Crim Outline

“Criminal law is the societal condemnation and stigma that accompanies a conviction.”

1. Criminal Law Overviewa. The Nature of Criminal Law

i. Crime: “An act or omission (Actus Reus) and its accompanying state of mind (Mens Rea) which, if duly shown to have taken place, will incur a formal and solemn pronouncement of the moral condemnation of the community.”

b. Classifications of Crimesi. Felony: An offense punishable by death or imprisonment in a state

or federal prison.ii. Misdemeanor: An offense for which the maximum punishment is a

monetary fine, incarceration in a local jail, or both.c. Goals of Criminal Law

i. Deterrenceii. Rehabilitation

iii. Retributioniv. Message Sending/Reinforcement of Valuesv. Incapacitation (Imprisonment)sl

d. 6th Amendment Rights: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury (Known as the right to a trial by jury).

i. Purpose: To prevent oppression by the Government.ii. “Scope of the Right”: A jury in a criminal trial is composed of

6-12 persons.e. Burden of Proof/Standard of Review: The Due Process Clause of the U.S.

Constitution requires prosecutors to persuade the fact finder (judge or jury) “beyond a reasonable doubt of every fact necessary to constitute the crime charged.” (In Re Winship Standard)

f. Capacity to Obey: The Queen v. Dudley & Stevens: Stranded at sea two men murder and eat their third member. There was no guarantee they’d be rescued. Rationale: We could all die or we could sacrifice one for thegreater good. Rule: Necessity is not a claim for murder (Prof Notes: We shouldn’t have rules people cannot always follow, necessity maybe should be a defense then.).

i. CL: Necessity is never a defense to murder. Dudley & Stephens.ii. MPC 3.02: Allows a lesser evil to be committed to prevent a

greater evil from occurring. Must persuade jury impending harm (loss of life) was greater. The MPC rejects Lord Coleridge’s opinion in Dudley & Stephens.

iii. Necessity Defense: Claiming an intent to prevent a greater evil by committing a lesser evil.

iv. Specific Deterrence: Here, punishing cannibals does not deter them from acting again because of the rare occurrence they would be in the same situation again. Furthermore, specific deterrence to society at large doesn’t deter them from killing and eating one person to stay alive when there is no guarantee they’d be rescued.

2. Standard: Proof “beyond a reasonable doubt.”a. In Re Winship: A 12 year-old boy is accused of stealing $112 out of a

woman’s locker. Lower court uses standard “preponderance of evidence” punishing the youth to 18 months-6 years in “training school.” Held: The Due Process Clause “protects the accused against conviction exceptupon proof ‘beyond a reasonable doubt.’”

i. Policy: It is better to acquit a guilty person than to convict an innocent person.ii. In Re Winship transformed every criminal judgment into a federal

question. The argument is whether there was insufficient evidence. The evidence was not sufficient to prove my guilt beyond a reasonable doubt. The Courts decision made this a constitutional claim and therefore a defendant can petition the USSC.

1. Ex: Jackson v. VA: Constitutionally there was an insufficiency of evidence to find me guilty beyond a reasonable doubt, therefore I cannot be found guilty.

a. On appellate and SC reviews the Court: The jury already heard the testimony we have in writing and we should respect their decision by “viewing the evidencein the light most favorable to the jury’s verdict.”

iii. Apprendi v. NJ: Standards of review at sentencing 1. Must be “Beyond a reasonable doubt,” by a jury, and have

pre-trial notice. 2. Facts: NY had two laws (1) Assault and (2) hate crime law.

Unconst. Law said racial motive would double max sentence automatically and was to be found by judge. Court: Const requires that any fact that can increase a max. Sentence be treated as an element under Winship and be proved separately B.R.D.

b. Fair Warning/Notice/Due Process: No Ex Post Facto Law: Typical ex post facto law criminalizes conduct that occurred before the effective date of the law, acts that were not criminal when they took place.

i. Keeler v. Superior Court: Ex-H “stomp fetus out of you.” Beats wife and leaves her for dead when he finds out she’s pregnant with another man’s child. Ex-W miscarried, convicted of murder. Court: No fair warning or notice that killing unborn fetus was

illegal because no law at that time said so. CA retaliated by passing CPC 187 amended to include killing of an unborn child.

3. Unprotected Sex as Assaulta. CL: Presumption that people intend the natural and presumable

consequences of their actions. b. State v. Stark: Stark tested positive for HIV. Received counseling and

told not to have unprotected sex. Did so anyways. Uses In Re Winship Standard of Proof.

i. Due Process Clause: If persons of common intelligence must necessarily guess at a statute's meaning and differ as to its application, the statute is unconstitutionally vague.

ii. Rule: Do not need to prove that D subjectively knew what the statute meant, only that a reasonably intelligent person would understand the statute to mean.

4. Prenatal Delivery of Drugsa. Johnson v. State: P took cocaine right before giving birth. No statute

regulates narcotic transfers to fetuses. RULE: A person may not be punished for a crime unless her acts fall clearly within the language of the statute. The Legislature did not intend to reach mothers (In Passing Controlled Substances to Minors Statute) who knowingly distributed to unborn fetuses through the umbilical cord.

5. Other Examplesa. Prostitution: A victimless crime. Real criminals are pimps who

enslave, insult, and foster ignorance. People v. James and People v. McCray: Legal response of criminalization is not because it harms, butbecause it offends the public at large.

b. Assisted Suicide: Vacco v. Quill and Washington v. Glucksberg: SC upheld constitutionality of states to prohibit assisted suicide, and to criminally prosecute those who do so.

6. Constitutional Safeguards:a. 14th Amendment: b. 5th Amendment: requires prosecution by grand jury indictment for all

infamous crimes (excepting certain military prosecutions) and prohibits placing a person "twice in jeopardy" or compelling him in a criminal case to be a witness against himself. Also, prohibition of “deprivation of life, liberty or property” without “due process of law.”

c. 6th Amendment: The rights to a speedy, public trial, to an impartial jury of the state and district in which the crime was committed, to notice of the “nature and cause of the accusation,” to confrontation of opposing witnesses, to compulsory process for obtaining favorable witnesses, and to the assistance of counsel.

d. 8th Amendment: Adds prohibitions against requiring excessive bail, imposing excessive fines, and inflicting cruel and unusual punishment.

7. The “Act Requirement” (Actus Reus): The physical or external portion of a crime.a. Actus Reus: The actus reus of an offense consists of (1) a voluntary

act (or omission) (2) that causes (3) social harm. Thoughts alone do not constitute crime. There must be some action. Furthermore, all acts or omissions must be voluntary: A voluntary act is said to be an external manifestation ofthe will (action). Or, it may be said to be behavior which would have been otherwise if the individual had willed or chosen it to be otherwise (omission). Habitual acts are voluntary.

MPC 2.01 Requirement of Voluntary Act; Omission as Basis

1. A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.

a. People v. Newton: Handicapped P had a gun on an airplane. Captain landed it from Bahamas to Luxemborg out of fear in NY, where P was apprehended and charged for violating NY statute of concealing a weapon without a permit to do so. Held: An involuntary action is not criminal.

2. Voluntary Act: MPC 2.01(2) The following are not voluntary acts within the meaning ofthis section: (1) reflex or convulsion; (2) bodily movement during unconsciousness or sleep; (3) conduct during hypnosis or resulting from hypnotic suggestion; (4) body movement not forced or determined by the actor, either conscious or habitual.

a. A reflex or convulsion;i. Seizures: People v. Decina: While driving. However, “he was aware

of the likelihood that an unplanned seizure could occur, therefore he should have taken precautions and not driven.”

b. A bodily movement during unconsciousness or sleep; i. Parks: Drove 14 miles while sleepwalking and killed his mother in

law. Acquitted because father in law testified that he had a history of sleep walking. Involuntary. Contrasted against…

ii. Sallee v. State: D beat his wife to death with a hammer and then came to afterwards. However, a jury found him guilty of second-degree murder even with evidence of a history of sleepwalking.

c. Conduct during hypnosis or resulting from hypnotic suggestion; i. U.S. v. Phillips: P argues “unable to form requisite criminal

intent to shoot.” However, evidence of shooting at her neighbors two weeks prior showed she had the “ability to have formed the criminal intent on her own to have shot the marshall.” Same holding in U.S. v. McCollum

ii. Brainwashing: Hearst: Hearst was kidnapped, brainwashed, and robbed a bank. A jury convicted her, ruling against her argument that she was kidnapped, brainwashed, and coerced into helping.

1. Same: Malvo (sniper shooting).

d. A bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual.

3. Omission: MPC 2.01(3) Liability for the commission of an offense may not be based on an omission unaccompanied by action unless:

a. The omission is expressly made sufficient by the law defining the offense; or

b. A duty to perform the omitted act is otherwise imposed by law.i. Jones v. U.S.: Jones, COCKROACHES the caretaker (contractual duty,

creation of the peril, and voluntary assumption of the duty), convicted of involuntary manslaughter for the death by malnutrition of child.

1. Rule: Under some circumstances the omission of a duty owed by one individual to another, where such omission results inthe death of the one to whom the duty is owing, will make the other chargeable with manslaughter. Duty neglected must be a legal duty, not a mere moral obligation. Here: (3) and (4) below.

2. There are four situations in which the failure to act may constitute a breach of a legal duty: (1) where a statute imposes a duty to care for another; (2) where one stands in a certain status relationship to another; (3) where one has assumed a contractual duty to care for another; and (4) where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid.

ii. Notes: Criminal liability may be predicated on an omission if the D had a legal duty, not just a moral duty, to act. Such legal duties can be based on:

1. Statutes2. special relationships3. contractual obligations4. the voluntary assumption of care5. the D’s status as a landowner6. a duty to control third parties, such as children or

employees1. Commonwealth v. Twitchell: A parent’s failure to provide a

child with medical treatment can support an involuntary manslaughter conviction even when it is based on religious principles.

2. Where no duty: People v. Heitzman: Adult daughter watched brothers abuse elderly father. No duty to control brothers.

3. (6) Parents of Columbine Shooting…4. California Penal Code 152.3: Requires person who

observe the murder or sexual assault of a child under 14 to report the offense to a police officer.

5. Good Samaritan Law: Unlike most states, Vermont criminalizes failure to aid. CA doesn’t.

i. Failure to Report Crime: David Cash: Allowed friend to sexually assault/murder 7 year old girl at casino. No charges b/c no good Samaritan law in NV.

7. the D’s creation of peril.

4. Possession: MPC 2.01(4) Possession is an act, within the meaning of this section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for asufficient period to have been able to terminate his possession.

a. Possession: Having dominion or control over something; a voluntary act.

b. Constructive Possession: Constructive possession is whether the D had “dominion and exercised control over the item or had an opportunity tocontrol it; and guide its destiny” Wheeler v. U.S.

i. Proximity is not enough.ii. The right to exercise dominion and control may be jointly shared.

Wheeler.c. Wheeler v. U.S.: Police find Heroin under her pillow. In evaluating

the sufficiency of the evidence submitted by the government, no distraction is made between direct and circumstantial evidence, and the trier may infer knowledge from circumstantial evidence.

i. Mere proximity to an illegal substance will be insufficient to uphold a conviction on a theory of constructive possession when an individual is one of several people found by authorities on the premises together with the substance. Cook v. U.S.

1. Where woman who didn’t live there was present, proximity didn’t constitute guilt.

ii. Thompson v. U.S.: Conviction for possession of marijuana reversedwhere drug was found, along with four individuals, in living roomand appellant was found in bedroom.

d. People v. Ireland: Ireland’s wife brought home 200lbs of weed. He saidno, she threatened to leave him. Two weeks later police got a warrant,searched, seized, and arrested him because the trailer was in his nameand he was knowledgeable of the drugs. Held: Since jury instructions were insufficient. Must be instructed that possession required an opportunity to exercise dominion and control.

i. Knowledge/Presence alone not sufficient, must show dominion and control. Here, could have been convicted for constructive possession because D had joint possession and could exercise dominion and control to rid himself of possession in his trailer.

e. U.S. v. Borchardt: Possession of MJ for flying 125K from Dallas to Mexico for 2.6k lbs of MJ. Constructive possession of third plane b/c largely responsible for presence. Had exercised Control over MJ by

loading it into plane and he was the benefit from the proceeds of the sale. Didn’t require presence…

f. U.S. v. Zandi: Conspired to import heroin. Package mailed from Pakistan and held at airport. Possessed the heroin when they picked upthe shipping documents, thereby obtaining the power to reduce the heroin to their control.

g. U.S. v. Lindsey: Transport firearm, MJ, cocaine, and crack in U-Haul. Lindsey behind U-Haul. Not physically in Uhaul, but he exercised dominion and control over Watson and the truck by traveling with truck, which gave him power and intention to exercise control over weapons and drugs.

h. Awareness: The crime of possession requires proof that the defendant was aware that he or she possessed the prohibited item.

i. Commonwealth v. Juliano: D was charged with possession of a controlled substance when one o fhis friends picked up drugs at the airport, then picked D up at his hotel. They were pulled over, drugs found, and D arrested. Held: D could not be convictedon possession charges because there was insufficient evidence that he knew the satchel contained drugs.

ii. Prof Hypo: You’re crossing the border from Mexico to California and a guy asks you to deliver a package across the border for $1,000. You decline to ask what’s in the package nor do you open it.

