CRIMINAL LAW 19/04/2011 19:58:00

← Homicide
← Unlawful killing of a human being
← Corpus Delicti
← Death
← No body required
← Circumstantial evidence is sufficient
← Criminal Agency
← Must be established independent of a confession
← Unless the confession is made in court
← Circumstantial evidence is sufficient
← Requires only prima facie showing
← Human being
← Fetus
← Either born or
← In the process of being born
← Murder I
← Premeditation
← No exact definition of time. Three guides:
← Planning activity
← Motive
← Manner of killing
← Felony Murder
← Unlawful killing of a human being
← During the commission of a felony
← During the attempt to commit a felony, or
← While in flight after the commission of a felony
← Does not last forever but
← Must be one criminal transaction
← Predicate felony
← Inherently dangerous to human life
← Look at the felony in the abstract, not the particular facts of the case
← Ex—armed robbery is a felony and is inherently dangerous to human life
← Ex—impersonating a government official is a felony but not inherently dangerous to
human life
← Cannot be predicated on assault
← Merger doctrine
← Every murder requires an assault
← If any assault resulted in death, ∆ could be charged with felony murder every time
(which is first degree murder in most jurisdictions)
← Legislature did not intent to convert every assault resulting in murder into first
degree murder (Felony murder)
← Therefore, assault can never be the predicate felony for purposes of felony murder
because it merges with the resulting homicide
← Look to the Statute
← Enumerated felonies within statute

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← Burglary, robbery, arson etc.
← No enumeration—“during commission of felony” CHOOSE
← Inherently dangerous to human life
← Any felony, or
← Intent to commit a felony
← Mixed—enumerated and “any other felony” CHOOSE
← Inherently dangerous to human life
← Any felony, or
← Intent to commit a felony
← Murder II
← Malice
← Unlawful killing with malice
← Malice is Extreme indifference to human life
← Firing gun into train
← Driving speed boat through a crowd of swimmers
← Firing gun into an occupied room
← Throwing stones from roof of tall buildings
← Manslaughter
← Unlawful killing without malice
← Voluntary Manslaughter
← Intentional killing in the heat of passion with sufficient provocation

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← Adequate provocation recognized by law
← Actual provocation
← Words are sufficient in some circumstances
← Imperfect self defense
← Subjective belief that life is threatened BUT
← That belief is unreasonable
← Involuntary Manslaughter
← Criminal Negligence
← Reasonable person could foresee risk of great bodily harm or death OR/AND?
← Gross deviation form the reasonable standard of care
← Misdemeanor Manslaughter
← Death during the commission of a misdemeanor
← Misdemeanor must carry reasonably foreseeable risk of appreciable physical injury
← Assault
← Attempt with unlawful force to inflict bodily injury upon another
← apparent present ability give effect to the attempt if not prevented.
← Completed battery is an assault
← Victim apprehension is not required
← Rape
← Common law rape
← Unlawful carnal knowledge of a woman without consent

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← Slightest penetration is sufficient
← Statutory Rape
← Age limit
← Consent is immaterial
←
← OFFENSES AGAINST THE HABITATION
←
← Common Law Burglary
← Breaking and entering the dwelling of another in the nighttime with intent to commit
a crime therein
← Dwelling
← Requires occupancy
← No occupants = no dwelling
← Breaking
← Actual breaking
← Slightest application of force is enough
← Constructive
← Threat of violence
← Conspiracy
← Fraud
← In the nighttime
← Historically, when one could not see another’s face

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← Usually defined ex-time of sunset to sunrise (6:00 pm - 6:00 am)
← Intent to commit a crime therein
← Must be at the time of breaking
← Usually, the crime is larceny BUT
← All crimes sufficient
← Arson
← Malicious burning of the dwelling house of another
← Actual
← Malicious
← Dwelling of another
← Habitation of another
← Extended to include one’s own home
← Insurance fraud
←
← OFFENSES AGAINST PROPERTY
←
← Common Law Larceny
← The trespassory taking and carrying away of the personal property of another with
the intent to steal the same
← Personal Property
← Some value or inherent value is sufficient
← Illegality is immaterial

