CRIME: FC+PP

y is an act committed or omitted, in violation of a public law either

forbidding or commanding it
y is any social harm defined and made punishable by law
y 2 parts:
o forbidden conduct
o prescribed penalty
o *one without the other is not a crime
COMMON LAW
y reveals origin of crime
y usually the most serious crimes
PRESUMPTIONS - CPR
y Conclusive: Factfinder must find the fact.
o example: jury must find malice
y Permissive: Factfinder may find the fact.
o example: infer a fact from other facts
y Rebuttable: Factfinder must find unless.
o example: switches burden of proof; jury must find the fact exists
unless the other party presents evidence of the contrary
BURDENS OF PROOF
y Burden of persuasion:
o prosecutor (beyond a reasonable doubt.)
o prosecutor must produce elements on every part of a case to
defend
y Burden of going forward: Switches
o depending on who must produce some evidence on all elements
(i.e., a prima facie case)
PRIMA FACIA
y At first sight; On first appearance but subject to further analysis.
y Criminally: A good case for the prosecutor but subject to the defendants
evidence
y EXAM: conclusion of the prosecutors case before you analyze the Ds
case.
o P has a good case of murder, until D raises self-defense.
A FORTIORI
y By even greater force of logic; even more so.; proved one big thing and
automatically proved little things
o If Ds guilty of robbery, a fortiori shes guilty of larceny.
MENTAL STATE SPECTRUM
y RPP Negligence - Gross Negligence Recklessness - Intentional
HOMICIDE:
y the killing of a human being by another human
o not always criminal; cant be charged with homicide
HUMAN:
y Begins:
o Traditional view:
fetus must be born alive
o Trend View: QVC
quickened fetus (mother can feel the baby moving)= msl
viable(fetus could have survived outside of the womb) =
murder
anyfetus can be considered a life = murder
y Ends:
o Traditional: heart stops
o Trend: heart or brain stops
y Accountability (defendants act and victims death)
o Traditional: 1 year, 1 day
o Trend: 3 years, 1 day
MURDER H&M or H-JEM
y homicide + malice
o the killing of a human being by another human being with malice
y homicide JEM
o the killing of a human being by another human being without
justification, excuse or mitigation
MALICE FOR MURDER:
y threatening mindset
y malice distinguishes murder from manslaughter
y types of malice can overlap in one set of facts
y Types of Malice:
o Specific Intent/ Express deliberate act
intent to kill
+ PAD = 1
st
degree murder
- PAD = 2
nd
degree murder
intent to cause SBI = 2
nd
degree murder
someone stabs you and you shoot them in the leg
after because you are out of it, intent to cause SBI
D with no intent to kill shoots at Xs legs and she dies.
o General intent/ Implied no provocation, abandoned heart
reckless disregard = 2
nd
degree murder
Recklessness is indifference to a very high risk of
death to human life (if you knew or should have
known)
Firing a gun at an occupied (non-threatening) vehicle
constitutes recklessness
someone stabs you and you shoot them after because
you are out of it, prosecutor could argue recklessness
for murder (not self defense)
felony murder rule
Res gestae = the thing done; includes times and
places before, during, and after completing the crimes
elements.
during the commission, attempted commission, or
escape of BARRK (Burglary, Arson, Robbery, Rape,
Kidnapping) felony = 1ST DEGREE MURDER.
duringother dangerous felony = 2ND DEGREE murder
conclusively presumes malice
when a robber or co-robber kills someone
when a non-robber kills someone, the courts split
PROGRESSION OF HOMICIDE
y All felonious homicide = murder.
y Manslaughter distinguished from murder.
y Murder-2 distinguished from murder-1 (connected to death penalty)
y Involuntary manslaughter distinguished from voluntary manslaughter
MERGER DOCTRINES
y Felony-Murder Merger
o Where D intended to kill or inflict SBI on the victimthe intention
merges with malice for murder negating the presumption of malice.
o the D can still be found guilty of murder via other types of malice,
just NOT via felony-murders conclusively presumed malice
o if murder happens during BARRK you still have to show PAD and
the killing was intentional or intended to cause SBI which resulted
in the death to be convicted of 1
st
degree
stops the old theory that if a murder was committed during a
felony it was automatically first
y Conspiracy Merger (Whartons Rule) - rare
o where the target offense of the conspiracy inherently requires 2
persons to do it, and the target offense is completed, then the
crime of conspiracy merges with the target offense
o CANNNOT be convicted of BOTH conspiracy and the target offense.
ONLY TARGET OFFENSE.
o Bribery most common crime that requires 2 people
(cantbe convicted of conspiracy to [bribe] and [bribery]
because its a crime that inherently involves 2 people,
conspiracy would be dropped, briery remains)
o An agreement to do a crime is a conspiracy,which is a crime itself.
DEGREES OF MURDER purely statutory
y First Degree Murder:
o felony murder under any BARRK felonies
o deadly weapon doctrine: use of deadly weapon can infer intent to
kill
permissible but not conclusive presumption
o PAD
if any plan or weapon is prepared it is premeditated
there is no amount of time necessary for it to be considered
premeditated
evidence that will help show this: manner, planning,
motivation
o Traditional PAD: fully formed intent
did they really want to kill the person
o Trend PAD: weighing and reflecting
starts a little sooner than with fully formed intent
see if they really thought about it
EXAM: Whether the jury could have heard this evidence and
found evidence of weighing and reflecting? Conclusion is
could any trier of fact found all the elements of this crime.
Appellate test for whether a conviction is valid: can any
rational trier of fact be persuaded BRD?
Going to get a new knife or weapon and reloading a gun
shows there was time to weigh and reflect.
y Second Degree Murder
o everything else
MANSLAUGHTER: H-M
y Old common law - no degrees, considered murder if felonious homicide
o malice murder defendant dies
o no malice not guilty defendant free
o manslaughterbecame a catchall (neither murder nor innocent)
y Manslaughter frames:
o Majority: voluntary v involuntary
o Minority: 1
st
degree - voluntary v 2
nd
degree involuntary
o Statutory: manslaughter, only a rule of provocation homicide
VOLUNTARY MANSLAUGHTER HCB(S)-AP(O)-MSP(S)-BCOP(O)
y homicidecaused by adequate provocation making sufficient passion before
a cooling off period
y could be guilty of voluntary manslaughter if kills in self defense using
excessive force
y more of a defense tool because otherwise its a 1st degree murder
conviction, if theres a provocation this can help your client
y Rule of Provocation Test CASC - SOSO
o homicide caused by - subjective
o adequate provocation- objective
o making sufficient passion- subjective
o before cooling off period-objective
objective analysis - reasonably prudent person
subjective analysis - based on the facts of the case from the
Ds point of view of how they felt
y mitigates murder to voluntary manslaughter
y despite Ds passion causing the death, the provocation must be adequate
o mere words are not enough, however, words that inform the D
about something can be up to the standard of creating provocation
y when you have a series of provocations, each time the cooling off
stopwatch startsimmediately after the provocation could be separate
provocations that build on each other
y husband and wife getting divorced and her filing battery charges is not
adequate provocation (RPP wouldnt do it) to shoot her
y someone stabs you and you shoot them after because you are out of it,
could be voluntary manslaughter due to provocation (not self defense)
y BORCHERS: D shoots her she was saying kill me shoot me you chicken!
She was having an affair and always threatens to kill herself.
o Provocation can be adequate via the last-straw approach and
evolve over time
o Doesnt have to be instantaneous; ex: battered wife syndrome
IMPERFECT SELF DEFENSE TO VOLUNTARY MANSLAUGHTER: UBK+T
y unreasonablebelief you are about to be killed
y homicide triggered by terror can mitigate murders malice to voluntary
manslaughter because it would provoke a RPP
y SETY: D camping and weird drunk guy wakes him up has weapons and
points gun laughing.
o 1st action site: V shot in side (self defense)
o 2nd action site: 2 shots in backchokedcut clothes
o 3rd action site:
Setys view: Cue ran 2nd time more long-range shots in
body + one shot in head (= self-defense?)
Prosecutions view: 2 close-range shots in body + one shot in
head. (= malice?)
Courts view: Prosecution view + Ds provocation and
terror. (= voluntary manslaughter.)
PERFECT SELF DEFENSE TO VOLUNTARY MANSLAUGHTER - RBK
y reasonable belief you are going to be killed
y someones coming after you
EVOLUTION OF FAULT IN INVOLUNTARY MANSLAUGHTER
y ancient common law: strict liability no fault required
y subjective fault required (D knew at fault)
y objective fault (RPP would have known)
y now, either subjective or objective
INVOLUNTARY MANSLAUGHTER UK+MorGN
y unintentional killing where the D has committed a misdemeanor or where
the D has acted grossly negligent
y in the commission of an unlawful act, not amounting to a felony; or in the
commission of a lawful act which might produce death, in an unlawful
manner, or without due caution or circumspection
y homicide must have resulted from the defendants failure to exercise due
caution and circumspection
y playing a dangerous prank on your friend intending to scare him which
results in his death would result in involuntary manslaughter
y Traditional causes of involuntary manslaughter GN,FR-MIS,MMR-IVLLS
o Gross (criminal) Negligence- Whether the D knew or shouldve
known that their was a high degree of risk in what they were doing,
just a little bit shy of being reckless. RPP would associate the act
with a high risk of death or SBI must be a foreseeable risk
To be grossly negligent, D need not be conscious of the high
risk.
leaving your kids at home alone and the house burns down is
not a foreseeable risk
P could argue grossly negligence because she locked
the door from the outside.
D could claim she was going to get milk and trying to
protect kids.
being prone to a disease which makes you unconscious
resulting in the death of another
o Commission of a Malum In Se- an act thats considered evil.
Misdemeanor manslaughter rule.
D with no intent to kill or cause SBI trips X who is
running, they fall and die
o Intentional violation of a life and limb protecting statute.
blowing thru a stop sign
LEGISLATIVE TRENDS FOR INVOLUNTARY-MANSLAUGHTER GN-mn-vh
y Majority: Negligent homicide statutes (like traditional involuntary
manslaughter) require gross negligence
o similar to involuntary manslaughter, but has been legislatively
created as another crime
o Statute does not require consciousness of risk; requires subjective
or objective. Should have known of risk. It doesnt matter that you
didnt personally know as long as you should have known.
o Drunk husband and wife get in a fight, he puts a gun on the bed,
she puts it to her head, he tries to slap it away, she dies. No
evidence who fired gun.
hisnegligence was putting the gun on the bed
y Minority: Negligent-homicide statutes require only ordinary (mere)
negligence.
y Minority: Negligent-homicide statutes are limited to homicide by vehicles.
ASSAULT AND BATTERY
y Assault: ABorIS+SI
o attempted batteryor intentional scaring, with specific intent
y Common Law assault/ Attempted battery:SI+SS+(ACB)
o specific intent to commit battery
o take substantial step towards committing battery
o in some states you must have some actual ability to commit the
battery.
in jail you dont have ability when in bars and reach out.
y Modern (tort based) assault: SI+A+AA
o Specific intent to create apprehension
o an act or substantial threat of force
o actual apprehension of the victim
y Battery UAFA+alGI
o Unlawful application of force on another, requires at least general
intent
o D is validly convicted of Battery a fortiori D can be convicted of
attempted battery when D also had specific intent to commit the
battery
o D is validly convicted of Battery but cannot be convicted of
attempted battery when D committed the battery via gross
negligence
o D with no intent to kill or cause SBI trips X who is running. No one
dies
o D can set in motion something causing unlawful touching.
You push me and I fall into her and youre guilty of battery
on me and her.
The touching can be unconsented to, or consented to but
under false pretenses
AGGRAVATED ASSAULT AND BATTERY SI+MRRMSBIorDWorSS
y D had the specific intent to commit murder, rape, SBI, robbery, or
mayhem.
y D uses a deadly weapon
y Victim had a special status, such as police, firefighter, pregnant woman,
elderly, infant.
COMMON LAW BURGLARY B+E+D+OA+AN+WICFT
y Common Law: common law burglary is more severe and most narrow
o Breaking
doesnt require a smashing
no breaking if D is authorized to enter
can be breaking if authorization is conditional D
could only enter at certain times or on certain days
only requires unauthorized physical force
can be the slightest touch of force, opening a door
includes further raising a window previously raised a fraction
of an inch
o Entering
only requires part of Ds body cross the plane of the
threshold.
provable circumstantially kicking the door in would mean
his foot crossed the threshold
the use of an object is not entry, unless the instrument used
to break, is also the instrument used to commit crime
(constructive entry)
fraud vitiates consent to enter
includes sending in an agent (monkey trained to steal,
another person)
o Dwelling
a place where a person sleeps
includesa shop attached to the dwelling
includes the curtilage, meaning places immediately
proximate to the main dwelling
o of another
cant be convicted of a burglary of your own house
landlords& invited guests can burgle the occupants premises
can include another roommates room of an apartment, but
not the commonly shared areas
o at night
determined (at C.L.) by ability to discern faces by sunlight
modern statutes may say 30 minutes after sunset and 30
minutes before sunrise
Breaking at night includes partially by day and finally by
night.
o withintent to commit a felony therein
intent has to be formed before you go in a building
provable circumstantially -infer intent
can include more than one structure
can be guilty despite not committing the crime
not guilty (at C.L.) if later decides to commit a crime after
entering
breuks ln to steul somethlng und chunges hls mlnd; stlll burglury
y ** FOR TEST: start with common law and analyze why is or is not 6
elements, then when move on to modern burglary dont have to repeat
yourself you can just say see above. Deal first with most complex; it
makes it easier.
MODERN STATUTORY BURGLARY: EorR+UorU+BorOS+WICCT
y enlarges the scope of common-law burglary and so its easier to find
somebody guilty
y all states have statutes for burglary
y Entering or remaining
o crossing the threshold
o staying there if youre not supposed to
y unlawfully or unprivileged
o fraud vitiates consent
o if told to leave and you stay then your unlawful
y building or other structure
o most states require big enough for a human
y with intent to commit a crime therein
o the intent can form after entering (Nordstrom)
o not just a felony; any crime
o infer intent to do a crime
o guy is found inside premises to get out of a lighting storm; no
intent
o breaks in to steal something and changes his mind; still burglary
y Statutory burglary creates degrees by dropping many C.L. elements.
o but includes common-law burglary as one of the most serious
forms, often 1st degree.
o circumstancial evidence; why would he break through the wall if he
didnt want to take anything?
o permissive presumption
COMMON LAW ARSON AB+D+OA+M
y actual burningthe dwelling house of another with malice
o only a small part has to be burned
o the malice may be implied when it doesnt exist in fact
o if without justification, excuse, or mitigation, one sets fire which
obviously creates an unreasonable fire hazard for anothers
dwelling, which is actually burned thereby, the result is common
law arson even if it wasnt intended
someone else had to be dwelling for it to be considered
arson, couldnt be charged with arson if nobody else lived
there and you burned your own house down
MODERN ARSON AB+B+M
y malicious actual burning of any building
y many states have included ones own dwelling
COMMON LAW LARCENY- T+TP+CA+PP+OA+ITS
y trespassing:
o must be without consent
o deceiving an owners agent is trespassing against owner
y taking possession
y carrying away:
o moving the object at all
y personal property:
o cant be real estate
y of another
y with intent to steal (aka felonious intent/ animus ferendi)
o deprive owner for unreasonable amount of time such that it is
unlikely the owner will get it back
y larceny by trick/theft by deception is just a form of larceny
y Going to a store and stuffing things inside of a chest and just paying for
the chest
o security and cashier were agents
o deception of a store is satisfied by fooling a store cashier
o deceptioncan be by not saying anything
o dont have to wait until D outside of store, just have to prove they
passed the cashier
y Victim owes me $2 for work Ive done, so victim hands me $1 bill + $10
bill, thinking shes handing me only $2. I see the mistake but keep the
$11.