5. Status Crimes: SC has drawn a constitutional line at criminalizing mere “status” without voluntary conduct.

a. Rule: Status offenses like being an addict or homeless require proof of a status, rather than voluntary conduct. Robinson v. CA.

b. Drug Additioni. Robinson v. CA: Officer arrested P because he had track marks and

admitted to the occasional use of narcotics. CA Law made it a crime to be addicted to the use of narcotics. Held: Criminalizing“status” where a person is imprisoned as a criminal, is cruel andunusual punishment in violation of the 8th and 14th amendments.

ii. Status Crimes: Even one day in prison would be cruel and unusual punishment for the “crime” of having a common cold.

c. Public Intoxication/Alcoholism:i. Powell v. Texas: Public Intoxication: MPC 250.5: Anyone who

appears in any public place manifestly under the influence of alcohol, narcotics, or other drug, not therapeutically administered, to the degree that he may endanger himself or otherpersons or property, or annoy persons in his vicinity.

1. P arrested for being in public drunk. Argues: (1) alcoholismis a disease which destroys an individual’s ability to refrain from consuming excessive amounts of alcohol; (2)

alcoholics appear in public as a result of the disease rather than on their own volition; and (3) Powell was an alcoholic.

2. Court: Convicted. Can’t criminalize status, but can criminalize subsequent acts.

3. Dissent: Criminal penalties may not be inflicted upon a person for being in a condition he is powerless to change.

d. Loitering:i. Papachristou v. City of Jacksonville: Ordinance for police to arrest

suspected persons wandering or strolling from place to place without any lawful purpose of objective. Held: ordinance unconstitutionally vague b/c it gives police too much discretion.

ii. City of Chicago v. Morales: SC reviewed a Chi ordinance that prohibited“criminal street gang members from loitering with one another or with other persons in any public place.” Held: Unconstitutionallyvague b/c reaches many innocent conduct and gives police absolutediscretion to determine what constitutes loitering.

e. Homelessness: Depicting homelessness as a status is by no means self-evidence. The depiction, made upon serious analysis only in Pottinger, isa dubious extension of Robinson and Powell, and of questionable merit in light of concerns implicating federalism and the proper role of theCourt in such adjudications.

f. Felony Registration: i. Lambert v. California: Due Process “Fair Warning” of what is

considered criminal: D was charged with violation of the registration law in LA of having to register as a convicted felon5 days after being released. Held: actual knowledge of the duty to register or proof to the probability of such knowledge and subsequent failure to comply are necessary before a conviction under the ordinance can stand.

ii. Reyes v. U.S.: D charged with violating a statute requiring drug users, addicts, and anyone convicted of violating a felony drug law to register before departing or entering the U.S. Like Lambert, the D claimed that he was unaware of the registration requirement.

1. The court of appeals affirmed his conviction, distinguishingLambert on three grounds. (1) while lambert dealt with a mere nonfeasance, here there was a misfeasance, the crossingof the border. (2) while lambert dealt with a common act, living in the community of LA, here the D's act of leaving the country was sufficient to put him on notice that he should find out whether he was required by law to do anything upon crossing the border; (3) the sole purpose of the statute in lambert was to help the police keep an eye on

likely criminals, while the statute here served the purpose of protecting the U.S. from the dangers caused by the illegal importation of drugs.

iii. Bartlett v. Alameda: Pg. 220: Only Sex Offender: Judge Verzon: Reverse conviction for failure to register as sex offender. Lambert meant to say you must have proof the D knew (notice) they had a duty to register, or "probably knew." Here, there was no proof he knew he had a duty to register.

6. Mens Reaa. The mens rea requirement is a check on the system of who is morally blameworthy and

worthy of punishment. b. CL: General v. Specific Intent Crimes.

i. Difference: General intent merely requires proof of a culpable stat eof mind vs specific intent requires a specific state of mind.

ii. General Intent: 1. Requirement: Merely requires proof of some culpable

state of mind.1. Awareness of actions, consequences or probable

consequences.2. Need not specifically intend to hurt someone,

guilty even if it was an accident.2. Examples

1. Battery: Must prove that the D intentionally or recklessly inflicted physical injury on another person, or touched that person in an offensive manner, but no further mental state is required.

iii. Specific Intent1. Requirement: requires a specific intent

1. An intent to commit some other act in the future2. A special motive or purpose for committing the

crime3. An awareness of a special attendant circumstance

surrounding the criminal act.2. Examples

1. First degree murder: requires not just the intent to kill, but the specific intent of malice aforethought.

2. Burglary requires not just breaking and entering, but specific intent to commit a felony.

3. Larceny/Theft: Must not only “intentionally” commit the acts of taking and carrying away the

property of another, but also act with the specific intent to permanently deprive the owner of that property.

4. Receipt of stolen goods: crime of receiving stolenproperty requires proof that the attendant circumstance that the property was stolen.

5. Indecent exposure: State v. Perry: Veteran undressed with open window. Indecent exposure. Held: reversed conviction b/c indecent exposure isspecific intent crime requiring deliberate intent to be lewd and could not be proved BRD.

3. CL: Specific Intent does not transfer from one crime toanother crime.

1. Queen v. Faulkner: Sailor went into ship’s hold to steal rum, accidentally ignited the rum, causing afire that destroys ship. Held: Not convicted b/c intent to steal cannot be transferred to the intent to start a fire required for arson conviction.

2. People v. Tombs: Tombs returned work laptop to employer with child pornography found hidden in subfolders. Convicted of distributing/promoting child porn. Court: Statute requires proof Tombs distributed/promoted the material with criminal intent (mens rea). Since the material was found inseveral subfolders down in his harddrive, no evidence of criminal intent b/c he did not intend anyone to find/discover it.

iv. CL: Means Rea1. Purposeful (Intentionally)

1. Requires desire (conscious object) to cause the harm or knowledge that the car is substantially certain to occur.

2. Knowingly/ With knowledge (willfully)i. Requires awareness of the fact or correct

belief it exists.ii. MPC requires practical, not absolute,

certainty.3. Recklessness

i. CL: A heightened criminal negligence or conscious disregard of a substantial and unjustifiable risk.

ii. MPC: Conscious disregard of a substantial andunjustifiable risk (awareness of the risk).

4. Negligence i. CL: Objective fault D should have been aware

that his conduct created a substantial and unjustifiable risk that the social harm wouldresult.

1. Compared to Recklessness: How grossly negligent was it?

ii. MPC: Should have been aware of a substantial and unjustifiable risk.

5. Malicec. Modern crimes require not only a voluntary act, but also a

certain state of mind, or mens rea, accompanying the act.i. MPC 2.02 General Requirements of Culpability

1. Minimum requirement of culpability. A person is not guilty of an offense unless he acted purposefully, knowingly, recklessly, or negligently, as the law may require, with respect to each material element of the offense.

1. Purposefullyi. When, if an element of an offense involves

the nature of his conduct or a result thereof, his conscious object is to engage inconduct of that nature or to cause such as result.

1. Purposely tried to kill D’s wife. Other passengers in plane, not purposeful.

2. A conditional purpose is sufficient liability: Give me the money or I’ll kill you is sufficiently established purpose.

2. Knowinglyi. A result is knowingly caused if the actor is

aware that it is practically certain that hisconduct will cause such a result, whether presently or sometime in the future.

1. MPC: Knowledge of current facts requires“high probability” knowledge of future facts requires “practically certain.”

a. High probability is greater than practically certain.

3. Recklessly 2.02(2)(c)i. A person acts recklessly with respect to a

material element of an offense when he consciously disregards (having knowledge) a

substantial and unjustifiable risk (awareness/knowledge of risk) that the material element exists or will result from his conduct.

1. A risk is substantial and unjustifiable if in considering the nature and purposes of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.

a. Exception: State v. Self: D convicted of failing to cause her child to attend school regularly. Violating Missouri school attendance law. No culpable mental state. SC interpreted it to requireproof that D acted knowingly or purposefully.

2. If you’ve proved reckless you’ve proved negligently (Similarly if you’ve proven knowingly you’ve proven recklessly and negligently).

4. Negligentlyi. A person acts negligently with respect to a

material element of an offense when he shouldbe aware of (but isn’t) a substantial and unjustifiable risk that the material element exists of will result from his conduct.

ii. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, its disregard involves a gross deviation fromthe standard of care that a reasonable personwould observe in the actor’s situation.

2. (3) When culpability sufficient to establish a materialelement of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly, or recklessly with respect thereto.

3. (4) When the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among

the material elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears.

1. If legislature puts “knowingly” at the beginning…it applies to everything that follows.

4. (8) willingly=knowingly.5. (9) Ignorance of the law is no excuse, unless the law

says so.d. Standards of Knowledge

i. High Probability: The awareness of an existing fact—something existing currently/presently.

ii. Practically certain: If it involves a result—something in the future.

e. Actus non facit reum nisi mens sit rea: “An act does not make a person guilty, unless the mind be guilty.” i. Prof: “The mental state is the true crime.”

1. There is a difference between a crime committed with intent and one done accidently; “Even a dog knows the difference between being stumbled over and being kicked(intent).”

f. Borrowing v. Stealing: The intent to deprive someone of something.

g. Policy Argument: (1) mens rea helps define more precisely the kinds of behavior society wishes to prevent and punish; (2) requires protection for those who “accidently” or “innocently” cause harm; and (3) the retributive purposes of crim law are served by punishing those who are culpable.

h. Defenses: i. CL: Mistake of Fact: General v. Specific intent: If Strict

Liability, mistake of fact irrelevant. Was the crime a specific or general intent crime under CL?

1. General Intent: The general intent rule for a mistake of fact defense is whether the mistake was reasonable. If reasonable=defense. If unreasonable=no defense.

2. Specific Intent: A D is not guilty of an offense if hismistake of fact negates the specific-intent portion of the crime (knowingly, negligently, recklessly)

3. (Gordon v. State: Voting) or Law (Wendt: ignorance of law notan excuse) v. Cheek (Ignorance of the law can be an excuse if it negates the crime’s mens rea.)

4. Must argue no mens rea because acted on mistake.1. Transform mistake of law to mistake of fact.

i. Cheek: Didn’t believe income was taxable. Failed to file. Mistake of law transformed to

mistake of fact by phrasing it as mistaking what was taxable income, not that he didn’t have to file a tax return.

ii. Queen v. Smith: Built cabinet, took it when he left. Rule: Any improvements made by tenantbelong to landlord. Court: Valid defense because it negates the intent to “deprive someone of their property.”

ii. Mistake of Law:1. CL: For specific intent offenses a mistake of law,

whether reasonable or unreasonable, is a defense if themistake negates the specific intent in the prosecuted offense. Cheek v. U.S. (Taxes: What constitutes taxable income).

1. For general intent offenses a mistake of law, whether reasonable or unreasonable, is probably not a defense to a general intent crime.

2. MPC: Mistake of law is a defense if it negates the mensrea. Same as mistake of fact.

iii. MPC 2.04 Mistakes1. Mistake of Fact/Law:

1. (1): ignorance or mistake of fact or law constitutes a defense if it negates the mental state required to establish any element of the offense. i. If it negates the purpose, knowledge, belief,

recklessness, or negligence required to establish a material element of offense; or the law provides that the ignorance or mistakes is a defense.

2. Peery: D convicted of indecent exposure for being naked in front of his window. FLACID. Intention tobe lewd (vulgar, base, sexually unchaste; incitingsexual desire to imagination).

3. Queen: You can’t transform intent: Intent to steal rum, lighting match to see, and setting shipon fire. Court: Had intent to steal, not to burn. i. However, you can transfer the intent to kill

from one victim to another. 4. Villegas: Accidently disposing of vials of blood

with Hep B. Argues no mens rea. Dr. who co-wrote safety manual on how to dispose of blood. Therefore, should have known what he was doing was unsafe. Court: Knowledge=“High Probability…” (Although he’s acquitted).

i. The legislature rejected “substantially certain” in enacting a statute that required “knowledge” of the harm. MPC says practicallycertain, which the court rejected as meaning “substantially certain.” The court then interpreted knowledge, as the state statute required, as meaning practically certain.

1. Difference of “Knowledge” definition between 2.02(7) “High Probability” and 2.02 “Practically certain.

iv. Intoxication: A disturbance of mental or physical capacities resulting from the introduction of substances in the body. MPC 2.08(5)(a)

1. CL: (1) No defense to general intent crimes. (2) potential defense to specific intent crimes…if it negates the mens rea required by the crime.

2. MPC 2.08: (1) Intoxication is not a defense unless it negates an element of the offense (intent); (2) when recklessness establishes an element of the offense, if the actor is unaware of a risk of which he should have been aware of sober, such unawareness is unmaterial; (3) intoxication by itself is not a mental disease; (4)intoxication which is not self-induced or pathological (in excess) is an affirmative defense when committing acrime he did not have the capacity to appreciate as criminal.

3. Addiction does not equal an intoxication defense.4. U.S. v. Williams: Robbed a bank while TRASHED and on drugs.

Court: “Not drunk enough” because he was able to control himself while robbing a bank (according to facts). HILARIOUS.

5. Voluntary Intoxication as a general intent crime:1. Courts generally unanimously reject voluntary

intoxication as a defense to a general intent crime.

2. CA Supreme Court: Hood: Intoxication should not be a defense to assault therefore intoxication is a general intent crime. MPC negates general v. specific.

3. In non-MPC jx: Intoxication is a defense to specific intent crimes where intoxication can negate the mens rea requirement of specific intent. However, in nonMPC jx: Intoxication is nota defense to crimes that have a gen. intent requirement.

6. Rejecting voluntary intoxication as a defense:1. Lee v. State: Affirmed burglarly conviction. D can

distinguish right and wrong when sober and not entitled to voluntary intoxication defense, despite being specific intent crime.

2. Montana v. Egelhoff: Court upheld state law stating intoxication was never a defense.

v. Impossibility=It was impossible for the act to not have beencommitted.

vi. Ostrich Defense: Deliberate Ignorance as Knowledge: The D acts knowingly if she is aware of a high probability that a certain fact existed but deliberately avoided finding out for sure in order to escape criminal liability—unless she actually believed that the fact did not exist.

