Criminal Attack PDF

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Criminal Attack pdf
Criminal Law (Cleveland State University)
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Criminal Attack
MODERN RULE OF CRIMINAL STATUTES (92, 95-113,119-126)
Principle of Legality Examples

Criminal statutes should be understandable to Keeler V Superior Court (1970)
reasonable law-abiding persons
Criminal statutes should be crafted so that they do not Whether an unborn but viable fetus is a “human being”
delegate basic policy matters to policemen, judges, and within the meaning of the California statute defining
juries for resolution in an ad hoc subjective basis murder, on the day the baby was killed
Judicial interpretation of ambiguous statutes should “be A law must be sufficiently explicit to inform those who
biased in favor of the accused,” The Rule of Lenity are subject to it what conduct on their part will render
them liable to its penalties, this is a well recognized
requirement
The Values of Statutory Clarity Examples
The requirement that a statute be couched in terms of In Re Banks (1978)

appropriate definiteness has been referred to as a
fundamental common law concept (Due Process)
When a statute is vague, court must differ to the “Any person who shall peep secretly into any room
legislative intent occupied by a female person shall be guilty of a
misdemeanor and upon conviction shall be fined or
imprisoned in the discretion of the court.”
The doctrine of overbreadth has not and will not be A criminal statute must be sufficiently definite to give
invoked when a limiting construction has been or could notice of the act proscribed
be placed on the challenged statute
Statutory Interpretation Examples
To find the meanings of statutes, judges use various Muscarello v US

tools and methods of statutory interpretation, including The phrase “carries a firearm” includes knowingly
traditional canons of statutory interpretation, legislative possessing and carrying firearms in a vehicle, including
history, and purpose. its locked glove compartment or trunk, which the
person concerned accompanies.
ACTUS REUS (127-142, 147-148)

Actus Reus Examples
The physical or external part of the crime Martin v State (1944)
A person is not guilty of an offense unless his conduct A person must voluntarily commit the crime charged in
includes a voluntary act order to be guilty of the crime.
Bars liability for purely involuntary conduct State v Utter (1971)
Voluntarily induced unconsciousness, such as by drugs

MPC § 2.01 or alcohol, is not a complete defense.

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Omissions (Negative Acts)
Creating a Duty to Act Examples

1.Statute People v Beardsley (1907)
2.Status relationship
3.Contractual duty D drank liquor with another woman while his wife was
4.Voluntarily out of town
5.Creates a risk of harm A person owes no legal obligation to another unless
such person is within his custody or care as a
dependent person.
Section 2.01. Requirement of Voluntary Act; Omission as Basis of Liability (Actus Reus)
1. A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the
omission to perform an act of which he is physically capable
2. The following are not voluntary acts within the meaning of the Section
A. A bodily movement during unconsciousness or sleep

B. Conduct during hypnosis or resulting from hypnotic suggestion
C. A bodily movement that otherwise is not a product of the effort or determination of the actor, either
conscious or habitual
3. Liability for the commission of an offense may not be based on an omission unaccompanied by action unless
a. The omission is expressly made sufficient by the law defining the offense; or
b. A duty to perform the omitted act is otherwise imposed by law
MENS REA (149-168)
The Two Usages of Mens Rea
Narrowly Speaking*** Broadly Speaking
Mens rea refers to the mental state the D must have had Mens rea means “guilty mind, vicious will, immorality
with regard to the social harm, elements set out in the of motive, or simply morally culpable state of mind” 
definitions meaning, a D is not guilty of an offense even A person is guilty of a crime if she commits the social
of she has a culpable frame of mind, if she lacks the harm of the offense with any morally blameworthy state
mental state specified in the definition of the crime of mind, it is not significant whether she caused the
social harm intentionally or, instead with some other
blameworthy mental state of mind

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“Intent” (Mens Rea) (Common Law)
Specific Intent General Intent Transferred Intent
Intentionally or knowingly. Any mental state, whether expressed or Transferred intent is a legal doctrine
“With the intent to commit a implied, in the definition of the offense that holds that, when the intention to
felony therein” that relates solely to the conduct and/or harm one individual inadvertently
Have to have a future felony result that constitutes the social harm of causes a second person to be hurt
therein the criminal offenses instead, the perpetrator is still held
The intent to do the Actus Reus responsible.
Intent Examples
Regina v Cunningham Malice requires actual intention to do a particular kind of harm or recklessness as
Gas Meter to whether such harm should occur or not.
People v Conley Intent can be inferred from the surrounding circumstances, the offender’s words,
Wine Bottle the weapon used, and the force of the blow
Section § 2.02: General Requirements of Culpability
Purposely Conscious objective to bring about the result

• Aware or believes or hopes that such circumstances exist
Knowingly A person acts knowingly if he is aware that it is practically certain that his conduct will
cause a specific result
Recklessly • Aware of a substantial risk

• Substantial and unjustifiable risk
• Gross deviation from standard of a law abiding person
Negligently • Should have been aware
• Failure to perceive the risk, considering the nature and purpose of the actor’s conduct and
the circumstances known to him
• A gross deviation from the care that would be exercised by a reasonable person in his
situation
Knowledge of Attendant Circumstances
Willful Blindness Examples
The D must objectively believe there is State v Nations

a high probability that a fact exists and Disco and underage girl
The D must take deliberate actions to The model penal code proposes that when knowledge of the existence
avoid learning of that fact of a particular fact is an element of an offense, such knowledge is
established if a person is aware of high probability of its existence,
unless he actually believes that it does not exist

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STRICT LIABILITY OFFENSES (174-192)
Strict Liability Public Welfare of Examples

Offenses Offenses
No mental state needed, If punishment of the Staples v US Garnett v State
just the actus reus wrongdoer far outweighs Exception to Strict Strict Liability Enforced
regulation of the social Liability Statutory Rape Case
order as a purpose of the Absent a clear Understanding that the
law in question, then mens Congressional statement legislature chose to not
rea is probably required that mens rea is not include a mens rea
If there is no mens rea to If the penalty is light, required, the public requirement, proves its
negate particular elements involving a relatively welfare/strict liability intent that they intended
of a law, then there is no small fine and not rationale should not be for the statute and offense
basis for acquittal on the including imprisonment, applied to interpret any to be strict criminal
ground of mistake of fact the mens rea is probably statute that fails to liability, as they included a
or law as to those strict not required mention mental state as an mens rea requirement in
liability elements element of the offense. the previous section
regarding capacity
CAUSATION (213-232)
Actual Cause (Cause in Fact) Examples
A D’s conduct is a cause in fact of Oxendine v State

the prohibited result if the said The D was convicted by jury of manslaughter for the death of his son, whom
result would not have occurred the D had beaten or kicked in the abdomen.
“but for” the D’s Conduct
Where the injury merely adds to the victim’s pain without accelerating the
death, the actor did not cause death.
Proximate Causation (“Legal” Cause)
A person or event cannot be a proximate cause of harm unless she or it is an actual cause, but a person or event
can be an actual cause without being the proximate cause
To prove a proximate cause the victim’s injury must be a direct and natural result of the D’s actions

