Criminal Law Ouline

Criminal Law 2008 Fall – CHAVEZ of 61 Elements Chart and Outline

INCHOATE CRIMES- Specific Intent crimes

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category solicitation conspiracy Attempt

Elements of Crime

AR

1. Encouraging, aiding, abetting, or ordering another person to commit a crime

1. Agreement b/w 2 or more people [4. Some jurisdictions require an overt act – but not necessary for substantial step.]

1. Overt act in furtherance of that intent (beyond mere preparation).

MR

2. W/ the specific intent that the other person commit the targeted offense

2. An intent to enter into an agreement3. An intent to achieve the objective of the agreement.

2. Specific intent to commit the crime

Defenses

1. Impossibility no defense2. Withdrawal or renunciation no defense3. Exemption from intended crime is defense

Wharton Rule - If you have just the amount of people needed for crime, okay, but more people – screwed

Impossibility – 1. Factual – not a defense2. Legal – can be defense

Withdrawal/Abandon

None available Can only stop tab – how much crime has been committed yet

No renunciation or bail-out for attempt.

Merger Merges – into conspiracy (once there is an agreement)

Does not merge: conspiracy + Merges into the crime once completed.

Vicarious Liability

N/A Pinkerton Doctrine Co-conspirator responsible for any crime committed by other members if done in furtherance of the crime and is reasonably foreseeable.

N/A

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ElementsOf Crime

1. Asking another person to commit an offense2. Or request other person to do some act that would establish the other person’s complicity in the offense.3. W/ purpose of promoting or facilitating commission of solicited offense

1. Agreement (unilateral conspiracy)2. Engage in conduct that is crime, or attempt or solicitation to commit such crime3. Agrees to aid person(s) in planning or commission of crime, or attempt or solicitation to commit such crime. 4. Overt act is needed.

1. Purposely engages in conduct that would constitute the crime2. Acts w/ a purpose to cause the criminal result3. Or purposely does an act constituting a substantial step towards the commission of the offense.


INCHOATE CRIMES

Test

Test: MPC – “Substantial Step Tests”

Common Law – Proximity Test – how close you came to completing the offense.- Also: Physical proximityDangerous proximity Indispensable element testProbably desistanceAbnormal StepUnequivocality test

Defense

1. Uncommunicated solicitation (person being solicitated never got it)

1. Complete and voluntary renunciation; 2. D thwarts the success of the conspiracy

Abandonment available if: 1. Fully voluntary2. Complete abandonment or prevents from being committed

Withdrawal/Abandon

1. Renunciation of criminal purpose - Affirmative defense - Must persuade person not to do the crime commissioned.

See Defenses

Must have also contacted all members of conspiracy of renunciation and/or called cops

See Defenses

Merger

Merges – into conspiracy (once there is an agreement)

If crime is completed – conspiracy merges Conspirator may not be convicted of both conspiracy and target offenses, unless the conspiracy has a continuing code of conduct (no withdrawal and crime has not been committed)

N/A – once crime is completed, crime is no longer attempted.

Vicarious Liability

N/A Doesn’t buy into PinkertonWill hold you liable only for crimes you’ve participated in. No vicarious liability

N/A


INCHOATE CRIMESN

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Notes Mere solicitation – not an attempt to commit the crime solicited Both unilateral – doesn’t matter if person accepts or not

- Terminates when: 1. Withdrawal of crime2. Completion of crime - Legislative statute – can’t be a conspirator if there is a law intended to protect that person (17-year-old girl can’t be convicted of statutory rape)


THEFT

Crime Elements Method TitleActivity Intent

Larceny -Trespass-Taking and carrying away -Personal property of another

-W/ intent to permanently deprive another of property- taking during the time they needed it under CL is also permanently deprived. -specific intent crime- being drunk can be a defense esp if involuntary

-W/out consent -None

Robbery -Felonious taking and carrying away-Personal property of another-By force or threat of force-From the person or in the immediate presence of the victim

-W/ intent to permanently deprive another of property

-W/out consent -None

Larceny by Trick

-Taking and carrying away-Possession of another-By trick or device

-With the intent to permanently deprive another of property

-W/ consent obtained by fraud

-None

Embezzlement -Fraudulent Conversion -Of personal property of another-By one already in lawful possession

-With the intent to defraud - if servant master relationship you only get custody not possession would be larceny- do not have to have intent to deprive forever

-Use of property in a way inconsistent w/ terms of trust

-None

False Pretenses

-Misrepresentation of a present/past fact-Knowing it is false-Which induces the Owner to part with title

-With the intent to defraud -W/intent to defraud

-Title passes


HOMICIDE Mens Rea (MR) Intent, state of mindActus Reus (AR) The act: homicide – voluntary affirmative act of killing – or – failure to act (where there is a duty) that causes death. Malam in se A crime that is inherently wrongMalam prohibitum A crime that is wrong b/c the law said so.

Homicide killing of a human being by another (AR) Justifiable Homicide Killing of someone that is sanctioned by the law (Examples: war, executions, self-defense) Excusable Homicide Homicide that is not approved, but it is forgiven. (Example: infancy (?), involuntary intoxication (s/o slipped a drug into your drink, insanity)

Crime Common Law California - § 189 MPC

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D Unlawful killing of another human being w/ Malice aforethought Homicide committed w/ malice No degrees in MPC!!!

1˚ Homicide committed w/ malice. Cool calculation, careful preparation Elements: - Willful - Premeditated- Deliberate - Calm, cold-blooded- Intentional

No degrees in MPC!!! Purposely, knowingly or recklessly Reckless manifestation of extreme indifference to the value of human life.


HOMICIDE MR Malice aforethought

a) Intention to kill another human being b) Intention to inflict grievous bodily injury c) Extremely reckless disregard for human life “depraved heart” d) Intention to commit a felony during the commission or attempted commission of when a death accidentally occurs. Deadly Weapon Rule: intentional use of a deadly weapon authorizes a permissive inference of intent to kill. A deadly weapon is any instrument – or in some limited circumstances, any part of the body – used in a manner calculated or likely to produce death or serious bodily injury. Ex.: Firing bullet into crowed room; champion boxer fighting beats up a tavern owner, speedboat into crowd of swimmers.

Intent to inflict death Premeditation: “Thought before acting to the idea of taking a human life and reaching the decision to kill” - No time too short ** (Under this explanation: every murder would be 1˚) - U.S. v. Watson: “it’s not worth it” - No need for D to “maturely and meaningfully” reflect upon gravity of act. - Anderson Factors: 1. Planning 2. Motive (prior relationship) 3. Manner (preconceived design) a. Weapon of Opportunity (usually not 1˚) b. Suggests that there had been no prior thought, killer used what was nearby (If YES to a/b not 1˚)

Deliberation: “Consideration and reflection upon the preconceived design to kill; giving it second thought.”

(See above description)


HOMICIDE AR Inflicting death upon another person Inflicting death upon another

person Also: homicide using one of the following methods: PoisonExplosive DeviceTortureLying in WaitArsonDestructive Device

Homicide.

D (No degrees under common law!!)

2˚

Spontaneous, hot-blooded, impulsive No Premeditation/deliberation - “Abandoned/malignant heart All other murders not under 1˚; other un-enumerated felonies that are inherently dangerous

(No degrees in the MPC!)

MR No premeditation/deliberation Four ways to prove malice1. Intent to kill 2. Intent to commit s/b/h3. Extreme recklessness4. Felony murder

AR Anderson factors: 3) Was there a weapon of opportunity present – shows that person did not have time to plan out murder w/ proper weapon (ex. Golf club)


HOMICIDE Felo

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D - Homicide during the commission of an enumerated crime: MayhemRobbery RapeArson Burglary

1˚

- Homicide during the commission of an enumerated crime: BurglaryArsonRape/Sexual Assault Carjacking (§215) MurderRobberyKidnappingTrain-wreckingDrive-By

- Homicide during the commission of an enumerated crime: BurglaryRapeRobberyArsonKidnapping

2˚ - All other inherently dangerous felonies not enumerated in 1˚

MR MR for the homicide is replaced by the specific intent to carry out the felony.

(See common law) (See common law)

AR Attempt or the commission of the enumerated felony.

(See common law) (See common law)

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D An intentional killing distinguishable from murder by the existence of adequate provocation; i.e. a killing in the heat of passion, w/o malice.

While intentional killing – mitigated because it is justified to an extent.

Intent to kill w/o malice (comes on because of circumstances)

Sudden quarrel or heat of passion

RECKLESS MANSLAUGHTER When a homicide would otherwise be murder, but for the influence of EED or mental disturbance (MPC doesn’t tell us what the triggering event is), or, Is committed recklessly. Must view situation from the D’s point of view.

MR - Intentional Killing w/o malice (see above) (See: P [Passion]) Recklessness (MPC) Actor must be aware that he is taking a substantial and unjustifiable risk to human life.

AR Homicide Homicide Homicide committed recklessly


HOMICIDE P Heat of Passion Doctrine

1) Must have been such that it would arose sudden + intense passion in the mind of an ordinary person such as to cause him to lose control2) D must have been provoked3) No sufficient cooling time4) D must have cooled off5) Provocation must have caused the killing.

Provocation: mere words are not enough

Adequate provocation: - Finding one’s spouse in bed- Mutual combat- Assault and battery- Injury to abuse to a relative- Illegal arrest- If words are accompanied w/ intent to injure.

Imperfect Self-Defense:- D has an honest but unreasonable belief in the necessity to defend oneself against imminent death. Becomes involuntary manslaughter if: 1. Honestly believed needed deadly force2. Honestly believed reasonable force used

Heat of Passion Doctrine(See under common law)

Adequate provocation as seen by the reasonable person (Based on the MPC) – but instead of subjective, is objective – would a reasonable person under the acts commit the homicide under the heat of passion?

Verbal provocation may be sufficient to cause extreme distress

Extreme Emotional Disturbance (EED): MPC 210.3 Homicide that would otherwise be murder is committed under influence of extreme mental or emotional disturbance for which there is reasonable excuse. Or, committed recklessly.

Look at POV of the D’s situation under the circumstances as HE believes them to be.


HOMICIDE In

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D Unintentional killing w/o malice that results from failure to appreciate substantial and unjustifiable risk of harm. I. Criminal Negligence - Criminally negligent or reckless crime (Objective awareness of the risk – deviation from what reasonable person would do)

- Ex. Nightclub: lock emergency door: is cognizant of possible danger, ignores it. People die! - Ex. Guy leaves bay in car. - Ex. Skiing fast ploughs into person.II. Unlawful Act - Misdemeanor manslaughter – a killing in the course of a misdemeanor - Malam prohibitum/in se: death must be a foreseeable, natural consequence of the actions.

If someone killed during a felony that is no enumerated, it is involuntary manslaughter under common law.

Unlawful act, not amounting to felony, or lawful act which might produce death in an unlawful manner, w/out due caution or circumstances.

Vehicular ManslaughterDriving car in lawful act which might produce death in an unlawful manner and w/ gross negligence. W/o malice aforethought, in violation of drunk driving laws, and killing was proximate cause w/ gross negligence.

Gross Negligence Criminal negligence

MPC renames this as NEGLIGENT HOMICIDE When it is committed negligently.

MR Subjective awareness of the risk W/o malice Negligently

AR Criminally negligent act that deviates from the reasonable person standard.

Partaking in act that constitutes gross negligence and results in death.


CAUSATION Actus reus of a crime is composed of 1) a voluntary at 2) that causes 3) social harm. Causation is an implicit element of all crimes. Causation may be proximate or actual. Theory Definition Example But-For Causation D’s conduct must be the cause-in-fact of the

result; i.e. the result would not have occurred “but-for” D’s conduct

Regina v. Martin Dyos (scuffle at party, dude gets rock to the head)

R. v. Benge (prisoner as foreman working on R.R.) But for D’s reading the timechart wrong, RR tracks would have been laid down despite everyone else’s contributory negligence. If an actor’s negligence is the primary cause of a wrong, then it would not be material that others, also by their negligence, contributed to cause it.

