Criminal Law Outline

I. What is Criminal Law

a. Definition of Crime

1. Offense by someone against the state

1. Shocks conscious

2. Right to security

3. Infringing others rights

2. Substantial harm or risk of harm

3. Culpable state of mind

4. Interest in individual autonomy

5. Basic values/Morality

6. (Crime – what the legislature says it is subject to constitutional constraints)

1. Is is blameworthy enough?

b. Differences between civil and criminal lawsuits

1. Who brings the lawsuit (state v. injured)

2. Standard of proof

a. Preponderance of evidence v. Beyond a reasonable doubt

3. Constitutional Rights

4. Stigma – conviction holds much greater stigma than being liable

c. Purposes of Criminal Justice System

1. Retribution (penalty to punish D for crime)

a. Crime is a violation of the state

b. Focus on establishing blame on guilt/past

c. Adversarial relationship and process normative

d. Imposition of pain to punish and deter/prevent

2. Incapacitation (while in jail, can’t commit another crime on public)

 3. Deterrence

a. Specific – penalty imposed on D so in future, they’ll be

reluctant to commit in future

b. General – punish bc want to deter OTHERS from same crime

4. Rehabilitation (receive treatment so will not repeat in the future bc

they know the crime is wrong)

2. Restorative Justice

1. Structure so criminal will give back to community to redress the

harm caused by his criminal conduct

2. Victim Offender Mediation Programs

3. Focus on Problem Solving, liabilities and obligations on future (what

should be done)

4. Restoring both parties’ goal of reconciliation/restoration

II. Actus Reus

a. Act Requirement (external manifestation of will)

1. Act required to commit crime

b. Court Cases

1. Sleepwalker guy – killed mother in law, not guilty because did not act
voluntarily

2. Epilepsy guy– voluntary act began when he went behind the wheel,
knowing he endangered others (there can be criminal culpablility if
someone starts or continues an activity knowing she may become
unconscious and engage in criminal behavior

3. Jones v. US – was there sufficient evidence of conviction – did she feed the
baby?

4. Queen v. Dudley (Cannibalism)

5. State v. Stark (knowingly transferred HIV)

6. Johnson v. State (Coke through umbilical cord)

7. People v. James (prostitution of 2 college girls)

III. Mens Rea – state of mind, acted intentionally, unless you have a guilty state of mind,
conduct isn’t blameworthy enough to call someone a criminal

1. Least culpable

b. Cases

1. Vallegas v. US

1. Charged with violation of clean water act – dumped vials of blood

containing hep b into water – knowingly placed others in imminent
danger of death or bodily harm

a. Court concluded D didn’t act knowingly – he must have been

aware his actions would cause a high probability of causing a
certain result, no evidence understood how tides worked,
knew people walked in the area, no evidence would cause a
high probability infection

IV. Mistake of Fact/Mistake of Law

a. Mistake of Fact – No intent to deprive

1. MPC

1. If purpose of knowledge is the state of mind requirement – any

honest mistake suffices including a reckless or neg mistake

2. If reckless – any mistake that is not reckless

a. Was not aware of substantial risk – acted negligently, but

because of her mistake, is not reckless (gun, shot friend)

3. If negligence - if d unreasonably believed she consented, that is

guilty

4. Gordon v. State

a. Voted when he wasn’t 21 – thought he was 21

b. Gordon has reasonable mistake – not guilty; Gordon has

unreasonable mistake - guilty

b. Mistake of Law – Knowingly didn’t pay taxes

1. Ignorance of the law is not a defense

2. He knowingly failed bc he knew he didn’t pay

 3. IF he consulted an accountant – guilty, if he consulted an actor of the state
interpreting administration of the law – not guilty

4. Mistakes of Law that Do Not Negate Mens Rea –

1. Law not published

2. When mistake arises from reasonable reliance on a statute that is

later determined to be invalid

3. When the mistake is based on reasonable reliance on a court

decision

4. When the mistake arises from reasonable reliance on a public

official who is in a position to interpret the relevant statute

5. EXAMPLES

a. Lambert v. California

- D with felony conviction didn’t register in time

- Conviction unconstitutional – under the

circumstances, the conviction violated due process of
the law

1. Unfair when activity was passive and she didn’t

do something

2. No circumstances that she should enquire what

the requirements are (didn’t move, etc)