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Intervening Causes For Proximate Causation
The law will generally not treat a very minor but for cause of harm legally responsible
De Minimis Causes for the result when there is a for more substantial cause of whom responsibility can be
attached
No matter how unforeseeable an omission may be, this “negative act” will not cut off
Omissions liability of an earlier “positive act”
“Nothing does not supersede something”
Intended Any intended consequence of an act is proximate

Consequences In general, a defendant is the proximate cause of a result, even if there is an intervening
Deoctrine cause, if the defendant intended the result that occurred.
Even though the defendant has created a dangerous situation, she is not responsible for
Apparent Safety
the ensuing result if it can be determined that the dangerous siuation created by the
Doctrine
defendant is over—that the victim, once at risk, has reached apparent safety.
Free, Deliberate, In general, a defendant is not the proximate cause of a result if a free, deliberate, and
Informed Human informed act of another human being intervenes.
Intervention
A D may not be held guilty of a crime in which his conduct is the cause-in-fact of injury
People v Rideout
to the victim but is not the proximate cause, since a superseding cause intervened to
(Apparent Safety
cause the victim’s injury, a cause which may even be the victim’s own choice to risk his
Doctrine)
safety
Velazquez v State The D’s participation in the race was not a proximate cause of the victim’s death because
(Free and Deliberate in effect he killed himself by his own volitional reckless driving, and consequently it
Human Intervention) would be unjust to hold the D criminally responsible for this death

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BURGLARY: Offenses Against the Habitation (Handout)
Burglary Common Law MPC 221.0-221.1
Elements 1. Breaking 1.Enters

2. Entering 2.Building or Occupied Structure
3. Dwelling House 3.With purpose to commit a crime therein
4. Of Another Robbery if Elements are satisfied plus
5. At Nighttime 4.Inflicts serious bodily injury upon another; or
6. With intent to commit a 5. Threatens another with or purposely puts him in fear
felony therein of immediate serious bodily injury
Actus Reus Breaking and Entering
Mens Rea With intent to commit a felony therein

Specific Intent
Attendant Dwelling House,  

Circumstances Of Another, Nighttime

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Burglary Examples: (Exceptions, Defenses Satisfied Elements)
Dwelling House
Wood v State (1939) A house that no one lives in, or ever lived in, in this case, is not a dwelling
State v Neff (1940) Burglary could be committed on uninhabited structures, provided they were “parcel of”
land within the same common fence as the mansion house, though not contiguous to it
This requires the place be someones place of habitation
Breaking
Davis v Common The entrance must have been contrary to the will of the occupier of the house
Wealth (1922)
Nichols v State (1887) Any unlawful entry of a dwelling house or other building with intent to commit felony,
shall be deemed a breaking and entering of such dwelling house or other building,
within the meaning of the last fourth section
Daniels v State (1886) If dwelling can extend to an outhouse, it can surely extend to apartments within a house
Actual The use of actual force, however slight
Constructive Threat of Force, Fraud, Conspiracy
Of Another
People v Gauze (1975) The cases have preserved the common law principle that in order for burglary to occur,
the entry must be without consent
Stowell v People There is no burglary if a person has right to enter, although he may intend to commit a
(1939) felony
This requires that the criminal cannot have habitation or occupancy rights
Entering
US v Phillips (1979) In this case the receptacle is attached to the outside wall of the hotel building, which is
connected by conveyor to inside the bank, consituting an entering
Walker v State (1879) When the instrument is employed not only to break, but to effect the only entry
contemplated, and necessary to the consummation of the criminal intent, whit it is
intruded within the house, breaking it, effecting an entry
Body Any part of the human body coming inside the plane of the dwelling house
Instrument If the instrument is capable of completing the felonious intent of the criminal actor, the
its intrusion would constitute “entering”
Nighttime
Gary v State (1943) Nighttime means one hour after the sun sets and one hour before it rises
A period between sunset and sunrise during which there is not enough daylight to
discern a man’s face
Common Law After Sunset, Before Sunrise, when its too dark to see a persons face

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CRIMINAL HOMICIDE (235-238, 247-265)
Criminal Homicide Common Law
Elements 1.Unlawful killing

2.Of another human being
3.With malice aforethought
Culpability 1.Intent to Kill

2.Intent to to cause serious bodily injury
3.Extreme Recklessness
4.Felony Murder
Section 210.1. Criminal Homicide.
1. A person is guilty of criminal homicide if he purposely, knowingly, recklessly or negligently causes the death of
another human being
2. Criminal homicide is murder, manslaughter or negligent homicide
Section 210.2. Murder.
(1) Except as provided in Section 210.3(l)(b), criminal homicide constitutes murder when:
(a) it is committed purposely or knowingly; or
(b) it is committed recklessly under circumstances manifesting extreme indifference to the value of human
life. Such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the
commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape
or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape

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INTENTIONAL KILLINGS
Degrees of Murder: The Deliberation-Premeditation Formula
State v Forrest 1. Want of provocation on the part of the deceased

The D shot and 2. The conduct and statements of the D
killed his critically 3. Threats and declaration of the D
ill father to end his 4. Ill-will between the parties
suffering. 5. The dealing of lethal blows after the deceased has been felled and rendered helpless
6. Evidence that the killing was done in a brutal manner
State v Guthrie To allow the State to prove premeditation and deliberation by demonstrating that the
Dishwashers intention to kill was in existence only at time of the killing completely eliminated the
distinction between the two degrees of murder.
Midgett v State There was no evidence of the premeditated and deliberate purpose of causing the death
Beat his son to of another person, required for conviction of first degree murder
death
Premeditation Someone premeditates a crime by considering it before committing it. Premeditation

requires that the defendant think out the act, no matter how quickly—it can be as simple
deciding to pick up a hammer that is lying nearby and to use it as a weapon.
Deliberation A defendant deliberates by considering the act and its consequences, and deciding to follow
through with it. A deliberate act isn’t provoked or carried out in the heat of passion.
Intentional Killing (First Degree Murder) Second Degree Murder (Depraved Heart)
Any intentional murder that is willful and Any intentional murder with malice aforethought, but is not
premeditated with malice aforethought, or during premeditated or planned.
commission of a BAARK crime

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Manslaughter: Heat of Passion Killings (265-291)
Voluntary The Rule of Provocation Mitigating Factors

Manslaughter
An intentional 1. There must have been adequate provocation 1.Discovering one’s spouse
homicide, done in a 2. The killing must have been in the heat of passion in the act of sexual
sudden heat of passion, 3. It must have been a sudden heat of passion, that is, intercourse with another
caused by adequate the killing must have followed the provocation 2.Mutual combat
provocation, before there had been a reasonable opportunity for 3.Assault and battery
the passion to cool
4. There must have been a causal connection between
the provocation, the passion and the fatal act
Girouard v State “Words alone are not adequate provocation”
The D killed his wife after she repeatedly verbally
abused him.
Heat of Passion Limitations (Common Law)
Cooling Off Time The provocation defense is unavailable to a D who kills the victim after he has
a reasonable opportunity for the passion to cool
Joshua Dressler- Lawful conduct, no matter how provocative, is never adequate provocation
Rethinking Heat of Passion
Objective Standard “The Reasonable Man,” considered objectively in a similar situation
Subjectivising the Director of Public Prosecution v Camplin

