthiness of this actions – ie, eye for an eye
See also nonconsequentialist view (above)
Incapacitation: Punishment serves to prevent the person from recommitting the crime – by
locking them up, they will be unable to reoffend, which in turn protects society
Rehabilitation: punishment to help offender avoid future crime – more ambitious/internal to
offender’s personal character than specific deterrence
ex: vocational training, drug treatment, etc.
Note that reconciliation is NOT a goal in US punishment / justice system
Are there any collateral consequences to be considered for D?
o Direct consequence: Punishment that is assigned by the judge, per the law
But note, that it is usually discretionary by the judge to a certain degree
o Collateral consequences: The range of legal penalties and disabilities that flow from a criminal
conviction over and above the sentence imposed by the ct
ie, a punishment that is NOT prescribed by the statute but that is still a negative effect of the
conviction
Often are beyond the control of the trial ct
Can be automatic / mandatory OR discretionary (at the hands of some other entity, not ct),
There is no constitutional obligation on a defense lawyer to inform client of collateral
consequences
o Note that having a permanent criminal record is technically NOT a collateral consequence, but it often
leads directly to some collateral consequences
o Examples of collateral consequences:
No more access to public housing / limited (if not entirely eliminated) access to social welfare
Possible deportation for immigrants
Registration as a sex offender – and then the further social stigma, etc. from this
In many states, convicted felons cannot vote (eg, FL)
~ Parole eligibility can be considered either direct or collateral (cts go both ways)
o Basically they are low key a vehicle for systematic disenfranchisement of POC
System is pretty biased and generally stacked against POC – see eg, biases in sentencing, juries,
etc.
And then the consequences ripple out and have hugely disparate impact
Based on this, what kind of sentence would be best?
o Jail / prison, parole, fine, restitution, etc.
o Also probation – can be with conditions (eg, community service, AA counseling, etc.)
CONSTITUTIONAL LIMITATIONS
Const’l rights –
2
Criminal Law – Outline
As of 5/9/19
Prohibition on cruel and unusual punishment (8A)
o Applies to states through the 14th Amendment
o The punishment imposed on D must be proportional to the crime
o Can’t criminalize addiction would be cruel and unusual to penalize someone for something that they
can’t control (+ ROBINSON, - POWELL)
Equal Protection Clause (14A)
o Basically, everyone should have equal protection under the law – so the law must be enforced in an equal
way
o Goes to the implicit biases in the system
See also plea bargaining and 6A
o 6A: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an
impartial jury of the State and district wherein the crime shall have been committed, which district shall
have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to
be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his
favor, and to have the Assistance of Counsel for his defence”
o Guarantees a fair trial in front of an impartial justice system – ie, you get to know the charges, trial takes
place in front of you (so you know what’s being said, you can challenge things, etc.
o Also regulates defense lawyers –
Establishes that citizens have a const’l right to legit legal counsel
Regulates what the defense lawyer can do and how they act – so imposes a const’l duty on D’s
lawyer
o Plea bargaining = waiving D’s 6A rights!
Investigation and arrest: Police or other enforcement agency conducts investigation and arrests D once they have
sufficient evidence for the prosecutors to mount a reasonable case at trial
o Upon arrest, D is either detained OR cited (ie, released with summons to come back on specific date)
Prosecution charges D
o Factors here:
Theories of punishment –
What is the theory of punishment that we are working under? What do we want to
accomplish in punishing D?
Also consider collateral consequences, stigma, etc.
LOOK AT STATUTES –
What crimes will we definitely be able to prove? Which ones might be a stretch?
What sentences does each carry? Do these sentences match the theory of punishment?
o Lesser included offenses: each element of the lesser offense must be a necessary element of the greater
offense
Prosecution or defense can ask for lesser included offense if –
The evidence in the case supports an inference that the lesser crime was committed
The request is made BEFORE the jury gets instructions and deliberates
See MD jury instructions and homicide
Arraignment: D is read the charges and enters a plea
o D might be appt’ed a lawyer
o Judge decides questions of bail and/or conditions of release
Prosecution and defense lawyer usually try to come to a plea deal
o Plea bargain = waiving your const’l right to a trial
o Two kinds of plea bargains –
Charge bargains: you’re pleading to something OTHER than all of the charges in your charge
document
3
Criminal Law – Outline
As of 5/9/19
ex: you are charged with homicide and robbery; you plead guilty to robbery but not
homicide
ex: you are charged with assault, and you plead guilty to possession of a dangerous weapon
So basically where your pleaded guilty charges are different than those you are charged
with
Sentence bargains: agreeing to different sentence (but say yes to charge)
Prosecution and defense lawyer get together and agree to some other sentence, and then
show judge and he has to agree
Alternative to incarceration be creative in what you suggest (see Krieger reading)
o Rules re plea bargaining –
Model rules of professional conduct: lawyer can’t materially misrepresent the facts during
bargaining
Matter of due process – ethical rules govern lawyers
Note fine line between misrepresentation and puffing
Can’t give up confidential information during plea bargaining meeting
o Note that both sides want to avoid going to trial if they can – so both have incentives to reach a plea deal
Prosecution doesn’t have time/resources for every case to go to trial
Both for judicial AND economic efficiency – it would just not be possible for the ct system
to sustain itself if every D wanted a trial
o This raises classic question – if our system can’t handle them, does this not
indicate we have too many in the system? should we not criminalized less activity?
To this effect, SCOTUS has recognized that criminal justice system is one of plea deals, not
trials
Defense wants to avoid the risk of conviction of a harsher crime at trial by pleading to a lower crime
at this stage
o “Shadow of trial” theory: both parties make decisions during this process by weighing the costs / benefits of
going to trial in order to decide their chances of winning, thus informing decision to plea bargain
Criticisms: this is way too simplistic and overlooks lots of issues –
Economic concerns of the D – eg, if he’s being detained awaiting trial, maybe his family is
without a source of income, so he’ll do whatever he can do get out ASAP
Structural deficiencies
o Lawyer’s self-interest, politics, caseloads etc.
o Pretrial detention often ppl held without bail so already detained for a very long
time – and then they accept plea deal just to get out / move on
Psychological issues
o Shadow of trial assumes all parties are rational but this is not the case
o eg, education / intelligence affects one’s decisions
o Certain Ds are risk averse – gender biases, innocent Ds (more risk averse than
guilty ones), etc. so some Ds are less likely to bluff
o Trial tax: where judge impliedly threatens that D will get a higher sentence if they don’t just settle
NOT explicitly – no one can actually say this bc this is violation
BUT everyone knows this – PDs inform Ds, judge suggests this, etc.
Fine line between being coercive and making a good offer –
On the one hand, can be viewed as a negotiation tactic – just cutting them a break
On the other hand, it is coercive (and against Const rights)
Prosecution makes its case in proving D’s guilt for the charge brought against him
o Prosecution has the burden of proving D’s guilt through its burden of production and burden of persuasion
Burden of production: initial responsibility of P to produce evidence in support of its claim
Burden of persuasion: ultimate responsibility of P of proving that a given offense was committed
o D is entitled of the presumption of innocent until proven guilty
o Standard of proof to establish guilt = beyond a reasonable doubt
SOP: the level of certainty that the fact-finder (jury, mostly) must reach before ruling for the party
with the burden of proof
Reasonable doubt: doubt for which you have a reason based on evidence or lack of evidence
Guaranteed by the Due Process Clause of the 5A and 14A
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Criminal Law – Outline
As of 5/9/19
D can mount defense
o Case in chief defense: poke holes in the P’s story – simply CREATE reasonable doubt about some element of
the crime / case
o Affirmative defense: D admits to the guilt of the charged offense but claims that he should be acquitted for
other reasons
ex: insanity, necessity, self-defense etc.
NY §§ 125.25(1)(a), 125.20(2) – Extreme emotional disturbance is affirmative defense that
bumps killing down from Murder 2 to Manslaughter 1
BOP often shifts to D here to prove their claim (but not always)
Judge must determine if D should be allowed to present this defense
o Directed verdict of acquittal – judge directs the jury to acquit D for lack of evidence
Standard: whether P has introduced sufficient evidence that a rational jury could find that the
prosecution has proved its case beyond a reasonable doubt
Judge gives the charges to jury to determine guilty or not
o Each side will submit jury instructions
o Judge must look at them and determine which one to give
o Erroneous jury instructions are big source for appeals
o But note, judge can take a determination away from a jury if there are too few facts so he gets to decide it as a
matter of law – legal insufficiency of the facts
On appeal –
o Usually, only D can appeal after a conviction – prosecution cannot appeal an acquittal
Prosecution can only appeal very procedural things – ie, dismissal in GOETZ NY
o Common things that D appeals –
Sufficiency of the evidence: there was not enough evidence to warrant the jury’s determination
beyond a reasonable doubt
Erroneous jury instructions: the jury instructions given to the jury were incorrect (usually bc of a
matter of law – ie, definition of some element is wrong) and lead to an erroneous conviction
Can also appeal a sentencing decision (eg, SUITTE NY)
o Standard of reviews –
Sufficiency of the evidence: App ct looks at all of the evidence in the light most favourable for the
prosecution and determines whether a rational factfinder (ie, jury) COULD have found D guilty
beyond a reasonable doubt
Also makes sense bc what you’re trying to do is determine if the jury in the trial court could
rationally reach the decision that it came to and since it came to a conviction, you’ll have to
view it in the light most favourable to the prosecution
If ct finds that the evidence was insufficient to support conviction, case is REVERSED
(????)
Erroneous jury instruction: App ct basically reviews based on legal requirements of the crime
Much more black and white than the others – if it’s wrong, it’s wrong
If ct finds that jury instructions were erroneous, case is REMANDED (????)