1. U.S. v. Jewell: Knowledge can be proven, without positive orabsolute knowledge, by facts that allow a rational person to believe the individual believed with a high probability that something was true.

1. Prof: If someone has enough facts to find a high probability that a fact exists and they take affirmative steps to avoid learning the truth…and no sincere believe to the contrary…the jury can find proof of knowledge.

vii. Gordon v. State: Fraudulent voting: Thought I was 21. Rule didn’t require a mens rea. Ignorance of law no defense, but mistake of fact that led you to believe you were of age to vote is. Fraud=requires deceit, which requires intent.

viii. Shwartz: Following governmental orders is a defense if reasonable reliance is found. We want government employees to follow government orders.

ix. Mistakes of Law that don’t negate Mens Rea, but still defenses (MPC 2.04(3):1. When the law is not valid: State v. Godwin: Search without

warrant. State statute says no warrant needed to searchbusiness. PO followed state law, which was unconstitutional, therefore he has a valid defense (Unless he knew it to be unc).

2. Reasonable Reliance on a Court Decision: Ostrosky: Fishing without a license. Reasonable reliance on lowercourts decision, while appeal was happening, that fishing was a god given right and he is caught fishing during appeal. Valid defense relying on lower courts decision.

3. Reasonable reliance on a public official responsible for interpreting or administering the statute: Hopkins:

puts a sign on a home on a highway that says reverend Hopkins, notary public. Against the law, but relied on state attorney’s advice that it didn’t violate the law.Valid defense.

4. Reliance upon an Attorney’s Legal Advice. People v. Honig: Court: An ordinary attorney’s advice is not a defense because it would put their advice “above the law.” Compare to Hopkins.

1. Prof Test: Reasonably rely on an attorney as a defense: (1) genuinely not know the law (would reasonable person know?); (2) must disclose to an attorney all relevant facts; (3) must follow advice; and (4) must consult an attorney who is a reasonable expert in the area.

i. Strict Liability (No Mens Rea Necessary, No Defense)i. Corporate Officer Liability (Respondeat Superior)

1. MPC 2.07(1)(a)-(c) Strict liability when:1. Statutory crimes that are clearly meant to impose

liability on corporations.2. Offenses consisting of omissions to perform

specific corporation duty. 3. The offense must have been authorized, requested,

commanded, performed or recklessly tolerated by the board of directors or by a high managerial agent acting on behalf of the corporation within scope of office or employment.

2. Park: CEO can be convicted of having a warehouse with rats in it although he has no direct control over rats in warehouse in different city. However, he has direct control over employees.

1. Must prove: (1) he knew he was responsible for the area.

3. Koczwara: Bar tender serves minors after being cited once before. Owner in hospital, but found liable. Rule:As the licensee of the board, he is under a duty not only to regulate his own personal conduct in a manner consistent with the permit he has received, but also tocontrol the acts and conduct of any employee to whom heentrusts the sale of liquor.

1. Responsible Relationship…ii. Public Welfare Offenses: Labels on food, possible harm so

great that the public will make people liable for the harm no matter what (Theft & Rape).

j. CL: General intent=only reasonable mistakes; Specific Intent=evenan unreasonable mistake.i. Intoxication: General intent=never a defense;

specific=defense1. No Defense: U.S. v. Freed: Buys hand grenade: Possessors who

lawfully make, mfr, or import firearms can and must register them; the transferee does not and cannot register. It is, however, unlawful for any person “to receive or possess a firearm which is not registered tohim in the Natl Firearms Registration and Transfer Record. No specific intent required. To buy unregistered=general intent=guilty of crime.

ii. Motive v. Intent: D’s motives must be distinguished from their intent.

1. State v. Stainino: 1. Motive is the moving cause which induces action;

it has to do wholly with desire. i. A good motive is distinct from and does not

excuse intent. Berrigan.2. Intent is the purpose or design with which an act

is done, and involves the will. iii. Mistake of Fact As a Defense to Specific and General Intent Crimes:

1. CL: Mistake of fact is a defense to general intent crimes if it was honest and reasonable. Mistake of factdefense for specific intent crimes must only be honest,can be unreasonable. Must negate the requisite mens rea.

2. People v. Navarro: jury instruction error. Must have told the jury that if it believes D made mistake…whether reasonable or not then D could still be found not guilty.

1. “No such thing as a knowing mistake.”2. Reasonable Mistake: One anyone would make.3. Unreasonable mistake: Reckless mistake: Aware there is

a high probability of mistake. 4. Negligent mistake: one that is unreasonable, but

unaware that there is a risk of a mistake.7. Homicide

Layers of Murderi. 1st degree & 2nd degree: premeditated & non premeditatedii. Voluntary manslaughter: murder w/o malice. Committed under a HOP &

is rsbl. iii. Negligent homicide: Lack of appreciation but act of a grossly

negligent fashion.

iv. Second degree: non-premeditated but w/ malice.

Murder: Definitions:Penn (CL)

1st degree (Death): Homicide committed by an intentional killing: Any willful, deliberate, and premeditated killing. Carroll (Shoots wife 2x in head. Premeditation in an instant)

2nd Degree (Life)(Felony Murder): When committing a felony someone is killed whether you are the principal or accomplice in the crime.

3rd Degree (Max 20 yrs): All other murders.NY (MPC)

1st Degree (20-Death): Intent to cause death of another person and he causes death of them or thirdperson.

2nd Degree (Life): Intent to cause death of another person, causing death of such person or third person, unless D acted under influence of EED (Depraved Heart). Felony Murder as well.

MPC 2.10.2(1)(a)-(b)

Murder-purposeful, knowingly, or reckless killing that demonstrates extreme indifference.

CA An unlawful killing of a human being, or a fetus, with malice aforethought.

Malice Defined (Cal. Pen. Code Sec. 188): Express: Deliberate, intent. An intent to kill (Using deadly weapon in manner consistent to kill/Deadly WeaponDoctrine), intent to cause SBI, or Depraved Heart/Reckless Indifference. Implied: No considerable provocation;

Abandoned and malignant heart.

1st degree (D/P or L)(Cal. Pen. Code 189): Must be willful, deliberate, and premeditated. Felony murder.

Anderson Rule: 3 types of evidence to find

premeditation: (1) evidence prior to killing the D engaged in any form of planning activity; (2) the D’s prior relationship indicates a motive to kill the victim; (3) themanner of killing allows a jury to infer a preconceived design.

2nd degree (15-L): No premeditation: All other kindsof murder.

Manslaughter

Definitions:

Penn (CL) Vol. (20 Yrs): CL Vol. Mansl: A sudden act as the result of adequate provocation where the D had no opportunity to cool off (HOP) and there is a reasonable link between the provocation, the passion, and the homicide: Toler; Maher. Heat of passion precludes a conviction of 1st degree murder. State v. Thornton

Provocation: That would enflame an ordinary person…

Imperfect self defense: An honest, rsbl belief that would justify the killing if trueis imperfect self-defense that reduces to vol. mansl.

Inv. (5 yrs/12yrs if victim under 12): Reckless orgross negligent killing.

NY (MPC) 1st Degree (5-25): Causing death under EED with intent (Vol.

Mans & HOP). Intent to cause serious injury and then

causes death.

2nd Degree (15 yrs): Recklessly cause of death, abortion act, or intentionally aiding or causing someone to commit suicide.

Criminally Negligent Homicide (4 Yrs).

MPC 210.3 A Reckless killing or a killing under Extreme Emotional Distress.

EED: extreme mental or emotional disturbance for which there is rsbl explanation or excuse. Under the view of actor’s situation under circumstances as he believes them to be.

Negligent Homicide (5 yrs).CA Killing without malice

Vol. (11 yrs): Sudden quarrel in HOP.

Inv. (4 yrs): Death in an unlawful manner. Any unlawful act that might produce death

(misdemeanor, otherwise felony murder) Any negligent lawful act that might cause

death (baby falls over rail)

Vehicular Mnslghtr (6 yrs).Gross Negligence: Wantonness and conscious disregard for life.

Intentional Unintentional

With Malice

1st Degree Murder2nd Degree Murder

"Extreme Indifference""Abandoned Malignant Heart""Reckless"2nd Degree Murder

1st Degree2nd Degree

Felony

No Malice

(Voluntary) Manslaughter"Heat of Passion"=CLMPC=Extreme Emotional Disturbance

Imperfect Self Defense: "I made a mistake. I thought I was defending myself, but I

Involuntary Manslaughter (Negligent Homicide)

Misdemeanor

was wrong." <--Unreasonable mistake.

If reasonable mistake you geta perfect defense where you aren't convicted.

Test Q: Who can be convicted of what? Test A: Legally, I think this person can be convicted of…because…

a. Malicei. Express: Manifested intention to unlawfully kill.ii. Implied: No provocation appears, but show an “abandoned and

malignant heart.”1. causes death of them or third person.

b. Manslaughter: MPC 210.3: Homicide committed recklessly; or a murder committed under extreme mental or emotional disturbance which there is reasonable explanation or excuse. 2nd degree felony. Max 10 years.i. CA: Unlawful killing of an individual without malice.

1. Voluntary: Heat of Passion1. “Heat of Passion”: (1) Actual, (2) relatively

close timeline (no cooling off period), (3) Reasonable provocation (Words can be provocation)(Catching partner in bed with paramour is enough for reasonable provocation: Thornton), (4) result of provocation, (5) "sudden" (A slow buildup of passion over time is not the same as sudden passion), (6) provocation must be by the victim or"by the victim's associate (paramour)." i. (6) State v. Turgeon: D had "heated verbal

exchange" where she "tormented" him about their relationship and protective order. While driving away he shot and killed a police officer during a chase. Tried to use heat of passion as defense. Court held: The D's "fit of anger….was not directed at his wife,:" but instead at a "third party who wasnot involved in the initial altercation," andthus was not "a reasonable reaction to domestic confrontation."

2. Involuntary: Negligent Manslaughter3. Vehicular: Gross Negligence

1. Does not preclude a charge of murder, if facts exhibit wantonness and a conscious disregard for life to support “implied malice.” Wantonness=implied malice.

ii. NY: 1. 1st Degree Manslaughter: (1) intent to cause serious

physical injury that causes the death in them or a third person; or (2) intent and actually causing death of aperson or third party because he acts under extremeemotional disturbance (depraved heart); or (3) he commits an abortional act (24 weeks+) which causes the death of the mother, unless justifiable; or (4) 18 years+ with intent to cause physical injury to a personless than 11, where D recklessly engages in conduct creating grave risk of serious physical injury which causes death.

2. 2nd Degree Manslaughter: (1) Recklessly causes a death;or (2) commits an abortion which causes the death of the mother; or (3) intentionally causes or aids in suicide.

3. MPC 210.4: Neg. Homicide: Neg. Homicide is a 3rd degreefelony with a max of 5 years.

c. Intentional Homicide: Premeditation:i. Caroll Case (PA)(CL): Only given account of killer, not dead

victim. Rule: To be guilty of a murder you have to have wilful, deliberate, and premeditated murder. Defense: I couldn’t have premeditated in 3 seconds. Court: “No time istoo short for anyone to premeditate. Premeditation can happen in an instant.” Furthermore, premeditation does not require careful planning and jury/judge does not have to take into account a psychiatrist’s opinion.

ii. Anderson Case: CA: 10 yr old girl murdered by D. Stabbed hermany times, lied to brother, who finds his body. Vag lascerations post mortem. Standard for murder: willful, deliberate, and premeditated” Jury: 1st Degree. Appeal: No premeditation (goes against premeditation in an instant) andcrime reduced to 2nd degree murder.

1. Anderson Rule: 3 types of evidence to find premeditation: (1) evidence prior to killing the D engaged in any form of planning activity; (2) the D’s prior relationship indicates a motive to kill the victim; (3) the manner of killing allows a jury to infer a preconceived design.

iii. Cardozo on Premeditation: "If there is hesitation or doubt to be overcome, a choice made as the result of thought, however short the struggle between the intention and the act, there is such deliberation and premeditation as will expose the offender to thepunishment of death.”

iv. Boyle v. State: Where a son gave mercy killing to father the court found: Where a person intentionally causes the death of another, his act constitutes murder, and it is completely irrelevant that the act was motivated by love rather than malice.” premeditation still occurs.

d. Voluntary Manslaughter: Heat of Passioni. Definition: The “passion” with which the D acted in a voluntary

manslaughter case is typically rage, although it may also be “fear or any violent and intense emotion sufficient to dethrone reason.” MPC 210.3.

ii. Elements: (1) Actual, (2) relatively close timeline (no cooling off period), (3) reasonable provocation, (4) result of provocation, (5) sudden (no slow build up over time), (6) provocation must be by the victim or “by the victim’s associate (paramour).”

iii. Murder is perpetrated with malice. Where no malice exists: (1) Malignant heart; (2) wanton conduct; (3) severe disregard for life.

iv. Maher v. People: Rule for Manslaughter: Must be disturbed by passion which might render ordinary men liable to act rashly or without due deliberation. Self defense as a defense: total acquittal: We don’t condone this behavior of killing out of self defense, but we understand it and are unwilling to define them asa murderer or to let them go completely, therefore manslaughter.

v. State v. Thornton: T shoots his wife’s friend. T and wife separated. T finds his wife having dinner with a man…waits for them to do something more. Grabs gun from home and comes back, busts in door and shoots guy in the ass, which gets infected and weeks later he dies.