COMMON LAW ROBBERY L+ForF
y Larceny + force or fear
y intent to steal does not include intent to take back property you think is
your own
y forcible retaking of ones own property is/isnt robbery
o Majority: not robbery (as per Butler)
o Minority: robbery
COMMON LAW EMBEZZLEMENT C+PP+OA+BOEWP+WITS
y conversion
o treating anothers property as your own
y of personal property
o you cant embezzle real estate
y of another
o it cant be your own property
y by one entrusted with the property
o distinguishing element of embezzlement.
o having care, use, or disposal of the property.
o Keyless person isnt entrusted with contents of a locked box
y withfraudulent intent (intent to steal)
o can be imputed/inferred on D
COMMON LAW FALSE PRETENSES MKFR+CTP+PP+WITD
y Making a knowingly false representation
y causing title to pass
o the person gives you a legitimate right to own the piece of property
o charitable donations used for ones own purposes
y of personal property
y with intent to defraud (intent to steal)
y Minority: promise without intent to perform is sufficient to convict for
false representation
o subjective
y Majority: The false representation must be of a physical (external,
objective) fact. (Thus a false promise is not sufficient)
o objective
y I falsely say Ive done $11 worth of work. Victim knowingly gives me $10
and $1.
I tell small rent-a-car owner Ill bring new business, so hell rent me a car for my
check. I know check is no good, but I use car for a day without paying for it. no
false pretenses, no embezzlement, no larceny

3 evolutionary stages of theft crimes
y 1st = common law larceny, false pretenses, embezzlement
o each are mutually exclusive, so guilt of one precludes guilt of
another
y 2nd = consolidated theft statute
o Allows DA to charge Defendant with a general statute, then
investigate the facts and prove all the elements of one crime.
(Avoids acquittal by being charged with the wrong specific crime).
o Combine separate crimes of Larceny, False Pretenses,
Embezzlement, Receiving Stolen Property, Etc. in one statute.
o Not all states have adopted consolidated theft
o you cant convict on consolidated theft, but easier to convict for a
crime
o P has to prove all the elements of one crime
o test: some states have consolidated theft statutes where if
convicted of embezzlement, a fortiori he cannot be convicted of
false pretenses and larceny
y 3
rd
= modern theft statute
o legislative intent is to enlarge/ broaden the scope of Larceny, False
Pretenses, Embezzlement, R.S.P. Etc. (other theft-type crimes)
someCourts stlll put some llmlts on the broud scope of modern theft
stututes.
o Some modern theft statutes replace trespassory, "taking," &
"carrying away" with obtains unauthorized control over a thing of
value
knocks out common law elements and substituting broader
ones
o Depositing a check that isnt yours and taking the money is false
pretenses because the bank robbery act is a modern theft statute
that covers false pretenses
o Theres no single prototype of a modern theft statute.
o Selling something that isnt yours without touching it
o Confidential information is not a thing of value in modern theft
statutes.
o Modern theft statutes can cover intangibles, e.g., services.
o if cant convict on common law crime, you now can under a modern
theft statute
o McCARTNEYS MODERN THEFT STATUTE
Obtains unauthorized control (dont need an actusreas
anymore)
Over property (personal, tangible property)
Of owner (i.e., another)
With intent to deprive [permanently]
Deprives [permanently].
o If D can be validly convicted of common law larceny, embezzlement
or false pretenses, then, a fortiori, D can be validly convicted under
a consolidated theft statute (in a jurisdiction that has such a
statute).
IMPUTABILITY OF AN ACT
y ****Need actusreas (act) and mensrea (intent) for every crime
y Impute = to ascribe/ attribute
o to put a person/ act in a particular category (such as criminal)
y So, for us = whether a person/act criminally liable
y cant impute intent to do a crime
y impute knowledge or guilt based on inferences (circumstantial evidence)
y cant beconvicted of unlawfully making liquor just because you had the
supplies to do so
o Sometimes as here, its purely a factual issue: wheres the evidence
of what D did?
y wanting or planning to burn a house down cannot impute you with arson
if you didnt act
y you armyourself to kill someone, he tries to axe you, then you shoot him
o imputing criminality to an act depends on the intent that caused it
(at the time of the act did you want to kill him or were you
protecting yourself)
y prior intent (to carry a gun with intent to kill) cant conclusively presume
a later intent to shoot with intent to kill
o HYPOS
D and X are armed and intend to kill each other. Neither
knows of the others intent. They meet and both
simultaneously shoot at each other. X is killed.
murder, malice and premeditated intent to kill
If D shot at me first, if you are still shooting not to protect
but just to kill.
still malice and intent
D changes his mind before they meet. X shoots at D who
kills X to save his own life.
no murder, just like Ryder case self defense
y a criminal act which can be imputed to a defendant generally requires
affirmative action by the defendant
y Driving doesnt mean sitting behind the wheel in a moving car
y jurisdictions variously define DWI v DUI; driving control operating
y statutorily conclusive presumptions re Intoxication and under the
influence (from defendants blood alcohol)
y getting hit by a car that puts you in the middle of an intersection is not a
positive affirmative action to which you can be imputed of the crime
y knowledge of a condition to make you unconscious, intent can be imputed
(seizure)
o If this had been his first blackout he wouldnt have had notice so he
would be excused
y criminal act requires defendants consciousness
y sometimes defendants prior act (getting in the car to drive) is the
imputed conscious act
o HYPO:
If park car on hill and dont turn wheels or brake. While
walking away car starts moving and a lady with baby get hit.
Guilty?
Didnt put brake on, didnt crimp wheels, failure to do
that when a RPP would have done = grossly neg
action that caused homicide = invol manslaughter.
If fell asleep and kill another driver, are you guilty?
Yes, b/c you knew it was 2am and decided to drive,
had notice b/c a RPP needs sleep
Gross neg + homicide = invol manslaughter
y criminality for possession can only be imputed for knowing
possession;example: somebody slips something in your pocket and you
get busted is not knowing
y Knowing possession can be shown by power and intent to control
o control defined by you could control if you wanted to
y Possession is not imputed by defendants mere presence.
y under statutory law, imputed intent of the power to control happens if you
have a certain amount of drugs (dependent upon state)
ATTEMPT CRIMES: ICTO+OA (TRvSS)
y Attempt
o intent to commit the target offense
o doing some overt act toward it
too remote v substantial stept
y *for every completed crime, the person has completed an attempted
crime.... he can be convicted of murder and attempted murder but the
two would merge for sentencing
y think of it as a timeline everything leading up to the crime, at some
point the attempt of the crime happens (think, buy a ski mask, get
someone to help, attempt to commit a crime, right before the crime you
have committed at least the attempt, once the crime is committed you
can be convicted of crime and attempted crime)
y Policy reasons; to deter bad acts and reform, even though didnt commit
crime
y Attempt conviction is valid when the TO is completed or not completed
y as long as its a specific intent crime and you cant convict on the actual
crime, there was still attempt before the act
y Target Offense - what crime are they attempting to do
y if cant convict on actual crime, try attempt
y 7 PROBES ways to look at the evidence and if you use these you wont
miss an issue. THESE ARE NOT ELEMENTS/FACTORS!Courts weigh the
probes differently in different contexts.
o did Defendant intend to commit the target offense?
o Was what Defendant did wrongful in itself?
o Was it possible to commit the crime by any means?
o Was it possible to commit the crime by Defendants means?
o Was Defendants act preparatory or perpetrating?
o Was Defendants act too remote to be considered?
o Was the Target Offense sufficiently wrongful?
y MOFFETT: Moffett and accomplice tied up victim and threatened her with
a knife into writing a suicide note which would be followed by taking pills
that would make her sleep for 48 hours and to drink alcohol eventually
leading to her death. The victim wrote 1 line and escaped and police
found the evidence of the victims story in her apartment.
o Attempt can be imputed (as here) by focusing on only 2 probes
1 and 5
y RIZZO: Defendant and 2 accomplices planned to rob Rao of his payroll
($1200) that he was to carry from the bank. 2 of the 4 had firearms and
drove by the bank looking for the hold up victim that the D was to
identify. 2 police officers watching arrested the men left in the car after D
jumped out of the car. D was later arrested.
o Theres no attempt when the TO is too remote
1, 2, 3 (yes could have robbed the guy but not at that time
b/c Rao hadnt even taken money out and not at that place.
4 could argue no5 preparatory but not perp b/c couldnt
find him. 6 too remote? YES;ct says that is the issue here.
o HYPO: 2 guys to rob a clerk, wait outside where think he comes out
and before clerk comes theyre arrested.
Use Rizzo approach? Too remote? Clerk was a few seconds
away, so close enough where no remote issues. In terms of
time and distance, it is not too remote in the hypo. A few
seconds and feet away instead of how long in Rizzo case.
Guys could be convicted of conspiracy
y YOUNG: Officers had observed the Defendant and had reason to believe
he was casing several banks. Defendant walked up to a bank in disguise;
had a clip scanner on his belt, parked in rear of bank for some time, wore
glasses, tipped his hat, wore a long jacket and an eye-patch. He tried to
enter the bank, which was closed, and ran back to his car, drove off while
removing the said items.
o Some states combine probes 5 and 6 via substantial step test (NY)
o Substantial step test assumes theres sufficient evidence of intent
and requires D take a substantial step towards TO
guilty when overt act amounts to substantial step
y Substantial Step (Rizzo) v Too Remote (Young)
o split of authority
substantial-step test looks back to the time and place from
which D began; looks backwards from arrest
satisfied sooner in time and shorter in distance; thus it
enlarges the scope of attempt and is preferred by
prosecutors
too-remote test looks forward to the time and place of Ds
intended target offense; looks forward from arrest
satisfied later in time and longer in distance; thus it
narrows the scope of attempt and is preferred by
defendants
LEGAL V FACTUAL IMPOSSIBILITY:
y legislative trend is to abolish impossibility, not a defense in some states
y Legal Impossibility = defense to attempt
o T.O. is impossible to commit by any means or Ds fully carried out
plan is not a T.O.
legally impossible to commit the crime being convicted of
o Objective lawyers/ judges for purpose of criminal law (lean)
Condemns dangerous acts.
focuses more on actusreas (no harm no foul)
inclined to find less people guilty
y Factual Impossibility = no defense to attempt
o T.O. is impossible by Ds means or a fact unknown to D prevents
carrying out Ds plan
o Subjective lawyers/ judges for purpose of criminal law (lean)
Condemns dangerous minds
focuses more on mensrea (people are dangerous)
inclined to find more people guilty
Judicial trend is toward subjective school.
y MITCHELL: armed himself, went to the bedroom window of the victim
where D believed the victim was sleeping, and attempted to assassinate
and murder him. The victim was mistakenly not there.
o 1, 2, 3 is yes but person wasnt there so since D didnt fully carry
out his plan then you see not legal impossibility. 4 wont work,
but look at alternative phrase fact known not by D? Yes.
o Attempted Murder:
Intent to murder/ kill
Armed (with gun, knife, etc.)
At place where confidently expect victim to be
o Factual impossibility demonstrated
key probe is that D thought V would be there
o General attempt perimeters are broader than attempted battery
(assault)
First kind of crime recognized as attempt is assault
(attempted battery)
o Perimeters of attempt murder are very broad because serious
o HYPO
If v is out of town, is D still guilty of attempted murder?
Yes, b/c probe 7 dominates the analysis.
y ROJAS: Hall stole something and arranged to sell it to Rojas, Rojas
convicted of receiving stolen property which was then lessened to
attempting to receive stolen property
o Trend side of a split regarding attempted RSP of once-stolen
property
o Trend: factual impossibility exists when the defendant is blocked
from the target offense by a fact unknown to him (D is guilty of
attempted RSP if D doesnt know the received property was
recovered)
extends even to attempt RSP for non-stolen property
y HYPO: no original larceny but D thinks hes receiving stolen property
o traditional: no, legal impossibility
o trend: yes, factual impossibility
y BOOTH: thief stole a coat and was going to sell it to Booth for a low price
but it was intercepted by cops in the mean time
o Traditional: a legal impossibility exists when D does everything
intended but its not a crime (if D receives property that is no
longer stolen, D is not guilty of attempted RSP)
o Traditional side of a split regarding once-stolen property
ABANDONMENT
y D voluntarily changes his mind and his overt actions towards the target
offense before any substantial harm is done
o D stops the attempt voluntarily, prior to substantial harm
y only a defense to attempt crimes
y STEWART: held up Luedtke at a store but stopped in the process because
cops showed up; Stewart claims abandonment
o Traditional: D cant negate a completed crime, not even a
completed attempt crime
o Trend: abandonment doctrine negates attempt crimes
o (neither abandonment present in Stewart)
o HYPO:
D, intending to torch Xs dwelling, goes there, sets candle
with tinder under Xs wooden porch, and bends down to light
the candle. D is arrested before he lights the candle.
crossed the line from preparation to perpetration;
some courts may find guilty of attempted arson before
lighting it
Same as above except D lights the candle, watches it for a
moment, then extinguishes it and removes the tinder.
look to 7 probes.... 2 elements to abandonment
voluntary through change of heart (I think its a bad
idea to do this, not because the cops show up,
reversal of mensrea) and before any substantial harm
is incurred
y BLECHMAN: solicited someone to burn down a dwelling house
o solicitation is seriously (mensrea) urging/ asking (actusreas)
another to commit a crime
o to be guilty, D must solicit what would be a crime for the solicitee
o ifsolicitee agrees to commit a T.O. and its completed, the solicitor
can also be validly guilty of the T.O. via rules of aiding-and-
abetting
solicitor would be considered an accessory before the fact if
the crime had been committed
o abandonment is a defense to solicitation as a legislative trend
o solicitation and the act are 2 separate crimes
solicitation is a crime itself; attempt to commit a crime
consists of an overt act to commit the crime with more than
intent or preparation
o can be convicted of solicitation and conspiracy but cant be
SENTENCED for both
o HYPO:
D lies to X: my tvs at Genells and she asked me to pick it
up. Will you get it for me? X innocently picks up and delivers
the t.v. to D.
actusrea without mensreas, not guilty of anything;
D urges X to pick Vs pocket, although D (but not X) knows
Vs pocket is empty. X puts hand in Vs empty pocket.