Objective Standard A “reasonable person” is an ordinary person of like sex and age.
The Model Penal Code and Beyond
Section 210.3: Manslaughter
1. Criminal Homicide constitutes manslaughter when:
a. It is committed recklessly; or
b. A homicide which would otherwise be murder is committed under the influence of extreme mental or
emotional disturbance for which there is a reasonable explanation or excuse. The reasonableness of such
shall be determined from the viewpoint of a person in the actor’s situation under the circumstances as he
believes them to be
People v Casassa (1980)
1. The court found that D killed the victim under extreme emotional disturbance
2. The court found the reasonableness of the disturbance, as peculiar to the D, and therefore unworthy of
mitigation

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Unintentional Killings: Unjustified Risk Taking [Involuntary Manslaughter] (294-307)
Reckless Killing Common Law
Extreme Recklessness
• The degree of risk, very high

• Unintentional homicide under circumstances evincing a “depraved mind” or an “abandoned and malignant
heart”
• A “wanton and willful disregard of an unreasonable human risk” or “a wickedness of disposition, hardness of
heart, cruelty, recklessness of consequences, and a mind regardless of social duty”
Degree Second Degree Murder
Implied Malice No considerable provocation appears and where all the circumstances of the killing show
an abandoned and malignant heart
Involuntary Manslaugter Common Law
The homicide of a human being without intent, either expressed or implied, but where the person's death occurs as
a result of the negligent or reckless actions of the defendant. (Negligent Homicide)
Negligennce Recklessness
• Should have been aware • Aware of Substantial and unjustifiable risk

• Failure to perceive the risk, considering the nature and • Gross deviation from standard of a law abiding
purpose of the actor’s conduct and the circumstances person
known to him
• A gross deviation from the care that would be exercised
by a reasonable person in his situation
Section 210.4. Negligent Homicide.
(1) Criminal homicide constitutes negligent homicide when it is committed negligently.
(2) Negligent homicide is a felony of the third degree.

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Unintentional Killings: Unlawful Conduct (308-310, 318-337)

Rule: A Felony+Killing= Murder
The “Inherently A Felony, in the abstract, has to be inherently dangerous to human People v
Dangerous Felony” life in order to constitute a felony murder Howard
Limitation
The “Independent Where the conduct constituting a felony is the sole cause of death, People v
Felony” (or Merger) i.e. assault, the felony “merges” with the homicide into a single Smith
Limitation crime.
Killings “In the The Agency Approach State v

Perpetration or in the The majority approach is that the felony murder doctrine does not Sophophone
Furtherance” of a apply if the person who directly causes the death is a non felon
Felony The Proximate Causation Approach
Holds that a felon may be held responsible under the felony murder
rule for a killing committed by a non-felon if the felon set in motion
the acts which resulted in the victim's death
Section 210.2. Murder.
(1) Except as provided in Section 210.3(l)(b), criminal homicide constitutes murder when:
(a) it is committed purposely or knowingly; or
(b) it is committed recklessly under circumstances manifesting extreme indifference to the value of human
life. Such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the
commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape
or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape.
Unlawful Act Manslaughter
The Misdemeanor Manslaughter Rule
An unintended homicide that occurs during the commission of an unlawful act not amounting to a felony
constitutes common law involuntary manslaughter
In effect the D’s intentional commission of a misdemeanor supplies the culpability required to impose liability

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RAPE (379-385, 397-415)
Rape
Common Law
1. Sexual Intercourse
2. With a woman, not the D’s wife
3. Without Consent
4. By Force or Threat of Force
Section 213.1. Rape and Related Offenses
(1) Rape. A male who has sexual intercourse with a female not his wife is guilty of rape if:
(a) he compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain
or kidnapping, to be inflicted on anyone; or
(b) he has substantially impaired her power to appraise or control her conduct by administering or
employing without her knowledge drugs, intoxicants or other means for the purpose of preventing
resistance; or (or by rendering her unable to consent.)
(c) the female is unconscious; or 
(d) the female is less than 10 years old.
Rape Cases
State v Alston Consent by the victim is a complete defense, Generalized fear of the D is not enough to
The D and the victim but consent which is induced by fear of render consent to sexual intercourse
had been involved in violence is void and is no legal consent alleged void, but rather, the D must use
a consensual sexual force or threats to overcome the will of
relationship. the victim to resist the sexual intercourse.
State v Rusk Force is an essential element of the crime and The reasonableness of a rape victim’s
to justify a conviction, the evidence must apprehension is a question of fact for the
warrant a conclusion either that the victim jury to determine.
resisted and her resistance was overcome by
force or that she was prevented from resisting
by threats to her safety
“No” in the Absence of “Yes”
Commonwealth v The victim never physically resisted the The “forcible compulsion” required to
Berkowitz Defendant, but she did repeatedly verbally sustain a conviction for rape in
College Case protest. Pennsylvania must be more than verbal
resistance, i.e. threat or actual force.
State of New Jersey Physical force is satisfied when a D applies Essentially replaced “force” with “freely
in the Interest of any amount of force against another person in given permission,” completely changing
M.T.S. the absence of what a reasonable person the statute
would believe to be affirmative freely given
permission to the act of sexual penetration

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THEFT (893-910, 910-917)
Larceny
Common Law Asportation
1. Trespasory The detachment, movement, or carrying away of property, considered

2. Taking an essential component of the crime of larceny.
3. Carrying Away The movement need only be slight to to constitute asportation, it must
4. Personal Property be a carrying away motion
5. Of Another
6. With intent to steal
Actus Reus Trespasory Taking and Carrying Away
Mens Rea With the Intent to Steal the Property
MPC § 223.2. Theft by Unlawful taking or Disposition
1. Movable Property. A person is guilty of theft if he unlawfully takes, or exercises unlawful control over,
movable property of another with purpose to deprive him thereof
2. Immovable Property. A person is guilty of theft if he unlawfully transfers immovable property of another or any
interest therein with purpose to benefit himself or another not entitled thereto

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Larceny Examples
Tresspassory Rex v Chisser Physical possession of a good obtained through larceny does not vest in the
possessor a legal right to that good.
Although D had physical possession through his taking and carrying away of
the goods, he never had constructive possession.
US v Mafnas “A bailment situation is said to arise where an owner, while retaining title,
delivers personality to another for some particular purpose upon an express or
implied contract.”
Under common law, larceny is committed when the bailee carrier “breaks
bulk,” when the bale is broken the contents taken
Topolewski v Where the owner of property, by himself or his agent, actually or
State constructively, aids in the commission of the offense, as intended by the
wrongdoer, by performing or rendering unnecessary some act in the
transaction essential to the offense, the would-be criminal is not guilty of all of
the elements of the offense.
Rex v Pear If the intention at the time of bargaining and communication with the legal
owner is not the true use to which the property will be made once in the hands
of the D, that D must be found guilty of the crime.
Movable Lund v At common law, labor or services could be be the subject of the crime of false
Property Commonwealt pretense because neither time nor services may be taken and carried away
h
Mens Rea
People v In order to be found guilty of larceny, an accused must have intended to
Brown permanently deprive the owner of his property.
People v Davis larceny may still be found, absent intent to permanently deprive, when:
1.The D intends to sell the property back to its owner;
2.The D intends to claim a reward for finding the property and
3.The D intends to return the property to its owner for a refund.
Larceny and Lost Property
Common Law
1.Intent to steal
2.Knowledge of the owner, or reason to believe owner could be found
(Due Diligence is not Required)
Brooks v State
Section 223.5. Theft of Property Lost, Mislaid, or Delivered by Mistake.
A person who comes into control of property of another that he knows to have been lost, mislaid, or delivered
under a mistake as to the nature or amount of the property or the identity of the recipient is guilty of theft if, with
purpose to deprive the owner thereof, he fails to take reasonable measures to restore the property to a person
entitled to have it.