1. Court: T discovered his wife cheating, remanded to lower court for inv. Mansl. Because D didn’t act after a “cooling off period” but in the heat of passion…finding cannot support a 1st degree murder charge.

vi. Provocation by Victim or Associate: State v. Turgeon: D had heated verbal exchange where she tormented D about their relationship. While driving away he shot and killed a policeofficer during chase. Tried to use heat of passion. Court: The D’s “fit of anger…was not directed as his wife (or her associate);” but instead a “third party who was not involvedin the initial altercation and was therefore not a “reasonable reaction to the situation.”

vii. People v. Lasko: A D acting in heat of passion who intended to inflict only serious bodily harm or who acted with extreme recklessness may be convicted of vol mans.

viii. Words can be provocation, but this is a jury issue (Prof Little). Road rage doesn’t count as reasonable provocation.

ix. Relatively Close Timeline: Cooling off period:1. CL: Provocation must be sudden and unexpected. If heat

of passion has cooled, or reasonable persons would have, then no partial defense.

2. People v. Berry: CA: No cooling off period occurs when“a long course of provocatory conduct, which had resulted in intermittent outbreaks of rage under specific provocation in the past, reached its final culmination in the apartment when the victim continued provocation.”

x. In determining Reasonableness of Heat of Passion: MPC: "You have to evaluate the reasonableness of the provocation or reaction according to the objective standard of the reasonable person."

1. State v. Felton: We allow jury to consider how reasonable battered spouse would have reacted.

2. State v. Aaron McKinney: Homosexually abused as child. Shepard made advance and he snapped, went into heat of passion/eed. Court: no imperfect self defense because we believe you made this up LOL.

3. Commonwealth v. Malone: Kid had revolver. Russian Roulette. Malone puts revolver to friends head, pulls trigger THREE times, killing him. “Geek Kid I’m Sorry, Did I get Ya?” Court: Unintentional 2nd degree murder. WANTON AND RECKLESSLY PULLED GUN.

1. Gross Recklessness is implied malice.xi. Second Degree Murder:

1. Rule: Second Degree Murder is the unlawful killing of a human being with malice aforethought but without the additional elements, such as willfulness, premeditation, anddeliberation, that would support a conviction of first degree murder. People v. Knoller.

1. Malice may be express or implied. i. Express: when there is manifested a deliberate

intention to take away the life of a fellow creature.

ii. Implied: when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.

1. Malignant Heart: An awareness of the risk of serious bodily injury which could cause death. Facts prove this: Constructive knowledge, previous incidents, etc.

iii. Reckless homicide: Indifference: Intention to cause someone serious bodily harm, who then dies as a result. 2nd degree murder.

2. People v. Knoller: 2nd Degree Depraved Heart: Arian Brotherhood trained dogs to fight. Received letters from dogs of their liability. Neighbors complained of being attacked. Established constructive knowledge that dogs were dangerous. Dogs mauled woman to death. Court: Because they had constructive notice of danger, coupled with previous incidents, implied malice found…

1. Phillips test for implied malice: Does not require D’sawareness that his or her conduct has a high probability of causing death. Rather, it requires onlythat a D acted with a “conscious disregard for human life.” Malignant heart=implied malice.

3. State v. Davidson: Affirmed 2nd degree murder for D’s 3 Rottweilers who escaped and attacked 11 yr old boy.

1. MPC 210.2(1)(b): Created an unrsbl risk then consciously disregarded it in amanner and to extent that it could be inferred she was extremelyindifferent to value of human life.

xii. CL: Under CL, proof of D intended to inflict serious bodily harm establishes the malice necessary to convict of 2nd degree murder.

1. Commonwealth v. Dorazio: Former boxer beats guy so bad he dies. Not just assault bc you were indifferent as to the result of severe bodily harm vs death. Reckless (awareness of risk) homicide=2nd degree murder.

e. Involuntary Manslaughteri. CL: A killing that is reckless or negligent (no depraved

heart).1. Commonwealth v. Lyons:

1. Depraved Heart Murder: A plain and strong likelihood of death.

2. Manslaughter: High degree of likelihood of substantial harm.

2. Commonwealth v. Welansky: 492 die in fire caused by flammable material inside. Over capacity and constructive knowledge of hazard. Blocked off exits. D not at scene at time of fire, but convicted of inv. Masl.

1. Responsible Relationship…2. MPC: Reckless conduct in unintentional 2nd degree

murder where malice is found (awareness of risk). 3. MPC: Negligence conduct in unintentional inv.

Manslaughter where no malice found and no awareness of risk.

3. Commonwealth v. Feinberg: Sold Sterno and knew people were consuming it to get drunk. Buys stronger Sterno. Symbol on new brand that shows its dangerous to consume. In 7 days 31 people died from Methanol poisoning, the main ingredient in Sterno. Had constructive knowledge it was dangerous and could causesevere bodily injury which could cause death. Rule: doesn’t need to be aware of the risk, just aware of risk of danger.

1. Contributory Negligence is not a defense to homicide: Could potentially go up the whole ladderto those who sold it to D because they also were aware of risk of danger.

2. For inv. Mansl.: Where no depraved heart (implied or explicit malice): look at causation: He caused the death.

3. Court: Criminal Negligent Standard ANALYSIS: (1) Dsold sterno with knowledge buyers might drink it; (2) D was aware or should have been aware (negligent) that Sterno was toxic to consume; (3) after the deaths he tried to cover it up.

4. ON TEST: When Malice/Depraved Heart is not an element, you can’t prove 2nd D Murder, move to inv. Mansl. Based on recklessness or negligence.

ii. MPC 210.3(1)(a): manslaughter: Homicide committed recklessly(aware of risk).

iii. MPC 210.4(1): negligent homicide: Homicide committed negligently (unaware of risk).

iv. CA Rule: Criminal Negligence: Walker v. Superior Court: Criminal negligence must be evaluated objectively: The question is whether a reasonable person in D’s position would have been aware of the risk involved. If so the court continued the D is presumed to have had such awareness.

1. MPC: If you’re aware of risk: Depraved Heart=mans. If unaware: Negligent, with no malice=inv. Mans.

2. State v. Jones: Drunk driving killing. Previous incident of drunk driving. Below .08 limit, but on prescription

painkillers. LWOP. Depraved heart found=prison sentenceof 15-18 yrs.

1. US v. Sheffey: 2nd degree murder for .22 alcohol level.

3. Nixon: 16 yr old girl dies of diabetes bc parenst don’tseek medical reasons for religious reasons. State gave inv. Mans.=no depraved heart/malice found.

4. State v. Mangano: Hurricane Katrina. Owners of nursing home get neg homicide after 35 residents drowned. Vans were donated and they refused to move bed ridden patients.

5. US v. SabreTech, Inc: 110 ppl died bc of faulty product produced by D. $500,000 fine and three years probation to exec.

Defenses to Murder: Self Defense; Defense of Property (NO); Defense of Others; Necessity; Mistake; Duress; Entrapment.

8. Felony Murder: No mens rea requirement.a. CL: One is guilty of felony murder if they kill another person,

even accidentally, during the commission or attempted commission of any felony.

b. MPC 210.2(1)(b): homicide committed during the commission, attempt, or fleeing from a felony, such as robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape.

c. CA Pen. Code Sec. 189: All murder by “destructive device or explosive, WMDs, knowing use of armor penetrating ammunition, poison, lying in wait, torture, or any other willful, deliberate, and premeditated killing, or during commission of, or attempt of, arson, rape,carjacking, robbery, burglary, mayhem, kidnapping, train wrecking… or discharging a firearm from motor vehicle, is first degree murder.All other murders are 2nd degree. i. Purpose: A strict deterrent to commission of dangerous

felonies. d. Rule: Amer. Law Institute: One is guilty of (felony) murder if a

death results from conduct during the commission or attempted commission of any felony. i. This includes fleeing from a felony.ii. Felony murder eliminates a mens rea element in convicting a

felon for a killing occurring during the commission of a felony and is a strict liability crime.

1. Theory of Transferred/Constructive intent: Felon’s intent to commit a felony is transferred to the more serious, social harm of homicide.

2. State v. McClain: 30 years for felony murder when a woman dies of a heart attack caused by robbing her.

iii. First Degree Felony Murder: The killing of a human being committed in the commission of, attempt to commit, or flightfrom an inherently dangerous felony.

1. Ex: Thought about shooting at car, shot at car, someonedied.

e. Natural and Probable Consequences Doctrine: If you’re an accomplice to arson and someone dies, and it’s a natural and probable consequence, then the MPC 2.03(2)(b) allows for you to be guilty as an accomplice to felony-murder.i. CL: People are liable for the natural and probable

consequences of their actions.ii. Stephenson case.

f. Limitations: Inherently Dangerous Felonies: 2nd degree felony murder (CA)i. Limitations: Inherently Dangerous Felonies

1. People v. Chun: Where the underlying felony in a felon-murder case is assaultive in nature, the felony merges with the homicide and cannot be the basis of a felony-murder instruction, just murder.

2. A homicide that is a direct causal result of the commission of a felony inherently dangerous to human life constitutes at least 2nd degree murder. People v. Howard.

1. Ex: shooting at inhabited dwelling, poisoning withintent to injure, arson of a motor vehicle, grossly negligent discharge of a firearm, mfr meth, kidnapping, and reckless or malicious possession of a destructive device.

2. Sec. 2800.2: 2nd Degree Felony Murder: (a) if person infleeing police officer kills someone its 2nd degree felony murder.

3. Agency Doctrine (PA): “D cannot be convicted of Felony-Murder if a person who commits the murder is not the D or an accomplice of D.”

1. However, felons are liable for felony murder for any murder committed by their co-felons during commission of felony.

2. However, Proximate Cause Approach: D may be responsible under FM for a killing committed by a

non-felon if the felon set in motion the acts which resulted in the victim’s death.i. If you shoot at the car to kill and they’re

undercover cops, you miss, they fire back andkill your buddy, you’re responsible for his death. State v. Hoang.

ii. Assault and Murder: While committing an assault someone dies, you are then liable for felony murder because through your assault you killed a person, even unintentionally. Strict liability. We use the assault as a way to prosecute felony murder.

iii. CA Felony Murder Hypo: If two gangs are driving alongside each other and one fires at the other to scare them off…and the bullet hits a street light which kills a third party… you’re liable for felony murder.

9. Gross Reckless Homicide: If pharmacist messes up prescription and patient dies from taking prescribed dosage. No purpose to kill. Because of skill of job, substantial mistake, and resulting death=gross reckless homicide.

10. Capital Punishment (Death Penalty):a. Death Penalty is constitutional as long as jury has guided

discretion in their decision. Greggb. Tison v. Arizona: Enmund case does not limit the death penalty to

cases where the D demonstrably intended to kill. Court: (1) Majorparticipation in the felony committed, combined with (2) recklessindifference to human life, is sufficient to satisfy the Enmund culpability requirement.

c. McClesky v. Kemp: Racial Discrimination: D killed cop: 1st Degree Murder: Defense Arg: DP is racially discriminatory bc of disproportionate death penalty sentences across ethnic lines=purposeful discrimination. Court: You gonna die. For a raceclaim you must prove purposefulness. A mere discriminatory effectdoes not prove in and of itself a discriminatory system or purposeful discrimination.

d. Kansas v. Marsh: Facts: D broke into V’s house, shot her, set home on fire with toddler inside, toddler died. Court: Constitutional to order death penalty when facts prove BRD that mitigating factors did not outweigh aggravating factors.i. State v. Kleypas: If equal, no death penalty.

e. Coker: No DP for rape. Too severe. Kennedy v. LA (2008) reaffirms.

f. Can’t be executed:

i. Ford: insaneii. Atkins: Mentally incapacitatediii. Roper: Persons under 18 when the crime is committediv. Enmund: Non-killing accomplicesv. Tison: Purely negligent (no d/p unless can prove

recklessness)

11. Causation: a. Causation involves determination of who should be held

responsible. The morally culpable should be convicted, even when a 3rd party does something voluntary in between/intervening.

b. Minimal Test: The connection is not too remote or accidentalc. CL: Is it reasonably foreseeable? Or was the result so

unforeseeable it would be unfair to convict them. i. “To be a sufficiently direct cause of death so as to warrant

the imposition of a criminal penalty, it is not necessary that the ultimate harm be intended by the actor. It is sufficient that the harm was reasonably foreseeable…” Kibbe

d. Intervening vs superceding or supervening cause (breaking chain)i. “But for” causation: Necessary but not sufficient in

criminal liability; 2nd inquiry must be made into sufficientconnection between act and result.

ii. Intervening: btwn prior event and result. Might not cut off liability.

iii. Superseding: Btwn prior event and result that cancels out what happened prior.

iv. Multiple Cause Agents: Blake in Kibbe (Driver who hit V), but does not supersede b/c D’s ultimate harm foreseeable. Ifa wolf had come out and killed V then not foreseeable and not liable.

v. MPC 2.02(2)(b): if ultimate harm is death, then agency irrelevant, so long as the act is not too remote or accidental in relationship to the result.

e. Kibbe: Victim was flashing 100’s. D and accomplice drank with him,robbed him, left him on side of rural, snowy road without classesand pants round ankles in 0 degree weather. Guy driving hit and killed victim. D was a “sufficiently direct cause” of victim’s death. Guy driving is intervening cause, but not superseding! Court: It was reasonably foreseeable this would happen when D dropped victim off on icy road without glasses at night with his pants down.

f. Liability for the Consequences of Another Person’s Suicide:i. MPC 2.03(2)(b): Actual result must involve the same kind of

injury or harm as the probable result of D’s assault and the

actual result must not be too remote or accidental in its occurrence as to be unjust. Would reach the same outcome b/cdeath is a probable and actual result of D’s assault (death via psychological injury) or not too remote or accidental tobe unjust.

ii. Stephenson: D kidnaps, rapes, bites, infects victim. She drinks mercury and dies. D convicted of 2nd degree murder, maybe felony murder.