D could be convicted of larceny because he sent in an
agent
NEGATIVE ACTS:
y When a non-act becomes an negative act
o legal duty, knowledge of facts giving rise to duty, ability to perform
the duty, failure to act ->actusreas
o ASK: What is the duty and to whom?
y %,''/( detectlves found u deud three-month-old buby ln un extreme stute of
mulnutrltlon, found blood spots from u dluper rush. The medlcul exumlner reveuled thut
the buby hud not been fed for severul duys und wus dehydruted. Mother churged
o Law will impute an actusreas when you have a duty to act and
negative act.
o reckless = 2nd degree murder.
o parents have a legal duty; no legal duty for grandparents
moral duty isnt enough
y Infant safe haven statutes:
o To encourage distraught moms from dumping kids; if leave w/ gov
agency, then they would be shielded from prosecution for parental
neglect. Rationale to prevent moms from killing babies.
o back in the day, no child neglect if the kid was supported by
somebody else the parents were let off; doesnt work like that
anymore
y TEXEIRA: mother got pregnant and informed Texiera of her pregnancy;
mother let Texeira know when she had the baby; mother applied for
welfare, and 1 yr after the birth a complaint was issued against Texeira
for nonsupport of an illegitimate child
o Typical child neglect statute:
Parent
Knew or should have known
Knowledge of duty
Neglects or willfully refuses
To contribute reasonably
ability to meet duty
o (Here, D didnt have ability)
o ActusReas = Duty to Act + Negative Act + Knowledge + Ability
y JONES: Green was the mother of Robert and Anthony. Green arranged to
have Jones take both children for monthly monetary compensation. Jones
charged with abusing and maltreating both kids and involuntary
manslaughter of Anthony (nonparent charged and convicted)
o No duty results in no imputed negative act
o Trend is towards recognizing more situations triggering duties to
act
o Duty can change when the circumstances change (ship hypo)
o a negative act for a legal duty of care imputes criminal liability
o 7 sources of duty to act constituting a negative act:
Statute
Status relationship
Mother/father; spouses; parents/kids
Contract (K)
Voluntary assumption (+detrimental reliance)
Ok I will do it, and other person will rely on that
promise
Creation of peril
Control of dangerous beings
dog that bites
Landowner
Make sure your land is reasonably safe
ASK: what is the duty and to whom?
o HYPOS:
Working on job site and its lunchtime and hitch a ride on
bulldozer see baby in field and it runs over kid.
has to be a legal duty, not a moral duty
If walking in seaport village and Dean Smith is having a
party. He wanders off and falls off dock and you see him
drowning in water and he drowns b/c you dont save him.
no legal duty, moral duty
What if when you see him in the water, you yell Die Dean!
although it seems there is malice, still no legal duty
Captain that realizes problem with ship and tells owner about
problems and owner refuses and ship bad and passengers
drown.
still took the ship out, even though initial duty fulfilled
by going to the owner. If owner says no, now duty is
not to take ship out.
guard at RR crossing how different that hypo 1? Duty for
RR guard was # 3 this is his job, he has a contractual
dutymaybe even a statutory obligation also.
y DAVIS: failed to provide Carter with heat, food, liquids, or other
necessities and Carter died. Daviss home was freezing cold, had no
heating or food. Davis informed people she was responsible for total care
of Carter, who was senile and totally disabled. Davis received Carters
social security benefits and food stamps as a representative payee.
o Court can imply a Kl duty from circumstances
o Duties can overlap
o Child has no CL duty to support a parent
o Whether duty is fulfilled depends on RPP in similar circumstances
o negative act of a legal duty imputes criminal negligence
o imply contractual duty, voluntary assumption of care with reliance
b/c takes over welfare, etc
o No legal duty for child to take care of parent
o HYPO: Statute requires kids to reimburse state for money spent on
taking care of parents. Kid doesnt pay and is charged with parent-
neglect
Duty to pay the state, not take care of parents
o Guy takes 2 kids to beach and kids drown b/c stranger takes them.
Charged for death of stranger?
No b/c no duty to a stranger.
o Does father have legal duty to save the kids?
Must act reasonably in that situation (RPP)
Could argue he was negligent if he was a paraplegic
y VAN BUSKIRK: argument with her boyfriend, ordered him to get out of
the car and then struck him with her car, leaving Rose in the roadway.
Rose was then struck by another vehicle. She is prosecuted for second
injury (INVMSL)
o The duty to assist a victim can be imputed from creating the peril
o Dont let a dramatic positive act obscure a crucial negative act
o Good Samaritan Statutes: cant be sued for mere negligence
shield against mere negligence. Only get sued if grossly negligent.
You dont have to render aid, but if you do, protected from suit
unless Grossly Negligent.
CONSPIRACY
y Classic Conspiracy: once D is inside the conspiracy D is imputable with
all of the T.O.s
y HANKS: Defendants called Dubois who was the correction officer, beat
him up and took his keys and alarm. Hanks went to look out for other
correction officers who eventually reported to the scene when Dubois was
not responding. The other officers found Dubois beaten in a cell and they
found the screen to the dayroom bent up on a window that lead to an
outside yard and 2 fire extinguishers kept in the bubble where the officers
monitored the inmates. (Roque swung at officer)
o Common law conspiracy:
agreement between 2 or more people
to accomplish an unlawful act
or a lawful act by unlawful means
with intent to commit an act which is a crime
o statutory/ modern approach
agreement between 2 or more people
to accomplish an unlawful act
or a lawful act by unlawful means
with intent to commit an act which is a crime
requires an overt act in furtherance of the crime
only 1 conspirator needs to perform the overt act to prove
the conspiracy but each conspirators furthering act is
evidence that he was in the conspiracy. (overt act of one
doesnt need to be criminal - target offense must be intended
by the D to be convicted of the crime)
overt act included to prevent wrongful convictions
any furthering act is enough. Once you have overt act, now
all it takes to get each conspirator in is for conspirator to do
a furthering act.
conspiracy can be imputed by Ds single furthering act
modern law has a smaller scope than common lawstricter
than Common Law if guilty of modern conspiracy, a
fortiori, can be guilty of common law conspiracy
y All conspiracys elements can be established circumstantially
y Ds neednt intend to commit what they think is a crime, only intend to do
conduct that is criminal.
y Criminal conduct can either be intended goal of conspiracy. Or it can be
the intended means to an end
y RATIONALE for conspiracy: to intervene and cut off conspiracy before
reaches goal of TO and combat the special threat that group activity
presents.
UNILATERAL CONSPIRACY
y Traditional: cant conspire w/ undercover cop b/c they dont have required
mensrea. However, if cop is just one out of 3 people, then there is
enough to be convicted for conspiracy and cop is 3rd person.
y Modern: Allow for unilateral conspiracy; by stat authority it is deemed
possible to have a 2-person conspiracy even if other person is undercover
cop.
y Cant withdraw from a conspiracy (conspiracy is the agreement itself) but
you can withdraw from guilt of the T.O.s
o CL: you had to nullify what you had done before and communicate
your withdrawal to everyone else in time for them to change their
mind; affirmative act reasonably communicated to all conspirators
o Modern statutes: timely notice to authorities so authorities can stop
the crime; if crime is committed you can be convicted of the TO
y Impossibilty is not a defense to conspiracy because conspiracy is a crime
itself : special danger from group activity that is involved regardless of
whether objective is impossible.
o (Impossibility is not an argument for an ATTEMPT crime)
y PAYAN: arrested for exporting stolen tractors to Mexico after Mark Ancira
was arrested and possessed fraudulent invoices for 2 stolen tractors made
out to Payan as purchaser (the target offense didnt require 2 people)
o Rationales for having conspiracy/ societal threats: (469)
More than one person together, more likely to get to your
goal
Decreases chances of abandoning
Increases size of the crime (robbing a Bank v. 711)
Increases potential of committing other crimes
y Whartons Rule:
o negates conviction for conspiracy AND the TO where the TO
requires the same Ds (for a crime that inherently involves two
people)
adultery, dueling, bribery, incest, bigamy
o 3rd party exception allows conviction for conspiracy
o bows to legislative intent
o legislature can change Whartons rules rebuttable presumption
y Aiding and Abetting requires 2 people, but it is not a crime, just a link to
the target offense or a link to the conspiracy itself
y GEBARDI: man and woman were engaging in illicit sexual relations and
she had to travel by train to do so. The woman consented voluntarily for
the specified immoral purpose. Prosecutor is trying to get her for being a
conspirator.
o MANN Act: Legislation that says any person that transports a
woman or girl can be nailed by violation of MANN act and not
woman or girl.
ability to prosecute man b/c can call woman to stand and tell
what happened b/c cannot be prosecuted
o Legislative intent sometimes provides immunity from conspiracy
o Intent of MANN act is to immunize a passive woman from the TO
and conspiracy
A woman can be convicted of conspiracy if she is more than
just passive. If more active, then can be convicted.
o aD cant conspire with himself
y LOSCALZO: Ds made fraudulent representations made in connection with
obtaining a contract with the postal service. Ds were convicted of
conspiracy to defraud the US and several counts of mail fraud.
o Aiding and abetting is not a crime; she was late to the party but
still involved if she aids and abets she can be found guilty of
conspiracy.
o Aiding and abetting can link the D to T.O. AND the conspiracy itself
o A conspirator can be either an original member or an aider and
abettor of the conspiracy
o Guilt for conspiracy via aiding and abetting requires D knowingly
acted to make the venture succeed. (deminimusmensrea)
LINKS TO TARGET OFFENSES
y PINKERTON: Brothers in trouble and Daniel argues only his brother
committed substantive crime. Claiming how can he be convicted of
conspiracy b/c Walter did it and he was in prison.
o Pinkerton Rules Goal: convict everyone in conspiracy of all
possible crimes even if they didnt want to or never would have
committed the crime so long as the crimes were in furtherance of
or foreseeable from the target offense
o crimesof any conspirator can be imputed to all conspirators when
they are in furtherance of or Reasonably foreseen within the
conspiracy scope
Above holds regardless of Ds presence, participation or
knowledge of the TOs
dont have to know the exact details of the crime
Pursuant to - In execution of - - Natural consequence of
o a conspirator is imputable with the TO and can be convicted of a TO
in which he did not directly participate
o the act of one partner is going to bind the partnership
o Conspirators are guilty of conspiracy + all crimes in scope of the
conspiracy
o 3 step analysis: is there a conspiracy? Is D a conspirator? Is the
crime within the conspiracy scope?
y HYPO: D and A agree to rob X. X puts up unexpected resistance, so A kills
him.
o can be validly imputed also b/c it was reasonably foreseeable
y D and A agree to burgle Xs home. While in the home A sees Y (his secret
enemy), passing outside where Y cant see or interfere with the burglary.
A kills Y.
o Outside the scope
y MARQUIZ: 3 guys were present in the killing of a girl who stole some
things from Marquizs apartment, 3 separate trials for each defendant,
Marquiz was found guilty of conspiracy (also 1st degree murder) and the
other 2 were not
o Traditional: Consistency rule requires at least 2 guilty conspirators
if tried in 1 trial
o Trend: Exception to the conspiracy rule,(if different trials) allows
one guilty conspirator if theres evidence of another conspirator
and
The other is acquitted in a separate trial, or
The other has charges dismissed; or
The others conviction is reversed
o HYPO: A and B charged with conspiracy but the prosecutor
dismisses As charge.
a Defendant is imputable with conspiracy when the other
alleged conspirators were found not guilty in separate trials
o A and B are convicted of conspiracy in the same trial but As
conviction is reversed on appeal.
y HUGGINS: An indictment charged the warden of a prisoner and his deputy
with the murder of the prisoner; warden was unaware of what the deputy
was doing to the prisoner
o Agency: Respondeat superior doesnt apply to crimes involving a
mensrea and actusreas, only SLOFs. When a principle is imputed
with the crime of an agent.
Common Lawresondeat superior does NOT impute crimes
Respondeat Superior (superior shall respond): hold an
employer/principal liable for the wrongful acts of an
employee/agent committed within the scope of the
employment/agency
An agents mensrea can NOT be imputed to the
principal
o A principal and the agent are guilty if the agent commits a crime
under the principals orders
o A principal is guilty if he knew or should have know of the agents
acts
o HYPOS:
o Suppose warden had ordered deputy to put guy in cell knowing he
would die, warden guilty?
warden, guilty
deputy, still guilty but it depends on the mental state of the
deputy. Guilty through negative act.
o What if warden doesnt want guy to die and only knows cell is over
sewer. Still imputed with the crime?
Negative Act was there a duty to act? Prosecutor could
argue warden had a duty not to put guy in place where in
peril. Then put the wardens failure to do duty on scale if
failed with neg or recklessness? If grossly neg then guilty of
IMS, if recklessness = 2nd deg murder
o What if warden doesnt know of the sewer cell but should have
known, how analyze?
Negligence? GN? Or Recklessness? Was it so clear that it
was known he would die?
Argue either way
y FUR TRAPPER: D is a corporation selling fur coats on an installment plan
under the name of Fields. Mrs. Stanley purchased a coat on the plan, but
upon completion of payment she was offered a coat that was not the one
she had selected (diff make and size), who was Mrs. Owens coat in which
they tried to resell it. 4 brothers scamming.
o Common law:
cant convict a corporation of a true crime but you could
convict of SLOFs
Early CL: no corporate crime b/c cant hang nothing; no
mensrea;
o Modern Law:
corporationcan be convicted of a crime if you find mensrea in
minds of the officers
condone it, aware of it, should have known about it
o A corporations guilt of CL crime requires the mensrea of its leaders
o a corporation can be imputed with the crime of its agents
o have to show evidence acting on behalf of company, get the
mensrea in the mind of the officers, not necessarily the very top
o nationwide corporation and divided in regions and you had a
regional manager, enough if you just have that regional manager
PARTIES IMPUTABLE TO A CRIME VIA ACCOMPLICE LIABITY
y Solicitors - liable for solicitees action
o solicitors can lead to conspiracy if the solicitee agrees to the
solicitors joint criminal plan
y Conspirators
o conspiracy can lead to guilt of all offenses (including attempt
crimes) in furtherance of or reasonably foreseeable from the
conspiracys target
y Aider and abettors - helps the crime succeed
o aiding and abetting can lead to guilt for conspiracy as well as for
target offense
y Agents - warden/ deputy
y Corporations
y Accessories before the fact/ principals
o In almost all jurisdictions today persons who were accessories or
principals at CL (except accessories after the fact) are now
classified as principals.
y BEEMAN: was part of the planning of the crime with Gray and Burk, but
two days before told Gray that he didnt want to participate in the
robbery; was not present during the crimes; Gray and Burk plead guilty
to robbery; was convicted based on aiding and abetting his
acquaintances Gray and Burk. D had described the cars.
o Dont need a conspiracy for aiding and abetting
o Aiding and abetting is a LINK to the TO and not a crime
o Guilt by aiding and abetting imputes Ds guilt as a principal
o Split over elements of guilt by aiding and abetting
Traditional: requires aiding-and-abetting have only
knowledge of others intent to commit T.O. more serious
crimes
Trend: requires knowledge and intend to commit T.O. less
serious crimes
o HYPOS: (only intent is to make normal profit)
Sell gas to someone who will give it to a wartime enemy
Treason
Selling gun to intended murderer?
Maybe murder. (cts found guilty for mere knowledge)
Selling ingredients to bootlegger?
No.
Sell dynamite dress to hooker?
No. Trend rule used here (cts found not guilty for
intent)
y TRUESDELL: son shot ex husband and mom charged with accessory after
the fact.
o Modern statutes make accessory after the fact a separate crime
Obstruction of justice - Harboring a fugitive - Aiding escape
o Many states have exempted certain people from being guilty of this
crime; close relatives (mom, dad, sister, child)
o accessory after the fact is separate offense and does not require
principle be convicted legally, just sufficient evidence to prove he
committed the crime factually
accessory after fact is imputable when principle not
convictable
o 4 elements for accessory after the fact
Completed felony
Knowledge that person you assist completed the felony
Conceal or aid the felon
withSpecific intent to hinder apprehension
o HYPO:
o With intent to kill, A shoots and wounds B. C knows all this and
helps A avoid arrest. Then B dies.
At time hid him, just thinking Dean has been shot. That
determines what you are accessory to here, attempted
murder.