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Embezzlement
Common Law
1. Conversion Rex v Bazeley

2. Lawful Possession Although there was no constructive or actual possession of the bank-note by the bank,
3. Entrustment the fact that the Defendant brought the property in question into his possession is all
4. Personal Property that is necessary to find embezzlement
5. Of Another
6. With intent to steal Breaking-Bulk Doctrine refers to a rule followed in old English law whereby it was
held that if a bailee who had lawful possession of property delivered in bulk, breaks it
open and misappropriates the contents, it constitutes a crime of larceny.
False Pretenses
Common Law
1. Obtaining Title People v White

2. Personal Property To support a conviction of theft for obtaining property by false pretenses, it must be
3. Of Another shown:  
4. False Representation 1. That the D made a false pretense or representation 
5. Intent to Defraud 2. That the representation was made with intent to defraud the owner of his property
and
3. That the owner was in fact defrauded in that he parted with his property in reliance
upon the representation.

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INCHOATE OFFENSES (708-712, 717-745)
Inchoate Offense Generally Attempt Principles
Allow punishment of an actor even The basis of the attempt crimes is not to deter but to allow for police
though he has not consumated the officers to intervene before the crime is consummated 
crime that is the object of his efforts
MPC approach prohibits an act that constitutes a Attempt is treated as a lesser offense than the
substantial step by listing several non exclusive examples intended crime
that have application to numerous completed crimes
Attempt
Common Law
1.The conduct that constitutes the attempt must be intentional

2.With the specific intention of committing the complete offense
Merger The law of merger prevents the actor from being convicted of both and attempted and a completed
offense
Attempt Examples
Mens Rea Common Law
People v Gentry Must the Defendant • The crime of attempt requires intent to do an act
specifically intend to constituting a substantial step toward committing a crime
commit the crime and a specific intent to commit the crime attempted.
attempted • Intent to kill is the only intent acceptable to convict for
attempted murder
Bruce v State Whether attempted felony Because a conviction for felony murder requires no
murder is a crime in this specific intent to kill, it follows that because a criminal
state attempt is a specific attempt intent crime, attempted felony
murder is not a crime

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Attempt Examples
Actus Reus Common Law
Distinguish between complete and incomplete attempts
Complete When the actor does every action necessary to bring about the prohibited result but
does not succeed in doing so
Incomplete When the actor does some action toward the commission of the crime, but does not
do every action necessary
US v Coplon “A neat doctrine by which to test when a person, intending to commit a crim which he
fails to carry out, has “attempted” to commit it, would be that he has done all that it is
within his power to do, but has been prevented by intervention from outside; in short,
that he has passed beyond any locus poenitentiae.”
Mims v US “Preparation alone is not enough, there must be some appreciable fragment of the
crime committed, it must be in such progress that it will be consummated unless
interrupted by circumstances independent of the will of the attempter, and the act
must not be equivocal in nature”
The Physical Proximity Doctrine
The overt act required for an attempt must be proximate to the completed crime, or directly tending toward the
completion of the crime, or must amount to the commencement of the consummation
The Dangerous Proximity Doctrine
If the actor has come dangerously close to completing the offense
The Indispensable Element Test
A variation of the proximity tests which emphasizes any indispensable aspect of the criminal endeavor over which
the actor has not yet acquired control
The Probable Desistance Test
The conduct constitutes an attempt if, in the ordinary and natural course of events, without interruption from an
outside source, it will result in the crime intended
If he’s gone so far that it is unlikely that he will voluntarily abandon the endeavor
The Unequivocality Test
An attempt is committed when the actor’s conduct manifests an intent to commit a crime
If there is only one explanation for his actions

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MPC §5.01. Criminal Attempt
1. Definition fo Attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability
otherwise required for commission of the crime he;
a. Purposely engages in conduct that would constitute the crime if the attendant circumstances were as he
believes them to be; or
b. When causing a particular result is an element of the crime, does or omits to do anything with the purpose
of causing or with the belief that it will cause such result without further conduct on his part; or
c. Purposely does or omits to do anything which, under the circumstances as he believes them to be, is an
act or omission constituting a substantial step in a course of conduct planned to culminate in his
commission of the crime
2. Conduct That May Be Held Substantial Step Under Subsection (1)(c)
a. Lying in wait, searching for or following the contemplated victim of the crime
b. Enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its
commission
c. Reconnoitering the place contemplated for the commission of the crime
d. Unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be
committed
e. Possession of materials to be employed in the commission of the crime, which are specially designed for
such unlawful use or which can serve no lawful purpose of the actor under the circumstances
f. Possession, collection or fabrication of materials to be employed in the commission of the crime, at or
near the place contemplated for its commission, where such possession serves no lawful purpose of the
actor under the circumstances
g. Soliciting an innocent agent to engage in conduct constituting an element of the crime
Compare Common Law and MPC “Act” Approaches
Common Law Focuses on what the criminal actor has left to do
MPC Facouses on what the criminal has done

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Distinguishing Preparation From Perpetration: The Tests at Work
Commonwealth v Whether the D’s acts An overt act, although coupled with intent, • Mims v US
Peaslee come near enough to the commonly is not punishable if further acts • Dangerous
D rigged a accomplishment of the acts are contemplated as needful, is expressed Proximity
building with substantive offense to in the familiar rule that preparation is not an
combustibles be punishable attempt
People v Rizzo Does this constitute the Only the acts so near the accomplishment of a Dangerous
The person they crime of an attempt to crime that in all reasonable probability the Proximity
were seeking to commit robbery in the crime itself would have been committed but
rob was never first degree for timely interference.
spotted, nor in
their vicinity
People v Miller Do the Defendant’s Where the defendant’s actions are equivocal, The Res Ipsa
D, under the actions constitute the defendant cannot be guilty of attempt. Loquitur or
influence of attempted murder Unequivocality
alcohol, Test
threatened to kill Equivocal: open to more than one
the victim at a hop interpretation; ambiguous
ranch
State v Reeves Whether the D’s actions When an actor possesses materials to be used Tenn. Version of
Two 12 year old in the case constitute a in the commission of a crime, at or near the MPC Attempt
girls decided to “substantial step” scene of the crime, and where the possession § 5.01(2)(f)
kill their toward the commission of those materials can serve no lawful “Substantial Step”
homeroom teacher of second degree purpose of the actor under the circumstances,
murder under the new the jury is entitled, but not required, to find
statute that the actor has taken a “substantial step”
toward the commission of the crime is such
actions is strongly corroborative of the actor’s
overall criminal purpose