Sentencing: App ct can use either an abuse-of-discretion standard (deferential)
In NY, leg allows app cts to modify sentences – so substituted discretion is also permissible
here (see SUITTE NY)
STATUTORY INTERPRETATION
bc of nature of criminal law, statutory interpretation is crucial and this gives judges lots of leeway / power
5
Criminal Law – Outline
As of 5/9/19
3. Canons of construction:
o Lists should be read so that the meaning of the ambiguous term is determined by reference to the
associated terms
o The meaning of a general term at the end of a list is limited by the particular things enumerated in the
list
o Statutory structure: The particular section of the statute should be considered in light of all of the
other parts of the statute
o Avoid interpretations that would yield absurd results
4. Legislative history and intent:
o What did the leg intend to do when it created this statute?
o What thing was it trying to protect and what act was it trying to criminalize?
o Does the leg history yield any insight on how to interpret? – drafts of statute, recorded discussions of
statute, official statements, etc.
o If amended, what is different between now and then? What does this say about what leg was trying to
accomplish?
5. If none of these prove helpful, apply rule of lenity
o Rule of lenity: Ambiguities in a statute must be resolved in D’s favour
Lenity is derived from common law but is a function of Due Process’s void of vagueness
doctrine
INTRO – CASES
6
Criminal Law – Outline
As of 5/9/19
slope concerns – where do we draw the line? For the sake of efficiency, clarity, etc., we cannot extend necessity to
this situation
7
Criminal Law – Outline
As of 5/9/19
i. D’s reading would prohibit possession of 3 books, each of which contain 1 image, but allow the
possession of stacks of unbound photographs
ii. Gov’t’s reading would prohibit possession of 3 individual photographs, but allow 2 large books
f. Legislative history not helpful (doesn’t explain why)
g. THEREFORE, must apply the rule of lenity in D’s favour – bc lenity is a function of Due Process + void
of vagueness
4. Dissent: Lenity not required – the statute was not so ambiguous as majority made it out to be
ELEMENTS OF A CRIME
Four elements of a crime: (1) actus reus leading to a social harm, (2) mens rea, (3) causation that connects actus reus to
social harm, and (4) concurrence between the actus reus and the mens rea
~ But note, there is a fifth element that the crime was NOT justified – see justification defenses
ACTUS REUS
ACTUS REA: Voluntary act (or omission where legal duty) that results in a social harm
General principles –
Dalton article (2003): Brian Dalton convicted for disturbing fictitious writings about child molestation and torture; ironic
bc kept journal as part of psychological treatment; conviction overturned bc these were just thoughts – so had mens rea but
no actus rea
9
Criminal Law – Outline
As of 5/9/19
a. NOTE – R actually died of overdose 10 months before SCOTUS decision; CA wanted it mooted but
SCOTUS decided to continue; only SCOTUS decision to actually strike down law for violation of 8A
2. H: The statute is a violation of 8A
3. R: While states have discretion in re drug trafficking laws and may require compulsory treatment programs, they
cannot criminalize addiction; drug addiction is a disease so this is like jailing someone for having any other
disease; imprisoning someone bc of their health status is against 8A’s cruel and unusual punishment proscription;
trial judge was incorrect in instructing jury that they could convict him if they found that he was addicted to drugs,
though not necessarily if they found he had used drugs
4. Dissent: The statute applied to volitional drug use so it does not violate 8A and the purpose is to compel
treatment, not jail so this really isn’t cruel and unusual
MENS REA
MENS REA: The particular mental state required by the crime, usually provided for in the statute
Mental state ≠ motive (though often overlap)
Mens rea requires an intent RELATED TO the crime – cannot just be general bad intent (CUNNINGHAM)
o Note that there are specific and general intent crimes – see “Defenses”
In practice, the distinction is abolished in most JDS, but it is still relevant for mistake of fact
defense in common law JDs!
Mental states in statutes usually apply to both result crime (eg, murder) AND conduct crimes (eg, DWI)
Main Types of Mens Rea – see generally NY § 15.05 and OH § 2901.22 for definitions
1. Purposely / Intentionally
Generally accepted at common law that it is acting with the –
(1) conscious objective to cause the social harm OR
(2) virtually certain knowledge that actions will cause the social harm
Natural and probable consequences doctrine: Can imply intent to kill where death is an
obvious consequence of D’s conduct (FUGATE OH)
2. Knowingly
At common law, a person has “knowledge” of something if he is either aware of that fact OR correctly
believes the fact exists
~ Willful blindness: the purposeful ignorance of a fact that is highly likely to be true regarding commission of
a crime IS considered “knowingly” and so not a defense (JEWELL)
o NOT universally accepted in JDs so be careful!
NOTE – pretty uncommon with the exception of drug crimes bc very hard for gov’t to prove
3. Recklessly
Generally requires that defendant KNEW of risk and chose to disregard it
o vs. negligently – where he did not know of risk at all
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Criminal Law – Outline
As of 5/9/19
o NY Ct App has said that recklessness and neg are mutual exclusive – you cannot be both at the same
time so you cannot be charged with two crimes where they each require one
4. Negligently
Defendant acted negligently if a REASONABLE person would have perceived of a risk and would NOT have
acted, but defendant did act
Use a reasonable person standard – so we don’t care about whether D actually knew of risk
o BUT note that different JDs different on what exact standard within reasonable man to use’
Requirements –
--------------------
CONCURRENCE
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Criminal Law – Outline
As of 5/9/19
(not tested on)
CONCURRENCE: A connection between the actus reus and the mens rea elements
Requirements –
Temporal concurrence: D must possess the requisite mens rea at the same time as the actus reus
Motivational concurrence: D’s mens rea must be motivating force behind the actus reus
CRIMINAL HOMICIDE
CRIMINAL HOMICIDE: term encompassing the unlawful killing of a human being by another human being
Homicide is a very ancient crime, so definition / elements of common law murder and murder in modern statutes
is pretty much the same (eg, “malice” in CA § 188)
Distinction between murder and manslaughter developed bc historically all murder was punishable by death but
then it started to seem unfair to subject all homicide to death penalty
Types of homicide at common law:
o Murder: unlawful killing of a human being by another human being with malice aforethought (malice
basically being intent)
o Manslaughter: unlawful killing of a human being by another human being without malice aforethought
Note that the MPC does not distinguish between degrees of murder today
TYPES OF HOMICIDE –
NOTE: these are general rules but always look to statutes to determine what kind of homicide we are talking about
= MURDER 1
+
PREME
DITATI
ON +
DELIBE
RATION
MURDER 2
IS DEFAULT [D knew of and
disregarded risk]
+ NOTE – NY Ct App says
impossible to be both
- MALICE reckless and neg at same
= + HOT time – so probs can’t be
BLOOD charged with both
RESPONS
E TO LAP
W/O
COOLING
OFF
PERIOD
[Reasonable person
= VM would have known of
risk, even if D didn’t ]
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Criminal Law – Outline
As of 5/9/19
First degree murder: Most serious kind of homicide; different JDs will have different definitions for it AND different
requirements on prosecution to prove (but see NY § 125.27 is enumerated categorical statute for Murder I)
Premeditated first degree murder: A killing that involves premeditation and deliberation
Actus reus: Killing someone
Mens rea: Intent to kill
Premeditation and deliberation are somewhere in between the actus reus and the mens rea!
o R: think of them as an added circumstance in the statute – eg, theft at night
o Premeditation: D must have reflected upon and formed the specific intent to kill the victim in
advance of the killing
BUT there is no timing requirement (BINGHAM WA – slippery slope)
This is a HIGHER bar than mere intent (GILBERT FL)
o Deliberation: refers to D’s thought process – was the killing undertaken with a cool head? did
he weigh pros and cons? did he plan out the killing?
Note that statutes may include enumerated means of killing someone under Murder I (eg, PA §2502
includes poison and lying in wait) and these means are specifically included bc they involve the elements
of premeditation and deliberation
Felony murder (“FM”): When the death results from conduct undertaken during the commission or attempted
commission of an enumerated felony (separate from the killing)
Actus reus: Killing someone during the commission of another enumerated crime
Mens rea: Intent NOT required because this is basically a strict liability crime
Criticism: Rising disapproval bc attaching FM to a crime where there was a death can take you from a
relatively minor offense to a serious sentence – see eg Chicago FM article
Four doctrinal rules to limit scope of FM:
(1) “Res gestae” requirement
(2) Merger doctrine
(3) Agency rule
(4) Inherently dangerous felony limitation the only one we study
Justification: D had intent to commit the inherently dangerous felony, so he probably
knew of the risk to 3Ps, thus we can imply malice for any killings that result from it
(dissent in HOWARD CA)
JDs use three approaches to determine what constitutes “inherently dangerous felony”:
“In the abstract” approach: Is the felony inherently dangerous per se?