What they KNOW at the time
RESPONSIBILITY
y Largely focus on the mensrea of the D
y Mens Rea categories:
o General Intent
Focuses on act
ask if D had knowledge of act or was criminally negligent
(gross negligent or Reckless disregard) about, doing the act
TEST: A reasonably prudent person
everytraditional crime requires at leastgeneral intent to do
the act
o Specific Intent
Focuses on the result
Did D desire or was he substantially certainty of the result
TEST: subjective, look at particular D
some crimes also require specific intent to accomplish a
result (in addition to general mensrea)
y **Look at all elements and pick out mensrea which element and
determine of specific intent or general intent crime
MENS REA PRINCIPLES
y Always need general intent to do the act.
y GIAN CURSO:Drs were doctors of deceased, whose tuberculosis became
active. Drs treated deceased through natural remedies only. Deceaseds
health worsened, was hospitalized, and died. Hospital Drs testified that
had the deceased been treated by approved medical methods and given
drugs available, his disease could have been controlled convicted of
involuntary manslaughter. Holding themselves out as not just
chiropractors but chiropractors who could cure cancer. This is not acting
with the approved medical methods accepted.
o 3 ways a reasonably prudent physician can be grossly negligent
Grossly ignorant of accepted and established remedies and
methods
Grossly incompetent in actions
Grossly negligent in giving patient instructions
o Negligence for a D who holds himself out as an expert is
determined by that RP expert
o Gross negligence makes D responsible for general intent crimes
despite desiring a beneficial result
I.e., having no specific intent
o A person cannot generally consent to death or SBI
y DOBBS: broke into and entered the house of Bailey and cut off Baileys
horses leg and the horse died. Horse was worth 40 guneas. D tried for
killing of horse. But we are looking at the burglary.
o Required intent for burglary is specific intent to commit a felony.
o D intended to incapacitate horse from running. That is crime of
malicious mischief, which at common law was only a misdemeanor.
Intent was misd.
o Here, that intent to commit a felony did not exist, thus D gets off
for burglary charge.
o Here, D had a specific intent to commit a misdemeanor.
o Ds intent to do one crime doesnt automatically make D
responsible for another crime
o Where specific intent is required, another mensrea isnt sufficient
o Burglarys specific intent to commit a felony isnt satisfied by Ds
intent to commit a misdemeanor.
y THACKER: D and 2 men where drunk. The victim had a light on and the
D, intending only to shoot the light out, nearly hit the victim. Convicted
of attempted murder.
o Attempt crimes need specific intent, and here D didnt specifically
intend to kill them (failed the element for an attempt crime).
o A general intent cant satisfy the need for specific intent
o D can have sufficient mensrea for a completed crime, yet
insufficient mensrea for an attempt crime
o Conditional intent can negate the mensrea by its own terms
D slaps heavy object aginst his own palm within striking
distance of V and says, If court werent in session Id knowck
your head off
o A conditional intent can not negate the mensrea where Dhas no
right to impose the condition
a union organizer does the same thing saying if you dont
stop work, Ill knock your head off
o A prosecutor cant use a conclusive or rebuttable presumption of
law to prove a crimes element- only a permissive presumption
MALICE IN CRIMINAL HOMICIDE
y Specific intent- have a desire for a certain result
o Intent to kill
o Intent to do SBI
y General intent be aware or should have been aware of act you are
doing.
o Recklessness
o Felony-murder
y malicein other crimes
o Mayhem (Terrell case)
o Arson
o Malicious Mischief
o Equinicide (Dobbs Case)
y Conceptually, Malice = A ________ -endangering state of mind without
JEM
o ***Fill in the blank with who it endangers person, property, etc.
y Generically has 3 different types of malice:
o Specific Intent:
Intent to destroy murder, intent to kill
Intent to injure - SBI
o General Intent
Recklessness
y TERELL: D convicted of Mayhem; struck Wilson (prosecutor) in the eye
with a half a brick, which puts his eye out. This rendered him totally blind
since he only had one eye when D struck him. D claims mistake in his
conviction is didnt specifically intend to blind the guy.
o Malice does not require specific intent but includes it.
o The mensrea for CL mayhem is malice: A body-endangering state
of mind
o Split over mensrea in Modern mayhem:
some still require common Laws malice: maliciously crippling
mans ability to fight
Others require specific intent to maim or disfigure
Modern statutes say either this or to disfigure someone;
added disfigurement to mayhem.
o Malice in arson is a dwelling-endangering state of mind
o malice in malicious mischief is a property-endangering state of
mind
o HYPOS
Has a grudge and sets fire to DSs house.
Crime = arson.
If torch your own house and sparks hit DSs house, guilty?
Recklessness; so you can be convicted (via general
intent b/c of recklessness)
Cant be convicted by CL of burning your own house.
DS prizes his front lawn and hates ppl walking on it,
Campbell waits in bushes and walks on lawn flipping him off.
Malicious mischief/trespass
Same as above except Campbell walks across leaving
footprints
C didnt have anger, but still reckless
Malicious mischief/trespass
y BEALE:D was told by police that some of the goods in her store were
possible stolen and she was told not to sell goods. Her husband was
aware and sold goods anyway.
o Split of authority for knowingly (for R(Possessing)SP type
crimes):
Majority: Ds subjective intent
can be proved circumstancially, including what a RPP
would have known
Minority:RPP objective knowledge (easier for prosecutor)
o Statutory Trend: knowledge for RSP is subjective, but only
knowledge that the property was probably stolen
y JEWELL: D brought 110 pounds of marijuana into US by driving his car
across the border: car had a concealed secret compartment for drugs.
Guy knew of compartment, but didnt investigate further.
o Knowledge includes willful blindness which is consciously avoiding a
highly probable fact
o Knowledge can be
Belief in a fact that is a fact (H 1)
Belief based on ones owns senses (H 2)
Belief based on willful blindness (H 3)
Belief based on reasonable grounds even if erroneous (H 4)
Split of authority re an erroneous belief based on
grossly negligent grounds (H 5)
y Some = knowledge b/c grossly negligent (using
objective test)
y Others = no knowledge b/c it is still honest
(using a subjective test)
y HYPOS:
o D sells X a metallic brick for 1000 assuring its gold. It is really not
gold (only gold plated) and worth 20$.
o D believes its mostly lead because he was told so.
False Pretenses b/c you gave title
Mens Rea for false pretenses? Intent to steal and knowingly
telling her a falsehood.
o D believes its mostly lead because he gold-plated the lead himself.
same result as above
o D is presented with a gold brick award but silences the gag giver
and has no belief either way.
willful blindness
o D believes its gold after scientist test
not enough for conviction, subjective and he did something
here
o What if found it in dumpster behind party store with fake beads and
fake jewelry.
Uncertain. Courts are split. Some courts like the fact that
you really believe it. Others say that is a joke.
o Same facts except in dumpster it really was a gold brick but you
stupidly think its gold plated and try to sell it.
No false pretenses, b/c nothing false; just stupid guy. No
false representation here. No actusreas.
WILLFULNESS
Created by statute so meaning is determined by legislature
y Once you get that meaning, put it into one of 2 boxes general or
specific intent (divide your mensrea b/c that will determine if a certain
defense will work).
y BRYAN: purchased guns in Ohio making false statements that he would
file the guns serial numbers, but instead sold them on Brooklyn streets for
drug dealing. Evidence was adequate to prove D was dealing in firearms
and knew his conduct was unlawful. But, there was no evidence that he
was aware of the federal law prohibits dealing of firearms.
o To prove wanted willfully = pros has heavy burden to show D knew
about licensing statute.
o In this statute, willfully requires general intent i.e., that D knew his
acts were generally unlawful.
o Meaning of willfully varies with legislative intent
Willfully framed as general intent means D acting with
knowledge Ds conduct was generally unlawful
Willfully framed as specific intent means Ds acting with
knowledge Ds conduct was specifically unlawful
o Knowingly means Ds acting with knowledge of the facts constituting
an offense
o To prove willfully, D knew what was going on, AND doing
something against the law generally.
y **Make sure you can find all 5 arguments D makes in favor of specific
intent interpretation and 5 responses court makes in blowing away
arguments.
SLOFs (strict liability offenses)
y Do not require mensrea
y Typical SLOFS:
o Statutes and regs that deal with food, drugs, appliances, what we
drive, live in and sleep in
y Historically, SLOFS are mala prohibita evils that are prohibited.
Meaning something is simply deemed against the law b/c leg has said it is
o in contrast to malum in se crimes, deemed to evil in itself.
y 5 of the main ways SLOFS are different from traditional crimes
o Guilty without mensrea (leg can insert mensrea, court might
construe a mensrea in what might look like a SLOF)
o Guilty by a preponderance of evidence (51%)
As opposed to reasonable doubt (Like a civil std)
o Guilty by vicarious liability
Respondeat superior fits in SLOFS
o An agreement to commit a SLOF is NOT a conspiracy if
Ds did not know of the SLOF; AND
Ds act was otherwise faultless - (Not something antisocial;)
o Homicide by SLOF may be LESS than involuntary manslaughter
y (battery) In traditional crimes, when you kill someone you are guilty of
some form of crim homicide.
y ON EXAM: dont get carried away on SLOF; dont forget there could be an
overlapping with a traditional crime (ex if speeding 85 miles per hour and
run someone over- gross neg, inv man)
y Not mutually exclusive, they can overlap with traditional crimes
o Traditional crimes = means rea required
o SLOFs = no mensrea required
y OLSHEFSKI: D was in violation of the vehicle code by 265 pounds and
was cited on his was to having the having his vehicle weighed by state
police checking the weight on trucks.
o Trend: to defend against a SLOF, D can prove a faultless state of
mind
not to change anything about what pros have to prove, but if
D wants to, the D can offer proof that the D b/c of Ds mind,
was not the type of person leg intended to nail with its SLOF,
i.e., he was not the bad guy they had in mind (pros could
argue that the purpose is to save bridges from collapsing)
So, now a days D can make a good argument; D says the leg
wanted to get ppl that drove overweight trucks; and I am
not that kind of guy. Pros could argue leg intent not to go
after ppl, but heavy trucks!
o D has burden of proof
o Burden is what he was doing was socially acceptable. Ask judge to
interpret statute and see that D not person leg intended to get with
that statute.
o Procedural steps under federal habeas corpus:
D tried and convicted in state trial court
remedies exhausted in state appellate courts
habeas filed in federal trial court
habeas granted/ denied in federal trial court
habeas appealed to federal appellate court
Habeas Corpus is a civil lawsuit against the warden by D;
warden has to explain to judge that not keeping him in my
prison illegally, D claims not convicted legally in TC. Thus,
held unconstitutional. US attny says whether or not
conviction constitutional. Then ruled on and other side can
appeal. (DONT NEED TO KNOW)
y STEPNIEWSKI: D was convicted on 12 counts of home improvement trade
practice violation. Prior to the case, D was on probation for a felony theft
by contractor conviction involving misappropriation of $24k.
o 4 due-process restraints/hurdles on a SLOF:
Cant shift the burden of proof (from pros to defense)
Cant criminalize wholly passive conduct
D not passive here (knocking on doors)
Cant be vague or overbroad statute
Cant fail to give people notice
o RULE: there can be a mensrea in SLOF
o Legislature writes a mensrea into it; OR
courts can read into the statute a mensrea (technically not a
SLOF anymore then)
o old cases said unconst to put a guy away without mensrea.
o Modern side, says if going to put a guy away for 10 yrs conclude
that leg intended there be some mensrea.
o Federal courts defer to state court construction of state SLOF
o SLOFs can impose at least one years imprisonment with NO MENS
REA
UNLAWFUL CONDUCT
y MINK: D and deceased were engaged. When the deceased threatened to
break off the engagement with D, D threatened to kill herself with a
pistol, whereby they both engaged in a struggle and the gun went off
killing the deceased.
o 3 way split of Mink-type cases of accidental homicide resulting from
attempted suicide:
No crime
because suicide isnt criminal
Murder
because theres malice without JEM
Endangering state of mind
Involuntary manslaughter
b/c suicide is a malum in se act, as in Mink
o 3 way split of Assisted death/ assisted suicide:
No crime
because suicide isnt criminal
Murder
disregarding victims participation
Involuntary manslaughter
via statute
o unlawful and criminal
an act thats malum in se is(evil in itself)
Even though the act is no longer a crime
This is the basis of the misdemeanor-manslaughter
rule
o Neither suicide nor attempted suicide is a crime in the US
o Attempted suicide is a malum in se ACT
o Mala in se analysis underpins the misdemeanor-manslaughter rule
o If misdemeanor you are doing is malum in se, that malum in se can
apply simply to an act that results in criminal homicide.
homicide during malum in se makes D responsible for
involuntary manslaughter
o Act stays evil in itself even if no longer criminal.
y HYPOS
o If try to kill yourself and accidentally kill someone else?
some form of criminal homicide what D did, suicide is not a
crime, attempted suicide is a criminal and unlawful act.
Suicide is still a malum in se act (evil in itself); so ct just has
to conclude that bingo, that is foundation for misd-
manslaughter rule.

UNLAWFUL CONDUCT: TRANSFERRED INTENT
y HORTON: defendant was hunting on someone elses land without
permission and unintentionally kills someone. There was NOT criminal
negligence. Court is distinguishing between malum in se and
malumprohibitum.
o A non-negligent Homicide committing during mala prohibitum is not
criminal
o 1o, b/c lt ls not u mulu ln se uct. (As long us no gross negllgence or recklessness)
o Mala in se triggers misd-mansl rule; here, not mala in se.
o malicious mischief requires mensrea of malice, also requires
actusreas of substantial damage
o Common law malicious trespass/mischief requires substantial
damage + malice
o HYPOS
Same facts as case, but nobody was shot?
Civil Trespass, Hunting without permission
y SEALY: D ran stop sign, which caused 2 people to be killed
o An intentional violation of a life and limb protecting
malumprohibitum is deemed gross negligence/ involuntary man
o An intentional violation of life and limb protecting malumprohibitum
is malum in se act
o An unintentional violation of malumprohibitum raises the issue of
whether D was grossly negligent
o Misd-manslaughter rule another way to get invol manslaughter
charge.
o HYPO: If driving with reasonable care, going to stop at stop sign
but then go through it and hit kid and kill him; what result?
Deliberately didnt stop; that is deemed gross negligence. D
guilty.
o Forget about stop sign and I kill a child. What is the key point that
prosecutor will prove to get guilty of involuntary manslaughter
If prove grossly negligent.
TRANSFERRED INTENT
y This is a prosecutors tool when cant get as serious a crime as she wants
by using a traditional approach. Also, it is clearly a problem-solving tool
for judges. Used with torts.
y an intent to commit ANY traditional crime is usually sufficient mensrea for
another general intent crime
o becausegeneral intent crimes require only Ds awareness of doing
the act or Ds gross negligence or recklessness
thus, dont need transferred intent
y Even in states that use TI, no state allows the mensrea for any crime to
satisfy the mensrea for ALL crimes.
o B/c some crimes require specific intent
And no magic can make a general intent transfer into a
specific intent
y 3 suggestions re TI Cases:
o First analyze each case without using TIi.e. whats the mensrea
required for the crime?
o Then if P cant prove a valid conviction, then P should try TI
o Remember, attempt crimes always require a specific intent to
commit some target offense.
y HARROD: D threw a hammer at the wall which was above his childs crib
because he was mad at his wife and her friend
o Here, no evidence D had intent to hurt little kid. So, not guilty of
attempted battery. Prosecutor tries to use TI instead. This ct said
that cant use TI in all cases; criteria that uses TI are
o specific intent can be transferred from an intended victim to an
unintended uninjured victim
o CL: assault = attempted battery
Other form intentional scaring = modern/statutory form
o TI can be used: (2 criteria that triggers TI)
Majority: TI to kill from an intended victim to one accidently
killed
specific intent aimed at intended victim will satisfy
specific intent at unintended victim
Minority: does not T to kill
o TI can lead to erroneous conclusions
o Some states only allow intent to transfer to a second victim who is
injured
o Tip: focus on mensrea required for the crime in question
y SMITH:D shot at Taylor with intent to kill and wounded him, thinking he
was Maloney.