1. Rule: “The wound which renders the deceased mentally irresponsible is necessarily limited to a physical wound. It applies to both physical and mental injuries,the natural and probable result of which would render the deceased mentally irresponsible and suicide followed, we think he would be guilty of murder.”

iii. State v. Bauer: Provided emotional support for victim to commitsuicide by joining a suicide pact and then backing out aftervictim killed herself. Court: Sufficient to find him liable for “aiding a suicide” and of felony fetal homicide because it was reasonably foreseeable her suicide would cause the death of the fetus.

1. Prof Notes: If he wasn’t there, but gave her a gun, a week passed and then she killed herself it may be too attenuated… the connection to weak… Look at intent of why he gave gun in first place.

2. State v. Marti: Where D provided gun, then took It and put it away, but while he was out of the room victim found it and killed himself, the jury found not a superseding cause and D convicted of invol. Mansl.

g. MPC: Three types of Causation:i. “But For” Causation

1. Rex v. Beech: Woman jumping out of window to escape manwho threatens to break down door and dies. D is responsible.

2. Commonwealth v. Rementer: If you can’t prove here go toreckless.

ii. Purposeful (With Intent)iii. Reckless (Aware of Risk)

1. Rementer: D chases Berry into street. She tries to get in some persons car who pushes her away and she gets run over. Contributory Negligence is not a defense: if someone put in hospital and dies as a result, even fromnegligence, chain of causation is not broken. He was reckless causing her death.

h. Other Self-Destructive Acts of Victims

i. Courts avoid idea that V did something stupid and breaks thechain of causation because that would be a travesty on justice. The court considers (1) the foreseeability of V’s acts; (2) the responsibility of V; and (3) immediacy of V’s acts.

ii. Not superseding:1. Rex v. Beech: Stalker D breaks Nurse V’s door so she

jumps out window and dies. V’s act was not a superseding cause b/c rsbl person would have jumped.

2. Rex v. Valade: girl under age of consent jumped out windownad died when D compelled her to have sex intercourse. Not superseding cause.

iii. Superseding:1. State v. Preslar: V fought w/ husband D, left home, walked

to fathers. Chose to sleep by road, died of exposure. iv. D’s acts caused V to do something:

1. Stephenson v. State: KKK member kidnapped and sexually assaulted V. V drank mercury and dies. Court: New Rule:Psychological injury can be causative. 2nd degree murder conviction.

v. Shirah v. State: Out of liquor the two drink morphine w sprite. Victim passed out and doesn’t wake up. D who gave it to victim says she had no knowledge/awareness of the risk, nor intent (neg homicide).

1. Rule: Criminal liable if the result would not have occurred but for his conduct, unless the actual result is not within the contemplation of the actor, or withinthe area of risk he should have been aware, he is not deemed to have caused the result.

2. Court: Death by drinking morphine was within the area of risk which the D should have been aware.

vi. Causation and Drug use: State v. Wassil: Delivery of drugs to D is determined to be a reckless (awareness of the risk: reckless homicide: MPC=murder or mansl) act.

vii. Complementary and Concurrent Acts:1. Lewis v. State: The acts of each participant are the

voluntary acts of a responsible agent, but any act thatculminates in death is hardly “remote or accidental.” Therefore liability under the MPC is for reckless homicide. The acts of the victim are not a superseding clause.

2. Commonwealth v. Root: drag racing on three lane highway that becomes two lanes. Victim tried to go into oncoming lane, but hit a truck and died. Victim

contributed to his death by racing, being in front, andmaking the risky maneuver.

3. Abbott: D struck car and killed driver and passengers. Drag racing partner and he both criminally charged withnegligent homicide. Partner “intentionally aided Abbottto engage in the criminally negligent conduct which resulted in the death of three people.”

1. Distinction between Root & Abbott: Victim in Root was drag racer versus victim in Abbott was innocent third party and therefore had no contributory negligence in their deaths.

Incohate Offenses:

12. Solicitation, Conspiracy, & Attempt…And Accomplice (Aiding & Abetting=Not a Crime!)

a. “Although X was an accomplice and helped Y commit the crime by providing the shovel and gloves, being an accomplice is not a crime and therefore X cannot be convicted.”

b. Participation with knowledge is sufficient for conviction…Lauria and Gladstone.

c. Attempt: Trying to commit a crime (Trying)i. Elements: “A criminal attempt requires (1) purpose to commit

a crime and (2) taking a substantial step. MPC 5.01(1)(c)1. Substantial step: MPC 5.05(2): conduct is a substantial

step if strongly corroborative of actor’s criminal purpose; can reach different results in cases b/c of what is “strongly corroborative.”

1. Mere Preparation: Buffington: had guns, disguises, and surveyed bank. Court: tentative and unfocused.Did not cross boundary between prep and attempt. No physical “substantial step.” Although a jury may find otherwise.

2. CL: Mere solicitation isn’t enough for attempt; solicitation is not a substantial step. State v. Molasky

ii. Three Kinds of Attemps:1. Complete but imperfect: “Incomplete”: Where some but

not all acts necessary to complete the crime are performed.

1. CL: No defense once substantial step towards attempt has been taken.i. Defense of abandonment is unavailable once D

has put in motion forces that he is powerlessto stop=shooting a gun. May only desist from making a second attempt.

2. MPC 5.01(4): Affirmative defense to attempt where circumstances manifest a complete and voluntary renunciation of criminal purpose.

3. Staples: Rented office above bank purposely and brings drilling tools, drills holes in floor with purpose to rob bank. Stops his conduct. Landlord calls police. Attempted Robbery even though he abandoned the effort. Substantial test was taken when he drilled the holes.

2. Interrupted in a course of conduct intended to culminate in criminal harm. Must be dangerously close to last step.

1. Jackson: Mere preparation versus attempt: Ds had guns, fake license plates, agreed to rob bank, cased the area. Arrested before they could take final steps towards robbery.

3. Mistaken belief crime can be completed when it is factually impossible: Impossibility Doctrine

1. MPC 5.01(1)(a): If the facts were as you believe them to be you’re guilty of attempt. “If D thinks guy is alive and shoots him that would be attempted murder.”i. Defense to MPC Rule: 505.(2) “So inherently

unlikely you’re not a public danger.” Ex: Intending to kill someone by stabbing Voodoo doll.

2. CL: Factual Impossibility is not a defense. Legal Impossibility is: You cannot be convicted of committing or attempting a crime, even if you think it is, if it is not a crime.

3. Dlugash: D, his friend, and 3rd party are drunk. Victim owes 3rd party money. 3rd party shoots victim three times. D walks over and shoots victim5 times in head. On appeal reversed because victimwas not alive when he shot him. No murder if you shoot someone who is already dead. Whether D knew or not victim was dead, it was factually impossible to kill him.

4. Thousand: CA: D sends dick pics to someone he thought was a minor. Talks about inappropriate sexual acts with her. Sending sexually explicit photos and soliciting sex to a minor are both crimes. Factually=police officer. Legally=a crime.Court: When someone tries to commit an actual crime, but by some mistake the crime becomes impossible, this is a factual impossibility and isnot a defense (MPC Rule).

d. Attempted Murder: i. Thacker v. Commonwealth: D shoots at her tent, missing her and

her child, but hitting a lamp. D argues: I meant to scare, not hurt. No attempt because no mens rea for attempt purpose. Reckless, but not purposeful.

1. Cannot be convicted of reckless attempted murder. Attempt does not apply to reckless or negligent conduct.

ii. Weeks v. Scott: HIV positive prisoner threatened “to take someone with him before he went” and then spit on prison guard. Attempted murder.

e. Solicitation (Asking)i. Rule: Solicitation is merely asking someone to do something

illegal with purpose. Schlieffer/Prof Little. ii. Elements: (1) encouraging, requesting, or advising another person to commit

a crime, (2) with the intent (purpose) that the other person commit the acts constituting that crime.

iii. CL: Must be a felony solicited. Solicitation must be communicated.

iv. MPC 5.02(1): Felony or misdemeanor. A person is guilty of solicitation to commit a crime if (1) his purpose is to promote or facilitate the commission of a substantive offense; and (2) with such purpose, he commands, encourages or requests another person to, or attempt to, engage in criminal conduct,

v. Defense of Renunciation:1. MPC 5.02(3): After encouraging someone to commit a

crime, a D persuades them not to do so or otherwise prevented the crime, this is considered a complete and voluntary renunciation of his criminal purpose.

2. CL: No renunciation. vi. Broad but Targeting Individuals: Schlieffer: Labor strike:

speaking to crowd of protestors telling them to cause violence and disorder (to commit specific serious crimes). Appeals: Every person in assembly was a specific target and therefore he specifically targeted each individual in attendance.

vii. Quentin: Rule: General advocacy is not targeting specific individuals. Too broad an audience where D passed out brochure that has recipes for making a bomb and psychedelic drugs. A specific person must be targeted with the speech.

viii. Brandenburg: 1st amend limit on solicitation. Court: website condemning abortion doctors that is connected to death of doctors, who they then crossed out on their website, was solicitation of murder.

1. Rule: 1st amend protection of advocating violence as long as its not imminent violence.

ix. Test answer: D will argue Brandenburg: It wasn’t imminent violence and I’m protected under the 1st amend. Prosecution:Context matters and it was targeted towards individuals specifically to do something illegal with purpose=solicitation.

f. Conspiracy: (Agreeing) (Separate crime)

i. CL: Conspiracy is defined as an agreement between two or more people to commit a crime. The elements of conspiracy are (1) an agreement between two or more people to commit (2) an object crime with (3) the purpose to do so.

ii. MPC 5.03: A person is guilty of conspiracy with another person(s) to commit a crime If with the purpose of promotingor facilitating its commission he: (a) agrees with such other person(s) that they will engage in, attempt to engage in, or solicit criminal conduct; or (b) agrees to aid in theplanning or commission of a crime.

iii. Agreement to Commit1. Williams: An agreement need not be expressed. A jury can

infer an agreement from a simple concert of action. If 5 people run into a bank at the same time and rob it the jury will infer/assume there was an agreement.

iv. Pinkerton Liability: When you join a partnership (conspiracy) you’re liable for the crimes committed by your co-cospirators so long as it’s within the scope of the agreed upon crime.

1. Shorthand: U.S. v. Irvin: Applying Pinkerton Liability for Conspiracy: The substantive crime must have been in furtherance of the conspiracy agreed upon, and it must have been reasonably foreseeable.

1. MPC rejects pinkerton liability completely.v. Withdrawal: Partial defense. On the hook for past liability

only. 1. MPC 5.03(7)(c): May withdraw from conspiracy by

informing co-conspirators of withdrawal or telling police.

2. Acting inconsistent with conspiracy’s objectives may beconsidered a withdrawal. US Gypsum.

vi. Renunciation: MPC 5.03(6) Complete Defense: Once you’ve joined conspiracy, you’ve already completed agreement. Renunciation requires that you stop the crime from happening.

vii. Object Crime1. CL: Object of the criminal conspiratorial agreement

must be an unlawful act, but not necessarily a crime. Could be: (1) immoral act or (2) Tort.

2. Conover: D violated company policy by arranging to buy material for construction project from friend. Gov’t project didn’t suffer loss but still convicted of collusive and dishonest business practices.

3. Bessette: D state public works official charged with conspiring to violate standards governing the award of state contracts, even though violating standards was not criminal act.

4. North: D covered up Iran/Contra, conspired to violate Boland Amendment, a noncriminal provision prohibiting expenditure of fed funds on arms purchases. Abandoned b/c docs not available.

viii. Purpose: Knowledge plus continued conduct infers purpose (Little).

1. Lauria: Messaging service. Knows sex workers use his service and allows them to do so which furthers their criminal acts. Court: When you know a crime is occurring and your services help facilitate it, and youdon’t stop it, you are helping the crime: “Knowledge plus continued conduct infers purpose.”

g. Accomplice Liability (Helping)i. Conclusion: Marilyn will be convicted of conspiracy and, under a theory of

accomplice liability, robbery.ii. MPC 2.06(3): A person is an accomplice of another person in

the commission of an offense if: (a) with the purpose of promoting or facilitating the commission of the offense, he (i) solicits such other person to commit it; or (ii) aidcs or agrees or attempts to aid; or (iii) has a legal duty to prevent the commission of the offense, fails to make proper effort so to do; or (b) his conduct is expressly declared bylaw to establish his complicity. (4) if an accomplice aids in the commission of the crime in any way.

iii. CL: One who aids or encourages the principal, with the intent that the crime be committed.

iv. Scope of guilt: (1) all crimes that he aids or encourages, and (2) all other foreseeable crimes committed along with the aided crime.

v. MPC Renunciation: Timely warning to police is sufficient. vi. CL: An aider must (a) neutralize the assistance he gave, or

(b) prevent the crime. vii. Doctrine of Innocent Agency (pg. 713, N.5): An accomplice can

still be convicted even if the principal is acquitted (i.e. someone who has a defense of insanity, immaturity, duress, or mistake). MPC 2.06(a)

1. The doctrine of innocent agency was created in order to close that loophole. The doctrine provides that one who uses an innocent

agent to commit a crime—someone who has a defense of insanity, immaturity, duress, or mistake—is deemed to be cthe principal for the crime and is convicted on that basis.

viii. Buttorff: D’s charged with tax fraud. D: we pay our taxes. Court: you’re guilty of accomplice liability for those people who attended your seminars and you told them how to avoid paying taxes. Encouragement through giving advice to defraud the government. Solicitation=crime need not occur. Accompliceliability=crime must occur.

ix. Wilcox: Charged with aiding sax player to coming into countryand performing. Sax didn’t register with UK to work. Wilcox merely attended and wrote an article on the performance: Court: The smallest aid makes you liable for accomplice liability.