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SPECIAL DEFENSES (745-763)
Special Defenses
Impossibility Common Law
Factual Impossibility Defense?
• Exists when D intended end constitutes a crime but she

fails to consummate it because of a factual circumstance Shooting into an empty bed Never
unknown to her or beyond her control
Legal Impossibility
• Pure
1. When a D behaves in what he believes is criminal, but Buying alcohol when your of age,
Yes, always
it is actually not illegal but don’t think you are in that state
2. Mistake about the Law
• Hybrid
People v Thousands Possibly at
1. Mistake about a fact- legal status or an attendant
Defense not Allowed Common Law
circumstance
The impossibility defense is rejected, liability being focused upon the circumstances
MPC 5.01 as the actor “believes them to be” rather than as they actually exist
Special Defenses
Abandonment Common Law
Voluntary Abandonment Not a defense in most jurisdictions (Modern Trend is shifting to include it as a
of Intended Crime defense)
Involuntary Abandonemnt Not a defense
Section 5.01(4) Criminal Attempt.
Renunciation of Criminal Purpose. When the actor's conduct would otherwise constitute an attempt under
Subsection (1)(b) or (1)(c) of this Section, it is an affirmative defense that he abandoned his effort to commit the
crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary
renunciation of his criminal purpose. The establishment of such defense does not, however, affect the liability of
an accomplice who did not join in such abandonment or prevention.
Also doesn’t allow a defense for involuntary abandonment

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Solicitation
Common Law
1.The encouraging, bribing, requesting, or commanding a person

2.To commit crime
3.With the intent that the person solicited commit the crime
Actus Reus Asking Another to Commit a Crime
Mens Rea Intent that the crime be committed
Merger The offense of solicitation merges into the crime solicited if the latter offense is committed
or attempted by the solicited party
Section 5.02. Criminal Solicitation.
(1) Definition of Solicitation. A person is guilty of solicitation to commit a crime if with the purpose of promoting
or facilitating its commission he commands, encourages or requests another person to engage in specific conduct
that would constitute such crime or an attempt to commit such crime or would establish his complicity in its
commission or attempted commission.
(2) Uncommunicated Solicitation. It is immaterial under Subsection (1) of this Section that the actor fails to
communicate with the person he solicits to commit a crime if his conduct was designed to effect such
communication.

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Conspiracy
Common Law
• Agreement or understanding between two persons

• To commit a criminal act
Actus Reus Agreement between two or more persons
Mens Rea Intent to agree with intent to accomplish an illegal objective
The crime is complete upon formation of the agreement, it is not necessary to establish any overt act in
furtherance of the conspiracy as a component of the crime
Conspiracy is a specific intent crime requiring an intent to agree or conspire, and a further intent to commit the
target crime
Merger Conspiracy and the offense do not merge, unlike solicitation
Pinkerton Makes a conspirator criminally liable for the substantive offenses committed by a co-
Liability conspirator when they are in
• Furtherance
• Within scope
• Reasonably foreseeable
Section 5.03. Criminal Conspiracy. (SI)
(1) Definition of Conspiracy. A person is guilty of conspiracy with another person or persons to commit a crime if
with the purpose of promoting or facilitating its commission he:
(a) agrees with such other person or persons that they or one or more of them will engage in conduct that
constitutes such crime or an attempt or solicitation to commit such crime; or
(5) Overt Act. No person may be convicted of conspiracy to commit a crime, other than a felony of the first or
second degree, unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by
him or by a person with whom he conspired.

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Conspiracy Examples
Case/Facts Analysis Holding
People v Carter Twofold specific intent is required The crime is complete upon
• Intent to combine with others formation of the agreement, it is
• Intent to accomplish the illegal objective not necessary to establish any
overt act in furtherance of the
conspiracy as a component of the
crime 
Pinkerton v US So long as the partnership in crime continues, the The “overt act of one partner may
Indicted for violations of partners act for each other in carrying it forward be the act of all without any new
the Internal Revenue agreement specially directed to
Code that act”
In furtherance, within scope,
reasonably foreseeable
People v Swain A conviction of conspiracy to commit murder Conspiracy is a specific intent
The Defendants were requires a finding of intent to kill, and cannot be crime requiring an intent to agree
each convicted of based on a theory of implied malice or conspire, and a further intent to
conspiracy to commit Mens Rea not satisfied commit the target crime
murder and other crimes,
stemming from the drive-
by shooting death of a
15-year-old boy.
Commonwealth v Azim Relevant circumstances A rational factfinder could find,
D was the driver, with Knowledge of the commission of the crime beyond a reasonable doubt, that
two other person in the Presence at the scene of the crime appellant conspired with James
car, who committed Participation in the object of the conspiracy and Robinson to commit assault
robbery, as he sat in the Actus Reus satisfied and battery
car Once conspiracy is established
and upheld, a member of the
conspiracy is also guilty of the
criminal acts of his co
conspirators
Commonwealth v Cook Proof of a conspiracy may rest entirely on Furthermore, neither association
The victim, a 17 year old circumstantial evidence with a criminal nor knowledge of
girl went to visit some The fact that a defendant may have aided and an illegal activity constitute proof
friends and was abetted a crime does not establish conspiracy, of participation in a conspiracy
subsequently raped particularly where the evidence shows that prior
planning was not an inherent facet of the crime.
Actus Reus not satisfied

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LIABILITY FOR THE CONDUCT OF ANOTHER (828-834, 848-863)
Principals and Accessories Determinations
Principle in the First Degree Actually commits a crime, either by his own hand, or by an innocent
human agent
Principle in the Second Degree Aided, counseled, commanded or encouraged the commission thereof in
his presence, either actual or constructive
Accessory Before the Fact Aided, counseled, commanded or encouraged, the commission thereof,
without having been present either actually or constructively at the moment
of the perpetration
All guilty of the underlying crime
Accessory After the Fact With knowledge of the other’s guilt, renders assistance to a felon in the
effort to hinder his detection, arrest, trial or punishment
Guilty of Obstruction of Justice MPC §242.3 Hindering Apprehension or Prosecution
Aiding a Felon The MPC Equivalent
The MPC Doesn’t Recognize these distinctions
Accomplice Liability Common Law
Mens Rea • Intent to Aid

• Intent that the crime be committed
Actus Reus • Aid the Criminal actor

1.The aid had to be effective

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MPC § 2.06. Liability For Conduct Of Another (SI)
1. A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for
which he is legally accountable, or both
2. A person is legally accountable for the conduct of another person when:
a. Acting with the kind of culpability that is sufficient for the commission of the offense, he causes an
innocent or irresponsible person to engage in such conduct, or
b. He is made accountable for the conduct of such other person by the Code or by the law defining the
offense
c. He is an accomplice of such other person in the commission of the offense
3. A person is an accomplice of another person in the commission of an offense if
a. With the purpose of promoting or facilitating the commission of the offense, he
i. Solicits such other person to commit ir, or

ii. Aids or agrees or attempts to aid such other person in planning or committing it; or
iii. Having a legal duty to prevent the commission of the offense, fails to make proper effort so to do;
Mens Rea With the purpose of promoting or facilitating the commission of the offense,
Actus Reus • Solicits (Solicitation)