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← Ex—larceny from a thief
← Historically, larceny must have been severed from the land and not part of the realty
← Of Another
← If the property is your own, Liens or property rights may transfer your property to
property “of another” for purposes of larceny
← Ex—mechanic has lien on your car. If you tell the mechanic, “let me take my car for
a spin” and never return to pay for his services, it could be a larceny because he has a lien
on your car.
← Distinguish between custody and possession
← Larceny is a crime against possession.
← Ex—Employer gives you five dollars to go buy apples, but you use the five dollars at
the local bar instead. You have taken the property “of another” (the five dollars) because
the employer had legal possession of the five dollars.
← Ex—Employer gives you five dollars to go buy apples. You buy the apples, but you
never return to the employer. You have not taken the property “of another” because the
employer never had possession of the apples. (This would be embezzlement).
← Taking
← Physically taking the property OR
← Being the instrumentality of the taking
← Ex—telling someone, “I will sell you these hogs for $200” but the hogs do not belong
to you. The buyer pays you the money and physically carries them away. Although the
buyer “physically” carried the hogs away, the “taking” element is met because you were an
instrumentality of the taking.
← Trespassory
← Physical trespass OR
← Taking by use of fraud
← Doctrine of Continuing Trespass
← If original taking is trespassory, but no intent to take has been formed at that time,
the trespass continues until the intent is formed.
← Ex—You go to a party and the host tells you, “leave your coat on the bed in the
guest room with all the other coats.” After many drinks, you go to the “coat room” and take
a coat, but it is not yours. The next morning, you awake with a headache and a new coat,
but you decide to keep the coat that you took instead of returning it. This would constitute
a trespassory taking although you did not form the intent to take that coat at the time of
the taking (because you were shit-faced).
← Carrying Away
← Asporation

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← Item must be moved
← Slightest asportation is sufficient
← Intent to steal
← If property is stolen for a limited purpose, then abandoned, the requisite intent to
steal is formed if
← The taking creates a considerable risk of permanent loss to the owner
← Difficult or unlikely that the owner could recover the property.
← Grand Larceny
← The trespassory taking and carrying away of the personal property of another with
the intent to steal the same
← Value
← Grand larceny requires a breakpoint for value to distinguish it from petty larceny
← Look to the actual value of the item taking
← Testimony from experts
← Price tags
←
← Robbery
← Larceny from the person by violence or intimidation
← Trespassory taking and carrying away of the personal property of another with the
intent to steal the same
← From the person
← Ex—purse-snatching
← Violence or intimidation
← Ex—threaten with gun, knife, or use force

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← There is no requirement that the property actually be taken.
← Embezzlement
← The fraudulent conversion of personal property by a person to whom it was entrusted
either by or for the owner
← NOT A LARCENY because embezzler has possession
← Does NOT require asportation
← Example: B works for X company, employed to haul 105 refrigerators to Seattle. On
the way to Seattle, B calls A in San Diego and asks if A would like to buy B’s refrigerators.
A says ok, and truck driver arrives. Truck driver breaks the company seal, shows A the
refrigerators and says, “We got a deal?” A, reluctant because he notices the seal was X
company’s copyright, says, “I’ll be right back” and then calls the police. Truck driver is
arrested.
← Application—Truck driver committed embezzlement, as opposed to larceny, because
B already had lawful possession of the refrigerators as an employee of X company. There is
no question the refrigerators are personal property. X Company, owner of the refrigerators,
entrusted B with the refrigerators by permitting B to haul the refrigerators to Seattle. B
fraudulently converted the refrigerators to that of his own because he called A in San Diego
and B represented that he had his own refrigerators to sell, although the refrigerators were
in fact X Company’s. While B never moved the refrigerators out of the truck, no asportation
is required to convict for embezzlement. Breaking the seal and showing the storeowner was
sufficient.
← False Pretenses
← Knowingly and designingly obtaining property of another by means of untrue
representations of fact with the intent to defraud.
← DISTINGUISHED from larceny and embezzlement because Criminal actually gets title
to the property by means of false representation
← Misrepresentation of present circumstances certainly can lead to a conviction
← Example—setting the odometer back on a car before selling and receiving money for
a car
← Altering the “a” in a “Manet” painting and selling it as a “Monet” for money.
← Sprinkling cubic zirconium on your land and claiming that your land has diamonds in
the soil so you can sell your $50,000 house for $200,000.
← Misrepresentation of future circumstances presents a problem. The courts are split.
← Promissory Fraud—promise to pay at a future date without the intent of pay
← Majority view: Promissory fraud does not constitute false pretenses.
← Promises to pay in the future is inherent in prison transaction. The failure to pay
after a false promise finds a remedy in civil litigation, not criminal. Otherwise, criminal
courts would be creating debtor’s prison.