Violent Acts Where the death was not due to a corporal blow or injury to some hostile demonstration or overt act directed toward the person of the decedent, there is no criminal liability unless death or serious bodily harm was the probable and natural consequence of an indirect, unlawful act of the accused.

Common Law: sufficient for a blow or strike against the V by D b/c back then, no scientific background to help figure it out.

Hubbard v. Commonwealth (jailer’s heart attack)

Foreseeability When the natural and continuous result could have been foreseen by the actor, and which w/o the original act, the result and the death would have never occurred.

“Natural and probable” result – proximately caused.

Commonweath v. Rhoades – arson causing death, foreseeable result.

Intervening Acts An intervening act will shield the D from liability if the act is a mere coincidence or is outside the foreseeable sphere off risk created by the D’s act.

Commonwealth v. Root (Drag Racing) Conduct of the D was not the proximate cause – the V had swerved and caused his own death.

Duties The law recognizes that some other some


CAUSATIONcircumstances, the omission of a duty owed by one individual to another, where such omission results in the death of the one to whom the duty is owning, will make the other chargeable w/ manslaughter. Must be a duty imposed by law (relationships) or by contract. Duties of mere moral obligation are not binding by law. If a person who has a relationship w/ another, and knows the person to be in peril, willfully and negligently fails to make such reasonable and proper efforts to rescue him as he might have done, w/o jeopardizing his own life, or the lives of others, he is guilty of manslaughter by the reason of his omission of duty, the other person dies.

DEFENSESDefense Common Law California MPC

I n D Mental disease/defect recognized by the DSM


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Test

McNaghten Test(The cognitive/knowing test) Person is legally responsible if they know: 1. The nature and the quality of the act; understand the consequence2. The act was (morally) wrong

ALI (MPC) Test1. Lacks capacity to appreciate the criminality of conduct2. Conform his conduct to requirement of the law.

Self

-Defe

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D(perfect)

(See below) Apparent urgency, inherently dangerous

Can use of force when reason to think that force used against you is unlawful.

Elements

Self-defense can be used: 1. Imminent threat2. Reasonable Response3. Proportionate4. No alternative force

Deadly force: 1. Threat must be realistic – imminent threat 2. Response must be proportionate3. Retreat- Castle Doctrine: - Must retreat if not home - Don’t have to retreat if attacked in home 4. Aggressor using self-defense - If they withdraw from fight, regains right to use self- defense - Sudden escalation from minor to one using deadly force.

1) Reasonable belief by the self-defender2) Immediately necessary to protect himself3) No retreat if at home/work4) Estimable response – actor makes the estimate of force to be used.

Im-perfectDefense

Imperfect self-defense: - Honest belief that self-defense was necessary, but it was unreasonable- More force than reasonably necessary


Defe

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Used by law enforcement – deadly force can be used (by law enforcers) - To prevent a threat of death s/b/h to innocent people - When person is escaping from prison/jail/other institution - Suppress mutiny after warning deadly force w/b used- Arrest for a felony where there’s s/b/h or death risk. - Response must be proportional. - Exception: when others are at risk.

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D - A justification defense- Choice of evils- Seen as more noble than duress: person is making a decision and evaluated the lessor of two evils – argue that you avoid a great consequence and society agrees with you.

Necessity/Choice of Evils §3.02 - The harm or evil sought to be avoided by such conduct is greater than sought to be prevented by the law defining the offense charge. - When the actor was reckless or negligent in the act bringing about the of this defense, this defense is unavailable.


Elements

Need: 1. Choice of evils2. No alternatives3. Immediate threat4. Defendant chooses the lesser evil 5. Can’t have created the necessity. [6. Civil disobedience]

Need: 1) Can use for homicide if fewer people would die. 2) Harm avoided is greater than the harm done. 3) No specific prohibition by laws. 4) Causal connection to the prevention of the greater harm [5) Can’t have acted recklessly or negligently – D must not have contributed to the necessity]

Differences b/w CL: - Can use for homicide- No imminence requirement

Du

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Excu

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Where the D performs an act under the imminent threat of serious bodily harm or death by another. - Human- Genuine – imminent - Self-Preservation (must do act for fear of s/b/h or life) - Escape is not possible (retreat) - No guilt – cannot be reckless or negligent

Where a person of reasonable firmness could not have resisted. Duress can be a defense for homicide.


COMPLICITYAiding: Physical assistance, Information Abetting: As simple as verbal encouragement,

causing a person to actCommon Law Modern Law/California MPC

Definition Designed around an analysis of where you are at the time of the crime (where is everyone at the time of the crime)?

Focus is on who is participating to assist the crime.

Knowledge + Act + Criminal Intent

A person is an accomplice of another person in the commission of an offense if, w/ the purpose of promoting or facilitating the commission of the offense, (see: AR)

Actus Reus - Aid or encouragement to the person(s) committing the crime. - Inaction in an activity can be part of the crime (Ostrich rule if a person willfully tries to avoid gaining knowledge of a crime – then almost the same as knowing something is going to happen.)

Act - He solicits the other person to commit it; - Or aids or agrees or attempts to aid the other person in planning or committing it, - Or (having a legal duty to prevent the crime) fails to make the proper effort to prevent it.

Mens Rea Share the specific intent or purpose of the principal for the crime to occur.

Criminal Intent + Knowledge Intent to commit the crime

Classifications Principal 1˚ Principal 2˚ Accessory-before-the-factAccessory-after-the-fact

Everyone is classified as a principal

Depends: see who is doing what.

Person is not an accomplice if they are: a) Victim of offenseb) Offense is so defined that his conduct is incident to the commissionc) Terminates his complicity prior to the offense occurring

Vicarious Liability

If the accomplice aids in the commission of an offense, he is liable – see how far the person has aided in that particular aspect of the crime.

Miscellaneous Dupes: person who gets talked into committing the crime – true dupe doesn’t know he’s committing a crime – he does the

Perpetrator by the means of using an innocent person – MPC looks to see what one has done and holds them accountable.


COMPLICITYact, but there is no mens rea. - Evaluate: do they know?!

Common law: using a person that is too young to be accountable, person setting them up can still be liable.

I. Sources of Criminal LawA. Statutes

1. modern approach


a. criminal prohibition must have some form of legislative mandate2. evolution of common law

a. common law may provide grounds for civil action, but crimes must fit under specific legislative statutes3. PRINCIPLE OF LEGALITY

a. if prosecution is viable, give defendant a chance to find out what they did wrong (i.e. trial)b. informs people of punishable/forbidden behaviors

4. gives constituents venue to fill in gaps and responds to things they view as lacking in some certain of the law5. MODEL PENAL CODE (formulated by American Law Institute in 1962)

a. Drawn in response to the lack of uniformity of state level penal codesb. Substantially adopted by many statesc. Preeminent source of guidance in revision and reform of substantive criminal law

6. often vague or ambiguousa. gives court broad discretion in interpreting statutes

i. courts may not overrule statutes except on constitutional groundsB. Precedent

1. includes judicial decisions at all levels, state and/or federala. courts interpret what seems to be present in statutes/laws

2. stare decisisa. courts tries decide cases that is consistent to established law

i. try to uphold a consistent interpretation of the lawii. seek to provide a rule or standard of decision binding in future cases

3. judges only concerned with relevant similarity (rules, justifications of rules, key facts)a. try to adhere to the rationale of previous cases

4. may be overruled based on changing times/societal normsC. Constitutions

1. both federal and state usually have similar civil right provisions that may be thought to set boundary conditions for just punishment (due process clauses). CB 14

a. may invoke arguments that conduct cannot be punished unless defendant had noticed it was criminali. must be based on conduct, not characteristics, desires, thoughts, etc.ii. punishment must be pursuant to precisely drafted statutes

2. requires prosecution take on the burden of proof beyond a reasonable doubt.

II. The Criminal Act


A. Actus reas: crimes require an act1. Proctor: Δ cannot be punished for an “unexecuted thought”

B. criminal acts must be done voluntarily (MPC § 2.01)1. unlike torts where one can be held liable for accidents/nonvoluntary acts that result in harm to someone else, criminal acts must be proven to be done voluntarily because the punishment may be the loss of liberty because of the actor’s choice to partake in the behavior.2. by requiring a specific act, the law allows a discussion of unlawful ideas, thoughts, etc.

C. Requirement of Voluntary Act1. criminal act must be done voluntarily to hold one criminally liable2. punishing involuntary acts contradicts the purposes of criminal liability

a. deterrence: involuntary acts cannot be deterred with the threat of punishment under the lawb. retribution: it would be wrong to punish one for actions that he had no control over.

3. mens rea vs. actus reaa. mens rea: able to distinguish the criminality of action(s); actus rea: capable of making the distinction, but unable to control or unconscious of his body (e.g. automatism, seizures, convulsion; non-volitional)

i. People v. Grant: insanity (unable to distinguish wrongfulness of acts) is not same as automatism (able to distinguish between right and wrong, but unable to control body movements) CB 131

(a) Could be held responsible for drinking while knowing of his medical condition similar to Decina(i) Made a conscious decision to drink; was a voluntary act

(b) his condition does not preclude his ability to commit the actii. People v. Decina: choosing to drive while aware of that he was subject to epileptic attacks and seizures was a voluntary act. He knowingly disregarded the risk.

(a) Dissenting opinion: should only look at specific point, not earlier in the timeline.4. MPC § 2.01(2) – A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable

D. Possession (what is the “act” in this crime?)1. Defined: MPC § 2.01(4), CB 1170

a. MPC allows one in possession to relinquish the thing if done within a reasonable time2. most statutes require some degree of knowledge, but not knowledge of the law (ignorance of the law is no excuse)

a. pertaining to possession, “possessor knowingly procured/received the thing…or was aware of his control thereof…”b. “willful blindness” – overlooking some things that would reasonably lead to the questioning of the legality of an act


i. can substitute for knowledge – Valot (1971)3. requires dominion and control, not ownership4. falls under a branch of “intent” (general intent)

a. accepted way to prosecute one’s control of an illegal object/substanceE. Omission (Failure to Act) – failure to act or omission of duty

1. may prosecute in absence of an act2. policy and culture play a big role in this area

a. usually doesn’t play a big role in criminal law as it does in torts3. Traditional status of relationship can raise an obligation to duty (can qualify for prosecution for failure to act); MPC § 2.01(3)

a. Status/relationship (e.g. parent/child, spouse, etc.)i. Jones v. U.S.: baby’s care was not Jones’ responsibility; she was not natural mother nor did she have contract to render care – had no duty

(a) Ct reversed her trial court conviction(i) duty must be a legal duty, not just moral obligation. CB 122

b. by contract (agreeing to take on some responsibility)c. statute – duty imposed by legislatured. peril rescue/ “seclusion”: running off others’s help; failure to complete the task can question if actor’s omission is actionable because the partial action could have convinced other potential caregivers that help was already being administered.