(HOWARD CA)
o ex: Cooking meth is inherently dangerous bc the volatile substances
create high likelihood of fires
o Is EVERY ELEMENT in the statute inherently dangerous? If some
are but some aren’t, then the statute as a whole cannot be said to be
inherently dangerous
o Once ct decides a felony is inherently dangerous, there is a
categorical determination so any future commissions of that felony
resulting in death are open to FM charge
“Under the circumstances” approach: Did D commit the felony in a manner
that created foreseeable risk of death?
o Very fact specific inquiry
o By introducing element of risk into the FM charge, ct low key does
have ~mens rea element which limits FM as SL crime
Either per se OR under the circumstances (HINES GA)
o ie, cts can use either method – not stuck to one or the other
o This is test GA uses, but HINES GA ct resorted to the second
analysis bc Ford was found NOT to be inherently dangerous
(otherwise this would create categorical distinction)
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Criminal Law – Outline
As of 5/9/19
Second degree murder: Less serious than Murder 1; many states define Murder 2 as catch-all in that it’s anything that’s not
Murder 1
Murder with intent to kill or seriously injure without premeditation – per R, THIS IS THE DEFAULT /
STARTING POINT
Actus reus: Killing someone
Mens rea: Intent to kill or seriously injure – see also natural and probably consequences doctrine
Depraved heart murder: a killing due to D’s extreme recklessness – where D knew or should know that they are
taking such an extreme risk that someone could die, but they do it anyways
Actus reus: Someone dies bc of some action by D
Mens rea: Extreme recklessness D was aware of the extreme risk that their actions presented to human
life, and disregarded the risk and acted anyways
o ex of extreme recklessness: D is showing off new gun to friend and aims into a crowd; friend
says to stop; D laughs and pulls trigger; someone in crowd is killed when hit
vs. ex of mere recklessness: D is going 75mph in 40mph zone; D hits and kills
someone
o This mens rea IMPLIES malice
o KNOLLER CA: Implied malice = where D acted with conscious disregard to the danger of
human life
ex: playing Russian Roulette and firing at other person (NY 1989); parent failing to fee infant for 2
weeks out of “indifference” (CA 1977); speeding while drunk in bad weather (NC 2000, AL 1991)
Manslaughter: unlawful killing of a human being by another human being WITHOUT malice aforethought
Voluntary manslaughter (“VM”): An intentional killing that would usually qualify as murder, except for the
application of a partial defense (like provocation, diminished capacity, etc.)
Actus reas: Killing someone
Mens rea: Intent to kill, BUT there is some set of circumstances that mitigates the intent
To determine whether jury should be instructed on voluntary manslaughter –
1. D was actually provoked and actually acted in a heat of passion
2. A reasonable person would have been provoked and acted in a heat of passion
3. D did not have time to cool off between the provocation and the killing
4. A reasonable person would not have had sufficient time to cool off given the circumstances
Three approaches to measure “reasonableness” –
(1) Early common law categorical test (AMBRO IL)
In addition to the four above, there must be (5) a legally adequate provocation:
Aggravated assault of battery
Observation of a serious crime against a close relative
Illegal arrest
Mutual combat
Catching spouse in act of adultery
Mere words are never sufficient (AMBRO IL = exception for series of events)
LAP is a question of law – so judge decides if the circumstances fall within LAP
If judge decides there is LAP, jury still determines the reasonableness of the LAP
(2) Modern objective reasonable person test (BERRY CA, CARR PA)
Verbal provocation can be sufficient (BERRY CA)
Provocation can arise over a series of events over a long period of time – doesn’t have
to be in one moment (BERRY CA)
While mental illness might be considered, personal prejudice is not a factor in
determining reasonableness (CARR PA)
See CA § 192(f) – provocation bc of victim’s gender identity, sexual
orientation, etc. is NOT objectively reasonable, even where victim made
unwanted sexual advances to D
o These are all immutable characteristics of victim so to allow would
basically be like allowing a hate crime
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Criminal Law – Outline
As of 5/9/19
NOTE: Even though cts may use objective person test, they still make categorical
determinations, which are then precedent for the next case
So there is some leeway between this test and the categorical test
ex: Provocation bc of sexual orientation of others
o CARR PA – ct has decided that no reasonable person would be
provoked at the sight of gay sex, so gay sex will never be “LAP”
o See CA § 192(f) above
(3) MPC’s extreme mental or emotional disturbance standard (DUMLAO HI)
Explanation for D’s disturbance must be reasonable, but we accept it from the
viewpoint of a person in D’s position / situation
Broader / more subjective than modern reasonable person test
Personal characteristics of D relevant
o MPC: Look to D’s gender, sexual preference, pregnancy, physical
deformities, etc. (DUMLAO HI)
o These are all immutable characteristics of D
Cooling off period does NOT negate this defense
Provocation need NOT come from the victim
Jury has wider scope and more discretion than other tests
Threshold matter is whether D has credible proof of excuse – then it goes to
the jury to see if it was reasonable
o ie, once mental illness is proven to judge (with paperwork, etc.) then
everything is reached by jury for their consideration
vs. other tests – where threshold matter is whether LAP is fulfilled or not
Involuntary manslaughter (“IM”): Death brought about by “criminal negligence” – lease serious form
Actus reas: Someone dies bc of some action by D
Mens rea: Usually gross neg or [mere] recklessness (but see Williams)
o Difference between neg and recklessness: Was D aware of the risk?
See NY and OH definitions of mental states in “Mens rea” above
NY Ct App says that you CAN’T be both reckless and neg at same time bc logically at
odds, so in NY, D should never be charged with both IM and depraved heart murder
BUT, Welansky suggests otherwise
o WELANSKY MA: Standard is recklessness but definition of recklessness includes both
recklessness and gross neg – no mere neg in MA
o WILLIAMS WA: Standard is mere neg – violation of duty of special relationship, so almost like
tort-level neg
Using mere neg makes Williams an OUTLIER
o To figure out which mens rea standard to use – look to statute and common law of JD!
NOTE – there is also “misdemeanor manslaughter”, but we do not study this
o This is basically baby version of FM
HOMICIDE – CASES
Lacey case (NY Times 2015) – found guilty of 2nd degree murder for killing her 5yo son by force feeding him sodium; not
much ev (though did find bags w/ high traces of sodium) but vlogged about his LT “illnesses”; perhaps case of
Munchausen by proxy?
NYPD cop case (NY Times 1987) – cop shot other cop while both off duty after St-Patrick’s day party; @ trial, jury was
instructed on int’l murder and depraved heart murder and found him guilty of both int’l murder and reckless manslaughter
(lower charge to depraved heart); NY Ct App ordered new trial bc impossible for someone to be acting intentionally
(conscious objective of killing vic) AND recklessly (conscious disregard of unjustifiable risk of vic’s death) at same time
w/ regard to same crime
19
Criminal Law – Outline
As of 5/9/19
People v. Berry, CA 1976, p.346 VM for reasonable person
1. F: B and victim were married for ~1 month before he strangled her to death; on previous occasion, he choked her
into unconsciousness; she was from Israel and, after marriage, returned there where she met a man and fell in love
with him; she allegedly taunted B about it and demanded a divorce; B’s expert witness testified that she was
“suicidally inclined” and that, in provoking B, “she achieved her unconscious desire” of having him kill her; B
convicted of murder 1 after judge refused to instruct jury on voluntary manslaughter
2. Rule: Voluntary manslaughter is “the unlawful killing of a human being, without malice under a sudden quarrel or
heart of passion”
3. H: The determination of whether he committed an offense under heat of passion is one for the jury to make and
judge should have allowed instructions on voluntary manslaughter
4. R: Heat of passion is what would be naturally aroused in the mind of an ordinarily reasonable person under the
given facts and circumstances; verbal provocation is sufficient; this arousal can occur by a series of events over
time; P argues that the 20 hrs between last encounter and death was a cooling down period, but ct says that his
provocation might have simmered and reached culmination when he saw her after this time; there is enough
evidence to suggest HOP so jury should have been instructed on it
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a. Trial ct said that 2nd degree murder requires that D “subjectively knows, based on everything, that the
conduct that [they were] about to engage in has a high probability of death to another human”
b. App ct said that it requires “subjective appreciation and conscious disregard of a likely risk of serious
bodily injury”
3. H: BOTH trial ct and app ct were wrong – 2nd degree murder requires either express or implied malice; implied
malice means that K “acted with a conscious disregard of the danger to human life”
a. Sent back to trial ct to consider K’s motion for new trial based on Supreme Ct’s definition of malice
4. R: Trial ct’s definition of malice sets bar too high (probability is not good bc then opens can of worms for stats,
measuring it, etc.) but app ct’s is too low (bc injury < death)
a. We don’t want jury to think that this is a general meaning, bc it does + should have a specific meaning
i. This is why court moves away from Thomas as a precedent
ii. Still Philips is not much better bc this lead to the high probability language
FORCIBLE RAPE
Policy considerations – how best to craft a rape statute?
What exactly is the social harm of rape?
o Is it purely the forcible taking of sex?
o Is it more like a battery or assault? Can it be analogized to some other area of criminal law?
MTS NJ tries to analogize rape to assault in looking at the leg’s intent
o Or is the harm something unique to sex-based crimes?
What are rape laws really designed to protect?
o Is it a Victorian-era concern over women’s honour?
o More modern view of protecting ppl’s sexual autonomy?
Is all rape equal? – look to
o Mens rea
o Relationship b/w the offender and the victim
o Presence or absence of violence in the act
o Presence or absence of consent in the act
Doctrinally, what is the best way to further goals of preventing and redressing rape and protecting the rights of
offenders?
o In American law, we put the BOP on the prosecution, not D – but in crafting statutes to this effect, this
seems to be contrarian to the desire to prevent the rape in the first place
eg, RUSK MD approach places burden of both preventing rape on the victim AND then at trial,
the burden on the victim of establishing the lack of consent (negative thing to prove as opposed
to affirmative)
o Low bar for force (ie, MTS NJ) shifts burden off of victims from preventing their own sexual assault
BUT force element low key helpful to prevent – how else can we differentiate between actual
rapes and cases where victim is just making things up?
o If we define things very specifically in a statute (narrowly, enumerated items, etc.), then this leaves room
open for things NOT to fall within the crime defined by the statute bc it was probably not something
contemplated by the drafters
Courts tend to read rape statutes very narrowly
BUT you do need to draw a line somewhere!