3. Needs to have actual knowledge or possibility of

knowledge

c. MPC Mistake of Fact s.2.04(1)(a) – ignorance or mistake as to a matter of fact

constitutes defense if it negatives the purpose, knowledge, belief, recklessness or
negligence required to establish a material element of the offense

1. Crimes require purpose or knowledge – honest mistake of fact is a defense,

even if the mistake was reckless

2. Crimes require recklessness, a mistake of fact is a defense as long as it

was not reckless

3. Crimes require negligence – mistake of fact is a defense as long as the

mistake was not negligent (must be a reasonable mistake)

d. General/Specific Intent
 1. General Intent - Only a reasonable mistake can be a defense

2. Specific Intent - Reasonable or unreasonable mistake can be a defense

a. Pick up pink umbrella

b. Not only must D intend to commit the act, there must be extra state of
mind

i. 1st degree murder, solicitation, attempt, conspiracy, larceny,

robbery, burglary, false pretenses, embezzlement

e. MPC – voluntary intoxication is defense to crimes whose mens rea requirement is

purpose or knowledge

Ex – Drunk, did not enter home with the intent to commit a crime – just
went to the wrong home, not burglary

- voluntary intox is not a defense to crimes of recklessness if a sober person

would have been aware of the risk

- Reckless discharge of a firearm (drunk and shoot someone) – yes guilty – in the
act of consuming alcohol, we are being reckless bc we know it will impair our
thought process

- Not a defense to general intent crimes (Battery - crimes committed so often

while drunk)

- Defense to specific intent crimes because don’t meet mens rea requirement

f. Involuntary Intoxication

Two ways may lead to avoidance of criminal liability

1. Mens rea is not present

2. When requirements of insanity defense (other than mental disease or

defect) are met (doesn’t understand wrongfulness or can’t control actions)

V. Homicide

a. Common Law Murder

1. Acted with malice

a. D intendt to kill or knowledge with practical certainty of death

 b. Intent to cause serious bodily harm

c. If D acted with extreme recklessness

d. Intent to commit a felony

2. Premeditation

a. separate from intent to kill, can have intent to kill without

premeditation

i. Lapse of time between intent and killing

ii. Evidence of planning activity

iii. Motive (D took out $1 mil life insurance)

iv. Method of killing (Poison)

3. POLICY ARGUMENT - Should Premeditated Murder remain?

b. Voluntary Manslaughter Requirements (Common Law)

i. D was provoked

ii. Reasonable person would have been provoked to pt. of losing self-control

iii. D didn’t cool off

iv. Reasonable person wouldn’t have cooled off

1. Who is the reasonable person?

v. If on defense council – want them to have as many of the same attributes

of the D as possible.

2. POLICY ARGUMENT - Should Murder be mitigated to manslaughter b/c intense

passion?

c. Involuntary Manslaughter

1. Mens rea - recklessness or negligence (split in jurisdictions)

d. MPC Murder, Manslaughter, Negligent Homicide

1. MPC – Murder

a. Committed purposely or knowingly, or

 b. Committed recklessly under circumstances manifesting extreme
indifference to human life

2. MPC – Manslaughter

a. Committed recklessly, or

b. Committed under influence of extreme mental or emotional disturbance

3. MPC – Negligent Homicide

a. Committed negligently

Commonwealth v. Feinburg, sold Sterno to people to drink

Commonwealth v. Welansky, owned nightclub caught on fire

b. Felony Murder

1. Another form of malice bc intent to commit a felony

2. Limitations on scope

a. People v. Hansen – “Inherently Dangerous”

i. Shooting into inhabitable dwelling

ii. States confine f-m rule to felonies that are inherently dangerous

iii. Look at the crime in the abstract – nature of the shooting, pose a
high probability of risk

b. Merger Doctrine – felony must have an independent felonious

purpose

i. People v. Dekens

c. Agency v. Proximate Cause approaches

i. Agency – D only guilty of f-m when he killed the victim or his

accomplice killed the victim

ii. Proximate cause – D responsible for deaths that are the

proximate cause of the felony he is committing (killings are
reasonably foreseeable)

VI. Rape

a. Statutory Rape
 1. Rape is an act of sexual intercourse accomplished with a female not the
wife under age of consent defined by the statute (16 in most jurisdictions)