III. Mens Rea (The Guilty Mind) should have known.A. Crimes usually made up of two components

1. actus reas: actual act or commission of 2. most crimes also require some sort of mental state while executing the act; mens rea

B. trying to identify the characteristics/qualities that constitutes mental states worthy of punishment when act is carried out.1. linking punishment to moral blame by conditioning liability on bad thoughts

C. MPC has made attempt at implementing consistent vocabulary1. many jurisdictions have not adopted MPC’s approach to mens rea2. does not classify elements; instead actively attempts to determine material element of each offense into three categories (i.e. does not classify into “general” or “specific” intent

a. conduct/actb. Attendant circumstances – actions that can be taken within context, then might not have a crime


c. Results – if certain results are not achieved, then may not be a crimeD. “General intent” vs. “Specific intent”

1. distinction ambiguous; definition of the terms may change depending on situation2. definition of a crime must serve as a constant3. GENERAL INTENT

a. In general, only concerned with the act, not resulti. Having knowledge of awareness of the nature of the voluntary act

(a) Rape is a general intent crimeb. easier to convict for general intent crimes

4. SPECIFIC INTENTa. Aiming to achieve some sort of purpose/result; working toward achieving some specific outcomeb. Addresses a more sophisticated intent to achieve a specific result

i. Attempted crimes require the highest level of mens rea to be proven(a) “attempted rape” is a specific intent crime

5. Four different interpretations of distinction between “specific” and “general” intent. CB 183-184a. “specific intent”: refers to mental element of any crime; “general intent” refers to broader question of defendant’s blameworthiness/guiltb. “specific intent”: unexecuted intent to do some further act/ accomplish some further result; “general intent”: intent to do the proscribed act (actual crime)

i. under this version, specific intent crimes often contain a “lesser included offense.”c. “specific intent”: must prove the defendant intended a particular result, or intended that his action have a particular legal consequence; “general result”: presumes that actor intends the “natural” and “probably” results and the “legal consequences” of his conductd. “specific intent”: purpose/desire; “general intent”: knowledge/recklessness/negligence

E. MPC established a four word vocabulary to describe every mental state. CB 212; MPC § 2.021. generally falling under specific intent:

a. purposely: the actor’s purpose of taking actioni. conscious object to engage in conduct of that nature or to cause such resultii. actor is aware of the existence of such circumstances or believes/hopes that they exist

b. knowingly: an awareness of circumstances; practically certain that his conduct will produce a certain result. “callousness” vs. “disregard for the results”

i. he is aware that the conduct is of that nature or that such circumstances existii. if conduct involves a result, awareness that it is practically certain that the conduct will cause such a result.

intoxication is a defense to specific intent crimes but not to general intent crimes


2. falling under general intent:a. recklessly: aware of the risk, but consciously reduces the risk; has rationalized taking the risk, disregarding something analytically known

i. consciously disregards a substantial and unjustifiable riskii. the disregard of risk involves gross deviation from std of conduct of a reasonable person

b. negligently: should be aware of substantial unjustifiable risk; clueless but dangerous nonethelessi. failure to perceive the risk must involve a gross deviation from reasonable std of care.

F. Strict Liability 1. liability imposed for faultless conduct

a. narrow distinction between negligence and strict liability focuses on whether the defendant’s awareness is a failure to meet the objective standard of the reasonable person (CB 218)

2. by having consequences that are unpleasant, then people will try very hard to take necessary precautions (higher level of responsibility)

a. largely regulatory in modern times3. if society creates regulations, without mens rea then offense are not crimes but violations 4. does not let the mental state of the defendant to be applied – just show that the act was done

G. Mistake of Fact1. general intent crime

a. has awareness of the nature of the voluntary acti. People v. Bray: defendant knew the law, but didn’t think that it applied to him because of the ambiguity surrounding his status as a felon

(a) A reasonable mistake of fact can be accredited (his status as a convicted felon)(i) There was no information to contradict defendant’s conclusion that he was not a convicted felon (was granted rights and privileges not afforded to felons; filled out official forms and indicated he was not sure of his status for years.)

ii. Long v. State: defendant based his decision to remarry before his first was annulled based on erroneous information given to him by his attorney.

(a) Actually checked with attorney to confirm that his first marriage was legally null. (i) Complaint was that he was deprived of his right to present evidence that he had consulted his attorney.

b. Relevant defenses: MPC § 2.04 “Ignorance or Mistake”H. Mistake of Law

1. specific intent crime


a. shows that actor had intent to commit the act, but was simply not aware of the specific crimei. ignorance of the law is not accepted when the have the mental state to commit the crime but not of the knowledge the degree of the offense

(a) ignorance can substitute the for the lack of mental state to commit the crimeb. People v. Baker: defendant Baker knew that his acts were wrong but did not know the degree of the offense (from civil to criminal)

i. knew all the important elements of his actions; at least blameworthy.c. State v. Cameron: though she may have been intoxicated when she committed aggravated assault, a “person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result” (N.J.S.A. 2C:2-2(b)(1)).

i. Cameron’s purposeful conduct was getting drunk specific intent

IV. BURGLARY – specific intent crime, don’t need actus reus to comitA. Defined: MPC § 221.1(1)B. Defined: CA Penal Code § 459C. Common Law: The trespassory breaking and entering of a dwelling house of another at night with the intent to commit a felony therein.

1. aims to prevent a precondition of the crime (entering the dwelling in order to commit a crime inside)2. a crime of habitation, not ownership (Peck)3. a specific intent crime

a. breaking and entering with the specific intent to commit a felonyi. People v. Tackett: by throwing the coat over victim’s head while he attacked her sufficient to show that he manifested the intent before entering the residenceii. State v. Peck: though defendant might have had ownership of the house, restraining order issued by court revoked his right to be on property. He violated the court order, entered property and committed assault on nephew.

4. requires less action than many attempted crimes; focuses on the intent of gaining unlawful entrya. focuses on mens rea, actus rea not necessary

i. extrapolate from defendants’ conduct (Creasy and Tackett)(a) based on their behavior and the logic of the circumstances, then legally sufficient to fulfill necessary elements.


(b) even if actor leaves without taking anything, is still liable for burglary because at the time of breaking and entering he had the necessary mens rea.

b. most “attempted crimes” require the actor to make a substantial step towards accomplishing the crime, burglary does not

D. Elements of Burglary1. “breaking”

a. any movement of barriers (e.g. unlocked doors, windows, etc.) is sufficient (Creasy v. State).i. climbing through an opening does not constitute “breaking”ii. opening must be created by Δ

b. “constructive breaking”: achieving entry by use of deception, or fraud, or violencei. force is no longer required

2. “entering”a. People v. Tragney: mere breaking does not constitute entering

i. tool used to gain entry must also be used to commit larceny to constitute entering3. “with the intent to commit a felony therein”

a. see discussion under “specific intent” subsection (a)E. Degrees of Burglary

1. CA Penal Code § 460a. every burglary of an inhabited dwelling (house, vessel, etc.) which is inhabited and designed for habitation is burglary of the first degree

i. all other kinds are burglary of the second degreeii. doesn’t require breaking, at night, house isn’t dwelling house.ii.

2. MPC § 221.1(2)a. burglary is a felony in the third degree, unless:

i. it is committed in the dwelling of another at night, orii. In the course of committing the offense, the actor purposely, knowingly, inflicts/attempts to inflict bodily injury on any one, oriii. is armed with explosives or a deadly weapon

(a) “in the course of committing the offense” occurs in an attempt to commit the offense or in flight after the attempt/ commission

F. burglary by instrumentality1. People v. Tragney


a. must prove that instrument was actually used to perform burglaryi. if not, then tool can only be used as proof for “breaking”

V. INTENTIONAL HOMICIDEA. Definition: the unnatural death of a human beingB. originally all homicides were considered as murder, carrying capital punishment

1. manslaughter and lesser degrees of homicide are a modern developmenta. all murders have “malice”

i. Malice defined: “an intention to cause, or a willingness to undertake, a serious risk of causing the death of another…based on an immoral or unworthy aim” (CB 347)ii. Malice Theory:

(a) an intent to kill/ cause death (formed the intent and took steps to complete it)(b) an attempt to do serious bodily injury/harm where the victim dies.(c) extreme recklessness w/respect to the risk of death – a callous indifference to the risk of possible deadly consequences

(i) not necessarily intent to kill, but conduct was so callous/extremely reckless that occurrence of death is no surprise

(1) attempt to show a mindset with a disregard for human life engaging in conduct that someone can spot a possibility of death without care

2. at common law, no distinction of degrees (MPC rejects degrees too)3. murder and manslaughter have intent element

a. mens rea (intent)is what distinguishes between manslaughter and murder; actus reas look very similar4. “transferred intent” – the attempt to kill A misses target and ends up killing B; the intention to kill A will transfer to B when defendant never really intended to kill B

a. a legal fiction

C. Murder* general def: an unjustified killing manifesting (1) purpose to cause death; or (2) intent to inflict serious bodily harm; or (3) extreme recklessness with respect to a serious risk of harm to another’s life, where the risky action manifests so unworthy or immoral a purpose as to suggest callous indifference to human life; or (4) (f-m rule) a willingness to undertake even a very small risk of death where the risky conduct is so unworthy as to establish guilt of a serious felony.

1. Model Penal Code


a. Murder (MPC § 210.2) – does not have varying degrees of murder; does not contain “malice”; places it under “specific intent” mens rea

i. criminal homicide constitutes murder when “it is committed purposely or knowingly; or ii. committed recklessly under circumstances extreme indifference to the value of human life…presumed if the actor is engaged or an accomplice in the commission/attempted commission of/flight from after committing/attempting to commit:

(a) robbery(b) rape/deviate sexual intercourse by force/threat of force(c) arson(d) burglary(e) kidnapping(f) felonious escape

iii. murder is a felony of the first degree punishable by imprisonment or capital punishmentb. ** REMEMBER **: express the type of recklessness it is under the MPC

2. CA Penal Code: divides murder into differing degreesa. murder defined: Cal. Penal Code § 187 – “murder is the unlawful killing of a human being…with malice aforethought”

i. “unlawful killing”(a) justifiable (lawful) homicide is not deemed unlawful

(i)some self-defense or police within scope of powerii. “malice aforethought”

(a) “aforethought” has no technical meaning; interchangeable with concept of malice(b) establishing “malice” element is sufficient to charge murder(c) varying degrees of malice (CA Pen. Code § 188)

(i) EXPRESS MALICE(1) when there is a manifested deliberate attempt to kill another human being – formed an intent to kill and took steps to complete the intent or,(2) attempt to do serious bodily injury/harm where the victim dies

(a) defenses: extreme provocation (parallel with MPC’s concept of “extreme mental or emotional disturbance”)

(ii) IMPLIED MALICE (= extreme recklessness)

§ 188: Express malice when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature


(1) no considerable provocation, or when circumstances “attending the killing show an abandoned and malignant heart” (i.e. extreme recklessness w/respect to the risk of death): see above under “Malice Theory”

(d) tends to divide murder1 into a mental state, a method of killing, or engaging in felonies/attempt felonies that result in death

b. First-degree Murder: requires premeditation and deliberation i. malice under CA murder1 tends to divide the commission into a mental state, a method of killing, or engaging in felonies or attempted felonies that result in death (felony-murder)ii. enumerated list:

(a) if perpetrated by means of a destructive device/explosive(b) knowing use of armor-piercing ammunition(c) poison(d) lying in wait(e) perpetrated by discharging a firearm from a motor vehicle intentionally at another person outside the vehicle with the intent to inflict death (drive-by)(e) or any other willful, deliberate and premeditated killing, or(f) committed in the perpetration of: (felony-murder is equivalent to malice)

(i) arson(ii) rape(iii) carjacking(iv) robbery(v) burglary(vi) mayhem

iii. for murder1, must have performed the killing or have necessary mens rea (intent to inflict sever bodily injury/harm)

(a) premeditation/deliberation(i) premeditation: planning: decision to kill with a chance to rethink it over – a form of specific intent(ii) deliberation: weighing the decision; turning over the thought in the mind; consecutive thought (should I? should I not?); reflection.