1. Prof Ex: If you open the door for a bank robber to exit, withintent to help, you are guilty as an accomplice to robbery under both the common law and mpc.

x. Hicks: Ds on horses. I’ll shoot and kill you. D laughs, and tells guy to take off hat and die like a man. Other D shootsand kills victim. SCOTUS: didn’t have purpose to help, therefore no accomplice liability.

xi. State ex rel. AG v. Tally: Judge tally was keeping watch at telegraph office and blocked a telegram from being sent warning of danger. Guy murdered. Court: Judge sufficiently aided the killers, accomplice liability to murder.

xii. “Purpose”: Gladstone: Thompson was a 25 yr old snitch. Approached D’s front door to buy weed. D didn’t have enough to sell, said here’s someone else: draws a rough sketch of where ugy lives. Says he had no purpose or intent to participate in or engage/aid in any sale of weed to snitch. Court: No accomplice liability because it was no more than rumor or gossip. He had no purpose.

xiii. Abbott: D struck car and killed driver and passengers. Drag racing partner and he both criminally charged with negligent homicide. Partner “intentionally aided Abbott to engage in the criminally negligent conduct which resulted in the death of three people.” MPC 2.06(4)

xiv. Huber: D allowed bank robber to borrow rifle. Although D refused to participate he gave him the gun (aid) and allowed him to use it in the robbery (lacking renunciation).

13. Theft=Larceny

a. CL elements: Specific intent crime: Larceny is the (1) trespassory/wrongful(2) taking (3) and carrying away/asportation (4) of the personal property (5) of another (6) with the intent to deprive the owner of the property (7) Permanently. i. Trespassory/Wrongful

1. A trespass occurs if one takes possession of the victim’s personal property without consent.

ii. Taking1. To take is to exercise possession. 2. Modern: No need to “Physically” take… because a lot of

property now days is intangible like information. iii. Carrying Away/Asportation

1. Under the CL, the element of carrying away is fulfilledby the action itself, even if you were unsuccessful in the theft overall.

2. Under the MPC 223.1(1) theft includes the unlawful taking or exercising unlawful control over another person’s movable property.

3. State v. Carswell: Days Inn Motel: D moved air condition, already detached from window, and put it on the floor (4-6 inches moved total). D stopped probably because someone saw him. D argues: I didn’t move it enough..didn’t take it away and distance trivial. Court: even an inch is substantive where the D has taken control of another’s property, severing the owner’s possession, if even for an instant.

4. People v. Rivera: D was “in possession” of a stolen car even though a chain across owner’s lot prevented D fromdriving car off lot.

5. People v. Dominguez: Putting someone down an embankment 10-12ft is not enough.

6. People v. Owens: However, asportation does occur where asmall movement of a kidnapee increases the victims riskof harm.

7. No asportation where D intended to pay for property taken. Mason v. State. Where two guys take beer when Dixonis asleep and return the next Monday trying to pay for it.

iv. Personal Property1. CL: of larceny does not protect land because by nature

its immoveable. Items attached to the land also fall outside the scope of the offense. However, once they are severed from the land they become personal propertyand subject to larceny law.

2. Modern/MPC: Personal property does not need to be “physical” in an era of more intangible, valuable property.

3. MPC 223.0(6): Personal property is defined as anything with value

4. Value: MPC 223.1(2): The value of property is determined on the basis of the highest value, by any reasonable standard, of the property…the actor stole orattempted to steal.”

i. People v. Sadowski: stealing pets is theft. ii. Lund: Grad of VTech: Stole $26k worth of

computer time. Court: There was enough time for everyone therefore the value allotment totime was arbitrary. No theft.

iii. Oxford v. Moss: Takes answers off sheet of paper. Court: Property of information is not theft.

iv. Hongisto: PChief takes free newspapers and dumps in bay. Court: There was no value theseare free papers. Counter argument: What aboutto the papers sponsors who pay for exposure to readership? What about misappropriation ofpolice officers time, which is a theft of public funds, by ordering them to collect them?

v. Franco: CA held empty cigarette carton has intrinsic value and could be stolen.

vi. CA: Petty v. Grand Theft: $400.5. Theft of services: Air Force Sergeant who has soldiers

paint his house. US v. Croft: Prosecuted university professor for using research assistant to pick up dry cleaning as theft of public funds.

6. Stolen Property: It is larceny for a person to take andcarry away the property of another, even if the victim also had no right to possess the property in question.

7. Intangible Personal Property: Theft of personal property with only symbolic value (stocks, bonds, checks, and promissory notes) not considered larceny.

8. CPC 499c: Trade secrets; theft; solicitation or briberyto acquire; punishment; defenses: “taking someone’s information and using it is theft.”

9. CPC 502: unauthorized access to computers, computer system or computer data.

10.Trade Secrets: Taborsky: grand theft of trade secrets that he invented. University says its theirs. Applies for and receives patent, violating probationjail sentencegovt pardon, but serves time principle.

v. Of Another1. CL:2. MPC 223.0(7): Property of another includes property in

which any person other than the actor has an interest. Think also joint and community property!

3. Property of Another: Henry v. State: Henry rents room and usesbicycle and trunk of clothes as “deposit.”

1. Rule: Property given as a “deposit” gives pledgee the superior right to the property (MPC). CL: No larceny.

2. If the owner gives the property to the D it’s not larceny, but theft by false pretenses.

4. Joint & Common Property: 1. CL: Partnership: Partner cannot steal from

partnership, has not taken the property of anotherand could not be convicted of larceny.

2. CL: Theft from Spouse: Not recognized as larceny b/c wife was mere chattel of husband.i. Overruled by case law/statute

1. People v. Wallace: H snatches gold chain off W’s neck. Charged with larceny.

2. Morton: Married Women’s Act destroyed the fiction of legal unity between H andW, qualifying W as another person for purposes of property.

vi. With intent to deprive owner1. Intent requires a mens rea, or an intent at deprivation

to steal. If D took a car without permission intending to return it, but later decides to keep it, he has not the requisite mens rea intent and therefore no larceny.

2. Claim of Right: MPC 223.1(3)(b): No intent to deprive if Dtakes property belong to another person based on a goodfaith belief that he has a right to possess the property.

1. In the majority of jx’s Claim of right to robbery is not a defense because it would offendpublic policy. Mejia. Maj.i. MPC 223.1(3)(b): allows for a claim of right

defense to robbery. MIN jx.

ii. In CA, we do not allow claim of right as a defense to debt, but we do for items we believe to our specific property (Tufinga).

2. Claim of right is not a defense to taking money from someone who owes you a debt. You must believeyou are entitled to the property you actually take. Bert Look the Lobstermann.

3. Claim of right is not a defense when you take the item back with force. Tufinga

vii. Permanently1. Permanently is defined as “for the property’s useful

life (State v. Lanier); or exposing the property to risk such that its return could be impossible (State v.Davis); or placing an unacceptable condition upon the property’s return as in State v. Hauptmann where the D kidnapped a baby and said he’d return it for a fee.

viii. Extensions: 1. Lost/Mislaid Property:

1. On Top of CL Elements: (8) That, at the time the D took the property, the D had a clue suggesting that the owner could reasonably be found; and (9) that the D had the intent to permanently deprive the owner of the property at the time it was taken.

2. Brooks v. State: Newton Lost $200 in bank bills. Put notice in paper. D finds money. Court: Theft (WHY?): You must take reasonable steps to find owner if you don’t know who (take it to cops or put add in paper yourself).

3. MPC elements: MPC 223.5: A person who comes into control of property of another that he knows to have been lost, mislaid, or delivered under a mistake as to the nature or amount of the propertyor the identity of the recipient is guilty of theft if, with purpose to deprive the owner thereof, he fails to take reasonable measures to restore the property to a person entitled to it. i. Show honest state of mind to preclude felony

conviction. ii. Intent to deprive permanently may be at any

time.4. Defense: Argue the property was abandoned.

2. Continuous Taking: Wrongful borrowing of a watch without permission, afterwards deciding to keep; guiltyof larceny under “continuous taking” doctrine.

ix. Mistaken Delivery:1. CL: In addition to regular elements of larceny, (1) that a mistake as to

the nature or the amount of the property was made at the time of taking; and (2) that the D had the intent to permanently deprive the owner of the property at the time it was taken.

2. MPC 223.5: Theft occurs even if the D formed the intentto deprive at some point after the time of mistaken delivery.

3. U.S. v. Rogers: D takes check in to bank for $97.92. Asks for $80 to be deposited and the rest in cash. Attendantmesses up and gives him $1,126.59 bc she took the date as the amount on check instead of $97. D was aware thatshe messed up because of the gross mistake of cash presented to him. He took it and is therefore guilty ofthe theft. D argues: No intent to steal!

4. Defense: If teller gave an envelope with ten $100 bills, instead of ten $1 bills and you left without opening it, then before a sufficient period of time elapses for you to discover mistake and return bills, you are arrested for theft. No intent to steal or knowledge of mistake.

5. Knowledge as intent: Brian Wrzesinski: 12 year old paid $12 for Nolan Ryan rookie card knowing it was worth at least $600 ($1200 retail).

1. CL: Not larceny when both parties understand what items are worth. Difference between thief and smart buyer.

2. MPC 223.3: Taking advantage of a known mistake that is influencing the other party to a bargain is not criminal in the absence of special circumstances imposing a duty to correct the mistake.

6. Point of Delivery: Container: If you’re given a container without knowledge of its contents, but are told it was something it wasn’t: delivery occurs when you open the container and find out what’s inside.

1. Robinson: Discover: D purchases trunk. Opens for first time and realizes it’s not empty. D decides to keep the clothes, which is considered stealing.Rule: Time of taking was when clothing was first discovered.

2. Cooper: Deliver: D given wrapped roll of 20 $5 gold pieces in exchange for $1. Receipt of property occurs at the time of delivery, regardless of time of discovery. Did not discover mistake until unrolling. Not guilty of larceny b/cintent to steal did not coincide with earlier taking.

b. Larceny by Trick (Possession): Basic larceny elements apply plus (8) the D uses deceptive means to obtain possession, but not title or ownership of another person’s property… State v. Robington.i. State v. Robington: D promised to bring car back after test

driving for wknd. IT was worth $3k. Instead she used it for two months and removed it from the state, secreting it in NJ, showing no intent to pay. C

1. Rule: The crime of larceny by trick occurs when a D uses deceptive means to obtain possession, but not title or ownership, of another’s personal property.

ii. Difference between larceny by trick and false pretenses: title does not pass with possession versus title passes withpossession.

c. False Pretenses: (1) a misrepresentation by the D (2) of a present or past materialfact (not future) (3) with the intent to defraud the victim, (4) where the victim relies on the misrepresentation in (5) transferring title to some property. i. Chaplin v. U.S.: Give me money for liquor stamps and I’ll pay

you back, but didn’t. Rule: A false pretense, under the statute, must relate to a past event or an existing fact. Any representation regarding a future transaction is excluded. Court: Not guilty of theft by false pretenses.

1. Developed first in Durland.ii. State v. Donohue: I can get you admitted to the bar without

taking it. Court: it’s an absurd statement that cannot induce reliance. Young: I did rely on it…I paid the fee. Court: We won’t help a victim who tried to cheat.

iii. Caveat Emptor: Buyer Beware.d. Borrowing:

i. Brown: Took bike to get even with boy, planned to return next night but caught before he could do so. No larceny conviction b/c lacked mens rea.

ii. Langford: D withdrew 850k from bank b/c bank computer error after bank denied D’s loan app. D claimed intent to borrow but couldn’t pay back in time. Theft…

iii. White: If first borrowed then later formed intent to steal, trespass becomes larceny.

e. Intention to pay for taken goods

i. Mason: D took beer; tried to come back and pay. Court: if someone selling something and D takes it while fully intending to pay, no intent to permanently deprive, therefore not guilty of theft.

ii. MPC 223.1(3): affirmative defense to take property exposed forsale, intending to purchase and pay for it promptly, believethat owner, if present, would have consented.

f. Embezzlement (Evaluated case by case): (1) the fraudulent (intent) (2) misappropriation (3) of property (4) of another (5) by one who has been entrusted with possession. i. Fraudulent

1. People v. Talbot: Executive drew a check from company for personal use (with “intent” to pay back): Aggregate sumof $186.866.10.

1. Rule: Embezzlement is defined as (Sect 484 of the Pen Code) “the fraudulent appropriation of property by a person to whom it has been trusted. Section 504 defines person entrusted as “every officer, director, trustee, clerk, servant or agent of any…corporation.

ii. Misappropriation1. Use of property inconsistent with what the O has

authorized.iii. Of Property

1. Liable for embezzlement only when they convert to theirown use the property of another.

1. Yannet: $ paid to nursing home, not entrusting money to it. Funds became property of the nursing home and therefore no embezzlement. It is not theft to use money for one’s other personal purposes even if promised to use otherwise.

2. Where they convert property to buy and pay for yacht.

iv. Of another1. Not your own.

v. By one who has been entrusted with possession. 1. Entrustment, property must be appropriated by one who

was entrusted with its possession.1. Special legal relationship must exist2. Merely having access to the property is not the

same as actually being entrusted with that property.

2. Warren: Janitor steals from employer. Embezzlement conviction reversed b/c not a fiduciary. Must have fiduciary duty to be entrusted.

3. No need for larceny elements: trespass, taking, carrying away.

vi. Claim of Right not a defense to embezzlement.vii. MPC 223.8: expands concept of property of another to those

who are entrusted with property and they have an obligation to do something. If they use the property as their own and fail to fulfill the obligation they are guilty of embezzlement.

g. Consolidation: i. CPC 484: Anyone who feloniously steal, take, carry away, or

any subset of theft, is guilty of theft.1. CA: Criminal convictions must be unanimous.

ii. MPC: Theft consolidated. Not under CL (all 7 elements). iii. Norwood: It’s not necessary to charge the particular type of

theft, such as embezzlement, and there is no error in not instructing the jury to be unanimous in the method, nor doesit matter about the intent to title…the purpose of consolidation is to avoid hung juries and make prosecuting thieves easier.