2. Strict Liability crime – no need for mens rea

1. Girl does not understand the consequences

2. Has to be a line somewhere

3. Societal reasons

3. Honest mistake does not negate crime (in most jurisdictions)

4. POLICY ARGUMENT - Should SL continue to be the rule?

b. Rape
1. Penetration
2. Lack of consent
3. Mens Rea - recklessness will suffice - If he's aware there is a substantial
risk and he continues, the mens rea requirement is met
a. Negligence in most will suffice
b. POLICY ARGUMENT - Would a reasonable person believe no
means no?
Arguments against Negligence Liability Arguments for negligably
Woman can fabricate complaints Harm is still the same/gravity of harm -
harm is emotional and physical
Negligent conduct is not culpable enough for such Shifts burden of communication to the man
a serious crime (by making it easier to prosecute men -
burden should be on man to make sure
she wants to)

Severity of the consequences of a conviction Proof argument - trying to prevent people

Severally punishing someone for their stupidity
Patronizing to women - saying we need to protect
them against unreasonable men, not strong
enough to indicate what they really mean
Standard should be recklessness, easier to prove
rape, cause heterosexual woman to be deprieved
of sex
who did act recklessly from getting out
(knew she didn't consent, and they plead
they didn't know)
Deterrence - induce men to be careful and
ensure a woman wants to have intercourse
- she has consented
Will change cultural norms
Other serious crimes for which negligence
suffices (Negligent Homicide)
 c. Forcible Compulsion Requirement

1. D must have used force or threat of force (To make her afraid of serious
bodily injury

d. Marital Exemption

1. Common Law - Man could not rape wife

a. POLICY ARGUMENT - should this still exist?

Arguments for the exemption for Marital Rape

Implied consent between husband and wife
Privacy of marriage should be preserved
Impair reconciliation and disrupt marriage
Difficult to prove - already have a pre-established relationship
Wives can fabricate complaint
Rape not as bad
D can be charged with other crimes (such as battery)
Arguments against Marital Rape
Archaic notion
Married woman has the same interest as unmarried woman in controlling access to
her body
Just as bad as regular rape, OR worse - sense of betrayal/commitment
STD's if he has strayed
Limits to privacy - if he beats his wife, he can be prosecuted
Not a marriage to preserve when a husband is raping his wife - the rape will destroy
the marriage, not her testimony
Fabricated complaints applies to all crimes
Stigma will dissuade fabricated complaints
Procedural safeguards that help weed out false complaints - call witnesses, victims,
etc.
Other crimes don't reflect the full extent of the harm

2. Today most jurisdictions do not have marital exemption

VII. Larceny

a. MPC

1. that the intent existed at some point (Continuous taking - joyride and
decide to keep later - larceny)

2, Failure to take reasonable measures to restore the property to the

rightful owner

-MPC rewards change of heart for lost, mislaid or misdelivered property

 - When the person assumes control, the taking is not wrongful, or the taking is
ambiguous, the MPC provides a way for the person who had the intent to deprive
to get out of it

- Guilty of theft - culpability - returning the wallet is irrelevant - good thing to do,
taken account in sentencing - but he is culpable\

b. Common Law

wrongful, (trespassory)

taking,

and carrying away (Aspiration Requirement - Must physically move)

of the personal property of another person

with the intent to deprive the owner of the property permanently.

- Intent had to exist at the time of the taking

-Must be something tangible

Lund v. Commonwealth – not larceny because took computer time

-Must intend at the time of the taking to permanently deprive owner

Brooks v. State

-Must know that the owner could be found (wad of cash found in mud)

c. Cases

5 dresses, but 6 were in the bag

Common law - must be aware of the mistake at the time, and must have the intent
to take.. Didn't know at the time of the sale - formed the intent later… not guilty in
common law

MPC - guilty bc formed the intent to keep after you realized the mistake of the
employee… intent at some time –

-US v. Rogers case

Brother had a check - deposit part and bring back part of it; teller misread, and
deposited $80, and gave $1000

Under common law - intent at the moment

State v. Robington
 Robington took the sedan for two months, the car dealership turned it over to her for
the weekend, Monday she would return the car or pay the money. She kept.

Defense - she thought that the title had been transferred to her

Why relevant to larceny?

What happens when the title transfers - wouldn't be property of another (last
element of larceny)

Larceny by Trick - committed when one obtains the possession of another's personal
property by deception, fraud, or force with the intent to convert it to their own use and
permanently deprive owner.