(1) can go quickly(2) law does not look to timeliness of decision; more looking for firmness and resolve to kill, however not determinative - U.S. v. Watson (1985)

Implied Malice: when no provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart (a.k.a. extreme recklessness


(iii) shows more than intent indicates character of actor(b) State v. Anderson, 742 P.2d 1306 (CA): set three things for determining culpability:

(i) planning(ii) prior relationship between killer and victim(iii) manner of killing

c. all other murders are Murder2 – Malice still requiredi. if only have intent to kill (malice), then only have murder2

(a) intent to kill insufficient mens rea for murder1 but enough for murder2(b) no serious provocation (extreme emotional disturbance/heat of passion)

ii. no premeditation/deliberationiii. for felonies not enumerated under murder1

D. Voluntary Manslaughter – no “malice” mitigating circumstances1. manslaughter was created in response by legislature to avoid having to kill everyone who committed murder

a. punishment’s purpose of deterrence not servedi. a recognition o the fact that one who kills in response to great provocation should be regarded as someone of significantly different character deficiency than one who kills without provocation (MPC commentaries on § 210.3 – CB 383); rage is less deterrable

(a) circumstance of situation looked at more than the moral depravity of the Δ2. manslaughter does not have “malice,” but mitigating circumstances

a. there was “adequate provocation” or honest belief that killing was necessary for self-defensei. may sympathize with Δ on some level, but cannot exonerate because he still committed a crime

3. MODEL PENAL CODE (MPC § 210.3)a. rejects “involuntary manslaughter”b. basically defined as murder with mitigating circumstances (reasonable excuses):

i. if committed recklessly (negligent homicide) or,ii. extreme mental or emotional disturbance

(a) MPC § 210.3(1)(b) reasonableness of explanation/excuse to be determined from the actor’s viewpoint of the situation under circumstances as he perceives them(b) “extreme emotional disturbance” = “provocation” under Cal. Penal Code

(i) legally permissible provocation: adultery blow/mutual combat/battery if Δ did not initiate the standoff; less clear: threat of physical attack (in extreme cases)/ unlawful arrest/violent or sexual assault on a close relative

MPC § 210.3 Manslaughter:(1) Criminal homicide constitutes manslaughter when… (a) a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the


(1) words alone not adequate provocation (common law)(2) historical trend has been toward relaxing these categorical rules

(ii) ct must understand why the defendant felt/achieved the emotional disturbance “from the viewpoint…he believes them to be.”

(1) very subjective approach(2) “actor’s situation”: not only the fact but also takes into consideration what/who is involved; People v. Berry

(iii) burden on prosecution to disprove provocation once Δ bears some plausible evidence of provocation

(1) most states require Δ to prove EED as an affirmative defense, by a preponderance of the evidence (CB 386)

(c) no cooling off time b/w provocation and reaction(i) must be continuous action; an interval b/w assault/provocation may be sufficient for rationale to kick back in then shows deliberate revenge (murder); CB 381; U.S. v. Watson, Ex Parte Fraley, People v. Walker

4. CALIFORNIA PENAL CODE (Cal. Penal Code § 192(a))a. manslaughter def’d: unlawful killing without malice or negligence (3 categories: Voluntary, Involuntary, or Vehicular)

i. Voluntary Manslaughter– intentional act in response to provocation(a) Δ acts upon sudden quarrel or heat of passion

(i) People v. Walker, Rowland v. State, People v. Berry

Voluntary Manslaughter- Provocation: specific categories

* mutual combat* adultery* battery* words (w/o violence) NO

- “cooling” time a big factor

Cal. Penal Code MPC

- sudden quarrel- heat of passion

- doesn’t distinguish “voluntary” manslaughter; only “manslaughter” distinction from murder- EEM- personal situation reasonable reaction ** recklessly = negligent homicide (with mens rea)

* MPC rejects involuntary manslaughter


VI. UNINTENTIONAL HOMICIDEA. necessary intent to kill/mens rea not present to convict under murder1

1. but harm was caused by defendant (causation)a. the Δ’s actus reas resulted in death

i. many defendants will respond that death was the result of an “accident.”b. type of act the individual engages in is more relevant than the mens rea

i. affirmative conduct not necessary; Welansky – did not start fire himself; Williams: omission of act2. may fall under involuntary manslaughter or murder2

a. how distinguish which crimes will fall under which categoryi. involves inferences and implications from the facts to determine mens rea of the crime.ii. type of act indiv. engages in more relevant than his mens rea

(a) manslaughter only requires “recklessness or gross negligence” not malice; Welansky; State v. Williams; Mayes – husband threw heavy beer glass at wife with no provocation, hitting the oil lamp and causing her to extensive burns which caused her death

(i) “extreme recklessness” = “abandoned and malignant heart” (Cal. Penal Code § 188) = equivalent “malice” under murder charge necessary for MPC (doesn’t have involuntary manslaughter)

B. MODEL PENAL CODE (CB 434 - 436) - § 210.3 Manslaughter1. § 210.3(a) treats reckless homicide as manslaughter

a. demands proof of conscious disregard of perceived homicidal risk.2. § 210.3(c) person acts recklessly with respect to the death of another when he consciously disregards a substantial and unjustifiable risk that his conduct will cause that result

a. nature and degree of risk must be such that, considering all the circumstances, its disregard “involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation…”

3. does not have involuntary manslaughter – cannot deter the inadvertent actor from risk creation. a. “liability for inadvertent risk creation is thus properly limited to cases where the actor is grossly insensitive to the interests and claims of other persons in society.”


i. liability for manslaughter cannot be premised on negligence(a) MPC punishes negligent homicide as an offense of lesser grade than manslaughter

C. Cal. Penal Code § 192(b) – Involuntary Manslaughter1. in the commission of an unlawful act, not amount to felony, or2. commission of a lawful act which might produce death in an unlawful manner, or3. without caution or due circumspection.4. Extreme recklessness vs. recklessness/gross negligence

a. prior offense taken into ksni. might have raised consciousness of riskii. disregarding information might constitute extreme recklessness

** DO NOT COMBINE NEGLIGENCE AND RECKLESSNESS IF SHOWING RECKLESNESS, MUST CONVEY CIRCUMSTANCES THAT THE INDIVIDUAL WAS AWARE OF THE RISK AND CONTINUED TO PROCEED (RISK WAS MADE CONSCIOUS TO ACTOR BUT DISREGARDED)

D. Vehicular Homicide1. most states treat vehicular homicide as involuntary manslaughter2. Cal. is different3. Cal. Penal Code § 191.5(a) “Gross Vehicular Manslaughter While Intoxicated”

a. the unlawful killing of a human being without malice aforethoughtb. in the driving of the vehicle

i. while in violation of the [drunk-driving] lawsc. killing was proximate result of the commission of a lawful act which might produce death in an unlawful manner and with gross negligence…

4. Cal. Penal Code § 192(c) “Vehicular Homicide” (except as provided in § 191.5)a. driving a vehicle in the commission of an unlawful act, not amounting to a felony, and with gross negligence; or…b. driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence

** “Gross negligence” shall not be construed as prohibiting or precluding a charge of murder…upon facts exhibiting wantonness and a conscious disregard for life to support a finding of implied malice, or upon facts showing malice, consistent with the holding of the Cal. SupCt. in People v. Watson, 30 Cal. 3d 290.i. can constitute murder2 per Watson (implied malice) CB 461.

5. § 191.5 vs. § 192a. § 191.5 requires intoxicationb. § 192 does not, but canc. “commission of a lawful act” = driving

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E. First-Degree Felony Murder (rejected by MPC)1. no intent to kill the victim; only intent to commit the crime – benefit of the doubt that the killing was unintended (unintentional, or an accidental/negligent killing)

a. “extreme recklessness” qualifies for a form of malice: (reckless act + mens rea = intent) implied malicei. enumerated felonies (most common: robbery, rape, burglary, arson, carjacking, kidnapping, train-wrecking) are all crimes against the individual that require personal confrontation

(a). victim’s reaction to the crime is unpredictable(i) their reaction has great potential to escalate the situation

2. “Theory” behind 1st degree felony murder: puts felons on notice that certain activites have great probability of resulting in death felonies are enumerated

a. declares that the felony is sufficiently dangerous per se that a person committing it can be viewed as accepting the risk of murder

i. may deter prospective criminals from committing the felony (deterrence element)(a) strict liability: circumstances of the crime are ignored(b) intent to do the crime transferred to intent for f-m

b. In CA, cannot be convicted of 1st-degree f-m unless one of enumerated felonies is being executed3. does not do away with “causation”

a. cannot be convicted under f-m without proving causation (that the felony caused the death) – People v. Stamp (CB 463): robbery accelerated Mr. Honeyman’s (victim) condition.

4. no requirement that killing occur “while committing” or “while engaged” in the felony, or that the killing be “a part of” the felony, other than the few acts be a part of one continuous transaction (CB 465)5. Without 1st-degree f-m, murder1 conviction would be near impossible (as applied to Stamp)

a. “abandoned and malignant heart” – Murder2 (for conscious disregard of Honeyman’s overweight and out of shape condition)b. “without due caution of circumspection..” – Involuntary Manslaughter under Cal. Penal Code § 192

F. Misdemeanor manslaughter (2nd-degree f-m) (adopted by CA) 1. rejected by MPC and majority of states

a. contention: “dispense with proof of culpability and imposes liability for a serious crime without reference to the actor’s state of mind” (CB 476-477)

2. available for any unlawful act, not only misdemeanors; misdemeanors mala in se (an act that is inherently immoral) rather than mala prohibita (act is criminal merely by statute, although not necessarily immoral)3. parallels f-m


a. if actor unintentionally causes death while performing unlawful act (not enumerate felony), state can prosecute under involuntary manslaughter – U.S. v. Walker (CB 475): Δ didn’t have license to carry gun, dropped it when loaded, gun discharged and killed a bystander.

i. “presumption…of recklessness” (CB 466 n.2) kind of substitutes f-m no surprise that a death resulted from reckless conduct (high probability of the conduct going awry)

4. characterization of crime depends on jdxa. Majority: considers the felony in the abstract, including CA (CB 483)

i. must not be an enumerated felony and “inherently dangerous” in the abstract – People v. Patterson: furnishing cocaine (possibility of overdosing inherent in cocaine use) CB 483.

(a) forget the facts, only important that the action carries a high probability of death (Patterson) (in the abstract)

(i) considering facts may lead to ‘inexorably to the conclusion that the underlying felony is exceptionally hazardous’ (CB 484) [CA law]

(b) CA measure “inherently dangerous” in the abstract by judging the probability of deathii. inherently more complex b/c must develop notion that the felony is inherently dangerous in the abstract

(a) trad’l murder1 is easier to determine (has est’d elements)b. Minority: some look at the way crime’s commission (CB 485)

i. circumstances of the commission and the offense’s abstract definition used to determine dangerousness – State v. Chambers: drunks stole a car and killed 4 people; ct said: following “common law felony murder rule,” a felony can be the basis for 2nd-degree felony murder if done in a sufficiently dangerous way

(a) gives evidence of Δ’s mens rea G. Two Approaches to Felony-Murder (depending on jdx)

1. Proximate Cause Theory: must establish that the felony was over to avoid f-m rule, that the death did not occur during the commission of the felony

a. as long as felony in progress, any death that occur will be assigned to the felon (including death of victim/bystander killed by criminal/police) – People v. Hickman

i. includes “immediate flight” – People v. Gladman (CB 489): ct said that boundaries of “immediate flight” is unique to each indiv. crime and thus to be determined by the jury

(a) not settled – Franks v. State (CB 490): f-m reversed for want of a causal ‘nexus’ b/w grocery store robbery, attack on the officer and the child’s death; State v. Colenurg: f-m upheld when Δ killed child months after he received a stolen car and messed wit the VIN. (CB 491)

b. “Protected Persons” Doctrine – applies to both jdx (proximate and agency)


i. any innocent third party, doesn’t matter who the shooters was as long as innocent third party is killed will be assigned to felonsii. victims by police shots assigned to feloniii. if co-felons die, no one cares.