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← Minority View: Promissory fraud may constitute false pretenses IF
← The ∆ fails to perform on a promise to pay AND
← There is proof of intent other than a mere failure to perform
← Example—Diehm goes down to the bank and tells them that he needs a loan. He
gets the loan, signs the promissory note, and five years later, he defaults. Here, there is no
promissory fraud because there is no proof of intent other than his failure to perform. Thus,
no conviction for false pretenses can lie.
← HOWEVER, if Diehm says “all you gotta do is go down to the bank and ask for a loan,
and they give it to you. They are so stupid, because I would never pay them back.” Diehm
goes down to the bank and tells them that he needs a loan. He gets the loan, signs the
promissory note, and five years later, he defaults. Here, there is proof of intent other than
a mere failure to perform because Diehm not only failed to perform five years later, he
made it clear that he intended to defraud because he said “I would never pay them back.”
As such, promissory fraud has occurred and a conviction can lie for false pretenses.
← Theft
← Theft by Deception
← ∆ makes a misrepresentation to acquire property
← Victim is actually deceived
← Relies in whole or in part on the misrepresentation
← Receiving Stolen Property
← Where ∆ receives property
← With knowledge that it is stolen
← Indicia that goods are stolen
← Example—brand new item sold for $200 less than the actual price
← Depending upon the value of the property, the punishment may be a misdemeanor
or felony. See Grand Larceny, supra Offenses against Property section II.
← Computer Crimes
← No Comments
← Malicious Mischief
← Destruction or damage to real or personal property of another
← Forgery
← False making or alteration, WITH intent to defraud, a writing which, if genuine, has
legal significance.
← Once the writing is made or altered, the offense is committed.
← Example—A writes a $200 check to B. B receives the check, and adds a “zero” after
the $200, making it $2000.

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← Uttering a Forged Instrument
← Knowingly offering, as genuine, a document known to be false.
← Once the document is offered, the offense is committed.
← Example—A received a check from B. B tells A, “don’t try cashing this at Waypoint
Bank because I stole checks from there and the checks are not mine.” A goes to another
bank and offers the check for cashing.
← Counterfeiting
← The unlawful making of false money in the similitude of the genuine.
← Extortion
← Corrupt collection of an unlawful fee by an officer under color of his office
← Obtaining property by threat, though not immediate.
← Other Offenses
← Contempt
← Criminal: Misconduct disrespectful to the court, which tends to obstruct the
administration of justice.
← Defined punishment with purpose of vindicating the public interests of punishing for
contemptuous conduct
← Civil: Misconduct in the form of disobedience to an order or direction of the court to
the prejudice of the other litigant.
← ∆ holds the key to the jailhouse door, as the purpose of civil contempt is to coerce
the ∆ to comply with the order. Once ∆ complies, he or she is free.
←
← IMPUTABILITY
←
← Necessity of an Act
← Before imputing criminality on behavior, an act is required.
← What constitutes an act