• Agrees to Aid (Conspiracy)
• Attempts to Aid (Accomplice)
• Aids (Accomplice)

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Accomplice Liability Cases
State v Hoselton A lookout is one who is by An aider and abettor, or principal in the
The D stood “look out” prearrangement, keeping watch to avoid second degree, must in some sort
interception or detection or to provide associate himself with the venture, that
warning during the perpetration of the he participate in it as something that he
crimes and thereby participating in the wishes to bring about
offenses charged
Actus Reus Mere presence, or even prior knowledge, Remaining passive while a crime is
State v V.T does not make one an accomplice, to a being committed, and being friends with
D was charged with two counts of crime absent evidence showing the D the wrongdoer, is not sufficient evidence
theft of a firearm and one count of advised, instigated, encouraged, or assisted of being an accomplice and does not
theft, relating to the camcorder in perpetration of the crime incur liability
Actus Reus His payment and presence acts as Aiding and abetting can be found
Wilcox v Jeffery encouragement for Hawkins through the mere encouragement of
Charged with aiding and abetting criminal activity.
Hawkins in contravention of the Alien
Actus Reus Because the D helped come up with the Because D corroborated in the story he’s
State v Helmenstein story to tell police he could be an helping/aiding in the success of the
They broke into the store and returned accomplice crime
to the car with the stolen goods
Actus Reus The statute in this state requires that the The cop never intended on committing
People v Genoa crime be committed in order to convict a the crime so the D couldn’t be convicted
Giving money to a cop to buy and sell person as an accomplice This wouldn’t fly under the MPC
cocaine
Distinguishing Direct From Mens Rea One who affects a criminal act through
Accomplice Liability • Satisfied; he intended to for the result an innocent or unwitting agent is a
Bailey v Commonwealth Actus reus principal in the first degree.
Radio Argument • Satisfied through the innocent agent MPC 2.06(2)(a)
Causation
• Actual; satisfied
• Proximate; an intervening act which is
reasonably foreseeable cannot be relied
upon as breaking the chain of causal
connection between an original act of
negligence and subsequent injury
Distinguishing Liabilities
Accomplice A person is guilty of a crime through accomplice liability when she performs some act
Liability that aids in the criminal act
Direct Liability Use of an innocent agent to accomplish the criminal objective is a method of establishing
direct liability not accomplice liability
Vicarious Liability A person is vicariously liable based on statute or relationship- No act is required

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GENERAL DEFENSE TO CRIMES (461-464, 481- 505, 506-527, 530-534)

Categories of Defenses
Failure of Proof Defenses
Consist of instances in which, because of the conditions that are the basis for the “defense,” all elements of the
offense charged cannot be proven
The negation of an element by the definition of the offense
Offense Modification
While the actor has apparently satisfied all elements of the offense charged, he has not in fact caused the harm or
evil sought to be prevented by the statute defining the offense
Justifications
The harm caused by the justified behavior remains a legally recognized harm which is to be avoided whenever
possible
Under special justifying circumstances, that harm is outweighed by the need to avoid and even greater harm or to
further a greater societal interest
Self Defense
“A justifications negates the social harm of an offense”
Excuses
Admit that the deed may be wrong, but excuse the actor because conditions suggest that the actor is not
responsible for his deed
An excuse negates the moral blameworthiness of the actor for causing harm
Non-Exculpatory Public Policy Defenses
Statute of limitations, diplomatic immunity, judicial, legislative and executive immunities, and incompetence
Not based on culpability, but public policy

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Structure and Underlying Theories of Justification Defenses
Triggering Conditions
1.Must be necessary to protect or further the interest at stake

2.It must cause only a harm that is proportional or reasonable in relation to the harm threatened or the interest to
be furthered
To Use Deadly Force
1.Threat of Death or Serious Bodily Injury

2.Subjective- Honest/good faith belief facing threat of death or serious bodily injury
3.Objective- reasonable belief
4.Threat has to be imminent
5.Not at fault (can’t be the aggressor)
6.No retreat required (Majority)
7.No retreat, if it is in the state then not in your home (Castle Doctrine, Majority Rule)
MPC § 3.04. Use of Force in Self-Protection
1. Use of Force Justifiable for Protection of the Person. Subject to the provisions of this Section and of Section
3.09, the use of force upon or toward another person is justifiable when the actor believes that such force is
immediately necessary for the purpose of protecting himself against the use of unlawful force by such other
person on the present occasion.
2. Limitations on Justifying Necessity for Use of Force
b.The use of deadly force is not justifiable under this Section unless the actor believes that such force is
necessary to protect himself against death, serious bodily harm, kidnapping or sexual intercourse
compelled by force or threatnor is it justifiable if
I. the actor, with the purpose of causing death or serious bodily harm, provoked the use of force against
himself in the same encounter; or
II. the actor knows that he can avoid the necessity of using such force with complete safety by retreating
Section 3.09. Mistake of Law as to Unlawfulness of Force or Legality of Arrest; Reckless or

Negligent Use of Otherwise Justifiable Force; Reckless or Negligent Injury or Risk of Injury to
Innocent Persons (Mitigation under the MPC)
(2) When the actor believes that the use of force upon or toward the person of another is necessary for any of the
purposes for which such belief would establish a justification under Sections 3.03 to 3.08 but the actor is reckless
or negligent in having such belief or in acquiring or failing to acquire any knowledge or belief which is material to
the justifiability of his use of force, the justification afforded by those Sections is unavailable in a prosecution for
an offense for which recklessness or negligence, as the case may be, suffices to establish culpability
Outcome of Applying MPC 3.09
If the actor was reckless in his belief that deadly force If the actor was negligent in her belief that deadly force
was needed, then he may be prosecuted for was needed then she may be prosecuted for negligent
manslaughter homicide

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Self Defense: Examples
Clean Hands- Not If the actor is responsible for starting the deadly encounter or for escalating a non-deadly
the Initial encounter into a deadly one, then the perfect right of self defense is not available
Aggressor However, an actor who was the initial aggressor, but withdraws in good faith and clearly
communicates that to the other person may re-acquire the perfect right of self defense
United States v The defender must have believed that he was An affirmative unlawful act reasonably
Peterson in imminent peril of death or serious bodily calculated to produce an affray
Wipers harm, and that his response was necessary to foreboding injurious or fatal
save himself therefrom consequences is an aggression which,
unless renounced, nullifies the right of
homicidal self defense
Good Faith First the D must hold the belief in the need to use deadly force in good fiath
Reasonable Belief -The subjective standard
Requirement Second, a reasonable person in D’s situation would also entertain that belief
- the objective standard
People v Goetz New york adopted the MPC but inserted the The test for self defense in new york
Subway word “reasonably” before “believes” needs to be considered objectively by a
jury
Subjectivization of Some Courts have moved in the direction of subjectivizing the normally objective
the Reasonable reasonable person standard by considering such characteristics as gender or age
Person
State v Wanrow The court asserts that other considerations need The trial court asserted an objective
Child Molester killed to be posited standard of reasonableness, which
• Circumstances/situation precluded the defense, relying on an
• Physical Attributes masculine standard, violating D’s Equal
• Prior Experiences Protection rights
• Relevant Knowledge The reasonableness of a person’s
actions in self-defense must be
considered in the light of her own
perceptions of the situation
Subjective Standard
“Battered Women” “The right to kill in self-defense is based on the A killing by a woman suffering from
State v Norman [II] necessity, real or reasonably apparent, of “battered wife syndrome” cannot be
killing an unlawful aggressor to save oneself done in self-defense unless death or
from imminent death or great bodily injury at serious bodily harm is imminent.
his hands.” Objective Standard
Defense of Others Under the defense of others concept, a person A person may kill a person threatening
People v Kurr can essentially step into the shoes of one being another if he reasonably believes that
Coke head/pregnant D threatened with death or serious bodily injury that person is in imminent danger of
and take the same action that that person is death or serious bodily harm
entitled to take under the law
Three Types of Imperfect Self-Defense
The actor’s belief in the need to use The actor was the initial aggressor The Actor used excessive force
deadly force was unreasonable in the deal confrontation
Therefore, the criminal actor would be guilty of manslaughter rather than murder under the common law