2. Agency Jurisdiction (CA): death can only be assigned to felons or their agents– People v. Washington (CB 496), Justice Traynor: “to impose an add’l penaltyfor the killing [of co-felon] would discriminate between robbers, not on the basisof any difference in their own conduct, but solely on the basis of the response byother that the robber’s conduct happened to induce.”

i. “Provocative Act” Exception for Felony-murder: look for behavior on Δ(s)’s part that would lead victim to believe that it is “now or never” to resist and make an effort to save life (to use force) – Taylor v. Superior Court (CB 500)

(a) ‘provocative act’ will get the f-m charge (even if death was caused by non-agent of the crime or for death of co-felon); negates “Protected Persons Doctrine”

(i) will make co-felons responsible for the acts of other agents (those who make ‘provocative acts”)(ii) ‘provocative act’ = implied malice that triggers victim’s survival mode.

(1) in theory, then implied malice murder = murder2, but under Cal. Penal Code § 189, f-m constitutes 1st-deg. f-m (murder1)

(iii) if f-m unavailable, analyze “provocative act” under a malice theoryH. Limitations on the Use of Felony-murder

1. Δ must be guilty of the predicate felony2. in CA, only enumerated felonies get murder1

a. MPC: there is a presumption of recklessness necessary for murder when committing on of the enumerated felonies3. predicate felony must be independent of the homicidal act or collateral to homicide (e.g. cannot have continuous action

toward homicide) – People v. Moran (CB 501)a. underlying felony must be independent of the killing or else merges with the homicide (CB 504)

i. if have continuous action toward the homicide, then have either murder2 or voluntary manslaughter, not f-m(a) predicate felony’s objective cannot be to produce death

b. CA’s expressed “merger” rule: from People v. Ireland (CB 504): felonious assault could not be the basis for felony murder b/c it is ‘included in fact’ within the homicide.

4. “inherently dangerous” analysis for 2nd degree felony murder (manslaughter-murder) – (equivalent to “foreseeability of death” for f-m)


a. CA looks at the crime itself (e.g. furnishing cocaine)b. jdx other than CA look at how crime was committed

VII. CAUSATION – direct application to homicideA. Describing the phenomenon of people’s participation in crime in terms of causing the result

1. harm/death may arise from Δ’s actions/omissiona. failure to act may fulfill both legal and factual cause of the result

2. when a crime requires conduct but also a specified result of that conduct, the Δ’s conduct must be both “cause-in-fact” and the proximate cause of the specified result

B. seeking to establish “proximate cause” – the legal cause1. trad’l view: identify any and all possible causes2. usually limits causation to results expected by the actor (e.g. MPC § 2.03)

a. do not always link a probability std. to the Δ’s requisite culpable mental statei. necessary condition for the result may be proximate cause if it results regularly, predictably, or commonly, regardless of statutorily required culpable mental state

b. MPC attempts to condition liability on the determination that actor’s mens rea caused the proscribed result3. also shares a relationship with “chain of causation”/causal remoteness

a. Rules of Causationi. hastening inevitable result

(a) an act that hastens an inevitable result is nevertheless a legal cause of that resultii. Simultaneous Acts

(a) simultaneous acts by two or more persons may be considered independently sufficient causes of a single result

iii. Preexisting Condition (“Thin Skull” Rule)(a) a victim’s preexisting condition that makes him more susceptible to death does not break the chain of causation

C. first identify factual cause; four limitations:1. cause-in-fact

a. “but for” Δ’s actions, the harm would not resulted (a.k.a. “factual cause, de facto cause, or scientific cause)i. how a person’s action someway contributed to the outcome

(a) must be the ‘imputable’ causeii. exception: simultaneous, sufficient conditions (“concurrent causes”)

b. only the first step, not ultimate inquiry


2. Foreseeabilitya. requires a connection b/w actor’s culpable mental state and the result

i. injury resulting from reckless action must be one he “foresaw”ii. often referred to as “proximate causation”

(a) victim’s death occurs in a manner not intended or anticipated by the Δ(1) “All Natural and Probable Results” are proximately caused – Stephenson v. State: Δ kidnapping of a girl led her to commit suicide

3. Intervening Eventsa. Intervening actions

i. premised on free will individuals were the exclusive cause of their actions – Commonwealth v. Root (CB 308): deceased drove into oncoming traffic in an effort to beat Δ in a race on the highway (ct. rejects tort law approach to “proximate cause” (CB 309)

(a) Cal. Penal Code § 408 Causation: Responsibility for Causing a Result: puts on notice that one may be held responsible for the reaction of another if the reaction is predictable

ii. most cts view a lvl of medical malpractice as foreseeable with a likely-fatal injury (causation still valid)(a) no causation if gross negligence or intentional mistreatment (e.g. superficial wound worsened by lvl of negligence

(i) supervening causeb. scope of time

i. Common Law: “year and a day” rule – if victim dies within the time limit, death can be traced back to Δ’s actions

(a) CA has limitation of causation of 3 yrs.iii. most jdx look to whether patient/person under care was under life-threatening situation anyways

c. CL trad’ly absolved Δ of causal responsibility if an “intervening” event “broke the chain of causation”i. must be necessary for the harmful resultii. subsequent to Δ’s act, and… iii. not caused by Δ’s act

d. inconsistent with “foreseeability” standard foreseeable intervening events do not break the chain of causatione. intervening acts do not necessarily sever the result from the actor and excuse responsibility – U.S. v. Hamilton (CB 317): ct ruled insufficient evidence that deceased would’ve survived if the tubes had remained (deceased had pulled them out) therefore Δ guilty of homicide (manslaughter).

4. Dutiesa. causal responsibility limited to those who have a duty to act resulting from:


i. statuteii. statusiii. contractiv. undertaking

VIII. CAPITAL PUNISHMENT/DEATH PENALTYA. execution of accomplices requirements – Tison v. Arizona

1. accomplice must be a major participant in the crime AND…a. S.Ct ruled that execution of accomplices “with no intent to kill” is unconstitutional

i. punishment is disproportional to the action2. show a reckless indifference to human life (substitute for serious mens rea/ ”malice”)

a. per Tison, brother’s must show that they did something for the victims or attempt to stop their fatherB. Mentally retarded indiv. cannot have same lvl of mens rea as typical criminal – Atkins v. VA

1. connection b/w decency and 8th Amendmenta. evolving stds. of decency ties with society’s perspective

2. if an otherwise properly convicted and sentenced Δ suffers mental illness before execution, cannot be executeda. mental illness disables him from appreciating the connection b/w his immediate punishment and his crime

IX. ACCOMPLICE LIABILITY – parties to crime; requires @ min. proof that another person committed an offense A. accomplices held liable for aiding or encouraging the offense of another

1. complicity depends on the occurrence of another offense, whether or not another is punished for that offensea. is a doctrine, not crime no “crime” of being an accessoryb. a theory of how indiv. may be charged for a crime that may have been committed by someone else

i. liability for offense flows from accomplice’s relationship to the perpetrator (CB 822)(a) common law view: one became responsible for another’s crime by joining in it rather than causing it. (consents to a crime by aiding or encouraging the principal)

c. aider&abettor share the principal’s criminal intent (mens rea) State v. Ochoa (CB 830) – intent and purpose to commit the crime (MPC); U.S. v. Giovanetti (CB 857): aider and abettor must know that he is assisting an illegal activity; State v. Etzweiler (CB 866): no criminal intent to cause accident, though knows that his friend was drunk

i. common defense is to challenge the requisite mens rea (“ I didn’t do anything…I didn’t practice the necessary mens rea of the acts.”)

(a) can still be held vicariously liable

focus on mens rea/intention of rendering aid; NOT the magnitude of participation


2. level of participation does not relieve criminal responsibilityB. Common Law – focuses on “presence” (where was the actor at the time of the crime?)

1. Principalsa. principals in the first-degree: person who committed the actual crime/the offenderb. principals in the second-degree: in the proximity of the “principal in the 1st-deg.”; in the proximity of the commission of the offense

i. ex) the lookout, getaway driver(a) close enough to the action, but not necessarily next to the principal present at the scene of the crime

(i) presence could be constructive instead of actual2. Accessories – could not be tried or convicted before the conviction of the principal in the 1st-degree

a. accessory before the fact: classic “mastermind”i. gave aid and support

(a) aid must be successful (only CL)ii. fate of “accessory before the fact” depended on the fate of the principal

b. accessory after the fact: indiv. did not know or in any way participate in the commission of the actual crime; not a participant in the substantive crime

i. is not aware of the committed the crime until after it is committed, but renders aid(a) establishes the connection to the crime(b) rendering aid subject him to punishment

(i) usually a lesser degreec. principals and accessories could only be convicted of the same degree of offense

3. considered an accomplice if join a crime-in-progress; not accessory after thefact4. all participants in treason considered principals (under CL)5. accomplice liability for Misdemeanors

a. all participants considered principals except for “accessory after the fact”i. no punishment for misdemeanors

C. Modern Approach (including MPC § 2.06) – disregards “presence”1. modern statutes have largely eliminated common law procedural rules and distinctions

a. all parties to the crime face prosecution for substantive crime except for accessory after the facti. only break accomplices might get will be in sentencing

b. principals need not be convicted, tried, or apprehended for accessory to be tried/convicted


i. state must only prove that criminal acts occurredc. principals and accessories could be convicted of different degrees of offense – Pendry v. State (CB 878): two brothers both present during murder, but Tim got manslaughter (evidence of emotional distress), brother Kenneth got murder1.

2. evaluates the nature of aid offered: verbal, physical, psychological – State v. Ochoa3. omission to act may support the criminal objective

a. at CL: “misprision of felony,” nondisclosure or concealment of a known felony (a federal crime in U.S.)i. affirmative act not required by Δ to aid the principal

(a) jdx differed in its requirement whether affirmative concealment or passive concealment needed to be proven

b. modernly, most cts punish only affirmative conduct to conceal crime or principal from gov’t – MPC § 242.3 - .5 (CB 834)

i. MPC does not have a formal “accessory after the fact”c. omission of a duty to act may impart criminal responsibility

4. necessary to have knowledge of the criminal acta. an “innocent” 3rd party, a.k.a. “the dupe”

i. have no idea that their actions are aiding & abetting a criminal act; truly did not achieve knowledge(a) then not considered an accomplice despite they may be lending considerable mount of physical assistance (assistance is immaterial)

(i) no knowledge of the nature of aid negates the required sharing of “specific intent” w/ the principal does not have the required mens rea

ii. possible for principal1st to take adv. of a person’s “dupe” status(a) then becomes “crime by instrumentality”

b. “mere presence”: insufficient to est. someone as an accomplicei. must determine the actor achieved state of knowledge of the criminal act and continues to aid the indiv. in light of the known info – Gains v. State (CB 834): ct ruled “wheelman” lacked knowledge/ info to infer that he knew his passengers had committed a bank robbery.

c. knowledge of crime in and of itself insufficient for accomplice liability i. modern increasingly common approach is to required special mens rea for aider/abettor – knowledge or purpose that one’s conduct will have the effect of facilitating or encouraging the crime in question. Determined by three factors (CB 850):

(a) conduct, attendant circumstance, and result elements of the principal’s offense(b) likelihood that accomplices’ actions will encourage or assist principal

focus on the interpretation of clues an indiv. is contronted with in the fact pattern. DO NOT implement the “should have known” analysis


(c) principal’s culpable mental stateii. need knowledge and intent/purpose to help – People v. Beeman (CB 851): Beeman had knowledge, but no intent to help? (must have had a good attny)