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← Conscious choice of a course of action
← Example—knowing he was subject to epileptic seizures at any given moment, ∆ gets
into a car and drives away, later has a seizure, and kills a woman.
← Attempt and Kindred Problems
← Perpetrating Act
← Substantial step towards the commission of a crime with intent to commit the crime.
← Applies to virtually all crimes
← Intent determined by viewing the totality of the circumstances
← Example—Attempted Robbery: ∆ buys a police scanner, wears a trench coat and a
disguise, cases several banks all day long. The next day, the ∆ walks up to the bank in his
disguise and tries to open the door, but the door is locked. After he leaves the bank, he is
arrested for attempted robbery. ∆ could be convicted because he took a substantial step
towards committing the robbery when he walked to the door and tried to open the door.
His intent can be explained or proven by the attire he was wearing, the “casing” before
walking up to the bank door, and purchase of police scanner.
← Impossibility
← Legal Impossibility occurs where a law states that a person cannot be convicted of a
crime.
← Example—Fake heroin Case: ∆ attempted to sell a substance he though was heroin
and which turned out to be an uncontrolled substance. ∆ cannot be convicted because the
statute does not prohibit the sale of fake heroin.
← Example—Attempting to receive stolen property: ∆ 1 is arrested while in possession
of stolen pipes. Police seize the pipes and instruct ∆ 1 to set up a deal to sell the pipes to
∆ 2. ∆ 2 goes to the designated area to buy the pipes from ∆ 1 but is met by police instead.
He is arrested. ∆ 2 argues that he cannot be convicted of attempting to receive stolen
property because the property was no longer stolen at the time he tried to receive it.
THREE POSSIBLE OUTCOMES
← In California, ∆ can be convicted if he had the intent to receive stolen property, even
if the property was never stolen. STRICT
← Under Rojas, if the property was stolen and recovered, ∆ can be convicted if the
property was stolen at some time before the arrest. MODERATE
← Under Sterling, the property must be stolen when it was received. MINIMAL
← Court must consider what behavior it wants to classify as criminal when considering
such attempt issues.

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← Example—Attempted Assault: ∆ confronted and threatened his wife at work. He
went out to get a loaded shotgun from his car to shoot her, but she fled and locked herself
behind closed doors. ∆ arrested for attempted assault, but argues that since an assault is
an attempted battery, one cannot attempt to attempt to commit a battery and thus be
charged with attempted assault.
← One can commit attempted assault because an assault also occurs when ∆ places
one in fear or apprehension. Therefore, it is no defense to claim impossibility to an
attempted assault.
← Solicitation
← Criminal responsibility can be imputed on a solicitor to a crime even if the crime
solicited does not take place.
← Solicitation is less than a substantial step, as in an attempted crime, but enough to
impute responsibility.
← The reasoning is ground on the prevention of crime. To prevent crime, state must
prevent also the solicitation of crime. One way to achieve that end is to impute criminality
on the solicitation of crime.
← Abandonment
← Criminality cannot be imputed on a ∆ who has voluntarily abandoned the crime
before the crime has been committed.
← Example—Arson: Loud neighbors are bothering A. A wants to burn their house
down. A goes across the street with a gas tank and a lighter, but sees the police and
reconsiders. A has not abandoned the arson, although A abandoned before the actual crime
was committed, because the police, not A, induced the abandonment. Since the
abandonment was not A’s voluntary act, it is no defense. The same result would occur if A
started the fire and the wind blew the fire out.
← HOWEVER, always consider the completion of an attempted crime.
← Example—Loud neighbors are bothering A. To put an end to that behavior, A wants
to burn their house down. A goes across the street with a gas tank and a lighter, lights the
fire, but reconsiders and stomps the fire out. A has only voluntarily abandoned the
completed arson, but not the attempted arson. Attempted arson occurs if A took a
substantial step towards committing the arson with the requisite intent to commit the same.
A took a substantial step by gathering the gas tank and the lighter before lighting the house
on fire. The circumstances also indicate that A had the requisite intent to do so because the
neighbors were always loud and he wanted to put an end to it. While A can raise the
defense of abandonment to the completed arson, A will still answer to the attempted arson,
because the attempted arson is in and of itself a completed offense
←
← Negative Acts/Acts of Omission