VIII. False Pretenses

a. MPC

b. MPC follows the minority approach - recognizes that a misrepresentation of current

intention can suffice and it recognizes that people in commercial transactions make
a promise, in their mind they either plan on delivering or if they can't, they'll pay
damages

c. If a D makes the promise and intends to do neither, then there is culpability for false
pretenses

d. Min. Rule - misrepresentation regarding current intention suffices

1. Harm is great, conduct culpable

2. Proof problems are in every crime
3. Won't be onslaught of cases bc the prosecutor still must prove all the
elements
4. Deter false promises
5. Reasonable measures are costly and time consuming
6. Civil lawsuits costly, time consuming and traumatizing
1. Can have both criminal and civil remedies

e. Common Law

1. Misrepresentation by D

2. Past or present material fact

3. Intent to defraud (the D knows the statement is false, or act with reckless
disregard as to the falsity of the statement)

-Knew there was a risk it wasn't Magic Johnson's signature was not
his
 - Recognize that property not hers

4. Reliance

Does not have to be reasonable

(to protect people who are gullible, vulnerable or ignorant)

5. Title transferred

- Depends on victims intent

Maj. Rule - misrepresentation regarding current intention doesn't suffice

1. Burdensome to courts
2. If all intentions were held as statements of facts, harm business -
sometimes its better business to break a contract
1. Inhibits commerce bc people afraid to act
3. Provides incentive to change one's mind and do the right thing and deliver
on the promise
4. Induce good business practice and in taking reasonable precautions to
predict oneself
5. Civil Remedies
6. Proof problems - can be difficult to discern what is going on in her mind
False Pretenses did not exist at Common Law - not larceny, not a criminal - at common law the
penalty for larceny was death, so the law limited the circumstances larceny could be found
f. Cases

Chaplin v. US

Owned a liquor store, borrowed money to "purchase" liquor stamps and would pay
them back (this is the misrepresentation)

Majority said this would not be a false pretense… since the mistatement was about
the future

A misstatement regarding one's current intention, does not suffice; a significant

minority rules that it does

IX. Embezzlement

a. Common Law

Elements of Embezzlement

1. Appropriation
2. Of the property
3. Of another
4. By one entrusted with possession
5. Converts to own use
 *** Must intend to deprive person of their property (most jurisdictions - permanently)
b. Cases
People v. Talbot
- had intent to repay the money
• Returned all checks to the company
• No concealment, transactions out in the open
• Everyone was doing it (prevalent practice for corporate officers)
• Worth 5.5 mil - intent and capacity to repay
• Board of directors knew he was doing this

X. Consolidated Theft Statute

Consolidated theft statutes (MPC favors them)

-set forth the different ways individuals can steal from others

XI. Robbery

a. Common Law
Sometimes describes as "larceny plus"
(trespassory, taking, carrying away, personal property, of another with intent to
permanently deprive)
+ 2 others
• Force or caused the victim to fear imminent force
• Taking must be from the victim's self or the victim's immediate
presence to control
b. Cases

State v. Mejia

Illegal aliens gave money to garcia to hold, found out garcia was leaving the
country, went to get it, garcia fled, mejia shot and killed him

even if it is your property, do not need to rob people (use force) to get the
money back… peaceful ways to get the money back

• Purse snatching - sometimes a robbery or sometimes just a theft

• Not robbery if just grab and run - no force, no threat of imminent force
• Robbery - if struggle
XII. Burglary

a. Common Law
1. Breaking (satisfied by actual breaking - creation of an opening into the area
where D is going to window - opening a closed window; but did open a window
that was already open - not breaking)
• Constructive breaking - entry occurs as a result of disception or threats
('meter man' intended to rob)
2. Entering
3. Dwelling House
4. Of Another
 5. Night
6. Defendant had intent to commit a felony
1. How much is the TV worth?
Modern Law
1. Unauthorized entry (No breaking requirement)
2. Building or structure
3. Intent to commit a crime (not necessarily a felony)
Store - with the intent to commit a crime it is burglary - don't have authorized
entry to steal something
If they form that intent after they enter the story is it is theft
b. Cases
People v. Gauze
Told roommate to go get your gun and I’ll get mine – Defendant had an absolute
right to enter the apartment as he resided there, as such the defendant cannot be
found guilty of burglary
XIII. Attempt

a. MPC - Substantial Step Test

- backward looking approach - what the d has done

- Has she taken a substantial step toward the crime

- Must be strongly corroborative of the defendant's criminal purpose

Actions that can prove:

- Lying in wait

- Possession of materials to be employed in the commission of the crime can serve

no lawful purpose of the actor under the circumstances

- Reconnoitering place contemplated for the crime

- Unlawful entry of structure, vehicle or enclosure in which it is contemplated the

crime will occur

- Soliciting to engage in conduct constituting an element of the crime

- Enticing victim to area of crime

- Searching for or following contemplated victim

Under MPC conduct criminalized much earlier than under physical

proximity

b. Physical Proximity Test

- D must be physically close to completing the crime

- How much more will D have to do to commit the crime

 c. Cases
US v. Jackson
Court set forth a number of tests to determine whether it is a crime
Physical proximity test (only need to know this one and substantial step test)
• The act must be proximate to the completed crime or directly
tending toward the completion of the crime
• Lying in bushes - physically close to where the crime occurred
• If he's not there - she is not close enough to be committing the
crime, no guarantee he is going to go there
Physical prox - what more does the D have to do to commit the crime
• People v. Staples
• Rented an apt over a bank, had various materials, drilled holes on the floor
• One of his arguments - I changed my mind - I'm not guilty of attempted
burglary
• Abandoned it - he didn't have a change of heart, he just didn't follow
through with it
• If he had a true change of heart - still no going back
• Once the point had based when mere preparation gone beyond point of no
return - it's attempted burglary

Renunciation of Attempt
Under MPC you have crossed the line, but can avoid criminal culpability (s. 4) of MPC,
affirmative defense of voluntary abandonment
• Must prove the abandonment is voluntary and complete
• You can renunciate
• What if left because a dog discovered her - not voluntary

Under common law - no going back after mere preparation

Policy Argument for/against renunciation

MPC
1. Public safety still protected - if have genuine change of heart - no threat to
society
2. Not blameworthy enough
3. Provides incentive for people not to follow through with the crime

Common Law
1. No renunciation to at least some crimes (Hazard to the public)
2. Provides maximum deterrence
3. Avoids proof problems
4. No renunciation defense for most other crimes

Legal v. Factual Impossibilty

MPC - (majority) - Guilty if purposely engaged in conduct that would be a crime if the
circumstances were as he believes them to be
- Legal or factual impossibility not a defense under MPC
Common Law - (minority) factual impossibility is not a defense, but legal impossibility
is
 - If Moran intended to do what he did - shoot that thing in the window, this is a case of
legal impossibility because you can't murder a statue – Defense to CL
- If he intended to do what he wanted to do - (kill Sherlock) but he couldn't because
Sherlock wasn't there, it's a case of factual impossibility –
- Dluglash Case
- Under MPC - doesn't matter if the person is dead - thought he was alive
- Under the Common Law - even if he did everything he wanted to do, you can't murder a
corpse
- LEGAL IMPOSSIBILITY
Hypo - D wants to kill someone, Thinks the gun is loaded, but the gun is unloaded, points it at
P's head and pulls the trigger - guilty of attempted murder
Common Law - Factual Impossibility
• Can not prevail under this defense under the common law
• Factual Impossibility is not a defense
• Def'n - would have been a crime if the D had done everything he wanted to
do.
• D wanted to kill other individual - would have happened except that
the bullets were not in the chamber
MPC - yes he is guilty
• Purposely engaged in conduct that would have constituted the crime of
murder, if the surrounding circumstances were as he believed them to be
***** If you are the Prosecutor - shape facts so that factual impossibility is used

XIV. Solicitation

a. Common Law

1. All that is necessary is that the D encourage or advice that someone

commit a crime
2. D must have the intent that the crime be committed
-Special danger of group activity

NO RENUNCIATION

b. Cases

Schleifer
Telling Union members to rob, beat, kill 'scabs'
This case should proceed to trial on the solicitation trial
Quintin
Calling on people to be hippies
Crime of solicitation did not extend to this conduct

Consistent -
 Quintin case - they were indiscriminately handing out the pamplets to random # of young
people - large, indefinable group of people
Schleifer - speaking directly to union members - definable group of people
Solicitation has nothing to do with the likelihood that it will occur (committed solicitation
nonetheless)

Hypo - Osama calls on all Muslims to declare jihad and kill all American officials because they
are all corrupt and bad
Solicitation -
If you can define the group - yes it is solicitation of people

What if he calls on every American citizen to kill govt officials - solicitation?

Yes - definable set of people.