5. MPC § 2.06a. must have intention to accomplish something for accomplice liabilityb. allows actor to terminate potential exposure as an accomplice

i. by withdrawal before commission and deprives the effectiveness of his aid in the commission of the crime orii. give timely warning to law enforcement or otherwise makes an effort to prevent commission of the offense

(a) to be effective, may not be done anonymously (b) must communicate the termination for the withdrawal to be effective

iii. most jdx do not allow such leeway(a) no formal provision for withdrawal

(i) once shown to have involved in crime/planning, may be held as an accompliceD. the “feigned” accomplice – not interested in successful completion of the crime; wants the crime to fail

1. appears to assist in the crime, but actually the one who alerted the authorities.2. can be charged as an accomplice for acts

a. but fails b/c of the necessary mens rea3. wanted successful prosecution of the perpetrators

E. accomplice may be charged even if principal is dead, immune from prosecution, not charged, or not identified (CB 877-888)1. accomplice liability exists even if principal is excused

a. defenses, if applicable, also available to the accomplicei. perpetrator is excused (insanity)

a. Penry v. State – brothers accused of same crime; one gets manslaughter for showing extreme emotional distress while his brothe did not (brother got murder1)

ii. perpetrator is justified (self-defense)a. many American jdx condition defense of “justification” on the Δ’s reasonable beliefs rather than the actual results of Δ’s conduct

iii. principal lacks mens reaa. perpetrator actions excused (done under duress)

(i) accomplice might not(a) discrepant mens rea

iv. principal has not committed or could not commit the criminal acta. resembles a legal impossibility


(i) General Rule: if a perpetrator’s conduct does not fulfill the act element of the offense, there is no offense and so no complicity

X. INCHOATE OFFENSES – all require a demonstration of the individual’s attemptA. requires highest form of mens rea (specific intent MPC’s “purposely”)

1. an absolute commitment to accomplishing some actB. ATTEMPT – law punishes attempt not for the mere desire to commit crime (mens rea), but because there is substantial act toward the completion of the crime (actus reas)

1. requires specific intent2. gives prosecution something to charge if causation fails

a. when clear indication actor had intent to kill (through facts or conduct) and give info despite his effort, victim does not die from actor’s particular means

i. causation shows that focused actor is not the cause of person’s deathii. when legal/proximate cause unavailable, look at actions and specific intent to infer attempt

(a) connection b/w attempt and causation2. “legal impossibility” (no attempt) – Booth v. State (CB 793): Δ could not be guilty of attempt to receive stolen property when the property in question had already be recovered (lost its “stolen” characteristic)

a. the act, even completed, would not be criminali. an affirmative defense

3. “factual impossibility” (attempt) – State v. Haines (CB 803): attempted murder convictions upheld for two HIV-positive inmates, tried to transmit the virus by biting guards, even though HIV cannot be transmitted by biting.

a. substantive crime impossible to complete b/c of some physical or factual condition unknown to Δ4. still allows “mere preparation”

a. a substantial step taken toward the completion of the crime will carry the act from “mere preparation” to attempt (crossing the line)

i. preparation + overt actb. determining when act is more than “mere preparation”

i most jdx adopt some form of “proximity test” (CB 767 – rejected by the MPC)(a) Proximity test: how close does actor get to actually completing the crime?

(i) not how far actor has come from preparation(b) Indispensable element: gauging whether actor(s) has gained control of elements/factors necessary to accomplish the crime.

mere attemptpreparation


(c) “but for interruption”: unless an unexpected event occurs, action flows toward the execution of the crime(d) abnormal step: crosses a pt. where a normal person, who could have been playing with the idea, would not have crossed

(i) crossing the point indicates actor’s intention to commit the crime(e) res ipsa (unequivocality test): the acts are unambiguous; nothing equivocal, the intent is apparent

ii. MPC test – doesn’t gauge how far actor has come to completing crime(a) examines a “substantial step”

(i) distance actor has traveled whether or not is a substantial step in direction of accomplishment of the target crime

(1) no requirement for the Δ to come close to completion(b) does not recognize “legal” and “factual” impossibility

(i) the distinction is a fallacy(ii) whole point of attempt is culpable mens rea

(1) punish those who are willing to break the law/have the will to engage in behavior and try accomplish something that is dangerous to society

(b) MPC § 5.01 Criminal Attempt(i) allows prosecution to charge attempt earlier, before an actual material attempt takes place(ii) allows renunciation of the decision to do the crime; abandon the attempt even after attempt has been completed - § 5.01(4)

(1) under modern law, trad’l approach does not allow abandonment of attempt 5. attempted crimes merge into complete crimes

a. Burglary does not mergei. if successful, get burglary + (felony)

b. once crime completed, cannot renounce (can’t go back and return something you stole)C. SOLICITATION

1. actor with specific intent acted on trying to induce somebody to join in the crimea. no requirement that the person solicited agrees or accepts

i. crime is complete once solicitation is made2. solicitation merges with the actual crime

a. may become conspirator or accomplice to the substantive crime3. many jdx do not have a universal solicitation statute

a. usually very specific crimes are restricted under a solicitation statute (e.g. murder, treason most common)

Smith likes MPC approach to Attempt; need to know for the essay portion


4. usually solicitation cannot be abandoneda. MPC allows renunciation of solicitation (§ 5.02(3))

i. immaterial if the solicitation is passed along and actor fails to communicate with the person he solicits to commit the crime (§ 5.02(2))

(a) reception of solicitation not important; the fact that it was sent out is reprehensible enough 5. common defense: trying to negate the mens rea (specific intent)

a. the “just kidding” defense, or “ I was just venting steam”D. CONSPIRACY – a tool of inference in absence of hard evidence

1. modernly, does not merge into the substantive crime (offense + conspiracy)2. Common law: Agreement of at least 2 or more people able to and intending to agree to intend to accomplish a criminal or unlawful purpose. (carry out the purpose which is the stated object of their combination) CB 944 bilateral view

a. at common law, husband and wife COULD NOT be charged as conspirators with each otheri. reasoning: husband and wife seen as one person in law, having one will

(a) conspiracy required at least two peopleb. not necessary to know all conspirators; knowing indv. roles sufficientc. measured within the terms of specific intent to carry out the crime

i. the agreement makes the commission of the crime more likely to be carried out conspiracy committed absent actual criminal act – State v. Verive (CB 896) “Primary focus of the crime…”

(a) agreement with specific intent sufficient to est. conspiracy (required mens rea)(i) must have evidence of actual agreement

(1) usually not blatant agreement (tacit)(ii) Δ’s best defense: he did not have specific intent to do the criminal act – People v. Lauria: having knowledge of his customer’s occupation (prostitutes) and continuing to provide them with messaging service

(1) intent may be inferred from knowledge when:a. purveyor of legal goods for illegal use has acquired a stake in the venture (motel mgr. charging more for prostitutes)b. when no legitimate use for the goods or services existsc. when the volume of business with the buyer is disproportionate to any legitimate demand, or when sales for illegal use amount to high proportion of seller’s total business – Direct Sales (CB 916)

(b) requires no actual step toward the commission of the crime


(i) only need to prove the agreement(1) requires less to convict than “Attempt”

d. some actors, for some reason, may be ineligible as a conspiratori. insane person (+ all affirmative defenses if available)ii. undercover policeiii. the proverbial “dupe” – not acting in furtherance of the conspiracy

e. does not have to be agreement to a criminal act (e.g. “substantial step” under attempt) (CB 902-903) i. could agree to do a lawful act in an unlawful manner – North example: Lt. Col. North charged with conspiring to violate intent of Congress (by assisting Contras, Nicaraguan rebels), but Boland Amendment did not carry any criminal sanctions

f. some jdx only require the agreement – S.Ct. said that “criminal agreement itself is the actus reas”; U.S. v. Rahman (CB 909): Δ contended that his blindness incapable of participating in aspects of crime but ct ruled that it was sufficient for the Δ to join in the illegal agreement

i. most jdx require “agreement” + “overt act”(a) “overt act” can be almost anything, not necessarily criminal – in Verive, driving to Galvin’s (the witness/victim) home

(i) adds to proof(ii) if “overt act” can be shown, harder for Δ to contend that agreement was merely talk(iii) same action cannot be used for different crimes (attempt, conspiracy) double jeopardy

(1) determine possible double jeopardy violation with Blockburger test (examine the elements of the crime): each charge must have at least one element of the crimes that are not shared (CB 896)

(iv) any overt act attributed to all co-conspirators (the whole group) so long as it is done in furtherance of the crime vicarious liability

g. relative contribution irrelevant as long as Δ was in agreement and rendered some sort of aid(i) by joining conspiracy, Δ inherits all previous crime the group committed previous to Δ’s agreement

3. MPC § 5.03a. under MPC, attempt and conspiracy cannot be charged concurrently (CB 898)

i. must choose either, but not bothb. many jdx let prosecutor to charge both attempt and conspiracy

i. if separate crimes, can be separately punished(a) “stacking” the sentences

c. rejects Pinkerton


(a) no special complicity rules for conspirators(i) conspirator should be measured by same std. of legal accountability for conduct applicable to any other indiv (CB 939)

d. adopts unilateral approach: intent to commit crime is enough mens rea to hold actor accountable regarless of the intent of co-conspirators

4. Withdrawal from conspiracya. Majority Rule

i. requirements: (a) withdrawal must be notified to co-conspirators

(i) not req’d to notify all, but at least some(b) by engaging in acts inconsistent with the objects of the conspiracy(c) no req’ment to convince other co-conspirators to abandon the conspiracy(d) no req’ment that he expose conspiracy to public authorities or expose conspiracy to prevent the carrying out of the act involved in the conspiracy(e) reqs. that a Δ completely abandon the conspiracy

(i) must be done in good faithii. still liable for previous agreement and for previous acts of co-conspirators in pursuit of conspiracy

(a) stops ability for subsequent additional crimes to be assignedb. MPC § 5.03(6)

i. “complete and voluntary renunciation of the criminal purpose”(a) cannot withdraw when pos are approaching

ii. withdrawal is an affirmative defense only when Δ has “thwarted the success of the conspiracy”5. Pinkerton rule: a party to a continuing conspiracy may be responsible “when the substantive offense is committed by one

of the conspirators in furtherance of the conspiracy even though he does not participate in the substantive offense or have any knowledge of it. (a form of vicarious liability)

a. conspirator may be found guilty of substantive crime unless that crime “could not be reasonable foreseen as a necessary or natural consequence of the unlawful agreement”; not foreseeable, not in furtherance of the conspiratorial objective

i. a theoretically viable defense against acts of co-conspirators being added to Δb. applies to corporations

i. doctrine of respondeat superior: holds an employer or principal liable for the employee’s or agent’s wrongful acts committed within the scope of the employment or agency (CB 975-983)

(a) vicarious liability under conspiracy (acts of one are attributed to the whole)

remember this for the test (MPC jdx)


6. Hearsay rule – forbids the admission of evidence given by a witness as to what someone said off the stand when the probative value of that evidence depends on the credibility of the out-of-court declarant (CB 939)

a. Exception: statements made by a conspirator in the course of/furtherance of the conspiracy are authorized by all his/her co-conspirators, therefore admissible against them as admissions, so long as trial judge satisfied by a preponderance of the evidence that a conspiracy does exist

7. Wharton’s rule: If the definition of the substantive crime assumes that at least two people will agree to commit it (e.g. adultery, incest, bigamy, dueling), it would be unfair “double-counting” for the state to charge conspiracy as well.

a. possible to have more than one conspiracy arising from one act 8. Policy

a. presence of more than one actor makes the attempt less likely to be abandoned and the division of labor among conspirators makes it more likely that the attempt will succeed (CB 899)

i. conspiracy may be aggravating factor in substantive crime(a) criminal law assumes that a grp planning to commit a crime poses a special danger to the public welfare – Callanan v. U.S. (CB 901): “the danger conspiracy generates is not confined to the substantive offense which is the immediate aim of the enterprise.”