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← Where ∆ fails to act, the state can impute criminality if ∆ had a duty to act. A duty
is imposed by
← Statute
← Relationship/status
← Contract
← Voluntary assumption of care
← Example—While driving along the road, ∆ sees victim fall through the ice. ∆ does
not stop to help victim. We cannot impute criminality on the ∆ because ∆ had no legal
duty to act, either by statute, relationship, contract, or by ∆ ’s voluntary assumption of care
for the victim.
← There are, however, rescue statutes or Good Samaritan statues that would lead to an
alternative result in the example above. If such statutes existed, ∆ would have a legal duty
to stop and help the victim by way of statute. Thus, his failure to act would constitute a
breach of legal duty, and Imputability of criminal behavior would be justified based on such
omission.
← Unlike the law of torts, there is no imputability of criminal behavior under the
respondeat superior theory.
← Example--∆ is the owner of the car. While his chauffer is driving ∆ to work,
chauffer is driving extremely recklessly and dangerously, but the ∆ as the owner of the car,
says nothing. Here, we could impute criminality on the owner’s omission because the owner
had full knowledge that the chauffer was violating the law with the owner’s property. As
such, a legal duty arose to prevent the chauffer from using the ∆ ’s own property to violate
the law. His failure to do so represents the requisite act to impute criminality on such
behavior.
← Conspiracy
← A conspiracy occurs where there is an agreement among two or more persons to
commit an unlawful act, or to do a lawful act by criminal or unlawful means and any co-
conspirator performs a subsequent overt act in furtherance of the conspiracy.
← Each co-conspirator is liable for all the foreseeable substantive offenses committed
by any conspirator
← This is a device to impute criminal responsibility on persons who take part in the
conspiracy but do not commit the substantive offenses resulting from the conspiracy.
← Conspiracy is a crime independent from the substantive offenses
← Conspirators need not know each other or be privy to the details of the operations,
acts committed, or other foreseeable acts, so long as the conspirators have knowledge of
the conspiracy’s general purpose and scope.
← Wharton Rule—if the criminal act requires two people, conspiracy cannot be charged.

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← Example—bribery, receiving stolen property, or adultery. In all cases, you cannot
have a conspiracy because there is no “agreement” in the conspiracy sense.
← Abandonment Issues—Can a ∆ abandon the conspiracy?
← Once there is an agreement and an overt act, the conspiracy is formed, and since
conspiracy is an independent crime, the crime is completed. ∆ cannot abandon THE
CONSPIRACY at this point.
← If the conspiracy is formed, and the ∆ voluntarily abandons BEFORE any subsequent
substantive offenses take place, ∆ will still be liable for the conspiracy BUT WILL NOT be
responsible for subsequent substantive offenses committed after the abandonment.
← HOWEVER, while ∆ may voluntarily abandon, and even if ∆ does, ∆ will probably
have to call the police or prevent any subsequent offenses from occurring in order to save
his ass.
← Enterprise liability requires an enterprise and a pattern of criminal activity. This
is a method of imputing criminal responsibility on an individual, usually imposed by statute,
such as RICO.
← An enterprise is a group of persons associated together for a common purpose of
engaging in a course of conduct.
← A patter of criminal activity is defined by statute—the statute usually outlines the
requisite acts.
← Applies to both criminal and non-criminal organizations.
← RICO cases are usually criminal and civil, and Π s are usually encouraged to bring
RICO action in civil court through the imposition of treble damages.
← Agency
← Only if the superior officer commands, directs, or consents to the inferior officer’s
criminal behavior can the superior officer be liable.
← Criminality does not attach solely on the concept of agency
←
←
←
←
←
←
← Incorporation
← Criminal responsibility may be imputed on a corporation if the intent to commit the
criminal behavior is shared by agents and upper-management.
← Such upper-management must either authorized actions by the agents of the
corporation OR
← Acquiesce to the actions by the agents.