Taylor attempted murder
Maloney prior attempted murder?
o Sometimes there is no need to TI for P to convict the most serious
crime
o Majority: transfers intent to kill from an intended victim to a
bystander accidently killed (1
st
degree murder)
o Minority: does not transfer intent to kill (2
nd
degree murder)
o one can use transferred intent to kill an intended victim to an intent
to kill unintended victim
o shooting at a person thinking he is someone else transfers mensrea
for attempted murder (dont need TI)
o dont use transferred intent if you dont have to!
o Can still get attempted murder here without TI. Guilty before
shoots, b/c attempted murder has 3 elements:
Did D intend to kill
Armed
Went to place where expect person to be
o HYPO
D shoots at M with intent to kill but misses and wounds a
bystander
M attempted murder specific intent
Bystander aggravated battery (deadly weapon)
general intent gross negligence and reckless
disregard
Same as hypo except bystander dies
M attempted murder specific intent
Bystander murder malice (reckless disregard)
majority may find PAD through TI can only get 1
st

degree by using TI
y FAULKNER: accidentally set fire to the ship while attempting to drink and
steal some rum
o An intent to steal is not a ship endangering mensrea
o Theres no felony-felony rule for transferring malice
o intent to steal does not transfer into intent to destroy a ship
requiredmensrea is maliciousness
o How many ways can you prove malice:
Intent to destroy
Intent to Injure
Reckless disregard
o Tip: Before turning to transferred intent, identify what is the
crimes required mensrea (ie Faulkner required a ship endangering
mensrea)
MOTIVE:
y HYPO: X on trial for murder and D knows X didnt commit the murder but
a jury wouldnt believe the true story. D testifies to more believable alibi.
o Perjury - making a false oath (taking the oath to tell the truth
falsely). That is the actusreas, what is the mensrea of that? It is
making an oath without a sincere belief (willfully and corruptly)
when taking oath and fact that you are caught lying later is just
evidence.
y Then Erlich tells prosecutor he did it for a good motive, otherwise an
innocent man would have been convicted. Is that a good response?
o No, it doesnt matter. Motive is not an element, it is relevant
though.
y A valid conviction does NOT require proof of motive; its relevant but not
an element
y The rationale for not allowing good motive as a defense is to let the
law determine responsibility, not the morality of individual s.
y Outside of trial, motive can influence arresting cops, detectives,
prosecutors, sentencing-judges, and parole boards
CONCURRENCE
y THABO: 4 men brought the deceased to a hut, partly intoxicated him, hit
him in the back of the head, then rolled his body over a cliff; although the
men intended to kill him and make it look like an accident, he didnt die
from the actions of the men but rather of exposure
o Defense attorney tried to get them to find no concurrence b/c new
scene they didnt have mensrea to kill him, just roll over the dead
body. Ct doesnt buy this argument. Ct says that was a series of
events, still had mensrea to kill him even if happened at diff time.
o you can put as many frames around even as long as mensrea was
cause of actusreas. Was actusreas caused by mensrea? If ends up
dead, then actusreas caused by mensrea.
o Concurrence means the mensrea CAUSED the actusreas --- DONT
TALK ABOUT CAUSATION ON EXAM
INSANITY
y 10% of cases go to trial, 1% raise the issue of insanity
o 75% of insanity cases are murder cases; most are screened out
before trial by cops, DAs, etc.
y insanity definition changes with society
y FETTERS: D was a resident of a facility for psychological and emotional
treatment of children, repeatedly told others about her plan to kill her
aunt and to steal her money, D ran away and proceeded with her plan,
saying Satan had given her power, she was convicted of 1st degree
murder and appealed with insanity defense
o Split of authority on which side has the proof burden on insanity
Some: puts the burden on the D (Fetters) to prove by a
preponderance of evidence
Others: Once D raises the issue, P has the burden to prove
sanity beyond a reasonable doubt (rebuttable presumption)
Still Others (about 5): have abolished insanity, they just
require that P prove mensrea beyond a reasonable doubt
o Mnaghtens Insanity Elements (excuses crime)
D has a mental disease, so that
D doesnt know the nature & quality of her act; OR
D cant distinguish between right and wrong
If dont know nature and qualify, how distinguish right from
wrong?
o MNaghtens insanity only covers cognitive aspects of the mind (Ds
inability to know right from wrong) but it logically should include
the Delusion rule.
o Needs to show incapable of knowing right from wrong.
o Doesnt matter b/c if you dont then clearly you dont know right
o from wrong. So, it really boils down to if know right from wrong.
o ON EXAM: at time acting, acting insane
y NGI (insane people) when found no longer to be a threat to themselves
they are released.
o ***Most people found NGI spend more time locked up in facility
than they would have if went to prison
y personality disorders/ psychopaths not found insane because of their
psychopathology because they could tell right from wrong (probably)
y PMS no ; PPD- yes; PTSD- yes
y The Delusion Rule:another rule from Mnaghten case
o allows the facts as D believed them (in Ds delusion) to serve as a
link to another defense. (not many states use this) but on EXAM
if have delusion situation, you can say theoretically, could adopt
Mnaghten delusion rule.
E.g., rule of provocation (husband thought new bride being
deflowered by stranger)
Or imperfect self defense
or Ds lack of mensrea
o delusion rule in not a defense itself, its a link to a valid defense
DIMINSHED CAPACITY
y SMITH: D raped a babysitter and attempted to kill her but she escaped,
and killed a young boy child by strangling him to death, he claimed
insanity?
o D is entitled to a Dim Cap defense based on evidence besides
intoxication; whether ALIs insanity test requires substantial
incapacity of either Ds mind (head) or will (heart)
o ALI insanity elements/Substantial Capacity Test (CA doesnt use)
D has a mental disease or defect, so that
D lacks substantial capacity either to
y Appreciate conducts criminality (know right
from wrong); or
y Conform conduct to the law
excuses the crime
cognitive and volitional aspects (Ds inability to control
himself was formerly called the irresistible impulse test)
enlarges this defense
o Can still get a Dim Cap instruction, when you already brought an
insanity defense?
Yes, insanity is you had nothing upstairs and Dim Cap is you
have a diminished light.
o Diminished Capacity Rule (developed by CA courts)
Evidence of a mental defect LESS than insanity can negate
the higher forms of mensrea, reducing the crime.
Recognized in some ALI states, reduces mensrea, but theres
a split of authority over how much it will reduce
o Diminished Capacity split for criminal homicide
Majority: it can only negate specific intent type of malice,
thus reducing murder one to murder two
Minority: it can negate ALL malice for murder, thus reducing
murder all the way down to voluntary or involuntary
manslaughter.
o overlaps ALIs test, but only REDUCES crime
y RAMSEY: d stabbed his wife 32 times claiming he was trying to rid the
demons out of her. D plead defense of insanity.
o GMI is constitutional; created for Public Policy reasons.
o GMI procedure: In order to find guilty but mentally ill (GMI) the
jury must find(3-step process)
First find GUILTY of the crime
Then find was MENTALLY ILL
But find was NOT insane
o What test does Michigan use for insanity?
ALI frame (you can tell b/c substantial capacityappreciate
the wrongfulness
ALI v. GMI compare = similarities?
Conceptually similar insanity is a larger framework
where a GMI can fit inside. GMI only has impairment
whereas insane has substantially incapacity to
appreciate wrongfulness of conduct.
o GMI definition on MI is water downed diluted definition of insanity.
Changes significant impairment instead of substantial incapacity.
o GMIs Continuum of Mental Function jury finds.
Enough there mentally: Guilty
Partially there mentally: GMI middle ground between the 3
Not enough there mentally: Not guilty by reason of insanity
(NGI)
o GMI uses diminished capacitys definition to establish guilt instead
of a defense (cant have them both together; its either one or the
other depending on the jurisdiction)
GMI is not a defense, it is a compromise (trap door) between
guilty and NGI prosecutors tool
o What will GMI do in jury room?
Fear that jury will be torn between NGI or guilty and as a
compromise = GMI
o What kind of sentences can you give for GMI?
Any sentence for GMI - same as straight guilty finding.
First go to funny farm, then jail
o Is it proper to inform the jury of the sentencing consequences
between GMI and NGI?
Traditional: not to inform the jury of sentencing
consequences
Trend: juries do care about instruction; should tell them
what consequences are
Prosecution: likes GMI instruction
Defense: likes NGI instruction, because then jury
knows the guy will be locked up
jurors can make distinctions and wont be confused
y FULCHER: D was arrested for being drunk in public and assaulted a fellow
cellmate (Mexican b/c he was jumped by Mexicans).
o 4 reasons:
Ct said dont have to go through NGI door b/c he doesnt
have a mental illness. Ex sleepwalkers.
Other reason (pg 746) apples and oranges dont have to tell
automatism to plead insanity b/c not a disease. This kind of
person doesnt have a disease. So, you can raise it separate.
o Negates the actusreas at least the way this court is looking at it
(person doesnt know what they are doing, no exercise of will)
involuntary b/c state of unconsciousness.
o has the burden to prove automatism
o Split of authority whether automatism affects s actusreus
(imputability) or s mensrea (responsibility)
Some courts, like this one, recognize it as an independent
defense, implying that it negates s imputability for an
actusreus
Other courts recognize it via a NGI plea, implying it negates
s general responsibility for crime
o Automatism is a complete defense (no actusreas)
o Automatism is an affirmative defense (affirmative defense= must
raise & be able to prove)
o Insanity as a does not knock out the mensrea
o An involuntary act is not an act, which can be imputed to the
o older cases disallow automatism caused by intoxication or fighting
DRUNKENESS AND INTOXICATION
y Voluntary or Involuntary? - Some times you blend the two
y COOPER: While intoxicated (on drugs), D drove recklessly, shot a police
officer, and kidnapped a victim
o alcohol (a type of drug) is treated the same as other intoxicating
drugs
o Voluntary Intoxication is treated like insanity ONLY when D reaches
a recognized state of disease (example: DTs)
o Split:
Majority - voluntary intoxicationcan negate specific intent
ALL states: Delerium Tremens (the DTs) is an addicted
bodys reaction to the absence of drugs, and is recognized as
a disease by the AMA; defense of insanity
o NOTE: Larceny is a specific intent crime (intent to steal necessary)
o HYPO
D voluntarily consumes 6 quarts of alcohol over a 24 hour
period. 8 hours after he stops, he gets delirium tremens
(the DTs) and kills X. Charged w/ murder he claims
insanity.
DTs is a disease so now law looks at proximate cause
of the murder and says real cause was the DTs.
Drinking was a remote cause.
y It depends when the guy stops drinking. If he
was still drinking then not a disease.
y Disease doesnt matter if voluntary or
involuntary.
y Burden: depends on the state
y ON EXAM: just argue as a defense
y EGLEHOFF: D was heavily intoxicated and shot 2 people in the head. He
was charged with 2 counts. He claimed he was incapable of committing
the murders as he was extremely intoxicated which rendered him
physically incapable of committing the murders
o Due process is not violated by excluding voluntary intoxication
evidence on the issue of mensrea
States can do it or not allow. Up to them. Pros doesnt have
to prove ok w/ due process, D has to prove that it is NOT ok.
o A Majority of states allow voluntary intoxication to negate mensrea
o CL: which was followed here, if intoxication doesnt help the D.
As was the case here, intoxication is NO defense; does not negate
specific intent
D argues that old common law approach changed in 1800s
b/c a bunch of states went with trend to look at intox to
allow specific intent. Not enough here. 10 states did not go
with it does not negate specific intent.
o Role concepts Insanity and mensrea play in the process of criminal
law: doctrines all are tools for constantly shifting criminal law
always changing.
y BURROWS: 18 year old D killed a man while under the influence claiming
the defense of involuntary intoxication; forced to drink 4 beers and
whiskey
o Involuntary intoxication is a complete defense b/c its treated LIKE
insanity.
o There are 2 elements to the defense of involuntary intoxication
It was involuntary (via duress/fraud through RPP and the D)
it caused D to act insane (elements of insanity)
It must go to such extent that the mind of the
defendant was incapable of understanding the criminal
nature of his act.
y HYPO
o D gets drunk voluntarily and didnt want to harm anyone. D then
killed X while in a state of befuddlement so great D didnt know
what he was doing. Entitled to jury instruction of if jury finds the
above hes not guilty?
no, voluntary intoxication
o D on trial for murder and admits killing Y but claims he was
involuntarily drunk at the time., can he get the instruction that if
the jury finds the above hes not guilty?
yes, involuntary intoxication
y PENMAN HYPO
o Facts same as Penman but fooled into taking liquor.
Same. Doesnt matter if drugs or liquor.
o Facts same but this time D knows tabs are cocaine and takes them
and goes insane.
Not involuntary intoxication
o Involuntary intoxication can also result from fraud
o Involuntary intoxication is treated like insanity, theres no
responsibility for the crime.
o (D didnt actually get off b/c of insanity defense but b/c involuntary
intoxication is treated like insanity.)
y POWELL: D convicted of drunk in public in violation of state law.
Appellant appealed claiming he was afflicted of the diseased of chronic
alcoholism and appearance of drunk in public was not of his own volition.
He appealed to the US SC claiming punishment would be cruel and
unusual in violation of 8th and 14th amendments.
o Despite an alcoholics compulsion to drink its not cruel and unusual
to make a crime out of an alcoholics drinking in public
o The US Supreme Court often focuses on rationales to see whether
to create or change a rule (but decides not to do either in this case)
(Alcoholism not a disease, a disorder now.??)
y INTOXICATION DEFENSES SUMMARY:
o voluntary:
complete defense:
Ds prior use leads to a recognized mental disease
(DT) and
the disease satisfies the jurisdictions insanity test
negatesmensrea:
D is so intoxicated that D did not form the crimes
mensrea
Majority: negates specific intent
Minority: doesnt negate specific intent
o involuntary:
complete defense:
intoxication resulted from fraud/ duress and
caused the D to act insane according to the
jurisdictions insanity test
COVERTURE MISTAKE OF LAW MISTAKE OF FACT
y CUDE: guy leaves car at shop to be fixed, then steals it at night because
he cant pay charges - D broke in at night and took the car with his spare
key.
o A mistake of civil law can negate a specific intent mensrea (here,
intent to steal)
o Some cts even extend this rule to negate a general intent mensrea
if based on reasonable grounds.
y HYPO: What if I am walking along and see a wallet and see license and
keep it b/c finders keepers When he is later charged with larceny can
he invoke defense of mistake of law?
o No, b/c had intent to steal; not a civil law mistake so not a defense.
o His mistake was as to civil law.
o mensrea for larceny is intent to steal; if he thinks he has a right =
no specific intent to steal
y why is it ok to be mistake about civil law v. criminal law?
o Criminal law reflects social wisdom of what is moral and good/bad.
Notion is that if any individual could say didnt know about criminal
law, can substitute own notion of what is good = chaos. Nothing
immoral about not knowing a civil law. No reason for court to deny
you a defense if you dont know civil law. Only a defense if
ignorance knocks out mensrea in criminal law.
id what kind of mistake: civil/ criminal
must have good faith belief about a civil law that keeps him
from having mensrea required.
y WEISS: D confined a kidnapper as instructed by a NJ detective under the
impression they were doing authorized police work
o A mistake of law can negate a construed mensrea of specific intent
(here, for statutory kidnapping)
o Maj: mensrea for kidnapping statute is SI to confine without
authority of law
o Ds thought they had authority from detectives; but mistake of law
must negate mensrea and mistake must be of a civil law. Here,
these guys werent confused about criminal law. They were
confused about law of arrest; which is a tort law principle. These
guys were screwed up in ignorance about the law of arrest. B/c
they had that sense, with good faith, that can negate what ct has
construed as a specific mensrea.
o Dissent/ Min- Even if mistake; they were breaking the law and
shouldnt apply here. Crane would have found them guilty. sees
as GI
o HYPOS: Suppose you have a cop that lawfully busts someone for
burg and beats out a confession.
kidnapping? No, b/c lawfully arrested
o Same as before except officer unlawfully arrests D but she believes
doing the right thing.