1. Juries must only prove any subset of theft, not a particular one.

14. Aggravated Property Crimesa. Robbery:

i. CL: A theft of (8) property taken from the person or presence of the other by means (9) of force, or fear of force.

ii. MPC 222.1: A person is guilty of robbery if, in the course of committing a theft, he: inflicts serious bodily injury upon another; or threatens another with or purposely puts him in fear of immediate SBI; or commits or threatens immediately to commit any felony of the first or second degree.

iii. Theft by Force:1. Mejia: Undocumented worker who doesn’t want to use a

bank in fear of being found out. Makes $750, asks friend to hold. Friend says he’s going back to his homecountry. Mejia asks for money, which friend refuses, Mejia shoots him. Defense: I had a claim of right to mymoney. I didn’t mens rea for theft either.

1. CA DEFENSE: Claim of Right is defense to robbery ifyou’re actually taking back your own property.

2. State v. Snyder: Drugged bartender and took $ from cash register. Court: administration of drugs or intoxicating liquors that render one’s victim helpless constitutes “constructive force” sufficient for robbery.

3. People v. Kelley: Drinking game…Court: V takes drug knowingly and voluntarily, no force.

iv. No claim of right to carjackingv. Not robbery if you take from dead person.vi. Snatching: running past and stealing a cell phone…vii. Extortion: Use of threat in an attempt to obtain property from another

person, or some action by another person. Robbery is fear of immediateforce, while extortion is future force. MPC 223.4; No CL.

1. Harrington: Lawye sets up expose, catches husband in affair, sends pictures w/ settlement letter. Court: extortion: A demand for settlement of civil action, accompanied by malicious threat to expose criminal conduct, is extortion if made w/ intent to extort payment against his will.

2. Claim of Right: Can be a defense to extortion, but not in:Jackson: Cosby’s illegitimate child demands $40 million or go to press. Court: D had no plausible right to $40 therefore no claim of right.

viii. Armed Robbery is robbing someone, not with just physical force, but with a dangerous weapon.

1. Armed Robbery even if dangerous weapon is concealed. Goldman; Buggs.

ix. Each person you rob is a single count of robbery. Swenson. b. Burglary:

i. Burglary is a precursor to theft. The purpose of burglary isto protect the safe haven of the home and to deter theft from occurring. Traditional burglary occurs when someone is trying to break in to someone’s home to steal.

ii. MPC 221.1: The unauthorized entering of a building or structure with the intent to commit any crime.

iii. CL Elements: (1) breaking and (2) entering into (3) the dwelling of another (4) at night (5) with the intent to commit a felony.

1. Breaking1. Even opening a closed door…or raising an unlocked

window constitutes breaking. Constructive breakingoccurs when one enters a structure by trick or artifice.

2. Entering in

1. An entry occurs as soon as any part of D’s body iswithin the structure, even if only fingers. Franco.

3. Dwelling of Another1. CA: Gauze: Go get your gun I’ll get mine. Leaves

the home he shares with the victim. Comes back at night. i. CA RULE: Any person who enters any house room

or apartment unauthorized with intent to commit grand or petty larceny or any felony is burglary. Court: Not guilty. Purpose was not to punish those entering own home.

2. Modern Rule: Officers, shops, garages included. 4. At night

1. Modern Rule: Most jx have dispensed with the nighttime requirement.

2. Some jx consider nighttime entry one of the factors that elevates burglary to a higher grade offense. MPC 221.1(2)

5. Intent to commit felony1. CL: Proof that D entered with the intent to commit

a felony. Mere trespass only a tort not a crime. 2. MPC 221.1(1): Burglary includes an entry with

intent to commit any crime. 3. If you’re found inside the home at night…or

attempting to get inside with a mask, gun, gloves,tools, etc.

iv. Bribery: We punish both the briber and bribee.1. CL: A quid pro quo, an offer of something of value in

exchange for an official act, with corrupt intent.2. Different between CL and MPC: Both had to be guilty

under CL.3. MPC 240.1: A person is guilty of bribery if he offers,

confers or agrees to confer upon another, or solicits, accepts or agrees to accept from another any pecuniary benefit as consideration for the recipient’s decision or action (1) as a public servant, party official or voter; or (2) in judicial or administrative proceedings; or (3) which violates a known legal duty as a public servant or party official.

4. Bowling: public legislator says “pay me and I’ll talk tothe liquor license board on your behalf.” Court: not bribery because he didn’t exercise an official functionof his office.

5. Walker: D offered mayor a bribe. Mayer did not act on request. D still guilty of bribery.

6. Commercial bribery: You’re a salesman and you go to someone who might want your business. “Give me a contract for 100 of my products and I’ll give you back 10% of profits to you” which creates an unfair market advantage.

1. Exception: If you do that to everyone as part of your business plan…and it’s explicitly stated to everyone you do business with (i.e. term of written contract).

c. Extortion:i. A person is guilty of extortion if they (1) maliciously threaten (2) to accuse

another of crime or offense or with an injury (3) with the intent to extort.ii. CA: Extortion threats are an (1) unlawful injury; (2) to

accuse someone of a crime; (3) to expose disgrace; (4) by exposing a secret

iii. Extortion occurs when both parties are willing participants.If a public official says give me $5,000 and I’ll officiallydo X, then that person has solicited a bribe and if you pay him you’ve committed bribery.

iv. Harrington: D was guilty of extortion because he was a lawyer that set up a scenario to catch his client’s husband in the act of cheating, then used those photos against him asking for money/settlement otherwise they’d go to court.

v. Claim of Right to Extortion (Cosby) of property you may be entitled to, but $40 million is too much.

1. Extortion is not a defense to bribery. 1. Pay me of I’ll destroy your business. You can’t

pay otherwise you’re guilty of bribery.

15. Rape/Sexual Assaulta. Statutory Rape: Strict Liability…society’s perspective is that a

minor can’t mentally consent to sex.i. CL: Actus Reus: Sex with the minor. 14-16 years of age

depending on the state. No mens rea because this is a strictliability crime.

ii. MPC1. 211: Consent: (a) consent may be a defense unless (i)

serious bodily harm is involved or (ii) a person is legally unable to give consent.

2. 213.1(1)(d): Punishes male for rape if has sex with female under 10 years of age.

3. 213.3(1)(a): a male at least 4 years older than a female under 16 is guilty of the lesser felony of corruption of a minor if they engage in deviate sex.

4. 213.4(4), 213.4(6): Misdemeanor of sexual assault includes sexual contact with any person under 10, or with any person under 16 if D is at least 4 years older.

iii. Hernandez (CA): D had sex with a minor who was 17 years, 9 months old. Defense: I made good faith mistake! I thought she was 18!

iv. Garnett (Maryland): D is 20 years old. Mentally 12-13/IQ=52. Victim=13. Rule: Second degree rape: Sexual intercourse between a person under 14 and another at least four years older than the complainant. D argues: My mental state is within 4 years therefore no 2nd degree rape. Pushes

boundaries of a mens rea requirement to a strict liability crime. Court: This is not for us to decide. Strict liabilityis strict liability, leg may make changes to introduce a mens rea requirement but we won’t create law.

v. People v. Olsen (CA): A mistake regarding the victim’s age is no defense to charge of lewd or lascivious conduct with achild under 14.

b. Forcible Rape (Non-consensual): i. Modern CL: (1) sex (2) by force or threat of immediate bodily harm (3) with

resistance (4) against Victim’s will/no consent.ii. MPC 213.1: Rape if (a) D compels Victim to submit to

intercourse by force or threat of imminent death, serious bodily injury, extreme pain or kidnapping to be inflicted onanyone; OR (b) D has substantially impaired Victim’s power to consent by giving drugs or intoxicants; or (c) V is unconscious; or (d) V is under 10.

iii. Compare the two:1. MPC doesn’t require absence of consent.2. MPC doesn’t require resistance.3. MPC doesn’t require reasonable fear.

iv. CA Rape Statute: Rape is sexual intercourse with a person not a spouse accomplished against the victim’s will by force, violence or fear of immediate and unlawful bodily injury.

v. Degrees of Rape: 1. Generally, 2nd degree felony2. Elevated to 1st degree if serious bodily injury or

stranger rape.3. Gross sexual imposition is a 3rd degree felony

1. D compels V to submit to sex by any threat MPC 213.1(2)(a)

2. D knows V is incapable of consent MPC 214.1(2)(b)3. Deception where D knows V is unaware that a sexual

act is being committed on her, or bc she thinks its her husband MPC 213.1(2)(c).

vi. MPC on deviate sexual intercourse MPC 213.21. 2nd degree felony2. Sexual contacttouching, for the purpose of arousal.

vii. MPC on sexual assault MPC 213.4misdemeanorviii. Mens Rea:

1. Mistake about consent:2. Maj/CA: mistake about consent is a defense where D’s belief in V’s

consent was both honest and reasonable.

1. This is because rape is general intent crime, to which a reasonable mistake is a defense, and an unreasonable mistake is not a defense.

3. Min: Strict liability, even an honest, reasonable mistake is no defense.

4. Morgan: D brings four people home from bar drunk and rapes his wife, saying it was a fantasy of hers. Used physical force to take her into another room and hold her down while they raped her. When she tried to screamthey covered her mouth until she couldn’t breathe.

1. D’s Arg: Unreasonable mistake. They though V had consented. They had no mens rea.

2. Court: A mistake about consent is a defense to an unreasonable mistake. However, no defense here.

5. Strict Liability: Even honest mistake no defense.1. Lopez: The only elements of rape are force and

absence of consent, no mens rea.2. Williams: crux of offense is force and lack of V’s

consent.6. Withdrawn Consent

1. In re John Z: CA: Where victim consents to initial penetration and withdraws her consent during an act of intercourse but the male forcibly continuesdespite objection is considered forcible rape. i. Bunyard: D should be entitled to rsbl time in

which to act after consent is withdrawn and communicated. Rsbl time=jury question.

2. Compared to: Baby v. State (Md): Cannot be convicted on rape charge so long as victim consented initially.

7. Incapacity to Consent:1. Absent of consent can be demonstrated by evidence

showing an inability to consent.i. Erney: Rape affirmed. V so intoxicated she was

unable to respond to questions, thought she was telling D to stop but all that he could hear was mumbling.

ii. Sherzer: Rape affirmed. HS boys took 17 year old girl with IQ of 64, bat/broomstick into vagina, oral sex, and watched.

ix. Actus Reus:1. Statutes:

1. PA: by forcible compulsion or by threat of force.2. CA: Against the will.

2. Fear:1. Reasonable Fear:

i. Rusk: V’s fear of D suffices to establish existence of force and excuses her failure toresist ONLY if that fear is (1) reasonable aswell as (2) honest.

2. Take your victim as you find her:i. Iniguez: Unrsbl fear may be sufficient to

demonstrate that intercourse was accomplishedby means for force, violence, or fear of immediate and unlawful bodily injury.

ii. Salsman: D who takes advantage of victim’s unrsbl fear of violence should not escape punishment.

3. Resistance:1. Traditional: Resist to the utmost2. Modern: Rsbl resistance required, unless D’s

threat of harm prevents resistance or paralyzed byfear, passive resistance.

3. Iniguez (CA): no requirement for resistance , eliminated element.

4. Force:1. Rusk: Holding & reasoning: rape affirmed b/c

threat of force and threat and no consent. Even a small amount of force is enough if it overcomes/prevents resistance. D lightly choked her when she cried.

2. Evans (NY): V was 20 years old, met D 37. Manipulated her saying he was a psychologist, then“I could kill you, rape you…” Has sex with her three times before she leaves.

3. Berkowitz (PA): Drunk girl goes to friends dorm, finds roommate, who locks door and has sex with her. Indecent assault, not rape. Weight of body ontop not enough force. i. V didn’t say no, didn’t resist, was not

forced. ii. Rule in PA: Must be forcible compulsion for

rape.iii. Prince: D ex husband forced ex wife to have

sex: You told me no but you aint mean it. Acquitted of rape, only sexual assault because of no force.

iv. Difference between Iniguez & Berkowitz:

1. CA Rape statute includes the “fear of force.” PA (CL) statute versus CA: The latter allows fear of force to suffice while the other did not.”

5. Force & Fear:1. Iniguez or iriguez (CA): No force, friends fiancé

came into room at night, pulled down her clothes and had sex with her for less than 2 minutes. She was paralyzed by fear. i. Rule CA: If not force then there must be fear

and there need not be threat.ii. Reasonable fear=he weighed twice as much as

me.6. Threats of Nonphysical Force:

1. Traditionally: Force requirement has been satisfied only by evidence tha thte D used or threatened physical force.

2. Mlinarich (PA): 63 year old has custody of 14 year old. D engaged in sexual abuse by D who threatenedto send her back to detention home if she refused.V had no choice and therefore submissive was result of a deliberate choice and not an involuntary act. Compulsion here did not overwhelmV’s will. Whoa.

3. Thompson: Rape charges dismissed where HS principal threatened to prevent V from graduating HS if she did not have intercourse with him. “Force” includes threat of substantial retaliatoryaction that causes V to rsbly believe that D has the ability to execute threat.

4. Lovely: Retaliation threats of extortion or public humiliation or disgrace, loss of employment and housing if he did not submit to sex.

x. Fraud1. Traditionally: consistent with trad view that rape must

be accomplished by physical force is the notion that fraud or deception on the party of the D is insufficient to support a rape charge.

2. Fraud in the factum: Deception as to the act itself=fraud in the factum: deception as to the nature of the act itself invalidates consent=rape.