(i) support and cooperation of co-conspirators increases probability of criminal conduct for each participant(ii) increase social damage members can do(iii) hard for police to apprehend them

XI. RAPE – general intent crimeA. Common Law

1. def: sexual intercourse “by means of force, against the will of the woman and without her consent.”

a. state had to prove very overt forcei. easier to establish involving rape b/w strangers

(a) Δ often used weapon or assaulting violenceii. b/w nonstranger rapes, cts use victims’ resistance as indicator of assailant’s force and victim’s nonconsent

(a) “utmost resistance” requirement – Brown v. State: ct suggests if victims does not fight, then the rape was not against her will. (CB 1082, 1083)

2. rarely specified required mens rea beyond awareness of the act3. highly regulated and restrained sexual intercourse

a. could be prosecuted of “fornication” for sex out of marriage


i. women would have to show that they lacked mens rea(a) sex = rape when induced by fraud in the factum(b) or mistake of fact

(i) believing she was having sex with husband(c) committed unlawful intercourse under duress

(i) resistance standard element4. CL: NO spousal rape5. statutory rape dealt with as strict liability

a. age a sentence enhancer (CB 1126)B. Traditional Statutory

1. force or threat of forcea. gives victim a chance to explain why she didn’t struggle

2. non-consenta. under intoxication

i. consent given under voluntary intoxication ≠ rapeii. consent given under involuntary intoxication = rape

3. reasonable resistance4. NO spousal rape

C. Cal. Penal Code1. does not have degrees of rape (minority jdx)2. “consent” (Cal. Penal Code § 261.6): positive cooperation in act or attitude

a. Rape (Cal. Penal Code § 261): subsections (1) – (3) says that Δ accepted consent they should not have b/c of the victim’s inability to give real consent

i. subsection (1): person is incapable, b/c of mental disorder or developmental or physical disability, of giving legal consentii. subsection (2): where consent is acquired against person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another

(a) “duress”: direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person to perform an act which otherwise would not have been performed

iii. subsection (3): person prevented from resisting by any intoxicating or anesthetic/controlled substance, and this should have been known by accused

(a) Δ may have received consent, but it should not have been accepted b/c of victim’s inability to give real consent


(b) voluntary intoxication by the victim voids her consent(c) a minority approach

iv. subsection (4): accused knows that the person is unconsciousb. at the point of consent is withdrawn, continuing with sex constitutes rape

i. could have consented to initial penetration 3. Statutory Rape (Cal Penal Code § 261.5)

a. CA allows a reasonable mistake of fact as a defenseb. may have consent, but the consent is void

4. CA has spousal rapeD. Model Penal Code

1. No spousal rape2. incapacity to consent may expose one to rape

a. mental disability (Gross sexual imposition – MPC § 213.1(2))i. imposing sexual intercourse by means of fraud/coercion, or with knowledge of victim’s mental disease or defect which “renders her incapable of appraising the nature of her conduct” (CB 1125)

b. unconscious at the time of the acti. MPC § 213.1(c)

c. youth – Statutory Raped. intoxication

i. MPC § 213.1(b) – traditional view is that the victim was made intoxicated unbeknownst to her, then rape(a) voluntary intoxication is not a defense (CB 1125)

3. MPC has differing degrees of rape (1st-3rd)

XII. ARSONA. general intent crimeB. at common law, required that the burning be of a structure/dwelling house (similar to burglary statute)

1. must be a willful and malicious burninga. malicious = extreme recklessness (sufficient to establish malice)

i. similar to malice under homicide2. modern jdx do not require the structure to be a dwelling

a. CA includes any structure, forest land or propertyi. becomes important for felony-murder


XIII. THEFTA. Robbery – combination of larceny with force/threat of force [force / (fear element) + larceny]

1. requires the thief take the personal property of the victim from his presence or person a. different with burglary where the person need not be around

2. falls under “crimes against the person”3. Common Law

a. felonious taking and carrying awayb. personal property of another

i. the person robbed doesn’t necessarily have to be the owner of the itemc. by force or threat of force

i. force/threat of force induces owner to relinquish possessiond. from the person or in the immediate presence of the victim

i. no robbery if item not removed from the presence of the victim 4. under MPC, robbery possible even if person fails to take property of the victim

B. Larceny – formed after robbery (Specific Intent)1. crime against “possession” not necessarily ownership

a. owner of property can be guilty of theft of own propertyi. someone may have superior right to possession (e.g. taking a car from the mechanics without paying)

(a) taking of possessionb. usually not taken by force

i. more likely that stealth employed2. requisite mens rea: actor must believe he is taking the property of another

a. if actor believes that he is taking property that is his with some claim of right, negates mens reai. specific intent necessary for larceny

3. at common law, prosecutor had to get the specific type of larceny and its elements correctly to get conviction.a. modernly, “theft” serves as an umbrella (consolidated theft schemes

i. if any crime committed under theft umbrella, then guilty – larceny, embezzlement, false pretense, and perhaps extortion as single offense of “theft”

(a) modern approach adopted by MPC and CA4. Common Law – timing is of crucial importance

a. a “trespassory” taking and carrying away of property;i. “trespassory”: at the very least a taking possession without the owner’s consent

(a) could be either force or stealth


ii. violated victim’s rights(a) Δ’s actions against consent/knowledge of the holder of property

(i) anything that detracts from trespass element ruins larceny chargeiii. “taking” requires that thief acquire total dominion and control over the itemiv. “carrying away”/asportation element – requires movement of the object

(a) any slight movement sufficientb. from the possession of another;

i. implies once thief acquired possession, he could forcibly defend the goods with the intent to retain themii. the moment possession passed to thief crucial in determining thief’s criminal liabilityiii. must be “personal” property – something moveable

(a) larceny cannot be committed over “services”(i) “taking of services” different crime under common law

(1) MPC criminalizes theft of services(b) real estate, anything in soil also not personal property

(i) exception: if plant has been uprooted and left on property for an appreciable length of time, then converts into personal property

c. with the intent to permanently deprive the owner of that propertyi. specific intent to take it / keep it / destroy it any form of permanent deprivation

(a) b/c specific intent requirement, mental impairment valid defenseii. purpose can be to prevent owner from deriving benefit from his property

(a) destroys it value of use to the owner(b) getting reward / refund actor not entitled to – People v. Davis: Δ went to Mervyn’s and tried to receive refund for a shirt he never took from the store

5. modern larceny statutes focus on misrepresentation of material facts to induce the owner to hand over propertya. misrepresentation substitutes for the traditional trespass requirement under larceny

i. “trespassory taking” includes (CB 1029)(a) a physical movement of the object(b) a taking from the possession of another, and

(i) possession vs. custody(1) when someone looks as if he has possession but does not, the law says he has mere custody of the object (CB 1029)


(2) employer temporarily entrusting goods to an employee or customer still retained “possession” until sale was complete (CB 1024)

(c) an act contrary to the will of the ownerb. criminal liability had increasing emphasis on actor’s subjective intentc. “Larceny By Trick” – thief acquires possession only

i. taking and carrying awayii. possession of anotheriii. by trick or device (misrepresentation of a fact)iv. with the intent to permanently deprive owner or possessor

(a) the intent to steal overcomes the immunity provided by rightfully acquiring possessiond. “Larceny By False Pretenses” - thief obtains title and possession

i. Common Law (a)misrepresentation of a present/past fact

(i) “false pretense” two possible meanings(1) deception of the external rule (objective misrepresentation) – e.g. Δ’s credit status or quality of goods for sale(2) misrepresentation about one’s intention

a. in some states, borrowing money with intent not to repay sufficientb. receipt of money satisfies element of acquiring title

(b) knowing the misrepresentation is false(i) possible for “attempted larceny by misrepresentation): crime not completed because of technical reason that victim did not rely on false misrepresentation

(c) which induces the Owner to part with title(i) victim must rely on / believe the false pretense – People v. Whight (HO); People v. Sattlekau (1041)

(1) insufficient that thief made misrepresentation(2) no requirement that victim investigate thief’s statements / representations

a. need only factually demonstrate that victim did rely on misrepresentation(ii) does not require dialogue – People v. Whight

(d) with the intent to defraud (to cause injury or loss by deceit)e. “Embezzlement” – a later statutory refinement of the common law crime of larceny; differs from jdx to jdx

i. is different, because at the point of acquisition of the property, the actor did not induce the other to give over the property


(a) actor is usually entrusted with the property (legal acquisition)(b) does not concentrate on the point of acquisition

(i) when actor breaches the trust and goes against the wishes / expectation / understanding of the possessor

(1) converts property to uses not allowed by the owner (must go against the rules / regulation / agreement)

(c) does not require an intent to permanently depriveii. legislative scheme typically require

(a) offender has been entrusted with the object by the owner, or at least have possession at the time of the offense(b) a subsequent act of deprivation

(i) usually termed conversion or fraudulent appropriationiii. Common Law

(a) fraudulent conversion(i) if thief knows of unilateral mistake and takes advantage of it, then equivalent to reaching in pocket and stealing – People v. Whight

(b) of personal property of another(c) by one already in lawful possession

f. “Extortion”i. does not have to be theft of personal property

(a) can take service the victim normally would not give(b) can be any benefit conveyed upon the extortionist

ii. involves benefits other than personal property and expands the nature of threats(a) threats for the future included

(1) innuendo is sufficient(b) blackmail

(i) unfair bargain where you know the type of threat would induce someone to prevent it from happening

(1) act threatened does not necessarily need to be illegal iii. requisite mens rea: intent to threaten injury/disgrace/dishonor in exchange for compensation (not necessarily money)

(a) not bargaining in the usual way(i) comes from more fear of threat than consideration


(1) concentrate on the use of fear, not causing feariv. extortion vs. robbery

(a) extortion: threats of future harm intended to induce the victim to relinquish property(b) robbery: threat of force must be “immediate” or “imminent” in relation to completed or attempted larceny

5. completed larceny even if actor replaces item

XIV. Defensive Force A. Prosecutor: case-in-chief at trial brings chargesB. an affirmative defense and its requirements imposes burden on Δ and their counsel

1. Δ most likely have to testify2. no requirement for Δ to put on a full formal defense

a. cross-examination of prosecutor’s witnesses may create enough doubtb. “Elemental Defense”: Δ tries to show that a required element is missing

i. challenge identity(a) not an affirmative defense

(i) trying to show that prosecution cannot make necessary connections of crime to the Δii. actus reas

(a) try to show that act was not voluntaryiii. mens rea

(a) absence of requisite mens rea is a defense to the crimeiv. causation

(a) if or when proof of causation is requiredC. Defense case: defense has burden of proving the elements of its affirmative defense to prevail

1. prosecutors usually likes these because the mechanics (actus reas, causation) are all concededa. Δ wants to explain his actions

2. virtually all affirmative defenses addresses answering the question: Why?a. defense still takes on the burden of proof

3. if defense fails in establishing affirmative defense, then Δ not given jury instructiona. assumed as an intentional killing if the full affirmative defense is not achieved

i. Δ may have misjudged reaction/situation4. justified vs. excuse CB 583

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D. DEFENSIVE FORCE: SELF-DEFENSE1. directly related to homicide

a. doctrine of balance and proportion (reaction to perceived threat)i. cts allow Δ’s possible mistake

(a) must be reasonable(b) also depends on what type of mistake

2. Inmates not afforded the defense3. defenses allowed when indiv. is faced with direct force

a. Perfect Self-Defense: acquittal, defeat the charges (fully justified) i. use of deadly force MUST involve a perception of a threat of deadly force being inflicted or threatened – People v. La Voie (n.3 CB 579)

(a) may not be used in defense of property(1) mechanical devices cannot be used because they cannot discriminate the culpability of the intruder (intruder may be law enforcement, firefighter, etc.) – People v. Ceballos (CB 632)(2) “Where the charater and manner of the burglary do not reasonably create a fear of great bodily harm, there is no cause for exaction of human life or for the use of deadly force” (CB 634)

b. Imperfect Self-Defense: a failure of one of the elements on some leveli. in CA, then get voluntary manslaughter

(a) regular voluntary manslaughter: highly emotional, flawed, but surrounding circumstances understood by the court

(1) usually deceased had pissed off Δ(b) a conviction arising from the defense usually indicates that the circumstances may have justified Δ to act, but something about the reasoning was flawed

(1) response is unreasonable(c) under MPC person who misconstrued facts may be found guilty of some level of homicide.