Under Weiss opinion, only cares if you believe your arrest is
lawful. If believe then not specific intent needed. Keeps
prosecutor from proving the mensrea. Belief must be
reasonable.
Law of arrest (tort/ civil) was the mistake
y MISTAKE OF LAW VIA AUTHORIZED RELIANCE
o General RULE: mistake of law is no defense
o There are 2 exceptions that negate mensrea
First, a mistake about some civil law
all negate SI, some negate GI
mistake even about the law accused of excuses your crime if
Mistake authorized by:
y Legislative authority statute good at time you
relied upon it
y Judicial opinion/legislative authority; OR
y Executive authority requires that you are
relying upon a public official whose job it is to
give legal advice. DA or attorney general
The reliance is reasonable
y An RPP would have also relied
MISTAKE OF FACT
y CASH: D engaged in sexual intercourse with a 16yr old runaway girl,
believing she was 17yrs old; CL rape bc she was scared he would hurt her
o mistake of fact is not a defense to a SLOF (Strict Liability Offense)
o good faith mistake of fact about Vs age is not a defense to
statutory rape not a mensrea crime so GF doesnt count
o 4 reasons ct gives for saying we thing Gengles case was right
Legislative intent to omit M.O.F.
Statute is treated as a SLOF.
Mistake of fact is not constitutionally required.
This approach avoids focusing on victims.
o Maj: MOF about a minors age is not valid D
o Even trend for SLOFs wont allow MOF as a defense to stat rape
y CRANE: deceased choked D, who then numchucked deceased. D believed
deceased to be dead and burned his body to destroy the evidence.
o a mistake of fact can negate a general mensrea if MOF is
reasonable
o D is entitled to an explicit defense instruction if they have one
o MOF operates just like MOL even on general intent mensrea if
reasonable.
o Jury finds him guilty; he asks for instruction on MOF. His MOF is
about whether guy was dead. What kind of mensrea is reckless?
y General intent
o Has to be reasonable for MOF to knock it out. There was evidence
of good faith belief he thought guy was dead. There was also
evidence that it was reasonable for him to belief body was deadDr
testified that a RPP might have reasonably thought person was
dead.
y Some jurisdictions let MOF based on reasonable grounds negate even a
general mensrea (here, recklessness)
y D is entitled to an explicit defense instruction where evidence supports it
COMPULSION-DURESS-NECESSITY
y Doesnt matter which words you use, same rule for all. A lot of judges
use interchangeably.
y RATIONALE: ppl should be cut some slack when have to choose choice of
evils; as long as chooses the less of the evils.
y Necessity etc at Common Law: A ds crimes are excused if Ds action was
reasonably necessary to prevent Ds death or SBI but theres no excuse
for killing an innocent person
y Most states have added elements to that defense either by statute or case
law
y Sometimes called the choice of evils defense
y Compulsion and duress = refer to a threat by a human
y Necessity = refers to a threat from a situation/nature
o Principles are the same though
y HYPOS get a feel for legal analysis that these scenarios trigger and
know variables that are used in the analysis. These hypos are at the
extreme of defense of duress.
y D and passenger Jumped from a sinking ship, D facing his death or
others
o girl gets jacket on and guy takes knife and tries to cut cords off
jacket so he can take it and accidentally cut throat and girl bleeds
to death
Can guy invoke defense of necessity?
What crimes can you charge?
Murder? Recklessness? You can argue.
Felony murder rule? Robbery; Watch out for merger rule
At least G of involmaslr grossly negligent, or committing
battery by touching her. Battery resulted in
death;misdmanslr rule.
Some use fel murder rule;
A few ppl say volmanslr; like an imperfect self defense
y pull it off her and she drowns.
o Causation; he didnt directly cause her death, and if pulling jacket
off not as much as cut. Here, most ppl argue vol manslaughter
(freak out factor like rule of provocation)
y Life jacket in water and both get to it; pulling and she drowns
o Is defense stronger? Yes, cant argue had possession b/c both had
it at same time. NG of any crime most argue b/c of lack of
arguments.
o Good excuse of necessity.
y Won a race for the life jacket
o No crime
y Guy in jeep and it sucks, there are some lions coming around and he gets
scared and sees 3-mo old baby asleep. Guy takes baby and throws to the
lions so he can get away.
o Can use necessity defense?
o No, b/c killing an innocent person (not innocent in terms of NG in
ct, we use it in this framework to mean person is not contributing
to the cause of the problem. 3-mo old baby is completely innocent,
therefore not privileged to sacrifice innocent person to save
yourself.
y Passenger in cab, on a one-lane road in Peru. Have to decide if pull taxi
off road and die or hit 3 ppl in road. Can you use justification?
o D argues: ppl in street werent innocent. Justified b/c he
maintained the status quo; was driving reasonably.
o Another argument: driver not justified by a balancing of interests
shouldnt kill 3 ppl to save only 2.
o Duty analysis everyone owes a duty not to hurt someone else as
long as that duty doesnt jeopardize oneself. Applying duty
analysis; duty not to run over ppl, but exception is dont have to
put yourself at peril to fulfill duty.
y girl climbing in Tibet; Campbell holding rope and cuts rope. As a defense
attny how can you analyze?
o Duty to save yourself? Duty to yourself first. Prosecutor could
argue girl was an innocent person. Shes not innocent as used in
justification she is pulling him off the cliff contributing.
o Most would agree this is a justification. She is not innocent person
threatening his life.
y BURNEY: ex-convict pulled out gun to save his ass. D invokes necessity of
defense. But statute prohibits him from having one.
o Statutes and case law have modified CL elements of duress
o 3 elements of (one) statutes duress defense requires:(what would
otherwise be a crime is ok if.)
Ds conduct is necessary to prevent
Imminent threat/ harm and
Ds choice is reasonable
o Compare to CL: This is different than common law; b/c CL didnt
have to be imminent
o Its reasonable to believe D is avoiding a greater evil
o Prosecutor argues he was still a convict in possession of gun after
necessity. Ct says that is for the jury to decide. Best argument on
remand would be that he told police he didnt have gun.
o Why is it important that after incident, guy ditches the gun? Who
cares? Cut him some slap in a reasonable amount of time.
o (cts dont always come down to imminent if its inevitable)
o Most states do have a duress statute; that will add more elements
than common law; no uniformity in statutes; above is the model
statute.
o CL duress only requires D action appear reasonably necessary to
prevent Ds death or SBI
y CAPITULO: hippies wanted to do a sit in at a nuclear power plant; tried to
assert defense of justification
o Political cases provoke judges to narrowly construe necessity
statues
o 4 modifications of one necessity statute,
D cant have several choices
RPP standard for perception of evils
RPP standard for the choice of evil
Threat must be imminent
o conduct which the actor believes to be REASONABLUY necessary to
avoid a REASONABLY PERCEIVED IMMINENT harm or evil to himself
or to another is justifiable if: the harm or evil sought to be avoided
by HAVING JUST ONE CHOICE OF such conduct is greater than that
sought to be prevents by the law defining the offense charged
o Courts differ in political protest cases because they dont want to
condone the legal chaos of protesting
o Necessities can be framed as either public or private, depends on
whose interests are protected
CONSENT, FRAUD, GUILT, CONDUCT
y TURVEY: D wanted to sell stolen items and approached a guard about
helping to transfer the stolen goods. The ward told his superiors who
then let the action go on so they could convict d for stealing case for
larceny
o consentcan negate an element of some crimes
o Whether a possessors handing property to a D = consent to
possess?
o RULE: consent absolves the person. In larceny against the will =
trespassorily = without consent idea. Since goods handed to the
guy, not trespassorily taken.
o HYPOS going to Dean S to steal coins
at night, opens door,goes in, takes coins, leaves
Burglary; Trespassing; Larceny
D bribes servant to open door at night, goes in, takes coin
and leaves
Solicitation; Burglary;Bribery;Larceny; Conspiracy
same as before, but servant reports plan to owner who tells
servant to open door for D
Solicitation; Attempt Bribery; No conspiracy b/c no
intent, he wants to rat out; No burglary b/c of
consent, no breaking b/c had consent of owner;
Larceny no consent to take coins just burglary
same as before, but servant only unlocks door
Burglary just b/c make easier no consent to come
in; Larceny
same as before but owner tells the servant to open the door
and open the safe
Burglary? No breaking; Larceny just b/c safe open
no consent to steal what is inside
same as before but owner tells servant to hand coins to D,
so D wont come in
Burglary? No;Larceny? No like Turvey case (consent
given)
o Consent can negate an element of some crimes
o If owner consents to entry or taking, theres no burglary or larceny
o TIP: scrutinize exactly WHAT was consented to.
o ***Can only consent when give it to person, but to stand back and
allow is not consenting
y CONSENT AND FRAUD:
o Consent is a defense concept. Other concept is fraud and that is a
prosecutors anti-defense concept. That is b/c certain kinds of
fraud can negate or vitiate certain kinds of consent in certain kinds
of crimes. We have already seen how force or fraud can vitiate
consent. Now, in addition, fraud can vitiate consent. 2 overall jobs
of framing:
o Fraud in factum asks what did the victim consent to
If victim consents to use of his bicycle but D uses victims
car, its joyriding--- didnt give permission to get car, only
bike. Intent is important at this time need to intend to
take car.
strongest kind of fraud, vitiating consent in crimes where
non-consent is an express element and also where non-
consent is an implied element
o Fraud in the inducement asks why did the victim consent
if victim consents to swap title to property because D offers
property that D doesnt have, its false pretenses
Weakest type of fraud, vitiating consent only in crimes where
non-consent is an implied element
(only knock out consent if crime in cat 3)
o ***D throws out defense, pros throws out fraud. Fraud in factum
is good for pros b/c consent vitiated. If only fraud in inducement,
can only knock out consent idea in cat 3 crimes.
y crimes where non-consent is an expresselement; (needed element)
o forcible rape, extortion, joyriding
y crimes where consent is Irrelevant (b/c cannot consent to these crimes)
o stat rape, Arson, Murder
y non-consent is only an implied element:
o Larceny: trespassory, EMBZ, Kidnap, CL Burglary breaking is
non-consent in concept, false pretenses
y CONSENT
o Consent is a defense only in cat 1 and 3 crimes
o Fraud vitiates consent only in cat 1 and 3 crimes
o ONLY fraud in factum vitiates fraud in cat 1 crimes
o EITHER fraud in factum or fraud in inducement vitiates consent on
cat 3 crimes
y COOK: the dealership consented into D taking one of their cars by
fraudulent inducement on part of D. D acquired the car from the dealer
with their consent. D traded in his car for a new car for the purpose of
selling it to another. Fraud was that it wasnt paid for.
o This is a joyriding case; D claims car came with keys so not
joyriding. Which frame would you put this in? Fraud inducement.
Suckered into it. Why cant pros use fraud in inducement to knock
out consent aspect?B/c joyriding is cat 1 crime. Only way DA can
knock out is to show fraud in factum
o HYPO: C asks DS to borrow car and he says ok and gives keys. C
intends to keep car. What crime will DA try to get?
Larceny intent to steal formed at time taking possession
Embezzlement when did intend to keep car; if after get car
= embezzlement; need to distinguish btwn larceny b/c
Can you be convicted of joyriding?
Need to prove fraud in factum
Why does Perez case say there was fraud in factum?
y Conditional if break conditional consent =
fraud in factum; that is why in that case guy is
guilty of joy riding.
o When w/out consent is an express element, its vitiated only for
fraud in factum
o Fraud in the inducement does not vitiate joy ridings express
element of w/o consent
o When w/out consent is only an implied element, its vitiated by
either kind of fraud
o Exceeding the condition of conditional consent is fraud in factum
y BYGRAVE: D was HIV positive and had unprotected sex with 2 partners
who later tested positive. D only informed 1 partner of his HIV positive
prior to intercourse and that person consented.
o Where is the touching here - battery?
The AIDS virus
o Consent to SBI is NOT recognized; therefore consent to HIV is no
defense.
o One cannot legally consent to SBI and AIDS is SBI
o A victim cannot give valid consent to aggravated battery
y DYKES: D was a French teacher on a visa who was fired and informed she
would have to return to Britain as her visa was terminated. D responded
with a letter attempting to blackmail the school by either paying her
money or forcing her to go public with information on the school.
o Another partys guilt NO defense
o Fraud of FP is basically depriving a victim of real facts
o Crime here is blackmail (subset of extortion); P claims but they are
guilty; but pros doesnt care. It doesnt matter. All elements met.
o HYPO: Give C ring for cheap watch, and B gets to the DA first
what is the crime charged against C? False pretenses got title by
misrepresenting value. If you argue he consented, that wont fly.
Where is the harm? No harm here. Pros response is that
defrauded you of ability to bargain with real facts in front of you
that is the harm, not $.
Defraud of power to bargain with all the facts
Fraud is NOT a crime just an element; usually ppl mean false
pretenses where fraud is an element. Or larceny by trick
where fraud is an element.
If fraud used to steal possessions = larceny; used to steal
title = false pretenses
y MUNNELL: alcohol level .11 swerved across the road and ran over a drunk
victim on the road with a level of .24-alcohol concentration.
o Contributory neg is a defense in torts, but not criminal law b/c diff
social objectives. Crim law trying to locate responsible party and
either punish or rehabilitate; while torts focus on v.
o The victims negligence is only relevant to what caused the injury
or if the Ds negligence was gross
Causation:This is a complex set of rules and since in torts, dont discuss on EXAM.
Just spot the issue. All he wants to hear is that there is a causation issue.
CONDUCT OF ANOTHER PARTY
y HOLLAND: D cut deceaseds finger with iron rod and deceased got lockjaw
after refusing amputation
o Issue: Whether a victims refusal of treatment supersedes the Ds
wounding of the victim?
o Sub Issue: Whether a battery victims refusal of life saving care is
the proximate cause of death?
o D argues V neg was cause of death not injury.
o Guy died from wound; D wounded him. This was an intervening
cause but not a superseding cause. In Criminal law, concern with
what D did, law tends to look at positive action of D as more
powerful causation than the negative act of victim.
o HYPO: D stabs Vbut doesnt call for help because he doesnt realize
how serious the wounds are. Bleeds to death
Intervening, but not superseding cause.
o V stabbed and tries to get to hospital and cab offers ride and
doesnt take it.
Intervening cause, not superseding. D still responsible.
o D stabs v again and v sits there so D gets electric chair.
Same thingintervening cause not superseding one.
o C hits DS and he falls on ice and DS dies of hypothermia and he
was knocked out. Imputed D? Is he a cause?
Even though didnt pack the snow or intend for him to die,
still as if he had packed the snow caused D death b/c
unconscious.
o if DS is punched and he stays there and dies.