Is the justice system really the best way to address rape?
o Would tort law or some sort of mediation do a better job at affecting goals?
o EL: Like Anderson’s negotiation model but sounds almost like it would impose strict liability so not sure
that this is best suited for the criminal system
Historic elements of rape at common law: (1) sexual intercourse, (2) by a man, (3) with a female that was not his wife,
(4) by force (proven by her “utmost resistance”), and (5) without the victim’s consent
Obviously, this is a VERY narrow definition that does not reflect modern notions of sexual autonomy, gender,
power, etc.
Notably does not cover gay rape OR marital rape
o Note that AL § 13A-6-60 through -62 still only covers heterosexual rape
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Sexual intercourse
o NOTE: Other kinds of sexual acts are also protected by statute, but forcible rape only covers penetration
By force OR threat of force
o Force and lack of consent are very intertwined – see below
o RUSK MD is exemplary of common law approach (or pre-reform)
At common law, force was a necessary byproduct of the element of lack of consent bc the theory
was that if non-consensual, then she would resist, thus D had to use force to overcome her lack of
consent and perpetrate the rape (explained in MTS NJ)
OBJECTIVE TEST for what fulfills the force requirement:
Did victim resist and this resistance was overcome by force? OR
Did D use threat of force to prevent her from resisting?
Here, force is low key still measured by the victim’s lack of consent
If gov’t has to prove that victim physically resisted, then it is usually pretty obvious that she never
consented – so lack of consent often proven through existence of force
o BERKOWITZ PA adopts a middle ground
SUBJECTIVE TEST: Under the totality of the circumstances, was victim forced to engage in sexual
intercourse against their will?
Factors: Ages of the parties, physical and mental conditions, atmosphere and setting,
authority of one party over the other, duress, etc.
Force element met with showing of moral, psychological, intellectual, or physical force
Here, force and lack of consent are still intertwined but makes room for various factors to contribute
to what constitutes force
SO here, you have to start showing more proof of consent bc you don’t have to show as much force
o MTS NJ almost eliminates the force requirement
The only force that’s necessary is the force to overcome the victim’s lack of consent – ie, if the
victim did not consent, then force is presumed
Force and lack of consent therefore still intertwined, but lack of consent becomes the primary
inquiry
Penetration can be the force
So the threshold for force lowers with each of these, but then there is a much higher / harder bar to
show lack of consent
But note that this doesn’t necessarily mean that there is a lower burden for the gov’t
Without the victim’s consent
o Force and lack of consent are very intertwined – see above
RUSK MD sees force as necessary element in proving victim’s lack of consent
BERKOWITZ PA sees lack of consent as a necessary element of proving forcible compulsion
Note that consent is not even an element of PA’s rape statute
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MTS NJ sees force as implied if victim did NOT consent – so main inquiry is about consent
o Majority rule: NEGLIGENCE standard – if a reasonable person would know that the victim was not
consenting, then D is criminally liable (MTS NJ) didn’t know but should have known – so not explicitl
negligence but close
Does NOT matter what D actually knew or thought
Permission can be implied through actions OR words
How does this interact with mistake of fact?
In non-MPC JDs, D would have to show that he reasonably and in good faith mistook the
victim’s consent
In MPC JDs, would have to show that his mistake about her consent negates the mens rea in
the statute (so bc it’s usually neg – is this the same thing bc also comes down to
reasonableness???)
o MPC (unofficial 2016 draft) –
Consent: Willingness to engage in a specific sexual act
Express or inferred from words and conduct (either action or inaction), using a totality-of-the-
circumstances inquiry
Can be revoked at any time – but this revocation can later be “overridden by subsequent consent”
Verbal refusal establishes lack of consent or revocation of previous consent
NO verbal or physical resistance required – but can be relevant to the total inquiry
CA § 261.6: Consent…
“Consent” shall be defined to mean positive cooperation in act or attitude pursuant to an exercise of free will. The person must act
freely and voluntarily and have knowledge of the nature of the act or transaction involved.
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Criticisms: This relies on men’s capability to infer consent from body language, which
they scientifically cannot + this doesn’t account for gradated sexual experiences
Negotiation Model: Partners must have a communicative exchange about whether they want to
have sex, and if they don’t it can be presumed to be non-consensual – so rape occurs any time
this negotiation does not happen
This is author’s idea / suggestion
Justification: The other models put the onus on the woman to say or do more – this
model flips the burden onto the man to make clear that he must seek consent before
acting
o Ways that JDs attempt to correct problems with common law approach –
Eliminating the requirement that the prosecution prove the victim’s resistance in order to prove
the “force” element
But evidence showing lack of resistance may be used to prove that the victim in fact
consented (BERKOWITZ, PA statute §3107 that “resistance not required)
Eliminating the element of force altogether (while still allowing some evidence of force to prove
lack of consent)
Eliminating a requisite consent element – though it might still require a showing of NON-
consent
Wrongfully witness testimony article (NYT 2000): Author was raped in her apt in early 1980s; thought she studied her
attacker well; identified him as Ronald Cotton; at trial and 2nd trial after appeal, testified it was him; at time of 2nd trial,
another inmate was claiming it was actually he who raped her; he was sentenced to life in prison; 11 years later, DNA
evidence showed that it was not Cotton by Bobby Poole who raped her; Cotton released from prison; now understands that
single-eye-witness convictions are inherently flawed
Cross racial identification = big problem area – eyewitnesses generally unreliable
Today, NY is one of 3 states (NJ + MA are two others), jury must be instructed on the unreliability of this
Dallas jury article (Dallas News 2016): Cesar Vega convicted by jury of sexual assault of a 13yo relative; after verdict, 3
members of jury approached judge and told him they were forced into this verdict by the other members of the jury; Vega
requested new trial but the judge denied it and sentenced Vega to 10 years in prison; now seeking new trial on grounds of
jury misconduct (not supposed to deliberate unless all together, etc.); 3 members feel horrible
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DRUG CRIMES
Policy considerations –
Is drug use a criminal issue or a health crisis? Is the criminal justice system really the best way to deal with it?
o In 2017, deaths from overdose were ~70K (up from ~50K in 2015)
This is largely due to the opioid crisis that has sprung up in the last 5 years
vs. car crash and gun-related deaths both around ~40K in 2017
The US has very strict drug laws and arrests and jails a massive number of people in relation to drug crimes
o Stemming from War on Drugs era
o Annual spending in US on drug crimes: > $51 trillion
o Perhaps most notably, the US has very strict laws relating to what we would probably consider to be
more “minor” offenses – ie, less morally blameworthy
FBI says in 2017 1.47M people were arrested for “drug abuse violations”
Of these arrests, 1.13M were for possession offenses the MOST MINOR DRUG CRIME
Of these, ~500K were for marijuana possession
But note that this number has fallen in recent years
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o Flight itself is NOT sufficient to prove constructive possession – but it is not
irrelevant to the inquiry
Unlawful possession with intent to distribute: Basically, knowingly manufacturing, selling, distributing, OR possess with
intent to do any of these things
Unlawful possession is a lesser included offense of possession with intent to distribute
o Same elements but possession with intent to distribute has a higher mens rea
Intent is higher than knowledge, but knowledge is a prerequisite of intent so subsumed by it
o You can be convicted of both but the sentences will be merged – bc the possession is the same thing in
both convictions
Sentences for conviction may vary depending on the amount of drugs found – see eg WHITAKER CO
o Leg purpose: punishing those who deal with greater quantities more severely bc more morally
blameworthy and greater social harm
GA § 16-13-30: Possession, manufacturing, etc., of certain controlled substances or marijuana
(b) Except as authorized by this article, it is unlawful for any person to manufacture, deliver, distribute, dispense,
administer, sell, or possess with intent to distribute any controlled substance.
Elements: Knowingly, possession, controlled substances, intent to distribute
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Actus reus: Either manufacturing, delivering, distributing, dispensing, etc. OR possessing the drugs with intent to do
any of these things
o WHITAKER CO suggests that for possession with intent to distribute, any amount of drugs found on D can
support a conviction where the statute is broken up between the elements and the sentencing
So can be convicted even if less than a usable quantity – eg, residue
DRUG CRIMES – CASES
DEFENSES
Case in chief defense: Basically saying that prosecution failed to prove one element of the crime beyond a reasonable doubt
Affirmative defense: D admits to the guilt of the charged offense but claims that he should be acquitted for other reasons
Common defenses:
Mistake of fact and mistake of law
Justification defenses: About the ACT, not the actor – made up of (1) Self-defense, (2) Defense of prop / others,
and (3) Necessity
Excuse defenses: About the ACTOR, not the act – made up of (1) *Duress*, (2) Intoxication, (3) *Insanity*, and
(4) Infancy
Mistake of fact: a mistaken belief regarding some material event, belief, or circumstance that MAY negate a specific
element of a criminal offense
ex: “I was speeding bc my speedometer is broken so I thought I was going 60, not 70”
RULE: Mistakes of fact may negate a requisite element of a crime, so they are permitted defenses under certain limited
circumstances – but we have different approaches for common law and MPC
MPC approach
o RULE in NY
o MPC does NOT distinguish between specific and general intent crimes
MISTAKE OF LAW
Mistake of law: a misunderstanding or mistake belief that occurs when a person, with complete knowledge of the facts,
reaches an incorrect conclusion as to the legal effect or result
ex: “I had no idea the speed limit was 60mph; I thought it was 70”
RULE: At common law AND under MPC, ignorance of the law is NOT a defense, but there are exceptions!