Size or indefinability of the group? - what is important? - at issue

Comes down to advocacy - will get into policy concerns?
*Renunciation
c. Contemporary Approach - MPC

IF she tried to persuade them not to - possible not guilty if

Requirements:
1. Renunciation must be voluntary
i. Not voluntary when something happens that makes it more
likely that the crime will be detected
2. Renunciation must be complete
i. If ask someone else not to do it, but have someone else in
mind to do it, not complete
3(a) Must persuade solicited person not to commit the crime OR
(b) Otherwise prevent it's commission

XV. Accomplice Liability

Aids or agrees to aid person in committing crime

Mens rea - intent to provide assistance and intent crime to be committed (Just being
aware of the crime is not enough

need to know whether that person is present

Accomplice -
1. Assistance
2. Intent to provide assistance and the intent that the crime be committed
Withdrawl
1. Withdraw all the aid and the encouragement, OR
2. Provide timely notice to the police, or makes some other proper effort to
prevent the crime
(Crime may occur and can avoid criminal liability)
CL - D is liable for crimes that are the natural and probable consequence of the initial
crime
 MPC - D must have mens rea needed to be culpable of 2nd crime

a. Cases

Commonwealth v. Huber
Convicted as accomplice to the robbery - provided gun and ether before the crime
Had intent to provide the aid and
Hypo - D before the robbery, gets the gun and ether back - but crime committed
with other gun
Not guilty of robbery bc took back all his aid - not guilty as an accomplice

XVI. Conspiracy

a. Common Law
Conspiracy because one than one person involved
Two people involved - more likely to occur
1. Agreement between 2 or more people (common law only requires the
agreement)
2. Must be an overt act taken in furtherance of the conspiracy (most jurisdictions)
• Indicator that the conspiracy exists
• Does not have to be substantial step or criminal in nature
3. Intent to enter into the agreement and intent that crime be committed
- Knowledge does not suffice; Must have intent for the crim to occur
-More serious the crime, the more likely infer intent

b. Cases=
People v Lauria -
Try to equate knowledge of another's criminal activity with conspiracy to further
such criminal activity
Purposefully v. Knowingly
Conspirator must intend both to enter into an agreement and to further the
agreement's unlawful objective
MPC requires proof of purpose to promote of facilitate the commission of the
underlying crime
Purpose may be inferred if the defendant had a stake in the venture
Change the facts where we would have a conspiracy
If he markets his place as a prostitute friendly service
Charged them more than regular customers
If he referred others to the prostitutes
Inflated amounts of what is sold (truckload of prescription drugs)
No legitimate use for the item that is sold (silencer for a gun - desire for the gun be used
illegally)

Yates v. US
Conspiracy to overthrow the government
Trying to organize the Communist Party and they are
Overt act? - demonstrates that the overt act doesn't have to be criminal
 Distinction between withdrawal and renunciation
Withdrawal - he did withdrawal bc he informed all the people with whom he
required or tell the police of the plans so they can stop it in time
Once have a conspiracy (agreement, overt act, requisite state of mind) - can
withdrawal from conspiracy - Benefit - not guilty of crimes that occur after the
withdrawal… so he is guilty of conspiracy to robbery, but not robbery
Two ways in which to withdrawal
1. Notify all the persons with whom the Defendant conspired
2. Providing timely notice to the police of the conspiracy and the
D's role in it.
Under MPC - away to avoid liability for the conspiracy itself (Modern) (CL - does not allow
this)
Renunciation (what it takes to avoid liability for the conspiracy itself)
1. Renunciation of conspiracy must be complete and voluntary
2. Thwart conspiracy's success (not just notifying the police)
Pinkerton Doctrine - what if conspire to commit one crime but another occurs?
1. Other crime must be in furtherance of conspiracy
2. Other crime must be a reasonably foreseeable consequence of conspiracy
Even though that Gary didn't think she would steal the gun, a reasonable person would
think that it is a possibility because if she used her own gun, it would be traceable to
Mary, if it were stolen, it would not trace the crime back to them.
MPC

Not responsible for other crimes unless the defendant is an accomplice to the other crime
(go back and remember what it means to be an accomplice - D intend the crime to be
committed, and provide some assistance to aid)
If use MPC on Gary hypo - he is not guilty because he is not an accomplice

Berkley student who molested the girl in the bathroom - friend walked in the bathroom,
saw molester harming the child, and went back out and stood guard.
D not a part of the conspiracy - no agreement to commit the crime between the
two of them
But, D is an accomplice because he has provided affirmative assistance and the
jury can draw an inference that the crime will occur