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Defense of Property/Habitation and Law Enforcement Defense
State v Boyett Defense of habitation applies where the D uses reasonable No evidence of a forced entry to
Shoots fiancé’s force to exclude someone he or she reasonably believes is support the defense of habitation
ex girls friend trespassing in, or about to trespass in, his or her home defense
Protecting a defendant's right to prevent forced entry D had opened the door for the V
necessitates that the defense apply when an intruder is
outside the home but endeavoring to enter it.
Necessity “Choice of Evils” (Forces of Nature [As Opposed to Duress])
Common Law MPC § 3.02. Choice of Evils

1.Faced with Imminent Danger 1.The harm or evil sought to be avoided by such
2.Your action will reasonably abate the danger conduct is greater than that sought to be
3.There is no legal alternative prevented by the law defining the offense charged
4.Harm caused is less than harm averted have to have clean 2.Neither the code nor other law defining the
hands offense provides exceptions or defenses dealing
5.Legislature has not anticipated this choice with the specific situation involved
3.A legislative purpose to exclude the justification
claimed does not otherwise plainly appear
Nelson v State To invoke the defense of necessity, the The defense of necessity can be invoked only in the
Truck Stuck on crime committed must have been done to limited circumstances where a crime must be
Highway 1.prevent a significant evil committed to prevent a greater evil, which must be
2.there was no legal alternative and significant.
3.the harm caused was not
disproportionate to the harm avoided.
The Queen v It is not correct to say there is any A person may not sacrifice another person’s life to
Dudley and absolute or unqualified necessity to save his own.
Stevens preserve one's life

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PRINCIPLES OF EXCUSE (560-562, 564-572, 578-584)
Duress
Common Law
1.An immediate threat of death or serious bodily injury

2.A well grounded fear that the threat will be carried out and
3.No reasonable opportunity to escape the threatened harm
4.He was not at fault (Clean Hands)
US v Conento The element of immediacy requires that there be some D provided enough evidence
Swallowed bags evidence that the threat of injury was present, immediate, or for the trier of fact to
of Cocaine impending determine the credibility of
The D must show that he had no reasonable opportunity to his defense
escape. It should be up to the trial to determined whether D
had a reasonable means of escape
People v The legislature allowed for duress as a defense in all cases Duress is never a defense to
Anderson except those punishable by death (First Degree Murder) murder, nor can the defense
Killed camp Duress also can’t mitigate murder to manslaughter of duress reduce murder to
counselor manslaughter.
MPC § 2.09. Duress
1.It is an affirmative defense that the actor engaged in the conduct charged to constitute an offense because he was
coerced to do so by the use of, or a threat to use
1.Unlawful force against his person or the person of another
2.That a person of reasonable firmness in his situation would have been unable to resist
2. Defense unavailable if actor recklessly or negligently placed himself in the situation
Intoxication (584-592)
Involuntary Intoxication
Coerced Intoxication involuntarily induced by reason of duress or coercion

Intoxication
Pathological Intoxication grossly excessive in degree, given the amount of the intoxicant, to which
Intoxication the actor does not know he is susceptible
Involuntary When intoxication results from an innocent mistake by the D about the character of the
Intoxication substance taken, as when another person has tricked him into taking the liquor or drugs
Unexpected When the D is unexpectantly intoxicated due to the ingestion of a medically prescribed
Intoxication drug
Examples US v Veach
Threatened a Cop
Holding Intoxication, whether voluntary or involuntary, may preclude the formation of specific
intent and thus serve to negate an essential element of certain crimes
This Rationale is being abandoned by most states, not allowing a defense for voluntary
intoxication

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Intoxication as a Failure of Proof Defense
Type of Crime Voluntary Intoxication Involuntary Intoxication
Specific Intent Defense Defense
General Intent No Defense Defense
Strict Liability No Defense No Defense
Section 2.08. Intoxication.
(1) Except as provided in Subsection (4) of this Section, intoxication of the actor is not a defense unless it
negatives an element of the offense. (General/Specific)
(2) When recklessness establishes an element of the offense, if the actor, due to self-induced intoxication, is
unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial.
(3) Intoxication does not, in itself, constitute mental disease within the meaning of Section 4.01.
(4) Intoxication that
(a) is not self-induced or

(b) is pathological is an affirmative defense if by reason of such intoxication the actor at the time of his
conduct lacks substantial capacity either to appreciate its criminality [wrongfulness] or to conform his
conduct to the requirements of law.

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Mistake and Mens Rea
Mistake of Fact
Common Law For specific intent crimes, a reasonable mistake of fact is a defense
People v Navarro “If no specific intent or other special mental element is If a person has a good faith
Wooden Beams required for guilt of the offense charged a mistake of fact belief that he has a right to
will not be recognized as an excuse unless it was based certain property, he is not
upon reasonable grounds” guilty of larceny, even if the
belief is unreasonable.
The Moral A Reasonable mistake of fact ordinarily exculpates a defendant prosecuted for a general
Wrong Doctrine intent crime
Works the same as the Moral Wrong Doctrine except the term legal wrong is substituted for
immoral
The Legal Wrong If a D’s conduct, based on the facts as he believes them to be, constitutes a crime, not
Doctrine simply an immorality, he may be convicted of the more serious offense that his conduct
establishes
Mistake or Ignorance of the Law
MPC § 2.04. Ignorance or Mistake
1. Ignorance or mistake as to a matter of fact to law is a defense if:
2. The ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to
establish a material element of the offense
a. The law provides that the state of mind established by such ignorance or mistake constitutes a defense
3. A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based
upon such conduct when
a. The statute or other enactment defining the offense is not know to the actor and has not been published or
otherwise reasonably made available prior to the conduct alleged
b. The acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid,
erroneous , contained in
i. a statute or other enactment
ii. A judicial decision, opinion or judgement
iii. an administrative order or grant of permission
iv. An official interpretation of the public officer or body charged by law with responsibility for the
interpretation, administration or enforcement of the law defining the offense
4. The D must prove a defense arising under subsection (3) by a preponderance of the evidence

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Mistake or Ignorance of Law Cases
People v Marrero Reasonable Reliance/Official Pronouncement Mistake of law regarding a statutory