Can D be imputed? No, b/c DS was ok and conscious and
able to help himself. He died of hypothermia b/c left out in
cold; C didnt do that, DS did.
y Spot causation, dont analyze
y Ds prior positive acts are generally deemed the proximate cause over a
victims negative acts
y Just identify dont analyze proximate cause on EXAM
CONDONATION
y For a D
o General Rule: not a defense
o exception
condonation/settlement statute for the offense; such statutes
typically require:
D did criminal act/harm
D only asked to pay out of pocket damages (glasses)
y For a V:
o person is being threatened with exposure of a crime unless pay of
threatener 4 possibilities: (ACOE)if not in accordance with a
condonation statute, the Vs request for money from the D makes
the V potentially guilty of
Accessory after the fact: pay and cover crime
Compounding a crime receiving consideration under
agreement not to prosecute
Obstruction of justice
Extortion:the making of a threat usually some future event
to extract something of value. Making a threat of violence
right now is robbery.
y **Lawyers cannot even hint in demand letters about criminal prosecution.
Even if there is a condonation statute in place. Why? Lawyer will be
known smarter and lawyer threat is more intimidating. GR no defense;
you are going to be a candidate for AOCE if condontation stat in
jurisdiction, then once cond statute has been satisfied bar of pros
threatener and bar to person who did criminal act in the first place.
y HYPO: D demands payment from person who broke his glasses
o No threat
y say to the person who broke your glasses you better pay or I will sue
you
o No ACOE problem b/c only threatening civil ct
y C says if you dont pay I will go to the DA and ask her to prosecute you
for battery
o threat, obstruction of justice b/c if makes the deal wont go to the
DA
o why is obstruction of justice proper? Societys interest in punishing
crime. One person/civilian cannot represent society and take
payment and not prosecute.
o Attorneys cant even hint of crime in pursuing a clients claim
against the D
PUBLIC AUTHORITY
y BURROWS: D (citizen) claims he was working under public authority after
he was drug busted by an undercover cop
o The public authority defense requires:
A reasonable belief in public authority; AND
The authorizing agent possessed such authority
o Ct says there are 3 possibilities that can arise: as defenses
D can say to jury lack of mensrea mind wasnt into selling
drugs just playing along to get evidence
Affirmative Defense: public authority in order to satisfy this
defense D has to have:
Reasonable belief/reliance on authority to do the
thing; AND
Gov agent had authority to empower D
Affirmative Defense: entrapment by estoppel aka authorized
reliance
When gov tells D that certain conduct is legal and D
commits what would otherwise be a crime in
reasonable reliance on the officials representation.
Here, this case would fit most closely in public authority. But
of course, where D loses is that trial judge was right, jury
had to find he was authorized and that it was reasonable for
him to believe, which it wasnt.
Public Authority: Use of Deadly Force:
y Common Law: only 2 privileges to use deadly force:
o Public authority used by officers of king/queen to enforce law
o Crime prevention used by all citizens to uphold the law.
o Both called justifications, meaning that there was no crime at all.
y RATIONALE: all felony was hanging offense; accelerating justice since he
was going to die anyway.
y Self Defense came later onrecognition by the law that self-defense is a
defense only recognized where user not completely without fault. To deal
w/ situations where user partially at fault. SD (self defense) can also be
used by someone who was sort of at fault. When SD was invoked in ct
and was not a justification; D found guilty but then k/q would pardon
offender so it became excused.
y Became known as excuse
y Later, the privilege to use force to defend property evolved from crime
prevention and priv to use force to protect another person evolved from
self-defense.
y Similarities more important than differences
y MANTINELLI: D, an officer on duty, engaged in a second car chase with
deceased. Officer shot at victims car as it was trying to get away killed
the driver. 2 conflicting stories (D and prosecution) about what really
happened.
o Public authority allows police to use deadly force where theres a
reasonable belief of a significant threat of death or SBI to police or
others (Reasonably prudent Cop)
o Crime prevention allows citizens to use deadly force where theres
actually an immediate threat of death or SBI in the immediate
vicinitythusOrdinary citizen can only shoot if here and now threat
o Public authority allows police a broader privilege to use deadly force
than private citizens.
o Despite police Ds being entitled to citizens self defense and
defense of others instructions, theyre also entitled to an instruction
about cops broader public authority for using a deadly force.
***if a verdict to the degree of the crime is contrary to law or evidence and the
defendant is guilty of a lesser crime, the court can modify the judgment without
having a new trial***

Domestic Authority (DA), Crime-Prevention, Self-Defense
Cleary Case
Facts: Boy assaulted another classmate and assaulter was punished by the
schoolmaster
Issue: Whether DA gives privileges to use force?
Whether teachers have DA to punish school children for fighting on the way to
school?
School like parent; in loco parentis; parents give authority to schools. Source with
parents and delegated to school.
HYPOS
#1 one of kids punished by father
Priv by DA
#2 is headmaster priv to punish kid for what do at home?
No, swift pun to be effective; only leaving to from school
#3 parent priv to exercise 2nd beating to kid?
Has to be quickly generally; so that is priv as long as acting reasonably
#4 parent sends kid w/ note saying dont want to use corporal force?
American law: public school teacher has public authority to administer discipline;
not DA.
Source of Campbells authority = K authority
POINTS
DA protects parents for reasonable use of force
PA protects teachers in US
DA is broader for parents than is PA for teachers
Trend restricts parents and teachers privileges to use force
Split re test for using domestic and public authority force on kids
Traditional: whether D acted out of welfare v. malice (are hitting kid for) malice
test child-endangering state of mind for malice
Malice = kid endangering state of mind really want to hurt the kid
Trend: What is reasonable? RPP standard based on circumstances
Barr Case
Facts: d fatally shot deceased after deceased and other friends attempted to steal
wooden chairs from an antique store
RPPs need to defend with deadly force
Issue: Whether crime prevention lets citizens use deadly force to stop a felony?
Whether crime preventions deadly force has 3 elements?
D asked for justifiable homicide instruction. Ct said no for 2 reasons
First, not entitled to crime prevention instruction b/c no felony being committed; D
argues he reasonably thought felony going on; but ct says no b/c reasonableness
does not refer to belief that a felony has occurred. What is required to trigger priv
to use deadly force is that a felony actually did occur.
Not really a burglary; not fenced off
Second, no fear of SBI; see trend below
When can a citizen use deadly force?
Felony committed
Reasonably necessary to stop felony/apprehend felon
Trend adds third element reasonable fear of death or SBI
D here lost on 2 of 3 elements; so convicted of vol manslaughter
HYPOS - C goes to DSs house to steal laptop, his only reasonably way to stop C is
to shoot him.
Trad Rule yes for all hypos. Real felony and a reasonable way to stop him
Trend could argue in hypo 1 that scared.
1: If at door and C wants to get in and C overpowers and pushes door and shoots
2: if C in house and DS says stop and C flips him off and he cant stop so shoots C
Trend: not justified under trend b/c no fear of SBI/death, but could argue given
history btwn them.
3: C had computer in arm and about to leave and he shoots him
if about to exit, not justified under trend
4: if got computer but in street and DS shoots
On street, no immediate threat
Diagram
SEE SLIDE re stroke
Legal analysis is 2 stroke analysis
POINTS
Trad: crime prevention justifies a citizens use of deadly force where:
A felony was actually committed and
Deadly force is reasonably necessary to apprehend the felon
Trend: adds a 3rd element
The felony creates a reasonable fear of immediate SBI
Ceballos Case
Facts: D mounted a trap gun in his garage to prevent thiefs from entering to steal
his tools and deceased was struck in the face while trying to enter the garage to
steal
Issue: Whether crime prevention allows deadly force to protect a dwelling? Yes,
when ppl are there.
Whether deadly force is privileged to protect a dwelling when no occupants are in
danger (empty dwelling)? No.
D convicted of assault w/ deadly weapon. Attempted battery; but this kid was
battered, so why did jury find him guilty of attempted?
Why did jury come back w/ ADW instead of battery w/ DW?
Jury might be thinking that guy kind of innocent b/c kids were stealing
If shot was higher and killed kid, what crime convicted of?
1st degree murder PAD
recklessness for 2nd degree murder
grossneg for involuntary manslaughter
Ct says if he had been there could have used judgment, but here couldnt do it.
Pros arguments:
As a matter of law outlaw trap guns ct doesnt buy this; they agree they are
dangerous though
POINT
Trend: requires 3rd element (from above); crime prevention priv restricts deadly
force to stop only felonies that create reasonable apprehension of immediate SBI.
Self Defense
Realina Case
Facts: D was arrested after he chased Hardisty into the police station with a knife
after Hardisty threatened to kill him
Issue: Whether self-defense allows DF when being threatened with SBI? Yes.
Whether deadly force can be used to repel reasonably perceived great bodily harm?
R was convicted of terroristic threats but he was defending himself acc to R.
Self Defense Rules
Reasonable force is justified in resisting reasonably perceived unlawful force
Threatening with deadly force is NOT using deadly force (a key concept)
Deadly force is justified to resist forcible kidnapping
B/c this presents fear of SBI
Therefore, non deadly force is justified to resist forcible kidnapping
Key to understand what R was doing that was justified; he would have been
justified to even cut off hand b/c kidnapping.
HYPOS DS comes up to C and says you suck and C slaps DS. Justified b/c hurled
words?
1: If hurled words, not justified (not informational) only use force against force
and words are NOT force.
2: where DS punches C first after C battering him to stop him
POINTS
4 self defense rules
no self defense priv to use force against words
Gen RULE: even word hurlers have a self defense privilege
EXCEPTION: but where word hurler intends to start a fight, the hurler is stripped of
self defense against the force those words would reasonably provoke.
COMPUTER CRIME STATUTES
y Accessing and printing data without permission
y Damaging, destroying, deleting, and contaminating data
y Stealing computer services
ABORTION:
y common law misdemeanor: cause the miscarriage of a woman after the
fetus had quickened unless necessary or reasonably believed to be
necessary to save her life
y -in a few states manslaughter has been statuted to include certain types
of feticide
y -therapeutic abortion: miscarriage induced for medical reasons generally
y -state cannot interfere with 1st trimester abortion, but can regulate it in
other trimesters
y -state can regulate an abortion to protect a viable fetus
y -late term and partial birth abortions are prohibited
y Not a crime in CA
MAYHEM: (If you have mayhem, a fortiori, you have battery)
y maliciously maiming
y or maliciously and intentionally disfiguring
y another
ABDUCTION: (not a common law crime)
y unlawful taking
y of a child under a specified age
y from a parent or guardian
y for the purposes of depriving that parent or guardian of their parental
right
FORGERY:
y Making or materially altering
y a document of legal significance
y that purports to be anothers
y with intent to defraud
UTTERING:
y tendering a forged writing
y with intent to defraud
KIDNAPPING:
y asportation or confinement
y of a person
y by force, threat, or deception
y with unlawful intent
o although strictly speaking this is not the common law form, nearly
all states include it as the equivalent of the BARRK crimes
triggering 1
st
degree murder
RAPE:
y unlawful carnal knowledge (any amount of penetration)
y of a woman
y without her consent
y (statutory rape is for girls under a certain age even if she consents)

Crim Law Class Notes for Monday November 23, 2009
NOTE: Wednesday 12/2 at 7pm crim review
Self-Defense; Defense of Others

Goetz Case
Facts: D shot four teenagers on a subway after they asked him for $5. D said he
would have kept shooting if he could have
Issue: Whether one is privilege to use deadly force in self-defense when (a) an RPP
perceives a deadly threat and (b) and RPP would defend with deadly force?
Whether deadly force is privileged when based on a RPP perception of a deadly
threat and an RPP response to deadly force was necessary?
Whether the RPP can factor in the experience, history background and knowledge of
the D?
D is saying you should use subjective test; but ct says in NY statute read
reasonably even though ct uses majority that assumes and requires there also
be the D himself believe. Here, NY uses RPP and subjective (MAJ), now cts give D a
break and cuts them slack, allow jury to have RPP to have same knowledge D had
as well as experiences.
SEE SLIDE for policy analysis 1 of 3 positions on self defense:
Was there a threat of deadly force
Did D have to respond with Deadly force
It should depend on sub standard what he believed
HYPOS
DS gives S a fake knife and C shoots her to keep from stabbing him; is he justified
in using deadly force? Yes, b/c a RPP would be scared.
If S didnt brandish a weapon and C shoots her, is he justified? What would a RPP
believe, in this case no way seeing death. Not justified.
DS and C have made deadly threats and suddenly meet each other in parking lot
and C sees him reach for his gun and so C shoots him. Justified? Yes. A RPP would
be justified
If DS and C meet in garage and he looks away at someone and C shoots him.
Justified? No imminent threat.
POINTS
Maj: the deadly force priv under SD requires (a) RPPs perception of a deadly threat
and (b) RPPs need to defend with deadly force
The RPP test allows factoring in s physical characteristics and experiences
Min: The Ds good faith subjective perception and response determines scope of
self-dense.
Cooper Case
Facts: D entered into a quarrel with his brother who was continuously hitting him in
the head with a radio. D then shot his brother in the head.
Issue: Whether most states require retreat before using deadly force in self-
defense?
Whether most retreat jurisdictions require retreat before using deadly force (a) if
retreat is obviously available and (b) one is not in ones castle?
Whether most retreat jurisdictions require retreat when in ones castle and attacked
by a co-occupant?
RULE: this ct took middle ground, but not what maj uses. Most states say dont
have to retreat, you can stand your ground. C/L says human life is more important
and if say way, retreat. A Min have used C/L rule. Maj use American rule no duty
to retreat.
Castle doctrine: no matter what jurisdiction, you dont have to retreat. Retreat
jurisdictions are more American in this way b/c you cant go anywhere else. No
matter what, you can use deadly force in your castle.
Co-occupants: if using deadly force, ct says there is a split of authority. Once in
retreat jurisdiction, there is another split of authority: most cts say no duty to
retreat. Min say if dealing with co-occupant dealing with someone who you have
history with so try other ways to diffuse situation, so if safe retreat available try it.
SEE SLIDE DIAGRAM
Maj: no need to retreat
Min: retreat
Retreat (if safe) unless castle
HYPOS
In retreat jurisdiction: C is in dispute with DS and he says next time I will shoot
you. First time meet, C can get away and DS has baseball bat so C can kill or be
killed
If confronted in Cs home no need to retreat
If in Ds office? No need to retreat; these jurisdictions say office = home in terms of
castle doctrine.
In Ds club? Club = castle as well for purposes of retreat.
At far end of Ds own farm? Castle for purposes of retreat.
If on Erlichs farm? Is that his castle for this doctrine, yes.
Sports car on Public Street? Not covered as castle for retreat rule.
Castle is so big, they might as well say maj.
POINTS
Most states do not require retreat before using deadly force in self defense
Most retreat jurisdictions require retreat before using deadly force if (a) retreat is
obviously available and (b) one is not in ones castle
Majority= no retreat jurisdictions: one need NOT retreat before using deadly force
in self-defense
Minority= retreat jurisdiction: one MUST retreat before using deadly force in self
defense if (1) an obvious retreat is available and (2) one is not in ones castle
Within Retreat jurisdictions: (split of authority)
Majority says need NOT retreat before a co-occupant, but
Minority says MUST retreat before a co-occupant
Broadhurst
Facts: D was solicited by his wife to kill her real husband. While pretending to
have car trouble, D killed deceased
Issue: Whether an assailant must (1) withdraw and (2) communicate before
reacquiring the right/privilege to use deadly force in self-defense?
Yes.
RULE: have to give communication and it has to be received. In this case, Dr. was
out of it. He was coming forward yet not conscious. Here, wife is being tried b/c
conspirator and solicited the D to kill.
HYPOS
C and another guy getting into fist fight, and then other guy pulls out a knife and C
pulls out chair and kills him. Justified? C is not that innocent. Here starts with 2
guys, both not innocent and before you can reacquire priv of self-defense, that is
when C has to retreat. If mutual fistfight is different.