The misinterpretation must be made by a public official who has the authority to speak on the law
and is speaking in his capacity of a public official
CANNOT be D’s individual misinterpretation (MARRERO NY)
Can be used to exonerate Ds bc realistically the “discovery” that the interpretation was erroneous
does not happen until after convicted
But note, very rare that the official interpretation is later discovered to be erroneous
Most likely situation: lower ct decision on Case A says X, then someone personally reads
and relies on it (must have actual knowledge of this), then arrested for Case B and during
this trial, appellate ct on Case A says the proper law is actually Y
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Criticism: there are many laws that ppl either don’t understand or don’t even know about that we
violate all of the time and mistake of law defenses are very narrow (see eg, MPC, NY § 15.20)
Solution: some small / random laws explicitly say that in order to violate it, D must have
known of the existence of the law + Pros must prove this – see (2) below
(2) Where knowledge of law is element of the crime, and ignorance negates that mens rea element
(3) Under limited circumstances, the prosecution of a person who lacks fair notice of a legal duty imposed by law
on them can violate due process
--------------------
People v. Navarro, CA App Dep’t 1979, p.250 common law approach to mistakes of fact
1. F: N charged and convicted of grand theft for stealing four wooden beams from a construction site; N claim it was
a mistake; there was enough evidence at trial for a jury to believe either that N believed they were abandoned and
the true owner would have no objection to him take them; trial ct refused two jury instructions by N that explained
that belief of abandonment = mistake = acquittal; instead gave jury instructions that said that if N took them in the
reasonable and good faith belief that they were abandoned OR if he had reasonable and good faith belief that he
had owner’s permission to take them, he should be acquitted
2. Rule: If general intent crime, a mistake of fact is not an excuse unless it is based on (objectively) reasonable
grounds; but for the specific intent crime of larceny (can’t commit negligently), the mistake does not have to be
reasonable as long as the belief is genuine
3. H: Jury instructions were wrong in saying that mistake had to be reasonable – evidence showed that it was in good
faith so N should have been acquitted
4. R: If he honestly believed the beams were abandoned or that he had owner’s permission to take them, he cannot
have had the specific intent necessary for theft; doesn’t matter if this belief was reasonable or not (tho if jury
found the belief unreasonable, it might infer that it was not in good faith); bc no mens rea, he must be acquitted
JUSTIFICATION DEFENSES
JUSTIFICATION DEFENSE: If an illegal act is justified, then D is not criminally liable for it – basically, says that there
is no social harm bc there is some explanation for it
About the ACT, not the actor (vs. excuse defenses)
So in addition to the four standard requirements of a crime, there is a fifth requirement that the crime was NOT
justified in some way
Two main kinds: Necessity and self-defense
NECESSITY
Necessity, generally:
Necessity is an affirmative defense where, from an OBJECTIVE perspective, the harm caused by following the
law (ie, avoiding the criminal action) outweighs the harm by breaking the law
Necessity is about the ACT, not the actor
o So should be the case that any person who did the thing would be found to have a defense
Necessity has more to do with EXTERNAL FORCES acting on D
o vs. duress – where D’s actions were motivated by human forces
Examples –
o + ex: Commonwealth v. Thurber (distinguished in Hutchins) – D was convicted of escaping prison, but he
only did so bc his life was in immediate danger there and he submitted himself to authorities “promptly”
so there was no social harm
o – ex: HUTCHINS MA – D possessed / smoke marijuana, but only bc he had an extreme medical
condition and the weed was the only thing to alleviate his symptoms
So this is NOT about the act, but the actor – ie, there was no external pressure and the
“necessity” was purely unique to him
o – ex: CONTENTO-PACHON – D smuggled drugs into US, but did so bc was forced to by a cartel in
Colombia (this is duress, not necessity)
CONTENTO-PACHON suggests that necessity arises where D acted in the interest of the
general welfare of the public
Common law does NOT allow necessity as a defense to homicide / killing
o See also DUDLEY AND STEPHENS – you cannot take an innocent life to save your own (vs. self-
defense where killing is permitted bc someone attacked YOU first)
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o vs. MPC which does
SELF-DEFENSE
Self-defense, generally:
In most JDs, self-defense is an affirmative defense
o Exception: NY – Self-defense is a case in chief defense, therefore the BOP is on the prosecution to
DISPROVE D’s lack of self-defense (NYPL §§ 25.00, 35.00)
Areas of concern –
o How do we determine whether D’s use of force was reasonable?
At a certain point, entire subjectivity effectively nullifies the reasonableness requirement!
See also involuntary manslaughter
o Where is the line between use of force and vigilantism?
o How does this apply to the police?
Requirements of self-defense:
Castle doctrine: D has NO duty to retreat before using deadly force to protect himself (and in some JDs his prop) from
attack by an intruder (NYPL § 35.15, JENKINS FL)
Common law rule that has been codified in some JDs
So is exception to the duty to retreat that is built in to most self-defense statutes – ie, there is NO duty to retreat
when you are in your own home
Requirements:
D is in their own home
D or a family member faces assault or apparent imminent danger of great personal injury
D has an actual belief, and circumstances are such that a “reasonably cautious and prudent person” would
believe, that the threat / great personal injury are imminent
So seems to be more objective that the requirements for reasonable belief in use of self-defense
Stand your ground laws: Where D is anywhere that he has a lawful right to be, D has NO duty to retreat if other self-
defense elements are met (eg, Zimmerman/Martin case)
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Extension of the castle doctrine to outside the home
As of 2018, at least 25 states have some version of stand your ground laws (eg, FL
DEFENSE OF PROP
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1. F: Geotz, white man, shot four Black teenagers on NYC subway; 1-2 of them had approached him and asked for
$; he alleged they were trying to rob him, and pleaded self-defense at his trial; indicted by Grand Jury of murder;
App Div reversed saying that jury instructions were wrong; jury was instructed that “reasonably believes” means
whether D’s conduct was that of a reasonable man in D’s situation; App Div said that lang of statute meant that
inquiry is whether the belief was reasonable to the D
a. See NY homicide code – G was charged with Murder 2 bc pretty obvious intent (ie, hit them squarely in
bodies with planned “pattern of fire”, went back to shoot one of them again, said he wanted to kill them)
b. NOTE: This is very unique case bc this is one that the PROSECUTION APPEALED
2. Rule: NYPL § 35.15(1) – Self-defense permitted when D reasonable believes physical force to be necessary to
defend himself (or 3P) from what he reasonably believes to be danger by such person; NYPL § 35.15(2) – Self-
defense with deadly weapon only permitted (a) D reasonably believes the other person is using deadly force, OR
(b) D reasonably believes the other person is attempting to commit … robbery
a. Standard of proof: § 25.00(2) – preponderance of the evidence
3. H: “Reasonably believes” means, in light of SOME of the circumstances, whether a reasonable person in the place
of D could have had the same beliefs – so initial Grand Jury instructions were correct
4. R: This interpretation (rather than App Div’s) is in line with the ordinary meaning of the statute AND leg’s intent
in adopting it; App Div’s interpretation would yield absurd results so must be rejected (canon); App Div’s
interpretation basically means that D can set his own standard for permitted use of force – if D thought it was
okay, then he would have to be exonerated; but if leg wanted to get rid of reasonableness requirement like this
(more like MPC), then it would not have included language of reasonableness in statute; BUT this should not be
interpreted to mean that this is completely objective test – jury must take into account physical attributes of
parties, prior experiences by D, etc.