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← A statute may attach criminality to corporate behavior regardless of intent
← If corporation is found guilty, state may impose a substantial fine in lieu of a prison
sentence, since it is difficult to imprison a corporation.
← Parties to a Crime
← Aiding and abetting is not a criminal offense. ∆ can be charge as a principle to a
crime in which he aids and abets IF
← ∆ has knowledge of the unlawful purpose of the act AND
← advises, aids, promotes, encourages, or instigates the principal to commit the crime
← A ∆ can be charge with all crimes that are the natural and probable consequences of
the target offense.
← Difference between conspiracy and aiding and abetting:
← Aiding and abetting is not a crime, it is only a method of imputing criminal
responsibility as a principle where one encourages criminal activity and any natural and
probable consequences of such encouragement
← Conspiracy is both an independent offense AND is a method of imputing criminal
responsibility on subsequent substantive offenses resulting from the conspiracy.
← Apart from an aider and abetter, a ∆ can be charged as an accessory after the
fact, which is a crime independent of the principle crime. Unlike an aider and abetter, one
who is an accessory after the fact cannot be convicted as a principle to the target crime.
← Causation
← An act may suffice for causation if it contributed to the resulting injury.
← Fright, fear, or terror resulting in one’s death may be sufficient as the cause of
death.
←
← RESPONSIBILITY
←
← Mens Rea (Culpability in the Mind)
← Criminal responsibility requires a finding of the requisite mens rea
← There is an assumption that mens rea is required in a criminal statute
← Congress could pass a statute without a mens rea requirement BUT
← Criminalizing behavior without a mens rea requirement is highly disfavored
← Criminal Negligence
← Criminal negligence is a form of mens rea.
← To establish criminal negligence, prosecutor must show a gross deviation from the
norm OR
← gross deviation from reasonable conduct
← Specific Intent
← Specific intent is a form of mens rea

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← Example: burglary requires the “intent to commit a crime” therein
← Prosecutor must prove ∆ had the “intent to commit a crime”
← If ∆ broke into a house because you are cold, not to commit a crime therein, ∆ did
not have the requisite mens rea to commit burglary
← Example: assault “with the intent to kill”
← Prosecutor must prove that the ∆ had the “intent to kill” victim
← If ∆ shot a gun at A, intending to kill A, but misses and strikes B instead, ∆ did not
have the requisite mens rea to commit assault with the intent to kill B.
← Malice
← Malice is a form of mens rea
← Malicious destruction of property requires
← Purpose or desire to vex, annoy, or injury another’s property OR
← Intent to do the unlawful act (destroy property is the unlawful act)
← Prosecutor must prove either one to establish the mens rea
← Knowledge
← Knowledge is a form of mens rea
← ∆ cannot claim willful blindness of criminal acts
← Willfully avoiding actual knowledge of the crime is sufficient to establish knowledge
← Willfulness
← Willfulness is a form of mens rea
← To establish willfulness, prosecutor must show that the ∆ merely knew what he or
she was doing
← Willfulness does not require an evil purpose in all cases,
← Strict Liability
← Strict liability means that criminal responsibility will be attached to certain conduct
without requiring mens rea.
← Low level crimes
← Parking meter violation
← Corporate crimes—violating environmental statutes
← Unlawful Conduct
← Unlawful conduct does not necessarily lead to responsibility for other crimes (differs
from negligence per se in tort law, i.e., violation of statute = negligence per se).
← To attach criminal responsibility for unlawful conduct, prosecution must show
← Conduct was unlawful AND
← Represents a gross deviation from normal behavior

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← Transferred Intent
← There is no transferred intent in criminal law.
← Look to the crime that is charged against the ∆ and determine the mens rea for the
crime charged
← Example—∆ throws a hammer at A with the intent to kill A. The hammer flies past A
and strikes B, killing him instantly. Prosecution charges assault with the intent to kill B.
The mens rea element of assault with the “intent to kill B” is not established because:
← ∆ had the intent to kill A, not B. Therefore, ∆ cannot be charged with assault with
intent to kill B. HOWEVER,
← ∆ could be charged with Murder II because the mens rea required for Murder II is
malice. Malice requires extreme indifference to human life, and throwing a hammer at one’s
head sufficiently constitutes extreme indifference to human life.
← Motive
← Motive is the moving power which impels action that carries a definite result
← Motive is not an element of an offense
← Examples
← Hatred
← Jealousy
← Revenge
← Money
← Love
← Concurrence of Mens Rea and Actus Reus
← A crime requires the union, or joint operation, of mens rea and actus reus.
←
← LIMITATIONS ON CRIMINAL CAPACITY
←
← Immaturity