(1) Δ could be prosecuted of manslaughter (reckless in construing the facts)(2) negligent homicide rather than purposeful murder

(d) majority of jdx adopt all or nothing: either achieve perfect affirmative self-defense or nothing (then some level of homicide)

in a fact pattern, evaluate reasonableness of actor’s response to the perceived threat and his calculation of danger


ii. Δ’s judgment of situation and his response come under scrutiny4. Elements

a. threati. reasonable mistake allowed

(a) assessing reasonableness requires going to the facts and supporting the actor’s perceptionii. Δ cannot create a condition for own defense (CB 621) – “Where the actor is not only culpable as to causing the defense conditions, but also has a culpable state of mind as to causing himself to engage in the conduct constituting the offense, the state should punish him for causing the ultimate justified or excused conduct.” (CB 622); U.S. v. Peterson: ct found Δ formed intent when he went back inside to get a gun and telling the deceased to stop as deceased was retreating (CB 619)

(a) Aggressor Doctrine: aggressor can defend himself if the responding party escalates the situation or if aggressor has tried to withdraw

(1) contradicts trad’l view that aggressors are not afforded privilege of self-defense for something they instigate

b. imminencei. reasonable mistake allowedii. Issue: what constitutes imminence? – e.g. BWS, People v. Goetz: prosecution questioned if it was absolutely necessary for Δ to shoot (had testified that just flashing the weapon had a deterrence effect on would-be muggers)

c. response must be proportional to the perceived threati. Issue: was the actor’s response reasonable?

5. must know whether jdx adopts a subjective or objective analysis (CB 585)a. subjective: thru the eyes of the actor – People v. Goetz: Δ’s actions were based on his past experiences of being mugged

i. circumstances sufficient to induce the accused to from an honest and reasonable belief that force was necessary to defend himself against imminent harm – State v. Leidholm: Δ needed to introduce Battered Woman Syndrome to address the lacking element of “imminence”

b. objective: factfinder views circumstances surrounding the accused from the standpoint of a hypothetical reasonable and prudent person

6. Retreat – duty to retreat if there safe possible way of doing so?a. Elements where retreat not necessary.

1. In Home2. Making a lawful arrest


3. Robberyb. traditional retreat rule: a person assaulted in his dwelling need not retreat before using deadly force even if a safe opportunity exists

i. majority of courts have expanded “castle” exception to cover business premisesc. minority of American jdx adopt a retreat doctrined. Model Penal Code adopts a retreat rule

i. not when defending against death or great bodily harm from a co-occupant of the dwelling (MPC § 3.04(2)(b)(ii); CB 609)

7. Common Law allows one to repel an unlawful arresta. MPC does not

8. Defense of 3rd partiesa. can use defensive for if it is a self-defense situation (3rd party or law enforcement)b. Common Law: can choose to help at actor’s peril (reasonable mistake was not allowed)

i. most modern law jdx allow reasonable mistakec. no requirement for the actor to share a relationship with the person he is aiding

i. still obligated to keep response proportionald. MPC allows defense of 3rd parties

E. DEFENSIVE FORCE1. Elements

a. Without faultb. Unlawful forcec. Threat of Imminent Death or Great Bodily Harm

2. Battered Wife3. Law Enforcement/Private Citizens for Escape

a. Force must be reasonable.b. Reasonable only if threat of death or serious bodily harm and deadly force is necessary to prevent escape. c. Ex: Garner: Officer cannot use force for an unarmed, non-dangerous felon that poses no threat to officer.d. Same limits for private citizens except escapee must be actually guilty of offense.

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F. DOCTRINE OF NECESSITY (choosing the lesser of two evils)1. Justification of Necessity: society acknowledges that the threat of danger the actor faced forced him to choose to break some other law which was less onerous than the act he confronted a choice of a “lesser evil”

a. society must endorse that the actor break a law to avoid a greater harmb. the harm or evil

2. a more objective viewa. must be acceptable by societyb. weighs the reasonable choice of conduct actor had rather than breaking the law

i. whether actor’s identification of the threat or reason for having done the act justifies the response he chooses(a) essential for actor to truly believe that his choice was the lesser of two evils

(1) situation forces the Δ to make a choice – People v. Unger: Δ was forced to choose between two admitted evils by the situation arising from actual and threatened homosexual assaults and fears of reprisal

3. threat not necessarily posed by other individualsa. could be brought about by nature/situations – State v. Warshow: Δ’s argued that inherent danger of nuclear power plant (ct ruled that defense failed)

i. in many political situations, Δ will use defense of necessity to gain media attention(a) prosecutor makes argument to ct that the Δ’s argument will not sustain the necessity defense

(1) judge can then ask to see what Δ has to determine whether Δ has a valid defense of necessity

4. Basic elements of necessity (per State v. Warshow ct.) (CB 656)a. must be a situation of emergency arising without fault on the part of the actor concernedb. this emergency must be so imminent and compelling as to raise a reasonable expectation of harm, either directly to the actor or upon those he was protecting; Necessity will only justify criminal behavior if the danger intended to be prevented is imminent.c. this emergency must present no reasonable opportunity to avoid the injury without doing the criminal act; and d. the injury impending from the emergency must be of sufficient seriousness to outmeasure the criminal wrong

5. Warshow: CONCURRENCE: (Hill, J.) Each evil must be evaluated to reach an appropriate conclusion. DISSENT: (Billings, J.) The danger was sufficiently imminent to justify the trespass of D.


6 Except in self-defense cases, one person cannot kill another to save himself. There is no unqualified justification for self-preservation. Queen v Dudley: Cannibal Life boat case.

G. DURESS1. differs from defensive force because the offense is committed to further rather than to resist the criminal project of the aggressor (CB 663)

a. duress is an excuse, not justificationi. deflects responsibility for a coerced wrongful act from the perpetrator onto the person who coerced it

(a) argument is that fear rendered the actor blameless/undeterrable(1) duress negates requisite mens rea

ii. available only when no other reasonable opportunity to escape or withdraw from the threatened danger. (a) Ex. Crawford: D was addicted to cocaine and threatened to commit robberies, burglaries, etc for

drug dealer. D attempted to use duress defense but couldn’t b/c he had opp to escape.b. traditionally limited by some consideration of proportionality

i. usually fails if Δ’s offense was too great or the threat was insufficient(a) murder never excused by duress defense

ii. However the defense of compulsion is available for a charge of felony murder(a) Ex: Hunter- Hitchhiker D was picked up by wild men, they shot a cop then later

kidnapped a person, it was held that D Any limitation to the defense of duress should be confined to crimes of intentional killings done by another during the commission of some lesser felony. If D was forced to kidnap under threat of bodily harm, then he has a defense to the underlying felony murder if one of the party kills another in the commission of that inherently dangerous felony.

c. if duress defense successful, then acquittedi. not guilty of any lesser crime

2. Common Lawa. duress defense required the alleged coercion involve an imminent threat of death or serious bodily harm

i. threat to property or financial well being not excusedb. killing of an innocent never excused even if accused acted in response to immediate threats

3. Model Penal Code § 2.09a. does not afford duress defense if actor negligently or recklessly placed himself in the situationb requires at least a threat to personal safety, not to property

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i. no demand that threat be of death or great bodily harmii. actor does not have to be the directly imperiled victimiii. no demand for immediate threat of injury

c. no requirement for immediacy of threat

Look at affirmative defense, lapse of time, change of circumstances can take away or grant an affirmative defense.

H. MENTAL ILLNESS 1. INSANITY – an affirmative defense; necessarily need a mental disease or defect

a. “competence”: legal std. that requires the Δ be able to reason and understand what is going oni. Δ must be able to assist his counsel at the present

b. “insanity”: refers to mental state exclusively at the commission of the crimec. insanity defense places preponderance burden on Δ

i. if found insane, then Δ excused from the punishment of the crime(a) may violate notions of retributive justice to punish those who cannot be held morally blameworthy(b) whether punishment serves as a deterrence depends on what other persons the one is trying to influence

d. defense of insanity rests on an internal cause, not external factors (e.g self-defense, necessity, duress)e. M’Naghten Test (The “Cognition” Test) [lecture notes 11/20/2003]: “it must be proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.” (CB 698)

i. “incapable of distinguishing right from wrong” refers to a person’s cognitive inability, due to a mental disease or defect, to distinguish right from wrong as measured by a societal standard of morality, even though the person may be aware that the conduct in question is criminal” – People v. Serravo (CB699)ii. requirements:

(a) proof of a disease of the mind(b) caused a defect of reason (does not KNOW nature and quality of act), or…(c) such that the Δ lacked the ability at the time of his actions to either:

(1) know the (legal) wrongfulness of his actions; or (2) understand the (moral) nature and quality of his actions

iii. might be that Δ does not know the nature of his act or not aware that he is doing the act(a) premised on idea that if Δ knows nature of his act, then can stop himself


(b) “A person in an extremely psychotic state might be aware that an act is prohibited by law, but due to the overbearing effect of the psychosis may be utterly without the capacity to comprehend that the act is inherently immoral.” – People v. Serravo (CB 696)

(1) “Conversely, a person, although mentally ill, has the cognitive capacity to distinguish right from wrong and is aware that an act is morally wrong, but does not realize that it is illegal, should nonetheless be held responsible for the act, as ignorance for the law is no excuse” (CB 696)

iii. does not ask whether Δ could control his behaviorf. ALI/MPC Test

i. broadened question of “knowledge” to whether Δ had “substantial capacity to appreciate the criminality of his conduct”ii. added the alternative “volitional question”: whether Δ, even if he could appreciate the criminality of his act, nevertheless lacked “substantial capacity to conform his conduct to the law”

(a) “appreciate” substituted for “know” holds that a sane offender must be emotionally and intellectually aware of the significance of his conduct

(i) demands more from prosecutionii. specifically mentions conduct

(a) conduct is presumed under M’Naghten test.g. Quasi-Insanity defenses rely on some mental element/reaction to an outside factor

i. alcohol & other drugs (drugs interact with mental illness)(a) General Rule: any mental condition that derives from voluntary intoxication, including permanent psychological damage that mimics the symptoms of insanity, is treated like the short-term effects of intoxication

(1) does not exonerate Δ except in certain cases where it might negate “specific intent”ii. Specific disorders (CB 737-744)

(a) Post-Traumatic Stress Disorder(b) Postpartum Psychosis – women murdering/attempted murder of their infant children(c) Premenstrual Syndrome(d) Gambling(e) Multiple Personality Disorder

h. “Diminished Capacity”i. refers to cases where a Δ who cannot win on pure NGI claim, benefits through acquittal or mitigation of the charge from evidence of mental illness or disorder

§ 4.01(1): Mental disease or Defect Excluding Responsibility:

A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law.


ii. merely a rule of evidence(a) the admission of evidence of mental abnormality to negate mens rea

iii. also seeks to show that he lacked the capacity to form mens reaiv. mostly used to mitigate crime down to a lower level

Criminal Law Ouline

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