Jenkins v. State, FL (App Ct) 2006, p.603 CASTLE DOCTRINE AND DUTY TO RETREAT
1. F: J is roofer and he and his family occupied two trailers; J in trailer with daughter (she told him of some recent
altercation); Byran Cerezo banged on door of other trailer (had something to do with previous altercation re
daughter); J told him no one was there and to leave; J went outside to get rid of him when C wouldn’t leave;
verbal confrontation; C then punched J; J took knife from workbelt (knife use for work purposes); C threatened
that he had a gun; C then ran up to strike J again; J’s knife “entered” C as if he only held it up in self-defense; J
convicted of manslaughter for killing C; J appeals on grounds that the conviction was against the weight of the
evidence
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2. Rule: Jury instructed on both kinds of SD; (1) General SD – A “person is justified in the use of deadly force only
if [he] believes that such force is necessary to prevent imminent death…” BUT there is a duty to retreat so, if the
person can do so safely, then must before resorting to force; (2) Castle Doctrine – When one is violently assaulted
in own home or immediate premises, there is no duty to retreat
3. H: J established prima facie case of SD, which State did not overcome, so conviction overturned – therefore jury
finding was against the weight of the evidence
4. R: Regardless of what kind of SD we are talking about, both permit J’s actions – he is on his own “land” and he
never had opportunity to retreat as required by general SD; there is no duty not to engage so we cannot legally
fault him for leaving the trailer (he had right to protect his fam); the duty to retreat for general SD does not arise
until the aggressor has used force – so here, there was no duty on J until C struck him the first time; BUT he
actually had no duty to retreat but evidence shows that there was not enough time for J to do so between the first
punch and when C attacked him again (and he killed C) AND bc there was nowhere for him to retreat (he was
already at his home); further, J otherwise acted reasonably – had no history with C, told him to leave first, verbal
warning of language and visual warning of knife, etc.; where D establishes prima facie claim of SD BOP shifts
back to State to disprove the claim beyond a reasonable doubt; here, State failed to do this so J should have been
acquitted
EXCUSE DEFENSES
EXCUSE DEFENSE: There is something “wrong” with D that precludes them from criminal liability for their actions
About the ACTOR, not the act (vs. justification defenses)
Made up of (1) *Duress*, (2) Intoxication, (3) *Insanity*, and (4) Infancy
DURESS
Duress, generally:
At common law, duress is NOT available as a defense to intentional homicide
Differences between duress and necessity –
o Duress: committing the crime in response to a threat from a specific individual – so arises where D’s
actions were triggered by some other HUMAN action
o Necessity: committing the crime in response to a dire situation – so arises when D’s actions are triggered
by some separate, external force
D reasonably believed that the threat would be carried out unless the crime was comitted
o CONTENTO-PACHON suggests that the reasonableness is measure in light of the context – so kind of
subjective
o Contento-Pachon: The drug cartel had the financial means to monitor family and execute them AND there
was a lot of $$ at stake for the cartel in D performing the act so they had legit incentive to carry our threat if
he failed
~ In prison-escape cases, D must submit to the proper authorities after attaining a position of safety
o Quasi- fourth element
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o CONTENTO-PACHON limits this to cases where a prisoner has escaped from jail – bc in all other cases,
there is little difference between this and the 3rd element
If D has the opportunity to turn himself in, then he is also in a position to flee from the threat
MPC definition of duress: Conduct coerced by use of, or threat to use, unlawful force against D or another, that a person of
reasonable firmness in his situation would have been unable to resist
Differences between common law and MPC –
o MPC has no requirement of imminence
o MPC doesn’t require an explicit threat of death / serious bodily injury, just unlawful force
o Duress CAN be a defense to intentional homicide under MPC
INSANITY
Insanity, generally:
4 JDs do not have an insanity defense at all! – eg, Idaho
Very rare in both application and success, which means that there are many ppl with mental illnesses that fall
through the system and end up in prison –
o 16.9% of ppl in prison have mental illness (vs. 5% of the national population)
So the mentally ill are overrepresented in prisons
o Less than 1% of criminal cases involve the insanity defense
o Of these, only 1/4 cases are successful in invoking the defense
But 90% of the Ds in these cases have a medically diagnosed mental illness
Even where they are successful, there is still a “punishment” in that they are usually committed
to a psychiatric institution (AZ
o About half of these cases involve violent crimes, with 15% of them being for murder
Insanity ≠ incompetence
o Incompetence: the person is not fit to stand trial – so focuses on the time of the TRIAL
ie, they don’t know what’s going on right now so we’ll wait until they recover and then we can
fairly give them a trial
o vs. insanity: the person is not criminally liable bc of their mental state at the time of the CRIME
o Therefore, you may be able to invoke both
The insanity defense is relevant bc punishing a mentally ill person would not serve any punishment goals
(discussed in FREEMAN)
o No deterrence
No specific deterrence – D will never be able to learn or control his conduct
No general deterrence – the public won’t learn anything from their punishment, bc of the fact
that D is mentally ill therefore not like them
o (Probably) no retribution – while we punish someone for their moral wrongdoings, but the idea here is
that this person was not aware of this moral wrongdoing
Counterpoint: the social harm still exists! – eg, if the social harm of murder is that someone is
dead, the fact that D is insane does not change the fact that the victim is dead
o (Probably) no rehabilitation – there’s no way to teach these ppl not to do this and generally, institution >
prison in terms of helping them
Insanity defense at trial –
o D must give the prosecution notice that he is planning to invoke an insanity defense (NYPL § 250.10)
o Jury instructions will read:
First, whether they’ve found that the prosecution has established every element of the crime
beyond a reasonable bound
(( bc P still has BOP for each and every element beyond a reasonable doubt ))
If yes, they will continue to next inquiry
If not, then D is acquitted
Second, whether D has shown his insanity defense
(( see eg, NYPL § 25.00 – bc insanity is an affirmative defense, D has BOP ))
Usual standard = preponderance of the evidence (eg, NYPL § 25.00)
o So this is lower than beyond a reasonable doubt
If yes, then not guilty
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If no, then convicted of the charged crime
o REMEMBER THAT EVEN IF MENTAL HEALTH ISSUES DO NOT RISE TO THE LEVEL OF
INSANITY, THEY COULD UNDERMINE THE MENS REA ELEMENT
M’Naghten Test: To avoid crim liability, a person must suffer from mental disease or defect that makes him incapable of
knowing the nature and quality of his actions or that those actions were wrongful
Used in a little less than half of JDs – eg, AZ § 13-502 (???)
Requirements:
D had a disease of the mind
o Applying Freeman facts: D had to show some disease related to alcohol / drug addiction and
any related problems from his concussions
o Woman who killed her children video: YES – she had postpartum depression with psychosis
NOTE: The fact that she could have prevented this by just not having another kid may
weigh against her at trial
This disease caused a defect of the mind
o Freeman: See above bc pretty much the same thing
o Woman who killed her children video: YES – the postpartum psychosis caused her to hear
voices, experience manic depression, etc.
Such that at the time of his actions, D did NOT know either of –
(1) The nature and quality of his actions, OR
eg, D has a dissociative break and didn’t know that they were stabbing someone
Freeman: D argued that he didn’t know what was going on at the time of the crime
Counterpoint: He was cogent enough to understand that he had been
shortchanged at the drug sale
Woman who killed her children video: NO – she knew that what she was doing was
killing her kids (planned it out, waited until her husband left the house, killed them in a
very methodical way)
Durham Test: D is not criminally liable if his unlawful conduct was the product of a mental disease or defect
The most rare
Requirements:
D had a mental disease or defect
D’s commission of the crime was the product of the disease / defect (EL: so where the mental issues were
part of the reason for D committing the crime)
Very similar to the M’Naghten test but is arguably better than it
o Better accounts for issues of causation
o Less likely to become a battle of the experts
MPC Test: D is not criminally liable if at the time of the criminal act, due to some mental disease or defect, he lacked the
substantial capacity to appreciate the wrongfulness of his conduct or conform that conduct to the law
Used in a little less than half of JDs
Requirements:
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D had a mental disease or defect
At the time of his actions, due to a mental disease / defect, D lacked the substantial CAPACITY to –
(1) Appreciate the wrongfulness of his conduct, OR
FREEMAN: Given D’s historic and substantial use of drugs (and his concussions), he
did not appreciate the wrongfulness of the conduct – ie, he had no idea that selling
drugs was wrong
Note that ct seems skeptical of his claim but it is not their place to make
factual determinations
EL: This seems to be more of a balancing test than M’Naghten – ie, woman killed her
children bc scared for them of devil outweighs the fact that she knew it was wrong to
kill them
(2) Conform his conduct to the requirements of the law
Freeman: Probably no argument for conforming standards bc he was still selling the
drugs
Better than M’Naghten and Durham tests bc allows juries / judges to hear ALL of the facts – so allows for better
gradation (rather than the black-and-white nature of the other tests)
At the time of FREEMAN (1966), this was federal rule; HOWEVER, federal cts shifted back to the M’Naghten
test after the person who attempted to assassinate President Regan was acquitted under the MPC test
o Many states shifted back too
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1. F: F was found guilty of selling drugs after he sold heroin to an undercover police officer; F had long history of
drug / alcohol abuse (and multiple concussions) and tried to invoke an insanity defense at trial (ie, he lacked
capacity to be found guilty for his actions); the trial ct applied the M’Naghten test for incapacity, which provides
that to avoid crim liability, a person must suffer from mental disease or defect that makes him incapable of
knowing the nature and quality of his actions or that those actions were wrongful; F’s expert psychiatric witness
testified that F had experienced toxic psychosis, delusions, amnesia, brain trauma, etc.; further, he said that though
F knew that he was selling heroin at the time of the crime, he did not know that it was wrong; the prosecution’s
expert psychiatric witness said that even though his drug use may have compromised his mental capacity, he
could still tell right from wrong; the trial ct decided this did not meet the M’Naghten test standard; the judge
therefore had to convicted him
2. H: The best test for crim liability is the one from the MPC – remanded to apply this test
3. R: Society does not punish the mentally ill for criminal acts bc it does not serve the 3 purposes of crim law – (1)
Does not serve to rehabilitate them (institution > prison, in terms of helping them), (2) Does not serve to deter
them (bc by they will never be able to control their conduct), and (3) Does not serve any retributive purpose (bc
there is little satisfaction from punishing them); the M’Naghten test is outdated and too strict, bc it does not allow
for someone who knows right from wrong but cannot control their actions; in Durham, the ct rejected the
M’Naghten test and asked instead simply whether the criminal act was the product of some mental disease /
defect; the MPC has another rule that a that a person should not be held criminally responsible if at the time of the
criminal act, due to some mental disease or defect, he lacked the substantial capacity to appreciate the
wrongfulness of his conduct or conform that conduct to the law; of the three tests, the MPC is the best bc it
acknowledges that mental illness can manifest in different ways, does not require total incapacity, and mere
knowledge of wrongfulness is NOT the same as understanding
INCHOATE CRIMES
Inchoate crimes: Punishing the crime even though the actor has not completed the crime that they set out to and intended
to complete
Attempt
Conspiracy
Solicitation (we are not covering): D is guilty of solicitation if he requests or encourages another to commit a
crime – ie, hiring a hit man to kill someone else
~ Accomplice liability (ie, aiding and abetting) – not technically an inchoate crime bc the crime HAS been
completed and inchoate crimes refer to where the crime has not been completed
**note that you can be charged both as conspirator AND w/i accomplice liability**
Attempt Conspiracy Accomplice liability
Basic idea D tried to commit a crime but did not D agreed to commit a crime, and at D did not take part in the crime but is
finish it for some reason least started to commit it morally liable for the consequences
bc he helped in its commission
Inchoate Yes Yes No
crime?
Substantive Yes Yes No
crime?