4 frames in which you can put self defense
D is innocently on the scene
MAJ: can use DF without retreat
MIN: must retreat before using DF unless in castle
D is a mutual non deadly aggressor
All jurisdictions: must retreat before using DF
Ex: fistfight
Failure = imperfect self defense priv
D is the aggressor
ALL must withdraw and communicate
Failure = no defense
D is engaged in a criminal enterprise:
ALL: no self defense privilege
Defense of others
Saunders
Facts: D, Robert Saunders, shot deceased while trying to protect his brother who
was pinned down by deceased and deceaseds friends. While holding ds brother
down, deceased exclaimed he was going to kill Ds brother. D then shot to protect
his brother
Issue: Whether defense of others requires that step into the shoes of the other
(one you are defending)?
Whether is entitled to a defense of others instruction when a similar instruction
has already been given?
RULE: stand in shoes; entitled to defense of other instruction as well as provocation
instruction
A person has the privilege to use force defense of others to the extent that the
other could have used the privilege to use that force
POINT
Trad rule: the priv to use force to defend others requires that D step into the shoes
of the other
IS A HOTEL A DWELLING?!?!?!?!!?- YES FOR BURGLARY
Defense of Others
Traditional Rule: stand in shoes of other to know how much you can defend
Trend: RPP standard to determine privilege what does RPP perceive and how will
RPP react?
ALEXANDER: D came to the aid of a fellow cellmate while witnessing two guards
using force on the cellmate.
Issue: Whether the defense of others is determined by the RPP test? Yes if in trend
jurisdiction.
Here, at T/C D got self defense instruction but defense of others was limited to trad
rule. Ct connects Genovese case to new trend rule to encourage ppl to help out.
Defense wins here b/c ct emphasizes policy. Trend now looks to RPP standard.
HYPOS
D shoots and kills X to prevent X from shooting Y. D thinks Y is faultless and that
shooting X is the only way D can successfully intervene.
If not shot, X would actually have murdered Y?
Under trad approach, yes priv under old stand in shoes.
X was apparently going to murder Y but nobody knew Xs gun was jammed
Under trad view priv to kill b/c no one knew jammed.
Trend approach: priv b/c RPP would think same thing, if pass trad test, you will
pass trend
If E and S stage a gorilla theatre and S has a fake gun and C comes and sees S and
kills S to protect E?
Under trad approach: not priv b/c no threat and E knows that
Trend: Yes priv b/c RPP would think threat
Trend is a much larger privilege
POINTS
Trend: RPP test to determine the privilege to defend others
Theres a general trend to let RPP test determine all privileges to use force

Defense of Habitation (where people live) (doesnt mean personal property)
MITCHESON: guy sold a car to another but said tires werent included; D shot
deceased when deceased attempted to steal the wheels from Ds fathers car from
Ds sisters home.
defense of habitation allows deadly force to protect whatever place defender is
peaceably occupying
Ct says in this case, you get instruction. Entitled to use deadly force when
occupied, but not habitation when unoccupied. (Not where ppl dont usually sleep
like tool shed)
RULES:
Dont conflate the priv to defend an unoccupied habitation with the prvi to defend
an occupied one
Dont mix up privilege to defend real property (habitation) with privilege to defend
what is inside your property (personal property).
Must be occupied
Trend: does not allow deadly force to defend an unoccupied habitation
Theres a split of authority re using deadly force to defend an unoccupied habitation
Trad: privileged to prevent a felonious attack on an occupant
Trend: privileged if reasonably necessary to prevent occupants death of SBI
(which is a felonious attack)
Sounds like the same thing outcome is the same.
POINTS
Trend: the defense of habitation includes whatever place the defender is peaceably
inhabiting.

DEFENSE OF PERSONAL PROPERTY
DONAHUE: D owed victim money for clothes he bought from victim. When victim
went to Ds home to collect the money, D gave victim the money, then demanded it
back. When victim refused, D choked him until he gave him back the money
defense of property allows force to immediately recapture personal property
You can use reasonable non-deadly force to immediately recapture.
Jury has to determine: whether choking is deadly force. D claims not trying to kill
him just trying to get his stuff back. Jury to determine if amount of force was
deadly v. non-deadly if reasonable.
How much time allowed before recapture is NOT immediate?
Momentarily interrupted possession
A month is too long
Immediately
RULE: Non-deadly force is privileged for immediate recapture of personal property
HYPOS
C walking in Horton and feels someone brush up against him and steals his wallet.
C shoots X in the leg
Not permitted b/c deadly force is not reasonable for personal property
What if C grabs him by arm and slams into wall to get wallet?
Depends, size of person probably privileged and non-deadly
C grabs X by shoulders to get wallet?
Force used was privileged, reasonable
C catches him and X gives his wallet and C grabs arm after
Privileged using citizens arrest privileges arrest crime prevention defense
POINTS
Reasonable non deadly force is priv for immediate recapture of personal property
CEBALLOS: trap gun case that shoots boy in face
privilegescan overlap
RULE: Cant use deadly force to defend personal property.You can only use
reasonable force
So, if someone is getting into your garage if someone is in there stealing one of
your cars, priv to show gun?
Yes, b/c not actual use of deadly force.
Can C shoot at burglars kneecap?
No, b/c that is deadly force. But if you could argue fear he would come after you,
then can try self-defense, defense of others, etc. All privileges should come up.
But alone, not priv to protect cars with deadly force.
POINT
Various privileges to use force can overlap
Personal property may not be defended by deadly force.
ENTRAPMENT
BARAZZA: Undercover cop kept bugging D, contrary to his demands to stop, for
some heroin. 2 different stories here acc to D, he said that he is being harassed.
Important when determining entrapment.
entrapment defense: subjective test to determine Ds predisposition
entrapment defense: objective test to determine excess government involvement
Here, ct takes min approach, which looks at amount of government involvement.
Only 7 states in this country use objective test.
RULES:
Min/CA: Entrapment uses an objective test to determine excess government
involvement
Show gov involvement so strong that a RPR would have been enticed into
committing a crime
When is there too much gov involvement?
Push me factor; ANDIf gov gives additional motive to D
Pull me factor; If gov makes crime unusually attractive; You wont get caught
42 states/Maj: entrapment uses a subjective test to determine ds predisposition
Prosecution only has to prove D was predisposed to commit the crime
HYPOS
C at favorite bar is undercover cop and hears casual remark about planned
burglary.
A D makes remark to C that he is going to rob this nice place, and C says he will be
look out. When comes to car, C flashes badge.
Validly claim entrapment?
Maj?
No, b/c he is predisposed
Min?
Not entrapment here.
If C makes remark to D
Maj?
Need to know more about D, whether pros can bring in conviction record. Could be
entrapment.
Min?
Clear case of entrapment here. Push me/pull me factors seen
C is homicide detective persuades someone to commit murder?
No cases on this, but commentators say there should be no entrapment defense;
and cop should be prosecuted.
POINTS
Maj: the entrapment defense uses a subjective test to determine Ds predisposition
Min: the entrapment defense uses an objective test to determine excess gov
involvement
Neither approach (SEE SLIDE) for rest
ATFQ could a rational trier of fact validly conclude guilt beyond a reasonable
doubt the jury believes all the facts written in the fact pattern INFER BUT DO NOT
INVENT; ALL RELEVANT CRIMES AND DEFENSES INCLUDING THOSE NOT
COMPLETELY SUPPORTED BY THE EVIDENCE
ORGANIZATION- read facts, before writing, scratch out time management OL, 1
word issue and 1 or 2 digit number, how much time to spend on that issue, then
dont miss an issue and dont waste time (IRAC), organize the crimes in a good
manner, PROS WILL ARGUE/DEFENSE WILL ARGUE, then theres slam dunks

chronological approach to getting all the eggs- arrange in order they appear in the
essay; discuss chronologically to see connections between facts; pair each defense
to the crime it relates!;
automatism, insanity, immaturity? tell him the defense 1
st
then tell him to look at
the bottom to see the defense bc it will get rid of all; start with CL 1
st
(most
severe)if not guilty of CL still list elements of stat burg but stil mention the
elements!
CLARIFICATION
ACCURACY
PERSUASION
if cant remember split of authority; mention theres a split and one side argues
this way

do not use the ? to say everything he wants to hear


Multiple Choice
Amy lives in Ca, and while out one night brings home a random sailor. Amy
becomes pregnant and doesnt want the baby. She goes to the clinic and has
an abortion. What can Amy be convicted of?
y Nothing**** not unlawful in CA and homicide isnt a crime
Jack attempts the armed robbery of Jill. Jill Screams and Jack panics and
runs away. In his rush to escape, Jack accidentally knocks down an elderly
gentleman, causing a blow to his head that results in his death. Which form
of malice can be used to charge Jack with murder?
y Felony Murder**** committed felony and guy died as a result
Chris goes into a store to purchase a new iPod. The store has three kinds in
varying prices. Chris notices that the boxes are not shrink wrapped, so he
puts the more expensive iPod in a cheaper iPod box, and purchases it. Chris
can validly be convicted of what crime?
y Larceny title does not pass because did not know what they were
passing title of****

Dennis walks into pattys pub, the bar he works at, and takes a large swig of
whisky. He continues to drink huge swigs of whisky until he has finished half
of the bottle and has become fairly drunk. A man walks into the bar and
asks to use the bathroom. Dennis tells the man the bathroom is only for
customers. He says he will buy a drink when he gets out, but when hes
finished the man refuses. Dennis hopes the bar and threatens the man with
the bottle, unless the man buys a drink. The man throws some money at
Dennis and runs off. What can Dennis be validly convicted of?
y Robbery****
I am planning on robbing a bank; at what point can I validly be convicted of
attempted robbery? (Choose all that apply)
y Drove to the bank, and walked up to the door****
y Held up the teller and got all the money that I could hold****
Bob is driving down the freeway and has a heart attack, this is his first one.
He blacks out drives through the Hillcrest Farmers Market, killing and
maiming people on the way. What can Bob be validly convicted of?
y Nothing****
BOOK REVIEW 3/4/2011 11:53:00 PM
Amanda Luman Criminal Law- Professor Campbell M/W 1:15
I read both Trial & Error: Volume I and Trial and Error: Volume II. In all honesty, I
went into reading the books thinking I was just going to read what I needed to read and write
what I needed to write, but after actually reading the books I am amazed by what I learned.
Beginning as a 1L in January, my life has been a whirlwind of confusion along with self-doubt,
insecurity and days where Im ready to just throw in the towel. I started to forget why I was
here, and then I read your books. I realized I dont necessarily want to go to law school, I want
to be a lawyer! If anybody could skip through the law school process, I dont think there would
be any question that most everybody would do so. Reading your books helped me bring together
why Im in law school, I want to be the one that somebody calls in their time of need. I want to
be able to actually help better someones life and half-assing it to merely survive law school is
not the way to do so. Life didnt get easier after reading the books, but my priorities seemed to
have fallen into place. The books made me want to study harder and push myself to the limits so
that when the day comes where Im handed a case and somebody needs my help, I can do so
with full force.
I fell in love with the relationship you and Cut developed in Trial and Error: Volume I.
Cuts story made me feel sad at times but the two of you seemed to be the ying to each others
yang. I felt like I was along for the ride on his journey to freedom, I created my own character of
what he looks like and I could visualize the interactions between the two of you. His reassurance
and belief in you even when you didnt believe you had done your best made me feel warm and
fuzzy inside. In the media and on television, clients are typically portrayed as lying, scum of
the earth type people who are always guilty of something with the lawyers being there just to rid
the guilty of their crimes. Not to say that I believed that to be true, but it gives you a bad taste in
your mouth for those who are convicted of something when society places guilt on the innocent.
Cut showed that sometimes its your job to free those who are actually innocent. This story also
reminded me that eventually I wont be reading cases, my lawyering skills will have a possibly
life-changing effect for better or worse on my future Cut, who has placed his trust in me and
believes that I can properly defend him. Who knew cops would lie about such things that would
have a major effect on someones life?! (please note the sarcasm) My favorite part of the book
was what you said at the bottom of page seventy-two about your relationship with Cut. It made
me see that for the majority of the time you will be defending a clients actions, but that
shouldnt be everything you get out of the relationship between you and your client. Your
ultimate aim may be to help the person but let them help you as well, let them show you how to
stand strong in the case of adversity when you believe yourself to be helpless. I love how you
allowed yourself to bond with this man and admit that you got so much out of a relationship that
many lawyers would probably not. I liked how the inspirational effects had a true effect on your
lawyering skills and witnessing how this defendant stood strong lingered in your life. You and
Cut superseded the client-lawyer relationship and transcended into buddies who wanted the best
for each other while not seeing the labels society placed on you; you were people helping people
at that point and I believe thats what being a lawyer is all about.
A few other things that struck a chord in me is that justice doesnt always prevail, you
can only do your best as a lawyer and the court wont always rule in your favor but thats just a
part of being in the position of ritualized battle. The quote from page ninety-three, Sometimes
freedom lawyering lends little satisfaction beyond knowing you stood up to power, tried to ply a
little justice, simply told the truth, is a motto I hope to live by when I get into the field of
lawyering.
The difference between Trial & Error: Volume I and Trial & Error: Volume II is that I
read the first volume fairly early in the semester and I read the second volume later in the
semester and I couldnt help but think to myself, I actually know the elements to the crimes hes
talking about! It was a minor epiphany that Im actually learning more than I thought. On the
flip side of you freeing an innocent man in Volume I, here you were in the opposite position of
convicting an innocent man. This made me re-think my wanting to be a criminal attorney and I
found myself left with so many questions to think about. Could I live with myself had I
convicted an innocent man? Would it haunt me? Where do you draw the line of doing whats
popular and doing whats right? For you, it was easy. As a lawyer you will always want to
win if you take the nanny-nanny-boo-boo approach to lawyering, but that might not always be
the right road. You had your conviction in your hand, you won, game over, but you made the
choice to free a man who you later found out to be innocent even though the three people above
you said not to do so. You stood your ground and acted on what was right and risked your job,
or even possibly your reputation to do so. I hope I can do the same thing in the future. I like to
win and typically losing is not even an option, I would rather fight to the death before I can admit
that Im wrong. Although I think that is definitely a great mind frame to be in when wanting to
be an attorney, will I be able to right the wrongs for the sake of losing? I would love to say
absolutely yes but Ive never been in the situation, I can only hope that I do just as you did and
right the wrongs. What would happen if nobody freed those who were innocent, wed have the
wrong people in jail for much longer than we do now and systems put into place, such as the
California Innocence Project, would not exist. The innocent would rot along with the guilty. On
a less depressing note, as nutty as a sweater full of squirrels literally made me laugh out loud!
Let me end this by saying that I love how you refer to your inner self as fighter and let him
come out and suppress him at the appropriate times. Your word choice was enchanting; it made
the books come off of the paper and dance. I appreciated the details and specific way you said
things because they really made a difference in reading the books and turned the stories into
more of an experience. I learned a good bit about logically thinking; one example being how
you used the cold weather outside to determine that the coat was Camrocks because he would
have needed the coat to go to the house. I thought to myself, well duh that makes sense, but I
hope I can think on my feet like that and use whats around me as tools to prove my point. Its
still up in the air as to whether I definitely want to go down the road of criminal law as a
specialty, but it was nice to see the opposing sides of winning versus losing and convicting the
guilty versus freeing the innocent. Thanks for the insight from these books. Im going to send
the books to my grandfather, he always tries to give me big books about law situations but I
dont really have time to read them right now. I know hell appreciate reading books by
someone who is actually teaching me material as well. Looking forward to Volume III.