In order for conspiracy to occur - must be an agreement and an overt act taken in
furtherance of the agreement
If Gary withdrew before the theft - withdrawn before conspiracy because the theft (overt
act) hasn't taken place ---- not guily of theft or conspiracry

XVII. Causation

a. Common Law

Sometimes the actions of someone else can break the causal link in criminal cases
1. But for causation
2. Reasonably foreseeable
3. Sufficiently direct result ********** in criminal case will need this one for criminal
cases!!!
b. Cases
People v. Kibbe
Drunk, flashing money, guys plan to rob him, get him more drunk, rob him, take off his pants
and shoes ditch him in a rural hwy in zero degrees, gets hit by Blake
Murder, Larceny,
Ct. concluded that the D were the cause of the death
Reasoning - "But For" causation
But for Defendant's actions, victim would be alive today, therefore they are the
cause of his death.
Actual Cause, But For, Cause in fact
Generally, Not sufficient to be considered the legal cause in a criminal case - must
be something more than but for causation
• What more is necessary is that the death of the victim was the
directly forseeable consequence of the D's actions
Commonwealth v. Root
• But for the D's actions (drag racing), the deceased would be alive…
• Reasonably foreseeable consequence - death…
• And yet the court concludes that the D is not guilty
• How do you reconcile these two cases?
• The decedant's actions break the causal link, it was his decision to go in the left lane
right when a truck came - this specific action was a voluntary decision by the P, and this
was a superceding cause of death - bc voluntary and reckless behavior breaks the
causal link.

XVIII. Self-Defense

a. MPC
D believes that such force is immediately necessary for the purpose of protecting
himself against the use of unlawful force on the present occasion.
Subjective standard
Exception – if D is reckless or negligent in having such belief (that defensive
force is necessary or in acquiring or failing to acquire any material knowledge –
establishes culpability
 Or if the D provoked the use
There is a duty to retreat before using deadly force only if effectuated with complete
safety
b. Imperfect Self Defense
D who honestly but unreasonably believed that defensive force was necessary
are convicted of manslaughter rather than murder
c. Common Law
• Objective standard - D must have reasonably believed (he must actually
and honestly believed and those beliefs must be reasonable) --- MAJORITY RULE
1. Deadly force was necessary
2. To protect the defendant from an imminent infliction or application
3. Of deadly force
(force likely to cause death or serious bodily harm
• Reasonable person, or the shoes of the defendant
Initial Aggressor Rule – if D starts hit and hits back in self-defense, he cannot prevail
on self-defense
 If A renounced his intent after initial push and then B hits and A hits back – A is
only guilty of the battery from the initial contact – self defense was an offense for
the second punch though
Excessive Force
A pushes B
B chokes A
A pulls out a knife and stabs B
Even if someone reasonably believes that a threat is imminent - they will lose the
defense if they used excessive force
By B using excessive force, A has a right to protect himself. A can still be charged
with battery, but not guilty of aggravated battery
Duty to retreat
MPC – there is a duty to retreat
Majority Rule - There is no duty to retreat before using deadly force
Castle Doctrine - Do not need to retreat from his or her own home even if you could
retreat
MPC – need to retreat before using deadly force against a coworker
d. Cases

State v. Goetz (Subway shooter, “give me $5” shot all four, if calmer put to heads”

Reckless - D was aware there was a substantial risk he didn't need to use this force
---- Guilty of Involuntary Manslaughter
Negligent - convicted of negligent homicide
State v. Norman (Battered Wife)

XIX. Defense of Property

a. MPC
Defense of property - most courts prohibit the use of deadly force solely to protect
property - preservation of life
Can use nondeadly force to protect property - provided that you reasonably believe
(actually and reasonably believe things) the force is necessary to protect property
from imminent threat
b. Common Law

Common Law Approach - (Only followed in a few states) - Deadly force can be used -
if individual using the deadly force believes it is necessary to prevent an imminent
and unlawful entry

1. Deadly force can be used if it is necessary to prevent an imminent and unlawful

entry and Person must reasonably believe the force is necessary to prevent a
felony (felony other than the burglary - theft, rape, etc.)
2. Must reasonably believe that the force is necessary to prevent a forcible felony or
that the victim poses a risk of death or serious bodily harm

c. Cases
 Bishop v. State
Set up a spring gun towards the door of his trailer, person known to him came in to
rob it - hit and died
Can't use spring guns to defend your house
(minority view - defense of habitation allowed if they could have used deadly force
at the time of unlawful entry if he was at home - this is what the defendant argues)
Argument against use of deadly force