Merge with Yes – you cannot be charged with No – you can be charged with both ------
completed attempt and the underlying crime the underlying crime AND
crime? (the whole point is that you never conspiracy to commit it
fully committed the crime)
(they are separate prosecutable
offenses)
Actus reus Doing something towards the (1) Agreement to commit a crime – A provides some assistance to P
commission of the crime – JDs have - Unilateral: only 1 person beyond mere presence (- PACE IN)
three tests: needs to intend to commit the - If 2+ elements, assisting in one
- Substantial step (MPC, - HARRIS conspiracy in re the fulfills actus reus (-
IL, + HINKHOUSE OR) agreement ROSEMOND)
- Unequivocal step (+ STAPLES - Bilateral: 2+ ppl need to agree
CA) (- PACHECO WA)
- Dangerous proximity (- RIZZO (2) Some overt act by any one
NY) conspirator in furtherance of the
conspiracy
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Attempt Conspiracy Accomplice liability
Mens rea ** very similar requirements ** (1) Intent to do the acts that assist P in
(1) Intent to commit the act (1) Intent to agree to commit the the commission of the crime
(2) Specific intent to commit the crime (2) Whatever mens rea is required for
target offense and cause ultimate (2) Specific intent to commit the the commission of that crime (+
social harm (- HARRIS IL, + target offense and cause ultimate FOSTER IL)
HINKHOUSE OR) social harm (- SWAIN CA) - If 2+ elements, BOTH mens
reas must be fulfilled (-
ROSEMOND)
You CANNOT be guilty here where the underlying crime has a mens rea of CAN be guilty where the underlying
reck or neg – bc BOTH are specific intent crimes crime has a mens rea of reck or neg
ATTEMPT
Attempt, generally:
If you are convicted of an attempted crime, you are usually convicted almost to the full degree as if you had
actually committed the crime
In fed criminal code, there is no general attempt statute – you can only be charged with attempts for specific
crimes that have it built in to them (vs. most states have general attempt statutes – eg, NYPL §110.00 and OR §
161.405)
Attempt: Act, done with intent to commit a crime, but failing to effect its commission
o Complete attempt: A shoots B in the head and B does not die; A is guilty of attempted murder
o Incomplete attempt: A runs toward B with a loaded gun screaming “I’m going to shoot you”; bystander
knocks A over has he is shooting so bullet goes astray; A is guilty of attempted murder
Considerations in charging, convicting, and sentencing –
o What are the circumstances?
+ STAPLES CA stopped doing the crime – even if no defense of abandonment, he did make an
affirmative choice not to go through with it
vs. – RIZZO NY who only only did not carry out the crime bc he was caught before he could
o Severity of the crime / social harm of the crime – is kidnapping (RIZZO) more “serious” than bank
robbery (STAPLES)?
Innocent victim vs. “faceless” victim that is probably insured
Also the increased risk of physical personal harm to the victim in RIZZO
Negative externalities of each?
OR § 161.405(1): Attempt
A person is guilty of an attempt to commit a crime when the person intentionally engages in conduct which constitutes a substantial
step toward commission of the crime (see + HINKHOUSE)
Actus reus: Engaging in conduct that goes towards the commission of the crime
o The difficulty is determining how much of the crime needs to be completed for it to qualify as intent
o Main concern = at what point does D cross the line between preparation and perpetration?
o Three approaches –
** Listed in descending order of completeness of the crime, therefore from the lowest bar to highest
bar to be met **
Dangerous proximity (– RIZZO NY, significant minority of JDs): D must be so near to completing
the crime that “in all reasonable probability the crime itself would have been committed but for
timely interference”
Other considerations –
o Acts that are very near to the accomplishment of the intended crime
o An overt act such that the commission of the crime would be the natural effect,
unless prevented by some extraneous force ie, is there anything to stop D from
committing the crime?
o An act immediately, not remotely, connected with and directly tending to
commission of the offense
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– RIZZO: Ct suggests that the line at which Rizzo would have satisfied attempt is when D is
in the presence of the victim
Under this test, if police intervene at any point before D sees the victim, D can’t be
prosecuted for attempt
o This could have implications on how the police will engage
Unequivocal step (+ STAPLES CA): Once D has acted in the performance (NOT mere preparation)
of the crime, he can be found guilty of attempt and cannot raise the defense of abandonment
Act must be far enough toward accomplishment of the desired result to amount to
commencement of consummation
Preparation = devising or arranging means or measures necessary for commission of the
offense
Attempt = direct movement toward commission after preparations made
Substantial step (MPC, – HARRIS IL, + HINKHOUSE OR, majority of JDs): Once D has done
any act which is a substantial step in the undertaking of a crime, he can be found guilty of attempt
How much has D done towards committing the crime? (vs. how much left does D have to
do)
But note, in some JDs if there is very strong evidence of D’s intent, then a weak(er) actus reus can be enough to prove
attempt (3rd test on Staples slide)
Defenses to attempt –
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Renunciation / abandonment: Occurs where D stops in this commission of the crime voluntarily and bc of a chance of
heart of conscience (STAPLES CA)
o Renunciation is NOT from the common law, but was introduced by the MPC
o The basic idea of renunciation is that D has to UNWIND THE CRIME
o Many JDs require D to take affirmative steps to prevent the commission of the crime; HOWEVER, these JDs
are likely the ones that use a dangerous proximity actus reus test (eg, NYPL § 40.10 and RIZZO)
vs. OR which has no renunciation defense – this is bc OR uses a substantial step actus reus test
(HINKHOUSE); HOWEVER, you CAN’T unwind the intentional substantial step that you’ve taken
with the intent to commit the overall social harm
COMPLICITY
Complicity / accomplish liability, generally:
This is technically not an inchoate crime (but you can use accomplice liability for inchoate crimes)
NOT A SUBSTANTIVE CRIME IN ITSELF – so won’t see statutes aimed at it (unlike attempt)
Instead, accomplice liability doctrine is just a way to prove that D is guilty of the crime himself / itself
o We are punishing him for the moral liability associated with the commission of the crime and resulting
social harm
o Derivative liability: A’s guilt derives from B’s (the principal) guilt
That’s why you can’t have A’s trial until B’s – bc we need to know if B is guilty
A will not be guilty (or even tried?) if B is not guilty
Distinctions and definitions –
o Principal in the first degree (“P1”): The person who actually commits the acts constituting the offense
Direct liability
eg, P1 robs a bank
o Principal in the second degree (“P2”): The person who intentionally assists the principal in the first
degree and is present (either actually or constructively) during the commission of the crime
Constructive presence is often enough to render assistance
eg, P2 is the lookout outside while P1 is robbing a bank
o Accessory before the fact (“ABF”): A person who intentionally assists, but is not present for, the
commission of the crime
eg, ABF buys guns for P1 and P2
o Accessory after the fact (“AAF”): A person who helps the principal in the first degree and their
accomplices avoid arrest, trial, or conviction
eg, P1 and P2 show up at AAF’s house; she agrees to let them hide the $$ there but did not
know anything about the robbery in advance
o *** Note that for the most part we only use the general terms “principal” and “accessory” now ***
Under the modern approach, P1, P2, and ABF are all treated the same – all would be guilty of
the same substantive offense (see eg, CA § 31)
Only AAF might be guilty of a lesser offense, which is not technically accomplice liability (see
eg, CA § 32) – NOTE: we don’t study this
Punishment: Generally all principals and AAF are sentenced equally
o In practice, however, a judge may exercise discretion and give AAF a lesser sentence if the
circumstances merit it
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SCOPE OF ACCOMPLICE LIABILITY: If principal committed anything beyond the target crime, accomplice may
still be criminally liable for this!
Natural and probable consequences theory: An accessory for any criminal act which in the ordinary course of
things was the natural and probable consequence of the crime that he advised or commanded, although such
consequence may not have been intended by him (ROY)
o No need to inquire about Accomplice’s mens rea / actus rea here – the entire point is that he was not involved
but bc it was so closely tied to the target crime, we can broaden liability
o Most JDs have this but NOT MPC
o Other factors / considerations –
Look at what may REASONABLY ENSUE, not what might conceivably happen
Must be “within a reasonably predictable range”
NOT enough for the gov’t to show that the accomplice knew or should have known that the
principal might commit the extra offense
Liability for consequences is in the normal range of expected outcomes if nothing unusual intervenes
(test from ROY)
“Probable” is more exalting (better) than “possible”
o Inquiry steps –
1. Did Principal commit the target crime?
2. If so, was Accomplice an accomplice to the target crime for which he is criminally liable?
See above for actus reus and mens rea requirements
3. Did Principal commit any other crimes?
4. If so, were those crimes within a reasonably predictable range of the target crime (even if
Accomplice did not intend for them to happen)
o – ROY: During the target crime of carrying a pistol without a license (CPWOL) (which was bc undercover
officer wanted to buy one), the principal using the gun to rob the officer was NOT a reasonably probably
outcome for which the accomplice can be held liable
o Danger: slippery slope concern in broadly applying N&P theory
This is why drafters of MPC did NOT include it
eg, ROY: Gov’t argues that armed robbery is an N&P consequence of CPWOL, but if ct accepted
this, then even where it was the police officer that used the gun to rob the principal, the accomplice
would STILL be liable for this
CONSPIRACY
Conspiracy, generally:
Conspiracy is an inchoate crime
So it is its own substantive crime (like attempt, unlike accomplice liability)
o You can be charged with both the underlying crime AND conspiracy to commit the underlying crime –
they are separate prosecutable offenses (unlike attempt)
Does not usually merge with completed crime (vs. attempt which does merge)
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object thereof, by 1+ of the parties to such agreement so this is closer to majority rule
18 USC § 371: Conspiracy to commit offense or to defraud US FEDERAL STATUTE re Assange indictment
If 2+ persons conspire either to commit ANY offense against to US or to defraud the US … and 1+ of those persons do any act to
effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than 5 years, or both
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SCOPE OF CONSPIRACY LIABILITY: If conspirator committed anything beyond the target crime, other(s) may be
criminally liable for this!