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← Persons under age seven (7) have no criminal capacity
← Persons ages seven (7) through fourteen (14) creates a rebuttable presumption of
criminal capacity
← This age group goes through juvenile proceedings, not criminal proceedings
← Persons over age 14 are criminally capable
← Whether a person will be tried as a juvenile or adult depends upon
← Age
← Statutory language (age limit specified)
← Waiver provisions (waiver hearing to determine whether ∆ will be tried as an adult)
← Crime charged
← If a penalty results in a minor being institutionalized, due process rights are
triggered.
← Right to counsel
← Notice and opportunity to be heard
← Right to confront accusers
← Privilege against self-incrimination
← Insanity
← McNaughton Test
← ∆ did not know what he or she was doing
← ∆ did not know right from wrong
← Durham/McDonald Test
← If ∆ was insane at the time of the crime, ∆ is not guilty
← Insanity Defense Reform Act changed prior insanity defenses
← Before the Act, prosecution had the burden of proving, beyond a reasonable doubt,
that the ∆ was either
← Unable to appreciate the nature of his or her acts OR
← Unable to conform conduct to the requirements of law, typically known as the
“irresistible impulse” test.
← The Act eliminated the “irresistible impulse” test. Thus, Insanity attaches IF
← ∆ is unable to appreciate the nature of his or her acts
← ∆ proves this by clear and convincing evidence WITHOUT
← The aid of experts testifying to the ultimate issue of ∆ ’s insanity (“∆ is/is not
insane”)
← Diminished Capacity
← ∆ with diminished capacity cannot formulate premeditation
← Distinguishing COMPETENCE and INSANITY
←
←

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← Competency ←
← Test ← Insanity
← Understand the nature of the ← Test
charges against the ∆ AND ← McNaughton OR
← Unable to assist counsel ← Durham/McDonald Tests (SEE
← Timing ABOVE)
← Determined at the time of the ← Timing
proceedings, not at the time of the crime ← Determined at the time of the
← Effect crime
← Proceedings are postponed until ← Effect
such time as the ∆ is competent to stand ← NOT GUILTY
trial ←
← ←
← ←
←

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← Procedure
← Government moves for psychiatric determination
← Preempts the problem of arguing that the ∆ was incompetent (after conviction but
before trial)
← Psychiatrist determines insanity and competency
← If incompetent, proceeding is stayed
← If competent, determines insanity at time of offense
← (government wants to do this at the closest time possible to the offense so
government can use it as a trial tactic against ∆ ’s doctors)
← If government determines that ∆ is competent but insane, they can accept or refer
for a second opinion.
← If government determines and is convinced that the ∆ is insane, and defense will
obviously agree, there is a mini-trial determining that ∆ is not guilty and there will be
procedures to determine where ∆ will be spending his time.
← If government determines that ∆ is competent, but not insane at the time of the
crime, ∆ brings in his doctors to make the determination.
← After ∆ ’s doctors determine he is insane, they go to trial
← Government puts on its case
← ∆ puts on the insanity defense
← Government rebuttal case of insanity defense
← Intoxication
← Voluntary intoxication is not a defense UNLESS ∆ could not possibly form the mens
rea for the specific crime.
← Due process does not require state to allow ∆ to present a voluntary intoxication
defense
← States may even eliminate this defense by statute
← Ignorance or Mistake of Law
← There is a presumption that everyone is privy to the laws
← Ignorance or Mistake of Fact
← Mistake of fact will disprove a criminal charge if the mistaken belief is
← Honestly entertained
← Based upon reasonable grounds AND
← Of such a nature that the conduct would have been lawful had the facts been as they
were reasonably supposed to be.
← Impelled perpetration
← If a crime is committed under serious duress, threat of serious bodily injury or death,
the crime may be excused UNLESS
← The act done under duress is the killing of another innocent person