Conn Cop 1. Statutory interests words definition is not a valid defense unless
2. Legislative history the mistaken belief is based on an
3. Legislative inent official statement of the law contained
4. Public policy in a statute or issued by a public
servant.
Lambert v California When applied to a person who has no actual In the case of registration laws, failure
Duty to Register knowledge of his duty to register, and where to register is “conduct that is wholly
no showing is made of the probability of such passive” and therefore should be
knowledge, this ordinance violates the Due evaluated differently than commission
Process Clause of the Fourteenth Amendment of acts or omissions under
circumstances that should alert the
non-actor or a duty to act.
Cheek v United States Ordinarily a mistake about the prohibition is A good faith misunderstanding of the
Taxes not a defense, however where the prosecution law or a good faith belief that one is
must prove that a duty was intentionally not violating the law does not have to
violated, a mistake as to the existence of the be reasonable to negate the element of
prohibition negates that intent. willfulness (specific intent)
Common Law No Defense for Mistake of Law in the Common Law
Failure of Proof Defenses
Type of Crime Mistake of Fact Mistake of Law
Specific Intent Good Faith Mistake Good Faith and Other Law
General Intent Good Faith and Reasonable No Defense
Strict Liability No Defense No Defense

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INSANITY (597-611)
Insanity Tests
The M’Naghten Rule
“To establish a defense on the front of insanity it 1. Mental Disease or Defect

must be clearly proved that, at the time of 2. Did not know the nature or quality of the act they were
committing the act, the part accused was laboring doing
under such a defect of reason, from disease of the 3. Did not know that the act was wrong
mind, as not to know the nature and quality of the act • Anti social disorder doesn't count
he was doing, or if he did know it, the he did not
know that what he was doing was wrong”
The Irresistible Impulse or Control Test
Under the Irresistible Impulse Test, the M’Naghten standards are applied and 1.Mental Disease or Defect
then the relevant inquiry turns to: even if the defendant knew right from wrong, 2.Unable to control conduct
he is insane if (1) he is unable to control his behavior or (2) he has lost the • volitional
power to choose
The “Product” Test
Under this test, “an accused is not criminally responsible if his unlawful act was 1.Unlawful act was the product
the product of mental disease or mental defect” of Mental Disease or Defect
Model Penal Code Test
1.When as a result of mental disease or defect, the D lacked substantial capacity to appreciate the criminality of
his conduct
2.When, as a result of mental disease or defect, the D lacked substantial capacity to conform his conduct to the
requirement of the law
• volitional
The Bazelon Test
Our instruction to the jury should provide that a D is not responsible if at the time of his unlawful conduct his
mental or emotional processes were impaired to such an extent that he cannot justly be held responsible for his act

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BATTERY AND ASSAULT (Handout)
Common Law
Battery
Elements 1. Intend to touch

2. Touch
Actus Reus Unlawful application of force to the person of another
Mens Rea Intent to Touch
Assault
Elements Threat of bodily harm, with a present ability to cause the harm.
Actus Reus An unlawful attempt, coupled with a present ability, to commit a violent injury on the person of
another
Mens Res Intent to Battery
MPC § 211.1. Assault
1. Simple Assault: a person is guilty of simple assault if he:
a. attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or

b. negligently causes bodily injury to another with a deadly weapon; or
c. attempts by physical menace to put another in fear of imminent serious bodily injury.
Simple assault is generally a misdemeanor unless committed in a fight entered into by mutual consent, in which
case it is a petty misdemeanor.
2. Aggravated assault: a person is guilty of aggravated assault if he:
a. attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or
recklessly under circumstances manifesting extreme indifference to the value of human life; or
b. attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon.
Aggravated assault under section (a) is categorized as a felony of the second degree whereas assault under (b)
qualifies as a felony of the third degree.

lOMoARcPSD|4319365
Assault Examples
State v Jimerson An assault or an assault and battery not D is entitled to instructions where evidence was
Off duty Cop and amounting to first, second, or third provided which would justify a reasonable person
a car degree shall be guilty of simple assault. in concluding that the lesser included offense had
been committed
United States v Since an attempted battery is an assault, Assault is an offer or attempt with force and
Bell it is irrelevant that the victim is violence, to do a corporal hurt to another, every
Elderly rape case incapable of forming a reasonable battery includes an assault.
apprehension
US v Jacobs Whether the evidence is sufficient to Another established rule is that when an actual
Eviction and butt support finding of assault resulting in battery is committed it includes assault
shooting serious bodily injury, when victim
wasn’t immediately aware of the battery
State v Capwell State statute requires “physical injury” Because D took a “substantial step” toward the
Gas can for conviction. While V was hit by D, he commission of the crime he can be charged with
didn’t experience what the court “attempted Assault.”
considers an “injury.”

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Criminal Law (Cleveland State University)

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MODERN RULE OF CRIMINAL STATUTES (92, 95-113,119-126)

Principle of Legality Examples

The Values of Statutory Clarity Examples

The requirement that a statute be couched in terms of In Re Banks (1978)

Statutory Interpretation Examples

To find the meanings of statutes, judges use various Muscarello v US

ACTUS REUS (127-142, 147-148)

The physical or external part of the crime Martin v State (1944)

Bars liability for purely involuntary conduct State v Utter (1971)

Voluntarily induced unconsciousness, such as by drugs

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Omissions (Negative Acts)

Creating a Duty to Act Examples

A. A bodily movement during unconsciousness or sleep

MENS REA (149-168)

The Two Usages of Mens Rea

Narrowly Speaking*** Broadly Speaking

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“Intent” (Mens Rea) (Common Law)

Speciﬁc Intent General Intent Transferred Intent

Section § 2.02: General Requirements of Culpability

Purposely Conscious objective to bring about the result

Recklessly • Aware of a substantial risk

Knowledge of Attendant Circumstances

Willful Blindness Examples

The D must objectively believe there is State v Nations

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STRICT LIABILITY OFFENSES (174-192)

Strict Liability Public Welfare of Examples

Actual Cause (Cause in Fact) Examples

A D’s conduct is a cause in fact of Oxendine v State

Proximate Causation (“Legal” Cause)

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Intervening Causes For Proximate Causation

Intended Any intended consequence of an act is proximate

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BURGLARY: Offenses Against the Habitation (Handout)

Burglary Common Law MPC 221.0-221.1

Elements 1. Breaking 1.Enters

Actus Reus Breaking and Entering

Mens Rea With intent to commit a felony therein

Attendant Dwelling House,

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Burglary Examples: (Exceptions, Defenses Satisﬁed Elements)

Actual The use of actual force, however slight

Constructive Threat of Force, Fraud, Conspiracy

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CRIMINAL HOMICIDE (235-238, 247-265)

Criminal Homicide Common Law

Elements 1.Unlawful killing

Culpability 1.Intent to Kill

Section 210.1. Criminal Homicide.

Section 210.2. Murder.

(a) it is committed purposely or knowingly; or

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Degrees of Murder: The Deliberation-Premeditation Formula

State v Forrest 1. Want of provocation on the part of the deceased

Premeditation Someone premeditates a crime by considering it before committing it. Premeditation

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Attendant Dwelling House,  