Pinkerton Doctrine: Conspirator may be held liable for a crime committed by another co-conspirator, even if they did
not take part in it and it was not part of the original conspiracy
o Applies in all fed cts, but only in some state JDs (vs. MPC and other JDs reject it bc very controversial)
Requirements (per SCOTUS, applied in + MOTHERSILL):
1. The additional crime was committed in furtherance of the conspiracy
Mothersill: Yes – the death of the trooper was an unintended result of the intent (attempt?)
to kill another person, which itself was motivated bc the actor was concerned she would
snitch about the conspirators drug ring
2. Within the scope of the conspiracy (this is very related to #3 below)
Mothersill: Yes – given the substantial amount of drugs and money involved, it was within
the scope – conspirators must have been aware of the likelihood that one member would kill
someone if necessary to protect the conspirators’ interests
3. A reasonable foreseeable consequence of the conspiracy – even if NOT part of the conspiracy
Objective standard of reasonableness – ie, what would a reasonable person who was in the
circumstances expect to happen?
Mothersill: Yes – murder for an underlying drug conspiracy is reasonably foreseeable bc
two of the conspirators had already killed someone (indeed, this is what motivated the death
at issue here), the conspirators repeatedly threatened violence, and were consistently armed
with deadly force
Roy v. US DC Ct. App. 1994, p.834 ACCOMPLICE LIABILITY N&P CONSEQUENCE THEORY
1. F: Roy and Ross were both convicted of armed robbery and carrying a pistol without a license (CPWOL); Miller,
an undercover cop, asked Roy to get him if he could purchase a gun (illegally); at the trade, Roy confirmed that
Miller had the requested $400 and then told him to go see Ross nearby who had the gun; Ross gave the gun to
Miller but asked for it back shortly after; Ross then loaded it, pointed it back at Miller, and robbed him of the
$400; Miller testified at trial that Ross was doing this bc Miller had “stuck up his ppl”; Roy contends that there is
insufficient evidence to support the conviction for armed robbery and appeals the trial ct’s denial of his motion for
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judgment of acquittal (MJOA); gov’t argues that the natural and probable consequences doctrine proves he was an
accomplice to the robbery
2. H: There was insufficient evidence to support Roy’s conviction for armed robbery – so reversed on this count, but
affirmed the 3 other convictions
3. R: Firstly, there was no evidence of Roy’s direct intent to be complicit in the robbery of Miller, so a reasonable
jury would never have accepted this; the trial court erred in allowing the gov’t to introduce the natural and
probably consequences doctrine; a natural consequence is one “which is within the normal range of outcomes that
may be expected to occur if nothing unusual has intervened”; though Ross’ robbery of Miller was certainly a
conceivable event, it was not reasonably to be expected; there are vast differences in the crimes of CPWOL /
selling a gun and armed robbery so you can’t say the former would necessarily, or even probably, lead to the latter
in the “ordinary course of events”; also, the gov’ts arg is a slippery slope / floodgate concern bc would lead to too
broad an applicable of the N&PC doctrine (ie, if the robbery had been Miller robbing Ross, this would be
supported); finally, the sentences for each crime (misdemeanor for CPWOL vs. potential life imprisonment for
armed robbery) is a factor – though not a legal one
Rosemond v. US, SCOTUS 2014 [Canvas] ACCOMPLICE LIABILITY WHERE MULTIPLE ELEMENTS TO
CRIME– NOT N&P
1. F: Perez arranged a drug deal; Gonzales and Painter were to buy 1 pound of marijuana from her; Perez drove to
deal with Rosemond and Joseph in her car; Gonzales got in (Painter was outside – so lookout?); he was given the
drugs but instead of handing over the money, he punched the man in the backseat (unclear if Rosemond or
Joseph); either Rosemond or Joseph then got out of the car and fired several shots from their gun; Rosemond
convicted of violating, by aiding and abetting, §924(c) of Title 18
a. D appeals on grounds of erroneous jury instructions – argues that the instructions they did not say that he
had to KNOW that his cohort was going to have a gun
b. Gov’t has two theories of D’s guilt under the statute
i. First option: He is the person who had and shot the gun (support for this is the fact that everyone
else involved is testifying against him)
ii. Second option: He aided and abetted in the violation of the statute, therefore is guilty of it
2. Rule: §924(c) of Title 18 prohibits “us[ing] or carr[ying]” a firearm “during and in relation to any crime of
violence or drug trafficking crime”; fed aiding and abetting statute says that “[w]hoever commits an offense
against the United States or aids, abets, counsels, commands, induces or procures its commission is punishable as
a principal.”
3. H: The jury instructions were incorrect bc they did not make clear that D had to KNOW about the presence of the
gun – so reversed and remanded
4. R: There are two elements of the statute – the drug part and the firearm part; Congress made both parts of the
crime one single drug trafficking offense; the actus reus of the crime is satisfied if D aids and abets in EITHER
element bc in helping to bring about one part of the offense (either), he necessarily helps complete the whole
offense; D’s participation in the drug sale therefore satisfies the actus rea of the overall crime; BUT it is not clear
that D had the appropriate mens rea for the crime; unlike the actus rea, the mens rea must be satisfied with respect
to both elements; in order for someone intend to aid in a crime, D must know about it and know that they are
violating it – ie, in order to intend to violate this crime, D must have known someone would have a gun; further,
this knowledge must be ADVANCE KNOWLEDGE; this is bc if not, D could have walked away from the
commission of it; so mens rea test (for jury instructions): Did D CHOOSE, with full knowledge, to participate in
the illegal actions?; here not clear he did, so conviction is vacated and case is remanded
State v. Pacheco, WA 1994, p.843 CONSPIRACY (issue is the agreement, ie the ACTUS REUS)
1. F: Pacheco was convicted of conspiracy to commit murder and conspiracy to deliver drugs; Pacheco (deputy
sheriff) bragged to Dillon (his coworker) about his involvement in criminal activities, including as a hit man;
Dillon informed the FBI about this and agreed to work with them undercover to arrest him; the plan was that
Pacheco would aid Dillon in an alleged drug deal; during the second “drug deal,” Dillon told him that he had been
cheated out of his money by the buyer; Pacheco offered to kill the buyer for $10K; Dillon and Pacheco came up
with a plan that Pacheco was to go to the lobby of a motel with his loaded gun and call the buyer down to the
lobby, where he would kill him; Pacheco never called the buyer, but was arrested in the lobby; Pacheco appealed,
arguing that he couldn’t be convicted of conspiracy bc there was no agreement between him and Dillon, since
Dillon was working undercover and never actually intended to agree
2. Rule: Conspiracy occurs when (1) They agree with 1+ ppl to engage in conduct that constitutes a crime AND
when any of the parties to the agreement takes a substantial step in furtherance of the agreement; and (2) it is no
affirmative defense that the other party to the conspiracy cannot be or has not been convicted
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3. H: Conspiracy requires a bilateral agreement, of which there was none here – so conviction reversed
4. R: The primary goal must be to determine the leg’s intent in crafting the statute; both the dictionary definition and
common law definition of “agreement” support Pacheco’s arg and suggest that there must be TWO parties who
intend to agree to form the basis of the conspiracy; although (2) incorporates the MPC’s elements of a unilateral
agreement / intent (ie, if failure to convict one, the agreement can still be used against the other), this does not
indicate the leg’s intent to remove the bilateral requirement in (1); the primary purpose of conspiracy as a crime is
that group criminal activity poses increased danger to society, BUT this cannot exist where one of the parties was
an undercover agent; further, there is a high potential for abuse if we use a unilateral standard, which the leg could
not have wanted; thus, bc there was no fundamental agreement bc Dillon was acting as an undercover agent, there
can be no conspiracy
a. Inquiry for bilateral JDs – is the agreement a TRUE agreement?
b. Canon of construction re statutory interpretation: Maj says that when we are interpreting a statute and the
leg has not defined a word, we assume that the leg intended to use the word’s common law meaning
c. Substantial step: Pacheco going to get his gun is probably a substantial step
5. Dissent: Maj overlooks the difference between the bilateral and unilateral requirements; bilateral = focus on the
content of the agreement and whether there is a shared understanding of it among the conspirators; unilateral =
focus on whether the agreement manifests the criminal intent of at least one conspirator; maj does not even
discuss the unilateral requirement here; further, a comparison of the current statute with the previous version show
that the leg intended to adopt the MPC’s approach bc the predecessor tracked more closely the common law
approach; per the MPC, unlike common law, the basis of conspiracy (/ purpose) is NOT group criminal activity,
but the intent of “an individual to commit a crime which is objectively manifested in conspiring”
Assange Indictment:
Charged with conspiracy to “commit computer intrusion” (aka computer hacking)
o Note that though conspiracy will have it’s own statutes, you can’t be charged with only conspiracy
o Has to be conspiracy to DO SOMETHING
Is the statute bilateral or unilateral?
o Unclear but case law interpreting the fed statute suggests that its unilateral
o Assuming it is unilateral, is there enough to show the agreement?
There is an exchange of words regarding the inability to crack, practice cracking, etc.
Their goal was to ensure that the hacking was not traced back to Manning
o BUT note that it doesn’t really matter – that difference only comes in to play when one party is an
undercover officer (which is not the case here)
What is the overt act?
o Manning copied a CD with files on it that were only accessible to certain ppl and which were protected
o Manning gave Assange the password
o NOTE – even though Assange is being indicted here, it is sufficient that Manning (co-conspirator)
committed this acts in furtherance of the conspiracy
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