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←
← Consent
← No Comments
← Guilt of the Injured Party
← No excuse to commit crime
← Considerations
← Provocation
← Conduct of injured party
← No excuse to commit crime
← There is no contributory negligence
← Condonation by Injured Party
← Not effective because criminal law is a public wrong, not individual
← Therefore, victim generally cannot condone the crime to the point where the crime
will be excused
← Prosecutorial Discretion
← Prosecutor has complete discretion over what charges, if any at all, will be brought
against the ∆
← Prosecutor decides whether ∆ will be charged or not
← Prosecutor decides what degree will be charged
← Ex—first, second, third degree; felony or misdemeanor
← Prosecutor decides to accept a negotiated plea or not
← Prosecutor decides who will be allowed to cooperate and possibly receive leniency
← Prosecutor decides who will or will not be granted immunity
← Sentencing Discretion
← Federal sentencing guidelines
← Determines minimum and maximum sentence for particular crime/∆ based on
several factors
← ALL judges bound by the guidelines
← If a ∆ cooperates with the prosecutor, judge has discretion in sentencing
← Prosecutor MUST SIGN to give judge that discretion over the particular ∆
← Mandatory Minimums
← E.g., three strikes rule: PROSECUTOR files the three convictions
← If charge will be ∆ ’s third, prosecutor can decide whether or not to file the prior two
conviction
←
← SPECIAL DEFENSES: SPECIAL DEFENSES ARE MUTUALLY EXCLUSIVE

←
← Public Authority

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← Defense of public authority is valid IF
← Public authority was granted by one with public authority AND
← There is a reasonable belief that the ∆ was acting under public authority
← Objective determination
← Subjective intent of the ∆ irrelevant
← E.g., ∆ claims, “I thought I was working for the cops” when cops never hired him to
work as an informant
← Use of force against a fleeing felon in all circumstances is not constitutional
← If there is imminent danger to the police officer OR others, deadly force might be
upheld
← Domestic Authority
← Law permits a certain amount of reasonable force used by parent on a child
← Spanking, etc.
← Not criminal UNLESS falls within the realm of child abuse or other crimes
← Prevention of Crime
← Individuals have a privilege to use NON-DEADLY force to prevent
← The commission of a felony OR
← A misdemeanor resulting in a breach of the peace
← Individuals have a privilege to use DEADLY force ONLY TO PREVENT
← Dangerous felonies
← Self-Defense
← Privilege to use NON-DEADLY force in the effort to avert harm threatened (actually
or apparently) by the wrongful act of another depends upon
← Reasonable belief of the defender
← Under the circumstances as they appear at the moment
← Privilege to use DEADLY force is invoked IF
← Defender reasonably believes he is in immediate danger of
← Death OR
← Serious bodily injury UNLESS
← Retreat rule applies
← If defender can reasonably escape without endangering himself
← Defender must retreat before resorting to deadly force
← If the Retreat rule does not apply
← Deadly force is permitted if
← Reasonable belief of immediate danger of death or serious bodily injury
← Defense of Others
← Use of NON-DEADLY force to protect another is permitted if
← Defender reasonably believes the other is subject to criminal behavior

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← Use of DEADLY force to protect another is permitted if
← Defender reasonably believed the other could not protect himself from
← Immediate death OR
← Serious bodily injury
← Defense of Habitation
← NON- DEADLY force permitted IF
← Reasonably necessary to prevent
← Unlawful harm or injury to habitation OR
← Prevent any unlawful intrusion
← DEADLY FORCE is permitted IF
← Reasonably necessary to prevent
← Burglary OR
← Arson
← Defense of Property
← Privilege to use NON-DEADLY force IF
← Reasonably necessary to protect one’s property
← Real or personal
← Employs no more force than necessary to accomplish this purpose
← Entrapment
← Federal System and Majority View in the States: Focus on ∆ ’s Conduct
← Entrapment is not a valid defense IF
← ∆ was PREDISPOSED to the criminal behavior in question
← Minority View (California): Focus on Law Enforcement Officer’s conduct
← If action of government officer is likely to induce a normally law abiding person to
commit the offense, entrapment exists.
← Does not necessarily eliminate the predisposition requirement
← Focuses more toward government officer’s behavior instead

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