Law enforcement, firemen, emergency services

Property not worth same as life

Arguments for use of deadly force

Levels playing field – poor people don’t have the money for more elaborate
security syst

XX. Necessity

a. MPC

Defendant honestly believes that committing a crime is necessary to avoid a

greater evil

Defense is unavailable when D charged with a crime requiring a mens rea of only
recklessness or negligence if the D was reckless or negligent either in bringing
about the situation requiring a choice of evils or in appraising the necessity for
his conduct.

b. Common Law

Necessity test - D must reasonably believe that the crime is necessary to avoid
harm greater than that caused by the crime itself (in addition, many jurisdictions
require that it be imminent).

Legislative Foreclosure exception - not up to you to do the balancing,

because it has already been determined by legislature.

Ex – Abortion – has been deemed legal, so kidnapping is the greater harm

c. Cases

US v. Kabat (ICBM + Priests damage missile facility)

State v. Reese (prisoner escapes to get away from imminent threat)

Lovercamp test

1. Prisoner faced with specific threat death, forcible sexual attack or substantial
bodily injury in immediate future
 2. No time for complaint to officials or history futile complaints

3. No time to resort to courts

4. No evidence of force/violence used in escape

5. Prisoner immediately reports to proper authorities when he has attained a safe

distance from threat

• Main impediment from going to jury - each of the requirements had to be

met before he could be aquitted
 Must immediately report to authorities
2 ways to test
Normal necessity test
Or - Prisoner defense test
Concern with Lovercamp - have to get thrown right back in to the situation that
trying to escape from
Can use against natural forces – fire coming down hill, necessary to set one house on
fire to save others

XXI. Duress

a. MPC (Section 2.09)

Elements

Affirmative defense when he is coerced to do something by use of or

threat of unlawful force against his person or the person of another that a person
of reasonable firmness in his situation would have been unable to resist.

o Duress is a defense to homicide

o “Threat that a reasonable person would be unable to resist”

Not required to be an imminent threat (but still must threat of physical injury)

If erroneously believe that they received threat – lose the defense IF the mistake
was reckless (or negligent) and they are charged with a crime requiring a mens rea of
recklessness or negligence

b. Common Law

Duress is a defense to any offense BUT murder

1. Reasonably believes

2. That the crime is necessary

3. To protect self from imminent threat

 4. Of death or serious bodily harm

Reasoning for the defense –

Was not the voluntary act of the accused

Negates intent because no time to formulate criminal intent

Variation on necessity

Majority

Do act with intent (know they will injure another)

Is voluntary act – D makes a choice to violate the law

Crime need not be the lesser evil

At Fault Exception

Duress defense is unavailable in cases where D was at fault in bringing

about the situation that required them to commit the crime

If recklessly put themselves in a situation where coercion likely (Gang)

c. Cases

State v. Scott (gang member, cuts boy)

Ct. said not a defense bc of at fault exception

XXII. Insanity

a. M’Naughton (Prevailing rule)

1. D must either not understand nature and quality of actions (cantaloupe -

head)

2. Or, as a result of his illness, he doesn’t understand actions are wrong

Wrongfulness

D not aware actions illegal (some jurisdictions)

D knows actions illegal but doesn’t know society perceives

actions immoral (God commanded him)

b. MPC

1. D must lack substantial capacity to appreciate wrongfulness of conduct

 Illegality or immorality

2. Lacked substantial capacity to conform to requirements of the law (volition)

c. Guilty but mentally ill (some jurisdictions)

1. Goes to mental hospital and gets well - goes to jail for rest of sentence

c. Policy Considerations - which is better?

MPC

If D could not control his actions because of his illness he is not blameworthy
enough

• Ex - throws baby in river - realizes it is wrong, but because of her illness

she can't help it - she just does it
If someone so sick, may not anticipate that they will lose control or get sicker
Resources may not be available (live in a rural area, and not available; homeless
- hard to access the mental health)
M'Naghten
More narrow rule - great harm caused by criminal conduct
Avoid some or many fabricated claims of insanity - easier to lie and get away with
the volition requirement
Are blameworthy enough
• If aware of what they are thinking about doing is wrong (illegal or societal
wrong) - it's on them to get help, so they do not take those actions
• If mom has feelings that she needs to kill her kids and doesn't get help and
does it ---- she is blameworthy if she has the cognition
Volitional component has the potential to greatly expand the insanity defense
Provides an incentive for people to get treatment