1. Gyno visit: Consent to exam, not sex or penetration.

2. McNair: Impersonating victim’s husband is fraud infactum.i. Compare: Suliveres: impersonating V’s

boyfriend as fraud in the inducement.3. Fraud in the inducement: Where V understands the sexual

nature of the act, but consents to it b/c of some fraudulent misrepresentation.

1. CL: Insufficient to support rape conviction b/c extends so far into the normal societal behaviors.i. Ex: Evans: Niave girl tricked into NY apt.ii. Boro: Man poses as Dr. Lies about his semens

healing powers. 2. Bolsinger: D’s sexual abuse of boys at camp was

accomplish by fraud in the inducement and not fraud in the factum since boys were told that D was checking for bruises, starches, hernias, and testicular cancer and V’s were touched in exactly same manner represented to them.

3. Mitchell: Posed as bf calling gf’s telling them sexual fantasy based on 9 ½ weeks. Women unlocked doors, blindfolded themselves, removed clothes, and had intercourse with him. Tenn Statute: Rape as sexual penetration accomplished by fraud with fraud broadly defined to include deceit, trickery,misrepresentation and subterfuge. rape by statute language.

4. Trickery is morally reprehensible, not criminal 5.

xi. Marital Rape:1. MPC: retains marital exemption for all sexual offenses,

even if a couple is living apart under an informal separation agreement. MPC 213.6(2) Unless judicially separated.

2. Maj: 30 states have abolished marital exemptions.3. Min: 20 states impose less serious penalties for

marital rape, punish only certain kinds of marital rape…unconscious, incapacitated, unable to consent, criminalize rape only if couple was separated or divorced…

4. People v. Md: H doesn’t think they have enough sex, rapes her, crushes a raw egg in her vagina. She has internal damage.

5. Liberta: Rape isn’t between a man and a woman…its betweenhuman beings. that was beautiful Robert.

6. CPC 262: No spousal immunity for rape.

16. Defenses:i. Regardless of whether the elements of the crime are met, a

defense will justify or excuse a conduct. Partial defenses reduce charges; complete defenses acquit.

b. Self Defense: Of yourself, others, and property.i. CL: As a non-aggressor one reasonably believes such force is

necessary to protect himself from imminent use of unlawful force by the other person. Deadly force is only justified inself-protection if the actor reasonably believes that its use is necessary to prevent imminent and unlawful use of deadly force by the aggressor.

ii. Elements: 1. Honest Belief that2. Use of physical force is necessary3. To defend against the imminent or immediate unlawful

act of another4. Force must be reasonably related to the threatened

harm.iii. MPC 1.12(2): D has burden of proof to come forward with

evidence to support the defense, but then the Gov’t has burden to prove BRD that D did not act in self defense.

iv. Goetz: Imperfect Self-Defense1. Facts: Vigilante Goetz fires at 4 young black men who

“ask” for $5 on subway. NY Statute: Deadly force if reasonable belief other person is committing or attempting to commit a robbery. Court: “he reasonably believes” requires objective reasonableness, based on circumstances facing a person in his situation.

2. Subjective v. Objective Standards of Self Defense:1. Maj: D’s fear must be honest and rsbl for self

defense.2. Min: D’s fear must simply be honest for self

defense.3. MPC 3.04(1): D must believe force is immediately

necessary to protect himself against unlawful force. 4. Imperfect Self Defense:

1. Min: If unrsbl and you use defensive force that kills=mnslghtr. Unrsbl fear leading to use of deadly force: Inv. Mansl.=unrsbl fear makes killing equivalent to reckless or neg homicide Beeler.

2. Maj: You either have self defense or you don’t.v. Norman: Imminence requirement: D’s defensive force is

justifiable only if the D rsbly feared imminent threat.1. Facts: W killed H who abused her for 25 years. Worst

beating on day of shooting. Shot him 3x. No “Imminent threat.”

1. Inevitable harm does not equal imminent harm.2. MPC 2.04(1): D must believe defensive force is

immediately necessary…on the present occasion. 3. No imminent threat in Norman. 4. Battered Woman Syndrome: Objective test is rsbl person

in woman’s shoes in that situation by showing evidence describing history of abuse.

1. CA: Humphrey: refused to endorse a rsbl battered woman standard. Acknowledged that rsblness must beviewed from D’s perspective and all relevant circumstances in which D found herself.

5. Rsbl children: Janes: prolonged child abuse is analogousto battered woman syndrome and have allowed evidence describing the battered child syndrome to support self-defense claims raised by abused children who kill theirparents.

vi. Initial Aggressor: “An aggressor has no right to claim a self-defense.” Bellcourt v. State

1. Exception: If aggressor communicates intent to withdraw and attempts to do so in good faith, the use of defensive force is restored.

2. MPC 3.04(2)(b)(i): No use of deadly force if D provokedthe use of force against himself.

3. Maj: Initial aggressor rule limited to cases where D committed an affirmative unlawful act reasonably calculated to produce an affray.

vii. Of Others: Maj/MPC 3.05/NY: D can use defensive force to protectthird party so long as D rsbly believes use of force is necessary to protect the other from imminent threat of unlawful physical harm. Min: right of person to defend another is not greater than such person’s right to defend themselves.

viii. Retreat Rule:

1. Maj: no duty to retreat even if there is a ready escaperoute.

2. Min/NY/MPC 3.04(2)(b): Duty to retreat if you can do sow/ complete safety….

1. Castle Doctrine:i. MPC 3.04(2)(b)(ii)(A): except that: The

actor is not obliged to retreat from his dwelling or place of work…

1. Tomlins: Fact: Dad shot and killed son at home. Rule: No duty to retreat from one’s own home. If situation justified Da rsbl man, in believing he was going tobe murderously attacked, he had right to“stand ground.” Not in “co-occupant” situations.

ix. Defense of Home & Property:1. CL: Using nondeadly force to protect property only if

you rsbly believe it is necessary to prevent imminent threat to your property. Deadly force is never okay to solely protect property.

1. Deadly force acceptable to prevent unlawful entry into home.

2. Today: Can use deadly force to prevent an unlawfulentry into the home if you believe intruder intends to commit a forcible felony or otherwise poses a risk of death or SBI. Ex: Burglary.

2. MPC 3.06: Using non-deadly force to protect home and property is acceptable if you believe it is immediatelynecessary to protect, as long as you first ask the other to stop interference (if reasonable to do so); and you do not use force that you know will expose trespasser to danger of SBH.

1. Deadly force is acceptable if you believe intruderis attempting to enter to dispossess you of the home and has no claim of right to possession.i. If you believe someone is attempting to

commit arson, burglary, robbery or some otherfelony involving the theft or destruction of property, so long as, person has used or threatened deadly force or using nondeadly force to prevent the crime would create a substantial danger to yourself of SBH.

3. Spring guns:

1. CL: can use psring guns if D would have been justified in using deadly force.

2. Modern: too dangerous and too many potential mistakes as spring guns do not discriminate who they shoot.

4. Anderson: D shot V’s who broke into friend’s home. D wasvisitor. Rule: Make my day: Any occupant of a dwelling is justified in using any degree of physical force, including deadly force, against another person who has made an unlawful entry into that dwelling, and when theoccupant has a rsbl belief that such other person mightuse physical force, no matter how slight, against any occupant of the dwelling. Court: Occupant includes visitors…

1. CL: can only use deadly force to defend your private property/house.

c. Necessity: I had to…nature forced me toi. Necessity is not a defense to murder (CL): Dudley &

Stephens. 1. MPC rejects this and uses lesser evil in place of a

greater evil occurring; rejecting Lord Coleridge’s opinion in Dudley & Stephens.

ii. D has burden to show direct causal relationship btw crime and avoidance of the threatened SBI/death/harm.

1. D was under unlawful and present threat of death or SBI.

2. D did not recklessly place himself in a situation wherehe would be forced to engaged in criminal conduct.

3. D had no reasonable legal alternative but to violate the law.

4. Then govt has burden of disproving the defense BRD unless statute says otherwise.

iii. No defense if D was at fault for bringing about situation. iv. Economic necessity: had to steal to eat? Had to kill to eat?

CL: No.v. MPC 3.02: Choice of evils:

1. Necessity defense okay if you can perceive two evils and that you will choose to break the law when it is the lesser evil:

1. Force of Nature cases:i. Break into a cabin in middle of snowstormii. Settle in port when you don’t have a permit

so your boat isn’t thrown against rocks.vi. Necessity in Prison:

1. Reese: Iowa inmate escaped b/c fear of homosexual assault and death. Holding: No defense b/c didn’t immediately report to authorities after attaining safety.

2. Lovercamp factors: limited defense of necessity to escapecharge: Allows D to remove himself from intolerable immediate situation yet places responsibility on him toturn himself in when reached position of safety. All 5 must be met:

1. Prisoner faced w/ specific immediate future threatof death, rape, sbi;

2. No time to complain or history of futile complaints;

3. No time or opportunity to resort to the courts;4. No forced used towards innocents in escape;5. Immediately reports to proper authorities once in

position of safety. 3. Ungerer Way (IL): Rsnble adherence to same 5 factors,

but not all need be met.4. MPC: More general and forgiving.

vii. SC: No defense to necessity to federal laws. viii. US v. Bailey: Narrow defense of necessity in prison escape

case.ix. MPC 3.02x. Civil disobedience:

1. Must meet elements of necessity defense…Schoon.

d. Duress: Excuses: Human made me do it.i. CL: Duress is force of another; where as necessity is force

of nature.ii. CL: require proof of imminent threat; limited to cases where

D threatened with death or SBH. Exceptions: at fault and murder exception.

iii. MPC 2.09(1): Duress defense in cases where D was coerced to commit a crime by use or threat of unlawful force against his person or the person of another, that a person of rsbl firmness in his situation would have been unable to resist.

1. No duress defense if D was reckless in putting himself in the situation. Compare to CL: Does not limit duress cases involving an imminent threat of death or SBI; does not foreclose the defense in murder cases; recognizes a distinction btwn duress and necessity.

iv. Can choose greater evil, in necessity, you must choose lesser evil.

v. Duress is threat of physical harm, necessity is threat of anything.

vi. Scott: D helped terrorize victim for crips gang boss. D claimed duress defense. Rule: Kansas Defense of Compulsion: Not guilty of crime other than murder if VM if he rsbly believed that death or sbi would be inflicted on him.

1. No defense if D willfully or wantonly placed himself insituation where it’s probable that he will be subjectedto compulsion or threat.

2. Court: Duress defense denied because he could have leftat any time and put himself in that situation in the first place.

3. Contento-Pachan: “they’ll kill my family if I don’t…” Court allows this defense.

vii. Following orders: not duress defense because following orders is different than being forced by fear of death or sbi.

1. Maybe defense if D had no knowledge that order was illegaly. Calley v. Callaway

2. MPC 2.10: Defense when D does no more than execute an order of his superior in the armed services that he doesn’t know to be unlawful.

e. Entrapement:i. Elements:

1. Is there govt inducement1. If yes, must be more than trickery and something

that implants the idea into the mind.2. No predisposition

1. D must prove no predisposition2. Look at criminal history

ii. Russell: Facts: undercover fed agent supplied necessary chem ingredient of meth, which was difficult to obtain in exchange for half drugs. Held: Inducement must be more than just providing the opportunity. Defense denied. However, “there is some govt conduct so outrageous that it constitutes entrapment as matter of law.”

iii. Jacobson: Facts: D ordered 2 magazines when still legal, became target of sting for 26 months. Finally ordered magazines. Held: D’s breaking of law in 1987 doesn’t establish that this predisposition was independent and not the product of the attention of the govt. No evidence he hadD intentionally possessed or been exposed to child porn.

Nothing found to indicate he collected or was actively interested in child porn. Rule: When govt has induced an individual to break the law, govt must prove BRD that D was disposed to commit the criminal act prior to first being approached by govt agents.

iv. Hawkins: NV: puts 100 bill in a guy’s pocket as he’s sleeping outside.

v. Barnes v. State: Reverse-Sting Operation: D agrees to purchase controlled substance from undercover police officer. Is selling contraband considered entrapment in the sense of “criminal design” if they’re supplying it? Think about lots of drugs or weapons?

f. Insanity: Guilty, but insane convictioni. Elements: (1) could not appreciate “nature and quality” of

acts (shooting someone but think you’re catching butterflies); or (2) if so, could not appreciate that it waswrong. M’Naughten.

ii. MPC 4.01(1)iii. M’Naughten: Guy is acquitted based on insanity; queen

assembles the lords and creates two requirements listed above (only need one).

1. Prove insanity: if you don’t prove either element, you can’t control your actions and it proves itself…

iv. Maj Modern Rule: Guilty but mentally ill. Sentenced for crime, but sent to mental institution.

v. Hinkley: Attempts to shoot Reagan to impress Jodi Foster. Court: Adopted volitional test b/c M’Naghten too strict. D not convicted b/c insanity defense. Public horrifiedback to M’Naghten approach.

vi. Clark: More liberal version of M’Naghten which says that the only part of M’N test that applies is that the D did not understand that the act was wrong. If D didn’t understand the nature of the act, can still be convicted.

vii. Jones: When acquitted by reason of insanity, the D can be institutionalized in a mental institution. Does not need to be released from mental institution until certified as sane or not dangerous. Might result in time spent in institution that exceeds time in jail.

g. Insanity defense in different contexts:i. Pathological gambling: No. LOwitiziii. PTSD: Yes. Wood.iii. Postpartum Depression: Maybe, ½ acquitted, ¼ lenient

sentence, ¼ heavy sentence.

iv. XYY syndrome: NO b/c not all XYY individual by nature involuntarily aggressive and therefore no causal connection btwn defect and criminal conduct. Tanner

v. Drug/Alcohol Addiction: No. Although prolonged alcohol/drug use may trigger mental disease and form basis for insanity defense, drug/alcohol addition is not itself a mental disease. Lyons.

h.